Burrell v Bizzoco

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[*1] Burrell v Bizzoco 2021 NY Slip Op 50552(U) Decided on June 11, 2021 Supreme Court, Westchester County Everett, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2021
Supreme Court, Westchester County

Hugh D. Burrell, Plaintiff,

against

Andrew J. Bizzoco, Defendant.



55708/2020



Adam B. Sattler, Esq.

Sattler Law Group PC

270 North Avenue, Suite 202

New Rochelle, NY 10801

Phone: (914) 239-4900

Christopher Jude Walsh, Esq.

Marin Goodman, LLP

500 Mamaroneck Avenue, Suite 501

Harrison, NY 10528

Phone:(212) 661-1151
David F. Everett, J.

The following papers were considered on the motion:

Notice of Motion/Attorney Affirmation/Exhibits/Court Notice/Attorney Affirmation in Opposition/Reply Affirmation/Notice of Compliance/Correspondence



(NYSCEF documents numbered 11-23)

In this action to recover damages for personal injuries, the defendant moves, in motion sequence number 1, pursuant to CPLR 2104, to enforce the parties' purported settlement agreement. The case was recently reassigned to this Part. The Court holds that there is an enforceable settlement agreement and grants the defendant's motion.

The plaintiff commenced this action to recover damages for personal injuries resulting from a motor vehicle collision. By letter, dated December 28, 2020, attorney Christopher J. Walsh of Marin Goodman, LLP, attorneys for the defendant, wrote to the Sattler Law Group, [*2]P.C., attorneys for the plaintiff, to the attention of attorney Edward Fajardo. The letter, among other things, acknowledges the plaintiff's demand of $100,000, and indicates that "we have been advised by Preferred Mutual [the defendant's insurance carrier, according to Walsh's affirmation] that we have authority in the amount of $12,000." Walsh, in his affirmation submitted in support of the pending motion, claims that on January 7, 2021, Walsh spoke with a representative from the plaintiff's attorney's office who inquired whether the matter could be resolved for $25,000.

An email, sent January 11, 2021, at 11:20 AM, from Walsh to Fajardo, indicates, in part, that "Preferred Mutual will increase its offer of $12,000 to $16,000 in response to plaintiff's recent query as to whether this case can be resolved for $25,000." An email, sent that same day, at 12:05 PM, from Adam Sattler to Walsh, with a copy to Fajardo, reads, in part, "I just spoke to Edward. I spoke to the client. If we can wrap this up today, I can meet in the middle at $20k. Lmk, thanks [] adam". A typed signature block, reading, "Adam Sattler [] SATTLER LAW GROUP, PC" follows below. An email sent that day, at 1:15 PM, from Walsh to Sattler indicates that Walsh will "reach out" to Preferred Mutual and get back to Sattler.

An email sent that day, January 11, 2021, at 2:44 PM, from Walsh to Sattler reads in part:

"Dan Hernandez of Preferred will go to $20,000 to resolve the case. He has advised that he will send me a General Release with Preferred's language and I will email that to you to save time."The signed General Release with a signed stipulation can then be emailed to me as well to expedite the payment. Since this is an an efiled case, the stipulation will then be e-filed following issuance of the check."Please provide us with a signed W-9 and instructions with respect to how the check should be made payable once the documents are signed."

A separate email sent that day, January 11, 2021, at 2:50 PM, from Walsh to Sattler reads, in part, "As per recent email, please see General Release sent from Preferred Mutual reflecting the $20,000 settlement. [] If there are any issues, please advise." There was an attachment, apparently a release, to this email. Sattler sent an email that day, at 3:08 PM, to Walsh that reads, in part, "got it. Will turn this around quickly. [] thanks". However, four days later, Sattler wrote to Walsh indicating, among other things, that it seemed as if the plaintiff was having "'buyers remorse'" and that Sattler did not have a signed release.

The defendant now moves, pursuant to CPLR 2104, to enforce the parties' purported settlement agreement. The defendant argues that the attorneys had authority to act on behalf of their clients and the email communications of January 11, 2021, were done in good faith commensurate with that authority. The defendant contends that the plaintiff's counsel indicated that if an offer of $20,000 was extended the case would close; that offer was extended and a general release to plaintiff's counsel was sent that same day, so it is of no moment that the release was not executed.

The plaintiff opposes the defendant's motion. The plaintiff argues that the purported settlement agreement was never finalized and that neither party manifested an unequivocal intent to be bound in the absence of an executed general release and proper stipulation setting forth all material terms of the agreement. The plaintiff contends that the emails fail to set forth the [*3]material terms of settlement since there is no indication of the specific period within which the defendant was to provide payment or of the liens outstanding. The plaintiff urges that an agreement between the parties was never finalized because the defendant's email correspondence shows that the signed release and stipulation were conditions precedent to finalizing any agreement.

CPLR 2104 states, in part, that "[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him [or her] or his [or her] attorney or reduced to the form of an order and entered." Furthermore, "[t]o be enforceable, a settlement agreement must set forth all material terms, and there must be [a] clear mutual accord between the parties" (Martin v Harrington, 139 AD3d 1017, 1018 [2d Dept 2016]).

An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104 (see DeVita v Macy's E., Inc., 36 AD3d 751, 751 [2d Dept 2007]). However, where "an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement" (Forcelli v Gelco Corp., 109 AD3d 244, 251 [2d Dept 2013]; see Kataldo v Atlantic Chevrolet Cadillac, 161 AD3d 1059, 1060 [2d Dept 2018]).

Teixeira v Woodhaven Ctr. of Care (173 AD3d 1108 [2d Dept 2019]) addresses a purported settlement agreement by email. There, the plaintiff, as the administrator of the decedent's estate, commenced the action, among other things, to recover damages for wrongful death against the defendant, a nursing home facility, alleging that the negligence of the defendant's employees caused the decedent to choke to death while under the defendant's care. While the plaintiff and the defendant were engaged in settlement discussions, the defendant filed an order to show cause in the Surrogate's Court, asserting a claim against the decedent's estate in the sum of $838,218 for services allegedly rendered. The defendant did not provide the attorney representing the plaintiff in the underlying action with a copy of this order to show cause during settlement negotiations.

On October 11, 2016, the plaintiff's counsel and the defendant's counsel engaged in an email exchange wherein the defendant's counsel offered a settlement in the sum of $290,000. The plaintiff's counsel responded "consider this settled," and went on to note that he expected to receive a copy of the order to show cause that had been filed in the Surrogate's Court and that, "pending the resolution of the Surrogate proceedings," the parties may have to "work something out in terms of the client's funds" (Teixeira v Woodhaven Ctr. of Care, 173 AD3d at 1108-1109). On October 24, 2016, the plaintiff's counsel wrote a letter to the court informing it that the matter had been settled. However, on November 15, 2016, after receiving a copy of the order to show cause and learning that no agreement could be reached in the Surrogate's Court dispute, the plaintiff's counsel informed the defendant's counsel that the plaintiff would not approve the settlement. The Supreme Court denied that branch of the defendant's motion which was pursuant to CPLR 2104 to enforce the purported settlement agreement.

On the defendant's appeal, the Appellate Division, Second Department (Second [*4]Department), affirmed the order insofar as appealed from. The Second Department explained that there, "contrary to the defendant's contention, the email exchange between counsel did not evidence a clear mutual accord, as the language used by the plaintiff's counsel, 'consider it settled,' is followed by a discussion of further occurrences necessary to finalize the agreement" (Teixeira v Woodhaven Ctr. of Care, 173 AD3d at 1109). Accordingly, the Second Department agreed with the Supreme Court's denial of the branch of the defendant's motion which was pursuant to CPLR 2104 to enforce the purported settlement agreement.

A different result was reached in Herz v Transamerica Life Ins. Co. (172 AD3d 1336 [2d Dept 2019]). There, the plaintiff's husband purchased a life insurance policy covering accidental death and dismemberment, and named the plaintiff as the beneficiary. The plaintiff's husband died after allegedly suffering a fall at the nursing home where he was living. The plaintiff commenced the action against Transamerica to recover the proceeds of the insurance policy. Over the course of several months, counsel for the respective parties corresponded by email in an attempt to negotiate a settlement. On March 13, 2018, the plaintiff's counsel accepted an offer in the sum of $12,500 to settle the case, in exchange for a release in favor of Transamerica. The plaintiff's counsel agreed to prepare a stipulation and have it signed by the plaintiff, and defense counsel agreed to prepare the release.

On April 30, 2018, after modifications were made to the release at the plaintiff's request, the plaintiff's counsel stated in an email to Transamerica's counsel that the release "[l]ooks good. I will get over to client today" (Herz v Transamerica Life Ins. Co., 172 AD3d at 1337). However, on May 1, 2018, the plaintiff's counsel emailed Transamerica's counsel, saying that the plaintiff "also requested that we remove 'Transamerica denies allegations set forth.' If this is acceptable I will edit the word doc you sent" (id.). In response, Transamerica's counsel wrote "[s]he's pushing too far. Transamerica does deny the allegations. That stays in. It should [sic] matter to her or you, however, since Transamerica is not the final arbiter of that question. It will have no bearing on her PI lawsuit. Please get her signature" (id.). Thereafter, the plaintiff obtained new counsel, who advised Transamerica's counsel that the plaintiff would not execute a release and stipulation of discontinuance. In an order, the Supreme Court granted that branch of Transamerica's motion which was, among other things, to enforce the settlement, finding that the settlement, made via email exchanges entered into by Transamerica's counsel and the plaintiff's prior counsel, was valid and enforceable.

On the plaintiff's appeal, the Second Department affirmed the order insofar as appealed from. The Second Department explained that there, "the emails were subscribed by counsel, set forth the material terms of the agreement—the acceptance by the plaintiff's counsel of an offer in the sum of $12,500 to settle the case in exchange for a release in favor of Transamerica—and contained an expression of mutual assent" (Herz v Transamerica Life Ins. Co., 172 AD3d at 1338). "Contrary to the plaintiff's contention, the settlement was not conditioned on any further occurrence, such as the formal execution of the release and settlement...Therefore, the plaintiff's subsequent refusal to execute the release did not invalidate the agreement" (id. [internal citations omitted]). Accordingly, the Second Department agreed with the Supreme Court's determination that the agreement was enforceable.

In the case at bar, this Court concludes that there is an enforceable settlement agreement. The email stating, in part, "If we can wrap this up today, I can meet in the middle at $20k" was [*5]subscribed by the plaintiff's counsel, and the various emails set forth the material terms of the agreement - that the personal injury case would be resolved in exchange for $20,000 - and contain an expression of mutual assent.

The plaintiff is correct that Walsh's 2:44 PM email indicates that a general release and stipulation were to be signed, and a check was to be made payable once the documents were signed. Nonetheless, the Court believes that here - where the plaintiff's counsel, in response to an email about resolving the case for a certain dollar amount, wrote that counsel had spoken to the plaintiff and "If we can wrap this up today, I can meet in the middle at $20k" and later, on receiving an email referencing a "General Release...reflecting the $20,000 settlement[,]" responded, in part, "will turn this around quickly[]" - there was an enforceable agreement to resolve the plaintiff's personal injury case in exchange for $20,000, and that this settlement was not conditioned on the formal execution of the release and stipulation (see Herz v Transamerica Life Ins. Co., 172 AD3d at 1338 ["Contrary to the plaintiff's contention, the settlement was not conditioned on any further occurrence, such as the formal execution of the release and settlement"] [internal citations omitted]; Jimenez v Yanne, 152 AD3d 434 [1st Dept 2017] ["The email communications between plaintiffs' counsel and defendants' counsel sufficiently set forth an enforceable agreement to settle plaintiffs' personal injury claims, including that of plaintiff Morales...Plaintiffs' counsel, who had authority to bind Morales, accepted defendants' offer...Furthermore, counsel typed his name at the end of the email accepting defendants' offer, which satisfied CPLR 2104's requirement that settlement agreements be in a writing subscribed by him or his attorney in order to be enforceable..., thus creating a binding settlement agreement"] [internal citations and quotation marks omitted]; Forcelli v Gelco Corp., 109 AD3d at 248 ["Here, Greene's email message set forth the material terms of the agreement, to wit, the acceptance by the plaintiffs' counsel of an offer of $230,000 to settle the case in exchange for a release in favor of the defendants, and contained an expression of mutual assent. Significantly, the settlement was not conditioned on any further occurrence, such as the outcome of the motion for summary judgment or the formal execution of the release and stipulation of dismissal by these defendants and related entities"]; Williamson v Delsener, 59 AD3d 291, 291-292 [1st Dept 2009] ["The agreement to settle at 60% of the amount demanded was sufficiently clear and concrete to constitute an enforceable contract...Delsener's subsequent refusal to execute form releases and a stipulation of discontinuance did not invalidate the agreement"] [internal citation omitted]; cf Teixeira v Woodhaven Ctr. of Care, 173 AD3d at 1109 ["Here, contrary to the defendant's contention, the email exchange between counsel did not evidence a clear mutual accord, as the language used by the plaintiff's counsel, 'consider it settled,' is followed by a discussion of further occurrences necessary to finalize the agreement"]; Williams v Bushman, 70 AD3d 679, 680-681 [2d Dept 2010] ["Here, although the parties discussed a proposed settlement at a court appearance, they did not execute a writing, and they expressed their understanding that the settlement was not yet final...The document Williams signed was a mere settlement proposal, which did not fully reflect the terms of the settlement and specifically stated that it was not 'intended as a final resolution of all issues in the case,' and that those issues 'shall be subject to a more formal written Stipulation of Settlement.' Moreover, the proposal was signed by Williams before the court conference, and thus could not have confirmed any agreement reached at that conference"] [internal citation omitted]). Moreover, the Court notes that the plaintiff would in [*6]any event need to execute a release and stipulation of discontinuance to comply with CPLR 5003-a (see Anghel v Utica Mut. Ins. Co., 164 AD3d 1294, 1296 [2d Dept 2018]).

The Court of Appeals has referred to New York's "strong policy promoting settlement" (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286 [2004]; see Hallock v State of New York, 64 NY2d 224, 230 [1984]). This Court is well-aware that settling a personal injury case can be a long and complicated process, particularly where the claim involves an infant, an incapacitated person, or a decedent (see generally CPLR 1207 ["Settlement of action or claim by infant, judicially declared incompetent or conservatee, by whom motion made; special proceeding; notice; order of settlement"]; Estates, Powers and Trusts Law § 5-4.6 ["Application to compromise action"]). That settling a personal injury case can present such a challenge provides all the more reason that where, as here, a valid settlement agreement exists in a personal injury case, it is enforced and not disregarded.

Finally, the Court sympathizes with the difficult position in which the plaintiff's attorney was placed. It appears, based on the email correspondence, that the plaintiff approved the settlement, only to change his mind later. While the Court does not fault the plaintiff's attorney, it is not disputed that the plaintiff is bound by his attorney's acts (see Forcelli v Gelco Corp., 109 AD3d at 248 ["A party will be bound by the acts of its agent in settlement negotiations and an agreement will be binding where the agent has either actual or apparent authority"]).

Accordingly, it is,

ORDERED that the defendant's motion pursuant to CPLR 2104 to enforce the parties' settlement agreement is granted; and it is further,

ORDERED that the plaintiff must execute the release exchanged between counsel and tender to the defendant that duly executed release and a stipulation discontinuing the action executed on behalf of the plaintiff; and it is further,

ORDERED that, in accordance with CPLR 5003-a, the defendant must pay all sums due to the plaintiff within twenty-one days of tender, by the plaintiff to the defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the plaintiff; and it is further,

ORDERED that the defendant must, within ten days of the date of entry, serve a copy of this decision and order with notice of entry; and it is further,

ORDERED that the defendant must, within ten days after service of the notice of entry, file proof of that service via NYSCEF.

This constitutes the decision and order of the Court.



Dated: White Plains, New York

June 11, 2021

ENTER:

_______________________________

HON. DAVID F. EVERETT

Justice of the Supreme Court

Filed via NYSCEF