New York Supreme and/or Appellate Courts Appellate Division, First Department
January 5, 2012
THE OPTIONS GROUP, INC.,
Options Group, Inc. v Vyas
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 5, 2012
Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Roman, JJ.
Orders and judgment, Supreme Court, New York County (Milton A. Tingling, J.), entered January 12, 2010, September 13, 2010, and January 14, 2011, which, respectively, denied defendant's motion to dismiss the complaint, granted plaintiff's motion to compel specific performance of a settlement agreement, and ordered defendant, pending the outcome of this appeal, to execute a general release in favor of plaintiff, unanimously reversed, on the law, without costs, the judgment vacated, plaintiff's motion denied and defendant's motion granted. The Clerk is directed to enter judgment in defendant's favor dismissing the complaint.
The record evidence establishes definitively that the June 8, 2009 e-mail that plaintiff contends was defendant's acceptance of its settlement offer did not result in a preliminary agreement that embodied all the essential terms of the agreement between the parties (see Williamson v Delsener, 59 AD3d 291 ). In any event, this alleged settlement agreement was superseded by a formal settlement agreement drafted by plaintiff and signed by defendant, which contained additional terms and specifically provided that it cancelled all preceding agreements (see e.g. Olivo v The City of New York, 2010 WL 3200073, 2010 US Dist LEXIS 81951 [SD NY 2010]). Even if plaintiff never formally executed the settlement agreement it proffered to defendant, the record demonstrates that both parties intended to be bound by the agreement, and it is therefore enforceable (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 369 ; Kowalchuk v Stroup, 61 AD3d 118, 125 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 5, 2012
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