John T. Forcelli, et al., respondents,
Gelco Corporation, et al., appellants, et al., defendants. (Index No. 27584/08)
APPEALS by the defendants Gelco Corporation and Mitchell G. Maller, in an action to recover damages for personal injuries, etc., from (1) an order of the Supreme Court (Gerald E. Loehr, J.), entered in Westchester County on July 22, 2011, which granted those branches of the plaintiffs' motion which were to vacate so much of an order of the same court dated May 10, 2011, as granted their motion for summary judgment dismissing the complaint insofar as asserted against them and, thereupon, to enforce a settlement agreement between the plaintiffs and them, and (2) a judgment of the same court dated July 25, 2011, which, upon the order entered July 22, 2011, is in favor of the plaintiffs and against them in the principal sum of $230, 000.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and Richard E. Lerner of counsel), for appellants.
Grant & Longworth, LLP, Dobbs Ferry, N.Y. (Jonathan Rice of counsel), for respondents.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.
OPINION & ORDER
On these appeals we address the question of whether an email message can satisfy the criteria of CPLR 2104 so as to constitute a binding and enforceable stipulation of settlement. Under the circumstances of this case, we conclude that the subject email settlement agreement was enforceable.
On the morning of November 16, 2008, in Westchester County, there was a three-car accident involving the defendant Mitchell G. Maller, who was driving a car owned by the defendant Gelco Corporation (hereinafter Gelco), and leased to Maller's employer, Xerox Corporation (hereinafter Xerox). The second car was driven by the plaintiff John T. Forcelli, and the third car was driven by the defendant Steven Kuhn, and owned by his wife, the defendant Susan Landon. The accident occurred when Kuhn allegedly drove through a red light and began to cross the southbound lanes of the Saw Mill River Parkway, thereby striking Maller's vehicle. The Maller vehicle was then propelled into the northbound lanes of the same roadway and, as a result, struck Forcelli's vehicle.
By summons and complaint dated December 8, 2008, Forcelli, and his wife suing derivatively, commenced this action against Gelco, Maller, Landon, and Kuhn to recover damages for the injuries he allegedly sustained in the accident. Following the completion of discovery, by notice of motion dated January 3, 2011, Gelco and Maller (hereinafter together the Gelco defendants) moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. By notice of cross motion dated February 10, 2011, the plaintiffs cross-moved for summary judgment against Maller, Landon, and Kuhn on the issue of liability. The motion and cross motion were fully submitted to the court on March 18, 2011.
On that same day, the plaintiffs and their counsel appeared for mediation with counsel for the Gelco defendants, along with a representative of Xerox and Brenda Greene, a claims adjuster with Sedgwick CMS, the insurer of the Gelco defendants' vehicle. According to the plaintiffs' counsel, Greene and the Xerox representative informed him that they had authority to settle the case on behalf of their insureds. However, the parties did not reach a settlement at the mediation.
On April 22, 2011, Greene contacted the plaintiffs' counsel by telephone to revive settlement negotiations. During that conversation, Greene offered $200, 000 to settle the case on behalf of the Gelco defendants and Xerox. After subsequent negotiations over the following days, on May 3, 2011, Greene offered $230, 000 to settle the case, and the plaintiffs' counsel orally accepted the offer on behalf of the plaintiffs. That same day, Greene sent an email message to the plaintiffs' counsel, with a copy to the Xerox representative, stating the following:
"Per our phone conversation today, May 3, 2011, you accepted my offer of $230, 000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form.
"You also agreed to prepare the release, please included [sic] the following names: Xerox Corporation, Gelco Corporation, Mitchell G. Maller and Sedgwick CMS. Please forward the release and dismissal for my review. Thanks Brenda Greene."
On May 4, 2011, Forcelli signed a release, notarized by the plaintiffs' counsel, stating that he was releasing Xerox, the Gelco defendants, and Sedgwick CMS from all actions involving the subject accident in exchange for receiving $230, 000 from Sedgwick CMS. On May 10, 2011, the Supreme Court issued an order granting the Gelco defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and granting that branch of the plaintiffs' cross motion which was for summary judgment against Kuhn and Landon on the issue of liability. On May 11, 2011, John Hsu, counsel for the Gelco defendants, received an email alert informing him of the court's order. Later that day, Hsu served the order with a notice of entry on counsel for the plaintiffs and on counsel for Kuhn and Landon by overnight mail. Meanwhile, on the same day, the plaintiffs' counsel sent to Greene, by fax and by certified mail, the release signed by Forcelli, and a stipulation of discontinuance against the Gelco defendants dated May 11, 2011, and signed by the plaintiffs' counsel. The certified return receipt indicates that Sedgwick CMS received the documents by mail on May 16, 2011.
According to Hsu, on May 12, 2011, he was informed by Sedgwick CMS of the existence of the documents which had been faxed to Greene on the previous day. Hsu then faxed and mailed a letter dated May 12, 2011, to the plaintiffs' counsel, advising that the release and stipulation of discontinuance "is hereby rejected." The letter further stated that, since "there was no settlement consummated under New York CPLR 2104 between the parties, we considered this matter dismissed by the ...