Stipulation by email

Teixeira v Woodhaven Ctr. of Care, 173 AD3d 1108 [2d Dept. 2019]

CPLR 2104 states, in relevant 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 [2016]; see Little v County of Nassau, 148 AD3d 797, 798 [2017]; De Well Container Shipping Corp. v Mingwei Guo, 126 AD3d 846, 847 [2015]). 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 [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 [2013]; see Kataldo v Atlantic Chevrolet Cadillac, 161 AD3d 1059, 1060 [2018]). 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. Accordingly, we agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 2104 to enforce the purported settlement agreement.