Category: CPLR R. 2104

Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349 [2d Dept. 2018]

Contrary to the plaintiff’s contention, it failed to submit any evidence that the purported open court settlement agreement of January 28, 2016, constituted a valid and binding settlement agreement pursuant to CPLR 2104 (see Diarassouba v Urban, 71 AD3d 51, 54; Maldonado v Novartis Pharms. Corp., 40 AD3d 940). Rather, the plaintiff submitted only the January 29 stipulation, which was not executed by the plaintiff. Therefore, the January 29 stipulation did not constitute an enforceable settlement agreement binding upon the plaintiff and the appellant (see CPLR 2104). In the absence of an enforceable settlement agreement, the Supreme Court should have denied the plaintiff’s motion.

We also disagree with the Supreme Court’s determination denying the cross motion as untimely. The plaintiff served its motion by regular mail on March 17, 2016, with a return date of April 6, 2016. In order to make effective its demand for seven days’ notice of answering papers or a cross motion (see CPLR 2214[b]; CPLR 2215), the plaintiff was required to have mailed its motion papers at least 21 days prior to the return date (see CPLR 2103[b][2]; CPLR 2214[b]; Matter of Hartford Fire Ins. Co. v Fell, 53 AD3d 760, 761-762). The plaintiff mailed its motion papers only 20 days before the return date. Thus, the cross motion, which was served six days before the return date, was timely (see CPLR 2215).

Demetriou v Wolfer, 2018 NY Slip Op 07288 [2d Dept. 2018]

In July 2012, the plaintiff commenced this action to recover damages for dental malpractice. On Friday, October 30, 2015, the plaintiff, by text message, directed her former attorney to discontinue the action. On that date, the former attorney and defense counsel executed a stipulation of discontinuance (see CPLR 3217[a][2]). On Saturday, October 31, 2015, the plaintiff, by text message, directed her former attorney to, among other things, “not dismiss my case under any circumstances; please retract . . . instructions to discontinue.” Within 30 minutes of receiving that message, the plaintiff’s former counsel advised the plaintiff that the case had already been discontinued. The stipulation of discontinuance was then filed on Monday, November 2, 2015. The plaintiff moved, inter alia, to vacate the stipulation of discontinuance. The Supreme Court denied the motion, and the plaintiff appeals.

We agree with the Supreme Court’s determination to deny the plaintiff’s motion, inter alia, to vacate the stipulation of discontinuance. CPLR 2104 provides that, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” Here, there is no dispute that on October 30, 2015, the plaintiff’s former counsel had actual authority from his client to enter into the stipulation discontinuing the action on her behalf (see Hallock v State of New York, 64 NY2d 224, 230; Weil, Gotshal & Manges LLP v Fashion Boutique of Short Hills, 56 AD3d 334, 335). Contrary to the plaintiff’s contention, the stipulation of discontinuance clearly evidenced the plaintiff’s intent to discontinue the action as of October 30, 2015, notwithstanding that she changed her mind prior to the filing of the stipulation on November 2, 2015 (see Lim v Choices, Inc., 60 AD3d 739, 740). Pursuant to CPLR 2104, the stipulation must be regarded as a valid, binding contract (see Pile v Grant, 41 AD3d 810), even though it did not effect a discontinuance until it was filed with the clerk of the court on November 2, 2015 (CPLR 3217[a][2]). In seeking to vacate the stipulation, the plaintiff failed to meet her burden to establish good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, mistake, or overreaching, or that the terms of the stipulation were unconscionable (see Chae Shin Oh v Jeannot, 160 AD3d 701; Pieter v Polin, 148 AD3d 1191).

The bold is mine.

Kataldo v Atlantic Chevrolet Cadillac, 2018 NY Slip Op 03669 [2d Dept. 2018]

To be enforceable, a stipulation of settlement must conform to the criteria set forth in CPLR 2104 (see Forcelli v Gelco Corp., 109 AD3d 244, 248; see also Martin v Harrington, 139 AD3d 1017, 1018). Where, as in the instant case, counsel for the parties did not enter into a settlement in open court, an "agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney" (CPLR 2104). The plain language of CPLR 2104 requires that "the agreement itself must be in writing, signed by the party (or attorney) to be bound" (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286; see Forcelli v Gelco Corp., 109 AD3d at 248). An email message may be considered "subscribed" as required by CPLR 2104, and, therefore, capable of enforcement, where it "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" (Forcelli v Gelco Corp., 109 AD3d at 251).

Here, the email confirming the settlement agreement was sent by counsel for the party seeking to enforce the agreement, LICO. There is no email subscribed by the plaintiff, who is the party to be charged, or by her former attorney. In the absence of a writing subscribed by the plaintiff or her attorney, the settlement agreement is unenforceable against the plaintiff (see id. at 248; see also CPLR 2104).

Chae Shin Oh v Jeannot, 2018 NY Slip Op 02446 [2d Dept 2018]

On March 7, 2017, the plaintiff's new counsel sent a stop work letter and consent to change attorneys to the plaintiff's prior counsel. On April 7, 2017, the plaintiff moved by order to show cause, inter alia, to vacate the stipulation, contending that the plaintiff did not authorize her prior counsel to enter into the stipulation. The Supreme Court granted that branch of the motion which was to vacate the stipulation. The defendant appeals.

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to vacate the stipulation. The stipulation, signed by counsel for each party in this action during a court appearance, is a binding contract (see CPLR 2104; Daibes v Kahn, 116 AD3d 994, 995; Cervera v Bressler, 85 AD3d 839, 841; Kirkland v Fayne, 78 AD3d 660, 660; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d 706; Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447). Contrary to the plaintiff's contention, her counsel at the time of the stipulation had the apparent authority to enter into the stipulation. This prior counsel signed and verified the summons and complaint, appeared for the plaintiff at the preliminary conference and the compliance conference, and filed a note of issue, all before entering into the stipulation on the plaintiff's behalf. The presence of an attorney at pretrial conferences constitutes "an implied representation by [the client] to defendants that [the attorney] had authority" to bind the [*2]client to a stipulation (Hallock v State of New York, 64 NY2d 224, 231-232). Indeed, only attorneys who are authorized to enter into binding stipulations may appear at pretrial conferences (see 22 NYCRR 202.26[e]; cf. 22 NYCRR 202.12[b]). Here, the plaintiff's engagement of her prior counsel to represent her throughout the litigation and to appear on her behalf at pretrial and compliance conferences precludes her from arguing that prior counsel lacked the authority to bind her to the stipulation. "A stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation" (Davidson v Metropolitan Tr. Auth., 44 AD3d 819, 819, citing Hallock v State of New York, 64 NY2d at 231).

Thus, only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be relieved from the consequences of a stipulation made during litigation (see Hallock v State of New York, 64 NY2d at 230). It was the plaintiff, as the party seeking to set aside the stipulation, who had the burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable (see Cervera v Bressler, 85 AD3d at 841). The plaintiff failed to present any such evidence in this case (see Kirkland v Fayne, 78 AD3d at 660; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d at 706).

Halstead v Fournia, 2018 NY Slip Op 02525 [3d Dept. 2018]

We begin our analysis with the recognition that courts have long favored and encouraged the fashioning of stipulations by parties to litigation and that "[s]trong policy considerations" favor the enforcement of such agreements (Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375, 383 [1993]; see Hallock v State of New York, 64 NY2d 224, 230 [1984]). As the Court of Appeals has explained: "Stipulations not only provide litigants with predictability and assurance that courts will honor their prior agreements, but also promote judicial economy by narrowing the scope of issues for trial. To achieve these policy objectives, a stipulation is generally binding on parties that have legal capacity to negotiate, do in fact freely negotiate their agreement and either reduce their stipulation to a properly subscribed writing or enter the stipulation orally on the record in open court" (McCoy v Feinman, 99 NY2d 295, 302 [2002] [citations omitted]; see Hallock v State of New York, 64 NY2d at 230; Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]; Mann v Simpson & Co., 286 NY 450, 459 [1941]). When a stipulation satisfies these requirements, as it does here, it is to be construed as an independent contract subject to principles of contract interpretation (see Matter of Banos v Rhea, 25 NY3d 266, 276 [2015]; McCoy v Feinman, 99 NY2d at 302; Rainbow v Swisher, 72 NY2d 106, 109 [1988]; Fulginiti v Fulginiti, 127 AD3d 1382, 1384 [2015]). So construed, a valid stipulation may not be set aside "absent a showing of good cause such as fraud, collusion, mistake or duress; or unless the agreement is unconscionable or contrary to public policy; or unless it suggests an ambiguity indicating that the words [do] not fully and accurately represent the parties' agreement" (McCoy v Feinman, 99 NY2d at 302 [internal citations omitted]; accord Matter of Badruddin, 152 AD3d 1010, 1011 [2017], lv dismissed 30 NY3d 1080 [2018]; Matter of Kaczor v Kaczor, 101 AD3d 1403, 1404 [2012]; see Tverskoy v Ramaswami, 83 AD3d 1195, 1196 [2011]).

CPLR 2104

Tavolacci v Tavolacci, 2014 NY Slip Op 00986 [2nd Dept. 2014]

Contrary to the plaintiff's contentions, the record demonstrates that the parties validly entered into a comprehensive open-court stipulation (see CPLR 2104; Pretterhofer v Pretterhofer, 37 AD3d at 446; Borghoff v Borghoff, 8 AD3d 519) by which the plaintiff unequivocally, knowingly, and voluntarily agreed to be bound (see Pretterhofer v Pretterhofer, 37 AD3d at 446). Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, to vacate the stipulation of settlement and properly granted that branch of the defendant's motion which was to incorporate the stipulation of settlement into the judgment of divorce.

Emphasis mine.