Opinion
No. 2022-50478 Index No. 28989/2017E
06-08-2022
Curtis Nash, Plaintiff, v. Walker Memorial Baptist Church, Inc., et al., Defendants.
Unpublished Opinion
Adrian Armstrong, J.
This case arises from a slip-and fall incident which took place on May 18, 2017. At the time of this incident, Plaintiff was an employee of Rosalyn Yallow Charter School ("Rosalyn"). The premises where this incident occurred was leased by Rosalyn from Walker Memorial Baptist Church, Inc. ("Walker"). Plaintiff sued Walker, along with some contractors that had performed work at the school. Though plaintiff could not sue Rosalyn directly due to New York Workers' Compensation law, Walker filed a Third-Party action against Rosalyn.
On November 23, 2021, the plaintiff, Walker, Rosalyn and their respective insurance carriers were all in attendance at a virtual mediation before Kenneth Grundstien, Esq., a mediator with National Arbitration and Mediation ("NAM"). While at the mediation the parties apparently reached a settlement. Rosalyn contends that it was the understanding and agreement of the attorneys representing all of the parties at the mediation that the settlement resolved all claims between the parties and that all claims would be discontinued against each party, including all crossclaims and counterclaims. The only issue reserved for future consideration was an insurance related issue on priority of coverage. To this end, the primary liability carrier for Walker, non-party Philadelphia Indemnity Insurance Company ("PIIC"), reserved its right to pursue a declaratory action against Rosalyn's excess carrier, non-party Munich Re for the amount it paid towards the settlement.
At the end of the mediation, the mediator personally filled out a "Post Mediation Agreement" form. The Post Mediation Agreement contains the mediator's own handwritten notes on the settlement terms which included "Walker/Philadelphia reserves its rights against Munich Re Insurance."
Following the mediation, Walker on behalf of its insurer, PIIC, insisting on pursuing a contractual indemnification claim against Rosalyn. PIIC contends that it never agreed to any of the boiler plate language or otherwise agreed to settle its subrogation claims against Rosalyn/Munich Re. Rosalyn now moves to enforce the settlement agreement.
Rosalyn argues that PIIC waived its contractual indemnification claims through an email sent by Walker's defense counsel, Michael Caufield. On November 23, 2021 at 4:12 pm (soon after the mediation concluded earlier that day), counsel for Munich Re emailed Walker's defense counsel, Michael Caufield asking: "Can you confirm that the settlement resolves all direct claims and third-party claims? I know that the coverage issues remain viable and are not impacted by the settlement." Shortly after this email, Mr. Caufield responded: "Mike - Thanks. Will make sure that the paperwork encompasses all claims." Rosalyn maintains that this email constitutes an enforceable written settlement agreement extinguishing PIIC's claim for contractual indemnity.
Walker's defense counsel and counsel for PIIC, Dan Kohane exchanged emails the morning after the Mediation. Mr. Caulfield emailed Mr. Kohane and stated: "Thanks for your help yesterday in settling this case. I called the insured and they are very pleased it's over. Good luck with your efforts vis a vis recovery from Munich." Mr. Kohane then responds: "Obviously, don't discontinue the third-party action against [Rosalyn]". Ten minutes after receiving said email, Walker's defense counsel advised counsel for Munich Re: "I just rec'd an email from [PIIC's counsel] advising me to not discontinue the third-party claims. I think we need to clarify this issue before signing off on any closing papers."
"Stipulations of settlement are judicially favored, will not lightly be set aside, and 'are to be enforced with rigor and without a searching examination into their substance' as long as they are 'clear, final and the product of mutual accord' "(Peralta v All Weather Tire Sales & Serv., Inc., 58 A.D.3d 822, 822 [ 2nd Dept 2009], quoting Bonnette v Long Is. Coll. Hosp., 3 N.Y.3d 281, 286 [2004]). To be enforceable, stipulations of settlement must conform to the requirements of CPLR 2104 (see Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 8 [1972]). Where, as here, a settlement is not made in open court, CPLR 2104 provides: "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." "The plain language of the statute directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound" (Bonnette v Long Is. Coll. Hosp., 3 N.Y.3d at 286). In addition, since settlement agreements are subject to the principles of contract law, "for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent" (Diarassouba v Urban, 71 A.D.3d 51, 60 [2nd Dept. 2009]). Emails exchanged between attorneys which identify the attorneys' email account have been held to constitute signed writings within the meaning of CPLR 2104 (Philadelphia Ins. Indem. Co., v Kendall, 197 A.D.3d 75, 80 [1st Dept 2021] [holding that "if an attorney hits 'send' with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own," the parties' counsel's emails create a binding settlement agreement]; see also, Jiminez v Yanne, 152 A.D.3d 434, 434 [1st Dept 2015] [finding that email communications between the parties' attorneys were "sufficiently set forth an enforceable agreement to settle plaintiffs' personal injury claims"]). To be enforceable "an email settlement must, like all enforceable settlements, set forth all material terms" (Philadelphia Ins. Indem. Co., 197 A.D.3d at 80). At the same time, however, when the only material term is the sum of money to be agreed upon, issues regarding the language of a release or lien payments need not be addressed in the emails for a settlement to be enforceable (Rawald v Dormitory Authority of New York, 199 A.D.3d 477, 477 [1st Dept 2021] [plaintiffs established enforceable settlement by submitting emails from counsel agreeing to accept settlement notwithstanding outstanding issues regarding language of release and lien issues]).
Here, Rosalyn established prima facie that the parties had an enforceable settlement agreement by submitting an email from Walker's counsel agreeing to the settlement. The November 23, 2021 email that Walker's counsel sent only minutes after the mediation confirmed that "all claims" were resolved at the mediation. The email, which reduced the settlement to a writing in accordance with CPLR 2104, was "subscribed" within the meaning of the statute, as the sender was identifiable and there is no contention that Walker's counsel did not send the email intentionally (Philadelphia Ins. Indem. Co., 197 A.D.3d at 80). The email also contained all material terms, since the sole issue was whether all claims, amongst all parties (to the underlying case), were fully resolved.
In opposition, Walker/PIIC did not submit sufficient evidence supporting its argument that the November 23, 2021 email from Walker's defense counsel was not an enforceable settlement agreement. Moreover, there was no indication made at the mediation that Walker was going to continue to pursue a contractual indemnification claim against Rosalyn.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied.
Accordingly, it is hereby
ORDERED that Rosalyn's motion to enforce the settlement of this matter and compelling Walker to discontinue all claims against Rosalyn, is granted.
This is the Decision and Order of the Court.