Opinion
Index No. 158761/2019 Motion Seq. No. 001
12-11-2023
JEAN PINDER, as Administrator of the Estate of PATRICIA PINDER, Deceased, and JEAN PINDER Individually, Plaintiff, v. THE MOUNT SINAI HOSPITAL, THE NEW JEWISH HOME, and ARCHCARE at TERENCE CARDINAL COOKE HEALTH CARE CENTER, Defendants.
Unpublished Opinion
Motion Date 08/14/2023
PRESENT: HON. JOHN J. KELLEY Justice
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 were read on this motion to/for ENFORCEMENT OF SETTLEMENT AGREEMENT.
In this action to recover damages for medical malpractice and wrongful death, the defendant The Mount Sinai Hospital (Mount Sinai) moves to enforce a settlement agreement that, upon the conclusion of a formal mediation proceeding, it had entered into with the plaintiff. The defendant The New Jewish Home (NJH), in papers erroneously denominated as a notice of cross motion, but which in actuality constituted a separate motion, moves for the same relief as to it. The plaintiff's attorney submits a response to the motion, in which he asserts that, after researching the issue, he could discern "no valid basis to set aside the parties' settlement agreement." The motion and separate motion are granted, and the plaintiff is directed to execute and provide all of the defendants with the documents necessary to effectuate the settlement pursuant to the terms described herein.
The plaintiff alleged in her bills of particulars, among other things, that her mother (hereinafter the decedent) was a resident of the NJH between June 2017 and July 2017, and that NJH committed malpractice in exposing the decedent to a tuberculosis infection and in failing timely to recognize the signs and symptoms thereof, thus delaying examination, testing, and diagnosis of the condition. She further alleged that, between July 2017 and August 2017, her decedent was a resident of the defendant Archcare at Terence Cardinal Cooke Health Care Center (Archcare), and that Archcare committed malpractice by further exposing her decedent to a tuberculosis infection and in failing timely to recognize the signs and symptoms thereof, thus delaying examination, testing, and diagnosis of the condition. In addition, the plaintiff alleged that, between April 2017 and September 26, 2017, her decedent was seen by physicians at Mount Sinai, and hospitalized thereat during August 2017 and September 2017, and that Mount Sinai committed malpractice by, among other things, failing to diagnose and treat her decedent for tuberculosis, thus delaying treatment, thereby causing fluid to accumulate in her lungs, which, in turn, caused the infection to spread from her lungs to her liver, spleen, fallopian tube, and gall bladder, ultimately resulting in her death on September 26, 2017.
As relevant to this motion, on June 4, 2021, the parties participated in a private mediation session with mediator Shelley Rossoff Olsen, Esq., of the alternative dispute resolution firm JAMS. On that date, the parties reached a global settlement in the sum of $795,000, pursuant to which NJH agreed to contribute $75,000, Archcare agreed to contribute $45,000, and Mount Sinai agreed to contribute $675,000. The agreement was reduced to writing, and executed by the mediator on behalf of the attorneys for all four parties. On June 7, 2021, at the request of Mount Sinai's attorneys, the plaintiff's attorney confirmed, in writing, with the express knowledge, approval, and consent of the plaintiff, that the action had been settled with Mount Sinai for $675,000. The plaintiff's attorney thereafter sent similar confirmatory emails to the attorneys for the other two defendants, confirming the settlement amounts..
On January 20, 2022, the plaintiff petitioned the Surrogate's Court, New York County, for leave to compromise and settle the causes of action to recover for her decedent's conscious pain and suffering and wrongful death, and for a judicial settlement of her account, so as to distribute the proceeds thereof. In her Surrogate's Court petition, the plaintiff attested to the accuracy of the accounting submitted therewith, and requested that court to permit her to compromise and settle the claims against all defendants for a total of $795,000.
In a decree dated March 24, 2023, the Surrogate's Court (Melia, S) granted the petition, and authorized the plaintiff to settle the action for $795,000. In June 2023, Mount Sinai's attorney prepared settlement documents for the plaintiff's execution, and delivered them to her attorney for that purpose. Notwithstanding the settlement agreement, the Surrogate's Court's decree, and the defendants' preparation of settlement documents, the plaintiff communicated with her attorney, asserted that she was unhappy with the settlement, and informed him that she wished to vacate the settlement agreement, reopen the action, and attempt to obtain a higher settlement amount from the defendants. Thus, on or about June 19, 2023, the plaintiff's attorney advised Mount Sinai's attorney that the plaintiff refused to sign any of the settlement closing documents. The plaintiff's attorney had similar communications with the attorneys for the other two defendants. The instant motions ensued.
In the first instance, NJH's application was not a proper cross motion because it did not seek relief against a moving party; instead, its motion was, in effect, a separate motion seeking relief against a nonmoving party (see CPLR 2215; Asiedu v Lieberman, 142 A.D.3d 858, 858 [1st Dept 2016]; Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 88 ; Guzetti v City of New York, 32 A.D.3d 234 ; Gaines v Shell-Mar Foods, Inc., 21 A.D.3d 986 [2d Dept 2005]; Sheehan v Marshall, 9 A.D.3d 403, 404 [2d Dept 2004]; Lucheux v William Macklowe Co., LLC, 2017 NY Slip Op 31044[U], 2017 NY Mise LEXIS 187 [Sup Ct, N.Y. County, May 11,2017]). CPLR 2214(b) requires such a separate motion to be made on at least eight days' notice. The mislabeling of a motion as a cross motion, however, may treated as a "technical" defect to be disregarded, particularly where the nonmoving party does not object and the consideration of the application results in no prejudice to the nonmoving party (see Sheehan v Marshall, 9 A.D.3d at 404), and where, as here, the moving party made its application more than eight days prior to the return date, thus giving the plaintiff ample opportunity to be heard on the merits (see Daramboukas v Samlidis, 84 A.D.3d 719, 721 [2d Dept 2011]; Matter of Jordan v City of New York, 38 A.D.3d 336, 338 [1st Dept 2007]; Della-Mura v White Plains Hosp. Med. Ctr., 2022 NY Slip Op 31085[U], *3, 2022 NY Mise LEXIS 1697, *3-4 [Sup Ct, N.Y. County, Mar. 31,2022] [Kelley, J.]). Hence, NJH's "cross motion" may be considered as a properly noticed separate motion (see Matter of Jordan v City of New York, 38 A.D.3d at 338).
Settlements "are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 N.Y.2d 224, 230 [1984]). CPLR 2104 provides that "[a]n agreement between the 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." Nonetheless, "a binding agreement may be assembled from more than one writing" (Nolfi Masonry Corp v Lasker-Goldman Corp., 160 A.D.2d 186, 187 ). Consequently, where all of the essential terms of a settlement agreement are set forth in documents and correspondence executed by counsel, including those executed electronically and exchanged via email, that agreement is enforceable (see Matter of Philadelphia Ins. Indem. Co. v Kendall, 197 A.D.3d 75 [1st Dept 2021]; Jimenez v Yanne, 152 A.D.3d 434, 434 [1st Dept 2017]; Forcelli v Geico Corp., 109 A.D.3d 244, 248 [2d Dept 2013]; Kasowitz, Benson, Torres &Friedman, LLP. v Duane Reade, 98 A.D.3d 403, 404 [1st Dept 2012]; Travelers Cas. Ins. Co. of Am. v J. Thomas Constr., 2020 NY Slip Op 32764[U] [Sup Ct, N.Y. County, Aug. 25, 2020]; cf. Mark Bruce Inti., Inc. v. Blank Rome, LLP, 60 A.D.3d 550, 551 [1st Dept 2009] [terms set forth in e-mail exchange were too indefinite]). In the instant matter, the settlement agreement was reached in the course of a mediation and executed, on one document, by the mediator on behalf of all of the attorneys for the parties, with the consent of the attorneys and the parties. Written settlement agreements that arise from a mediation proceeding are presumptively enforceable, absent proof of fraud, duress, or overreaching, none of which is present here (see Ebaid v PV Holding Corp., 210 A.D.3d 741, 742 [2d Dept 2022]).
It is of no moment that a party is not present at the time that the attorney executes and dispatches a written settlement agreement (see Pruss v Infiniti of Manhattan, Inc., 180 A.D.3d 163, 168 [1st Dept 2020]; Jimenez v Yanne, 152 A.D.3d at 434; Forcelli v Geico Corp., 109 A.D.3d at 248; Williamson v De/sner, 59 A.D.3d at 291; Clark v Bristol-Myers Squibb & Co.[In re Silicone Breast Implant Litigation], 306 A.D.2d 82, 84-85 [1st Dept, 2003]), even where the attorney does not have actual, but only apparent, authority to settle the matter (see Pruss v Infiniti of Manhattan, Inc., 180 A.D.3d at 168; Wil Can (USA) Group, Inc. vZhang, 73 A.D.3d at 1167; Clark v Bristol-Myers Squibb &Co. [In re Silicone Breast Implant Litigation], 306 A.D.2d at 85). In any event, in the instant matter, the plaintiff's attorney had complete authority to settle the case, and received permission to settle the matter for the amount agreed upon, subject to any conditions necessary to the effectuate the agreement (see Kowalchuk v Stroup, 61 A.D.3d 118, 122 [1st Dept 2009]; see also Newmark &Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 A.D.3d 476, 477 [1st Dept 2011]; Stevens v Publicis S.A., 50 A.D.3d 253, 255-256 [1st Dept 2008]).
The plaintiff's personal refusal to sign the final documentation necessary to effectuate the settlement agreement does not obviate or negate the agreement. "When parties enter into a preliminary agreement, anticipating that a more formal contract will be executed later, the contract is enforceable if it embodies all the essential terms of the contract" (Wronka v GEM Comm. Mgt., 49 A.D.3d 869, 871 [2d Dept 2008]; see Netherlands Ins. Co. v Endurance Am. Specialty Ins. Co., 157 A.D.3d 468, 469 [1st Dept 2018]; Banc of Am. Sec. LLC v Solow Bldg. Co. II, LLC, 77 A.D.3d 533, 534 [1st Dept 2010]; Bed Bath &Beyond Inc. v Ibex Constr., LLC, 52 A.D.3d 413, 414 [1st Dept 2008]; Pescatore v Manniello, 19 A.D.3d 571 [2d Dept 2005]).
The settling defendants established that the signed mediation agreement constituted a written agreement between them and the plaintiff that effectuated a meeting of the minds as to all of the terms of the settlement agreement. They further demonstrated that the email confirmations were electronically signed by the plaintiff's attorney. They also have shown that their exchanges confirmed an agreement binding upon their clients. The plaintiff herself has advanced no basis for setting aside a settlement agreement, and her mere post-settlement dissatisfaction with the settlement amount does not constitute a valid ground for vacating the agreement (see Hallock v State of New York, 64 N.Y.2d at 230). Moreover, the requirement that the plaintiff must execute both the releases, hold harmless agreements, and stipulations of discontinuance does not create an unaccepted counterproposal; rather, those are statutory requirements, without which no settlement can be finalized (see CPLR 5003-a).
In light of the foregoing, it is, ORDERED that the motion of the defendant The Mount Sinai Hospital to enforce the settlement agreement between it and the plaintiff, entered into on June 4, 2021, is granted; and it is further, ORDERED that the separate motion of the defendant The New Jewish Home, incorrectly denominated as a cross motion, to enforce the settlement agreement between it and the plaintiff, entered into on June 4, 2021, is granted; and it is further, ORDERED that the plaintiff is directed forthwith to execute the settlement documentation, as agreed upon by her attorney and the attorneys for all of the defendants, in the form previously agreed upon, including the hold harmless agreements and the general releases, and the plaintiff's attorney shall thereupon execute and file the relevant stipulations of discontinuance.
This constitutes the Decision and Order of the court.