Opinion
CA 04-00837.
December 30, 2004.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered December 2, 2003. The order granted defendant's motion to dismiss, determining, inter alia, that the action was settled.
Before: Pigott, Jr., P.J., Green, Pine, Gorski and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted defendant's motion to dismiss pursuant to CPLR 3211 (a) (5), determining, inter alia, that the action was settled pursuant to the terms and conditions set forth in two letters exchanged between the attorneys for the parties. Contrary to plaintiff's contention, the letters constitute a settlement agreement binding on the parties pursuant to CPLR 2104 ( see generally Morrison v. Bethlehem Steel Corp., 75 AD2d 1001). The letter of plaintiff's attorney dated June 19, 2003 constitutes a firm settlement offer open for 30 days and, by letter of her attorney dated July 18, 2003, defendant timely notified plaintiff of her acceptance of the settlement offer. Contrary to the contention of plaintiff, the letter of her attorney does not state that payment of the settlement amount within the 30 days is the only means by which to accept plaintiff's settlement offer.