Opinion
15413 Index No. 655159/19 Case No. 2020–03962
03-03-2022
Aurel XHEPEXHIU, Plaintiff–Appellant, v. Alfred MITAJ et al., Defendants–Respondents.
Law Office of Robert J. Gumenick, P.C., New York (Robert J. Gumenick of counsel), for appellant. Joshua Annenberg, New York, for respondents.
Law Office of Robert J. Gumenick, P.C., New York (Robert J. Gumenick of counsel), for appellant.
Joshua Annenberg, New York, for respondents.
Manzanet–Daniels, J.P., Mazzarelli, Singh, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered September 25, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to enforce a stipulation of settlement, unanimously affirmed, without costs.
A stipulation of settlement may be evinced by multiple writings; however, where, as here, those writings together do not show agreement on all material terms, the alleged agreement is unenforceable under CPLR 2104 (see Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 285, 785 N.Y.S.2d 738, 819 N.E.2d 206 [2004] ). Moreover, although plaintiff demonstrated that he did in fact perform certain obligations under the parties’ alleged agreement, his performance could also be construed as preliminary steps in anticipation of consummating the agreement. As a result, plaintiff's performance was not "unequivocally referable" to the alleged agreement ( Klein v. Klein, 79 N.Y.2d 876, 878, 581 N.Y.S.2d 159, 589 N.E.2d 382 [1992] ).