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Vivene DUNBAR-DIXON, Plaintiff, v. Edh J. PAYOUTE and Hertz Vehicles, LLC, Defendants.
The following papers numbered E6-E35 read on this motion by Plaintiff for an order pursuant to CPLR 2104, enforcing the parties’ settlement agreement; and pursuant to 22 NYCRR 130-1.1(a), awarding her costs and attorneys’ fees in connection with this motion.
Notice of Motion-Affirmation-Exhibits E6-E14
Affirmation in Opposition-Exhibits E16-E34
Reply Affirmation E35
Upon the foregoing papers, it is ordered that Plaintiff's motion is denied for the following reasons:
In the first branch of the motion, Plaintiff moves for an order to enforce a settlement agreement pursuant to CPLR 2104. Plaintiff submitted the following: a series of emails from John Owens, Claims Adjuster, Liability Clams for ESIS; executed release of claims; Summons and Verified Complaint; and Verified Answer and claims the following: On February 10, 2021, John Owens sent an email to Plaintiff's counsel's office stating that “I was given clearance to tender the claim without the global. Please find the release for your review, have your client complete and return to me along with your firms tax ID so we can post payment”. Mr. Owens signed this email in his capacity as a Claims Adjuster for ESIS. On March 24, 2021, a letter signed by Plaintiff's attorney along with a release she executed was transmitted via facsimile to Mr. Owens settling this matter for $25,000.00. Thereafter, on June 8, 2021, Plaintiff commenced this action, to recover for personal injuries suffered in a car accident, and Defendants filed a Verified Answer on August 4, 2021. Plaintiff argues that Mr. Owens’ email message contained all of the material terms of the settlement agreement, and a manifestation of mutual accord. Plaintiff further argues that Mr. Owens typed name at the end of his email text manifested an intent for his name to be treated as a signature.
In opposition, Defendants argue that ESIS withdrew the settlement offer on June 23, 2021, and that prior to the withdrawal there was not manifestation of mutual assent to the offer. Defendant submitted, among other things, the following: an affidavit from Matthew Foster, an Auto and General Liability Claims Representative for ESIS; Mr. Foster's letter, dated June 23, 2021; Shawn M. Weakland, Esq.’s, Plaintiff's counsel, letter, dated August 4, 2021, along with a partial stipulation of discontinuance, date August 4, 2021, annexed thereto; an email, dated September 1, 2021, Raymond A. Cote, Esq., Defendants’ counsel, sent to Plaintiff's counsel; an email Mr. Cote sent to Plaintiff's counsel on September 15, 2021; an email, dated September 20, 2021, Plaintiff's counsel sent to Mr. Owens, which included a cover letter, dated March 24, 2021, from John Kabili, Esq, a Release, dated March 18, 2021, and a partial stipulation of discontinuance in favor of Hertz Vehicle, LLC dated August 4, 2021. According to these submissions, Defendants claim the following: Mr. Foster stated that between February 10, 2021 and September 19, 2021, ESIS did not receive any communications from Plaintiff's counsel and/or Plaintiff. In his letter, dated June 23, 2021, to Plaintiff's counsel, Mr. Foster stated the following:
ESIS is the liability claims administrator for the Hertz Corporation. We are writing concerning Hertz’ offer of settlement of a liability claim for Vivene Dunbar-Dixon arising from an automobile accident on December 14, 2019. To date we have not had a response from your office to Hertz’ settlement offer.
Hertz must now rescind their offer of settlement to Ms. Dunbar-Dixon. Hertz has been contacted by another party seeking a settlement for injuries sustained in this accident. We must now apportion the remaining $25,000.00 of Hertz’ liability coverage between Ms. Dunbar-Dixon and this third party. We will contact you with a revised offer of settlement for Ms. Dunbar-Dixon when the third party presents his settlement demand to Hertz for consideration.
Defendants’ counsel sent Plaintiff's counsel a letter on August 4, 2021, requesting a stipulation of discontinuance discontinuing this matter against Hertz, and advising that the remaining $25,000.00 of Hertz’ liability coverage has to be apportioned between Plaintiff and another party. Defendant's counsel sent another email to Plaintiff's counsel on September 1, 2021 requesting a copy of the Rental Agreement, as well, as a further follow up email on September 15, 2021. On September 20, 2021, Plaintiff's counsel sent an email to Mr. Owens, which included the following: a cover letter, dated March 24, 2021, from Plaintiff's counsel; a release, dated March 18, 2021; and a partial stipulation of discontinuance in favor of Hertz Vehicle, LLC only, dated August 4, 2021.
Based upon the foregoing, Defendants argue that Plaintiff's counsel did not accept ESIS’ settlement offer prior to Mr. Owens’ letter, dated June 23, 2021, which stated the offer was withdrawn. Defendants argue that Plaintiff's counsel accepted ESIS’ settlement offer on September 20, 202, despite knowing that the offer had been withdrawn three months prior on June 23, 2021. In addition, Defendants claim that Plaintiff failed to submit any evidence establishing that the Release was transmitted by facsimile to Defendants on March 24, 2021.
“CPLR 2104 governs the enforceability of settlement agreement” (Martin v. Harrington, 139 AD3d 1017, 1018 [2d Dept. 2016]). Pursuant CPLR 2104, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made 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”. The plain language of CPLR 2104 directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound (Forcelli v Gelco Corp., 109 AD3d 244 [2d Dept. 2013]; see also Kataldo v. Atl. Chevrolet Cadillac, 161 AD3d 1059, 1060 [2d Dept. 2018]). Further, since settlement agreements must abide by 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” (Forcelli v Gelco Corp., supra at 248; see also Herz v Transamerica Life Ins. Co., 172 AD3d 1336 [2d Dept. 2019]). “An email that merely confirms a purported settlement is not necessarily sufficient to bring the purported settlement into the scope of CPLR 2104” (see Teixeira v. Woodhaven Ctr. of Care, 173 AD3d 1108, 1109 [2d Dept. 2019]). Conversely, where “an email message 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, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement” (id.).
Here, the Court finds that Plaintiff's submissions failed to establish prima facie that Mr. Owen's email sent on February 10, 2021 constituted an enforceable settlement agreement between the parties. Contrary to Plaintiff's claims, Mr. Owen's email did not contain all of the material terms of a settlement agreement, nor was it a manifestation of a mutual accord. Rather, Mr. Owen's email merely shows an offer being made to resolve this claim, and if Plaintiff accepted, Plaintiff was to submit an executed Release and her counsel's Tax ID Number. The Court further finds that Plaintiff failed to submit sufficient evidence in admissible form establishing that she accepted Mr. Owen's offer. Plaintiff's counsel claims that the letter, dated March 24, 2021, with counsel's Tax ID Number and the Release Plaintiff executed annexed thereto, was transmitted to Mr. Owen on March 24, 2021 by facsimile. Although Plaintiff's counsel's letter and the Release are dated prior to the commencement of this action and Mr. Owen is not an attorney, CPLR 2103(b)(5) is instructive regarding how to effectuate service by facsimile. Pursuant to CPLR 2103(b)(5), papers may be served upon an attorney as follows:
[B]y transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney for that purpose. Service by facsimile transmission shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service by facsimile transmission in accordance with this subdivision. An attorney may change or rescind a facsimile telephone number by serving a notice on the other parties
Here, Plaintiff failed to submit an affidavit of service establishing that the letter and Release were mailed to Mr. Owen, as well as a facsimile transmission sheet indicating that the facsimile was received by Mr. Owen's at his facsimile telephone number on March 24, 2021. Consequently, Plaintiff failed to establish that she accepted Mr. Owen's offer and, as such, she has not demonstrated that there was a manifestation of a mutual accord with respect to Mr. Owen's offer. Accordingly, the branch of the motion seeking to enforce the settlement agreement pursuant to CPLR 2104 is denied.
In the final branch of the motion, Plaintiff seeks an order awarding her costs and attorneys’ fees incurred in filing this motion pursuant to 22 NYCRR 130-1.1(a). Defendants oppose. The Court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). Conduct is frivolous under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c], ; see Mascia v Maresco, 39 AD3d 504, 505 [2d Dept. 2007], lv denied 9 NY3d 813 ; Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431 [2d Dept. 2055]). Here, in light of the forgoing, the Court finds that Plaintiff has failed to set forth a sufficient basis for imposing costs and sanctions against the Defendants. Accordingly, motion is denied in its entirety.
Robert I. Caloras, J.
Response sent, thank you
Docket No: Index No. 712986/21
Decided: June 23, 2022
Court: Supreme Court, Queens County, New York.
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