Practitioners often strive for parties to litigation to execute clear, unambiguous written settlement agreements to resolve disputes. Nonetheless, there are circumstances where a writing that falls short of that standard is still an enforceable settlement agreement. The Appellate Division, Second Department, recently issued an interesting decision holding that a writing from a party’s former attorney that is followed by performance of the settlement agreement satisfies CPLR §2104′s standard for enforceability of a settlement agreement.
Action for Trespass
In Martin v. Harrington,1 plaintiff brought an action for trespass against her neighbors. Specifically, plaintiff claimed that her neighbors installed and built an asphalt driveway that had encroached on her land. Plaintiff brought her action in 2009 and sought both injunctive relief and damages. Six months after filing the action, plaintiff’s then-attorney wrote to defendants’ counsel proposing to discontinue the action if defendants satisfied certain conditions; those conditions included retaining the previous surveyor of the property to mark the area of encroachment, acknowledging the accuracy of the survey and removing the encroaching portion of the driveway.2
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