The following papers read on this motion by plaintiffs for summary judgment in lieu of complaint, pursuant to CPLR 3213. Papers Numbered Notice of Motion — Affirmation — Exhibits 1 Affirmation in Opposition — Exhibits — Memorandum of Law 2 Reply Memorandum of Law 3 Upon the foregoing papers, it is ordered that the motion is determined as follows: Plaintiffs move for summary judgment in lieu of complaint, pursuant to CPLR 3213. Plaintiffs aver that this case was settled in the amount of $325,000 and that defendants have defaulted in making the settlement payment. CPLR 3213 states that “[w]hen an action is based upon an instrument for the payment of money only…the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint” (CPLR 3213; Griffon V, LLC v. 11 E. 36th, LLC, 90 AD3d 705 [2d Dept 2011]). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Ayotte v. Gervasio, 81 NY2d 1062 [1993], citing Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; see Schmitt v. Medford Kidney Center, 121 AD3d 1088 [2d Dept 2014]). “Pursuant to CPLR 2104, a settlement agreement is binding upon a party if it is in a writing subscribed either by the party or by his or her attorney” (Martin v. Harrington, 139 AD3d 1017 [2d Dept 2016]). Moreover, “[t]o be enforceable, a settlement agreement must set forth all material terms, and there must be [a] clear mutual accord between the parties” (Id. at 1018). 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” (Forcelli v. Gelco Corp., 109 AD3d 244 [2d Dept 2013]; see Kataldo v. Atlantic Chevrolet Cadillac, 161 AD3d 1059 [2d Dept 2018]). In the case at bar, plaintiffs have established, prima facie, entitlement to judgment as a matter of law. In support of their motion, plaintiffs submit a letter dated September 30, 2020 from plaintiffs’ counsel addressed to defendant, Marcelo Civelli, stating that counsel intended to commence a federal action against defendants for defendants’ failure to pay proper wages, discrimination, sexual harassment and retaliation. Plaintiffs further submit an email sent on March 3, 2021 from plaintiffs’ counsel to defendants’ former counsel, Christopher M. Lynch, Esq., confirming $325,000 settlement reached by the parties during mediation before Judicial Arbitration and Mediation Service (JAMS). The terms of the settlement were as follows: “(1) payment of $325,000 by Monday May 3, 2021; (2) Division of settlement among employees to be determined by employees’ counsel; (3) Mutual confidentiality and NDA; and (4) Mutual non-disparagement.” In response, Mr. Lynch confirmed the settlement terms. However, on April 8, 2001, plaintiff’s counsel was informed by Mr. Lynch that defendants did not intend to abide by the settlement agreement. In opposition, defendants have failed to raise a triable issue of fact. Defendants aver they did not agree to a settlement and submit an unsigned Settlement Agreement and Release. However, “the settlement was not conditioned on any further occurrence, such as the formal execution of the release and settlement” (Herz v. Transamerica Life Ins. Co., 172 AD3d 1336 [2d Dept 2019]). In Herz, the plaintiff retained new counsel and refused to execute a release after her counsel obtained a settlement through email correspondence on her behalf. The Second Department in Herz affirmed the lower court’s finding that the settlement, made through email exchanges by counsel, was valid and enforceable. As in Hertz, this court finds that the email correspondence between counsel on behalf of the parties, constituted “a settlement and a manifestation of mutual accord.” Defendants’ contention that the settlement is not enforceable because there was no action filed in federal court, is meritless. Accordingly, the motion for summary judgment in lieu of complaint for the amount of $325,000, is granted. That branch of the motion seeking costs, disbursements and attorney’s fees, is denied. Settle judgment. Dated: November 16, 2021
