The following e-filed documents for Motion Sequence 02 listed by NYSCEF document numbers “21″, “22″, “37″, “39″, “44″, and attachments and exhibits have been read on this motion: 21 Notice of Motion and Affidavits/Affirmations (Plaintiff) X Affidavit in Opposition (Defendant) X Reply Affirmation (Plaintiff) X The defendant moves this Court for an Order enforcing the agreed upon settlement in this action and directing the plaintiff to undertake its obligations under the settlement and issuing sanctions against the plaintiff and directing the plaintiff to pay the defendants’ costs and fees associated with this motion. The plaintiff submits an affirmation in support by its attorney. The defendant opposes the plaintiff’s motion and submits an affirmation in opposition by its attorney The plaintiff submits a reply in response to the defendant’s opposition. The plaintiff initiated this proceeding on or about November 9, 2020, alleging three causes of action sounding in declaratory judgment, injunctive relief, and legal fees. The Verified Complaint alleges that the plaintiff is a Limited Liability Company that is owned equally by three siblings. The Plaintiff states that it purchased an apartment unit within the defendant’s condominium for the benefit of the plaintiff-owners’ 103-year-old grandmother. The Verified Complaint further states that when the plaintiff purchased the unit, there was a rooftop deck accessible from the plaintiff’s unit that was used by the prior owners. The defendant allegedly dismantled of the subject deck during the COVID-19 pandemic without the plaintiff’s knowledge. On August 30, 2021, the parties participated in a virtual mediation conference before the Honorable Peter B. Skelos. The parties reached an agreement during the mediation conference that was memorialized in a Post Mediation Agreement, which was signed by counsel for the plaintiff and the defendant. The Post Mediation Agreement states that the parties resolved the dispute “[u]pon a document to be drafted by counsel” that the plaintiff “shall have a license limited access to a limited area of [the] rooftop — term of access expires when present resident no longer resides [at] adjoining condo unit…counsel shall notify the Court and file a stipulation of discontinuance.” It is undisputed that counsel to the parties engaged in further discussions to refine the settlement terms by way of email correspondence while drafting the more formal “document” required by the Post Mediation Agreement. Applicable Law “Stipulations of settlement are favored by the courts and not lightly cast aside.” (Amerally v. Liberty King Produce, Inc., 170 A.D.3d 637, 637-638). “To be enforceable, stipulations of settlement must conform to the requirements of CPLR 2104.” (Peralta v. All Weather Tire Sales & Serv., 58 A.D.3d 822, 822). Pursuant to CPLR 2104, an agreement is binding upon a party if it is in a writing subscribed either by the party, or by his or her attorney. Furthermore, a settlement agreement signed by an attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the agreement.” (Wil Can (USA) Group, Inc. v. Zhang, 73 A.D.3d 1166, 1167). “[A]s 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” (Herz v. Transamerica Life Ins, Co., 172 A.D.3d 1336, 1337-1338). “An email message may be considered subscribed as required by CPLR 2104, and, therefore, capable of enforcement, where it 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.” (Kataldo v. Atlantic Chevrolet Cadillac, 161 A.D.3d 1059, 1060). Discussion At the outset, it is undeniable that the written Post Mediation Agreement was signed by the parties’ respective attorneys in accord with CPLR §2104. (Wil Can (USA) Group, Inc., 73 A.D.3d at 1167). The Post Mediation Agreement also appears to address the gravamen of the plaintiff’s allegations set forth in the Verified Complaint in that the terms state that the plaintiff will have “a license limited access to a limited area of [the] rooftop” until such time when the current occupant no longer resides in the plaintiff’s unit. Thus, the Post Mediation Agreement is enforceable and binding upon the parties (Herz, 172 A.D.3d at 1337-1338). The issue, then, turns on whether the parties’ subsequent negotiations to reduce the settlement to a more formal “document” as required by the Post Mediation Agreement is also binding on the parties. The record before the court demonstrates that the parties collaborated via e-mail and agreed to additional terms that appear to clarify the parameters of the material terms set forth in the Post Mediation Agreement. (Kataldo, 161 A.D.3d at 1060). In particular, the e-mails exchanged between counsel on September 30, 2021 demonstrates that the parties, by way of their attorneys, agreed that: (i) the defendant is not required give the plaintiff 48 hours’ notice for emergency repairs to the rooftop, (ii) the plaintiff’s door leading to the rooftop area will not be blocked by the defendant, and (iii) the defendant may remove the Astro Turf when the plaintiff’s unit is vacated or sold. Additionally, each of the emails contains the signature stamps of the parties’ respective counsel and, as such, are subscribed for the purpose of CPLR 2104. (Id.). Accordingly, the terms set forth in the e-mails dated September 30, 2021, are enforceable as part of the requirements of the Post Mediation Agreement. With respect to the plaintiff’s opposition, the Court is not persuaded that the more formal settlement agreement hinged on the defendant rebuilding the dismantled wood deck rather than laying asphalt or a similar material The Post Mediation Agreement clearly states that the plaintiff’s license for limited access to a limited area on the rooftop expires when the current occupant no longer resides in the plaintiff’s unit. The expiration of the license to access the rooftop is material and demonstrates that it is intended to be temporary. The emails between the plaintiff and its counsel fall short of establishing that the parties agreed to wood material being used rather than Astro Turf. Therefore, erecting a permanent wood deck is contrary to the essence of the agreed upon material terms of the Post Mediation Agreement and subsequent formal stipulation (172 A.D. 3d at 1337-1338). Moreover, the plaintiff’s argument that the Post Mediation Agreement is unenforceable because it does not contain the material terms of the parties’ agreement is meritorious albeit not persuasive. (Marx v. Rosalind & Joseph Gurwin Jewish Geriatric Ctr. of Long Is., Inc., 148 A.D.3d 696, 697). Thus, the plaintiff’s conduct does not rise to the level of frivolous and renders the imposition of sanctions inappropriate. (Id.). Accordingly, it is hereby ORDERED, that the branch of defendant’s motion (Motion Sequence 02) for an order enforcing the agreed upon settlement in this action and directing the plaintiff to undertake its obligations under the settlement is granted, and it is further ORDERED, that the branch of defendant’s motion (Motion Sequence 002) seeking sanctions against the plaintiff and directing the plaintiff to pay the defendant’s costs and fees associated with this motion is denied. This constitutes the decision and order of the Court. Dated: April 5, 2022
