Our Latest News And Updates

Respond at your own peril

Matter of Philadelphia Ins. Indem. Co. v Kendall, 2021 NY Slip Op 04284 (1st Dept, 2021),

It is always an interesting issue that is presented: Will an email satisfy the writing requirement of CPLR 2104? The answer used to be it depends:

“Supreme Court relied on the Second Department’s decision in Forcelli v Gelco Corp. (109 AD3d 244 [2d Dept 2013]). Forcelli is in accord with this Court’s precedent, and we have cited it as persuasive authority (see Jimenez [*3]v Yanne, 152 AD3d 434, 434 [1st Dept 2017]). In Forcelli the plaintiff reached an agreement with the defendant to settle his personal injury case while the latter’s summary judgment motion was pending, and the parties’ counsel exchanged emails confirming that the plaintiff’s counsel had accepted the offer and would prepare the release for the plaintiff to sign (109 AD3d at 245-246). The same day that the court granted the defendant’s motion for summary judgment dismissing the case, the plaintiff’s counsel sent the requested documents to the defendant’s counsel (id. at 246-247). The defendant then refused to proceed with the settlement (id. at 247).

The Second Department held that the parties’ counsels’ emails created a binding settlement agreement (id. at 248-251). As for CPLR 2104’s subscription requirement, the Court held that the defendant’s counsel’s email containing her printed name at the end thereof supported the conclusion that she effectively signed the email message:

“we note that the subject email . . . ended with . . . , ‘Thanks Brenda Greene,’ which appears at the end of the email text. This indicates that the author purposefully added her name to this . . . email message, rather than a situation where the sender’s email software has been programmed to automatically generate the name of the email sender, along with other identifying information, every time an email . . . is sent” (id. at 251). The rule espoused by Forcelli and our own precedent is that an email in which the party’s or its attorney’s name is retyped at the end of an email is sufficiently subscribed for purposes of CPLR 2104.”

Now, it appears, yes.

“We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. 

“While we jettison the requirement that a party or a lawyer retype their name in email to show subscription, that does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement.”

This appears to be the right decision. I left our the facts but you know it was a settlement where either (1) A court/arbtrator threw case out (defendant appeal; or (2) A court or arbitrator ruled more than what was in the settlement (Plaintiff appeal). This fell in the latter lol.