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Forcelli v Gelco Corp.

Supreme Court of New York, Appellate Division, Second Department

July 24, 2013, Decided

2011-07796, 2011-07976


 [**571]  [*245] Sgroi, J.

On these appeals we address the question of whether an email message can satisfy  [***2] the criteria of CPLR 2104 so as to constitute a binding and enforceable stipulation of settlement. Under the circumstances of this case, we conclude that the subject email settlement agreement was enforceable.

On the morning of November 16, 2008, in Westchester County, there was a three-car accident involving the defendant Mitchell G. Maller, who was driving a car owned by the defendant Gelco Corporation, and leased to Maller's employer, Xerox Corporation. The second car was driven by the plaintiff John T. Forcelli, and the third car was driven by the defendant Steven Kuhn, and owned by his wife, the defendant Susan Landon. The accident occurred when Kuhn allegedly drove through a red light and began to cross the southbound lanes of the Saw Mill River Parkway, thereby striking Maller's vehicle. The Maller vehicle was then propelled into the northbound lanes of the same roadway and, as a result, struck Forcelli's vehicle.

By summons and complaint dated December 8, 2008, Forcelli, and his wife suing derivatively, commenced this action against Gelco, Maller, Landon, and Kuhn to recover damages for the injuries he allegedly sustained in the accident.  [***3] Following the  [*246]  completion of discovery, by notice of motion dated January 3, 2011, Gelco and Maller (hereinafter together the Gelco defendants) moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. By notice of cross motion dated February 10, 2011, the plaintiffs cross-moved for summary judgment against Maller, Landon, and Kuhn on the issue of liability. The motion and cross motion were fully submitted to the court on March 18, 2011.  [****2] 

On that same day, the plaintiffs and their counsel appeared for mediation with counsel for the Gelco defendants, along with a representative of Xerox and Brenda Greene, a claims adjuster with Sedgwick [**572]  CMS, the insurer of the Gelco defendants' vehicle. According to the plaintiffs' counsel, Greene and the Xerox representative informed him that they had authority to settle the case on behalf of their insureds. However, the parties did not reach a settlement at the mediation.

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109 A.D.3d 244 *; 972 N.Y.S.2d 570 **; 2013 N.Y. App. Div. LEXIS 5354 ***; 2013 NY Slip Op 5437 ****; 2013 WL 3812103

 [****1]  John T. Forcelli et al., Respondents, v Gelco Corporation et al., Appellants, et al., Defendants. (Index No. 27584/08)

Prior History: Appeals from (1) an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), entered July 22, 2011, and (2) a judgment of that court dated July 25, 2011. The order granted those branches of plaintiffs' motion which were to vacate so much of an order of that court dated May 10, 2011 as had granted the motion of defendants Gelco Corporation and Mitchell G. Maller for summary judgment dismissing the complaint insofar as asserted against them and, thereupon, to enforce a settlement agreement between plaintiffs and those defendants. The judgment was in favor of plaintiffs and against those defendants in the principal sum of $230,000.


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Civil Procedure, Settlement Agreements, Enforcement, General Overview, Settlements, Validity of Agreements, Business & Corporate Law, Authority to Act, Apparent Authority, Effect of Agreements, Insurance Law, Claim, Contract & Practice Issues, Actual Authority, Commercial General Liability Insurance, Obligations of Parties, Settlements, Computer & Internet Law, Contracts, Electronic Contracts, Digital Signatures