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Williamson v. Delsener

Supreme Court of New York, Appellate Division, First Department

February 24, 2009, Decided; February 24, 2009, Entered

5315, 100828/04


 [*291]  [**41] Order, Supreme Court, New York County (Karla Moskowitz, J.), entered November 13, 2007, to the extent it denied plaintiff's motion for judgment on a negotiated settlement, unanimously reversed, on the law, with costs, and plaintiff awarded against defendant Delsener the principal amount of $84,868.20, plus statutory interest from December 12, 2006. The Clerk is directed to enter judgment accordingly.

The e-mails exchanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds (see Stevens v Publicis S.A., 50 AD3d 253, 255-256, 854 NYS2d 690 [2008], lv dismissed 10 NY3d 930, 862 NYS2d 333, 892 NE2d 399 [2008]), and entitle plaintiff to judgment  [**42] (CPLR 5003-a [e]). The agreement to settle at 60% of the amount demanded was sufficiently clear and concrete to constitute an enforceable contract (see Hostcentric Tech. Inc. v Republic Thunderbolt LLC, 2005 US Dist LEXIS 11130, 2005 WL 1377853 [*292]  [SD NY 2005]). Delsener's subsequent refusal to execute form  [***2] releases and a stipulation of discontinuance did not invalidate the agreement (see Wronka v GEM Community Mgt., 49 AD3d 869, 854 NYS2d 474 [2008]; Cole v Macklowe, 40 AD3d 396, 836 NYS2d 568 [2007]).

The e-mail communications indicate that Delsener was aware of and consented to the settlement; the record contains no indication to the contrary, or that counsel was without authority to enter into the settlement (see Hallock v State of New York, 64 NY2d 224, 474 NE2d 1178, 485 NYS2d 510 [1984]; cf. Katzen v Twin Pines Fuel Corp., 16 AD3d 133, 790 NYS2d 447 [2005]). To the contrary, the record supports only the conclusion that counsel at least had apparent authority.

 [****2] We find no merit to Delsener's argument that this Court lacks jurisdiction to hear this appeal. Concur--Andrias, J.P., Sweeny, McGuire and DeGrasse, JJ. [See 2007 NY Slip Op 33632(U).]

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59 A.D.3d 291 *; 874 N.Y.S.2d 41 **; 2009 N.Y. App. Div. LEXIS 1316 ***; 2009 NY Slip Op 1333 ****

 [****1]  Richard A. Williamson, Esq., as Successor Liquidating Trustee of Lipper Fixed Income Fund, L.P., Appellant, v Ron Delsener, Respondent, et al., Defendants.

Prior History: Williamson v. Delsener, 2007 N.Y. Misc. LEXIS 9204 (N.Y. Sup. Ct., Nov. 7, 2007)


settlement, e-mail