New York State Court of Claims

New York State Court of Claims

EDWARDS v. STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY, #2006-042-505, Claim No. 108400, Motion No. M-72353


Defendants brought this motion for an order to enforce a settlement agreement between the claimants and defendants. Defendants’ motion is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
GALVIN & MORGANBy: Marco F. G. Tomakin, Esq.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
January 17, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendants have brought this motion for an order to enforce a settlement agreement between the claimants and defendants. The court has considered the following papers:
  1. Notice of Motion, filed September 29, 2006
  2. Affirmation of M. Randolph Belkin, Esq., dated September 28, 2006
  3. Exhibits A - I, annexed to the moving papers
  4. Opposition affirmation of Marco F. G. Tomakin, Esq., dated October 23, 2006
  5. Opposition affidavit of Deborah Edwards, sworn to October 23, 2006
  6. Exhibits A - C, annexed to Edwards' affidavit
This matter comes before the court on a motion brought by defendants, State of New York and New York State Thruway Authority, pursuant to CPLR § 2104, to enforce the parties’ settlement agreement.

Claimants[1] commenced this action seeking to recover compensatory and punitive damages for defendants’ alleged encroachment upon claimants’ properties and cutting of claimants’ trees. The incident precipitating this litigation occurred on June 14, 2003. The claim was filed, served, and an answer interposed in 2004.

There is no apparent controversy over the chronology of subsequent procedural events in this case. On August 5, 2005 defendants tendered to claimants’ attorney a written settlement offer of $10,000.00. By letter dated August 26, 2005 claimants’ attorney provided defense counsel with a written acceptance of the settlement offer. Thereafter, there were months of follow-up communications regarding the closing papers. The claimants provided defense counsel with executed general releases, but defense counsel requested that the releases be revised to reflect the overall settlement figure of $10,000.00, rather than leave the impression that, by using individual releases, each claimant was receiving $10,000.00. By letter dated August 8, 2006 claimants’ counsel forwarded a revised draft general release for review by defendants.

In response to a scheduling letter sent to the parties by my chambers, on August 21, 2006, claimants’ attorney wrote the court advising, in relevant part, that:

[t]his is to inform the Court that the parties in the above cited claim are in the process of settlement for the resolution of this claim pursuant to a General Release signed by the claimants. We will provide the Court with copies of the General Release and the Stipulation of Discontinuance once these documents are finalized

(emphasis added).

In fact, a review of the moving exhibits indicates that the general release was signed on August 11, 2006 - almost one year after the claimants’ counsel’s letter accepting defendants’ settlement offer.

Claimants’ counsel signed a stipulation of discontinuance on August 23, 2006 and forwarded it to defense counsel by cover letter of the same date, which cover letter carried no restrictions whatsoever. Defense counsel signed the same stipulation of discontinuance on August 25, 2006.

However, by another letter dated August 23, 2006 and sent to defense counsel by claimants’ counsel, the claimants’ attorney stated, in relevant part that:

[p]er instructions from our clients, we would like to inform you of our intention for a deferral of the filing of the General Release and Stipulation on [sic] discontinuance. We appreciate it if you could hold on with the documents for now until such time that our clients advise us on how to proceed with this matter.

Thereafter, the status conference was held and this motion ensued.[2] By this motion, defendants seek enforcement of the settlement and an order of the court directing the filing of the executed stipulation of discontinuance and the issuance of the settlement draft of $10,000.00.

Claimants’ counsel, by opposition affirmation, concedes that the claimants signed the original general release and thereafter signed the subsequent general release on August 11, 2006. Counsel also concedes that his clients authorized the law firm to execute, on claimants’ behalf, the stipulation of discontinuance. Claimants’ counsel acknowledges that the stipulation was so signed and that on August 23, 2006 the stipulation was both faxed and mailed to defense counsel. Later that same day, claimants’ attorney stated that he was asked by claimants “to defer the existing settlement agreement and to inform the Defendants’ counsel to defer the filing of the Stipulation on Discontinuance.” This resulted in the previously quoted letter - sent by fax and mail - from claimants’ counsel to defense counsel.

Claimants’ counsel points out that defense counsel did not sign the stipulation of discontinuance on behalf of the defendants until after the defense counsel would have received the “deferral” letter from claimants’ counsel.

It is the contention of claimants’ counsel that “[t]hus, the settlement agreement could not be enforced as there is no longer an agreement that exists.”

In opposition to the motion, claimant Deborah Edwards submitted an affidavit in which she acknowledges that the property was damaged in 2003. But she now claims that the damage is greater than she had initially imagined and that:

[t]hese damage [sic] though sustained on 2003 only became apparent and noticeable when I observed problems in my drainage system, land boundary and driveway on August 2006.

Claimant Deborah Edwards’ affidavit goes on at length to discuss the additional damages that she has now “discovered” and of which she was allegedly unaware at the time of the settlement agreement. Interestingly and curiously, though, Deborah Edwards, under oath in the affidavit, states that:

The damages and its costs described have been discovered only on or about August 25, 2006 after we signed the General Release and Discharge (emphasis added).

At the time when the Release and Discharge was signed, I had no way of knowing what hidden damage is against my property and what are the consequences of such damage to my property in the long term.

It is for this reason that I specifically instructed the law office of Galvin and Morgan to defer the settlement process because of these newly discovered damages and costs to my property which are well beyond the $10,000.00 the Defendants are offering.

CPLR § 2104 provides in pertinent part as follows:

[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.

The law is well established that stipulations of settlement are favored by the courts and will not be set aside absent a showing that such settlement was the result of fraud, overreaching, mistake, or duress (see Desantis v Ariens Company, 17 AD3d 311 [2d Dept 2005], citing McCoy v Feinman, 99 NY2d 295, 302; Hallock v State of New York, 64 NY2d 224, 230). As the Court of Appeals has noted, New York State has a “strong policy promoting settlement” (Bonnette v Long Island College Hospital, 3 NY3d 281, 286).

Claimants offer no proof to support the argument that the settlement is not binding - there are no claims that the settlement was the result of fraud, overreaching, mistake, or duress.

According to claimant Edwards’ affidavit, she did not even discover the allegedly additional damages until two days after her counsel says that he had been instructed to defer settlement. More to the point however, the opposition papers are devoid of any expert’s affidavit or of recitation of any facts to suggest that information concerning the “newly discovered” damage was not available from the date of the original incident in 2003, or in 2004, or prior to August 26, 2005, when claimants’ counsel, in writing, accepted defendants’ $10,000.00 settlement offer.

The court finds no legal basis upon which to set aside the settlement in this matter. The settlement offer, made in writing, was accepted in writing in August 2005. General releases were signed by all claimants in January 2006 and again on August 11, 2006. Both the releases and stipulation of discontinuance had been executed by claimants and their counsel and delivered to defendants. The defendants did not revoke or reject the settlement. Claimants, on numerous occasions, and in numerous documents accepted, in writing, the defendants’ settlement. Actions by defendants necessary to conclude this matter: to wit, the issuance of the settlement draft and the filing of the settlement papers, were withheld solely at the request of claimants’ counsel and pending this court’s ruling.

Defendants’ motion is granted. The settlement is valid and binding. Defense counsel is directed to file the original stipulation of discontinuance and to issue the settlement draft of $10,000.00.

January 17, 2007
Utica, New York

Judge of the Court of Claims

[1]. The claimants incorrectly titled their claim as a “complaint” and incorrectly denominated themselves “plaintiffs” rather than claimants. For purposes of this decision, the claimants and claim will be referenced by their correct titles.
[2]. At the conference this court was advised of the settlement dispute concerning the claimants’ deferral request and indicated to the parties that the court would delay further scheduling on the file pending the opportunity for the defendants to move to enforce the settlement.