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.
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
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
[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
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
[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
Thereafter, the status conference was held and this motion
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
It is the contention of claimants’ counsel that “[t]hus, the
settlement agreement could not be enforced as there is no longer an agreement
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
[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
The damages and its costs described have been discovered only on or about
August 25, 2006 after we signed the General Release and Discharge
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,
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
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.