Email “Signature” Satisfies Subscription Requirement of NY Settlement Agreement Statute
After an ugly three-car accident, plaintiffs sued the other drivers, one driver’s employer (Xerox) and a corporation that owned one of thecars (Gelco). Gelco moved forsummary judgment dismissing the complaint. That same day, the parties held a mediation that did notresolve the lawsuit. Thereafter,Brenda Greene, the adjuster for Gelco’s insurer called plaintiffs’ counsel torevive settlement negotiations. After a few days of negotiating, plaintiffs’ counsel orally agreed tosettle the case. Greene sent aconfirmation email message to plaintiffs’ counsel, it read:
Per our phone conversation today, May 3, 2011, you acceptedmy offer of $230,000 to settle this case. Please have your client executed[sic] the attached Medicare form as no settlement check can be issued withoutthis form.
You also agreed to prepare the release, please included[sic] the following names: Xerox Corporation, Gelco Corporation, Mitchell G.Maller and Sedgwick CMS. Please forward the release and dismissal for myreview. Thanks Brenda Greene.
Plaintiffs signed a release on May 4. On May 10, plaintiffs’ counsel sentthat release and a stipulation of discontinuance to Gelco. That same day, Gelco’s attorney receivedan email alert that the court granted Gelco’s motion for summary judgment dismissing the complaint. Gelco’scounsel faxed and mailed a letter to plaintiffs’ counsel “rejecting” the releaseand stipulation. Gelco’s attorney stated: “there was nosettlement consummated under New York CPLR 2104 between the parties, weconsidered this matter dismissed by the court’s decision…dated May 10…”
The issue before the appellate court was whether the emailmessage satisfied the criteria of CPLR 2104 so as to constitute a binding andenforceable stipulation of settlement. Where a settlement is not made in opencourt, CPLR 2104 provides: “An agreement between parties or their attorneysrelating to any matter in an action…is not binding upon a party unless it is ina writing subscribed by him or his attorney.”
The appellate court held that the email counted as awriting and a subscription by Gelco’s representative, binding the parties tothe settlement. After holding that Greene had apparent authority to bindGelco to the settlement, the court reasoned:
It is, of course, axiomatic that a letter can be considered”subscribed,” since letters are usually signed at the end by theauthor thereof. However, email messages cannot be signed in the traditionalsense. Nevertheless, this lack of “subscription” in the form of ahandwritten signature has not prevented other courts from concluding that anemail message, which is otherwise valid as a stipulation between parties, canbe enforced pursuant to CPLR 2104. * * *
Morever, given the now widespread use of email as a form ofwritten communication in both personal and business affairs, it would beunreasonable to conclude that email messages are incapable of conforming to thecriteria of CPLR 2104 simply because they cannot be physically signed in atraditional fashion (see Newmark & Co. Real Estate Inc. v. 2615 E. 17th St.Realty LLC, 80 AD3d 476, 477-478 [“e-mail agreement set forth all relevantterms of the agreement…and thus, constituted a meeting of the minds”]).Indeed, such a conclusion is buttressed by reference to the New York StateTechnology Law, former article 1, “Electronic Signatures and RecordsAct,” which was enacted by the Legislature in 2002. In the accompanyingstatement of legislative intent, the Legislature stated in part:
“[This act] is intended to support and encourageelectronic commerce and electronic government by allowing people to useelectronic signatures and electronic records in lieu of handwritten signaturesand paper documents” (L 2002, ch 314, §1).
Section 302(3) of this statute states that an”‘[e]lectronic signature’ shall mean an electronic sound, symbol, orprocess, attached to or logically associated with an electronic record andexecuted or adopted by a person with the intent to sign the record.”Section 304(2) of the statute states that “an electronic signature may beused by a person in lieu of a signature affixed by hand [and] [t]he use of anelectronic signature shall have the same validity and effect as the use of asignature affixed by hand.”
In the case at bar, Greene’s email message contained herprinted name at the end thereof, as opposed to an “electronicsignature” as defined by the Electronic Signatures and Records Act.Nevertheless, the record supports the conclusion that Greene, in effect, signedthe email message. In particular, we note that the subject email message endedwith the simple expression, “Thanks Brenda Greene,” which appears atthe end of the email text. This indicates that the author purposefully addedher name to this particular email message, rather than a situation where thesender’s email software has been programmed to automatically generate the nameof the email sender, along with other identifying information, every time anemail message is sent (cf. DeVita v. Macy’s E., Inc., 36 AD3d 751). Inaddition, the circumstances which preceded Greene’s email message, and inparticular, the face-to-face mediation at which settlement was attempted andthe subsequent follow-up telephone calls between Greene and the plaintiff’scounsel, support the conclusion that Greene intended to “subscribe”the email settlement for purposes of CPLR 2104 (see Newmark & Co. RealEstate Inc. v. 2615 E. 17th St. Realty LLC, 80 AD3d at 477 [“e-mail sentby a party, under which the sending party’s name is typed, can constitute awriting for purposes of the statute of frauds”]; see also Naldi v.Grunberg, 80 AD3d 1, 6-13).
Accordingly, we hold that where, as here, an email messagecontains all material terms of a settlement and a manifestation of mutualaccord, and the party to be charged, or his or her agent, types his or her nameunder circumstances manifesting an intent that the name be treated as asignature, such an email message may be deemed a subscribed writing within themeaning of CPLR 2104 so as to constitute an enforceable agreement.
Forcelli v. Gelco Corp., 27584/08, NYLJ1202612381868, at *1 (App. Div., 2d, Decided July 24, 2013)
[Meredith R. Miller]