Motion,Ex Parte: Victoria Chandler v. Macy'S, Macy'S Corporate Services, Schindler Elevator Corporation

On August 10, 2017 a Motion,Ex Parte was filed involving a dispute between Victoria Chandler, and Macy'S, Macy'S Corporate Services, Schindler Elevator Corporation, for Torts - Other Negligence (Premises) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 08/06/2021 04:00 PM INDEX NO. 27447/2017E
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/06/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------- ----------------------------------
--X Index No.: 27447/17
VICTORIA CHANDLER,

Plaintiff,
SUPPLEMENTAL
- against - AFFIRMATION IN
OPPOSITION, IN
MACY'S, MACY'S CORPORATE SERVICES, and RESPONSE TO
SCHINDLER ELEVATOR CORPORATION, DEFENDANT'S
SUPPLEMENTAL
Defendants. AFFIRMATION
--------------------------i----------------------------X

NORA CONSTANCE MARINO, an attorney and counselor at law, duly admitted

to practice law before the Courts of the State of New York, attorney for plaintiff herein,

affirms the following to be true under the penalty of perjury.

1. This is an action for negligence and personal injury sustained by the

plaintiff herein, due to a malfunctioning escalator maintained by defendant Schindler

Elevator Corporation, and located at a store owned and operated by Macy's and/or

Macy's Corporate Services (hereinafter, collectively, "defendant").

2. Defendant, without court permission, files a "supplemental affirmation",

apparently due to a recently decided First Department Appellate Division case, Matter

of Phila. Ins. Indem. Co. v. Kendall, 2021 NY Slip Op 04284, attached hereto as Exhibit

1 (also attached to defendant's supplemental affirmation), which defendant claims is "on

point", in that itaddresses whether or not a signature is typed in at the bottom of an

email or not.

3. Plaintiff replies to that supplemeñtal affirmation herein.

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4. Even taking this newly-decided case into account, it stilldoes not change,

or even address the fact that here, there was no agreement or contract even remotely

enfòrceable with respect to the subject facts. Thus, even though Matter v. Phila did away

with the requirement to type in one's name at the end of an email, that is

inconseqüêntial herein, since the other requirement, that being that the subject email

communication contain all material terms of a settlement, is also not met herein.

I. MATTER QF PHILA. INS. INDEM. CO. V. KENDALL

5. Matter of Phily addresses two points, not one. On page 5 of the decision, it

states, "The motion court, in accord with precedent of this Court, found that the

"subscribed"
retyping of a name is required for an email to be and therefore a binding

stipulation under CPLR 2104. The second basis for the court's ruling was that the email

correspondence did not contain all theanaterial terms of the settlement. We now

reverse, and write to clarify that the transmission of an email, and not whether an email

"signature"
can be shown to be retyped, is what determines that a settlement stipulation

2104."
has been subscribed for purposes of CPLR Philadelphia Ins. Indem. Co. v.

Kendall, No. 13756, 2021 WL 2834536 (N.Y. App. Div. July 8, 2021).

6. The most glaring distinction between Matter of Phila and the facts herein,

is that in Matter of Phila, the plaintiff's counsel (respondent in the appeal) emailed

defendant's counsel, stating, clearly and unequivocally, "confirmed, we are settled

$4ooK."
for See Exhibit 1, page 3, bottom right, underlined in red. There is no

such email communicationfrom plaintif's attorney to defendant's

attorney herein.

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call"
7. Here, defendant relies on "a phone on April 13, 2021 (def. memo of

law p. 2), which is insufficient. Telephone conversations do not rise to the level

strict requirements directed CPLR which is quite clear - in order for a
of by 2104,

settlement agreement to exist and be able to be enforced by the court, it must be in

writing, even if that writing is in email format.

IL ORAL AGREEMENTS ARE NOT ENFORCEABLE

8. The only time an oral agreement may be deemed enforceable is when it is

made in open court on the record. All other oral agreements, including those made by

way of telephone, are not enforceable and do not satisfy the requirements of the statute

of frauds, or CPLR 2104. See Tocker v. City ofEew York, 22 A.D-3d 311, su, 802

plaintiffs'
N.Y.S.2d 147, 148 (First Dept. 2005), "[i]ndisputably, acceptance of the

defendants'
settlement offer was communicated by their counsel to counsel in a

telephone call Accordingly, the agreement to settle the action was not 'one made

court'
between counsel in open (CPLR 2104), and thus is not enforceable (Matter of

Dolgin Eldert Corp., 31 N.Y.2d 1, 4-5, 8-11, 334 N.Y.S.2d 833, 286 N.E.2d 228 [1972])".

9. See, also, Application of U.S. Surgical Corp., 157 A.D.2d 547, 549 N.Y.S.2d

732, 732 (1990), "Respondent-appellant's assertion of an oral settlement made over

the telephone___ is inadequate to constitute a binding agreement under CPLR 2104 as the

purported agreement was not made in open court, subscribed by the party to be bound

or his attorney, or reduced to the form of an order and entered (Matter of Dolgin Eldert

228)."
Corp., 31 N.Y.2d 1, 334 N.Y.S.2d 833, 286 N.E.2d

10. See, also, Sekuterski v. Evert, 270 A.D.2d 828, 706 N.Y.S.2d 280 (2000),

"Stipulation entered by counsel for both parties during conference telephone call with

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court did not satisfy statutory requirements governing stipulations, and was invalid.

2104."
McKinney's CPLR

III. THERE IS NO WRITING FROM PLAINTIFF TO DEFENDANT,
EMAIL OR OTHERWISE, CONFIRMING A SETTISMENT
AGREEMENT FOR $110.o00 OR ANY OTHER AMOUNT

defendants'
11. Only counsel unilaterally sent a letter claiming that that this

matter was settled for $110,000. Defendant makes no mention of plaintiff ever

responding to that letter, confirming or agreeing to the settlement in any writing

whatsoever - because plaintiff did not.

"settle"
12. Based on defendant's reasoning, any party could unilaterally a

case, by simply sending an email or letter, stating, "this confirms that the matter is

settled for ten dollars", or "this confirms that this matter is settled for a million dollars".

Obviously, that would not only not be binding, but it would be absurd, without some

confirming communication in writing from the other side.

13. Here, there is no such writing. Defendant attaches emails that only relate

to language regarding a confidentiality agreemcat provision that was to be contained in

a release. There is not one word, contained in any of the emails on which defendant

relies, that sets forth the material terms of a settlement. Defendant attaches no emails

memorializing the monetary terms of a settlement. Thus, there is no settlement that can

be "enforced".

14. Matter of Phila specifically states: "While we jettison the requirement that

a party or a lawyer retype their name in email to show subscription, that does not mean

that every email purporting to settle a dispute will be unassailable evidence of a binding

agreement."
See Exhibit 1, page 6, middle left, underlined in red.

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15. In fact, Matter of Phila specifically states, "an email settlement must, like

terms."
all enforceable settlements, set forth all material See Exhibit 1, page 6, bottom

left, underlined in red. Defendant attaches no such email or other correspondence,

confirmed or agreed to by plaintiff, as to the material terms of a settlement.

16. Likewise, in Matter of Phile, the court even noted that there, "the email

acceptance."
exchange exhibits offer and See Exhibit 1, page 6, bottom right, underlined

in red. Here, there is no such email exchange demonstrating an offer and an

acceptance. There is simply no acceptance.

17. The emergence of Matter of Phila does not change the facts herein, and in

fact, supports plaintiff's pnsition herein. While the subscription requirement was

"jettison"
addressed in Matter of Phila, and was "jettisoned", it does not the other

requirement, that there must be evidence of an offer and acceptance. Here, there is no

acceptance. Thus, the requirements set forth by CPLR 2104 are not met here, and there

can be no "enforcement".

18. At no time did plaintifs counsel ever send an email to defense

counsel agreeing to the proposed terms and/or a settlement amount of

$110,000, and defendant's counsel does not produce such an email, becãüse none

exists. Thus, there is no enforceable stipulation between the parties.

IV. AS SET FORTH IN PLAINTIFF'S OPPOSITION, NONE OF THE
_EXHIBITS RELIED ON BY DEFENDANT SET FORTH A
CONFIRlyIATION FROM BOTH PARTIES OF A MONETARY AMOUNT
CONSTITUTING A VALID SEITLEMENT AGREEMENT

19. As set forth in plaintiff's opposition, none of defendant's exhibits

demonstrate an offer and acceptance or a binding agreement, as none of the exhibits are

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an email or other writing from plaintiff's attorney confirming or memorializing a

settlement of $110,000.

20. Defêñdañt's Exhibits A, B, C, and D are not relevant to defendant's claim

that there is an enforceable settlement agreement.

21. Defendant's Exhibit E (efile doc no. 72) is a unilateral hard copy letter

from defendañt's attorney to plaintiffs attorney setting forth alleged terms of a

setriement, stating that the matter is settled for $110,000. Plaintiff never responded to

this letter; plaintiff never confirmed these terms; plaintiff never agreed to this in

writing.

22. Defendant's Exhibit F (efile doc no. 73) is an email regarding

"confidentiality agreement revisions", and nowhere does itaddress settlement terms or

a rnonetary amount.

23. Defendant's Exhibit G (efile doc no. 74) is another email regarding

"confidentiality agreemeñt revisions", and nowhere does it address settlemêñt terms or

a monetary amount.

24. Defendant's Exhibit H (efile doc no. 75) is yet another email regarding

"confidentiality agreement revisions", and nowhere does it address settlement terms or

a monetary amount.

V. CONCLVSION

25. No matter how many emails defendant produces regarding the lañgnage of

a confidentiality clause, or other issues, this cannot substitute for a bona fide and

enforceable settlement agreement that would be in compliance with CPLR 2104; none of

these emails demonstrate an offer and acceptance of material terms. Defendant cannot

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produce a from plaintiff or her - subscribed or not -
writing attorney specifically

confirming.that plaintiff agreed to settle this matter for $110,000.

26. Oral telephõne coñvarsations do not create an enforceable settlernelit

agreement.

27. Emails that do not clearly set forth the material terms of a settlement,

agreed to by both parties, are not settlement agreements

28. Thus, here, there is nothing to enforce.

WHEREFORE, plaintiff respectfully requests that defendant's motion for

enforcement be denied in all respects, and that this Court grant such other and further

relief as it deems just and proper.

Dated: Nassau County, NewYork
August 6, 2021

Yours,
/S/
Nora Constance Marino, Esq.

Attorney for Defendant

175 East Shore Road, Suite 230
Great Neck, NY 11023
516,829.8399
File No.: 1577

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SUPREME COURT OF THE STATE OF NEW·YORK
COUNTY OF BRONX Index No.: 27447/2017

VICTORIA CHANDLER,

Plaintiff,

- against -

MACY'S, MACY'S CORPORATE SERVICES and SCHINDLER ELEVATOR CORPORATION,

Defendarits.

SUPPLEMENTAL AFFIRMATION IN OPPOSITION TO DEFENDANT'S MOTION TO ENFORCE

Law Offices Of
NORA CONSTANCE MARINO
Attorneyfor Plaintiff
Office and Post Office Address, Telephone

175 East Shore Road, Suite 230
Great Neck, New York 11023
PRORE: 516.829.8399
FAK: 516.829.4699

Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New
York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in
the annexed document are not frivolous.
Dated: 20___
Nora Constance Marino

To : Service of a copy of the within
is hereby admitted.
Dated: 20

Attorney(s) for:

PLEASE TAKE NOTICE :
O NOTICE that the within is a (certified} true copy of a

OF ENTRY: duly entered in the office of the clerk of the within named court on
20

NOTICE OF that an order of which the within is a true copy will be presented for settlement to
the
SETTLEMEN HON. One of the judges of the within named Court, at
T:
on 20 at M.
Dated: , 20____

Yours, etc.

8 of 8 Law Offices Of
RT Th & M STetfBS A RT%Tlt RN A T%TRTA

Case Info

Judge

Kenneth Thompson Track Judge’s New Case

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Document Filed Date

August 06, 2021

Case Filing Date

August 10, 2017

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Motion,Ex Parte: Victoria Chandler v. Macy'S, Macy'S Corporate Services, Schindler Elevator Corporation

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