Preview
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-------------------------------------------------------------------x
DAMEN BONIS As Administrator of the Estate of
Athanasios Bonis,
Plaintiff, Index. No. 55903/2023
- against -
MEMO IN SUPPORT OF
RONALD GARAN PLAINTIFF’S MOTION TO
Defendant. ENFORCE SETTLEMENT
-------------------------------------------------------------------x
PRELIMINARY STATEMENT
In this action, Plaintiff Damen Bonis As Administrator of the Estate of Athanasios Bonis
(hereinafter “plaintiff”) respectfully submits this Memorandum of Law, together with exhibits
attached to the Affirmation of Zachary K. Giampa Esq. in support of its motion to enforce the
settlement that was reached in this matter with defendant RONALD GARAN pursuant to New
York Civil Practice Law and Rules (“CPLR”) 2104.
Through an email correspondence from April 11, 2022, through May 9, 2022, and
another correspondence from March 28, 2023, through April 13, 2023, it is evident that the
parties reached a settlement on all material terms and contested issues in this action. See Ex.,
“H.” - Email Correspondence from 4-11-2022 to 5-9-2022; Ex., “R.” - Email Correspondence
from 3-28-2023 to 4-13-2023. Specifically, the parties had negotiated that the settlement
agreement would be reduced from $375,000 to $300,000 as per the authorization of defendant
RONALD GARAN. See Ex., “H.” - Email Correspondence from 4-11-2022 to 5-9-2022. Since
this settlement amount was agreed upon more than a year ago and the required Petition, Citation,
Decree, Attorney Affirmations, and Waivers and Consent has been filed and processed in the
Westchester Surrogate's Court since March 9, 2023, the defense counsel continues to request that
the agreed upon amount be reduced. See Ex., “R.” - Email Correspondence from 3-28-2023 to 4-
13-2023. Plaintiff now moves to enforce the settlement.
1 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 24, 2023, this action was commenced against the defendant through the filing
of a summons and complaint. See Ex., “B.” - Summons and Complaint, NYSCEF.doc #1. The
defendant appeared through filing an answer with counterclaims on April 20, 2023. See Ex., “S.”
- defendant’s Answer, NYSCEF.doc #4.
This Summons and Complaint was based upon the passing of Athanasios Bonis on
February 12, 2021 after he attempted to use gasoline to ignite a wood burning stove located at
407 Saw Mill River Road, Yonkers, NY 10710 on February 12, 2021 at approximately 8:10 a.m.
in the presence of the defendant RONALD GARAN. See Ex., "B." - Summons & Complaint,
NYSCEF.doc#1.
After the passing of the deceased, his son, the plaintiff petitioned for Letters of Limited
Administration on his behalf on June 9, 2021 in the Westchester Surrogate’s Court. See Ex.,
"A." - Filings dated June 9, 2021. A Combined Verification, Oath and Designation, a Notice of
Application for Letters of Administration with accompanying affidavits, Sofia Bonis’s
(plaintiff’s sister) Waiver and Consent, the Death Certificate of Athanasios Bonis (restricted by
the court), and a Proposed Citation were processed on the same date. Id.
On July 7, 2021, the Probate Court stated that a Schedule D(a) was required for Victoria
Anastasiadis, the late wife of Athanasios Bonis, which plaintiff’s counsel filed on that date and
on July 14, 2021, the proposed citation was revised to reflect that Erini Bonis, Alexander Bonis,
Aliki Bonis, and Constantine Bonis (the plaintiff’s siblings) were cited to show cause before the
Westchester County Surrogate Court on August 25, 2021 at 10:00 a.m. See Ex., "C." - Schedule
D(a) letter and file; See Ex., “D." - Revised Citation with August 25, 2021 date.
On August 26, 2021, Hon. Brandon R. Hall, Surrogate, signed a Decree granting Damen
Bonis Administration with Limitations and the Letters of Administration were appointed to him.
2 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
See Ex., “E." - Decree and Letters of Administration.
From April 11, 2022 to May 9, 2022 and on June 8, 2022, plaintiff’s counsel and
defendant’s counsel engaged in email correspondence negotiating a settlement amount. =See
Ex., “F.” - Email Correspondence from 4-11-2022 to 5-9-2022; Ex., “G.” - Email
Correspondence from 6-8-2022. In this correspondence, the parties agreed upon the settlement
amount being reduced from the agreed upon $375,000,00 pursuant to a phone conversation to the
sum of $300,000 in complete satisfaction of all issues between the parties in dispute. See Ex.,
“F.” - Email Correspondence from 4-11-2022 to 5-9-2022.
Specifically, plaintiff’s counsel emailed “Accepted” in response to the defense counsel
stating that “their client authorized $300,000.” Id. In the June 8, 2022 email, plaintiff’s counsel
requested from defense counsel a letter from them “stating that [their] client Ronald Garan
agrees to pay Bonis’s estate $300,000 in full satisfaction of the estate’s wrongful death claim
against your clients.” See Ex., “G.” - Email Correspondence from 6-8-2022. The defense
counsel responded “Rich, before I sign anything, send me the estate filings. I will need releases
from every member of the family (Children, spouse, whoever is surviving him).” Id.
From July 21, 2022, to September 29, 2022, a Wrongful Death Petition, an Itemized
Funeral Bill, an Account, an Attorney Affirmation, a Proposed Decree and a Proposed Citation
and their amendments were filed by the plaintiff’s counsel. See Ex., "H." - Filings dated July 21
2022; Ex., "I." - Filings dated September 29, 2022.
From October 21, 2022 to December 8, 2022, plaintiff’s counsel filed another amended
petition, an attorney affirmation amending the petition to reflect the correct caption and
allocation of the proceeds, an affidavit amending the accounting and a second affirmation
amending the petition on December 8, 2022. See Ex., "J." - Affirmation amending petition 10-
3 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
21-2022; Ex., "K." - Affirmation amending petition 11-14-2022; Ex., "L." - Filings dated
December 8, 2022.
On January 3, 2023, plaintiff’s counsel filed a proposed citation which was amended by
the Associate’s Surrogates Clerk on January 12, 2023. See Ex., "M." - Proposed Citation 1-3-
2023; Ex., “N.” - Citation 1-12-2023. On February 21, 2023, plaintiff’s counsel filed a
Supplemental Citation. See Ex., “O.” - Supplemental Citation 2-21-2023.
On March 6, 2023, plaintiff’s counsel filed the Waiver and Consent of Aliki Bonis and
Erini Bonis and on March 9, 2023, plaintiff’s counsel filed a Waiver of Citation and Consent of
the NYS Dept. of Taxation and Finance. See Ex., "P.” - Waiver & Consent of Aliki & Erini
Bonis; Ex., “R.” - Waiver of Citation and Consent of the NYS Dept. of Taxation and Finance.
On March 7, 2023, the Associates Surrogate Clerk filed the signed supplemental citation.
See Ex., “Q.” - Signed Supplemental Citation.
From March 28, 2023 through April 13, 2023, plaintiff’s counsel and defense counsel
engaged in another email correspondence. See Ex., “S.” - Email Correspondence from 3-28-
2023 to 4-13-2023; Ex., “T.” - Email Correspondence from 3-30-2023 to 4-7-2023.
Despite the agreed settlement amount of $300,000, defense counsel stated the following
on March 28, 2023 at 4:31 p.m., “Rich, $250,000. Can tender payment by 4/4/23?” See Ex., “S.”
- Email Correspondence from 3-28-2023 to 4-13-2023. On March 30, 2023, plaintiff’s counsel
explained that the family was still considering the proposition and that “If agreed, only the
administrator will sign the release and the settlement will be $270,000.00. I am awaiting their
decision.” See Ex., “T.” - Email Correspondence from 3-30-2023 to 4-7-2023.
On April 7, 2023, defense counsel stated that their client would “go to $280,000 and
waive all counterclaims.” Id. Plaintiff’s counsel responded back in an email dated April 13, 2023
4 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
at 11:17 a.m. with “I have no flexibility on my end. The distributes will on agree on accepting
the previously agreed upon settlement amount of $300,000.00. If you could please file an
answer on behalf of your client in the Supreme Court matter so we can make a motion to enforce
the original settlement otherwise we will be seeking default judgment.” See Ex., “S.” - Email
Correspondence from 3-28-2023 to 4-13-2023. At 11:22 a.m. in response, defense counsel
emailed back “Ok. Will file an answer. Will speak to my client again.” Id.
On April 20, 2023, the defendant appeared by filing an answer with counterclaims. See
Ex., “U” - defendant’s Answer, NYSCEF.doc #4. However, on April 27, 2023, defense counsel
sent another email stating “Rich, anything we can do here to negotiate this and resolve it?” See
Ex., “V.” - Email from 4-27-2023.
Plaintiff now moves to enforce the parties’ agreement and compel enforcement of the
Settlement Agreement between the parties.
LEGAL ARGUMENT
DEFENDANT’S COUNSEL AGREED TO THE SETTLEMENT TERMS THROUGH
THE SUBSCRIBED EMAIL CORRESPONDENCE AND THEREFORE THE
PLAINTIFF IS ENTITLED TO THE ENFORCEMENT OF THE SETTLEMENT
RELEASE AGREEMENT.
Under CPLR § 2104:
An 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. With respect to stipulations of settlement and
notwithstanding the form of the stipulation of settlement, the terms of such
stipulation shall be filed by the defendant with the county clerk.
“The plain language of the statute directs that the agreement itself must be in writing,
signed by the party (or attorney) to be bound[.]" Matter of Phila. Ins. Indem. Co. v. Kendall, 197
AD3d 75, 78 (1st Dept. 2021) (citing Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286, 819
N.E.2d 206, 785 N.Y.S.2d 738 (2004)). “Settlement agreements are ‘judicially favored, will not
lightly be set aside,’ and will be enforced ‘with rigor and without a searching examination into
5 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
their substance.’” Rawald v. Dormitory Auth. of N.Y., 70 Misc. 3d 1217(A), 139 N.Y.S.3d 523, at
*2 (N.Y. Cnty. 2021) (quoting Forcelli v. Gelco Corp., 109 A.D.3d 244, 247-248 (2d Dept.
2013)). “To be enforceable, a settlement agreement must set forth all material terms, and there
must be clear mutual accord between the parties.” Martin v. Harrington, 139 A.D.3d 1017, 1018
(2d Dept. 2016) (citing Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 286, 785 N.Y.S.2d 738
(2004)).
In regard to an email correspondence, it is the “transmission of an email … [that]
determines that a settlement stipulation has been subscribed for purposes of CPLR 2104.” Matter
of Phila. Ins. Indem. Co., 197 AD3d at 76.
In Matter of Phila. Ins. Indem. Co., the Court relied upon the Second Department’s ruling
in the Forcelli v. Gelco Corp. (109 AD3d 244, 972 N.Y.S.2d 570 [2d Dept. 2013]) in their
determination that a settlement effected via email was valid.
Specifically, the Court stated the following regarding the Forcelli case:
Forcelli is in accord with this Court's precedent, and we have cited it as
persuasive authority (see Jimenez v Yanne, 152 AD3d 434, 434, 55 N.Y.S.3d 652
[1st Dept. 2017]). In Forcelli the plaintiff reached an agreement with the
defendant to settle his personal injury case while the latter's summary judgment
motion was pending, and the parties' counsel exchanged emails confirming that
the plaintiff's counsel had accepted the offer and would prepare the release for the
plaintiff to sign (109 AD3d at 245-246). The same day that the court granted the
defendant's motion for summary judgment dismissing the case, the plaintiff's
counsel sent the requested documents to the defendant's counsel (id. at 246-247).
The defendant then refused to proceed with the settlement (id. at 247).
The Second Department held that the parties' counsels' emails created a binding
settlement agreement (id. at 248-251).
Matter of Phila. Ins. Indem. Co., 197 AD3d at 78-79.
Also, in Brighton Inv., Ltd. v. Har-Zvi (88 AD3d 1220, 1222, 932 NYS2d 214 [2011]),
the Third Department Appellate Division Court stated that "an exchange of e-mails may
constitute an enforceable contract, even if a party subsequently fails to sign implementing
6 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
documents, when the communications are sufficiently clear and concrete to establish such an
intent.
Here, as set forth above in the statement of facts and procedural history, a settlement
agreement was reached via email. In the May 9, 2022 email, defense counsel said that their client
authorized $300,000 after the agreed upon $375,000.00 could not be reached and plaintiff’s
counsel said “Accepted” that day. See Ex., “F.” - Email Correspondence from 4-11-2022 to 5-9-
2022. In the June 8, 2022 email, plaintiff’s counsel requested a letter from the defense counsel by
their client stating that he agrees to pay the estate the $300,000 to which the defense agreed to on
the condition that releases and estate filings were given to them. See Ex., “G.” - Email
Correspondence from 6-8-2022.
Likewise, in response to the defense counsel’s offers of $250,000, $270,000 and
$280,000, plaintiff’s counsel stated that the “distributes will agree on accepting the previously
agreed upon settlement amount of $300,000.00. If you could please file an answer on behalf of
your client in the Supreme Court matter so we can make a motion to enforce the original
settlement otherwise we will be seeking default judgment.” See Ex., “T.” - Email
Correspondence from 3-30-2023 to 4-7-2023; Ex., “S.” - Email Correspondence from 3-28-
2023 to 4-13-2023. The defendant replied “Ok. Will file my answer, Will speak to my client
again.” See Ex., “S.” - Email Correspondence from 3-28-2023 to 4-13-2023. From these
statements it is evident that there was a mutual assent between the parties to be bound by the
terms of their agreement and thus the settlement agreement is enforceable.
Further, the plaintiff stipulates as a term of this settlement agreement of $300,000 being
paid “in full satisfaction,” that interest be paid in accordance with the Supreme Court’s
determination if the settlement sum is not paid. See generally Donaldson Interiors, Inc. v. F.J.
7 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
Sciame Constr. Co., Inc., 188 A.D.2d 816 (2d Dept. 2020); Overeem v. Neuhoff, 281 A.D.2d 606
(2d Dept. 2001). It is preferred that the interest would be computed from the date of the
summons and complaint to the date on which the settlement was paid. See generally Donaldson
Interiors, Inc. at 188 A.D.2d at 816.
Furthermore, as stated under CPLR § 5003-a (a), “When an action to recover damages
has been settled, any settling defendant … shall pay all sums due to any settling plaintiff within
twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed
release and a stipulation discontinuing action executed on behalf of the settling plaintiff.” If
defendant RONALD GARAN fails to promptly tender the $300,000 settlement amount, the
plaintiff may enter judgment against him in the amount set “forth in the release, together with
costs and lawful disbursements, and interest on the amount set forth in the release from the date
that the release and stipulation discontinuing action were tendered.” CPLR § 5003-a (e).
For these reasons, the parties’ settlement should be enforced, defendant’s answer,
defenses, and counterclaims should be dismissed, and plaintiff will abide by the terms that she
agreed to.
CONCLUSION
Based upon the foregoing, plaintiff respectfully requests this Court grant its motion to
enforce settlement.
Dated: Westchester, New York
May 16, 2023
Respectfully submitted,
Zachary K. Giampa, Esq.
8 of 9
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023
Giampa Law, P.C.
Attorney for Plaintiff
200 Summit Lake Drive,
Suite 270
Valhalla, New York 10595
(914) 618-4225
TO: STEPHEN A. CERRATO, ESQ.
CERRATO LAW FIRM
ATTORNEYS FOR DEFENDANT
RONALD J. GARAN
475 TUCKAHOE ROAD, STE 207
YONKERS, NEW YORK 10710
(914) 476-6272
9 of 9
Preview
FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------------------------------------------------------x DAMEN BONIS As Administrator of the Estate of Athanasios Bonis, Plaintiff, Index. No. 55903/2023 - against - MEMO IN SUPPORT OF RONALD GARAN PLAINTIFF’S MOTION TO Defendant. ENFORCE SETTLEMENT -------------------------------------------------------------------x PRELIMINARY STATEMENT In this action, Plaintiff Damen Bonis As Administrator of the Estate of Athanasios Bonis (hereinafter “plaintiff”) respectfully submits this Memorandum of Law, together with exhibits attached to the Affirmation of Zachary K. Giampa Esq. in support of its motion to enforce the settlement that was reached in this matter with defendant RONALD GARAN pursuant to New York Civil Practice Law and Rules (“CPLR”) 2104. Through an email correspondence from April 11, 2022, through May 9, 2022, and another correspondence from March 28, 2023, through April 13, 2023, it is evident that the parties reached a settlement on all material terms and contested issues in this action. See Ex., “H.” - Email Correspondence from 4-11-2022 to 5-9-2022; Ex., “R.” - Email Correspondence from 3-28-2023 to 4-13-2023. Specifically, the parties had negotiated that the settlement agreement would be reduced from $375,000 to $300,000 as per the authorization of defendant RONALD GARAN. See Ex., “H.” - Email Correspondence from 4-11-2022 to 5-9-2022. Since this settlement amount was agreed upon more than a year ago and the required Petition, Citation, Decree, Attorney Affirmations, and Waivers and Consent has been filed and processed in the Westchester Surrogate's Court since March 9, 2023, the defense counsel continues to request that the agreed upon amount be reduced. See Ex., “R.” - Email Correspondence from 3-28-2023 to 4- 13-2023. Plaintiff now moves to enforce the settlement. 1 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY On January 24, 2023, this action was commenced against the defendant through the filing of a summons and complaint. See Ex., “B.” - Summons and Complaint, NYSCEF.doc #1. The defendant appeared through filing an answer with counterclaims on April 20, 2023. See Ex., “S.” - defendant’s Answer, NYSCEF.doc #4. This Summons and Complaint was based upon the passing of Athanasios Bonis on February 12, 2021 after he attempted to use gasoline to ignite a wood burning stove located at 407 Saw Mill River Road, Yonkers, NY 10710 on February 12, 2021 at approximately 8:10 a.m. in the presence of the defendant RONALD GARAN. See Ex., "B." - Summons & Complaint, NYSCEF.doc#1. After the passing of the deceased, his son, the plaintiff petitioned for Letters of Limited Administration on his behalf on June 9, 2021 in the Westchester Surrogate’s Court. See Ex., "A." - Filings dated June 9, 2021. A Combined Verification, Oath and Designation, a Notice of Application for Letters of Administration with accompanying affidavits, Sofia Bonis’s (plaintiff’s sister) Waiver and Consent, the Death Certificate of Athanasios Bonis (restricted by the court), and a Proposed Citation were processed on the same date. Id. On July 7, 2021, the Probate Court stated that a Schedule D(a) was required for Victoria Anastasiadis, the late wife of Athanasios Bonis, which plaintiff’s counsel filed on that date and on July 14, 2021, the proposed citation was revised to reflect that Erini Bonis, Alexander Bonis, Aliki Bonis, and Constantine Bonis (the plaintiff’s siblings) were cited to show cause before the Westchester County Surrogate Court on August 25, 2021 at 10:00 a.m. See Ex., "C." - Schedule D(a) letter and file; See Ex., “D." - Revised Citation with August 25, 2021 date. On August 26, 2021, Hon. Brandon R. Hall, Surrogate, signed a Decree granting Damen Bonis Administration with Limitations and the Letters of Administration were appointed to him. 2 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 See Ex., “E." - Decree and Letters of Administration. From April 11, 2022 to May 9, 2022 and on June 8, 2022, plaintiff’s counsel and defendant’s counsel engaged in email correspondence negotiating a settlement amount. =See Ex., “F.” - Email Correspondence from 4-11-2022 to 5-9-2022; Ex., “G.” - Email Correspondence from 6-8-2022. In this correspondence, the parties agreed upon the settlement amount being reduced from the agreed upon $375,000,00 pursuant to a phone conversation to the sum of $300,000 in complete satisfaction of all issues between the parties in dispute. See Ex., “F.” - Email Correspondence from 4-11-2022 to 5-9-2022. Specifically, plaintiff’s counsel emailed “Accepted” in response to the defense counsel stating that “their client authorized $300,000.” Id. In the June 8, 2022 email, plaintiff’s counsel requested from defense counsel a letter from them “stating that [their] client Ronald Garan agrees to pay Bonis’s estate $300,000 in full satisfaction of the estate’s wrongful death claim against your clients.” See Ex., “G.” - Email Correspondence from 6-8-2022. The defense counsel responded “Rich, before I sign anything, send me the estate filings. I will need releases from every member of the family (Children, spouse, whoever is surviving him).” Id. From July 21, 2022, to September 29, 2022, a Wrongful Death Petition, an Itemized Funeral Bill, an Account, an Attorney Affirmation, a Proposed Decree and a Proposed Citation and their amendments were filed by the plaintiff’s counsel. See Ex., "H." - Filings dated July 21 2022; Ex., "I." - Filings dated September 29, 2022. From October 21, 2022 to December 8, 2022, plaintiff’s counsel filed another amended petition, an attorney affirmation amending the petition to reflect the correct caption and allocation of the proceeds, an affidavit amending the accounting and a second affirmation amending the petition on December 8, 2022. See Ex., "J." - Affirmation amending petition 10- 3 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 21-2022; Ex., "K." - Affirmation amending petition 11-14-2022; Ex., "L." - Filings dated December 8, 2022. On January 3, 2023, plaintiff’s counsel filed a proposed citation which was amended by the Associate’s Surrogates Clerk on January 12, 2023. See Ex., "M." - Proposed Citation 1-3- 2023; Ex., “N.” - Citation 1-12-2023. On February 21, 2023, plaintiff’s counsel filed a Supplemental Citation. See Ex., “O.” - Supplemental Citation 2-21-2023. On March 6, 2023, plaintiff’s counsel filed the Waiver and Consent of Aliki Bonis and Erini Bonis and on March 9, 2023, plaintiff’s counsel filed a Waiver of Citation and Consent of the NYS Dept. of Taxation and Finance. See Ex., "P.” - Waiver & Consent of Aliki & Erini Bonis; Ex., “R.” - Waiver of Citation and Consent of the NYS Dept. of Taxation and Finance. On March 7, 2023, the Associates Surrogate Clerk filed the signed supplemental citation. See Ex., “Q.” - Signed Supplemental Citation. From March 28, 2023 through April 13, 2023, plaintiff’s counsel and defense counsel engaged in another email correspondence. See Ex., “S.” - Email Correspondence from 3-28- 2023 to 4-13-2023; Ex., “T.” - Email Correspondence from 3-30-2023 to 4-7-2023. Despite the agreed settlement amount of $300,000, defense counsel stated the following on March 28, 2023 at 4:31 p.m., “Rich, $250,000. Can tender payment by 4/4/23?” See Ex., “S.” - Email Correspondence from 3-28-2023 to 4-13-2023. On March 30, 2023, plaintiff’s counsel explained that the family was still considering the proposition and that “If agreed, only the administrator will sign the release and the settlement will be $270,000.00. I am awaiting their decision.” See Ex., “T.” - Email Correspondence from 3-30-2023 to 4-7-2023. On April 7, 2023, defense counsel stated that their client would “go to $280,000 and waive all counterclaims.” Id. Plaintiff’s counsel responded back in an email dated April 13, 2023 4 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 at 11:17 a.m. with “I have no flexibility on my end. The distributes will on agree on accepting the previously agreed upon settlement amount of $300,000.00. If you could please file an answer on behalf of your client in the Supreme Court matter so we can make a motion to enforce the original settlement otherwise we will be seeking default judgment.” See Ex., “S.” - Email Correspondence from 3-28-2023 to 4-13-2023. At 11:22 a.m. in response, defense counsel emailed back “Ok. Will file an answer. Will speak to my client again.” Id. On April 20, 2023, the defendant appeared by filing an answer with counterclaims. See Ex., “U” - defendant’s Answer, NYSCEF.doc #4. However, on April 27, 2023, defense counsel sent another email stating “Rich, anything we can do here to negotiate this and resolve it?” See Ex., “V.” - Email from 4-27-2023. Plaintiff now moves to enforce the parties’ agreement and compel enforcement of the Settlement Agreement between the parties. LEGAL ARGUMENT DEFENDANT’S COUNSEL AGREED TO THE SETTLEMENT TERMS THROUGH THE SUBSCRIBED EMAIL CORRESPONDENCE AND THEREFORE THE PLAINTIFF IS ENTITLED TO THE ENFORCEMENT OF THE SETTLEMENT RELEASE AGREEMENT. Under CPLR § 2104: An 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. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk. “The plain language of the statute directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound[.]" Matter of Phila. Ins. Indem. Co. v. Kendall, 197 AD3d 75, 78 (1st Dept. 2021) (citing Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286, 819 N.E.2d 206, 785 N.Y.S.2d 738 (2004)). “Settlement agreements are ‘judicially favored, will not lightly be set aside,’ and will be enforced ‘with rigor and without a searching examination into 5 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 their substance.’” Rawald v. Dormitory Auth. of N.Y., 70 Misc. 3d 1217(A), 139 N.Y.S.3d 523, at *2 (N.Y. Cnty. 2021) (quoting Forcelli v. Gelco Corp., 109 A.D.3d 244, 247-248 (2d Dept. 2013)). “To be enforceable, a settlement agreement must set forth all material terms, and there must be clear mutual accord between the parties.” Martin v. Harrington, 139 A.D.3d 1017, 1018 (2d Dept. 2016) (citing Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 286, 785 N.Y.S.2d 738 (2004)). In regard to an email correspondence, it is the “transmission of an email … [that] determines that a settlement stipulation has been subscribed for purposes of CPLR 2104.” Matter of Phila. Ins. Indem. Co., 197 AD3d at 76. In Matter of Phila. Ins. Indem. Co., the Court relied upon the Second Department’s ruling in the Forcelli v. Gelco Corp. (109 AD3d 244, 972 N.Y.S.2d 570 [2d Dept. 2013]) in their determination that a settlement effected via email was valid. Specifically, the Court stated the following regarding the Forcelli case: Forcelli is in accord with this Court's precedent, and we have cited it as persuasive authority (see Jimenez v Yanne, 152 AD3d 434, 434, 55 N.Y.S.3d 652 [1st Dept. 2017]). In Forcelli the plaintiff reached an agreement with the defendant to settle his personal injury case while the latter's summary judgment motion was pending, and the parties' counsel exchanged emails confirming that the plaintiff's counsel had accepted the offer and would prepare the release for the plaintiff to sign (109 AD3d at 245-246). The same day that the court granted the defendant's motion for summary judgment dismissing the case, the plaintiff's counsel sent the requested documents to the defendant's counsel (id. at 246-247). The defendant then refused to proceed with the settlement (id. at 247). The Second Department held that the parties' counsels' emails created a binding settlement agreement (id. at 248-251). Matter of Phila. Ins. Indem. Co., 197 AD3d at 78-79. Also, in Brighton Inv., Ltd. v. Har-Zvi (88 AD3d 1220, 1222, 932 NYS2d 214 [2011]), the Third Department Appellate Division Court stated that "an exchange of e-mails may constitute an enforceable contract, even if a party subsequently fails to sign implementing 6 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 documents, when the communications are sufficiently clear and concrete to establish such an intent. Here, as set forth above in the statement of facts and procedural history, a settlement agreement was reached via email. In the May 9, 2022 email, defense counsel said that their client authorized $300,000 after the agreed upon $375,000.00 could not be reached and plaintiff’s counsel said “Accepted” that day. See Ex., “F.” - Email Correspondence from 4-11-2022 to 5-9- 2022. In the June 8, 2022 email, plaintiff’s counsel requested a letter from the defense counsel by their client stating that he agrees to pay the estate the $300,000 to which the defense agreed to on the condition that releases and estate filings were given to them. See Ex., “G.” - Email Correspondence from 6-8-2022. Likewise, in response to the defense counsel’s offers of $250,000, $270,000 and $280,000, plaintiff’s counsel stated that the “distributes will agree on accepting the previously agreed upon settlement amount of $300,000.00. If you could please file an answer on behalf of your client in the Supreme Court matter so we can make a motion to enforce the original settlement otherwise we will be seeking default judgment.” See Ex., “T.” - Email Correspondence from 3-30-2023 to 4-7-2023; Ex., “S.” - Email Correspondence from 3-28- 2023 to 4-13-2023. The defendant replied “Ok. Will file my answer, Will speak to my client again.” See Ex., “S.” - Email Correspondence from 3-28-2023 to 4-13-2023. From these statements it is evident that there was a mutual assent between the parties to be bound by the terms of their agreement and thus the settlement agreement is enforceable. Further, the plaintiff stipulates as a term of this settlement agreement of $300,000 being paid “in full satisfaction,” that interest be paid in accordance with the Supreme Court’s determination if the settlement sum is not paid. See generally Donaldson Interiors, Inc. v. F.J. 7 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 Sciame Constr. Co., Inc., 188 A.D.2d 816 (2d Dept. 2020); Overeem v. Neuhoff, 281 A.D.2d 606 (2d Dept. 2001). It is preferred that the interest would be computed from the date of the summons and complaint to the date on which the settlement was paid. See generally Donaldson Interiors, Inc. at 188 A.D.2d at 816. Furthermore, as stated under CPLR § 5003-a (a), “When an action to recover damages has been settled, any settling defendant … shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff.” If defendant RONALD GARAN fails to promptly tender the $300,000 settlement amount, the plaintiff may enter judgment against him in the amount set “forth in the release, together with costs and lawful disbursements, and interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered.” CPLR § 5003-a (e). For these reasons, the parties’ settlement should be enforced, defendant’s answer, defenses, and counterclaims should be dismissed, and plaintiff will abide by the terms that she agreed to. CONCLUSION Based upon the foregoing, plaintiff respectfully requests this Court grant its motion to enforce settlement. Dated: Westchester, New York May 16, 2023 Respectfully submitted, Zachary K. Giampa, Esq. 8 of 9 FILED: WESTCHESTER COUNTY CLERK 05/16/2023 06:14 PM INDEX NO. 55903/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/16/2023 Giampa Law, P.C. Attorney for Plaintiff 200 Summit Lake Drive, Suite 270 Valhalla, New York 10595 (914) 618-4225 TO: STEPHEN A. CERRATO, ESQ. CERRATO LAW FIRM ATTORNEYS FOR DEFENDANT RONALD J. GARAN 475 TUCKAHOE ROAD, STE 207 YONKERS, NEW YORK 10710 (914) 476-6272 9 of 9