In Mooklal v. Clermont Farms, et. al., after successfully prevailing in three prior motions, MMP&S obtained an affirmance in the Appellate Division, Second Department of an order denying plaintiff’s motion to renew a prior motion for summary judgment and a prior motion to enforce the settlement.
Plaintiff commenced this action against the defendants to recover damages for personal injuries he allegedly sustained in an automobile accident. Prior to the completion of discovery, the plaintiff moved for summary judgment on the issue of liability. While the motion was pending, the parties agreed to settle the matter through emails exchanged between the attorneys. The plaintiff subsequently refused to accept the settlement. MMP&S moved to enforce the settlement arguing that the emails exchanged between MMP&S and plaintiff’s counsel, as agent of the plaintiff, constituted a binding and enforceable agreement to settle plaintiff’s claims.
The Supreme Court, Queens County denied the plaintiff’s motion for summary judgment on the issue of liability, and granted our motion to enforce the settlement. In granting the motion to enforce the settlement, the Court held that plaintiff’s counsel’s email, in response to our offer to settle the claims, set forth the material terms of the agreement and his assent. The Court further held that, under the circumstances, the email which bore plaintiff’s counsel’s electronic signature was a “subscribed” writing within the meaning of CPLR R. 2104 and constituted an enforceable agreement.
Thereafter, the plaintiff moved for leave to renew both motions. The renewal motion was based upon photographs of the defendants’ vehicle exchanged by MMP&S in discovery after plaintiff moved for summary judgment, before his reply was due, and long before the motion to enforce the settlement was made. The Supreme Court denied plaintiff’s motion to renew in its entirety. Plaintiff appealed the order.
The Second Department held that the plaintiff failed to demonstrate due diligence in bringing the photographs to the Supreme Court’s attention while the motion for summary judgment was pending and that the photographs would not have changed the denial of plaintiff’s motion for summary judgment on the issue of liability.
In addition, the Second Department held that plaintiff failed to offer a reasonable justification as to why the photographs were not submitted in opposition to the motion to enforce the settlement and that plaintiff failed to demonstrate that the photographs would have changed the determination that the settlement was enforceable.