Consider this nightmare for a defendant's attorney. On May 3rd you send an email to your adversary that reads, "Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client execute the attached Medicare form as no settlement can be issued without this form."  

On May 11, you receive an email alert advising you that you just won summary judgment and the case against your client was dismissed the previous day, May 10th. Meanwhile the same day, by fax, you receive the signed releases and stipulation of discontinuance and the overnight package with original documents comes in the next morning. Your carrier gets wind of everything and is furious, "Send a letter immediately rejecting the release and withdrawing the offer!" screams the Claim manager.

You then fax and mail a letter dated May 12, 2011, to the plaintiffs' counsel, advising that the release and stipulation of discontinuance "is hereby rejected." Your letter further stated that, since "there was no settlement consummated under New York CPLR 2104 between the parties, you consider this matter dismissed by the court's decision dated May 10, 2011".  Are you on the hook for the $230,000?  The answer is YES you are.

CPLR 2104 provides: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney."  On July 24, 2013, the Appellate Division , Second Department in Forcelli v. Gelco (2013 NY Slip Op 5437)

addressed this very issue. "...given the now widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of CPLR 2104 simply because they cannot be physically signed in a traditional fashion (see Newmark & Co. Real Estate Inc. v 2615 E. 17th St. Realty LLC, 80 AD3d 476, 477-478, 914 N.Y.S.2d 162 ["e-mail agreement set forth all relevant terms  of the agreement . . . and thus, constituted a meeting of the minds"]).

In this case, Greene's email message contained her printed name at the end thereof, as opposed to an "electronic signature" as defined by the Electronic Signatures and Records Act. Nevertheless, the record supports the conclusion that Greene, in effect, signed the email message. Accordingly, we hold that where, as here, an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement. Therefore, the Supreme Court properly granted those branches of the plaintiffs' motion which were to vacate so much of the order dated May 10, 2011, as granted the motion of the Gelco defendants for summary judgment dismissing the complaint insofar as asserted against them and, thereupon, to enforce a settlement agreement between the plaintiffs and the Gelco defendants, and properly entered a judgment in favor of the plaintiffs and against the Gelco defendants in the principal sum of $230,000, in accordance with CPLR 5003-a(e)."

Read the decision here.

Geico v. Avelar  was decided by the Appellate Division, Second Department on July 17, 2013 (2013 NY Slip Op 5317). The issue in this proceeding is whether a claimant could make a claim for Supplemental Underinsured/Uninsured Motorist benefits (SUM) under a resident relative's policy. 

Maria Avelar was a passenger in an Allstate vehicle involved in a two car accident. Allstate had a minimum policy ($25,000 per person/$50,000 per occurrence) with identical SUM limits. The adverse vehicle was insured by Travelers Insurance Company, also with minimum limits. Ms. Avelar made a claim for SUM coverage with GEICO under a resident relative's policy with SUM limits of $100,000 per person/$300,00 per occurrence. GEICO sought a stay of arbitration based on a denial of coverage due to a policy exclusion, The SUM endorsement under the GEICO policy provided, in relevant part, that it did not apply "to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made, or is not a newly acquired or replacement vehicle covered under the terms of this policy."

The Appellate Division found in favor of GEICO, holding "This language must be construed according to its plain and ordinary meaning. This GEICO policy exclusion unambiguously excluded from SUM coverage claims for compensation for bodily injuries sustained by an insured when injured in a motor vehicle accident while occupying a motor vehicle he or she owns, which vehicle was not covered under the GEICO policy (see Matter of New York Cent. Mut. Fire Ins. Co. v Polyakov, 74 AD3d 820, 822, 903 N.Y.S.2d 443; Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d at 488). There is no dispute that the respondent, at the time of the accident, was occupying a vehicle that she owned but was not covered under the subject policy (see Matter of New York Cent. Mut. Fire Ins. Co. v Polyakov, 74 AD3d at 822). "

See the decision  here.

On August 3rd, 1863 William Travers and John Hunter opened a race track on the north side of Union Ave.  A year later the track moved across Union Ave. to its present location. Saratoga Race Course is now the oldest race horse track in America and every August tens of thousands of race enthusiasts pack Saratoga for a month of racing.

As a defense attorney, you always wonder what could go wrong? Consider Robert Carey v. Burton Schwab which was decided by the the Appellate Division, Third Department on July 18, 2013 (2013 NY Slip Op 5370). In this case Diana Weaver and Jan Wilson took three horses into town to go to local tavern. This actually happened in May of 2008 (we are in the third department remember). Of course the horses ran off, The plaintiff, Robert Carey, tried to help corral the horses and ended up being "head swatted" by a horse named "Whiskey". (I am not kidding, read the order.) The ensuing lawsuit centered on liability for injuries caused by a domestic animal.

As a general rule, an owner of a domestic animal will only be held strictly liable for the harm caused by such animal if he or she "'knows or should have known of that animal's vicious propensities.'" (Bard v Jahnke, 6 NY3d 592, 596, 848 N.E.2d 463, 815 N.Y.S.2d 16 [2006]. It is well established  that a vicious propensity is "the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" (Collier v Zambito, 1 NY3d at 446) and includes behavior that would not necessarily be considered dangerous or ferocious if those behaviors reflect a "'proclivity to act in a way that puts others at risk of harm'" Here the Court weighed the parties submissions on a motion for summary judgment and concluded the lower court properly denied the motion, "Viewing, in a light most favorable to plaintiffs, Merrills' testimony regarding his observations of defendant's paint horse, together with the evidence that Whiskey was the paint horse that defendant usually rode, and giving plaintiffs the benefit of all reasonable inferences that can be drawn therefrom, we find that there are genuine issues of fact which preclude summary judgment." 

Score one for the "head swatted" plaintiff. Maybe the next time you see a horse running down the street from a Tavern, the best course of action may be to call the police.

Read the order here.

If you have ever been to Breezy Point in the Rockaways, chances are you may have stopped into the "Sugar Bowl", a beach bar on George Timmons Way. The Sugar Bowl was more than a place for Drinks. The owners ran more fundraisers and memorial runs than any one in town. This was the place every young man in Breezy Point had his first beer, his first kiss and his first fight. Hurricane Sandy ripped the bar from its moorings and floated the bar seven miles away (still fully stocked) to Gerritsen Beach in Brooklyn. 

Breezy Point was devastated by Hurricane Sandy with 110 homes destroyed by fire. 

Now, like Phoenix rising from the ashes, The Sugar Bowl is back, maybe in a trailer, but back nonetheless. 

Hope springs eternal!