Milissa J.
Martin, Plaintiff,
against
Peter F. Harrington and Danielle K. Harrington,
Defendants.
|
25834/2009
Nick Fiore, Esq.
Attorneys for Plaintiff
85 Upper Shad Road
Pound Ridge, New York 10576
Bleakley Platt & Schmidt, LLP
Attorneys for Defendants
One North Lexington Avenue
P.O. Box 5056
White Plains, New York 10602-5056
Charles D. Wood, J.
Defendants move for an order pursuant to CPLR 2104, enforcing the settlement
agreement and dismissing this action with prejudice, or in the alternative, granting
defendants leave to amend their Answer to the Amended Complaint to assert a
counterclaim for promissory estoppel, and for sanctions against plaintiff pursuant to 22
NYCRR §130-1.1.
By way of background, plaintiff and defendants are next-door neighbors in a
community known as Hunt Farm in Waccabuc. Plaintiff alleges in the complaint that
defendants installed and built an asphalt driveway between December 17, 2004 and
December 31, 2006, which encroached upon her property and has continued to encroach
upon her property. Plaintiff also accuses defendants of having installed an underground
electric fence which also encroached upon plaintiff's property. According to defendants,
they had no reason to believe their driveway encroached, because they hired a paving
contractor to resurface their existing driveway. After reviewing plaintiff's survey,
defendants decided to remove the contested portion of the driveway, and ultimately
removed more of the driveway than necessary in order to eliminate future claims by
plaintiff. Defendants' counsel wrote to plaintiff's counsel to resolve the lawsuit. By letter
dated April 13, 2010 ("the settlement letter"), plaintiff's former counsel wrote:
I have forwarded your letters to my client and she has
authorized to make the followingproposal...In order
to ensure that the driveway encroachment is resolved
correctly, wesuggest that your client retain John J.
Muldoon, the surveyor who has already surveyed the
property, to line/mark the area of encroachment. That
way, both your clients and my client will know that
the boundary line between their two properties has
been accurately delineated... If your clients accept this
proposal, and acknowledge the accuracy of Mr.
Muldoon's survey by permitting him to mark the line,
and if your clients expeditiously undertake to remove the
encroaching driveway, my client will agree to discontinue
the lawsuit.
(Exh "I" to Affidavit of Peter F. Harrington, sworn to 1/26/15)
Defendants assert that based upon the settlement letter, they hired plaintiff's surveyor
to mark the property line; hired a contractor recommended and approved by plaintiff to
perform the work; and obtained plaintiff's tacit on site approval as the property line was
marked and the driveway reconfigured to remove more than the alleged encroachment,
which cost defendants over $5,500.
Based upon the foregoing, the motion is decided as follows:
Settlement Agreement
CPLR § 2104, states,"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 writing subscribed by him or his attorney or
reduced to the form of an order and entered." "[T]o be enforceable under CPLR 2014 an
out-of-court settlement must be adequately described in a signed writing" (Bonnette v Long Island Coll.
Hosp., 3 NY3d 281, 286 [2004]). If an agreement is not reasonably certain in its
material terms, there can be no legally enforceable contract (Cobble Hill Nursing
Home, Inc. v Henry & Warren Corp., 74 NY2d 475, 482 [1989] ).
An attorney must be specifically authorized to settle and compromise a claim, as an
attorney has no implied power by virtue of his general retainer to compromise and settle
his client's claim (Nash v Y & T Distributors, 207 AD2d 779, 780 [2d Dept
1994]). A party who relies on the authority of an attorney to settle an action in his client's
absence deals with such an attorney at his own peril (Slavin v Polyak, 99 AD2d
466 [2d Dept 1984]). If the settlement is thereafter challenged, the relying party has the
burden of establishing that the attorney's actions were, in fact, authorized. To determine
apparent authority, courts consider "words or conduct of the principal, communicated to
a third party, that give rise to the appearance and belief that the agent possesses authority
to enter into a transaction" (207 AD2d at 780). "The existence of apparent authority
depends upon a factual showing that the third party relied upon the misrepresentation of
the agent because of some misleading conduct on the part of the principal-not the agent"
(Ford v Unity Hospital, 32 NY2d 464, 473 [1973]). Moreover, a third party with
whom the agent deals may rely on an appearance of authority only to the extent that such
reliance is reasonable (207 AD2d 779 at 781).
To determine whether the attorney had such apparent authority, the relying
party (here, the defendants), must demonstrate that some kind of communication or
conduct on the client's (plaintiff) part, led defendant to believe that the attorney had
authority to enter into the settlement on its client's behalf (Melstein v Schmid
Laboratories, Inc., 116 AD2d 632 [2d Dept 1986]).
Therefore, in order for defendants to have reasonably relied upon an
appearance of plaintiff's attorney's authority to settle this case, defendants would need to
establish that the conduct of plaintiff herself created the apparent authority. To that end,
defendants assert that at the time plaintiff's former counsel wrote the settlement letter
(April 13, 2010), he was counsel of record, having been retained by plaintiff. They cite
both the plain language of the letter ("I have forwarded your letters to my client and
she has authorized me to make the following proposal"), and the fact that the bottom
of the letter indicates that the plaintiff was copied on the letter, to prove that the plaintiff
was fully aware of the settlement offer. Next, on April 19, 2010, the defendants replied
to the April 13, 2010 letter, embracing its terms, setting forth the dates that the surveyor
would mark the property line and the asphalt contractor would do asphalt removal.
Defendants next assert that the plaintiff was physically present before,
during, and after the work was done by the asphalt contractor on April 26, 2010, which is
documented by photographs taken by the plaintiff herself (see exhibits "L" and
"M" attached to affidavit of Peter M. Harrington, sworn to January 26, 2015). At no time
did the plaintiff raise any issues with the work or her attorney's authority to enter into an
agreement on her behalf, or intervene to raise any questions about the work. In response,
the plaintiff states that she "was not present when it was cut back," but she clearly was
there at the time the workers were there, as demonstrated by her own photograph
(see [*2]exhibit "L" attached to affidavit of Peter
M. Harrington, sworn to January 26, 2015), which she did not contest, and failed to
address in her affidavit in opposition. The fact that she now apparently claims to have
left the area after taking the photograph (taking no other action) is arguably further proof
of her assent to the agreement. Also, it is noteworthy that the plaintiff very carefully
asserts, "contrary to the assertions repeated in defendants' motion papers, I never, in any
way, shape or form, approved the defendants' re-cut driveway, or supervised said
re-cutting" [Plaintiff's affidavit, sworn to February 13, 2015, at 15]. However, the
plaintiff's actions after the re-cut contradict her statement. For over three years, the
plaintiff took no action, raised no issues, sat idly by, and failed to prosecute this action,
until she verbally confronted defendant Danielle Harrington on June 21, 2013. In
response, five days later, it was the defendants that sent a 90 Day Notice pursuant to
CPLR 3126, demanding that she resume prosecution of this case and file a note of issue.
Plaintiff's (new) counsel's attempt to blame the defendants for allowing a sleeping dog to
lie is not convincing. It is the plaintiff's burden to prosecute and pursue her case. While
this court denied the defendants' prior motion to dismiss for want of prosecution, that
does not mean that the plaintiff's (in)actions between April 13, 2010 and June 21, 2013
are not highly instructive with respect to this motion, in assessing her awareness and
assent to the April 13, 2010 letter.
In contrast, plaintiff's counsel attempts to create an issue of fact as to
whether the conditions of the alleged settlement were completed inter alia,
plaintiff's surveyor may not have marked the property line prior to defendants re-cutting
of their driveway. However, defendant Peter Harrington's affidavit states, "We contacted
Ms. Martin's surveyor John J. Muldoon and hired him to mark the property line." The
fact that his attorney's letter stated that it was marked off "using (plaintiff) Martin's
survey" is not a contradiction. Plaintiff also raises that the by-laws of the Hunt Farm
Homeowners' Association ("HFHA") require prior approval for work to be completed,
however, this is a red herring, and defendants point out that nowhere in the bylaws does
HFHA reserve unto itself the authority to pass upon issues regarding property lines.
In the instant matter, the settlement was offered not in the context of a
pre-trial conference or in open court, but was an offer that was communicated from
plaintiff's former attorney. Plaintiff claims that she did not expressly authorize the
attorney to settle the instant action.
Based upon the arguments of the parties and the submissions presented to
the court, defendants have met their burden of showing that the plaintiff's former attorney
had the apparent authority to settle the case. While the settlement letter is signed by
plaintiff's former attorney and not plaintiff herself, and defendants failed to prove any
overt communication by plaintiff herself that would give rise to the appearance of
authority to settle this case, the inquiry does not end there. Here, no direct, overt action
was required by the plaintiff to signify her agreement. The defendants were required to
perform an act, after which the plaintiff would discontinue her lawsuit. The defendants
performed their part of the deal, so then we turn to the conduct of the plaintiff to
determine whether the actions taken by the defendants pursuant to the proposal contained
in her attorney's letter were indeed expected, approved, and would resolve the underlying
lawsuit. It is appropriate to consider circumstantial evidence, since the plaintiff did not
actually sign a stipulation of discontinuance. She obviously had every opportunity to
inspect the site. She had retained an attorney. She lived next door, and has demonstrated
her ability and willingness to express her concerns and to take steps to protect her
interests (see Exhibits "G" and "H" attached to affidavit of Peter M. Harrington,
sworn to January 26, 2015). Yet, given these facts, had one week elapsed after [*3]the driveway re-cut was performed, neither this court, nor
any court could determine from the plaintiff's silence and inaction, whether or not she
assented to the April 10, 2010 proposal. It is likely that even one month after the re-cut,
that the plaintiff could have taken some action to demonstrate that she was not in
agreement with the April 10, 2010 letter. But thankfully, in this case, the facts are so
clear, that no reasonable argument can be made that the plaintiff was unaware of the
April 10, 2010 proposal, or that she did not ratify the April 10, 2010 proposal by failing
to prosecute this action or otherwise take any action for over three years after the
defendants performed their obligations under the proposal.
Sanctions
The court may impose financial sanctions and/or costs upon a party or
attorney who engages in frivolous conduct (22 NYCRR 130.1.1[a]; Weissman v Weissman, 116
AD3d 848, 849 [2d Dept 2014]). Conduct is frivolous if (1) it is completely without
merit in law and cannot be supported by a reasonable argument for an extension,
modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong
the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts
material factual statements that are false (22 NYCRR 130-1.l[c]. To avoid sanctions, at
the least, the conduct must have a good faith basis (Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 558 [2d
Dept 2010]).
Based upon the record, while the facts are abundantly clear, and the outcome
of this motion is in favor of the defendants, the court does not conclude that the conduct
of plaintiff was frivolous within the meaning of 22 NYCRR 130—1.1(c) (see 22
NYCRR 130—1.1 [c]).
Accordingly, for the stated reasons, it is hereby
ORDERED, that defendants' motion to dismiss the complaint is granted; and
it is further
ORDERED, that defendants shall serve a copy of this order with Notice of
Entry upon plaintiff within 10 days of entry, and file an affidavit of service within 5 days
of service; and it is further
All matters not herein decided are denied.
This constitutes the Decision and Order of the court.
Dated:April 16, 2015
White Plains, New York
______________________________
HON. CHARLES D. WOOD
Justice of the Supreme Court