Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on July 30, 2024, under motion sequence number one, by Silverline Services Inc. (hereinafter the plaintiff) for an order pursuant to CPLR 3215 (i) granting judgment in favor of the plaintiff and against defendants Mob Transport, LLC d/b/a Mob Transport (hereinafter the LLC defendant) and David Otis Witherspoon (hereinafter the individual defendant) for the relief demanded in the complaint on the basis that the defendants failed to comply with the terms of the parties' settlement agreement. The motion is opposed.

Exhibits A-C

Exhibits A-B

Exhibit D

On November 13, 2023, the plaintiff commenced the instant action against defendants Mob Transport, LLC d/b/a Mob Transport and David Otis Witherspoon (hereinafter collectively the defendants) by filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO). The verified complaint alleges forty-seven allegations of facts in support of six denominated causes of action. The first three causes of action pertain to an agreement denominated as agreement one. The first cause of action is for breach of contract. The second cause of action is for breach of a personal guaranty. The third cause of action is for unjust enrichment. The fourth, fifth and sixth causes of action pertain to an agreement denominated as agreement two. The fourth cause of action is for breach of a personal guaranty. The fifth cause of action is for unjust enrichment. The sixth cause of action is for unjust enrichment.

The complaint alleged the following salient facts among other. The individual defendant entered into two agreements on behalf of the LLC defendant with the plaintiff denominated as agreement one and agreement two. Agreement one was executed on June 27, 2023, and agreement two was executed on June 21, 2023. The individual defendant also personally guaranteed the LLC defendant's performance of the two agreements.

By agreement one the plaintiff purchased the LLC defendant's future receivables having a total value of $59,536.79 for a purchase price of $40,806.57. Agreement one was structured so that instead of the plaintiff funding the entire purchase price at the outset, it instead funded the defendants in weekly increments. The total weekly funding was for $25,399 to purchase future receivables of $37,057.14. The LLC defendant agreed to have one bank account approved by the plaintiff (hereinafter the bank account) from which the LLC defendant authorized the plaintiff to make daily ACH withdrawals until $37,057.14 was fully paid to plaintiff.

By agreement two the plaintiff purchased the LLC defendant's future receivables having a total value of $8,874.00. The LLC defendant stopped making its payments to the plaintiff and otherwise breached agreement one by intentionally impeding and preventing plaintiff from making the agreed upon ACH withdrawals from the bank account while conducting regular business operations. Under agreement one, the LLC defendant made payments totaling $13,940, leaving a balance of $23,117.14.

Despite due demand, the LLC defendant has failed to pay the amounts due and owing to the plaintiff under agreement one. The individual defendant, as guarantor, also failed to pay the amount due and owing to the plaintiff. The LLC defendant also breached agreement two by failing to pay the amount due and owing under that agreement. The individual defendant, as guarantor, also failed to pay the amount due and owing to the plaintiff under agreement two.

On December 12, 2023, the defendants, through their counsel, Dominic R. Dale, Esq, interposed and filed a joint answer to the complaint.

On July 30, 2024, the plaintiff, through its counsel, Jeffrey Zachter, Esq. filed a document denominated as a settlement agreement (hereinafter the agreement).

The agreement was signed by Jeffrey Zachter, Esq., on behalf of the plaintiff and by [*2]defendant David Otis Witherspoon, individually and on behalf of co-defendant Mob Transport, LLC d/b/a Mob Transport.

The plaintiff's motion papers consist of a notice of motion, an affirmation of plaintiff's counsel and three annexed exhibits labeled A through C. Exhibit A is a copy of the instant summons and complaint. Exhibit B is a copy of the agreement. Exhibit C is a document showing that defendant David Otis Witherspoon is not in military service.

The defendants' opposition papers consist of an affirmation of their counsel and two annexed exhibits labeled A and B. Exhibits A and B are copies of court decisions issued on two unrelated court actions.

The plaintiff submitted an affirmation of its counsel in reply and one annexed exhibit labeled D. Exhibit D is described as a copy of the payments made by the defendant pursuant to the agreement.

CPLR 3215 (i) provides as follows:

Default judgment for failure to comply with stipulation of settlement.

1. Where, after commencement of an action, a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment in a specified amount with interest, if any, from a date certain, the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with a complaint or a concise statement of the facts on which the claim was based, and, if applicable, a statement that the interest rate for consumer debt pursuant to section five thousand four of this chapter applies.

2. Where, after commencement of an action, a stipulation of settlement is made, providing, in the event of failure to comply with the stipulation, for entry without further notice of a judgment dismissing the action, the clerk shall enter judgment on the stipulation and an affidavit as to the failure to comply with the terms thereof, together with the pleadings or a concise statement of the facts on which the claim and the defense were based.

"CPLR 3215 (i) consists of two paragraphs regarding the entry of judgments when a party fails to comply with a stipulation of settlement. The first paragraph applies in favor of the plaintiff, where the defendant is the breaching party. The second paragraph applies in favor of the defendant, where the plaintiff is the breaching party." The provisions were added to CPLR 3215 in 1966 (L.1966, ch. 487, sec. 1) and amended in 1967 (L.1967, ch. 31, sec. 1). Previously, stipulations of settlement that were not honored by a party were enforced by motions to the court. The statute, once enacted, provided a uniform statewide procedure where the clerk became authorized to enter a judgment on the stipulation of settlement, without notice to the other side" (Hon. Mark C. Dillon, 2024 Supp Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3215:28).

"If a party fails to comply with the terms of the stipulation, the other party may file it with the clerk along with an affidavit attesting to the default. The stipulation, coupled with an affidavit of non-compliance, constitutes the basis for the entry of a default judgment by the [*3]clerk." (Hon. Mark C. Dillon, 2024 Supp Prac Commentaries, McKinney's Cons Laws of NY, CPLR C3215:28).

Here, the plaintiff has moved for an order pursuant to CPLR 3215 (i) granting a judgment in the amount set forth in the complaint. CPLR 3215 (i), however, was meant to provide a procedure for the entry of judgment by direct application to the Kings County Clerk without the need for motion practice. Here, the plaintiff has elected to move for a court order granting a judgment when, under proper circumstance, there would be no need for a motion to effectuate entry of a judgment.

Specifically, the plaintiff seeks a monetary judgment based on the agreement. Analysis of the agreement is the next logical step to determine if its terms may be enforced by a notice of motion.

CPLR 2104 pertains to stipulations and provides as follows:

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.

"A settlement agreement that is not made in open court 'is not binding upon party unless it is in a writing subscribed by him [or her] or his [or her] attorney or reduced to the form of an order and entered'" (Ebaid v PV Holding Corp., 210 AD3d 741, 742 [2d Dept 2022]; see Amerally v Liberty King Produce, Inc., 170 AD3d 637, 637-638 [2d Dept 2019]). "Stipulations of settlement are favored by the courts and not lightly cast aside" (Ebaid v PV Holding Corp., 210 AD3d 741, 742 [2d Dept 2022], quoting Hallock v State of New York, 64 NY2d 224, 230 [1984]; see Amerally v Liberty King Produce, Inc., 170 AD3d 637, 637).

Here, the agreement, which is the subject of the instant motion, is dated December 21, 2023. It is signed by Jeffrey Zachter, Esq., on behalf of the plaintiff and by defendant David Otis Witherspoon, on his own behalf and on behalf of co-defendant Mob Transport, LLC d/b/a Mob Transport. It is not signed by Dominic Dale, the defendants' attorney of record.

The defendants submitted an affirmation of their attorney, Dominic Dale in opposition to the instant motion. Nothing in the defendants' opposition papers, including the affirmation of Dominic Dale, explains how the agreement was executed or why it was not signed by the defendants' counsel.

"CPLR 321 (a) prohibits a party who has appeared with counsel from acting as a self-represented litigant without court approval: 'If a party appears by attorney such party may not act in person in the action except by consent of the court.' (P.M. v J.M., 84 Misc 3d 262, 265 [Sup Ct, Westchester County 2024], quoting CPLR 321 [a]). Here, although Dominic Dale Esq. had already appeared as counsel to both defendants, contrary to the CPLR 321 (a), David Otis Witherspoon signed the agreement on his own behalf without the consent of the court.

"With certain exceptions not applicable here, 'a corporation or voluntary association shall appear by attorney'" (Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co., 73 Misc 3d 127[A] [App Term, 2d Dept 2021]), quoting CPLR 321 [a]). Contrary to the requirements of CPLR 321 (a), defendant Mob Transport, LLC d/b/a Mob Transport had David Otis Witherspoon sign the agreement on its behalf and not Dominic Dale, its attorney of record.

The "Rules of Professional Conduct rule 4.2 (a) prohibits an attorney, in representing a [*4]client, from communicating 'about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law'" (Cepeda v City of New York, 211 AD3d 570, 570-571 [1st Dept 2022], citing Rules of Prof Conduct [22 NYCRR 1200.0] rule 4.2 [a]).

Here, the agreement is signed by plaintiff's counsel, Zachter and by defendant David Otis Witherspoon, on his own behalf and on behalf of co-defendant Mob Transport, LLC d/b/a Mob Transport, the LLC defendant. An examination of the four corners of the agreement demonstrates that plaintiff's counsel executed the agreement directly with the individual defendant. The parties' pleadings and motion practice make it obvious, that at the time the agreement was executed, plaintiff's counsel was aware that the defendants were represented by counsel. There is nothing in the plaintiff's motion papers or in the defendants' opposition papers to show that the agreement was executed directly with the defendants with the prior consent of their counsel. The court does not infer or presume the consent of defendants' counsel by the counsel's silence in his affirmation in opposition. For all the foregoing reasons, the agreement is rejected. It is deemed inadmissible and unenforceable.

The motion by plaintiff Silverline Services Inc. for an order pursuant to CPLR 3215 (i) granting judgment in favor of the plaintiff and against defendants Mob Transport, LLC d/b/a Mob Transport and David Otis Witherspoon based on the defendants' failure to comply with the terms of the parties' settlement agreement is denied.

The foregoing constitutes the decision and order of this Court.