These motions arise out of a dispute over an alleged settlement agreement between plaintiff Jane Doe and defendants Paul Schrader and Schrader Productions, Inc.

Between May 2021 and September 2024, plaintiff worked as Schrader's assistant. (NYSCEF No. 7 at 3.) Schrader terminated her in September 2024. (Id. at 5.) Plaintiff claims that during her employment, she suffered various harms at the hands of defendants, including sexual assault and sexual harassment, wage and hour violations, defamation, intentional [*2]infliction of emotion distress, and assault and battery. (Id. at 2.) In October 2024, plaintiff contacted defendants, seeking compensation in exchange for settling her claims.

In the following months, the parties discussed an agreement to settle plaintiff's claims. On January 30, 2025, defendants' counsel gave plaintiff their "last, best, and final offer" of a confidential amount to settle the claims, with an acceptance deadline of 6:00 pm ET on January 31. (Id. at 6.) On January 31, defendants' counsel emailed plaintiff's counsel that "my client reiterated just now that the 6 pm ET deadline today is firm, he will not extend it, and the [redacted amount] settlement offer will be off the table at 6 pm ET if [plaintiff] does not accept it." (NYSCEF No. 9 at 2.) Plaintiff's counsel then responded by email that plaintiff "will agree to the payment schedule" proposed by defendant and requested additional terms concerning payment timing. (Id.) Plaintiff also requested that defendant email a draft agreement with the additional conditions integrated. (Id.)

On February 5, defendants' counsel replied, stating that the "proposed conditions are acceptable" and that a draft agreement would be sent the following week. (NYSCEF No. 10 at 2.) Over the next several weeks, the parties exchanged redlined draft documents of the agreement. Terms were negotiated relating to release of claims, the assignment of property, confidentiality, non-defamation, timing of payments, and the effective date of the agreement. (See NYSCEF No. 35; NYSCEF No. 37.) On March 6, 2025, plaintiff executed a draft document of the agreement and sent it to defendants' counsel, expecting that Schrader would also execute the agreement. (NYSCEF No. 16 at 2.) On March 25, defendants' counsel expressed to plaintiff's counsel that Schrader had decided against signing the settlement agreement. (NYSCEF No. 7 at 9.)

On April 7, plaintiff brought this CPLR 3213 motion for summary judgment in lieu of complaint against defendants. Plaintiff claims that defendants' counsel's February 5 email constituted an acceptance of plaintiff's counteroffer, creating a binding settlement agreement between the parties. Plaintiff argues that Schrader repudiated this agreement, giving rise to plaintiff's anticipatory breach-of-contract claim. Plaintiff further argues that the alleged settlement agreement, embodied in the parties' emails and the draft document of the agreement, constitutes a written instrument for the payment of money only within the meaning of CPLR 3213.

In addition to opposing plaintiff's motion, defendant cross-moves to dismiss under CPLR 3211 (a) (7) and CPLR 3211 (a) (1).

Plaintiff's motion is denied. Defendant's cross-motion to dismiss is granted.

I. Plaintiff's CPLR 3213 Motion for Summary Judgment in Lieu of Complaint

Plaintiff moves for summary judgment in lieu of a complaint under CPLR 3213. A CPLR 3213 motion-action must be based upon an instrument for the payment of money only. Plaintiff [*3]claims that the parties' emails and settlement document draft (together, the "notional agreement") constitute a written instrument for the payment of money (NYSCEF No. 7 at 2); and that Schrader has anticipatorily breached this instrument (id. at 14).

Defendants argues that plaintiff's motion does not meet the requirements for a CPLR 3213 action. According to defendants, (i) the notional agreement contains non-monetary terms that go beyond CPLR 3213's "instrument for money only" requirement, and (ii) plaintiff attempts to rely on documentary evidence outside the drafts and February 5 email to demonstrate the existence of that agreement. (NYSCEF No. 38 at 15—16.)

Plaintiff argues that CPLR 3213's requirements are met because (i) New York courts routinely find that settlement agreements with provisions in addition to the settlement payment itself constitute instruments for the payment of money and (ii) defendants' contention that plaintiff relies on proof outside the instrument itself is false. (NYSCEF No. 39 at 9—10.)

The court disagrees with defendants' contention that the emails and draft settlement documents together do not qualify as an instrument for CPLR 3213 purposes. Plaintiff relies solely on the initial emails and draft settlement to establish defendants' alleged obligations. Courts have permitted separate writings to be considered together when they relate to the same transaction. (See e.g. Dragon Head LLC v Elkman, 118 AD3d 424, 425 [1st Dept 2014] [finding that separate writings can be considered together when they forward the same transaction].) This principle supports the idea that the emails and drafts can collectively constitute an instrument.

But the court agrees that plaintiff has not met CPLR 3213's requirement that the instrument be for "payment of money only." CPLR 3213 is unavailable when "the instrument requires something in addition to defendant's explicit promise to pay a sum of money." (Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444 [1996].) For an instrument to be enforced under CPLR 3213, a party's promise to pay may not be conditional. (Park Union Condominium v 910 Union St., LLC, 140 AD3d 673, 674 [1st Dept 2016].)

Plaintiff seeks enforcement of the draft settlement document. (NYSCEF No. 7 at 1—2.) Under this document, plaintiff must neither retain nor disclose confidential information obtained during her employment and must not defame Schrader. (NYSCEF No. 37 at 7.) These provisions create ongoing, non-monetary obligations on plaintiff. Plaintiff's obligations take the notional agreement outside CPLR 3213's "payment of money only" scope. (See Kerin v Kaufman, 296 AD2d 336, 337—338 [1st Dept 2002] [holding that an agreement making payment conditional on compliance with a non-disparagement provision may not be enforced by CPLR 3213 motion].)

Plaintiff claims that her CPLR 3213 motion is permitted. According to plaintiff, New York courts routinely permit CPLR 3213 motions to enforce settlement agreements that include provisions in addition to the settlement payment itself. Plaintiff offers numerous cases in support of this contention. (See LFR Collections LLC v Tammy Tran Attorneys at Law, LLP, 2025 NY Slip Op 02852, 1 [1st Dept May 8, 2025] [affirming order of Supreme Court that enforced a settlement agreement with a provision increasing the contractual interest rate upon default]; Alessina v El Gauchito II, Corp., 220 AD3d 645, 647 [2d Dept 2023] [enforcing settlement [*4]agreement containing non-disparagement clause]); Brooke v Streit, 2023 NY Slip Op 51426[U], *1, *2 [Sup Ct, NY County 2023] [enforcing settlement agreement with pre-judgment interest provisions]; Docmation, LLC v Gowork Solutions, Inc., 2021 WL 2787721, at *1 [Sup Ct, NY County June 28, 2021] [enforcing settlement agreement providing for late-payment penalty];

In all the cases plaintiff cites but for Alessina, however, the additional provisions were merely late-payment remedies. That is, the provisions in the cited cases went only to the amount that a party would be obligated to pay (i.e., increasing that amount upon a default in timely payment). Those provisions did not—unlike the putative agreement here—make that payment obligation conditional upon performance of ongoing reciprocal obligations by the counterparty (such as adhering to confidentiality and non-disparagement requirements). True, the agreement in Alessina did contain a non-disparagement provision like the one relied on by defendant here. But neither the motion court in Alessina nor the Second Department on appeal considered how this provision would affect enforceability under CPLR 3213. Neither party raised the issue on appeal, and the non-disparagement provision was mentioned only once in plaintiffs' initial affirmation in support of their motion. In any event, even if Alessina is taken to stand for the proposition that an agreement containing a non-disparagement clause may still constitute an instrument for the payment of money only, this court must follow the contrary holding of the First Department in Kerin.

The notional agreement is not an instrument solely for the payment of money. Plaintiff's CPLR 3213 motion is therefore denied.

When CPLR 3213 is unavailable, courts have the discretion to convert the action into a summary judgment motion. (See Weissman, 88 NY2d at 445.) Conversion is denied, however, as academic. For the reasons below, defendants' cross-motion to dismiss plaintiff's claim is granted. When a claim is dismissed, nothing remains to be converted.

II. Defendants' Cross-Motion to Dismiss

Defendants cross-move to dismiss the action in its entirety under CPLR 3211 (a) (7) and CPLR 3211 (a) (1).

Granting a CPLR 3211 (a) (7) dismissal for failure to state a cause of action is appropriate when a plaintiff has "identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action." (Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 134 [1st Dept 2014].) Dismissal is appropriate under CPLR 3211 (a) (7) when a plaintiff's claim is "flatly rejected by the documentary evidence." (Id. at 135.)

A CPLR 3211 (a) (1) motion is granted when "documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (Goshen v Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002].)

In seeking dismissal, defendants argue that the parties never had a binding, enforceable [*5]agreement. (NYSCEF No. 38 at 14—16.) This court agrees.

The parties' initial email exchange does not constitute an enforceable agreement, because those emails do not define the agreement's material terms with the necessary specificity. (See e.g. Matter of Express Indus. and Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589-591 [1999] [holding that contract was not binding when material terms were indefinite].) The agreement drafted after the parties' initial email exchange does define all material terms. But this draft agreement was never executed by all parties and therefore never became effective.

1. For an agreement to be binding, "there must be a meeting of the minds such that there is a manifestation of mutual assent sufficiently definite to assure that parties are in truly in agreement with respect to all material terms." (Stonehill Capital Mgt., LLC v Bank of the W., 28 NY3d 439, 448 [2016].)

On January 31, plaintiff's counsel emailed defendants' counsel, stating that "my client will agree to the payment schedule your client is proposing but requires safeguards against late/non-payment." (NYSCEF No. 10 at 2.) In particular, plaintiff requested that "1) the release will not be effective until final payment is made; 2) if the first payment is not timely made, both payments shall become immediately due and payable; and 3) if either payment is not timely made, Mr. Schrader will be subject to interest/penalty payment." (Id.) Defendants' February 5 email response states that "[w]e have discussed with our client and your proposed conditions are acceptable. I will get you the settlement agreement next week." (Id.)

Plaintiff argues that these initial emails create a binding agreement between the parties. Defendants disagree. According to defendant, "the parties demonstrated a clear intent to be bound by only a detailed written agreement" that was executed by all parties (NYSCEF No. 38 at 8.) This court is skeptical of defendants' contention. But the point is academic—as discussed further below, defendants' February 5 email could not create a binding agreement between the parties regardless.

For agreements to be binding, the parties must not only manifest their assent, but also assent to all material terms. A corollary of this principle is that "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable." (Joseph Martin, Jr., Delicatessen, Inc. v Schumacher, 52 NY2d 105, 109 [1981].) Material terms "include those terms customarily encountered in transactions of this nature." (O'Brien v West, 199 AD2d 369, 370 [2d Dept 1993].)

Both parties agree that negotiation continued over additional terms after the January 31—February 5 email exchange. The parties exchanged multiple drafts of the full settlement document with additional terms. The parties disagree about whether these terms are material. If they are, then the February 5 email could not constitute acceptance of the settlement agreement.

The additional terms negotiated following the initial email exchange are material. The parties had not yet settled on the applicable rate of interest for late payment or a default remedy for untimely payment. (NYSCEF No. 36 at 2—3.) The agreement does not sufficiently define [*6]either obligation. The amount owed for late payment cannot be determined without the parties' further expression. (See Kenneth D. Laub & Co., Inc. v Bear Stearns Companies, Inc., 262 AD2d 36, 32 [1st Dept 1999] [finding that a term may be sufficiently definite if it can be determined objectively without the parties' further expression].) Supplying these missing contractual obligations would directly affect the amount defendants could be obligated to pay under the purported agreement.

The parties also negotiated terms not directly related to plaintiff's release of claims. For example, the settlement document(s) added a release of defendants' (potential) claims against plaintiff and an assignment by plaintiff of her interest in a script in exchange for half the proceeds if the script was sold. (NYSCEF No. 36 at 3.) The agreement also added confidentiality and mutual non-defamation provisions. (NYSCEF No. 37 at 5—7.) Together, these terms create obligations on the parties that go beyond the scope of the preliminary emails, implying that the initial emails did not embody the parties' contemplated agreement in its entirety.

Plaintiff offers cases to attempt to demonstrate the non-materiality of the additional terms, but they are inapposite to the current action. In Herz v Transamerica Life Insurance Co., the disputed modification to the agreement was to language that did not bear on either parties' obligations. (See 172 AD3d 1336, 1337 [2d Dept 2019].) In Alessina, the Court's holding that the settlement agreement was enforceable was premised on the court's conclusion that there was no condition precedent to the agreement. (220 AD3d at 647.) Although the Alessina Court held that the material terms were set forth in the email exchange at issue, it did not address whether any particular term specified in those emails was material. (Id.) Similarly, the court's decision in Guice v PPC Residential, LLC was premised on the finding that the parties' discussion of medical-lien amounts following formation "did not create a condition precedent to vitiate the agreement," without addressing the issue of the materiality of specific terms. (212 AD3d 577, 577 [1st Dept 2023].)

2. Plaintiff also cannot establish the existence of a binding agreement by appealing to the draft settlement agreement. After the initial emails, the parties exchanged drafts of a detailed settlement agreement. This document fully defines all material terms. But it contains a clear precondition to its effectiveness: "This Agreement shall be effective upon execution by the Parties. The Parties understand that Schrader shall not be required to make payments or provide the consideration set forth in this Agreement unless this Agreement becomes effective." (NYSCEF No. 37 at 10.) It is uncontested that Schrader never executed the agreement.

In short, the documentary evidence introduced by the parties establishes that plaintiff has no cause of action, because plaintiff is seeking to enforce agreements that had no binding effect on defendants. Defendants' cross-motion to dismiss is therefore granted. Given the dismissal of plaintiff's claim, the court need not, and does not, consider plaintiff's requests for fees, costs, disbursements, attorneys fees, damages related to late payment, and pre-judgment and post-judgment interest.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment in lieu of complaint is denied; and it is further

ORDERED that defendants' cross-motion to dismiss is granted; and it is further

ORDERED that defendants serve a copy of this order with notice of its entry on plaintiff and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.