Preview
FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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ANDERSON HILL ROAD CAPITAL LLC, Index No.
Petitioner,
- against -
DCCA, LLC, HOWARD KASKEL, THE ESTATE
OF MS. CAROLE SCHRAGIS, and ANITA
KASKEL ROE,
Respondents.
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MEMORANDUM OF LAW IN SUPPORT
OF PETITION TO ENFORCE SETTLEMENT
FISHMAN DECEA & FELDMAN
84 Business Park Drive, Suite 200
Armonk, New York 10504
Attorneys for Petitioner
Anderson Hill Road Capital LLC
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Preliminary Statement
By June 8, 2021, after some five (5) months of negotiation, the parties hereto reached a
settlement of an action pending in this Court entitled U.S. Bank National Association and
Anderson Hill v. DCCA, LLC, et. al., Index No. 53946/2019 (the “Foreclosure Action”). The final
settlement documents were drawn, approved, and completed (the “Settlement Agreement”). A
copy of the Settlement Agreement is annexed to the Petition as Exhibit B.
While Respondents promised to forward executed copies of the Settlement Agreement it
never did, ostensibly for logistical reasons. Notwithstanding, since all parties understood the
Settlement Agreement was in place, Respondents continued to clear title issues which they were
required to do under the Settlement Agreement.
Inexplicably, on June 22, 2021, by email Respondents reneged on the Settlement
Agreement. Although Respondents never delivered the executed Settlement Agreement, the law
in New York makes it plain that subscription of a settlement agreement may indeed be substituted
with emails confirming the material terms of the settlement.
Accordingly, the relief requested by the Petitioner herein should in all respects be granted.
STATEMENT OF FACTS
The facts to be considered on the present motion are set forth in the Verified Petition and
in the accompanying affirmations of James F. DeVarso and Thomas B. Decea, and the exhibits
annexed thereto.
THE SETTLEMENT AGREEMENT IS ENFORCABLE
As of June 8, 2021, the Settlement Agreement amongst the parties was sealed and
delivered. While the Settlement Agreement a not signed by Respondents, the emails between
counsel more than suffice for the subscription element of § 2401 of the Civil Practice Law & Rules
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(“CPLR”). On this issue, the holding of the court in Forcelli, v. Gelco Corporation, 109 A.D.3d
244 (2d Dep’t 2013) is squarely on point. In Forcelli the plaintiff reached an agreement with the
defendant to settle his personal injury case while the latter's summary judgment motion was
pending, and the parties’ counsel exchanged emails confirming that the plaintiff's counsel had
accepted the offer and would prepare the release for the plaintiff to sign (id. at 245-246). The same
day that the court granted the defendant's motion for summary judgment dismissing the case, the
plaintiff's counsel sent the requested documents to the defendant's counsel (id. at 246-247). The
defendant then refused to proceed with the settlement (id. at 247). The court held:
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.
The rule espoused by Forcelli and our own precedent is that an email in which the party's or its
attorney's name is retyped at the end of an email is sufficiently subscribed for purposes of CPLR
2104.
The court in Forcelli made a distinction between prepopulated and retyped signatures. That
distinction was eviscerated by the court in Philadelphia Insurance Indemnity v. Kendall, 2021 WL
2834536 (1st Dep’t 2021), which relied upon the decision in Forcelli, but took it one step further
by eliminating distinction between prepopulated and retyped signatures, The court held:
We now hold that this distinction between prepopulated and retyped
signatures in emails reflects a needless formality that does not reflect how
law is commonly practiced today. It is not the signoff that indicates whether
the parties intended to reach a settlement via email, but rather the fact that
the email was sent. Since 1999, New York State has joined other states in
allowing, in most contexts, parties to accept electronic signatures in place
of “wet ink” signatures. Section 304(2) of New York's Electronic Signatures
and Records Act (ESRA) provides: “unless specifically provided otherwise
by law, an electronic signature may be used by a person in lieu of a signature
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021
affixed by hand. The use of an electronic signature shall have the same
validity and effect as the use of a signature affixed by hand.”
There can be no doubt but the Settlement Agreement, negotiated and drafted over a five
(5) month period, was intended to be final and binding. Indeed, by emails from Respondents’
counsel, it was confirmed that the deal was complete, and the documents should be signed and
exchanged. Respondents’ counsel even put a deadline on the exchange for June 8, 2021, and later
more than once said the signatures from his clients were forthcoming. Counsel than went on for
two weeks taking steps required by the Settlement Agreement (like agreeing on survey and
clearing title), with no mention of the Settlement Agreement being anything but complete.
The last open issue in connection with the Settlement Agreement was DCCA’s refusal to
satisfy the $253,000 judgment against it under the Order (the “Judgment”). By email dated June
7, 2021, (Petition, Exhibit C), Alfred Donnellan, Esq., DCCA’s counsel, advised Anderson Hill’s
counsel that DCCA had no money to satisfy the judgment, and stated:
I told you it was a deal breaker . . . . It is still a deal breaker and if not
signed by tomorrow [June 8th] my client will walk away from the deal
(Emphasis supplied).
To resolve the last open issue, Mr. Donnellan had earlier requested a conference with the
Court during which he requested that the Court waive the judgment; the Court denied the request.
Notwithstanding the more than $3,000,000 Anderson Hill was required to pay under the Order, to
finalize the Settlement Agreement, satisfy the Court, and meet Mr. Donnellan’s deadline for fully
executed documents to be exchanged by June 8, 2021, Anderson Hill agreed to satisfy the
judgment against DCCA as a part of the Settlement Agreement. At that point, the settlement
documents were complete and execution copies of the Settlement Agreement were to be
exchanged.
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In addition to, and in reliance on, the negotiation and memorialization of the Settlement
Agreement (an extremely complex process involving real estate located in several jurisdictions
owned by various entities), Anderson Hill authorized its counsel to engage with the counsel for
the Receiver and the WARN Act intervenors in the Foreclosure Action to negotiate acceptable
terms upon which each would be paid the money due to them under the Order.
With the settlement complete, Anderson Hill met the deadline set by Mr. Donnellan in his
June 7, 2021, email, and he was advised by Thomas B. Decea, Anderson Hill’s litigation counsel,
that the Settlement Agreement duly signed by Anderson Hill was in counsel’s possession ready to
be exchanged.
By email dated June 9, 2021 @ 1:11 p.m., (Petition, Exhibit D), James F. DeVarso,
Anderson Hill’s transaction counsel, agreed to the final changes to the documents and asked Mr.
Donnellan “when we could anticipate receiving the settlement documents executed by his
(Mr. Donnellan’s) clients.” In addition, in one of the very first conversations which Mr. DeVarso,
had with Mr. Donnellan, itwas Mr. Donnellan who requested a “Closing after signing” which
resulted in Section 5.01 of the Settlement Agreement which calls for an “on or about forty-five
(45) days” after signing (See, accompanying affidavit of James F. DeVarso ¶ 7).
By email dated June 9, 2021 @ 1:30 p.m., a copy of which is annexed hereto as part of
Exhibit D, Mr. Donnellan stated:
I will have the [executed settlement agreement] shortly. Our client has
execution pages. We are waiting for them. Hope to have today.
(Emphasis supplied).
If this were not enough, by letter to the Court dated July 7, 2021, (Petition, Exhibit
F,) Peter Cane, DCCA’s litigation counsel, admitted the Settlement Agreement was in effect when
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021
he stated that unless Anderson Hill refused to abide by the Settlement Agreement, there would
have to be further “litigation to enforce the settlement agreement.”
CONCLUSION
For the reasons stated herein, in the Verified Petition, and accompanying affirmations of
counsel, the relief requested by the Petition should in all respects be granted.
Dated: Armonk, New York
July 19, 2021
FISHMAN DECEA & FELDMAN
By: /s/ Thomas B Decea
Thomas B. Decea, Esq.
84 Business Park Drive, Suite 200
Armonk, New York 10504
Phone: (914) 285-1400
tdecea@dfdlawfirm.com
Attorneys for Petitioner
Anderson Hill Road Capital LLC
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Preview
FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------------------------------------------------------x ANDERSON HILL ROAD CAPITAL LLC, Index No. Petitioner, - against - DCCA, LLC, HOWARD KASKEL, THE ESTATE OF MS. CAROLE SCHRAGIS, and ANITA KASKEL ROE, Respondents. ------------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF PETITION TO ENFORCE SETTLEMENT FISHMAN DECEA & FELDMAN 84 Business Park Drive, Suite 200 Armonk, New York 10504 Attorneys for Petitioner Anderson Hill Road Capital LLC 1 of 6 FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021 Preliminary Statement By June 8, 2021, after some five (5) months of negotiation, the parties hereto reached a settlement of an action pending in this Court entitled U.S. Bank National Association and Anderson Hill v. DCCA, LLC, et. al., Index No. 53946/2019 (the “Foreclosure Action”). The final settlement documents were drawn, approved, and completed (the “Settlement Agreement”). A copy of the Settlement Agreement is annexed to the Petition as Exhibit B. While Respondents promised to forward executed copies of the Settlement Agreement it never did, ostensibly for logistical reasons. Notwithstanding, since all parties understood the Settlement Agreement was in place, Respondents continued to clear title issues which they were required to do under the Settlement Agreement. Inexplicably, on June 22, 2021, by email Respondents reneged on the Settlement Agreement. Although Respondents never delivered the executed Settlement Agreement, the law in New York makes it plain that subscription of a settlement agreement may indeed be substituted with emails confirming the material terms of the settlement. Accordingly, the relief requested by the Petitioner herein should in all respects be granted. STATEMENT OF FACTS The facts to be considered on the present motion are set forth in the Verified Petition and in the accompanying affirmations of James F. DeVarso and Thomas B. Decea, and the exhibits annexed thereto. THE SETTLEMENT AGREEMENT IS ENFORCABLE As of June 8, 2021, the Settlement Agreement amongst the parties was sealed and delivered. While the Settlement Agreement a not signed by Respondents, the emails between counsel more than suffice for the subscription element of § 2401 of the Civil Practice Law & Rules 1 2 of 6 FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021 (“CPLR”). On this issue, the holding of the court in Forcelli, v. Gelco Corporation, 109 A.D.3d 244 (2d Dep’t 2013) is squarely on point. In Forcelli the plaintiff reached an agreement with the defendant to settle his personal injury case while the latter's summary judgment motion was pending, and the parties’ counsel exchanged emails confirming that the plaintiff's counsel had accepted the offer and would prepare the release for the plaintiff to sign (id. at 245-246). The same day that the court granted the defendant's motion for summary judgment dismissing the case, the plaintiff's counsel sent the requested documents to the defendant's counsel (id. at 246-247). The defendant then refused to proceed with the settlement (id. at 247). The court held: 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. The rule espoused by Forcelli and our own precedent is that an email in which the party's or its attorney's name is retyped at the end of an email is sufficiently subscribed for purposes of CPLR 2104. The court in Forcelli made a distinction between prepopulated and retyped signatures. That distinction was eviscerated by the court in Philadelphia Insurance Indemnity v. Kendall, 2021 WL 2834536 (1st Dep’t 2021), which relied upon the decision in Forcelli, but took it one step further by eliminating distinction between prepopulated and retyped signatures, The court held: We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Since 1999, New York State has joined other states in allowing, in most contexts, parties to accept electronic signatures in place of “wet ink” signatures. Section 304(2) of New York's Electronic Signatures and Records Act (ESRA) provides: “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature 2 3 of 6 FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021 affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” There can be no doubt but the Settlement Agreement, negotiated and drafted over a five (5) month period, was intended to be final and binding. Indeed, by emails from Respondents’ counsel, it was confirmed that the deal was complete, and the documents should be signed and exchanged. Respondents’ counsel even put a deadline on the exchange for June 8, 2021, and later more than once said the signatures from his clients were forthcoming. Counsel than went on for two weeks taking steps required by the Settlement Agreement (like agreeing on survey and clearing title), with no mention of the Settlement Agreement being anything but complete. The last open issue in connection with the Settlement Agreement was DCCA’s refusal to satisfy the $253,000 judgment against it under the Order (the “Judgment”). By email dated June 7, 2021, (Petition, Exhibit C), Alfred Donnellan, Esq., DCCA’s counsel, advised Anderson Hill’s counsel that DCCA had no money to satisfy the judgment, and stated: I told you it was a deal breaker . . . . It is still a deal breaker and if not signed by tomorrow [June 8th] my client will walk away from the deal (Emphasis supplied). To resolve the last open issue, Mr. Donnellan had earlier requested a conference with the Court during which he requested that the Court waive the judgment; the Court denied the request. Notwithstanding the more than $3,000,000 Anderson Hill was required to pay under the Order, to finalize the Settlement Agreement, satisfy the Court, and meet Mr. Donnellan’s deadline for fully executed documents to be exchanged by June 8, 2021, Anderson Hill agreed to satisfy the judgment against DCCA as a part of the Settlement Agreement. At that point, the settlement documents were complete and execution copies of the Settlement Agreement were to be exchanged. 3 4 of 6 FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021 In addition to, and in reliance on, the negotiation and memorialization of the Settlement Agreement (an extremely complex process involving real estate located in several jurisdictions owned by various entities), Anderson Hill authorized its counsel to engage with the counsel for the Receiver and the WARN Act intervenors in the Foreclosure Action to negotiate acceptable terms upon which each would be paid the money due to them under the Order. With the settlement complete, Anderson Hill met the deadline set by Mr. Donnellan in his June 7, 2021, email, and he was advised by Thomas B. Decea, Anderson Hill’s litigation counsel, that the Settlement Agreement duly signed by Anderson Hill was in counsel’s possession ready to be exchanged. By email dated June 9, 2021 @ 1:11 p.m., (Petition, Exhibit D), James F. DeVarso, Anderson Hill’s transaction counsel, agreed to the final changes to the documents and asked Mr. Donnellan “when we could anticipate receiving the settlement documents executed by his (Mr. Donnellan’s) clients.” In addition, in one of the very first conversations which Mr. DeVarso, had with Mr. Donnellan, itwas Mr. Donnellan who requested a “Closing after signing” which resulted in Section 5.01 of the Settlement Agreement which calls for an “on or about forty-five (45) days” after signing (See, accompanying affidavit of James F. DeVarso ¶ 7). By email dated June 9, 2021 @ 1:30 p.m., a copy of which is annexed hereto as part of Exhibit D, Mr. Donnellan stated: I will have the [executed settlement agreement] shortly. Our client has execution pages. We are waiting for them. Hope to have today. (Emphasis supplied). If this were not enough, by letter to the Court dated July 7, 2021, (Petition, Exhibit F,) Peter Cane, DCCA’s litigation counsel, admitted the Settlement Agreement was in effect when 4 5 of 6 FILED: WESTCHESTER COUNTY CLERK 07/19/2021 03:00 PM INDEX NO. 59685/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/19/2021 he stated that unless Anderson Hill refused to abide by the Settlement Agreement, there would have to be further “litigation to enforce the settlement agreement.” CONCLUSION For the reasons stated herein, in the Verified Petition, and accompanying affirmations of counsel, the relief requested by the Petition should in all respects be granted. Dated: Armonk, New York July 19, 2021 FISHMAN DECEA & FELDMAN By: /s/ Thomas B Decea Thomas B. Decea, Esq. 84 Business Park Drive, Suite 200 Armonk, New York 10504 Phone: (914) 285-1400 tdecea@dfdlawfirm.com Attorneys for Petitioner Anderson Hill Road Capital LLC 5 6 of 6