Preview
FILED: NEW YORK COUNTY CLERK 08/04/2023 10:30 AM INDEX NO. 650079/2023
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 08/04/2023
Exhibit B
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NYSCEF DOC. NO. 92
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. CAROL EDMEAD PART 35
Justice
---------------------------------------------------------------------------------X INDEX NO. 151193/2020
BARBARA SIEGEL, THE MANFRED & ANNE LEHMANN
FOUNDATION, MOTION DATE 04/29/2021
Petitioner, MOTION SEQ. NO. 003
-v-
KAREN EISNER, NEW YORK STATE ATTORNEY DECISION + ORDER ON
GENERAL LETITIA JAMES, MOTION
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 003) 108, 109, 110, 111,
112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,
133, 134, 135, 136, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154,
155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 169, 170, 171, 172, 173, 174, 175, 176,
177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197,
198, 199, 200, 201, 202, 203, 204, 205, 206
were read on this motion to/for POST JUDGMENT OTHER .
Upon the foregoing documents, it is
ORDERED that the motion of respondent Karen Lehmann Eisner, brought by order to
show cause, to enforce a settlement agreement pursuant to CPLR 2104 and for certain equitable
relief is denied; and it is further
ORDERED that the cross-motion of petitioner Barbara Lehman Siegel for certain
equitable relief is denied; and it is further
ORDERED that this proceeding is removed from active status and is dismissed without
prejudice; and it is further
ORDERED that the clerk of the court shall enter judgment accordingly; and it is further
ORDERED that counsel for respondent shall serve and file a copy of this Decision and
Order with Notice of Entry upon petitioner and Assistant Attorney General Donna Cole-Paul
within ten (10) days.
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Respondent Karen Lehmann Eisner (Director Eisner) brings this motion by order to show
cause (OSC) to enforce a settlement agreement pursuant to CPLR 2104 and for certain equitable
relief. Petitioner Barbara Lehman Siegel (Director Siegel) opposes and cross - moves for certain
equitable relief. 1
Both the motion and cross motion are denied.
By way of brief background, this court, by decision and order dated August 7, 2020 (the
decision): (1) denied petitioners’ application for dissolution of The Manfred & Anne Lehmann
Foundation (the Foundation); (2) dismissed the petition without prejudice; and (3) denied
petitioners’ application for a preliminary injunction. Familiarity with the decision is presumed. In
light of the filing of this order to show cause and correspondence from counsel, the court, by
order dated March 4, 2021, restored this case to active status.
With the able assistance of Assistant Attorney General (AAG) Donna Cole-Paul,
Transaction Section Chief of the New York State Attorney General’s Charities Bureau, Director
Eisner and Director Siegel and their respective counsel engaged in negotiations concerning the
Foundation (NYSCEF Doc. No. [Doc] 140, Supporting Affirmation of Chael J. Clark, Esq.
[Clark aff]), ¶ 3; Doc 134, Supporting Affidavit of Emil Hirsch, Esq. [Hirsch aff], ¶ 2);
Affirmation of Sheldon Eisenberger, Esq. [Eisenberger aff], ¶ 3). A major focus of the
negotiations was the appointment of the requisite third director to the Board of Directors (Board)
pursuant to the by-laws, following the 2017 passing of Director Anne Lehman, to amend the by-
laws to increase the number of directors from three to five, and to appoint the two additional
directors.
1
The order to show cause, returnable April 29, 2021, provided, inter alia, that no reply was allowed. The order to
show cause and the cross motion were fully submitted on April 29, 2021. The court does not consider the April 30,
2021 submissions (NYSCEF docs. 206 and 207).
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The court commends AAG Cole-Paul of the Office of Attorney General Letitia James for
her hard work. The court also commends Director Eisner and Director Siegel (the Directors) for
their long commitment to and efforts on behalf of the Foundation, a not – for - profit charitable
foundation created by their parents, spouses Manfred and Anne Lehman. By so doing, however,
the court does not intend to minimize the conflict, difficulty and frustration expressed in the
submitted papers and accompanying exhibits, including the email exchanges and
correspondence.
Director Eisner’s Contentions and Requested Relief
Director Eisner moves, pursuant to CPLR 2104, for an order to enforce a settlement
agreement between the parties regarding the size and composition of the Board, specifically, to
increase the number of directors from three to five and simultaneously elect the two agreed upon
directors, Rabbi Yitzchok Breitowitz and Rabbi Adam Mintz (the settlement agreement). She
also moves for an order: (1) directing the parties to convene a Special Meeting of the Board
within seven days of the order’s issuance to vote to amend Section 4.02 of the Foundation’s by -
laws to increase the number of directors from three to five; and (2) to appoint one of three named
individuals, Frederick Lawrence, Philip Sunshine, or Seymour Adler (the three proposed
candidates), or, alternatively, an individual of the Court’s choosing, to fill the remaining vacant
seat.
Director Eisner contends that the material terms of the settlement agreement and the
parties’ mutual assent to be bound by it are set forth in a series of email and letter exchanges and
telephone conferences that occurred over nearly five months of negotiations. She relies on the
content of the communications or portions thereof, the inferences she asserts are evident by those
communications, and a lack of objection to certain content of the communications. She argues
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that the parties “readily acknowledged and never disputed” that they agreed that the number of
Board directors would be increased from three to five and that Rabbi Adam Mintz and Rabbi
Yitzchak Breitowitz would be simultaneously elected as the third and fourth directors (Doc 167,
Memorandum of Law in Support of Respondent Karen Lehmann Eisner’s Order to Show Cause
to Enforce a Settlement Agreement Pursuant to CPLR 2104 [OSC Supporting Memo] at 6).
She asserts that: (1) the parties “were unable to agree on the selection of a fifth candidate
from among” the second list prepared by each of the Directors each containing two potential
candidates for the fifth director (OSC Supporting Memo at 7); (2) “[i]t was therefore decided that
AAG Cole-Paul would speak to the candidates, consider the merits of each, and make a final
recommendation as to who should serve as a fifth director” (id.); (3) Director Siegel did not
agree to make the AAG’s selection binding; and (4) the identity of the fifth director has not been
agreed upon and is not part of the settlement agreement.
Director Eisner asserts that Director Siegel obstructed Director Eisner’s attempts to
implement the settlement agreement, including objecting to Director Eisner’s calling for a
Special Meeting and objecting to and refusing to second Director Eisner’s motion at the
November 24, 2020 meeting to increase the size of the Board and to simultaneously elect Rabbi
Mintz and Rabbi Breitowitz as directors (id. at 8; Hirsch aff ¶ 4). At a January 12, 2021 Special
Meeting, Director Siegel maintained her procedural objections to and defeated the motions of
Director Eisner to increase the size of the Board and to elect Rabbis Mintz and Breitowitz as
directors (OSC Supporting Memo at 10; Hirsch aff ¶ 5), and Director Siegel brought forward a
resolution to voluntarily dissolve the Foundation, which was defeated by Director Eisner (Hirsch
aff ¶ 6).
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Her counsel additionally recounts the following. On August 12, 2020, counsel for
Directors Eisner and Siegel agreed in a telephone conference with AAG Cole-Paul to increase
the number of Board directors from three to five (Clark aff, ¶ 6), and also agreed that each party
would choose one director, with the fifth to be mutually “chosen by a method yet to be
determined” (id. ¶ 7). Director Eisner and Siegel each prepared and then exchanged lists of three
potential directors (id. ¶¶ 7, 9). During a second telephone conference, it was agreed that Rabbi
Mintz and Rabbi Breitowitz “would be simultaneously elected as the third and fourth directors,”
the remaining proposed directors having been rejected by either party for various reasons (id. ¶
10). The parties then agreed to exchange a list of two new proposed candidates (id.). Director
Eisner asserts that “[a]s of August 20, 2020, the material terms of the parties’ agreement had
been established” (id. ¶ 11).
Each Director’s list of two proposed candidates with curriculum vitae were exchanged by
email, with Director Eisner proposing Frederick Lawrence and Philip Sunshine and Director
Siegel proposing Perla Blejer and Seymour Adler (id. ¶¶ 12-13); Rabbis Breitowitz and Mintz
were not part of this exchange “as [they] had already agreed on their simultaneous election and
were now seeking to fill only the final remaining vacancy” (id. ¶ 4). Counsel conferred by
telephone on September 9, 2020 “on the selection of a fifth director, though no agreement was
reached” (id. ¶ 15).
Director Eisner’s counsel sent an email to AAG Cole-Pole regarding the impasse and
requested her assistance (id. ¶ 15). AAG Cole-Pole requested by email that each party provide
her with written objections (id. ¶ 16), and each did so (¶¶ 17 – 19). On October 5, 2020, AAG
Cole-Pole hosted another telephone call with counsel “to discuss the status of the parties’
negotiations” (id. 20). “Because the parties had not been able to agree on the selection of a fifth
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director after having exchanged objections, [they] agreed during that call that AAG Cole-Paul
would consider the candidates and make a recommendation as [to] the fifth director (id. ¶ 20).
They discussed whether the Directors would “agree to accept AAG Cole-Paul’s recommendation
for a fifth director as final” (id. ¶ 21). As indicated in emails, Director Eisner agreed as long as
Director Siegel also would agree,2 and counsel for Director Siegel twice emailed that she “was
unwilling to accept AAG’s Cole-Paul recommendation as final” (id. ¶¶ 21-22).
Pointing to AAG Cole-Porter’s email dated October 6, 2020 (Doc 153) as support for her
position, Director Eisner states that AAG Cole-Paul confirmed that “she would be providing her
recommendations as to a fifth director” and that “there are already two new members of the
board, the rabbi’s [sic] that each of your clients chose” (id. ¶ 23). To the knowledge of Director
Eisner’s counsel, Director Siegel’s counsel did not object to AAG Cole-Paul’s statement (id).3
By email dated October 19, 2020, in response to the email from AAG Cole-Paul, counsel for
2
The October 5, 2020 email from counsel for Director Eisner further stated, in relevant portion, that:
“To clarify: the agreement would be that both directors commit in advance that whomever Ms. Cole-Porter
recommends will be elected as a fifth director [of] the Foundation, alongside Rabbis Mintz and Breitowitz, without
any further objection. Please confirm whether Director Siegel agrees to this resolution.”
3
AAG Cole - Porter’s email of October 6, 2020 (Docs 153,185) reads in its entirety as follows:
“Please finalize the Katif project today as it appears that neither board member has an issue with it.
“Also to clarify there are already two new members of the board, the rabbi’s that each of your clients choose.
“I will therefore give my direction as to the 5th member. At this point I am no longer willing to continue to work in
circles, either your clients will accept the 5th person or not. Once that person is chosen, a board meeting needs to be
held within 20 days of the date of the decision to have the three new members sit as board members. If I do not have
total agreement by the parties or even one party I will inform the Court of that if this proceeds in that direction.
“The bottom line for all parties to understand is this-the Foundation is a legal entity and although it has ties to each
of your clients through family it is not for either of them to control individually. If they simply cannot agree perhaps
it is better for the foundation to have an independent board with no family relationships. We simply cannot continue
on in this fashion as there will be deadlock and issues amongst the board.
“I will respond tomorrow with my selection.”
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Director Siegel again refused to accept as final AAG Cole-Paul’s recommendation on a fifth
director (id. ¶¶ 23-24). As a result, “[t]o date, AAG Cole-Paul had not provided her
recommendation for a fifth director” (id. ¶ 25).
On November 19, 2020, counsel for Director Eisner emailed counsel for Director Siegel
that Director Eisner was calling for a November 23, 2020 Special Meeting of the Board “to
implement the terms” of the settlement agreement, specifically to approve resolutions increasing
the Board’s size “from three to four” and simultaneously elect Rabbis Mintz and Breitowitz to
the Board (id. ¶ 26). “Once a fifth director was agreed upon, a subsequent vote was intended to
be called” to increase the number of directors to five (id. ¶ 27). On November 20, 2020, Director
Siegel’s counsel sent a letter rejecting the email call for a Special Meeting, “arguing that [the]
notice was defective under the Foundation’s By-Laws” (id. ¶ 28). On November 21, 2020,
Director Eisner sent Director Siegel an initial letter, followed up by a November 22nd email, of a
formal notice of the Special Meeting to be held on November 24th (id. ¶ 29). On November 23,
2020, Director Siegel sent a letter to Director Eisner rejecting the call for a Special Meeting,
citing provisions of the by-laws (id. ¶ 30). Counsel for Director Eisner sent a November 23, 2020
email to counsel for Director Siegel “explaining in detail the reasons why each of” the objections
“were meritless” (id. ¶ 31). In the following weeks, counsel for Director Siegel sent a number of
letters “attempting to justify why Director Siegel had obstructed implementation of” the
settlement agreement (id. ¶ 32).
On December 23, 2020, Director Siegel sent Director Eisner an email calling for a
Special Meeting of the Board, with the proposed agenda to include a resolution to dissolve the
Foundation (id. ¶ 33). “Notably absent” were any resolutions “to implement the terms of the”
settlement agreement (id. ¶ 34). Therefore, Director Eisner’s counsel sent an email informing
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Director Siegel’s counsel that she was adding two items to the Special Meeting’s agenda:
approval of a resolution to amend the by-laws to increase the number of directors from three to
four and approving a resolution to simultaneously elect Rabbis Breitowitz and Mintz to the
Board (id. ¶ 34). The email also “reaffirmed Director Eisner’s wish to continue the work
necessary to fulfill the Foundation’s charitable and educational purposes, and should Director
Siegel no longer be interested” in the Foundation’s operation “(as evidenced by her attempts at
judicial, and now voluntary, dissolution),” then she was invited “simply to step down as a
director of the Foundation” (id. ¶ 34).
“In light of Director Siegel’s demonstrated obstruction on two separate occasions of the
election of Rabbis Mintz and Breitowitz in accordance with the” settlement agreement (OSC
Supporting Memo at 10), “Director Eisner is forced to seek judicial enforcement” of the
settlement agreement “pursuant to CPLR 2104, and to ask that the Court use its broad equitable
powers to fill the vacant fifth director position from among the candidates already discussed
between the parties” (id. at 10).
Director Eisner contends that the settlement agreement is enforceable pursuant to CPLR
2104 and the court has and should exercise her equitable powers to appoint the fifth director.
Director Siegel’s Contentions and Requested Relief
Director Siegel opposes the motion and cross - moves for an order: (1) denying Director
Eisner’s proposed order; and (2) requiring Director Siegel and Director Eisner to call a special
meeting of the Foundation’s Board to amend the by-laws to ratify: (a) Rabbi Breitowitz and
Rabbi Mintz’s binding selection of a third director from the three proposed candidates and a
fourth, Avi Schick; and (b) the appointments of Rabbi Breitowitz and Rabbi Mintz as the fourth
and fifth directors.
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Director Siegel argues that contrary to Director Eisner’s contentions, there was no
settlement agreement and no meeting of the minds. She relies on the contents of telephone
conferences and email and letter communication, as set forth in her counsel’s affirmation (Doc
174) and accompanying exhibits. Her assertions of what was or was not agreed upon in
telephone conversations and email and letter correspondence differ from those of Director
Eisner; she asserts that certain of Director Eisner’s emails were self-serving; she points to
communications or portions thereof from her counsel, Director Eisner’s counsel, and from AAG
Cole-Porter in support of her contentions. She argues that “[t]he communications between the
parties were simply negotiations that never became a legally enforceable agreement culminating
in a meeting of the minds” (Doc 205, Petitioner’s Memorandum of Law in Opposition to
Respondent’s Order to Show Cause to Enforce a Settlement Agreement Pursuant to CPLR 2104
and in Support of Petitioner’s Cross-Motion for Equitable Relief [Opp and Supporting Memo] at
1). Director Siegel asserts that she has continuously fulfilled her role as director and she was
forced to bring the prior dissolution petition due to Director Eisner’s obstructive behavior.
She recounts that AAG Cole-Paul facilitated months of negotiations regarding changing
the board’s composition “to comply with the By-Laws and to minimize the impact of any future
disputes amongst the directors” (id. at 2). During the August 12, 2020 telephone conference, the
parties discussed adding, but could not agree on, the third director; at the AAG’s suggestion each
party was to and did provide a list of three candidates for a total of five directors.
The purpose of the second telephone conference on August 20, 2020 “was to approve one
selection from each list as to the third and fourth directors, whose appointment was to be
contingent on the selection and appointment of a fifth director” (Eisenberger aff ¶ 5). Director
Siegel selected Rabbi Breitowitz and Director Eisner selected Rabbi Mintz, and “[i] was
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understood by the parties and the AAG that the Rabbis would not be appointed without a fifth
director” (id.). Despite these “preliminary steps” the parties have yet to agree on the fifth director
(Opp & Supp Memo at 2). Director Siegel asserts that it was never agreed to appoint an even
number of directors, and to appoint a four-member board would “potentially cause repeated
gridlock, a situation currently in existence” (id. at 4).
Immediately after the August 20th telephone call, the AAG requested in her August 20th
email that each director submit to her a list of two proposed candidates. Director Eisner proposed
Frederick Lawrence and Philip Sunshine. Director Siegel proposed Dr. Seymour Adler and Dr.
Perla Blejer (the second list). Following Dr. Blejer’s later withdrawal of her candidacy, Director
Siegel proposed in her stead Avi Schick, a former Deputy Attorney General.The parties, without
the AAG’s participation, interviewed the proposed directors on the second list. They “could not
agree on a third selection and [Director Eisner’s counsel] notified the AAG that negotiations
were still ongoing, and asked if she could facilitate another conference call and this time assist in
the discussion” (Eisenberger aff ¶ 8).
In her September 10th response, the AAG requested that the parties provide her with
written objections to the proposed candidates on the second list “in order to help her assist in the
discussion” (id. ¶ 9). Director Siegel and Director Eisner did so on September 15th and October
1, 2020, respectively. By email dated October 5, 2020, Director Eisner’s counsel requested that
the AAG’s “suggestion for the fifth director be binding” and “acknowledged that the director
would be ‘elected as a fifth director [of] the Foundation, alongside Rabbis Mintz and Breitowitz,
without any further objection’” (id. ¶ 11). On October 5th, counsel for Director Siegel “clarified”
her “position that she would be guided by the AAG’s selection of the fifth director, but
respectfully declined to be bound by it” (id. ¶12).
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Director Siegel points to AAG Cole - Porter’s October 6, 2020 email to support her
position that there was no agreement to appoint Rabbis Mintz and Breitowitz without the fifth
director, but cites different portions than those cited by Director Eisner (the email is attached to
the Eisenberger aff as exhibit 11 [Doc 185]). Director Siegel asserts that in that email, the AAG
“reiterated what was initially discussed in August and stated that ‘[o]nce that person [the fifth
board member] was chosen, a board meeting needs to be held within 20 days of the date of the
decision to have the three new members sit as board members,’” and that “[w]e cannot continue
on in this fashion as there will be deadlock and issues amongst the board” (id. ¶ 13). (The
entirety of the email is set forth in fn 3.)
Director Siegel recounts and attaches the exchanges of emails and letters between the
parties’ counsel that followed. Thereafter, on November 10, 2020, AAG Cole-Porter emailed
counsel and “suggested that they meet and confer to resolve the outstanding issue regarding the
final board member” (Eisenberger aff ¶ 17).4
Counsel for Director Eisner then “unilaterally proposed that Mr. Lawrence serve as the
fifth director” (Eisenberger aff ¶ 18). Counsel for Director Siegel suggested that the Directors
“sit with Rabbis Breitowitz and Mintz and have an informal discussion to hear their thoughts on
the four proposed candidates-Mr. Schick, Dr. Adler, Mr. Lawrence, and Mr. Sunshine” (id.).
Director Eisner’s counsel rejected that suggestion, and instead recommended that a formal board
meeting be called “to appoint Rabbis Breitowitz and Mintz before hearing their thoughts and
4
That email stated: “I would ask that you all speak again to see if you can come to some resolution on a 5th member.
I would also suggest that you consider a 5th board member and also the appointment of an alternate who would be
attending all meetings and would vote if there is an abstention or a board member missing from a meeting” (Doc
190).
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insights, despite the parties never agreeing to appoint directorship upon them without the
selection of a fifth director” (id. ¶ 19). Additional emails followed.
On November 19, 2020 Director Eisner “attempted to give” notice of a special meeting,
“acknowledging that we have been negotiating for months and stating that Director Eisner
intends to appoint Rabbis Breitowitz and Mintz” at the special meeting (id. ¶ 21). “As Director
Siegel never agreed to the election of only two directors,” (id. ¶ 22), her counsel sent a
November 20th letter to Director Eisner’s counsel “notifying him of the defective notice of the
meeting and rebuking his decision to call, prematurely, a special meeting knowing that the fifth
director has yet to be selected” (id.). Director Siegel’s counsel reiterated the request to “hold an
informal meeting” which Director Eisner’s counsel rejected.
Subsequently, “in another self-serving response” counsel for Director Siegel sent a
courtesy copy of the notice and an email stating that “both Director Eisner and Director Siegel
have agreed in principle to [the Rabbis’] appointment,” which Director Siegel and her counsel
deny (id. ¶ 23). On November 22, upon Director Siegel’s receipt of the formal notice, she
“responded that Agenda Items V and V1 – to enlarge the board from three to four directors and
to appoint Rabbis Breitowitz and Mintz – were procedurally invalid” (id. ¶ 24).
At the November 24, 2020 special meeting held by Zoom, Director Siegel “objected to
the procedurally deficient Agenda Items V and V1, and further objected to the appointments of
Rabbis Breitowitz and Rabbi Mintz and any fourth director (id. ¶ 25).
In response “to yet another self-serving email” by counsel for Director Eisner, Director
Siegel’s counsel wrote a December 2, 2020 letter “substantiating Director Siegel’s actions at the
November 24, 2020 special meeting and reiterated Director Siegel’s objection due to the
procedural defect” (id. ¶ 26). In response, counsel for Director Eisner stated that Rabbis
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Breitowitz and Mintz “were to be appointed as a ‘package deal,’ as per an alleged agreement
between the parties” (id. ¶ 27). Counsel for Director Siegel “responded unequivocally that
Director Siegel never entered into any agreement to appoint the Rabbis as a package deal” (id.).
Director Siegel called a Special Meeting for January 12, 2021 “to, among other items,
distribute the Foundation’s annual charitable contributions” (id. ¶ 28).5 No further action has
taken place until the filing of the order to show cause.
Director Siegel argues that, contrary to Director Eisner’s contentions, there was no
mutual assent nor a meeting of the minds and therefore there is no settlement agreement to
enforce pursuant to CPLR 2104. She further contends that the court can and should exercise its
equitable powers in the manner she requests.
Discussion
CPLR 2104
“Although stipulations of settlement are favored by the courts and not lightly cast aside,
the threshold issue here is whether there was an enforceable settlement agreement pursuant to
CPLR 2104” (Diarassouba v Urban, 71 AD3d 51, 54 [2d Dept 2009] [internal citation omitted]).
CPLR 2104, entitled “Stipulations,” provides, in pertinent part: “An agreement between parties
or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in
writing subscribed by him or his attorney . . .” “The plain language of the statute directs that the
agreement itself must be in writing, signed by the party (or attorney) to be bound” (Bonnette v
Long Is. Coll. Hosp., 3 NY3d 281, 286 [2004]). “To allow the enforcement of unrecorded oral
settlements would invite an endless stream of collateral litigation over the settlement terms” (id.).
5
Item 5 on the agenda is: “Discussion and approval of Resolution to dissolve the Foundation” (Doc 204).
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“The court cannot be asked to divine what was in counsel’s mind or to seek the intent from other
evidence, nor to resolve disputes arising from sources other than the words of the writing”
(Columbia Broadcasting Sys. v Roskin Distribs., 31 AD2d 22, 24 [1st Dept 1968], affd 28 NY2d
559 [1971]).
“If settlements, once entered, are to be enforced with rigor and without a searching
examination into their substance, it becomes all the more important that they be clear, final and
the product of mutual accord” (Bonnette, 3 NY3d at 286). To meet CPLR 2104’s requirements,
“the terms of any settlement agreement must be in definite and concrete terms” (Sterling Fifth
Assoc. v Carpentille Corp., Inc.,10 AD3d 282, 283 [1st Dept 2004] [internal citations omitted]).
“In addition, since settlement agreements are subject to the principles of contract law, for
an enforceable agreement to exist, all material terms must be set forth and there must be a
manifestation of mutual assent” (Forcelli v Gelco Corp., 109 AD3d 244, 248 [2d Dept 2013]
[internal quotation marks and citations omitted]). For there to be a binding and enforceable
settlement agreement, and not “merely an agreement to agree,” the writing’s “plain language”
must express “the parties’ intention to be bound” and establish “a meeting of the minds regarding
the material terms pertaining to the settlement” (Trolman v Trolman, Glaser & Lithman, P.C.,
114 AD3d 617, 618 [1st Dept 2014]). A meeting of the minds is “a necessary element to
establishing the existence of an enforcement [settlement] agreement” (Misopoulos v Lovebug
Nutrition, Inc., 194 AD3d 447, 448 [1st Dept 2021] [internal citation omitted]) (affirming the
order of the trial court [Hon. Carol R. Edmead, J.] denying defendants’ motion for summary
judgment on their counterclaims for breach of a purported settlement agreement). A binding
agreement, however, is “not rendered ineffective simply because certain non-material terms were
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left for future negotiation, or because it stated that the parties would promptly execute formal
settlement papers” (Trolman,114 AD3d at 618 [internal citations omitted]).
While neither party argues to the contrary, the court notes that under certain
circumstances, correspondence and email communications between authorized counsel that set
forth all the material terms and reflect mutual accord can satisfy the criteria of CPLR 2104 and
constitute a binding and enforceable settlement agreement (See Matter of Philadelphia Ins.
Indem. Co. v Kendall, 197 AD3d 75, 81 [1st Dept 2021]; Jimenez v Yanne, 152 AD3d 434, 434
[1st Dept 2017]; Forcelli, 109 AD3d at 251-252; Newmark & Co. Real Estate Inc. v 2615 East 17
St. Realty LLC, 80 AD 3d 476, 477 (1st Dept 2011); Williamson v Delsener, 59 AD3d 291, 291
(1st Dept 2009]). As to the issue of whether CPLR 2104’s subscription requirement can be met in
an email containing counsel’s prepopulated name in contrast to a printed name at the end of the
email message, the First Department recently held “that this distinction between prepopulated
and retyped signatures in email reflects a needless formality that does not reflect how law is
commonly practiced today” (Matter of Philadelphia Ins. Indem. Co., 197 AD3d at 79). “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” (id. at 79-80).
Applying these principles, the court finds that Director Eisner has failed to demonstrate
that the parties entered into an enforceable and binding settlement agreement pursuant to the
requirements of CPLR 2104. A close reading of the correspondence and emails, in their entirety
and in context, does not show that Director Siegel agreed to the terms of the settlement
agreement in a subscribed writing or a series of such writings. The emails and correspondence do
not set forth the settlement terms in definite and concrete terms and do not express the parties’
mutual intention to be bound. There is no writing subscribed by Director Siegel or her counsel
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that sets forth, incorporates, references or agrees to, in clear language, the material terms of the
settlement agreement. Inferences, interpretations, understandings, a lack of objections, selected
sections of emails or letters from counsel, their parties or AAG Cole-Porter, recollections of
telephone conversations, and agreed-upon portions of a possible agreement, are insufficient to
meet the criteria of CPLR 2104.
Director Eisner appears to be arguing that as Director Siegel agreed that the number of
directors should be increased from three to five and that Rabbi Breitowitz and Rabbi Mintz
Preview
FILED: NEW YORK COUNTY CLERK 08/04/2023 10:30 AM INDEX NO. 650079/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 08/04/2023 Exhibit B FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. CAROL EDMEAD PART 35 Justice ---------------------------------------------------------------------------------X INDEX NO. 151193/2020 BARBARA SIEGEL, THE MANFRED & ANNE LEHMANN FOUNDATION, MOTION DATE 04/29/2021 Petitioner, MOTION SEQ. NO. 003 -v- KAREN EISNER, NEW YORK STATE ATTORNEY DECISION + ORDER ON GENERAL LETITIA JAMES, MOTION Respondent. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206 were read on this motion to/for POST JUDGMENT OTHER . Upon the foregoing documents, it is ORDERED that the motion of respondent Karen Lehmann Eisner, brought by order to show cause, to enforce a settlement agreement pursuant to CPLR 2104 and for certain equitable relief is denied; and it is further ORDERED that the cross-motion of petitioner Barbara Lehman Siegel for certain equitable relief is denied; and it is further ORDERED that this proceeding is removed from active status and is dismissed without prejudice; and it is further ORDERED that the clerk of the court shall enter judgment accordingly; and it is further ORDERED that counsel for respondent shall serve and file a copy of this Decision and Order with Notice of Entry upon petitioner and Assistant Attorney General Donna Cole-Paul within ten (10) days. 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 1 of 22 Motion No. 003 1 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Respondent Karen Lehmann Eisner (Director Eisner) brings this motion by order to show cause (OSC) to enforce a settlement agreement pursuant to CPLR 2104 and for certain equitable relief. Petitioner Barbara Lehman Siegel (Director Siegel) opposes and cross - moves for certain equitable relief. 1 Both the motion and cross motion are denied. By way of brief background, this court, by decision and order dated August 7, 2020 (the decision): (1) denied petitioners’ application for dissolution of The Manfred & Anne Lehmann Foundation (the Foundation); (2) dismissed the petition without prejudice; and (3) denied petitioners’ application for a preliminary injunction. Familiarity with the decision is presumed. In light of the filing of this order to show cause and correspondence from counsel, the court, by order dated March 4, 2021, restored this case to active status. With the able assistance of Assistant Attorney General (AAG) Donna Cole-Paul, Transaction Section Chief of the New York State Attorney General’s Charities Bureau, Director Eisner and Director Siegel and their respective counsel engaged in negotiations concerning the Foundation (NYSCEF Doc. No. [Doc] 140, Supporting Affirmation of Chael J. Clark, Esq. [Clark aff]), ¶ 3; Doc 134, Supporting Affidavit of Emil Hirsch, Esq. [Hirsch aff], ¶ 2); Affirmation of Sheldon Eisenberger, Esq. [Eisenberger aff], ¶ 3). A major focus of the negotiations was the appointment of the requisite third director to the Board of Directors (Board) pursuant to the by-laws, following the 2017 passing of Director Anne Lehman, to amend the by- laws to increase the number of directors from three to five, and to appoint the two additional directors. 1 The order to show cause, returnable April 29, 2021, provided, inter alia, that no reply was allowed. The order to show cause and the cross motion were fully submitted on April 29, 2021. The court does not consider the April 30, 2021 submissions (NYSCEF docs. 206 and 207). 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 2 of 22 Motion No. 003 2 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 The court commends AAG Cole-Paul of the Office of Attorney General Letitia James for her hard work. The court also commends Director Eisner and Director Siegel (the Directors) for their long commitment to and efforts on behalf of the Foundation, a not – for - profit charitable foundation created by their parents, spouses Manfred and Anne Lehman. By so doing, however, the court does not intend to minimize the conflict, difficulty and frustration expressed in the submitted papers and accompanying exhibits, including the email exchanges and correspondence. Director Eisner’s Contentions and Requested Relief Director Eisner moves, pursuant to CPLR 2104, for an order to enforce a settlement agreement between the parties regarding the size and composition of the Board, specifically, to increase the number of directors from three to five and simultaneously elect the two agreed upon directors, Rabbi Yitzchok Breitowitz and Rabbi Adam Mintz (the settlement agreement). She also moves for an order: (1) directing the parties to convene a Special Meeting of the Board within seven days of the order’s issuance to vote to amend Section 4.02 of the Foundation’s by - laws to increase the number of directors from three to five; and (2) to appoint one of three named individuals, Frederick Lawrence, Philip Sunshine, or Seymour Adler (the three proposed candidates), or, alternatively, an individual of the Court’s choosing, to fill the remaining vacant seat. Director Eisner contends that the material terms of the settlement agreement and the parties’ mutual assent to be bound by it are set forth in a series of email and letter exchanges and telephone conferences that occurred over nearly five months of negotiations. She relies on the content of the communications or portions thereof, the inferences she asserts are evident by those communications, and a lack of objection to certain content of the communications. She argues 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 3 of 22 Motion No. 003 3 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 that the parties “readily acknowledged and never disputed” that they agreed that the number of Board directors would be increased from three to five and that Rabbi Adam Mintz and Rabbi Yitzchak Breitowitz would be simultaneously elected as the third and fourth directors (Doc 167, Memorandum of Law in Support of Respondent Karen Lehmann Eisner’s Order to Show Cause to Enforce a Settlement Agreement Pursuant to CPLR 2104 [OSC Supporting Memo] at 6). She asserts that: (1) the parties “were unable to agree on the selection of a fifth candidate from among” the second list prepared by each of the Directors each containing two potential candidates for the fifth director (OSC Supporting Memo at 7); (2) “[i]t was therefore decided that AAG Cole-Paul would speak to the candidates, consider the merits of each, and make a final recommendation as to who should serve as a fifth director” (id.); (3) Director Siegel did not agree to make the AAG’s selection binding; and (4) the identity of the fifth director has not been agreed upon and is not part of the settlement agreement. Director Eisner asserts that Director Siegel obstructed Director Eisner’s attempts to implement the settlement agreement, including objecting to Director Eisner’s calling for a Special Meeting and objecting to and refusing to second Director Eisner’s motion at the November 24, 2020 meeting to increase the size of the Board and to simultaneously elect Rabbi Mintz and Rabbi Breitowitz as directors (id. at 8; Hirsch aff ¶ 4). At a January 12, 2021 Special Meeting, Director Siegel maintained her procedural objections to and defeated the motions of Director Eisner to increase the size of the Board and to elect Rabbis Mintz and Breitowitz as directors (OSC Supporting Memo at 10; Hirsch aff ¶ 5), and Director Siegel brought forward a resolution to voluntarily dissolve the Foundation, which was defeated by Director Eisner (Hirsch aff ¶ 6). 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 4 of 22 Motion No. 003 4 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Her counsel additionally recounts the following. On August 12, 2020, counsel for Directors Eisner and Siegel agreed in a telephone conference with AAG Cole-Paul to increase the number of Board directors from three to five (Clark aff, ¶ 6), and also agreed that each party would choose one director, with the fifth to be mutually “chosen by a method yet to be determined” (id. ¶ 7). Director Eisner and Siegel each prepared and then exchanged lists of three potential directors (id. ¶¶ 7, 9). During a second telephone conference, it was agreed that Rabbi Mintz and Rabbi Breitowitz “would be simultaneously elected as the third and fourth directors,” the remaining proposed directors having been rejected by either party for various reasons (id. ¶ 10). The parties then agreed to exchange a list of two new proposed candidates (id.). Director Eisner asserts that “[a]s of August 20, 2020, the material terms of the parties’ agreement had been established” (id. ¶ 11). Each Director’s list of two proposed candidates with curriculum vitae were exchanged by email, with Director Eisner proposing Frederick Lawrence and Philip Sunshine and Director Siegel proposing Perla Blejer and Seymour Adler (id. ¶¶ 12-13); Rabbis Breitowitz and Mintz were not part of this exchange “as [they] had already agreed on their simultaneous election and were now seeking to fill only the final remaining vacancy” (id. ¶ 4). Counsel conferred by telephone on September 9, 2020 “on the selection of a fifth director, though no agreement was reached” (id. ¶ 15). Director Eisner’s counsel sent an email to AAG Cole-Pole regarding the impasse and requested her assistance (id. ¶ 15). AAG Cole-Pole requested by email that each party provide her with written objections (id. ¶ 16), and each did so (¶¶ 17 – 19). On October 5, 2020, AAG Cole-Pole hosted another telephone call with counsel “to discuss the status of the parties’ negotiations” (id. 20). “Because the parties had not been able to agree on the selection of a fifth 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 5 of 22 Motion No. 003 5 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 director after having exchanged objections, [they] agreed during that call that AAG Cole-Paul would consider the candidates and make a recommendation as [to] the fifth director (id. ¶ 20). They discussed whether the Directors would “agree to accept AAG Cole-Paul’s recommendation for a fifth director as final” (id. ¶ 21). As indicated in emails, Director Eisner agreed as long as Director Siegel also would agree,2 and counsel for Director Siegel twice emailed that she “was unwilling to accept AAG’s Cole-Paul recommendation as final” (id. ¶¶ 21-22). Pointing to AAG Cole-Porter’s email dated October 6, 2020 (Doc 153) as support for her position, Director Eisner states that AAG Cole-Paul confirmed that “she would be providing her recommendations as to a fifth director” and that “there are already two new members of the board, the rabbi’s [sic] that each of your clients chose” (id. ¶ 23). To the knowledge of Director Eisner’s counsel, Director Siegel’s counsel did not object to AAG Cole-Paul’s statement (id).3 By email dated October 19, 2020, in response to the email from AAG Cole-Paul, counsel for 2 The October 5, 2020 email from counsel for Director Eisner further stated, in relevant portion, that: “To clarify: the agreement would be that both directors commit in advance that whomever Ms. Cole-Porter recommends will be elected as a fifth director [of] the Foundation, alongside Rabbis Mintz and Breitowitz, without any further objection. Please confirm whether Director Siegel agrees to this resolution.” 3 AAG Cole - Porter’s email of October 6, 2020 (Docs 153,185) reads in its entirety as follows: “Please finalize the Katif project today as it appears that neither board member has an issue with it. “Also to clarify there are already two new members of the board, the rabbi’s that each of your clients choose. “I will therefore give my direction as to the 5th member. At this point I am no longer willing to continue to work in circles, either your clients will accept the 5th person or not. Once that person is chosen, a board meeting needs to be held within 20 days of the date of the decision to have the three new members sit as board members. If I do not have total agreement by the parties or even one party I will inform the Court of that if this proceeds in that direction. “The bottom line for all parties to understand is this-the Foundation is a legal entity and although it has ties to each of your clients through family it is not for either of them to control individually. If they simply cannot agree perhaps it is better for the foundation to have an independent board with no family relationships. We simply cannot continue on in this fashion as there will be deadlock and issues amongst the board. “I will respond tomorrow with my selection.” 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 6 of 22 Motion No. 003 6 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Director Siegel again refused to accept as final AAG Cole-Paul’s recommendation on a fifth director (id. ¶¶ 23-24). As a result, “[t]o date, AAG Cole-Paul had not provided her recommendation for a fifth director” (id. ¶ 25). On November 19, 2020, counsel for Director Eisner emailed counsel for Director Siegel that Director Eisner was calling for a November 23, 2020 Special Meeting of the Board “to implement the terms” of the settlement agreement, specifically to approve resolutions increasing the Board’s size “from three to four” and simultaneously elect Rabbis Mintz and Breitowitz to the Board (id. ¶ 26). “Once a fifth director was agreed upon, a subsequent vote was intended to be called” to increase the number of directors to five (id. ¶ 27). On November 20, 2020, Director Siegel’s counsel sent a letter rejecting the email call for a Special Meeting, “arguing that [the] notice was defective under the Foundation’s By-Laws” (id. ¶ 28). On November 21, 2020, Director Eisner sent Director Siegel an initial letter, followed up by a November 22nd email, of a formal notice of the Special Meeting to be held on November 24th (id. ¶ 29). On November 23, 2020, Director Siegel sent a letter to Director Eisner rejecting the call for a Special Meeting, citing provisions of the by-laws (id. ¶ 30). Counsel for Director Eisner sent a November 23, 2020 email to counsel for Director Siegel “explaining in detail the reasons why each of” the objections “were meritless” (id. ¶ 31). In the following weeks, counsel for Director Siegel sent a number of letters “attempting to justify why Director Siegel had obstructed implementation of” the settlement agreement (id. ¶ 32). On December 23, 2020, Director Siegel sent Director Eisner an email calling for a Special Meeting of the Board, with the proposed agenda to include a resolution to dissolve the Foundation (id. ¶ 33). “Notably absent” were any resolutions “to implement the terms of the” settlement agreement (id. ¶ 34). Therefore, Director Eisner’s counsel sent an email informing 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 7 of 22 Motion No. 003 7 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Director Siegel’s counsel that she was adding two items to the Special Meeting’s agenda: approval of a resolution to amend the by-laws to increase the number of directors from three to four and approving a resolution to simultaneously elect Rabbis Breitowitz and Mintz to the Board (id. ¶ 34). The email also “reaffirmed Director Eisner’s wish to continue the work necessary to fulfill the Foundation’s charitable and educational purposes, and should Director Siegel no longer be interested” in the Foundation’s operation “(as evidenced by her attempts at judicial, and now voluntary, dissolution),” then she was invited “simply to step down as a director of the Foundation” (id. ¶ 34). “In light of Director Siegel’s demonstrated obstruction on two separate occasions of the election of Rabbis Mintz and Breitowitz in accordance with the” settlement agreement (OSC Supporting Memo at 10), “Director Eisner is forced to seek judicial enforcement” of the settlement agreement “pursuant to CPLR 2104, and to ask that the Court use its broad equitable powers to fill the vacant fifth director position from among the candidates already discussed between the parties” (id. at 10). Director Eisner contends that the settlement agreement is enforceable pursuant to CPLR 2104 and the court has and should exercise her equitable powers to appoint the fifth director. Director Siegel’s Contentions and Requested Relief Director Siegel opposes the motion and cross - moves for an order: (1) denying Director Eisner’s proposed order; and (2) requiring Director Siegel and Director Eisner to call a special meeting of the Foundation’s Board to amend the by-laws to ratify: (a) Rabbi Breitowitz and Rabbi Mintz’s binding selection of a third director from the three proposed candidates and a fourth, Avi Schick; and (b) the appointments of Rabbi Breitowitz and Rabbi Mintz as the fourth and fifth directors. 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 8 of 22 Motion No. 003 8 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Director Siegel argues that contrary to Director Eisner’s contentions, there was no settlement agreement and no meeting of the minds. She relies on the contents of telephone conferences and email and letter communication, as set forth in her counsel’s affirmation (Doc 174) and accompanying exhibits. Her assertions of what was or was not agreed upon in telephone conversations and email and letter correspondence differ from those of Director Eisner; she asserts that certain of Director Eisner’s emails were self-serving; she points to communications or portions thereof from her counsel, Director Eisner’s counsel, and from AAG Cole-Porter in support of her contentions. She argues that “[t]he communications between the parties were simply negotiations that never became a legally enforceable agreement culminating in a meeting of the minds” (Doc 205, Petitioner’s Memorandum of Law in Opposition to Respondent’s Order to Show Cause to Enforce a Settlement Agreement Pursuant to CPLR 2104 and in Support of Petitioner’s Cross-Motion for Equitable Relief [Opp and Supporting Memo] at 1). Director Siegel asserts that she has continuously fulfilled her role as director and she was forced to bring the prior dissolution petition due to Director Eisner’s obstructive behavior. She recounts that AAG Cole-Paul facilitated months of negotiations regarding changing the board’s composition “to comply with the By-Laws and to minimize the impact of any future disputes amongst the directors” (id. at 2). During the August 12, 2020 telephone conference, the parties discussed adding, but could not agree on, the third director; at the AAG’s suggestion each party was to and did provide a list of three candidates for a total of five directors. The purpose of the second telephone conference on August 20, 2020 “was to approve one selection from each list as to the third and fourth directors, whose appointment was to be contingent on the selection and appointment of a fifth director” (Eisenberger aff ¶ 5). Director Siegel selected Rabbi Breitowitz and Director Eisner selected Rabbi Mintz, and “[i] was 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 9 of 22 Motion No. 003 9 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 understood by the parties and the AAG that the Rabbis would not be appointed without a fifth director” (id.). Despite these “preliminary steps” the parties have yet to agree on the fifth director (Opp & Supp Memo at 2). Director Siegel asserts that it was never agreed to appoint an even number of directors, and to appoint a four-member board would “potentially cause repeated gridlock, a situation currently in existence” (id. at 4). Immediately after the August 20th telephone call, the AAG requested in her August 20th email that each director submit to her a list of two proposed candidates. Director Eisner proposed Frederick Lawrence and Philip Sunshine. Director Siegel proposed Dr. Seymour Adler and Dr. Perla Blejer (the second list). Following Dr. Blejer’s later withdrawal of her candidacy, Director Siegel proposed in her stead Avi Schick, a former Deputy Attorney General.The parties, without the AAG’s participation, interviewed the proposed directors on the second list. They “could not agree on a third selection and [Director Eisner’s counsel] notified the AAG that negotiations were still ongoing, and asked if she could facilitate another conference call and this time assist in the discussion” (Eisenberger aff ¶ 8). In her September 10th response, the AAG requested that the parties provide her with written objections to the proposed candidates on the second list “in order to help her assist in the discussion” (id. ¶ 9). Director Siegel and Director Eisner did so on September 15th and October 1, 2020, respectively. By email dated October 5, 2020, Director Eisner’s counsel requested that the AAG’s “suggestion for the fifth director be binding” and “acknowledged that the director would be ‘elected as a fifth director [of] the Foundation, alongside Rabbis Mintz and Breitowitz, without any further objection’” (id. ¶ 11). On October 5th, counsel for Director Siegel “clarified” her “position that she would be guided by the AAG’s selection of the fifth director, but respectfully declined to be bound by it” (id. ¶12). 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 10 of 22 Motion No. 003 10 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Director Siegel points to AAG Cole - Porter’s October 6, 2020 email to support her position that there was no agreement to appoint Rabbis Mintz and Breitowitz without the fifth director, but cites different portions than those cited by Director Eisner (the email is attached to the Eisenberger aff as exhibit 11 [Doc 185]). Director Siegel asserts that in that email, the AAG “reiterated what was initially discussed in August and stated that ‘[o]nce that person [the fifth board member] was chosen, a board meeting needs to be held within 20 days of the date of the decision to have the three new members sit as board members,’” and that “[w]e cannot continue on in this fashion as there will be deadlock and issues amongst the board” (id. ¶ 13). (The entirety of the email is set forth in fn 3.) Director Siegel recounts and attaches the exchanges of emails and letters between the parties’ counsel that followed. Thereafter, on November 10, 2020, AAG Cole-Porter emailed counsel and “suggested that they meet and confer to resolve the outstanding issue regarding the final board member” (Eisenberger aff ¶ 17).4 Counsel for Director Eisner then “unilaterally proposed that Mr. Lawrence serve as the fifth director” (Eisenberger aff ¶ 18). Counsel for Director Siegel suggested that the Directors “sit with Rabbis Breitowitz and Mintz and have an informal discussion to hear their thoughts on the four proposed candidates-Mr. Schick, Dr. Adler, Mr. Lawrence, and Mr. Sunshine” (id.). Director Eisner’s counsel rejected that suggestion, and instead recommended that a formal board meeting be called “to appoint Rabbis Breitowitz and Mintz before hearing their thoughts and 4 That email stated: “I would ask that you all speak again to see if you can come to some resolution on a 5th member. I would also suggest that you consider a 5th board member and also the appointment of an alternate who would be attending all meetings and would vote if there is an abstention or a board member missing from a meeting” (Doc 190). 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 11 of 22 Motion No. 003 11 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 insights, despite the parties never agreeing to appoint directorship upon them without the selection of a fifth director” (id. ¶ 19). Additional emails followed. On November 19, 2020 Director Eisner “attempted to give” notice of a special meeting, “acknowledging that we have been negotiating for months and stating that Director Eisner intends to appoint Rabbis Breitowitz and Mintz” at the special meeting (id. ¶ 21). “As Director Siegel never agreed to the election of only two directors,” (id. ¶ 22), her counsel sent a November 20th letter to Director Eisner’s counsel “notifying him of the defective notice of the meeting and rebuking his decision to call, prematurely, a special meeting knowing that the fifth director has yet to be selected” (id.). Director Siegel’s counsel reiterated the request to “hold an informal meeting” which Director Eisner’s counsel rejected. Subsequently, “in another self-serving response” counsel for Director Siegel sent a courtesy copy of the notice and an email stating that “both Director Eisner and Director Siegel have agreed in principle to [the Rabbis’] appointment,” which Director Siegel and her counsel deny (id. ¶ 23). On November 22, upon Director Siegel’s receipt of the formal notice, she “responded that Agenda Items V and V1 – to enlarge the board from three to four directors and to appoint Rabbis Breitowitz and Mintz – were procedurally invalid” (id. ¶ 24). At the November 24, 2020 special meeting held by Zoom, Director Siegel “objected to the procedurally deficient Agenda Items V and V1, and further objected to the appointments of Rabbis Breitowitz and Rabbi Mintz and any fourth director (id. ¶ 25). In response “to yet another self-serving email” by counsel for Director Eisner, Director Siegel’s counsel wrote a December 2, 2020 letter “substantiating Director Siegel’s actions at the November 24, 2020 special meeting and reiterated Director Siegel’s objection due to the procedural defect” (id. ¶ 26). In response, counsel for Director Eisner stated that Rabbis 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 12 of 22 Motion No. 003 12 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 Breitowitz and Mintz “were to be appointed as a ‘package deal,’ as per an alleged agreement between the parties” (id. ¶ 27). Counsel for Director Siegel “responded unequivocally that Director Siegel never entered into any agreement to appoint the Rabbis as a package deal” (id.). Director Siegel called a Special Meeting for January 12, 2021 “to, among other items, distribute the Foundation’s annual charitable contributions” (id. ¶ 28).5 No further action has taken place until the filing of the order to show cause. Director Siegel argues that, contrary to Director Eisner’s contentions, there was no mutual assent nor a meeting of the minds and therefore there is no settlement agreement to enforce pursuant to CPLR 2104. She further contends that the court can and should exercise its equitable powers in the manner she requests. Discussion CPLR 2104 “Although stipulations of settlement are favored by the courts and not lightly cast aside, the threshold issue here is whether there was an enforceable settlement agreement pursuant to CPLR 2104” (Diarassouba v Urban, 71 AD3d 51, 54 [2d Dept 2009] [internal citation omitted]). CPLR 2104, entitled “Stipulations,” provides, in pertinent part: “An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in writing subscribed by him or his attorney . . .” “The plain language of the statute directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound” (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286 [2004]). “To allow the enforcement of unrecorded oral settlements would invite an endless stream of collateral litigation over the settlement terms” (id.). 5 Item 5 on the agenda is: “Discussion and approval of Resolution to dissolve the Foundation” (Doc 204). 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 13 of 22 Motion No. 003 13 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 “The court cannot be asked to divine what was in counsel’s mind or to seek the intent from other evidence, nor to resolve disputes arising from sources other than the words of the writing” (Columbia Broadcasting Sys. v Roskin Distribs., 31 AD2d 22, 24 [1st Dept 1968], affd 28 NY2d 559 [1971]). “If settlements, once entered, are to be enforced with rigor and without a searching examination into their substance, it becomes all the more important that they be clear, final and the product of mutual accord” (Bonnette, 3 NY3d at 286). To meet CPLR 2104’s requirements, “the terms of any settlement agreement must be in definite and concrete terms” (Sterling Fifth Assoc. v Carpentille Corp., Inc.,10 AD3d 282, 283 [1st Dept 2004] [internal citations omitted]). “In addition, since settlement agreements are subject to the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent” (Forcelli v Gelco Corp., 109 AD3d 244, 248 [2d Dept 2013] [internal quotation marks and citations omitted]). For there to be a binding and enforceable settlement agreement, and not “merely an agreement to agree,” the writing’s “plain language” must express “the parties’ intention to be bound” and establish “a meeting of the minds regarding the material terms pertaining to the settlement” (Trolman v Trolman, Glaser & Lithman, P.C., 114 AD3d 617, 618 [1st Dept 2014]). A meeting of the minds is “a necessary element to establishing the existence of an enforcement [settlement] agreement” (Misopoulos v Lovebug Nutrition, Inc., 194 AD3d 447, 448 [1st Dept 2021] [internal citation omitted]) (affirming the order of the trial court [Hon. Carol R. Edmead, J.] denying defendants’ motion for summary judgment on their counterclaims for breach of a purported settlement agreement). A binding agreement, however, is “not rendered ineffective simply because certain non-material terms were 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 14 of 22 Motion No. 003 14 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 left for future negotiation, or because it stated that the parties would promptly execute formal settlement papers” (Trolman,114 AD3d at 618 [internal citations omitted]). While neither party argues to the contrary, the court notes that under certain circumstances, correspondence and email communications between authorized counsel that set forth all the material terms and reflect mutual accord can satisfy the criteria of CPLR 2104 and constitute a binding and enforceable settlement agreement (See Matter of Philadelphia Ins. Indem. Co. v Kendall, 197 AD3d 75, 81 [1st Dept 2021]; Jimenez v Yanne, 152 AD3d 434, 434 [1st Dept 2017]; Forcelli, 109 AD3d at 251-252; Newmark & Co. Real Estate Inc. v 2615 East 17 St. Realty LLC, 80 AD 3d 476, 477 (1st Dept 2011); Williamson v Delsener, 59 AD3d 291, 291 (1st Dept 2009]). As to the issue of whether CPLR 2104’s subscription requirement can be met in an email containing counsel’s prepopulated name in contrast to a printed name at the end of the email message, the First Department recently held “that this distinction between prepopulated and retyped signatures in email reflects a needless formality that does not reflect how law is commonly practiced today” (Matter of Philadelphia Ins. Indem. Co., 197 AD3d at 79). “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” (id. at 79-80). Applying these principles, the court finds that Director Eisner has failed to demonstrate that the parties entered into an enforceable and binding settlement agreement pursuant to the requirements of CPLR 2104. A close reading of the correspondence and emails, in their entirety and in context, does not show that Director Siegel agreed to the terms of the settlement agreement in a subscribed writing or a series of such writings. The emails and correspondence do not set forth the settlement terms in definite and concrete terms and do not express the parties’ mutual intention to be bound. There is no writing subscribed by Director Siegel or her counsel 151193/2020 SIEGEL, BARBARA LEHMANN vs. EISNER, KAREN LEHMANN Page 15 of 22 Motion No. 003 15 of 22 FILED: NEW YORK COUNTY CLERK 08/04/2023 11/05/2021 10:30 02:37 AM PM INDEX NO. 650079/2023 151193/2020 NYSCEF DOC. NO. 92 208 RECEIVED NYSCEF: 08/04/2023 11/05/2021 that sets forth, incorporates, references or agrees to, in clear language, the material terms of the settlement agreement. Inferences, interpretations, understandings, a lack of objections, selected sections of emails or letters from counsel, their parties or AAG Cole-Porter, recollections of telephone conversations, and agreed-upon portions of a possible agreement, are insufficient to meet the criteria of CPLR 2104. Director Eisner appears to be arguing that as Director Siegel agreed that the number of directors should be increased from three to five and that Rabbi Breitowitz and Rabbi Mintz