An email message is capable of conforming to the criteria of CPLR 2104 with respect to “stipulating settlement” of the matter in dispute

An email message is capable of conforming to the criteria of CPLR 2104 with respect to “stipulating settlement” of the matter in dispute

Forcelli v Gelco Corp., 2013 NY Slip Op 05437, Appellate Division, Second Department

In this action, which involved the settlement of litigation resulting from an automobile accident, the Appellate Division concluded that an email message can satisfy the criteria of CPLR 2104 so as to constitute a binding and enforceable stipulation of settlement. The court explained that stipulations of settlement are judicially favored and will not lightly be set aside and “are to be enforced with rigor and without a searching examination into their substance' as long as they are clear, final and the product of mutual accord."

To be enforceable, stipulations of settlement must conform to the criteria set forth in CPLR 2104. Where the settlement was not made in open court, CPLR 2104 provides: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney."

Here, said the court, an email message set forth the material terms of the agreement -- “the acceptance by the plaintiffs' counsel of an offer of $230,000 to settle the case in exchange for a release in favor of the defendants, and contained an expression of mutual assent.” Significantly, said the court, the settlement was not conditioned on any further occurrence, such as the outcome of the motion for summary judgment or the formal execution of the release and stipulation of dismissal by these defendants and related entities. “

Courts have long recognized that traditional correspondence can qualify as an enforceable stipulation of settlement under CPLR 2104 as a letter can be considered "subscribed," since letters are usually signed at the end by the author thereof. However, email messages cannot be signed in the traditional sense.

Nevertheless, said the court, this lack of "subscription" in the form of a handwritten signature has not prevented other courts from concluding that an email message, which is otherwise valid as a stipulation between parties, can be enforced pursuant to CPLR 2104.

In Williamson v Delsener (59 AD3d 291, 291), the Appellate Division, First Department, stated that "emails exchanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds." Similarly, in Brighton Inv., Ltd. v Har-Zvi (88 AD3d 1220, 1222), the Appellate Division, Third Department, ruled that "an exchange of emails may constitute an enforceable contract, even if a party subsequently fails to sign implementing documents, when the communications are sufficiently clear and concrete to establish such an intent."

The court’s rationale: “Given the now widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of CPLR 2104 simply because they cannot be physically signed in a traditional fashion.”

As the email message contained the attorney’s printed name at the end thereof, in contrast to an "electronic signature" as defined by the Electronic Signatures and Records Act, the court decided that the record supports the conclusion that the attorney, in effect, signed the email message.

Accordingly, the Appellate Division ruled that where “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 decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05437.htm

Comptroller DiNapoli releases municipal audits

Comptroller DiNapoli releases municipal audits

Click on text highlighted in bold to access the full report. 

On August 1, 2013, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Town of Benson,

Town of Brasher,

Cayuga County,

Village of Delhi,

Dutchess County,

Ellenburg Center No. 15 Fire District,

Franklin Square Water District,

Town of Humphrey,

Lewis County,

Niagara County,

Oswego County,

Village of Penn Yan,

Rensselaer County,

Saratoga County,

Steuben County and

Sullivan County

Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances

Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances

Decisions of the Commissioner of Education, Decision No. 16,510

A school psychologist, [P] was given a “counseling letter” as a result of alleged professional deficiencies and provided with a draft “Teacher Improvement Plan” [TIP]. Following discussions concerning the plan, a final TIP was agreed to and signed by the high school principal, the middle school principal and P.

P then filed an appeal with the Commissioner of Education alleging that although he was not rated “unsatisfactory,” the school district implemented a TIP for him without his consent and that he was not consulted in developing the TIP. Such actions, P argued were in violation of 8 NYCRR §100.2(o) of the Commissioner’s Regulations. P asked the Commissioner to direct the district to withdraw the TIP.

The district, on the other hand, contended that although P's TIP was not implemented as a result of an unsatisfactory rating pursuant to §100.2(o),  §100.2(o) does not preclude the promulgation of a TIP in the absence of an unsatisfactory evaluation under appropriate circumstances. The district also claimed that P was consulted in developing the challenged TIP.

Addressing the merits of P’s appeal, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, citing 8 NYCRR §275.10.

§100.2(o) of the Commissioner’s regulations requires an annual evaluation of certain teachers, including pupil personnel service providers such as “school psychologists.” At the time P’s TIP was promulgated §100.2(o) provided as follows:

Teacher improvement. The plan shall describe how the school district or BOCES addresses the performance of teachers whose performance is evaluated as unsatisfactory, and shall require the development of a teacher improvement plan for teachers so evaluated, which shall be developed by the district ... in consultation with such teacher.

The Commissioner ruled that although §100.2(o) requires a school district to issue a TIP in the event the educator receives an unsatisfactory evaluation, nothing in §100.2(o), or any other statute or regulation, specifically bars the promulgation of a TIP where professional deficiencies are noted by means other than an evaluation. Accordingly, said the Commissioner, P failed to demonstrate that  §100.2(o)'s requirement that a TIP be developed for an educator receiving an unsatisfactory evaluation precludes the use of a TIP in other circumstances.

The Commissioner also determined that P’s claim that he was not consulted in the development of the TIP was not supported in the record.

P also contended that a decision to promulgate a TIP outside of the parameters set forth in §100.2(o) is subject to collective bargaining.

The Commissioner dismissed this aspect of the appeal explaining that Article 14 of the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [PERB] and, therefor, he “lack jurisdiction" to address the collective bargaining allegations raised by P in this appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16510.pdf

Internal Revenue Service to host a free “Online Presentation” for government employers rehiring former employees

Internal Revenue Service to host a free “Online Presentation” for government employers rehiring former employees

Source: The Internal Revenue Service 

The Internal Revenue Service [IRS] advises that the payroll tax treatment of a former government employee returning to work for the same entity may be different than it was prior to their retirement or separation. The "Online Presentation" [This presentation ] will help government employers understand how to comply with "the complicated and often misunderstood tax implications of hiring a former employee."

The presentation will address 

1. Section 218 Agreements [see below];

2. The roles the IRS, Social Security Administration and the National Conference of State Social Security Administrators have in determining the employment tax classification of a rehired annuitant;

3. Guidelines and examples on how to approach different rehired annuitant scenarios; and

4. How to seek assistance;

The presentation will be offered August 15, 2013 at 2 p.m. Eastern Time

Click here to register for this event. IRS suggests registering “as soon as possible because space is limited.”

Please send any questions you may have concerning this presentation via e-mail to the Internal Revenue Service at  te.ge.fslg.outreach@irs.gov

The following has been adopted from an IRS Section 218 Agreements and Social Security Coverage posting on the Internet

The IRS advises that a state and local government employees may be covered for social security and Medicare either by mandatory coverage, or under a Section 218 Agreement between the state and the Social Security Administration. Under some circumstances, an employee may be excluded from social security or Medicare, or both.

Sometimes, notes the IRS, employers fail to properly apply the terms of coverage to their employees. This leads to incorrect reporting, including non-reporting or erroneous coverage. Once incorrect reporting occurs it will often continue until the Social Security Administration or the IRS becomes involved; typically, during claims processing or examinations and audits.

Social security coverage can vary widely within a state or even a local area. IRS cautions public employers not to make an assumption about Section 218 coverage for an entity and whether it is in compliance with all applicable laws merely because of the status of a similar entity, either in the same or a different state.

For Section 218 coverage questions, public employers should contact its state Social Security Administrator (see www.ncsssa.org). For mandatory coverage questions, public employers should contact an IRS FSLG Specialist (see www.irs.gov/govts for a directory).

Another resource: The SSA State and Local Government Employers website at www.ssa.gov/slge.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending July 27, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Applauds NYSE Euronext for Joining the United Nations’ Sustainable Stock Exchanges Initiative

New York State Comptroller Thomas P. DiNapoli Wednesday commended NYSE Euronext, the parent company of the New York Stock Exchange (NYSE), for joining the United Nations Sustainable Stock Exchanges Initiative. NYSE Euronext made the announcement Wednesday at an event held at the NYSE with DiNapoli, NYSE Euronext CEO Duncan L. Niederauer and United Nations Secretary–General Ban Ki–moon.

DiNapoli: State Overpaid $7.8 Million For Hospital Admissions

The state Department of Health improperly paid hospitals $7.8 million for lengthy acute care admissions because hospitals billed Medicaid for higher levels of care than was actually delivered to patients, according to an auditreleased Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: OPWDD Overpaid Contractor $1.1 Million

The state Office for People with Developmental Disabilities (OPWDD) overpaid a contractor by more than $1.1 million because it based payments on budgeted, rather than actual expenses, according to an auditreleased Friday by New York State Comptroller Thomas P. DiNapoli. DiNapoli’s auditors raised concerns that if OPWDD continues to pay contractors based on budgeted rather than actual cost, millions of dollars in additional overpayments could be made to contractors.

DiNapoli: Economic Recovery Helps Balance New York City Budget

A strong economy, bolstered by job gains that have outpaced the nation, have helped balance the New York City Fiscal Year 2014 budget and maintained services at current levels without raising taxes, according to a reviewof the city’s financial plan released Tuesday at the annual meeting of the Financial Control Board by New York State Comptroller Thomas P. DiNapoli. DiNapoli cautioned that despite smaller out–year budget gaps, significant risks to the budget remain.