Email “Signature” | Attorney Disqualification | Teacher’s Facebook

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Printed Email “Signature” is Valid to Enforce a Settlement

Printed Email “Signature” is Valid to Enforce a SettlementRecently in Forcelli v. Gelco Corp., __ A.D.3d __ (2d Dept. 2013) an Appellate Court unanimously held that an agent for the insurer of a motor vehicle, by purposely entering her name to the message summing up the terms of a settlement in an automobile accident case, provided the “subscription” to the written statement required for an enforceable stipulation under CPLR 2104.

The State’s procedural statute provides “an agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney.”

The insurance agent, who had authority to settle the case on behalf of the insured, sent an email message to the plaintiff’s counsel with a copy to the co-defendant’s representative stating the following:

Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have your client executed [sic] the attached Medicare form as no settlement check can be issued without this form. You also agreed to prepare the release, please included [sic] the following names: Xerox Corporation, Gelco Corporation, Mitchell G. Maller and Sedgwick CMS. Please forward the release and dismissal for my review. Thanks Brenda Greene.

On the same day the plaintiff’s attorney responded with the required settlement documents, the State Supreme Court had issued an order granting the defendant’s motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it. In light of this, the defendant attempted to disavow the email settlement offer.

The plaintiff moved to, among other things, enforce the settlement agreement as set forth in the email message, and the Supreme Court granted that motion. On appeal to the Second Department by the insurance company, the Court recognized that “[s]tipulations of settlement are judicially favored, 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.’” The court also found that the email message set forth the material terms of the settlement, so the main issue was whether or not the settlement agreement was “subscribed” or otherwise signed within the meaning of the CPLR. The court held that it was, reasoning as follows:

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.

The Court concluded that this reasoning is “buttressed by reference to the New York State Technology Law,” enacted in 2002, which is expressly “intended to support and encourage electronic commerce and electronic government by allowing people to use electronic signatures and electronic records in lieu of handwritten signatures and paper documents.” Specifically, section 302(3) of this statute states that an “‘[e]lectronic signature’ shall mean an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.” Section 304(2) of the statute states that “an electronic signature may be used by a person in lieu of a signature affixed by hand [and] [t]he use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.”

Thus, the Court concluded that the email message ending with the simple expression, “Thanks Brenda Greene,” “indicates that the author purposefully added her name to the particular email message, rather than a situation where the sender’s email software has been programmed to automatically generate the name of the email sender, along with other identifying information, every time an email message is sent.” It appears that the physical typing of the sender’s name at the conclusion of the text made all the difference. The Court concluded:

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.

Had the email been concluded with an automatically generated signature block, instead of the physically typed name, the Court’s opinion suggests the outcome would have been different.

Attorney and Firm Disqualified

Attorney and Firm DisqualifiedIn Town of Oyster Bay v. 55 Motor Ave. Co., LLC, ___ A.D.3d ___, 2013 N.Y. Slip. Op. 05636 (2d Dept. Aug. 14, 2013), this firm successfully represented the appellants, in reversing an order of the Supreme Court which denied their motion to disqualify an attorney and his law firm from their continued representation of the Town of Oyster Bay in two related condemnation proceedings.

As the Second Department noted, the rule in New York is that “[a] party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse.” The attorney denied the existence of a prior representation, and further argued that he did not learn any confidential information from any such relationship. Further, he argued that due to the nature of condemnation proceedings, and the reliance on expert reports and testimony, even if such a relationship existed, he could not have learned any relevant confidential information about the appellants. The Second Department dismissed these contentions, stating that:

[T]he appellants established that the attorney for the Town of Oyster Bay is Berkman, Henoch []. The appellants further established that Saul Fenchel, who became a member of Berkman Henoch in 2010, had a prior attorney-client relationship with the appellants, that the matters involved in Fenchel’s representation of the appellants were substantially related to the matters involved in Fenchel’s representation of the Town, and that the interests of the appellants and the Town were materially adverse. Further, regardless of whether Fenchel actually obtained and disseminated confidential information in connection with his former representation of the appellants, they are “entitled to freedom from apprehension and to certainty that [their] interests will not be prejudiced” due to Fenchel’s representation of the Town in the related condemnation proceedings. Accordingly, the Supreme Court improvidently exercised its discretion in denying that branch of the appellants’ motion which was to disqualify Fenchel from representing the Town in these proceedings.

The Court further held that since the law firm “failed to present any evidence that Fenchel did not acquire information that was significant or material in the subject litigation or that Berkman Henoch took steps to screen Fenchel to protect the dissemination of any such information by him to the other attorneys at the firm,” Berkman Henoch was also disqualified from representing the Town in these proceedings.

Teacher’s Termination for Offensive Facebook Posts Reversed

Teacher’s Termination for Offensive Facebook Posts ReversedIn a recent ruling, the Appellate Division, First Department, affirmed the Supreme Court’s holding which vacated a hearing officer’s determination that a fifth grade teacher’s employment should be terminated based upon certain Facebook postings. The teacher posted boldly that her students are “all the devil’s spawn!” and that if a student was drowning she “would not throw a life jacket in for a million.” See Rubino v. City of N.Y., 34 Misc.3d 1220(A), 950 N.Y.S.2d 494 (Sup. Ct. N.Y. Cnty. 2012), aff’d, 106 A.D.3d 439, 965 N.Y.S.2d 47 (1st Dept. 2013).

In so ruling, the Court recognized that under New York law, an arbitrator’s decision is extremely difficult to vacate. The grounds for doing so are listed in CPLR 7511, and include “(i) corruption, fraud or misconduct in procuring the award; (ii) partiality of an arbitrator appoint as neutral . . . ; (iii) an arbitrator, or agency or person making the award exceed his power or so imperfectly executed it that a final and definite award upon the subject matter was not made.” Further, an arbitrator’s “errors of fact or law provide no basis for vacating an award.” However, there is a different standard for reviewing whether “a penalty imposed after a hearing held pursuant to Education Law § 3020-a,” the statute under which administrative charges are brought against a tenured school teacher. This standard is “whether the punishment imposed ‘is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness.’” The Court explained that a result is shocking to one’s sense of fairness when:

the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct … of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.

The Court pointed to several facts which demonstrate that the penalty of termination did in fact shock its sense of fairness. First, it recognized that the petitioner had a 15-year employment history with the Department of Education, which was otherwise unblemished. There was no evidence that her postings were part of a pattern of conduct, but instead were an isolated incident of intemperance. Second, the postings, although repulsive, did not affect her ability to teach. Lastly, the postings were made on her private Facebook account, and her connections consisted of adult friends and family. She was not connected to any students or parents of students, which demonstrated that she did not intend these posts to personally offend any students.

The Court concluded its opinion by stating:

[W]hile students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner’s conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression.

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