A settlement binds you in New York only by one of three routes: made between counsel in open court, reduced to the form of an order and entered, or set out in a writing subscribed by the party to be charged or that party’s attorney. An email can be that writing. Missing material terms still defeat the deal.
What does CPLR 2104 actually require before a settlement binds you?
CPLR 2104 recognizes three routes to a binding settlement in a pending New York action. A stipulation made between counsel in open court binds. So does a stipulation reduced to the form of an order and entered. Anything else must appear in a writing subscribed by the party to be charged or by that party’s attorney.
The rule is short and unforgiving. It does not ask whether the deal was fair. It asks which of the three boxes this settlement fits into. If the answer is none, there is no binding settlement, no matter how often the words “we have a deal” were said out loud.
Two limits matter. CPLR 2104 governs agreements relating to a matter in an action, so a deal struck before suit is measured by ordinary contract law and, where it applies, the statute of frauds. The statute’s second sentence directs the defendant to file the terms of a stipulation with the county clerk. That is a filing direction, not what decides whether you are bound.
Law: CPLR 2104.
| Route under CPLR 2104 | What it takes | Where it breaks down |
|---|---|---|
| Open court | Counsel state the terms in a judicial proceeding, on the record, both sides assenting | Terms agreed in the hallway, at a conference, or off the record |
| Order entered | The terms are reduced to an order and the order is entered | Terms recited but never entered, though a stipulation counsel signed can still bind as a subscribed writing |
| Subscribed writing | A writing, including email, subscribed by the party to be charged or that party’s attorney | A writing signed only by the side seeking to enforce, or one missing material terms |
Can an email settle your New York lawsuit?
An email can settle a New York lawsuit. The Second Department held in Forcelli v Gelco Corp. that an email containing all material terms and a manifestation of mutual accord, closed with a typed name meant to function as a signature, may be deemed a subscribed writing under CPLR 2104.
The facts are ordinary. A claims adjuster with settlement authority attended a mediation that produced a number. The adjuster emailed confirmation of the offer and the amount, ending with a closing line and her own name. Plaintiff’s counsel accepted.
The defense side then obtained summary judgment. It did not matter. The email had already done the work of a stipulation, and the settlement was enforced.
Rule, application, consequence. A subscribed writing binds, an adjuster’s email was one, and the party that won the motion still paid.
Case: Forcelli v Gelco Corp., 109 AD3d 244 (2d Dept 2013).
The moment of binding is not the moment you sign a formal release. It is the moment somebody hits send.
Does an email signature block count as a signature under CPLR 2104?
A signature block can satisfy CPLR 2104. The First Department held in Matter of Philadelphia Ins. Indem. Co. v Kendall that transmission of the email, not proof that the sender retyped a name below an automatic contact block, is what determines that a settlement stipulation has been subscribed. That court rejected the retyping requirement.
Kendall arose from an underinsured motorist claim. The motion court refused to enforce the email exchange on two grounds: no retyped name, and incomplete material terms. The First Department reversed on both.
A later First Department decision, Rawald v Dormitory Auth. of the State of N.Y., applies Kendall plainly. The emails were subscribed because the sender was identifiable and there was no contention that they were sent unintentionally.
Understand what that buys you. Kendall is a First Department departure from earlier practice, and the Court of Appeals has not decided whether a prepopulated block subscribes an email. Forcelli still speaks of a typed name intended as a signature. Kendall speaks of transmission. Do not build a strategy on the gap. Assume the send button is the pen.
Cases: Matter of Philadelphia Ins. Indem. Co. v Kendall, 197 AD3d 75 (1st Dept 2021); Rawald v Dormitory Auth. of the State of N.Y., 199 AD3d 477 (1st Dept 2021).
| Element | Points toward binding | Points away from binding |
|---|---|---|
| Identity of sender | Account identified as counsel’s or the party’s own | Anonymous or unattributable transmission |
| Name at the end | Typed name or standard signature block | Nothing identifying the author at all |
| Who is bound | Email sent by the party to be charged or that party’s attorney | Email sent only by the side that now wants to enforce |
| Content | All material terms plus mutual accord | Terms still open, or a bare confirmation of a supposed deal |
What counts as a material term, and does an unsigned release kill the deal?
A settlement is enforceable only if it sets forth all material terms and shows a clear mutual accord. That standard applies to email exchanges exactly as it applies to paper. An email that merely confirms a purported settlement is not necessarily enough to bring it within CPLR 2104.
Completeness is measured against what the parties were fighting about. Where the sole open issue was how much money changes hands, the First Department has held that release language and liens need not be spelled out in the emails. Where scope, timing, conduct, or who signs what remain unresolved, the exchange is a negotiation and not a stipulation.
So an unsigned release does not automatically rescue you. If all material terms were agreed and nothing was conditioned on further paper, refusing to sign is a breach problem, not a formation problem. The exception is the one you write yourself: where the parties expressly agreed that no settlement exists until a formal document is executed, that stated intention controls and nothing binds before signature.
Terms that are usually material in a business case:
- The amount, and whether it is inclusive of interest, costs, and fees
- The payment schedule, and what happens on default
- The scope of the release, including whether it reaches affiliates, officers, and guarantors
- Whether the release is mutual
- Discontinuance with or without prejudice
- Confidentiality and non-disparagement, if either side cares
- Any security or confession of judgment on default
If one of those is genuinely open, say so in writing before anything else happens. If all of them were settled in the thread, treat yourself as bound.
Cases: Teixeira v Woodhaven Ctr. of Care, 173 AD3d 1108 (2d Dept 2019); Martin v Harrington, 139 AD3d 1017 (2d Dept 2016); DeVita v Macy’s E., Inc., 36 AD3d 751 (2d Dept 2007); Phipps v Conifer Realty, LLC, 220 AD3d 654 (2d Dept 2023).
Can your attorney bind you to a settlement you never approved?
The decision to settle belongs to the client, and an attorney ordinarily cannot compromise a claim without authority. The Court of Appeals held in Hallock v State of New York that a stipulation made by counsel in open court can bind the client beyond actual authority where the client clothed the attorney with apparent authority.
Apparent authority is built out of your own conduct, not your lawyer’s say-so. Sending your lawyer to a settlement conference, sitting there while terms are recited, and saying nothing all feed it. So does telling the other side that your lawyer speaks for you on numbers.
So “my lawyer exceeded my authority” is a hard argument once the words were spoken on the record. It is stronger when nothing was recorded and nothing was subscribed.
Case: Hallock v State of New York, 64 NY2d 224 (1984).
The only email is from their lawyer. Are you stuck with it?
A writing binds the party who subscribed it. CPLR 2104 requires a writing subscribed by the party to be charged or that party’s attorney, so an email sent by the side seeking enforcement does not supply the missing signature. The Second Department applied that in Kataldo v Atlantic Chevrolet Cadillac and refused to enforce.
In Kataldo, the settlement was agreed orally, the party then declined to execute the documents, and the only email confirming it came from the attorney for the side moving to enforce. Nothing was subscribed by the party to be charged or her attorney. Unenforceable against her.
The Second Department reached the same result in Phipps v Conifer Realty, LLC, where a carrier reported a settlement and defense counsel’s letters and emails chased a plaintiff’s signature that never came. Denial of the motion to enforce was affirmed.
The Court of Appeals reached the same result in Bonnette v Long Is. Coll. Hosp. An out-of-court oral settlement, undisputed in its terms, failed because the agreement itself was never set out in a writing signed by the party to be bound.
Cases: Kataldo v Atlantic Chevrolet Cadillac, 161 AD3d 1059 (2d Dept 2018); Phipps v Conifer Realty, LLC, 220 AD3d 654 (2d Dept 2023); Bonnette v Long Is. Coll. Hosp., 3 NY3d 281 (2004).
One-way paper is not a stipulation. It is a letter to yourself about a deal you wish you had documented.
Is a settlement announced at a conference or in the hallway binding?
The open-court route requires a judicial proceeding and a record. The Second Department explained in Diarassouba v Urban that the open-court exception codified the older practice of enforcing oral stipulations recorded by some form of formal entry, and that stretching it past that purpose is improper. Put the terms on the record.
In Diarassouba, plaintiff’s counsel sought to place a settlement on the record during jury deliberations. The terms were never recited with the other side confirming them. The jury returned a verdict. The court held that what happened did not satisfy CPLR 2104.
One side’s announcement, without the other’s affirmation on the record, is not a stipulation. Silence from the other table is not assent.
Cases: Diarassouba v Urban, 71 AD3d 51 (2d Dept 2009); Matter of Dolgin Eldert Corp., 31 NY2d 1 (1972).
How do you enforce a settlement, or get out of one the other side says you made?
Enforcement of a settlement in a pending New York action is normally pursued by motion in that action, supported by the writings. Where the case was already discontinued, enforcement may instead require a plenary action on the agreement or relief from the discontinuance. Escape runs the other way.
To escape, show that no route in the statute was satisfied, that a material term was never agreed, or that the writing relied on was not subscribed by the party now charged. Those are formation arguments, and they do not depend on the court’s discretion.
I read the entire thread in chronological order, oldest message first, before I read anybody’s affidavit about what the thread supposedly meant. I ask for the sent-items copy rather than a forwarded summary.
Stipulations are favored and are not lightly set aside, particularly when made in open court. That is the presumption in Hallock, and it is why a change of heart is no defense. Once a stipulation is validly formed, a court may relieve you of it only on grounds that would invalidate a contract, such as fraud, collusion, mistake, accident, or overreaching. That relief is discretionary, and it requires proof rather than regret.
The analysis runs in order. Open court on the record. An order entered. A writing. Who subscribed it. All material terms in it. Authority in the sender. Each answer either ends the inquiry or moves it forward.
Law: CPLR 2104. Case: Hallock v State of New York, 64 NY2d 224 (1984).
What should you do tonight if opposing counsel says you already settled?
The first move is preservation, not argument. Stop writing about the dispute in any channel, pull the complete email thread rather than the excerpt attached to the other side’s letter, and identify the one message said to be the stipulation. Everything that follows turns on that message and its sender.
- Export the full thread from sent items, headers and time stamps intact, and delete nothing.
- Mark the exact message the other side calls the settlement. Note who sent it, whose signature block it carries, and whether it came from your side or theirs.
- Write down every material term and check each against the words in that message. Amount, timing, release scope, discontinuance, default.
- Locate any transcript of a conference or appearance where terms may have been recited.
- Confirm in writing whether you gave your attorney authority to accept that specific number, and what limits you placed on it.
- Send nothing further about the settlement until the thread has been read from the beginning.
If you want to settle, do the opposite in advance. Put the terms in one clean message, list every material term, state plainly that no settlement exists until a formal stipulation is signed by both sides if that is your intent, and then get it signed and handled as CPLR 2104 directs.
Joe Prencipe is a business litigator at Prencipe International in New York.
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Before founding Prencipe International, Joe practiced at the top law firms in the world, including Freshfields Bruckhaus Deringer, Baker McKenzie, Morgan Lewis & Bockius, and served at the U.S. Securities and Exchange Commission. He has spent his career on high-stakes disputes and transactions for businesses that cannot afford to lose. When a New York business owner gets sued, he answers the same day and is on the docket within the week.
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