Mark it up, fax it back and see what happensApril 16, 2012

Preferred Servs. v Country Wide Ins. Co., 2012 NY Slip Op 22098 (App. Term 1st Dept. 2012)

“Upon receipt of plaintiff’s proposal, defense counsel made and initialed several handwritten changes to paragraph 2 of the document — addressing the consequences of a payment default on defendant’s part — with the changes designed to extend the time allotted to defendant to comply with the agreement’s payment terms and, more importantly here, to reduce defendant’s payment obligations in the event it failed to comply. So far as shown, plaintiff voiced no objection to the modifications proposed by defendant or took any other action in the case for a full six months after defense counsel marked up and returned the stipulation, until March 2009, when plaintiff entered judgment in accordance with the original terms of the stipulation favorable to it.

“since plaintiff itself acknowledges that the parties’ correspondence yielded an enforceable settlement agreement, we conclude that plaintiff, through “acquiescent conduct” (Eldor Contr. Corp. v County of Nassau, 272 AD2d 509 [2000]) — including its election to forego any further litigation activity on its no-fault claim — accepted and is bound by the stipulation’s revised terms”

Well, somebody figured out how to limit the liquidated damage provision portion of the stipulation…

11 Responses

  1. trial lawyer says:

    So if Plaintiff sends a letter stating it is deisregarding the cross outs, Defendant must do something. You snooze you lose.

    • JT says:

      Plaintiff was the scrivener. That is the problem.

      I found the case:

      Bronx County Civil Court CV-037933-03/BX Post Disposition – Appeal Pending PREFERRED SERVICES Leon Kucherovsky COUNTRY WIDE INSURANCE CO. Jaffe & Koumourdas LLP 01/27/2010 Honorable Elizabeth A. Taylor
      Part 40 – Procedural Motions No Fault

  2. Mitchell lustiig says:

    This is a good decision as some plaintiff firms are sneaky and do not play by the same rules as everybody else and this decision puts them in their place. Moreover, what kind of firm would waste their time and the courts time litigating over the terms of a stipulation where they have already been paid the amounts called for in the original stipulation.

  3. nycoolbreez says:

    By seeking default judgment for the full amount did plaintiff really acquiesce?
    Aren’t the terms of the stipulation ambiguous, at least?

  4. Alan Klaus says:

    This is bad law. Unless acknowledged by the party after the changes had been made no contract can exist. I feel this is sneaky unethical behavior. A party to the stip should make a phone call to explain and verify the changes w the other party.

  5. Ray Zuppa says:

    Just some more quasi law/B.S. Corporate justice that is the disgrace of New York’s legal system. At this point it is shameless and brazen.

    JT give me a break. In high volume shit law no fault who really checks the friggin stips.

    Who makes changes to stips without pointing them out.

    Corporate criminals with the full blessing of the Court — that’s who.

  6. Alan Klaus says:

    You tell them RZ. “Corporate criminals” I like it.

  7. slick says:

    I’m actually adding a line to my stips that no changes to the stips can be made without express acceptance.

    • JT says:

      Like the non-waiver provision of a contract that is waived when someone does not respond to the other party’s inconsistent behavior? Funny.

  8. Kurt Lundgren says:

    The first time a defense attorney does that to one of my stips is the last. The defense attorneys word is dirt and he or she shall be treated accordingly. Pay backs are a bitch. Sorry JT, this is a family blog. Dont want to offend the little children who visit this site daily. I should have said $%#@* instead of the cuss word. But sometimes I get so angry ……

  9. nycoolbreez says:

    I would prefer to fail with honor than win by cheating.

    If you’re not cheating, you’re not trying hard enough.