Key Takeaway
Court ruling shows how handwritten changes to no-fault stipulations can become binding through acquiescent conduct, even when plaintiff later tries to enforce original terms.
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 ) — 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…
