During the course of litigation, it's not uncommon for counsel to agree on certain "housekeeping matters" of pertinence to the case -- like extending deadlines for pleadings, motions, and responsive papers, adjourning dates for court appearances (whether it be for a hearing or trial), compromising disputes relating to discovery, or even settling the matter -- and that understanding is usually memorialized in a writing known as a "stipulation."
Once the terms of that agreement are finalized, the document will usually call for the signatures of the respective counsel. Pressed for time, and unable to access a fax machine or computer, an opponent might ask you to sign his or her name to the document. (We've all been there and done that.) The danger of that practice was reinforced by the outcome of a case which reached the Appellate Term, 9th and 10th Judicial Districts.
In DiGennaro v. Schmid , the attorneys were addressing unresolved discovery issues and it was allegedly agreed that defendants would produce certain documents within 45 days or suffer an "order of preclusion" -- that is, the defendants would be unable to introduce those documents at a hearing or trial and would be hindered in presenting a defense or proving any counterclaims they had in the case.
When motion practice later ensued (based on the defendants' breach of the agreement), defendants' counsel claimed he never consented to the memorialized terms. Notwithstanding that denial, a Nassau County District Court Judge granted plaintiff's motion for summary judgment and awarded the plaintiff a victory in the case. On appeal, the Appellate Term reversed since the stipulation had been rendered "unenforceable" by the parties' noncompliance with the requirements of a certain law -- the Civil Practice Law and Rules (CPLR).
As the appellate court observed:
In our view, the stipulation does not satisfy the requirements of CPLR 2104 and cannot be enforced. As relevant here, CPLR 2104 provides that an agreement "is not binding upon a party unless it is in a writing subscribed by him or his attorney ...." The requirement that the agreement be in writing and signed by the party or his attorney grew out of the frequent conflict between attorneys as to agreements made with reference to proceedings and actions and was intended to relieve the courts from the constant determination of controverted questions of fact with reference to such proceedings ... The purpose of the statute would be defeated if one party or its attorney were permitted to subscribe a stipulation as agent for the adverse party pursuant to an alleged oral authorization ... It would have been a simple matter for plaintiff's attorney to fax the written agreement to defendants' then attorney for his signature, rather than faxing it to him after he had signed it on behalf of defendants' then attorney. In our view, the statute requires no less than this, if conflicts as to the terms of the agreement are to be avoided. Accordingly, we hold that the writing is of no force and effect.
Don't get zapped.
DiGennaro v. Schmid reinforces that you can't take anyone at their word ... particularly if they're fellow members of the Bar.
To view a copy of the Appellate Term's decision, please use this link: DiGennaro v. Schmid