By Michael Hoenig - New York Law
Journal - August 12, 2013
discusses two recent rulings in New York, the Kowalski
decision by the Court of Appeals and the Forcelli
decision by the Appellate Division, Second Department. The first
determines whether a hospital, via its emergency room personnel,
has a duty to retain intoxicated or compromised patients who
wish to leave. The second answers whether a litigation
settlement is binding when an email containing the material
terms lacks a signature by the party to be charged (or his
agent) but does furnish the sender's name at the end of the
man is brought by a friend to a hospital's emergency room and
seeks admission to the detoxification facility. His blood
alcohol content is extremely high but he is alert and able to
walk. He is seen by an emergency room doctor and admitted to the
hospital's detox program. Four hours after arriving and while
awaiting transport to the detox, the patient removes his IV and
tells a nurse he plans to go home in a taxi.
The nurse urges
him to call a friend to pick him up. He agrees. The nurse goes
to tell the emergency room doctor the patient wants to leave.
When she returns the patient is gone. The nurse asks the doctor
whether she should call the police. The doctor says "no" but
notifies hospital security. Having left unescorted, the patient
is struck by a car an hour or two later and severely injured. Is
the hospital liable to the patient for negligence and
Would your answer be
different if you knew that the patient had been admitted to the
hospital's detox program a month earlier with suicidal thoughts,
had been placed on a "one-to-one watch," had received
medication, improved and had been discharged? And, what if no
one at the hospital consulted the record of that previous visit
when he returned? Is there a duty to prevent patients from
leaving the emergency room? If the patient insists on leaving,
must he be restrained? And, if he were restrained against his
will, could the hospital be exposed to liability for false
Sounds like a fascinating
essay question on a law school "Torts" exam, doesn't it? Except
that the scenario actually occurred and wound up being the
subject of a New York Court of Appeals decision published on
June 26. The case,
Kowalski v. St. Francis Hospital and Health Centers,1
resulted in a divided court with five judges voting to affirm a
Second Department ruling granting the hospital summary judgment.
Two dissenting judges, however, said that "serious issues" of
fact regarding defendant's conduct and proximate cause warranted
a trial. Kowalski reminds us that "duty" and proximate
cause policy factors are not mere law school discussion topics.
They may inhere in real-life dramas unfolding every day.
The court viewed the gist of
plaintiff's claim to be that the hospital personnel should have
prevented plaintiff from leaving the emergency room. But, said
the court, defendant "had no right, and therefore could have had
no duty, to do so." There are "surely few principles more basic
than that members of a free society may, with limited
exceptions, come and go as they please." Although there are
people so mentally impaired that they must be denied the right
to "go as they please," that category is "a narrow one" and does
not include everyone who would be safer in a detoxification
facility than on the street.
The court observed that New
York's Mental Hygiene Law (§22.09) specifies when a
"substantially impaired" person may be involuntarily retained
for emergency treatment. The law distinguishes between those who
come voluntarily (or are brought in without objection) as
opposed to those who are brought "with objection." In the latter
case, the patient may be retained for emergency treatment if
incapacitated to such a degree that "there is a likelihood to
result in harm to the person or others." That likelihood must be
"manifested by threats or attempts at suicide or serious bodily
harm or other conduct" that demonstrates a danger of
self-injury. The Mental Hygiene Law makes no provision for
involuntary retention of people who, like plaintiff, come to the
Plaintiff argued that the
duty to restrain him flowed from the hospital's and doctor's
common law duty of care. But, said the court: "there can be no
duty to do that which the law forbids. To restrain plaintiff on
these facts would have exposed defendants to liability for false
imprisonment." But, what about the hospital's failure to consult
the record of plaintiff's prior hospitalization when he was
contemplating suicide? And, what about the emergency room's
doctor rejecting a nurse's suggestion to call the police?
"Neither fact changes the
result," said the court. A patient cannot be confined simply
because he was having suicidal thoughts a month ago. And the
doctor had no duty to call the police. The police could not, on
the facts known to the emergency doctor, "have forced plaintiff
The dissenting judges,
however, regarded the Mental Hygiene Law as "tangential" and
inapposite to a "general hospital." Rather, they viewed the
issue as one regarding a common law duty to an intoxicated
patient. They pointed to the hospital's own protocols and
policies that "one-to-one surveillance" may be needed in
patients with a history of psychiatric hospitalization and,
further, that "potentially unstable patients by history will not
be left unattended while in the emergency department."
To these "theories" the court
majority replied: "Nothing in this record…supports an inference
that there was any causal connection between any of the alleged
departures from protocol…and plaintiff's injury." This case is
about whether defendants "had a duty to prevent plaintiff from
leaving the hospital, and nothing else."
An agreement between parties
or their attorneys relating to any matter in an action—other
than one made in open court—is "not binding" upon a party unless
it is in a writing "subscribed by him or his attorney" or
reduced to the form of an order and entered. So says CPLR 2104.
Further, with respect to stipulations of settlement, the terms
of such stipulation shall be filed by defendant with the county
clerk. Thus, according to CPLR 2104, if the party wants an
out-of-court stipulation of settlement to be "binding" it has to
be in written form and signed by the party or his attorney.
The CPLR uses the word
"subscribed." Webster's dictionary defines "subscribe" as "to
sign (one's name) at the end of a document." Also, "to sign
one's name to, in attestation, testimony or consent." Given the
text of the rule and common definition of "subscribe," the
document must be signed by the party or his attorney.
Is that always true? Not
according to the Second Department's ruling issued on July 24 in
Forcelli v. Gelco.2 There, the communication
by an insurance company's claims adjuster was an email message
saying (in part), "Per our phone conversation today…you accepted
my offer of $230,000 to settle this case." The message also
called for an attached Medicare form to be executed. It further
stated, "you also agreed to prepare the release" and then
specified the names to be included. The email closed: "Please
forward the release and dismissal for my review. Thanks Brenda
Was that email message
compliant with CPLR 2104's requirement of a writing "subscribed"
by the party or his attorney? The Appellate Division concluded,
"yes," but not before quite some discussion and reasoning. Here,
in a simplified nutshell, is why the issue became quite
important. P was injured in a car accident. He sued D (there
were multiple defendants but we label them collectively as D).
Each side filed motions for summary judgment. On the same day
the motions were submitted the parties, their attorneys and
Brenda Greene (the insurer's adjuster) appeared for mediation. A
settlement was not concluded, however.
A month later settlement
negotiations revived. The adjuster first offered $200,000.
Following further negotiations, Greene offered $230,000 and P's
counsel orally accepted. That same day (May 3), Greene sent P's
counsel the email message quoted above. The next day (May 4) P
signed a notarized release. On May 11, P's counsel sent to
Greene by fax and certified mail the signed release and a
stipulation of discontinuance.
The problem was that on May
10 the court had granted some of the defendants summary judgment
and granted P summary judgment on liability against some of the
defendants. Counsel for the winning defendant, on May 12, faxed
and mailed a letter to P's counsel advising that P's release and
stipulation of discontinuance "is hereby rejected." The letter
further stated that since there was no settlement consummated
under CPLR 2104, "we considered this matter dismissed by the
court's decision…dated May 10."
Two weeks later, P moved to
vacate the court's order of May 10 and to enforce the settlement
agreement as set forth in Brenda Greene's email message. P
argued that there was a binding, written settlement agreement. D
urged to the contrary. Two months later, the trial court vacated
his order dismissing P's complaint and enforced the settlement
agreement, entering judgment in favor of P for $230,000.
The Appellate Division
affirmed. Noting that stipulations of settlement are "judicially
favored," that the adjuster's email "set forth the material
terms of the agreement" and that the message "contained an
expression of mutual assent," the Second Department concluded
that the email was a "writing made…with authority to bind the
The question remained: Was
the email "subscribed" under CPLR 2104 and, thus, capable of
enforcement? Letters are usually signed at the end by the
author. Email messages "cannot be signed in the traditional
sense." The court cited a decision from the First Department to
the effect that "emails exchanged between counsel, which contain
their printed names at the end, constitute signed
writings…within the meaning of the statute of frauds." And, in a
Third Department case, the appellate panel said that "an
exchange of emails may constitute an enforceable contract, even
if a party subsequently fails to sign implementing documents,
when the communications are sufficiently clear and concrete to
establish such an intent."3
The court in Forcelli
reasoned that, given the now widespread use of email in personal
and business affairs, it would be "unreasonable" to conclude
that email messages are incapable of conforming to CPLR 2104
criteria "simply because they cannot be physically signed in a
traditional fashion." The panel's conclusion was buttressed by
reference to a "statement of legislative intent" accompanying
the "Electronic Signatures and Records Act" enacted in 2002. The
act was "intended to support and encourage electronic
commerce…by allowing people to use electronic signatures and
electronic records in lieu of handwritten signatures and paper
Section 302(3) of that
statute says that "electronic 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 says 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."4
But the email message from
the adjuster contained only her printed name at the end, not an
"electronic signature" as defined by the act. "Nevertheless,"
said the appellate court, the record supports the conclusion
that Greene, "in effect, signed the email message." The email
ended with the simple expression, "Thanks Brenda Greene." This
indicates that the author "purposefully added her name to this
particular email message" rather than one where software is
programmed to automatically generate the name of the sender
every time an email message is sent. Additionally, the
adjuster's participation in the face-to-face mediation and the
telephone calls "support the conclusion that Greene intended to
'subscribe' the email settlement for purposes of CPLR 2104."
The court expressed its
dramatic ruling as follows: "…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
The court's assessment of
this particular adjuster's likely "intent" to effect a
settlement seems hardly debatable. So, too, the fact that, as a
matter of policy, courts favor settlements and will make efforts
to enforce them cannot be denied. Probably "justice" has been
well served in this case. Nevertheless, a smidgen of disquieting
thoughts may linger, especially for other cases and in general.
CPLR 2104 clearly says "subscribed"—meaning a signature—not just
insertion of a name at the end of a document. In common
understanding, a name at the end of an email is not a signature.
Although modern email
messaging customs and practices have introduced levels of
informality in most communications, CPLR 2104 has not. That rule
of procedure still calls for a "subscribed," i.e., signed,
writing. Maybe today's legislature would agree that settlements
by email with just a name inserted at the end suffice. But, then
arguably, the legislature should tell us that. Modernizing CPLR
2104 via judicial means can raise questions.
Let us, at least, peek
briefly at another arguable point of view. Settlement of a case
is serious subject matter. Litigants are committing themselves
to forgoing certain rights and, often, transferring large sums
of money from one side to the other. Peace is being bought as
well as protection against the same dispute reappearing.
Requiring some ritualistic sense of solemnity and formality to
accompany and attest to such momentous decisionmaking seems
quite justified. Requiring a party's (or agent's) signature
provides that solemn formality. The signature evidences
aforethought and decisive intent to be bound.
We can see this operative
principle well reflected in
Galetta v. Galetta,5 a Court of Appeals
decision issued on May 30 declaring invalid a prenuptial
agreement due to a defective acknowledgment by a notary public.
The court would not permit the notary's acknowledgment to be
"cured" post hoc via affidavits. The court observed that the
acknowledgment requirement fulfills "two important purposes."
First, it serves to prove the identity of the person whose name
appears on the instrument and to authenticate his signature.
Second, "it necessarily imposes on the signer a measure of
deliberation in the act of executing the document." The notarial
formality "underscores the weighty personal choices to
relinquish significant property…rights or to resolve important
The same "important purposes"
arguably might be served by an actual "subscribed" or
"signature" standard for binding settlement agreements. Maybe,
from a policy standpoint, there's something to be said for not
fretting too much about a delay between the parties' stated
intent to settle and later validating that intent with a
signature. That interval of delay would, to paraphrase
Galetta's language, "impose on the signer a measure of
deliberation" and "foster reflection and care" about the
decision. Further, counsel in a real hurry to create a binding
agreement could always shorten that interval on a "rush" basis
to obviate second thoughts. Better yet, settlements can be
concluded "in open court." Indeed, the entire problem in
Forcelli seems to have stemmed from not advising the trial
court about the settlement until after the summary judgment
issued. So, perhaps, there is decent food for thought by the
Legislature were it to reassess CPLR 2104's requirement of a
is a member of Herzfeld & Rubin.
1. 2013 N.Y. LEXIS 1677 (N.Y.
Ct. App. June 26, 2013).
2. 2013 NY Slip Op 05437 (2d
Dept. July 24, 2013).
3. Forcelli v. Gelco,
2013 Slip Op 05437 (2d Dept. July 24, 2013) (citing,
respectively, Williamson v. Delsener, 59 AD3d 291 (1st
Dept. 2009); Brighton Inv. v. Har-Zvi, 88 AD3d 1220, 1222
(3d Dept. 2011)).
4. Forcelli, Id., Slip
Op, at p. 8.
5. 2013 N.Y. LEXIS 1339 (N.Y. Ct. App. May 30, 2013).
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