On July 24, 2025, Justice Chan of the New York County Commercial Division issued a decision in Prospect Capital Corp. v. Morgan Lewis & Bockius LLP, 2025 NY Slip Op. 32996(U), holding that when counsel for a party did not respond to an e-mail memorializing a stipulation, there was no binding stipulation, even though the parties might have reached an oral agreement, explaining:
Regarding categories 2 through 7, 9, 10, 12, and 14, the court now reverses course and denies access to these categories of documents. CPLR 2104 states that
an agreement between parties or their attorneys relating to any matter in an action 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.
Regarding the subscribed requirement, the First Department has held in the context of settlement stipulations that a party subscribes to an email stipulation where the party’s attorney hits send with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own. The Third Department also recently held that silence in the face of a stipulation does not amount to assent to its terms absent a duty to speak. Applying that logic here, an attorney may accept other types of stipulations by sending a response email, but does not accept by failing to respond.
Here, Prospect did not send a response email accepting the terms of the stipulation as laid out in defendants’ February 7, 2024 Email Stipulation. While it is clear the parties had a conversation and even came to some oral agreement that defendants believed was fully reduced to writing, Prospect’s failure to respond is a failure to subscribe to the terms as specifically forth in the Email Stipulation. Therefore, the stipulation is unenforceable pursuant to CPLR 2104. By extension, the cross-motion for resettlement is denied as moot.
(Internal quotations and citations omitted).