On September 2, 2025, Justice Reed of the New York County Commercial Division issued a decision in CoPilot Travel, Inc. v. Magstar Capital, LLC, 2025 NY Slip Op. 51388(U), holding that an exchange of e-mails agreeing to settle did not create a binding settlement agreement because the parties did not agree on all the material terms of the agreement, explaining:
CPLR §2104 provides 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.
An electronic-mail string can form the basis for a binding settlement in accordance with CPLR 2104, so long as there is consent in writing sufficient to meet the subscribing requirement, and the material terms are manifest. An email is enforceable and subscribed in accordance with the statute, if the sender is identifiable, the message was sent intentionally, and the email contains all material terms of the agreement.
Magstar argues that the email correspondence with plaintiff’s prior counsel formed a binding settlement agreement that must be enforced. According to Magstar, the emails were writings subscribed by the parties that included all material terms of the agreement (the parties agreed to discontinue their claims and exchange mutual releases), and no material terms were left subject to further negotiation. Plaintiff disagrees.
Plaintiff submits that the parties merely discussed the potential for a future agreement and exchanged settlement agreements, the terms of which had not been fully resolved. The parties purportedly did not agree whether the mutual dismissals would be with prejudice, and did not negotiate or agree to Magstar’s revised settlement agreement, which included, inter alia, a newly proposed nondisparagement clause and a no admission of wrongdoing clause. Plaintiff argues that due to the lack of mutual assent on several terms of the settlement agreement, the record does not clearly support a claim that the parties reached a settlement agreement that is enforceable on its face (id. at 8). The court agrees.
It is this court’s view that the settlement agreement entered between the parties is not enforceable. Stephen Milito, then-counsel for plaintiff, initiated communication and made a settlement offer in his November 11, 2024 correspondence when he stated: ” we’ve consulted with our client. We would be willing to enter into a settlement agreement wherein both sides discontinue their claims and exchange mutual releases” (NYSCEF doc. no. 77, pg. 5). The message was identifiable and sent intentionally by plaintiff’s then-counsel and contains the material terms of the settlement offer. Defendant Magstar, however, did not explicitly assent to the terms as proposed.
Defendant responded to counsel’s email stating it was “amenable” to settlement. The word amenable is defined by the Cambridge Dictionary as willing to accept or be influenced by a suggestion. Defendant, therefore, did not indicate a clear assent to the exchange of mutual releases. Rather, by the plain language and interpretation of its response, defendant indicated it was willing to accept the offer, which was made contingent upon receipt of a draft agreement for its review. Following receipt of an initial settlement draft, defendant submitted a counter proposed agreement that was not ultimately accepted by plaintiff.
The law is clear that agreements to agree are not enforceable. An agreement which is expressly conditioned on the execution of a definitive agreement satisfactory in form and substance to both parties, does not give rise to an enforceable contract.
Although Magstar submits that the proposed changes to plaintiff’s initial release were not uncontroversial, a review of the proposed changes reflects that Magstar made material changes to the second page of the settlement agreement and included five new paragraphs of text including language regarding “non disparagement,” “admissions,” “party status,” and, among other things, a paragraph addressing “enforcement and attorney’s fees.” It is this court’s view that the question of whether a party consents to limiting its communication and subjecting itself to penalty for “disparaging” communication, such as the payment of attorney’s fees, are material terms of a settlement agreement that must be expressly consented to in order to be enforceable.
This court does not find that the material terms of the agreement were properly manifest as required for an email to be enforceable in accordance with the Appellate Division’s conclusions in Rawald.
(Internal quotations and citations omitted).