Xhepexhiu v. Mitaj

Xhepexhiu v Mitaj (2022 NY Slip Op 01409) Xhepexhiu v Mitaj 2022 NY Slip Op 01409 Decided on March 03, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 03, 2022 Before: Manzanet-Daniels, J.P., Mazzarelli, Singh, Scarpulla, Higgitt, JJ. Index No. 655159/19 Appeal No. 15413 Case No. 2020-03962 [*1]Aurel Xhepexhiu, Plaintiff-Appellant, v Alfred Mitaj et al., Defendants-Respondents. Law Office of Robert J. Gumenick, P.C., New York (Robert J. Gumenick of counsel), for appellant. Joshua Annenberg, New York, for respondents. Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered September 25, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to enforce a stipulation of settlement, unanimously affirmed, without costs. A stipulation of settlement may be evinced by multiple writings; however, where, as here, those writings together do not show agreement on all material terms, the alleged agreement is unenforceable under CPLR 2104 (see Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 285 [2004]). Moreover, although plaintiff demonstrated that he did in fact perform certain obligations under the parties' alleged agreement, his performance could also be construed as preliminary steps in anticipation of consummating the agreement. As a result, plaintiff's performance was not "unequivocally referable" to the alleged agreement (Klein v Klein, 79 NY2d 876, 878 [1992]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 3, 2022