Sumpter v Harlem Children's Zone, Inc.

2024 NY Slip Op 32819(U)

August 12, 2024

Supreme Court, New York County

Docket Number: Index No. 157887/2023

Judge: James d'Auguste

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publication.
157887/2023 SUMPTER, ALEXIS vs. HARLEM CHILDREN'S ZONE, INC. ET AL

Motion No. 001 001

Page 1 of 5

The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 

15, 16, 17, 18, 19

were read on this motion to/for ENFORCE/EXEC JUDGMENT OR ORDER .

The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 

15, 16, 17, 18, 19

were read on this motion to/for ENFORCEMENT .

Plaintiff Alexis Sumpter (“Sumpter”) seeks to enforce an alleged settlement agreement 

she entered into with defendants Harlem Children’s Zone, Inc. (“HCZ”) and The Bachrach 

Group (“TBG”). The motion is granted to the extent of granting enforcement of the settlement 

together with statutory interest assessed against TBG commencing 30 days after Sumpter 

returned the signed settlement agreement and without prejudice to Sumpter filing a separate 

motion, pursuant to 22 NYCRR 130-1.1, seeking the imposition of sanctions against TBG and 

the recovery of attorneys’ fees necessitated by TBG’s refusal to comply with the agreed upon 

settlement.

On August 8, 2023, Sumpter commenced the instant litigation asserting claims of 

disability discrimination against plaintiff in violation of New York City Human Rights Law 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: Hon. James E. d’Auguste PART 55

Justice 

---------------------------------------------------------------------------------X INDEX NO. 157887/2023

 MOTION DATE

05/02/2024, 

05/02/2024

 MOTION SEQ. NO. 001 001

DECISION + ORDER ON 

MOTION

ALEXIS SUMPTER,

 Plaintiff, 

- v -

HARLEM CHILDREN'S ZONE, INC., THE BACHRACH 

GROUP,

 Defendants. 

---------------------------------------------------------------------------------X

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157887/2023 SUMPTER, ALEXIS vs. HARLEM CHILDREN'S ZONE, INC. ET AL

Motion No. 001 001

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(“NYCHRL”), failure to provide plaintiff a reasonable accommodation for her disabilities in 

violation of NYCHRL, and retaliation for plaintiff requesting a reasonable accommodation in 

violation of NYCHRL. NYSCEF Doc. No. 1. On September 22, 2023, TBG answered the 

complaint and filed a cross-claim against HCZ for contribution and indemnification. NYSCEF 

Doc. No. 3. Also on September 22, 2023, HCZ answered the complaint, asserted a cross-claim 

against TBG for contribution and indemnification, and responded to TBG’s cross-claim. 

NYSCEF Doc. No. 4. On October 5, 2023, TBG responded to HCZ’s cross-claim. NYSCEF Do. 

No. 8.

As relevant to this motion, the parties thereafter entered into settlement negotiations and 

thereafter agreed to settle the litigation. After a series of telephonic communications HCZ’s 

counsel sent plaintiff an email stating: “As a follow up to our recent conversations, Defendants 

will agree to offer $45k in full and final settlement of the case, provided that such an offer will 

be accepted by Plaintiff.” The communication indicates that HCZ discussed settlement of the 

litigation with TBG’s counsel, who was in agreement with the financial parameters of settling 

the litigation. HCZ’s counsel also indicated that he wanted certain non-monetary covenants that 

are often used when these types of cases are resolved, such as confidentiality, no re-hire, no 

admission of wrongdoing, and standard non-disparagement. 

On December 19, 2023, plaintiff’s counsel advised defendants’ attorneys that “[w]e have 

an agreement in principle barring any material disagreement with the language in the settlement 

agreement.” On January 3, 2024, HCZ’s counsel circulated a draft settlement agreement. On 

January 9, 2024, plaintiff’s counsel provided defendants’ attorneys proposed revisions to the 

settlement agreement. Also on January 9, 2024, HCZ’s counsel indicated that both defendants’ 

attorneys would review this draft with their respective clients and respond as soon as possible. 

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157887/2023 SUMPTER, ALEXIS vs. HARLEM CHILDREN'S ZONE, INC. ET AL

Motion No. 001 001

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On January 17, 2024, HCZ’s attorney sent a message that the draft was still being reviewed but 

asked plaintiff, in order to expedite issuance of the settlement payments, to complete a particular 

Centers for Medicare & Medicaid Services (CMS) form. On January 22, 2024, HCZ’s counsel 

also sent an email on behalf of defendants attaching an updated proposed settlement agreement

On January 22, 2024, plaintiff’s counsel informed HCZ’s counsel that he preferred 

speaking directly with CMS to negotiate any potential monetary lien issues. Shortly thereafter, 

HCZ’s counsel sent all attorneys an email stating:

We can agree to remove the separate CMS form. Attached is an updated draft of 

the settlement agreement – both Word and pdf versions. If this works for everyone, 

we can consider it to be the “final” version. If not already done, kindly have Plaintiff 

sign the separate NDA and then this agreement once the revocation period for the 

NDA expires.

(emphasis added). On January 23, 2024, TBG’s counsel sent a short email stating in relevant part: 

“That works for us.” 

On February 2, 2024, Sumpter returned the signed settlement agreement and nondisclosure agreement. On February 7, 2024, HCZ’s attorney emailed all counsel a copy of the 

settlement agreement signed by his client. On February 8, 2024, TBG emailed counsel “My client 

has advised that they will not be proceeding with the proposed settlement and will continue with 

its defense of Plaintiff’s claims in litigation.” As with Sumpter, HCZ’s attorney noted that his 

client considered the litigation settled:

It is certainly Harlem Children’s Zone’s position that all parties reached a final 

agreement to settle this case in its entirety, which includes a release of all claims by 

Plaintiff against all Defendants, and a release of the respective cross-claims that the 

Defendants asserted against one another. Everything was memorialized in a written 

agreement which all counsel reviewed and provided comments on, and all of our 

respective edits were synthesized into a final document which you agreed to on 

behalf of your client in an e-mail on January 23 (attached).

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On March 6, 2024, Sumpter’s counsel emailed TBG’s counsel correspondence stating 

that an application to enforce the settlement would be filed should TBG renege on the settlement. 

On March 21, 2024, TBG’s attorney responded, without any explanation as to her earlier 

conduct, that her “client’s position has not changed.” On May 1, 2024, Sumpter filed the instant 

motion seeking to enforce the settlement agreement together with costs, disbursements, interest, 

and attorneys’ fees. 

An out-of-court settlement of an action is enforceable against a party if “it is in a writing 

subscribed by him or his attorney or reduced to the form of an order and entered.” CPLR 2104. 

An email exchange is sufficient to meet the “writing” requirement. Philadelphia Insurance 

Indemnity Company v. Kendall, 197 A.D.3d 75 (1st Dept. 2021). The importance in determining 

the enforceability of an agreement by email is “if an attorney hits ‘send’ with the intent of 

relaying a settlement offer or acceptance.” Kendall, 197 A.D.3d at 79-80. Here, HCZ’s attorney 

clearly stated in his email: “Attached is an updated draft of the settlement agreement – both 

Word and pdf versions. If this works for everyone, we can consider it to be the ‘final’ version.”

The language used therein makes plain that the attached document contained all of the material 

terms of the settlement. In response, TBG’s counsel sent an email stating: “That works for us,” 

which is sufficient for the writing requirement contained in CPLR 2104. Notably, TBG fails to 

provide a credible explanation for its failure to expeditiously deny the existence of a settlement 

when Sumpter’s counsel sent defendants’ counsel signed settlement and non-disclosure 

agreements. 

Accordingly, this Court is ordering the enforcement of the settlement with 9% interest as 

against TBG commencing 30 days after Sumpter returned the settlement agreement. The Court 

will not, at this juncture, award attorneys’ fees. This branch of Sumpter’s application appears to 

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be premised upon an argument that TBG’s conduct is frivolous, but plaintiff did not seek relief 

under 22 NYCRR 130-1.1 in its notice of motion. As such, the request for attorneys’ fees is 

denied without prejudice to filing an appropriately noticed motion, if warranted.

This constitutes the decision and order of this Court.

8/12/2024 $SIG$

DATE James d’Auguste, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

INDEX NO. 157887/2023

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