Wednesday, December 18, 2013

Goldbard v. Empire State Mutual Life Insurance Company case brief

Goldbard v. Empire State Mutual Life Ins. Co. case brief summary
171 N.Y.S.2d 194 (1958)

Plaintiff challenged a determination of the Supreme Court of New York, Appellate Division, First Judicial Department, modifying a judgment in his favor in an action under an insurance policy by reducing the award amount.

Defendant, an insurer, argued that plaintiff, the insured, agreed to settle his disability insurance claim, and that as such, his recovery should be limited to the settlement amount. Plaintiff argued that defendant offered to settle the claim, but that he never accepted the offer.


  • The court found that the series of telephone conversations and meetings with a third-party intermediary did not result in a subsequent, substituted agreement. 
  • The court noted that the conversations were distinctly informal with bargaining give and take, and that the parties never decided on precise terms, such as when and where the settlement would occur. 
  • The court also found that if the negotiations resulted in an executory accord, it was not enforceable, because it was not in writing and signed by the party to be held as required by N.Y. Pers. Prop. Law § 33(a).

The court reversed the determination and increased the award, holding that since the settlement negotiations between the parties did not constitute either a substituted agreement or an enforceable executory accord, plaintiff could pursue his original claim.

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