MEMORANDUM DECISION AND ORDER On March 14, 2019, the plaintiff filed this action against Verde Energy USA, Inc. (“Verde”) individually and on behalf of a putative class alleging that the defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227, and the New York General Business Law §399-p by making unsolicited telemarketing calls. The parties quickly agreed to settle the matter and entered into an agreement under which the plaintiff released “any and all claims” it had against Verde “as of” the effective date of the settlement in exchange for a fixed sum. The plaintiff agreed to dismiss this litigation when he received payment. The plaintiff alleges that on March 26, 2019, the date the agreement went into effect, he received another unsolicited telemarketing call from the defendant. The next day, March 27, 2019, the plaintiff received the settlement payment but did not dismiss the action. Instead, he filed an amended complaint on March 29, 2019 (ECF No. 6), and kept the settlement payment. The defendant answered and counterclaimed for breach of contract and specific performance of the settlement agreement. (ECF No. 11.) The defendant now moves for summary judgment to enforce the settlement agreement. (ECF No. 26.) For the reasons stated below, the defendant’s motion is granted. BACKGROUND1 In his March 14, 2019 complaint, the plaintiff alleged that he received an unsolicited, automatically dialed, telemarketing call from the defendant on his residential phone on December 4, 2018. (ECF No. 1 33.) Less than two weeks later, on March 26, 2019, the plaintiff entered into a Confidential Settlement and Release Agreement (the “Agreement”) with the defendant. (ECF No. 29-3.) The parties agreed that: For and in consideration of the payment set forth in Section 3 of this Agreement, Bank for himself and on behalf of his heirs, spouse, children, executors, administrators, successors, assigns, beneficiaries, agents, representatives and any other persons in privity with Bank, irrevocably, unconditionally, knowingly and voluntarily releases and forever discharges Verde Energy from and against any and all claims and causes of action that Bank individually alleged or could have individually alleged against Verde Energy before the execution of this Agreement and from any and all claims and causes of action, of any nature, known and unknown, past and present, foreseen and unforeseen, that Bank has or might have against Verde Energy as of the date of this Agreement, including but not limited to any asserted or unasserted claims arising under any federal, state, or local telephone-communications statute, regulation, or rule, including, but not limited to, the federal Telephone Consumer Protection Act, 47 U.S.C. Section 227(b )(1 )(B), and New York State General Business Law Section 399-p, or any statutes, laws, regulations, or rules of any other State of the United States that address telephone calls that, upon being answered, play an artificial or prerecorded voice to deliver a message or are otherwise made or received without consent. (Ag. 2 (emphasis added).) The parties agreed that the effective date of the Agreement would be: …the date on which the last Party affixes such Party’s signature hereto, provided that, within five (5) calendar days from the date on which the first Party affixes such Party’s signature hereto, the last Party to have affixed such Party’s signature hereto transmits the fully signed Agreement, or a copy of the Agreement containing the last Party’s signature, to the Party that had first signed the Agreement. (Ag. 1.) As a condition for accepting the settlement money, the plaintiff agreed that he would “dismiss the Litigation with prejudice, with each Party bearing its own costs and attorney’s fees.” (Ag. 7.) The plaintiff signed the Agreement on March 23, 2019, and the defendant signed and returned the Agreement to the plaintiff on March 26, 2019. (ECF No. 28, Defendant’s Rule 56.1 Statement (“Def. 56.1″)
11, 13, 14; ECF No. 33-1, Plaintiff’s Rule 56.1 Response (“Pl. 56.1″)
