Wade v. Zambrano et al
MEMORANDUM DECISION AND ORDER: Defendants' motion to enforce the settlement agreement is denied. By separate Order, the trial date will be reset. Ordered by Judge Brian M. Cogan on 6/29/2017. C/M. (Clarke, Melonie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: MEMORANDUM DECISION &
- against : ORDER
CITY OF NEW YORK, ORLEN ZAMBRANO; : 15-cv-6542 (BMC)
MICHAEL WEBER; and MICHAEL PARKS, :
COGAN, District Judge.
Plaintiff pro se brought this action pursuant to 42 U.S.C. § 1983, asserting claims of,
inter alia, false arrest and excessive force against the New York City police officers who
effected his arrest and allegedly punched plaintiff in the testicles three times when he verbally
protested his arrest. After discovery was completed, the Court held a Pretrial Conference and
scheduled trial to commence on May 1, 2017. On April 17, 2017, when defendants advised the
Court that the parties had reached a settlement agreement, the Court dismissed this case, subject
to reinstatement at the request of any party within 30 days.
Before the expiration of the 30-day time period for reinstatement, defendants moved to
enforce the settlement agreement claiming that plaintiff had refused to sign the agreement and
contested that a binding settlement agreement had been reached because he did not agree to it in
writing. I denied defendants’ motion as unnecessary because the case had already been
dismissed and, at that time, no party had moved to reinstate it.
At the eleventh hour, only after I had denied defendants’ motion to enforce the settlement
agreement, plaintiff moved to reinstate this case stating that “I do not agree to any settlement
offered from [defense counsel].” Because plaintiff filed his motion within the requisite time
period, the Court vacated its Order dismissing this action, reinstated both this action and
defendants’ motion to enforce the settlement agreement, and directed defendants and plaintiff to
submit any evidentiary support for their contentions as to whether a binding settlement
agreement was reached.
Defense counsel filed a declaration attesting to the following: (1) during a telephone
conversation on April 14, 2017, the parties reached a settlement agreement for a lump sum
payment of $12,000 to which plaintiff unequivocally agreed; (2) during that conversation,
defense counsel informed plaintiff that he would send plaintiff an email confirming their
agreement and plaintiff should also confirm the settlement agreement by responding to the email;
(3) after the conversation defense counsel emailed plaintiff and also mailed settlement paperwork
to plaintiff’s address; and (4) plaintiff never responded to defense counsel’s email, and several
days later informed defense counsel that he did not believe that a settlement had been reached.
Plaintiff failed to provide evidence in support of his contention that he did not agree to a binding
settlement offered by defense counsel.
For the reasons given below, defendants’ motion is denied.
“[A] district court has the power to enforce summarily, on motion, a settlement
agreement reached in a case pending before it.” Meetings & Expositions, Inc. v. Tandy Corp.,
490 F.2d 714, 717 (2d Cir. 1974). “A party seeking to enforce a purported settlement agreement
has the burden of demonstrating that the parties actually entered such an agreement.” Min v.
Target Stores, 553 F. Supp. 2d 218, 221 (E.D.N.Y. 2008) (internal quotation marks and
alterations omitted); see also Dreyfuss v. Etelecare Global Sols.-U.S. Inc., 349 F. App’x 551, 555
(2d Cir. 2009) (explaining that a party seeking to enforce a contract must prove that the contract
exists). A settlement agreement, like any contract, is only binding if there is “an offer,
acceptance, consideration, mutual assent, and intent to be bound.” Register.com, Inc. v. Verio,
Inc., 356 F.3d 393, 427 (2d Cir. 2004).
According to defendants, plaintiff orally agreed to settle the case for a specified amount,
but later contested that a binding agreement had been reached because he never confirmed the
agreement in writing. Although plaintiff’s position is far from clear, plaintiff’s only submission
to the Court regarding the settlement agreement seems to support this rendition of events. In his
motion to reopen the case, plaintiff stated that he “do[es] not agree” to any settlement offered by
defense counsel, not that he had never orally agreed to settle the case. Moreover, plaintiff did
not dispute that the oral agreement contemplated settlement of the case in exchange for a lumpsum payment. Therefore, for purposes of this motion, the Court will therefore assume that
plaintiff orally consented to a settlement agreement on the terms alleged by defendants, but now
wishes to revoke such consent.
It is an open question in the Second Circuit “whether the enforceability of a settlement
agreement in a federal action [is] to be determined under state or federal law.” Silas v. City of
New York, 536 F. Supp. 2d 353, 355 (S.D.N.Y. 2008), (citing Monaghan v. SZS 33 Associates,
L.P., 73 F.3d 1276, 1283 n. 3 (2d Cir. 1996)); see also Doe v. Kogut, No. 15-CV-07726, at *4
(S.D.N.Y. April 6, 2017). The Court need not resolve this issue as the oral settlement agreement
is unenforceable under both federal and New York law. In general, the parties’ intent as
“manifested by their express words and deeds at the time” controls whether the court may
enforce an oral agreement without a fully executed written document. Walker v. City of New
York, No. 05-CV-0004, 2006 WL 1662702, at *6 (E.D.N.Y. June 15, 2006) (internal quotations
and citations omitted).
Under federal law, the court applies the four-factor test articulated in Winston v.
Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1985), to determine whether the parties
intended to be bound by an oral settlement agreement. The court assesses “(1) whether there has
been express reservation of the right not to be bound in the absence of writing; (2) whether there
has been partial performance of the contract; (3) whether all of the terms of the alleged contract
have been agreed upon; and, (4) whether the agreement at issue is the type of contract that is
usually committed to writing. Id.; see also Ciaramella v. Reader’s Digest Ass’n, Inc., 131 F.3d
320, 323 (2d Cir. 1997). None of the four factors is dispositive. Kaczmarcysk v. Dutton, 414 F.
App’x 354, 355 (2d Cir. 2011) (citing Ciaramella, 131 F.3d at 324).
Here, the first Winston factor neither weighs in favor nor against enforcement of the
settlement agreement. Defense counsel claims that plaintiff “unequivocally” agreed to
settlement, but admits that plaintiff claims he did not believe that the settlement agreement was
binding because he never confirmed in writing. In light of plaintiff’s pro se status and the
special deference afforded to such litigants, and the absence of a recording of the telephone call
or any evidence as to the exact words that were said that would enable the Court to
independently determine whether plaintiff reserved a right not to be bound, the Court rejects
defense counsel’s conclusory allegation that plaintiff orally agreed to be bound in absence of a
The second Winston factor weighs against enforcement of the oral settlement agreement
as neither side has partially performed their obligations under the agreement. Defendants have
not remitted the lump-sum payment owed to plaintiff under the agreement nor has plaintiff taken
any action in furtherance of the agreement. The fact that defendants filed a notice of settlement
on the docket for this action does not support enforcement because the dismissal of the action
was to their benefit. Similarly, the fact that defendants emailed plaintiff to confirm the
agreement and mailed plaintiff the settlement papers does not support partial performance
because those are not among the alleged terms of the settlement agreement.
The third Winston factor, whether all of the terms of the alleged contract have been
agreed upon, is the only factor that weighs in favor of enforcing the settlement. The only alleged
terms of the agreement is that the case will be settled for one lump sum payment of $12,000.
Defense counsel, in his affidavit, attests that plaintiff orally agreed to settle the action for that
amount and plaintiff, despite being afforded the opportunity, has not submitted anything to the
Court contesting those terms. Moreover, defense counsel’s email to plaintiff confirming the
parties’ oral agreement only mentioned those terms.
Finally, the fourth Winston factor, whether the settlement agreement is of the type that is
usually committed to a writing, weighs against enforcement. I agree with defendants that there is
nothing complex about the lump-sum payment agreement in this case, but, as they admit in their
memorandum in support of their motion, “most settlement agreements involving the City are
written.” Although defense counsel argues that there was no reason to follow that tradition in
this case because the agreement was so simple, the Winston factor looks only to ordinary
practice, and the ordinary practice is that settlement agreements like this one are written. I thus
find that the Winston factors weigh against enforcement of the settlement agreement under
In addition to meeting the standard for enforcement as stated in Winston, for a settlement
agreement to be enforceable under New York, the agreement must also “meet the New York
statutory requirements for agreements related to litigation.” Silas, 536 F. Supp. 2d at 358; see
also Rivera v. State, 496 N.Y.S.2d 230 (1st Dep’t 1985). Under § 2104 of the C.P.L.R.
[a]n agreement between parties or their attorneys relating to any matter in an
action, other than one made between counsel in open court, 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.
The oral settlement agreement in this case is clearly unenforceable under § 2104 as it was neither
entered into in open court, nor ordered and entered by the Court.
Significantly, defendants have not identified, nor have I found, a single case where an
oral settlement agreement reached outside the presence of a judge or mediator was enforced
against a pro se plaintiff. In Silas, 536 F. Supp. 2d at 355, the Court even refused to enforce an
oral settlement agreement against a pro se plaintiff where the agreement was reached during an
off-the-record telephone settlement conference before the magistrate judge. Accordingly, I
decline to enforce the oral settlement agreement against plaintiff in this case.
Defendants’ motion to enforce the settlement agreement is denied. By separate Order,
the trial date will be reset.
Digitally signed by Brian
Dated: Brooklyn, New York
June 29, 2017
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