Gomez v. The City of New York et al

Filing 43

MEMORANDUM & ORDER for 35 Report and Recommendations, 18 Motion for Settlement filed by The City of New York, New York City Police Department. Having reviewed the Report and Recommendation and all other materials in the record, I am in c omplete agreement with Judge Ellis and hereby ADOPT the Report and Recommendation in its entirety. Defendants' motion to enforce settlement is DENIED. The parties are directed to contact Judge Ellis regarding scheduling in this matter. The Clerk's Office is respectfully directed to close the pending motion, (Doc. 18). (Signed by Judge Vernon S. Broderick on 3/26/2015) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
O’NEIL GOMEZ,
:
:
Plaintiff,
:
:
- against :
:
THE CITY OF NEW YORK, et al.,
:
:
Defendants. :
:
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3/26/2015

13-CV-1822 (VSB)
MEMORANDUM & ORDER

Appearances:
Amy Rameau
Brooklyn, New York
Counsel for Plaintiff
Noreen Stackhouse
New York City Law Department
New York, New York
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Plaintiff O’Neil Gomez initiated this action by filing his Complaint alleging claims of
false imprisonment and excessive force arising from his arrest by members of the New York City
Police Department. Defendants filed a motion to enforce an alleged oral agreement between the
parties to settle this case. (Doc. 18.) Before me are: the Report and Recommendation of United
States Magistrate Judge Ronald L. Ellis (the “Report and Recommendation” or “R&R,” Doc.
35), Defendants’ objections to the Report and Recommendation, (Doc. 36), and Plaintiff’s
response to Defendants’ objections, (Doc. 41). Because I find that the R&R is well-reasoned and
thorough, I overrule Defendants’ objections and ADOPT the Report and Recommendation in its
entirety. Accordingly, Defendants’ motion is DENIED.

Background and Procedural History
Plaintiff initiated this action by filing his Complaint on March 19, 2013. (Doc. 1.) On
March 26, 2013, Judge Lewis A. Kaplan, to whom the case was originally assigned,1 referred the
case to Judge Ellis as part of the Court’s Plan for Certain Section 1983 Cases against The City of
New York (“the 1983 Plan”). (Doc. 2.) On October 9, 2013, the City requested permission to
opt out of the 1983 Plan because Defendants had decided to take a “no pay” position and were
“not interested in settlement at this time.” (Docs. 7, 8.) Following an initial pretrial conference
on December 12, 2013, Judge Ellis issued an order granting Defendants’ request to opt out of the
1983 Plan. (Doc. 10.)
On February 21, 2014, counsel for the City filed a letter asserting that the parties had
settled the case on December 18, 2013, but she was informed by Plaintiff’s attorney, Robert
Nicholson (“Nicholson”), that Plaintiff was now refusing to sign the settlement paperwork.
(Doc. 12.) Defendants requested that the Court uphold the settlement. (Id.) On March 19, 2014,
Judge Ellis set a briefing schedule for Defendants’ motion to enforce the settlement agreement.
(Doc. 15.) On April 14, 2014, Defendants filed their Motion. (Doc. 18.) Plaintiff’s new counsel
filed a notice of appearance, (Doc. 24),2 and Plaintiff’s Opposition on May 15, 2014, (Doc. 25).
On May 28, 2014, Defendants filed their Reply. (Doc. 30.)
Judge Ellis issued his Report and Recommendation on February 10, 2015. (Doc. 35.)
Defendants submitted their Objections to the R&R on February 27, 2015 (the “Objections” or
“Ds’ Objections”).3 After I granted Plaintiff a short extension, (Doc. 40), he submitted his

1

This case was reassigned to me on February 3, 2014.

2

Nicholson did not file a Notice of Substitution of Attorney until January 14, 2015, (see Doc. 34), but Plaintiff has
been represented by his current counsel since he terminated Nicholson in February 2014. (See Doc. 37 ¶¶ 27-30.)
3
“Ds’ Objections” refers to Defendants’ Memorandum of Law in Support of Their Objections to the Report and
Recommendation of the Honorable Ronald L. Ellis. (Doc. 36.)

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opposition to Defendants’ Objections on March 19, 2015, (Doc. 41).
For purposes of this Order, I assume familiarity with the underlying facts and analysis as
set forth in Judge Ellis’s Report and Recommendation.
Legal Standards
In reviewing a magistrate judge’s report and recommendation, a district court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). Parties may raise specific, written objections to the
report and recommendation within 14 days of being served with a copy of the report, id.; see also
Fed. R. Civ. P. 72(b)(2). When a party submits a timely objection, a district court reviews de
novo the parts of the report and recommendation to which the party objected. 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). With regard to the unobjected-to portions of a
report and recommendation, a district court reviews the report and recommendation for clear
error. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Wilds v. United Parcel Serv.,
Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The clear error standard also applies when
objections are general, conclusory, or simply reiterate the arguments previously made in a
party’s submissions. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008); see also Vega
v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) (“[O]bjections
that are merely perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original petition will not suffice to invoke de
novo review of the magistrate’s recommendations.”).
Discussion
Before undertaking any analysis I must determine which portions of the R&R, if any, are
subject to a properly specific objection warranting de novo review. Defendants make two basic

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arguments in their Objections: that the parties entered into a binding settlement agreement that
must be enforced, (see Ds’ Objections 6-13), and that Nicholson had apparent authority to settle
on Plaintiff’s behalf, (see id. at 13-17). These are the same essential arguments Defendants made
in support of their motion to enforce settlement, (see generally Ds’ Mem. 6-7, 9-104; Ds’ Reply
3-95), and thus I need not undertake a wholesale de novo review of the R&R, see Ortiz, 558 F.
Supp. 2d at 451. Although each of the specific objections in support of these positions could be
read as mere reiterations of Defendants’ previous arguments, Defendants do raise two at least
arguably new arguments that are targeted to particular findings in the Report and
Recommendation. I review these objections de novo.
Defendants argue that Judge Ellis’s finding that they made an express reservation not to
be bound until written execution is based on distinguishable case law. (Ds’ Objections 8-10.)
Defendants assert that “no oral agreement to settle by the City of New York would ever be
enforceable” if “defendants’ request that plaintiff execute a standard Stipulation of Settlement
. . . illustrate[d] an express reservation to be bound only by a writing.” (Id. at 8.) As an initial
matter, “[n]o single factor is decisive” in determining whether the parties intended to be bound
by a settlement agreement, Ciaramella v. Reader’s Digest Ass’n, Inc., 131 F.3d 320, 323 (2d Cir.
1997), and thus Defendants’ blanket statement that “no oral agreement to settle by the City”
would ever be enforceable is unconvincing. In addition, as Defendants observe, the Second
Circuit in Ciaramella “found it persuasive that ‘[o]ther parts of the agreement also emphasize[d]
the execution of the document.’” (See Ds’ Objections 9 (quoting 131 F.3d at 325).) Defendants

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“Ds’ Mem.” refers to Defendants’ Memorandum of Law in Support of Their Motion to Enforce the Settlement
Agreement of the Parties. (Doc. 20.)
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“Ds’ Reply” refers to Defendants’ Reply Memorandum of Law in Support of Their Motion to Enforce the
Settlement Agreement of the Parties. (Doc. 30.)

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fail to note, however, that here the proposed stipulation of settlement contains references to
written documents beyond those in the merger clause. (E.g., P’s Opp. Ex. D, 4 (“Plaintiff shall
execute and deliver to defendant City of New York’s attorney all documents necessary to effect
this settlement . . . .”), 7 (“This release may not be changed orally. The undersigned has read the
foregoing release and fully understands it . . . .”).)6 Defendants’ attempt to distinguish Nieves v.
Community Choice Health Plan of Westchester, No. 08-CV-321, 2011 WL 5531018 (S.D.N.Y.
Nov. 14, 2011), is unavailing for the same reason. Moreover, as in Ciaramella, 131 F.3d at 325,
there is no evidence suggesting that either party considered the signed documents unnecessary;
to the contrary, Defendants’ counsel repeatedly sought Plaintiff’s signature, making clear that
Nicholson and Plaintiff must sign the documents before a notary. Nowhere in the
communications do Defendants suggest that Plaintiff need not sign the documents. I am in
complete agreement with Judge Ellis’s finding that nothing in the record indicates that the parties
intended to be bound absent written settlement documents.
Defendants also argue that the Affidavit of Status of Liens (“Affidavit of Liens”) “was
not an additional material term” that remained open for negotiation. (Ds’ Objections 10-11.)
Much of Defendants’ argument regarding the Affidavit of Liens simply parrots Defendants’
Reply brief, (compare Ds’ Reply 5-6 with Ds’ Objections 10-11), but, while not entirely clear, I
also interpret Defendants to raise an objection to Judge Ellis’s determination that all terms, not
just material terms, must be agreed upon to support contract formation.7 As Judge Ellis
observed, however, “minor or technical points” can indicate that the contract remained open.

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“P’s Opp.” refers to Plaintiff’s Memorandum of Law in Opposition to Defendants’ Objections to the Report and
Recommendation of the Honorable Ronald L. Ellis. (Doc. 41.) Attached as Exhibit D is the draft Stipulation and
Order of Dismissal proposed by Defendants’ counsel.

7
Nothing in the record indicates the City’s or Corporation Counsel’s policy, if any, with respect to whether such
terms must be agreed to in a signed writing.

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See Ciaramella, 131 F.3d at 325; see also Winston v. Mediafare Entm’t Corp., 777 F.2d 78, 8283 (2d Cir. 1985). Defendants have provided no non-conclusory basis for finding that agreement
on the Affidavit of Liens was not material to the settlement. Accordingly, insofar as Defendants
object to Judge Ellis’s determination that the open Affidavit of Liens term indicated that the
parties had not reached agreement on all contract terms, that objection fails. I review the
remainder of Defendants’ rehashing of their arguments regarding the Affidavit of Liens for clear
error, and find none.
Judge Ellis did not reach Defendants’ apparent authority arguments because he found that
no contract had been formed. Based on my review under the applicable standards, I reach the
same conclusion for substantively the same reasons described in the Report and
Recommendation.
Defendants’ remaining arguments are simply reiterations of arguments that they made in
support of their motion to enforce settlement.8 I thus review the portions of the R&R to which
these arguments apply for clear error, Lewis, 573 F. Supp. 2d at 811, and find none. Further,
even if I were reviewing the entirety of the R&R de novo, I find Defendants’ Objections without
merit for essentially the same reasons as articulated by Judge Ellis.
Conclusion
Having reviewed the Report and Recommendation and all other materials in the record, I
am in complete agreement with Judge Ellis and hereby ADOPT the Report and Recommendation
in its entirety. Defendants’ motion to enforce settlement is DENIED.

8
In many cases, Defendants have quoted from or cursorily re-written the briefs submitted in support of their motion
to enforce settlement. In other cases, they simply add general citations to case law without explanation.

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The parties are directed to contact Judge Ellis regarding scheduling in this matter. The
Clerk’s Office is respectfully directed to close the pending motion, (Doc. 18).
SO ORDERED.
Dated: March 26, 2015
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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