this regard, in the absence of a time-is-of-the-essence provision in the parties' agreement, and in view of the lack of any detrimental change in position by any of the other contracting parties as a result of the Government's delay in ratifying the settlement for a period of 84 days, the Court considers the Government's ratification of the settlement to have been accomplished within a reasonable time in substantial compliance with this condition.
II. Plaintiff's Asserted Grounds for Rescission
Having concluded that the prerequisites to contract formation have been met, the Court now turns to consider the plaintiff's asserted defenses. Specifically, the plaintiff's arguments may be construed to assert that the settlement agreement is voidable by him, on account of his failure to estimate accurately the amount of the outstanding liens, under the doctrines of mutual mistake, unilateral mistake, or estoppel.
At the outset, the Court observes that the doctrine of mutual mistake is unavailable to the plaintiff because the record fails to establish that the parties were mutually mistaken with respect to a fact or assumption going "to the heart of the agreement." Beecher, 441 F. Supp. at 430 (citations omitted); see, e.g., Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887) (contract for sale of a barren cow was voidable where the cow was later discovered to be fertile).
In addition, the plaintiff is unable to invoke the rubric of unilateral mistake under the facts of this case. "It is well settled that in order for a court to allow rescission of a contract on the basis of a unilateral mistake, a party must establish that (i) he entered into a contract under a mistake of material fact, and that (ii) the other contracting party either knew or should have known that such mistake was being made." Ludwig v. NYNEX Serv. Co., 838 F. Supp. 769, 795 (S.D.N.Y. 1993) (citing United States v. Metro Novelty Mfg. Co., 125 F. Supp. 713, 713-14 (S.D.N.Y. 1954)). Upon consideration of the record, the Court finds that the plaintiff fails to sustain this defense as he is unable to establish that at the time of the Settlement Conference, any of the defendants, through their attorneys, knew or should have known that the plaintiff was proceeding under a mistaken assumption concerning the amount of the non-federal agency liens, and failed to disclose this to the plaintiff. Indeed, the Court has explicitly found that, prior to the January 11, 1995 settlement conference, AUSA Cleary told plaintiff's counsel that he believed the Medicaid lien figure previously provided by the City of New York Department of Social Services to be substantially understated. In addition, plaintiff's counsel warned his client to expect the assertion of additional liens that could increase the aggregate amount thereof to approximately $ 300,000. In light of these circumstances, and moreover, in view of the language of the Notice of Lien indicating that the lien asserted through May 10, 1994 was subject to augmentation, it is clear that the possibility that the state Medicaid liens subsequently asserted would exceed plaintiff's subjective expectations constituted a risk that the plaintiff freely undertook as part of his bargain. Therefore, the plaintiff's mistake may not be used as a basis for rescission. See Beecher, 441 F. Supp. at 429.
The plaintiff likewise is unable to invoke the doctrine of estoppel to prevent the enforcement of the settlement agreement against him. "Under the law of the Second Circuit, the elements of estoppel are (1) a representation of material fact, (2) reliance by the aggrieved party thereon, and (3) injuries resulting from such reliance. Each of these elements must be established to make out a claim of estoppel." Ludwig, 838 F. Supp. at 795 (citing Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993)). In this case, the plaintiff is unable to demonstrate that he relied to his detriment upon a representation made by one or more of the defendants concerning the amount of the state Medicaid liens. Accordingly, estoppel may not be used as a basis for rescission.
III. Plaintiff's Request for a Hearing to Determine Portion of Settlement Fund Allocable to Past Medical and Hospital Expenses
Finally, the plaintiff has requested a hearing, pursuant to Baker v. Sterling, 39 N.Y.2d 397, 384 N.Y.S.2d 128, 348 N.E.2d 584 (1976), so that this Court may decide what portion of the $ 2,000,000 settlement fund is attributable to past medical and hospital expenses, and thereby susceptible to recovery by the City of New York Department of Social Services through its assertion of a Medicaid lien. This application is wrought with difficulties. Among other things, the Court observes that the appropriate State agency is not a party to this action, and possibly would assert the Eleventh Amendment as a defense to joinder. Further, any such ruling by this Court could be construed as an advisory opinion thereby warranting dismissal, because an indispensable party to such adjudication is absent from the proceeding. See Fed. R. Civ. P. 19(b). Conversely, a determination in the absence of such party presumably would lack the collateral estoppel effect that plaintiff desires, because the party against whom preclusion is sought would not have been afforded a full and fair opportunity to litigate this issue. See Simmons v. Aiken, 100 A.D.2d 769, 474 N.Y.S.2d 41, 42 (App. Div. 1st Dep't 1984) (City of New York Department of Social Services entitled to some discovery for Baker v. Sterling hearing, as it was not a party to the settlement); see also Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995) (Under New York law, the doctrine of collateral estoppel "only applies if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.") (citations omitted). In view of these concerns, the plaintiff's request for a hearing is denied at this juncture without prejudice to reapply. In the event of reapplication, the parties will be required to brief these issues.
For the foregoing reasons, the settlement is confirmed in accordance with the Court's analysis herein. In addition, plaintiff's motions and cross-motions to vacate the asserted Medicaid and Medicare liens at issue are denied. Further, the plaintiff's request for a hearing to determine the portion of the settlement fund that is attributable to past medical and hospital expenses is denied without prejudice to reapply, within 20 days of the date that this Memorandum and Order is docketed, in accordance with the instructions stated herein. Finally, the parties' motions and cross-motions for sanctions are denied.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
March 11, 1996