The opinion of the court was delivered by: Chin, D.J.
Plaintiff Gil Q. Alvarez, a sergeant employed by the New York City
Police Department (the "NYPD"), brought these actions asserting claims
under Title VII, 42 U.S.C. § 1983, and the Americans with
Disabilities Act (the "ADA"). Over the course of a year and half, the
parties engaged in extensive settlement discussions. At two different
junctures, the parties reported to the Court that a settlement had been
reached, and each time, the Court
issued an order dismissing the case,
allowing the parties time to execute a settlement agreement. Both times,
however, resolution was not to be.
The second time, both sides advised the Court that the proposed terms,
as discussed after after many hours of negotiation, were acceptable. But
before a final settlement agreement could be signed, defendants were
informed that plaintiff had fired his attorney, retained new counsel, and
objected to the settlement. The cases were reinstated. Defendants
— the City of New York (the "City"), the NYPD, and various police
officers and City officials — now move to enforce the settlement.
For the reasons that follow, defendants' motion is granted.
The following constitute my findings of fact, which are based on the
affidavits and other materials submitted by the parties as well as my
personal knowledge of the settlement discussions and the prior
In October 1996, Alvarez filed a Title VII action ("Alvarez I") in
which he alleged that the NYPD had discriminated and retaliated against
him because he had refused to submit negative performance evaluations of
minority police officers who had complained of discriminatory treatment
and the use of racial slurs by police officers. Alvarez, a law school
graduate who is not admitted to the Bar, was represented in Alvarez I by
Jonathan N. Fuchs, Esq. In early 1998, the parties settled Alvarez I,
with the City paying Alvarez $62,500. See generally Alvarez v. City of
New York, 2 F. Supp.2d 509, 511-12 (S.D.N.Y. 1998).
Barely a month after the stipulation of settlement was "so ordered" in
Alvarez I, Alvarez commenced a second action ("Alvarez II"), alleging
that the NYPD was discriminating and retaliating against him by, among
other things, commencing an Internal Affairs investigation into his
conduct. See id. at 513. Alvarez was represented in Alvarez II by Bonita
E. Zelman, Esq.
In October 1998, Alvarez filed a third lawsuit ("Alvarez III"),
represented by yet another attorney, Robert David Goodstein, Esq., also
alleging retaliation by the NYPD. See Alvarez v. City of New York,
31 F. Supp.2d 334, 336 (S.D.N.Y. 1998). In January 2000, Alvarez filed a
fourth lawsuit ("Alvarez IV") against the NYPD for retaliation,
represented again by Goodstein. Goodstein took over Alvarez II for
Zelman; Alvarez II, Alvarez III, and Alvarez IV were handled on a
B. The Settlement Discussions Begin
The parties entered into discussions to settle Alvarez II and Alvarez
III in December 1998. At that time, plaintiff was represented by
Goodstein. In April 1999, the parties agreed to a monetary settlement of
plaintiff's claims, and counsel reported to the Court on April 28, 1999
that the cases had been settled. As a consequence, on April 28, 1999, the
Court issued a "60-day order" dismissing the cases but providing that
they could be reinstated within sixty days if settlement was not
As of August 1999, only two minor items remained to be resolved. (See
Declaration of Naomi Sheiner ("Sheiner Decl."), Ex. B). In October 1999,
Goodstein informed defense counsel that he had not obtained a response
from plaintiff on the outstanding issues. The Court held a conference to
resolve the differences, at which time defendants added three new
demands. The Court made recommendations with respect to the settlement of
all five items. By November 23, 1999, the parties had reached agreement
in principal on all five items, and had only to approve the final
language of the settlement agreement.
On December 23, 1999, Goodstein requested a further extension of the
period during which the parties could restore the actions to the Court's
calendar. The Court denied this request on December 28, 1999 and restored
the cases to its active calendar. Nonetheless, by December 30th, a draft
settlement (the "December 1999 Stipulation") had been approved by the
NYPD Legal Department and all the attorneys. (Id., Exs. E, F). The
December 1999 Stipulation was contingent on the approval of plaintiff's
application for disability retirement.
In January 2000, however, the NYPD Medical Board denied plaintiff's
disability retirement application. (Id., Ex. G) Consequently, the
settlement fell through. Although plaintiff indicated his willingness to
comply with the terms of the December 1999 Settlement if the Medical
Board would reconsider, defense counsel informed him that defendants had
no authority over the Medical Board. (Id.).
C. The Settlement Discussions Continue
The Medical Board's decision did not end the settlement discussions. As
an alternative, defense counsel proposed, in a letter dated January 6,
2000, that the parties enter into a settlement identical to the December
1999 Settlement, except that plaintiff would agree to separate from the
NYPD with vested retirement rights upon execution of the settlement (the
"January 2000 Settlement"). (Id.). In that letter, defense counsel
proposed that "[p]laintiff's separation from service [would] be without
prejudice to his right to pursue his current application for disability
retirement . . . and without prejudice to his right to seek judicial
review in the event of the denial of his application for disability
retirement pursuant to Article 78 of the CPLR." (Id.). According to
defense counsel, both Goodstein and defense counsel "agreed that [this
provision] permitted plaintiff to bring an Article 78 as a means of
appealing the medical determination, but did not permit him to retain any
right to assert any other claims including constitutional claims or
claims under the ADA." (Sheiner Decl. ¶ 16).*fn1
At the May 30th conference, plaintiff indicated that he was not willing
to release certain Fair Labor Standards Act ("FLSA") claims asserted in
two pending class action lawsuits. According to defense counsel, this was
the first time plaintiff had made such a demand, and at no time did
plaintiff claim that the January 2000 Settlement permitted him to assert
federal claims in connection with the denial of his disability pension.
(Sheiner Decl. ¶ 20; Declaration of Janice Birnbaum ("Birnbaum
Decl."), ¶ 4).
At the end of the May 30th conference, the Court recommended a
settlement amount and also recommended that plaintiff be permitted to
retain his FLSA claims. The Court gave the parties a week to accept or
reject the recommendation. Defendants agreed to the settlement amount and
the retention of plaintiff's FLSA claims, but later informed Goodstein
that the pension loss had been miscalculated. Goodstein reported this
development to the Court and another conference was scheduled. Hence, at
that point it appeared that only one issue remained — the amount to
be paid to plaintiff.
Notwithstanding these discussions — which were focused primarily
on the monetary settlement — plaintiff claims that he told
Goodstein after the May 30th conference that "several non-monetary
aspects [of the settlement] . . . remained very important to [him]."
These items included his right to file an Article 78 proceeding
challenging the denial of disability retirement; payment for accrued
vacation, terminal leave, and compensatory time; and reimbursement of his
rehabilitation expenses. (Alvarez Aff. ¶¶ 25, 32). At this point, the
relationship between plaintiff and Goodstein began to sour.*fn2
At the June 13, 2000 conference with the Court, plaintiff added a new
condition of settlement — that the NYPD issue him a "good guy"
letter, a letter certifying, in effect, that plaintiff was
psychologically fit to retain his firearm license. Hence, only two
outstanding settlement issues remained: ...