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May 18, 2001


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 proceedings.

A. The Lawsuits

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 consolidated basis.

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 consummated.

Although the parties had agreed to a monetary settlement, several non-monetary issues remained. Perhaps most significantly, the settlement was conditioned upon the City granting plaintiff's then-pending application for a disability retirement; the parties agreed that plaintiff would retire once his application was granted. From April 1999 to December 1999, the parties continued to negotiate the non-monetary terms of the settlement agreement, with the Court twice granting extensions of the time in which the actions could be reinstated. During this period, at least six drafts of a settlement agreement were exchanged by the parties.

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: ...

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