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Kali Clark v. Gotham Lasik

March 5, 2012


The opinion of the court was delivered by: TO The Honorable Barbara S. Jones, U.S.D.J.:


The plaintiff in this action, Kali Clark, seeks enforcement of a settlement agreement that she allegedly entered into with the defendants, Gotham Lasik Vision Center LLC ("Gotham Lasik"), Brian Bonanni, M.D., and Christopher Coffee. The settlement discussions occurred at a court-ordered mediation conducted by a private mediator. The defendants contend that they never agreed to the terms now proposed by Ms. Clark, that they agreed to settle only in principle, and that any oral indication of agreement by them is unenforceable. For the reasons set forth below, I recommend that the plaintiff's motion be denied.


Ms. Clark originally filed suit on February 24, 2011, against her employer, Gotham Lasik, and its owners, Dr. Bonanni and Mr. Coffee. Ms. Clark alleged that the defendants violated the New York City Human Rights Law by failing to accommodate her disability and by wrongfully terminating her on account of that disability. (Complaint ("Compl."), ¶ 1). The case is in federal court based on diversity. On April 18, 2011, the parties were ordered to participate in the Court's mandatory mediation program for employment discrimination cases (Order of Automatic Referral to Mediation filed April 18, 2011; Affirmation of O. Iliana Konidaris dated Aug. 22, 2011 ("Konidaris Aff."), ¶ 4), and on June 30, 2011, they attended a mediation session presided over by Hillary Miller, a volunteer mediator. Present at the session were the plaintiff and the plaintiff's attorneys, Jason Solotaroff and Iliana Konidaris. Also present were the defendant Dr. Bonanni, and counsel for both defendants, Ernest Stolzer and Amy Culver of the firm Bond, Schoeneck & King, PLLC. The other defendant, Mr. Coffee, was not at the session. (Declaration of Christopher Coffee dated Sept. 23, 2011 ("Coffee Decl."), attached as Exh. 2 to Defendants' Memorandum of Law ("Def. Memo."), ¶¶ 3, 5; Konidaris Aff., ¶ 5).

After several hours of mediation, a settlement was proposed pursuant to which the defendants would pay Ms. Clark $40,000. Payment was to be made in three installments of $13,333.33 each on or before August 1, November 1, and December 31, 2011. The plaintiff states that the proposal also included provisions that any late payment would render the entire $40,000 due immediately, that the parties would exchange full and unconditional releases, and that Dr. Bonanni would confirm Ms. Clark's employment to prospective employers. Ms. Clark claims that, in the presence of Mr. Miller, the parties carefully reviewed the settlement and the defendants orally agreed to it. (Konidaris Aff., ¶¶ 6, 7).

The defendants assert that at the June 30 mediation session Dr. Bonanni agreed in principle to settle the case for $40,000. In addition, he would confirm Ms. Clark's employment to prospective employers, and she would be deemed to have resigned on December 1, 2010. According to the defendants, mutual releases were never discussed or agreed to. The defendants contend that Mr. Coffee never agreed to the proposed settlement because he was not present at the mediation session. (Declaration of Brian Bonanni dated Sept. 23, 2011 ("Bonanni Decl."), attached as Exh. 1 to Def. Memo., ¶¶ 4-6; Coffee Decl., ¶¶ 3, 5; Def. Memo. at 5-6).

At the conclusion of the mediation session, the attorneys for both sides agreed that defendants' counsel would prepare the first draft of a settlement agreement. (Konidaris Aff., ¶ 8; Bonanni Decl., ¶ 9). On July 15, 2011, Ms. Konidaris informed the Court by letter that the parties had settled the case, and on July 19, 2011, the Court issued an order discontinuing the action, provided that either party could move to restore the action within 30 days if settlement had not been consummated. (Order dated July 19, 2011; Konidaris Aff., ¶ 9). On July 26, 2011, Ms. Culver, defendants' counsel, provided a draft of the settlement agreement to Ms. Konidaris. (Konidaris Aff., ¶ 10). On July 29, 2011, Ms. Konidaris sent back an edited version of the agreement. (Konidaris Aff., ¶ 11).

On August 2, 2011, Ms. Konidaris sent an e-mail to Ms. Culver asking that Dr. Bonanni fill out a form that Ms. Clark needed in connection with a pending job offer. Shortly thereafter Dr. Bonanni provided a completed form as requested. (Reply Memorandum of Law at 3 & n.3; Affirmation of Jason Solotaroff dated Sept. 30, 2011 ("Solotaroff Aff."), ¶ 4 & Exhs. 3-4). At this time, the defendants were seemingly still reviewing the edits to the settlement agreement proposed by the plaintiff.

On August 18, 2011, the defendants' attorneys informed Ms. Konidaris that they were no longer willing to enter into the settlement as discussed on June 30. Instead, they stated that the most Dr. Bonanni was willing to pay Ms. Clark was $12,000, and that Mr. Coffee intended to file a harassment lawsuit against Ms. Clark. (Konidaris Aff., ¶ 12).

Accordingly, on August 23, 2011, the plaintiff brought the current motion. She seeks an order (1) enforcing the settlement allegedly agreed to by the parties at the court-ordered mediation, (2) entering judgment against the defendants pursuant to the terms of the settlement agreement, (3) awarding her the attorneys' fees and costs she has incurred in connection with this motion, and (4) imposing sanctions against the defendants. (Notice of Motion dated Aug. 22, 2011).


A. Standard for Enforcing an Oral Settlement The plaintiff asks the Court to hold that the oral representations made by the defendants at the mediation session constitute a binding agreement. No mutually agreed upon writing bearing the signatures of both parties has been submitted as evidence that the defendants entered into a settlement. When determining if a settlement agreement is binding, whether it was reduced to writing or made orally, the burden lies with the party seeking enforcement. "'A party seeking to enforce a purported settlement agreement has the burden of . . . demonstrat[ing] that the parties actually entered into such an agreement.'" Min v. Target Stores, 553 F. Supp. 2d 218, 221 (E.D.N.Y. 2008) (alterations in original) (quoting Benicorp Insurance. Co. v. National Medical Health Card Systems, Inc., 447 F. Supp. 2d 329, 335 (S.D.N.Y. 2006)).

In Winston v. Mediafare Entertainment Corp., 777 F.2d 78 (2d Cir. 1985), the Second Circuit laid out several factors to be addressed in determining whether parties intended to be bound by an agreement in the absence of a document executed by both sides. "The Court is to consider: (1) whether there has been an express reservation of the right not to be bound in the absence of a 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. at 80; accord Powell v. Omnicom, BBDO/PHD, 497 F.3d 124, 129 (2d Cir. 2007); Abel v. Town Sports International Holdings, Inc., No. 09 Civ. 10388, 2010 WL 5347055, at *4 (S.D.N.Y., Dec. 23, 2010). I will address each factor in turn.

1. Reservation Not to Be Bound Neither of the two versions of the settlement agreement -- the plaintiff's draft or the defendants' draft -- contains an express right not to be bound until the executtion of a written agreement. Likewise, neither party has indicated that they discussed a right not to be bound in the absence of a writing during the mediation session. The absence of such an express reservation weighs in favor of finding the oral agreement enforceable. However, discussion by parties of the need for a formal settlement agreement and subsequent negotiations regarding the terms of the agreement "approach an express reservation of the right not to be bound until a written settlement ...

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