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Cole-Hoover v. State, Department of Correctional Services

United States District Court, Second Circuit

October 16, 2013

GWENDOLYN COLE-HOOVER, M.D., Plaintiff,
v.
STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, et al., Defendants.

DECISION AND ORDER

JEREMIAH J. McCARTHY, Magistrate Judge.

Pursuant to 28 U.S.C. §636(c)(1), the parties have consented to conduct all proceedings before a Magistrate Judge [20].[1] Defendants now move to compel plaintiff to execute their draft of a written agreement purportedly reflecting the terms of a settlement agreed to on the record on November 5, 2012 or, in the alternative, to vacate the settlement and reschedule this case for trial [384]. Plaintiff opposes that motion, and cross-moves to compel defendants to execute her version of a settlement agreement [388]. Oral argument was held on August 27, 2013 [389].

Since neither version of the settlement agreement accurately reflects the material terms of the settlement which was placed on the record, both motions are denied.

BACKGROUND

The jury trial of this action was scheduled to commence on Wednesday, November 7, 2012 [334]. By that time, the action had been pending for ten years, the trial had been repeatedly adjourned, and the parties were aware that I had set aside an entire month for the trial [300].

The parties were also aware that no further adjournments of the trial would be granted. On October 15, 2012, plaintiff moved to adjourn the trial date for 60 days because she had recently changed counsel [315]. Defendants opposed that motion, arguing that "they are all involved in this case against the their will, and it is simply unfair to expect them to repeatedly prepare and make plans, only to have the trial fall apart at the last minute. Their lives have been disrupted enough by this case. It is time to try the case and bring it to an end." Longo Declaration [316], ¶¶46-47. In denying plaintiff's motion, I agreed with defendants, stating that "continuances can be highly disruptive to the courts and the parties" (Decision and Order [319], p. 4), and that "a trial date once set must be adhered to unless there are compelling reasons for granting a continuance". Id.

On the morning of Monday, November 5, 2012 - two days before the trial was scheduled to commence - counsel telephoned my chambers to report that they had reached a settlement. That afternoon, the material terms of that settlement were placed on the record ([384-1], pp. 17-21 of 72). At that time, defendants' attorney Darren Longo stated: "I have offered and the plaintiff has accepted $750, 000 total inclusive of damages, costs and fees to settle this case and also to settle [three other cases involving plaintiff]. I have advised counsel that because of the new Medicare and Medicaid laws there are some documents that I am going to have to ask for because they determine how I must word the stipulation, but I anticipate that given plaintiff's likely situation it would not take long to obtain the paperwork and then I can draft the stipulation and have it signed and submitted to the court" (id., p. 17 of 72).

I asked whether "the dismissal of the claims would be with prejudice in return for the payment of the settlement amount", and counsel both agreed (id.). I then asked counsel "to confirm that these are the material terms of the settlement, and that although documentation needs to be executed to confirm the settlement, the settlement of these four actions will be effective as of today, notwithstanding any additional documentation which needs to be executed", and counsel again agreed (id., p. 18 of 72). My Text Order issued that same day [338] stated: "A settlement has been reached in this case, the material terms of which were placed on the record at today's proceeding. Therefore, the jury trial scheduled to commence on November 7, 2012 is cancelled. The parties shall file an executed stipulation of dismissal."

Having spent the better part of the past year attempting to finalize the language of the settlement documentation, the parties have reached an impasse. Defendants now ask me to compel plaintiff to execute their version of a settlement agreement ([384-1], pp. 23-31 of 72), and plaintiff asks me to compel defendants to execute her version ([388-1], pp. 1-4 of 4). There are several areas of dispute, each of which will be addressed.

ANALYSIS

A. Nature of the Settlement Agreement

Defendants argue that the November 5, 2012 settlement was "subject to the further exchange of information by the parties... and the execution of a stipulation of settlement". Longo Declaration [384-1], ¶4. I disagree. "The words subject to' usually indicate a condition to one party's duty of performance." Burgess Construction Co. v. M. Morrin & Son Co. , 526 F.2d 108, 113 (10th Cir.1975), cert. denied, 429 U.S. 866 (1976). Although the execution of a written agreement was contemplated by the parties, it was not a condition of the settlement. To the contrary, I stated, and the parties agreed, that "although documentation needs to be executed to confirm the settlement, the settlement of these four actions will be effective as of today, notwithstanding any additional documentation which needs to be executed". [384-1], p. 18 of 72 (emphasis added).

"A preliminary' oral [settlement] agreement, entered into in anticipation of a later writing memorializing its terms, is no less binding than a written agreement, so long as the parties have not expressly reserved the right not to be bound in the absence of a writing." Bastedo v. North Rose-Wolcott Central School District, 929 F.Supp.2d 223, 225 (W.D.N.Y. 2013) (Larimer, J.); Wilson v. General Mills, Inc., 2010 WL 9175391, *4 (W.D.N.Y. 2010) (McCarthy, M.J./Skretny, J.), aff'd, 2011 WL 2023002 (2d Cir. 2011) (Summary Order). See also Brackens v. Sedgwick Claims Management Services, Inc., 2008 WL 906121, *3 (D.Colo. 2008) ("The fact that [defense counsel] had agreed to prepare settlement documents for filing with the court... does not alter the binding nature of an oral contract when the parties have had a meeting of the minds. It was not part of the agreement that the terms the parties had agreed upon were subject to' preparation of a written document").

My October 15, 2012 Decision and Order [319] left no doubt as to my position on further adjournments of the trial. Therefore, the parties were well aware that, had they expressly conditioned the settlement upon the execution of a written agreement (which Mr. Longo stated would take "a week and a half to two weeks" ([384-1], p. 17 of 72)), I would not have adjourned the trial. Having obtained the cancellation of the trial by agreeing on the record that the settlement was effective as of November 5, 2012, the parties cannot now be allowed to change course. "Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter... assume a contrary position." New Hampshire v. Maine , 5 ...


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