Silas v. City of New York

536 F.Supp.2d 353

Rodney SILAS, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

No. 05 Civ. 7181 (RJH)(MHD).

United States District Court, S.D. New York.

February 21, 2008.

Rodney Silas, Bronx, NY, pro se.

Prathyusha Bandi Reddy, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.

MEMORANDUM OPINION & ORDER

RICHARD J. HOLWELL, District Judge.

Pro se plaintiff Rodney Silas sued defendants New York City and certain New York City correctional officer for violations of 42 U.S.C. § 1983 in connection with a claim for use of excessive force. The case was referred to Magistrate Judge Dolinger for general pretrial purposes. A settlement conference was held before Judge Dolinger on January 19, 2007 at which time counsel for defendants appeared in person and plaintiff, then incarcerated at the Marcy Correctional Facility, appeared by telephone. At the end of the conference, plaintiff orally accepted defendants' counsel's offer to settle the case for $1,500. The oral agreement was not recorded at that time. On January 23, 2007 defendants' counsel mailed settlement papers to defendant. However, on January 22, 2007 the plaintiff had written to defendants' counsel advising him that plaintiff was no longer willing to settle the case on the terms that had been agreed to at the settlement conferences.

Defendants thereafter moved to enforce the terms of the settlement, arguing that "(1) the oral settlement agreement that was reached before the Court on January 19, 2007 is goverened by state law and (2) the agreement satisfies New York C.P.L.R. 2104." (Defs.' Supp. Mem. at 3-4).

On September 24, 2007 Judge Dolinger issued a Report and Recommendation that defendants' motion be denied. A copy of the Report is attached in its entirety. Judge Dolinger noted that it was an open question in the Second Circuit whether, the enforceability of a settlement agreement in a federal action was to be determined under state or federal law. (Report at 357-58) (citing Monaghan v. SZS 33 Assocs., L.P., 73 F.3d 1276, 1283 n. 3 (2d Cir.1996).) However, since defendants conceded that New York law applied, he reviewed the relevant case law interpreting C.P.L.R. 2104. This rule provides:

An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.

Since there was no writing subscribed by the plaintiff and no order entered by the court, Judge Dolinger concluded that the parties' oral agreement was enforceable under C.P.L.R. 2104 only if it was "made between counsel in open court:" On this issue, he found that an oral agreement made in chambers without any documentation did not substantially comply with the "open court" proviso found in C.P.L.R. 2104. Defendants have now objected to the Report and move for an order enforcing the terms of the oral settlement agreement.

The district court adopts a magistrate judge's Report and Recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). However, the court is required to make a de novo determination of those portions of a Report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Bandhan v. Lab. Corp. of Am., 234 F.Supp.2d 313, 316 (S.D.N.Y.2002). The court may then accept, reject, or modify in whole or in part recommendations of the magistrate judge. See Nelson, 618 F.Supp. at 1189. If the party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Sanchez v. Dankert, 2004 WL 439502, at *1 (S.D.N.Y. March 9, 2004); accord Johnson v. City: Univ. of New York, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). On the other hand, where objections to a report are "specific and ... address only those portions of the proposed findings to which the party objects, district courts should conduct a de novo review of the issues raised by the objections." Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y.1992).

Having reviewed the Report and Recommendation and the authority on which it is based de novo, the Court adopts the Report in its entirety and denies defendants' motions. Under C.P.L.R. 2104 there are three ways to create a valid and binding stipulation of settlement. See 4 Weinstein Korn, and Miller, New York Civil Practice ¶¶ 2104.00-03. Two of those procedures require a writing, either a stipulation signed by the party to be bound or his counsel, or a stipulation that has been reduced to an order, signed by the judge, and entered. Id. ¶ 2104.00. In the absence of a writing, however, an oral stipulation is enforceable only if made by counsel in open court. While New York courts will uphold an oral settlement agreement that "substantially complies" with the "open court" requirement, the Report correctly concluded that the wholly undocumented oral agreement in the instant case did not amount to substantial compliance. (Report at 360-62.) Even if the "open court" requirement were satisfied, the Court notes that the parties' oral settlement appears unenforceable because it was not an agreement "between counsel," nor could it be inasmuch as plaintiff was appearing pro se. The Report assumes, arguendo, that C.P.L.R. 2104 would apply to an oral agreement between counsel and a pro se party. (Report at 359 n. 2.) However, the Rule clearly distinguishes between the acts of parties and their attorneys in its first and last clause. Notably, the "open court" proviso, by its terms, does not apply to a stipulation between counsel and a party. The Court sees no reason why the literal terms of the rule should not be applied to the present case.

CONCLUSION

For the reasons stated above and in the Report and Recommendation of Magistrate Judge Dolinger, defendants' motions [44, 49] are denied.

SO ORDERED.

REPORT & RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

Pro se plaintiff Rodney Silas, until recently incarcerated in the New York City and State correctional systems, commenced this action pursuant to 42 U.S.C. § 1983 to assert constitutional claims against several New York City correctional officers and against the City itself. With the agreement of the parties, we conducted a settlement conference with defendants' counsel present and plaintiff participating by telephone. At the conference counsel and plaintiff agreed orally to settle the case based on a payment to plaintiff of $1,500.00. Several days later, before receiving or signing any settlement documents, plaintiff advised defendants' attorney that he was no longer willing to settle for that sum.

In the wake of that communication, defendants have moved to enforce the settlement. Plaintiff has opposed. For the reasons that follow, we recommend that the motion to enforce the agreement be denied.

A. The Settlement Events

With the consent of both parties, a settlement conference was scheduled for January 19, 2007. Counsel for defendant appeared in person, and plaintiff, because of his incarceration at the Marcy Correctional Facility, appeared by telephone.

During the course of the conference, the Court conferred, ex parte, with counsel and with plaintiff, and defendants' attorney spoke directly with plaintiff by telephone. At the conclusion of the conference, after defendants' attorney had offered $1,500.00 to settle the case, plaintiff stated that he would agree to settle the matter on those terms. Counsel for defendants explained to plaintiff that this sum was in exchange for terminating all claims relating to this matter, and plaintiff indicated that he understood this. The terms of the settlement were not recorded by the court in any way. Rather, we understood that defendants' counsel would prepare the appropriate settlement documents and send them to plaintiff for review and signature.

On January 23, 2007, defendants' attorney mailed plaintiff the settlement paperwork, including a Stipulation and Order of Settlement and Discontinuance, an Affidavit of No Liens, an Affidavit Concerning Liens, and a General Release. (Declaration of Ass't Corp. Counsel Prathyusha Reddy, executed Feb. 9, 2007, ¶ 14 & Ex. D). However, in a letter dated January 22, 2007 and presumably signed and sent that day, plaintiff stated that he no longer found the terms of the settlement acceptable. He indicated that the dollar amount was inadequate, and that he was no longer willing to settle for less than "double" that amount. (Id. at ¶ 16 & Ex. E).

In the wake of their receipt of this communication from plaintiff, defendants initially made a letter request that the court enforce what they viewed as a binding settlement. (Id. at ¶ 17 & Ex. F). Instead, we directed that defendants proceed by formal motion. (Order dated. Feb. 1, 2007). In compliance with that directive, on February 9, 2007 defendants filed a Motion to Enforce the Settlement Agreement. Plaintiff opposed the motion, emphasizing his pro se status.

Upon review of the papers, we noted that the parties had not addressed the threshold question of whether federal or state law controlled the analysis, and had also not dealt with whether the circumstances satisfied the statutory requirements for an enforceable settlement under section 2104 of New York's Civil Practice Law and Rules. Accordingly, by Order dated May 11, 2007, we directed that defendants provide a supplemental memorandum addressing the following two questions:

1) Is the enforceability of this settlement agreement governed by federal or state law?

2) If state law governs, does...