Plaintiff-Appellant, SUMMARY ORDER v. NEW YORK MEDICAL COLLEGE, Defendant-Appellee. Appearing for Plaintiff-Appellant: Elisa M. Acot, pro Elisa M. Acot v. New York Medical College Page ., (2nd Cir. 2004)

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 25th day of May, two thousand and four.

PRESENT:

HON. RALPH K. WINTER, HON. CHESTER J. STRAUB, HON. DONALD P. LAY,*

Circuit Judges, ELISA M. ACOT, Plaintiff-Appellant, SUMMARY ORDER -v.- No. 03-7832

NEW YORK MEDICAL COLLEGE, Defendant-Appellee.

Elisa M. Acot, pro se, New York, NY Appearing for Plaintiff-Appellant:

Appearing for Defendant-Appellee: Barbara E. Hoey, (Joseph N. Froehlich, on the brief)

Kelley, Drye & Warren, LLP, New York, NY Appeal from the United States District Court for the Southern District of New York (Kevin Thomas Duffy, Judge).

UPON SUBMISSION AND DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED.

Plaintiff-Appellant Elisa Acot, pro se, appeals from a judgment of the United States District Court for the Southern District of New York entered on June 18, 2003 granting New York Medical College's petition to enforce a settlement agreement. We assume familiarity with the underlying facts of this case, its procedural context, and the issues which have been raised for appellate review.

A district court has the power to enforce a settlement agreement reached in a case that was pending before it. See Janus Films, Inc. v. Miller, 801 F.2d 578, 583 (2d Cir. 1986). Under New York or federal law, an oral settlement is binding if it is made in "open court," e.g., formally memorialized in some manner on the court record. See In re Dolgin Elder Corp., 31

N.Y.2d 1, 9-10 (1972) (citing N.Y. C.P.L.R. § 2104); Monaghan v. SZS 33 Assoc., L.P., 73 F.3d 1276, 1283 n.3 (2d Cir. 1996) ("[T]he federal rule regarding oral stipulations does not differ significantly from the New York rule."). An oral agreement reached before an administrative law judge is still considered to have occurred in open court under New York law. See Cent. N. Y.

Reg'l Mkt. Auth. v. John B. Pike, Inc., 120 A.D. 2d 958, 958, 503 N.Y.S.2d 462 (4th Dep't) (oral stipulation before arbitration panel "was the equivalent of a stipulation made in open court"), appeal denied, 69 N.Y.2d 602 (1986); see also Popovic v. New York City Health and Hosp.

Corp., 180 A.D.2d 493, 493, 579 N.Y.S.2d 399 (1st Dep't 1992) ("Open court" within the meaning of N.Y. C.P.L.R. § 2104 "is a technical term that refers to the formalities attendant upon documenting the fact of the stipulation and its terms, and not to the particular location of the courtroom itself.").

A party cannot avoid a settlement by refusing to sign settlement papers memorializing the settlement terms reported to the court. "When a party makes a deliberate, strategic choice to settle, she cannot be relieved of such a choice merely because her assessment of the consequences was incorrect." United States v. Bank of New York, 14 F.3d 756, 759 (2d Cir. 1994). The fact that parties to an oral agreement contemplate memorializing their agreement in a subsequently executed document will not prevent them from being bound by the oral agreement.

See V'Soske v. Barwick, 404 F.2d 495, 499 (2d Cir. 1968).

An agreement to end a lawsuit is construed according to contract principles. United States v. Sforza, 326 F.3d 107, 115 (2d Cir. 2003). Whether the parties had a "meeting of the minds" is to be determined by an examination of the totality of the circumstances. Id. at 116.

There is ample evidence to support the District Court's conclusion that the parties reached a meeting of the minds and that Acot was therefore bound to the terms of the settlement agreement.

The record of the settlement agreement reflects that Acot, while represented by counsel, affirmatively stated on two occasions, in response to the administrative law judge's questioning, that she agreed to the terms of the agreement and understood that the settlement would terminate her federal lawsuit.

We have considered all of Acot's contentions on appeal and find them to be without merit. The judgment of the District Court is hereby AFFIRMED.

FOR THE COURT:

ROSEANN B. MACKECHNIE, CLERK BY: DATE:

[*]-. The Honorable Donald P. Lay, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

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