11-586-cv
        Aylaian v. Town of Huntington, et al.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Daniel Patrick Moynihan
 3      United States Courthouse, 500 Pearl Street, in the City of
 4      New York, on the 25th day of January, two thousand twelve.
 5
 6      PRESENT: DENNIS JACOBS,
 7                        Chief Judge,
 8               RICHARD C. WESLEY,
 9               SUSAN L. CARNEY,
10                        Circuit Judges.
11
12
13      RONALD C. AYLAIAN,
14
15                             Plaintiff-Appellant,
16
17                     -v.-                                                       11-586-cv
18
19      TOWN OF HUNTINGTON, TOWN OF HUNTINGTON GENERAL
20      SERVICES, THOMAS CAVANAGH, THOMAS BOCCARD,
21      DEBRA J. LUPSKI, ROSEMARY B. WILHELM, LISA
22      BAISLEY, JOSEPH RECK, ROBERT ALGERIO, sued in
23      their individual and official capacities pursuant
24      to NYEL 296,
25
26                             Defendants-Appellees.
27
28
29      FOR APPELLANT:                KYLE T. PULIS (Scott Michael Mishkin, on
30                                    the brief), Scott Michael Mishkin, PC,
31                                    Islandia, NY.
32
33      FOR APPELLEE:                 JAMES P. CLARK, Northport, NY.
 1
 2       Appeal from an order and judgment of the United States

 3   District Court for the Eastern District of New York (Wexler,

 4   J.), which granted Defendants-Appellees’ motion for summary

 5   judgment and held that Plaintiff-Appellant released

 6   Defendants-Appellees from any past liability for civil

 7   rights and labor law violations when he signed a resignation

 8   agreement with a release of liability clause.     We assume the

 9   parties’ familiarity with the underlying facts, the

10   procedural history, and the issues presented for review.

11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the district court’s judgment is AFFIRMED

13   for substantially the same reasons as provided in the

14   district court’s well-reasoned opinion.     We write here to

15   address three arguments Appellant makes on appeal.

16       First, Appellant argues that his resignation agreement

17   and waiver of liability are voidable because he only agreed

18   to them while under duress.     Appellant’s only colorable

19   claim of duress is “third-party duress” from his close

20   friend, Joseph Berbinach.     Appellant admitted during his

21   deposition that he had absolutely no contact with anyone

22   representing the Town in regards to his resignation and

23   early retirement.   Although third-party duress may render a

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 1   contract voidable, it cannot do so where the other

 2   contracting party gives value to the contract.     See

 3   Restatement (Second) of Contracts § 175(2).     Here, had

 4   Appellant not resigned, the Town would only have been

 5   obligated to pay 75% of Appellant’s health benefits when he

 6   retired.     Since Appellant resigned and retired early, the

 7   Town is paying 100% of his health benefits.     Clearly, the

 8   Town has given value to the contract.     Therefore, the

 9   agreement cannot be considered voidable because of third-

10   party duress.

11       Second, Appellant argues that his resignation agreement

12   and waiver of liability are voidable because, when he signed

13   at the urging of Berbinach, Appellant did so without reading

14   or understanding them.     When evaluating the totality of the

15   circumstances of the execution of a waiver of federal

16   employment claims, see Bormann v. AT&T Commc’ns, Inc., 875

, 403 (2d Cir. 1989), a court need not disregard a

18   plaintiff’s knowing failure to read and understand the

19   agreement.     A plaintiff who is nearly illiterate—as Aylaian

20   represents himself to be—has a duty, knowing of his

21   limitation, to have the document read to him so that he may

22   understand its contents.     The common law, which no doubt


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 1   informs our consideration of the totality of the

 2   circumstances, is unequivocal that, absent fraud or

 3   misrepresentation, the uninformed signer of an agreement is

 4   bound.   See Pimpinello v. Swift & Co., 

, 531

 5   (N.Y. 1930) (“If the signer could read the instrument, not

 6   to have read it was gross negligence; if he could not read

 7   it, not to procure it to be read was equally negligent; in

 8   either case the writing binds him.”); Sofio v. Hughes, 556

 

, 718-19 (2d Dep’t 1990); Albany Med. Ctr. Hosp.

10   v. Armlin, 

, 274 (3d Dep’t 1989).

11   Accordingly, because Aylaian had both the burden and

12   opportunity to inform himself further about the waiver’s

13   contents and nonetheless signed without learning more, we

14   agree that the totality of the circumstances require the

15   enforcement of that waiver.

16       Third, Appellant argues that his waiver of his ADEA

17   claim was ineffective under the Older Workers Benefit

18   Protection Act, 29 U.S.C. § 626(f), because his rights were

19   not explained orally.   Not so.   Congress only requires a

20   written explanation calculated to be understood “by the

21   average individual eligible to participate.”    See 29 U.S.C.

22   § 626(f)(1).   In addition, here, the statute required the


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 1   Town to give Appellant 45 days to review the agreement’s

 2   terms.   During that time, Appellant could have sought

 3   counsel or met with a Union representative.   He chose not to

 4   do so.

 5       We have considered Appellant’s other arguments and find

 6   them to lack merit.

 7       AFFIRMED.

 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
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