Filed: May 18, 2010
Latest Update: Feb. 21, 2020
Summary: 09-1917-cv Rispler v. Sol Spitz Company, Incorporation Retirement Trust UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY 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 SUM M ARY ORDER IN A DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTR
Summary: 09-1917-cv Rispler v. Sol Spitz Company, Incorporation Retirement Trust UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY 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 SUM M ARY ORDER IN A DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRO..
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09-1917-cv
Rispler v. Sol Spitz Company, Incorporation Retirement Trust
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY 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 SUM M ARY ORDER IN A
DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM MARY ORDER”). A PARTY CITING A SUM MARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 18th day of May, two thousand ten.
4
5 PRESENT:
6 JON O. NEWMAN,
7 JOHN M. WALKER, Jr.,
8 GERARD E. LYNCH,
9 Circuit Judges.
10 ____________________________________________________________
11
12 Arnold Rispler, et al.,
13 Plaintiffs-Appellees,
14
15 -v.- 09-1917-cv
16
17 Sheldon Spitz, individually and as Trustee of Sol Spitz Co., Inc.
18 Retirement Trust and Sol Spitz Co., Inc. Profit Sharing Plan and
19 as President of Sol Spitz Co., Inc.,
20 Defendants-Appellants,
21
22 Sol Spitz Co., Inc. Retirement Trust, et al.,
23 Defendants.
24 ___________________________________________________________
25
26 FOR APPELLANT: Sheldon Spitz, pro se, Massapequa Park, New York.
27 Argued by Christopher A. Bacotti, Law Office of Christopher A.
28 Bacotti, Middle Island, New York.
29
1
1 FOR APPELLEES: Richard L. Herzfeld, Bahn, Herzfeld & Multer, LLP, New York,
2 New York.
3
4 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
5 DECREED that the district court judgment is AFFIRMED.
6 Defendant–Appellant Sheldon Spitz appeals from the March 19, 2009 order of the United
7 States District Court for the Eastern District of New York (Irizarry, J.) which construed a letter
8 written by Spitz to the court as a motion under Fed. R. Civ. P. 60(b) to vacate his agreement to
9 settle this action and denied that motion.
10 Because the settlement agreement had already been ratified by the court at a fairness
11 hearing on August 11, 2008, the district court did not abuse its discretion in construing Spitz’s
12 letter to the court as a motion under Rule 60(b) to vacate the agreement. See Powell v. Omnicon,
13 BBDO/PHD, 497 F.3d 124, 128 (2d Cir. 2007). This Court reviews a district court’s denial of a
14 motion under Rule 60(b) to vacate a settlement agreement for abuse of discretion.
Id. A
15 settlement agreement is a contract which is “binding and conclusive,”
id., and is interpreted
16 according to general principles of contract law, Red Ball Interior Demolition Corp. v.
17 Palmadessa,
173 F.3d 481, 484 (2d Cir. 1999).
18 In this case, the parties agreed that the settlement agreement would be governed by New
19 York law. Under New York law, a court may vacate a stipulation of settlement only upon a
20 showing of good cause, such as fraud, collusion, mistake, duress, lack of capacity, or where the
21 agreement is unconscionable, contrary to public policy, or so ambiguous that it indicates by its
22 terms that the parties did not reach agreement. See McCoy v. Feinman,
99 N.Y.2d 295, 302
23 (2002) (finding a stipulation of settlement is “generally binding on parties that have legal
24 capacity to negotiate”); Hallock v. State,
64 N.Y.2d 224, 230 (1984) (“Only where there is cause
2
1 sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be
2 relieved from the consequences of a stipulation made during litigation. . . .”).
3 The district court did not abuse its discretion in denying Spitz’s motion. Spitz was
4 represented by counsel during settlement negotiations and at the subsequent fairness hearing. In
5 his pro se letter to the district court, Spitz alleged that he was ill and taking medication at the
6 time he agreed to settle, but he submitted no medical evidence that he did not understand and
7 agree to the settlement. These unsupported allegations were insufficient to demonstrate that he
8 “lacked the mental capacity to understand and agree to the terms of the stipulation of
9 settlement. . . .” Weissman v. Weissman, 839 N.Y.S.2d 798, 800 (2d Dep’t 2007); see
10 Mohrmann v. Lynch-Mohrmann,
809 N.Y.S.2d 115, 116 (2d Dep’t 2005) (finding that party
11 failed to demonstrate she lacked capacity where she submitted “no competent, admissible
12 medical evidence to support that assertion”).
13 Spitz proffers additional documents to this Court in support of his lack of capacity claim
14 – including a list of drugs he purchased from his pharmacy and an unsworn letter from a doctor
15 stating that various medical conditions “may alter his cognitive abilities.” However, we may not
16 consider these documents because they were never filed in the district court. See Weinstock v.
17 Columbia Univ.,
224 F.3d 33, 46 (2d Cir. 2000) (finding that evidence submitted for the first
18 time on appeal was “simply not part of the record” and “cannot be considered in deciding this
19 case”). Even if we were to consider these materials, they do not demonstrate that Spitz lacked
20 capacity to enter into the settlement agreement. See Smith v. Comas,
570 N.Y.S.2d 135, 136 (2d
21 Dep’t 1991) (finding litigant did not demonstrate lack of capacity to enter into a contract where
22 his “medical expert was unable to state with a reasonable degree of medical certainty that the
23 appellant at the time of the transaction at issue would have been unable to understand the nature
3
1 of the transaction and the consequences of his signing of the contract”).
2 We have considered all of Spitz’s remaining arguments and find them to be without
3 merit.
4 Accordingly, the judgment of the district court is AFFIRMED.
5
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
SAO-RH 4
