11-1396-cv
Figueroa v. N.Y.C. Dep’t of Sanitation

                               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.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 12th day of April, two thousand twelve.

Present:    CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges,
            EDWARD R. KORMAN,1
                        District Judge.
_______________________________________________

MARILYN C. FIGUEROA,

                                   Plaintiff-Appellant,

                          v.                                           11-1396-cv

NEW YORK CITY DEPARTMENT OF SANITATION,
CITY OF NEW YORK,

                        Defendants-Appellees.
_______________________________________________

For Appellant:                     Daniel A. Eigerman, New York, N.Y.

For Appellees:                     Julian L. Kalkstein & Larry A. Sonnenshein (of counsel), for
                                   Michael A. Cardozo, Corporation Counsel of the City of New
                                   York, New York, N.Y.



        1
       The Honorable Edward R. Korman, United States District Judge for the Eastern District
of New York, sitting by designation.
      Appeal from an order of the United States District Court for the Southern District of New
York (Koeltl, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        Marilyn C. Figueroa appeals from an order of the district court enforcing the terms of a
settlement agreement that disposed of both federal and state law claims. We assume the parties’
familiarity with the underlying facts of the case, the procedural history, and the issues raised on
appeal.

        “We review the district court’s findings of law under a de novo standard, and its factual
conclusions under a clearly erroneous standard of review.” Ciaramella v. Reader’s Digest Ass’n,
Inc., 

, 322 (2d Cir. 1997).

        As an initial matter, we conclude that Figueroa waived her argument “that the parties did
not intend to be bound in the absence of an executed writing.” Pl.-Appellant’s Br. 23. Indeed,
the district court below noted that “there is no dispute that the parties intended to be bound prior
to executing a written agreement.” Figueroa v. City of N.Y., No. 05 Civ. 9594 (JGK), 

, at *3 (S.D.N.Y. Feb. 1, 2011). And we see no reason to overlook the “well-established
general rule that an appellate court will not consider an issue raised for the first time on appeal.”
Greene v. United States, 

, 586 (2d Cir. 1994).

        Furthermore, we note that the question of whether federal or state law controls the
enforceability of a settlement agreement in this context is an open one. See 

n.1 (“[W]e need not address the issue whether [New York Civil Practice Rule] 2104
applies in federal cases or is consistent with federal policies favoring settlement.”); see also
Massie v. Metro. Museum of Art, 

, 92 (S.D.N.Y. 2009) (report and
recommendation) (“The Second Circuit has left open the question of whether state or federal law
controls the enforceability of oral settlement agreements, whether in federal-question or diversity
cases.”).

       But we need not decide that question here. Even if we assume that New York State law
controls the issue of whether the settlement agreement in this case was enforceable, the New
York Court of Appeals has left open the possibility that in certain limited circumstances, a court
may enforce a settlement agreement that does not comply with the requirements of Rule 2104.
See Bonnette v. Long Island Coll. Hosp., 

, 285 (2004) (“If there are rare occasions
when [certain] doctrines can permit enforcement of a settlement agreement where the literal
terms of CPLR 2104 are not satisfied (a question which we do not decide), this is not one of
them.”).

        We conclude that the case before us presents one of those “rare occasions,” 

New York law permits the requirements of Rule 2104 to be overlooked. This case has a lengthy
history. Indeed, more than five years ago, in September 2006, the district court filed a
scheduling order making clear that “[t]he parties shall be ready for trial on 48 hours notice on or
after [April 13, 2007].” Civil Scheduling Order at 1, Figueroa v. City of N.Y., No. 05 Civ. 9594
                                                  2
(JGK) (S.D.N.Y. Sept. 15, 2006), ECF No. 6.

         A trial, however, would never occur. The district court eventually “referred this case to
Magistrate Judge Freeman for purposes of settlement.” Figueroa v. City of N.Y., No. 05 Civ.
9594 (JGK), 

, at *1 (S.D.N.Y. Feb. 1, 2011). And “[i]n April 2009, counsel for
the parties informed the Court that a settlement had been reached.” 

impression that
the case might finally come to an end was short-lived. “On April 27, 2009, . . . the plaintiff sent
a letter to the Court, indicating that she believed the settlement was unreasonable and unfair.”

dated December 3, 2009, the Court again referred this matter to Magistrate Judge
Freeman for purposes of settlement.” 

Following “several settlement conferences,”
“the defendants requested leave to withdraw without prejudice their pending motion in limine,
and the parties jointly requested until July 23, 2010, to conclude their settlement discussions.”

that a binding settlement agreement between the parties was reached. And
Figueroa’s own attorney “advised the Court that the parties had settled the case.” 

particular circumstances of this case, we conclude that New York law does not
require us to hold that the settlement agreement at issue in this case is unenforceable merely
because Rule 2104’s requirements have not been met. Indeed, equity demands that the
settlement agreement here be enforced notwithstanding any violation of Rule 2104.

       Accordingly, the order of the district court is AFFIRMED.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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