    15-4165(L), 16-174 (Con)
    McCray v. County of Orange


                          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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the24th day of April, two thousand seventeen.

    PRESENT:
                Dennis Jacobs,
                Christopher F. Droney,
                               Circuit Judges,
                Timothy Stanceu,*
                               Chief Judge, U.S. Court of International Trade.
    _____________________________________

    Cerious McCray,

                                 Plaintiff-Appellant,

    Kimberly Casanova, individually and on
    behalf of themselves including “all persons
    of Orange County,”

                                 Plaintiff,
                     v.                                                        15-4165 (L);
                                                                               16-174 (Con)
    County of Orange, as a governmental entity, et al.,

                                 Defendants,


    * Chief Judge Timothy Stanceu, of the United States Court of International Trade, sitting by
    designation.
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Theresa Nietzel, ID#: 3500, as Police Officer
of the Town of Newburgh and individually,
Anthony Detoro, as Police Officer of the
Town of Newburgh and individually,

                  Defendants-Appellees.**
_____________________________________

FOR APPELLANT:                       Cerious McCray, pro se, Wallkill, New York.

FOR APPELLEES:                       Gerald S. Smith, Silverman & Associates,
                                     White Plains, New York.

       Appeal from an order of the United States District Court for the Southern District of New
York (Seibel, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the December 3, 2015, order of the district court is AFFIRMED, and the appeal
from the October 20, 2015, judgment is DISMISSED.

        Cerious McCray, pro se, appeals from the district court’s order granting a motion to
enforce an oral settlement agreement. McCray filed a 42 U.S.C. § 1983 complaint arguing his
constitutional rights were violated during two traffic stops. Following the dismissal of several
defendants, judgment was entered after he and the remaining defendants orally agreed to settle.
Subsequently, however, he requested additional monetary relief, and the defendants moved to
enforce the settlement. The court ruled McCray was bound by the oral settlement. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.

        As an initial matter, McCray did not timely appeal from the October 2015 judgment. Fed.
R. App. P. 4(a)(1). We therefore lack jurisdiction to review the dismissal of his claims. See
Bowles v. Russell, 551 U.S. 205, 214 (2007). Although McCray timely appealed the denial of his
motion for an extension of time, he has not challenged that denial in his brief and has abandoned
that issue. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).

        McCray’s notice of appeal from the order to enforce the agreement was premature but
ripened into a valid notice of appeal when the settlement was so-ordered. See Fed. R. App. P.
4(a)(2); Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664 n.6 (2d Cir. 2012). Consequently,
we have jurisdiction to review the order to enforce the settlement agreement.

       We review decisions on whether a settlement is binding de novo and factual findings,

** The Clerk of Court is respectfully directed to amend the caption.
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including whether a settlement agreement existed and the parties assented to it, for clear error.
Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007); Ciaramella v. Reader’s Digest Ass’n, Inc.,
131 F.3d 320, 322 (2d Cir. 1997). A “voluntary, clear, explicit, and unqualified stipulation of
dismissal entered into by the parties in court and on the record is enforceable even if the agreement
is never reduced to writing, signed, or filed.” Role v. Eureka Lodge No. 434, 402 F.3d 314, 318
(2d Cir. 2005).

       Here, an independent review of the record and relevant case law reveals that the district
court properly ruled that the parties intended to be bound by the oral agreement reached in open
court. We affirm for substantially the reasons stated by the district court in its thorough
December 3, 2015, order. Additionally, we conclude that the court had jurisdiction to enforce the
settlement because it incorporated the terms of the agreement in its dismissal of McCray’s claims.
See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381-82 (1994).

       We have considered all of McCray’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the order of the district court and DISMISS the appeal from
the October 20, 2015, judgment.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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