09-1372-cv
American Home Assurance Company v. Central Transport International, Inc.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.

       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 twenty fifth day of November two thousand and nine.


PRESENT:

          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
          RICHARD C. WESLEY ,
                        Circuit Judges.

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AMERICAN HOME ASSURANCE COMPANY ,

                               Plaintiff-Appellee,

          v.                                                                               No. 09-1372-cv

CENTRAL TRANSPORT INTERNATIONAL , INC .,

                               Defendant-Appellant,

CENTRAL TRANSPORT, INC .,

                               Defendant.

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FOR PLAINTIFF-APPELLEE:                                                   JAMES J. RUDDY (Tammy Fastman, of counsel),
                                                                          McDermott & Radzik, LLP, New York, NY

FOR DEFENDANT-APPELLANT:                                                  JAMES R. LLOYD (Paul D. Keenan, on the brief),
                                                                          Keenan Cohen & Howard P.C., Jenkintown,
                                                                          PA

        Appeal from an order and judgment of the United States District Court for the Southern
District of New York (George B. Daniels, Judge).

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

         Defendant-Appellant Central Transport International, Inc. (“defendant”) appeals from a
November 18, 2008 order of the District Court granting Plaintiff-Appellee American Home
Assurance Company’s (“plaintiff”) motion for partial summary judgment on plaintiff’s claim for
breach of an oral settlement agreement. On appeal, defendant argues that the District Court
misapplied New York law and improperly drew inferences in plaintiff’s favor in concluding that the
parties intended their oral agreement to be legally binding. We assume the parties’ familiarity with
the remaining factual and procedural history of the case.

          The parties agree that, under New York law, intent to be legally bound by an oral agreement
is discerned by weighing, inter alia, the following four factors, none of which is dispositive: (1)
whether there has been an express or implied reservation of the right not to be bound in the absence
of a writing; (2) whether there has been partial performance of the contract; (3) whether all of the
terms of the alleged contract have been agreed upon; and (4) whether the agreement is the type of
contract ordinarily committed to writing. See Winston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d
Cir. 1986); see also Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 575-76 (2d Cir. 1993)
(listing 16 factors that are commonly considered). The parties’ intent must be discerned from “the
words and deeds of the parties which constitute objective signs in a given set of circumstances.”
Winston, 777 F.2d at 80 (emphasis added) (internal quotation marks and brackets omitted). Summary
judgment is appropriate if the evidence “reveal[s] uncontroverted objective signs evincing an intent
. . . to be bound.” Consarc, 996 F.2d at 576.

        Here, as the District Court found, there is no objective evidence that either party expressly or
impliedly reserved the right not to be bound by their oral agreement. Daniel McDermott
(“McDermott”), an attorney for plaintiff who negotiated on its behalf, attested that he was

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authorized to settle the claim by his client and that David Rigelhof (“Rigelhof”), who negotiated the
settlement on behalf of defendant, confirmed that his “boss” had authorized the settlement.1
Although Rigelhof’s supervisor, Jeffrey Cackowski, testified that any agreement Rigelhof reached
was subject to approval, defendant has presented no evidence contradicting McDermott’s sworn
statement that, at the time of the agreement, Rigelhof “confirmed that his ‘boss’ authorized the
$80,000 settlement.” J.A. 106. In assessing whether a party reserved the right not to be bound we
look to the words and deeds which constitute objective signs of intent, see Winston, 777 F.2d at 80, and
here the only objective evidence indicates an intent to be bound.

         We are unpersuaded that the remaining Winston factors lend support to a different
conclusion. Although defendant argues that neither party began performance of the contract, the
record reveals that (1) McDermott confirmed the agreement in a writing to defendant, (2) Rigelhof
initiated the process for obtaining a settlement check, and (3) Rigelhof told McDermott that he was
putting the check in the mail. Moreover, the fact that plaintiff forewent bringing a claim until after
defendant repudiated the oral agreement demonstrates that it was performing its end of the bargain.

        Defendant also argues that the settlement agreement was not binding because all of the
terms were not agreed to. Specifically, it identifies a number of terms that it ordinarily requires as
part of settlement agreements, including a release of related claims, indemnification, and a choice of
law provision. It is undisputed, however, that McDermott and Rigelhof never discussed these
terms, much less intended their agreement to be nonbinding in their absence. Although defendant
characterizes these terms as being “essential” to the contract, in reality they are simply additional
terms that, in hindsight, it wishes it had bargained for.

        Finally, although the amount at issue was not insubstantial, the parties’ agreement was far
from complex. The settlement concerned a straightforward claim for damaged freight and was to be
resolved by a lump sum payment. In such circumstances, an oral agreement is not so unusual that a
jury could infer, from the size of the settlement alone, that the parties did not intend to be bound in
the absence of a writing.




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            Defendant argues that because McDermott required approval from his client to settle the claim, there was no
mutual intent to be bound at the time the agreement was reached. There is no evidence, however, that McDermott ever
informed Rigelhof that their agreement was not binding unless and until he gained approval. Moreover, other objective
evidence in the record is entirely consistent with plaintiff’s position that a binding agreement was reached on July 31,
2007. See, e.g., J.A. 113 (letter dated July 31, 2007, from McDermott to Rigelhof confirming the agreement that had been
reached); J.A. 114 (letter dated August 15, 2007, from McDermott to Rigelhof inquiring about when funds could be
expected and including handwritten notation that a check will be in the mail on Tuesday); J.A. 106 (McDermott’s
uncontroverted affidavit that Rigelhof informed him by telephone on August 15, 2007, that the settlement check would
be mailed the following Tuesday).
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                                        CONCLUSION

        We have considered all of defendant’s arguments and find them to be without merit. For
the foregoing reasons the judgment of the District Court is AFFIRMED.


                                            FOR THE COURT,
                                            Catherine O’Hagan Wolfe, Clerk of Court

                                            By ______________________________




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