         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




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