     13-4555-cv
     Cole-Hoover v. N.Y.S Dep’t of Corr.

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 11th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       GWENDOLYN COLE-HOOVER, M.D.,
13                Plaintiff,
14
15                    -v.-                                               13-4555
16
17       NEW YORK STATE DEPARTMENT OF
18       CORRECTIONS AND COMMUNITY SUPERVISION,
19       ALBION CORRECTIONAL FACILITY, SUE
20       WOJCINSKI, SANDRA DURFEE, ANGIE MAUME,
21       DONNA BAKER,
22                Defendants-Appellants.*
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANTS:                       JONATHAN D. HITSOUS, Assistant
26                                             Solicitor General (with Barbara


                *
               The Clerk of Court is respectfully directed to amend
         the official caption as set forth above.
 1                              D. Underwood, Solicitor General,
 2                              and Andrea Oser, Deputy
 3                              Solicitor General, on the
 4                              brief), for Eric T.
 5                              Schneiderman, Attorney General
 6                              of the State of New York,
 7                              Albany, New York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Western District of New York (McCarthy, M.J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        The New York State Department of Corrections and
17   Community Supervision, the Albion Correctional Facility, and
18   the four individual defendants (collectively, “DOCCS”)
19   appeal from the judgment of the United States District Court
20   for the Western District of New York (McCarthy, M.J.). We
21   assume the parties’ familiarity with the underlying facts,
22   the procedural history, and the issues presented for review.
23
24        Judgement was entered in Cole-Hoover’s favor after the
25   parties reached a settlement, the material terms of which
26   were placed on the record by the parties on November 5,
27   2012. Counsel for the DOCCS represented to the district
28   court that he “offered and the plaintiff . . . accepted
29   $750,000 total, inclusive of damages, costs and fees to
30   settle this case” and pending, related litigation. A. 164-
31   65. Counsel for DOCCS further explained that a written
32   stipulation would follow because it needed to collect and
33   review documentation pertaining to Medicare or Medicaid,
34   which “[did not] have anything to do with the merits of the
35   case.” Id. at 170. The court confirmed that the DOCCS had
36   articulated on the record the “material terms of the
37   settlement and . . . although documentation need[ed] to be
38   executed to confirm the settlement, the settlement of these
39   four actions w[ould] be effective as of [that day],
40   notwithstanding any additional documentation which need[ed]
41   to be executed.” Id. at 166.
42
43        Unfortunately, the parties’ agreement to conclude this
44   dispute–-which spans more than a decade–-did not last long;
45   disagreements arose during the negotiation of a written
46   stipulation. The district court denied cross-motions to
47   enforce stipulations, both of which differed from the terms

                                  2
 1   announced in open court. Subsequently, the district court
 2   entered judgment for Cole-Hoover. A. 140. The DOCCS
 3   appeals.
 4
 5        The parties expressed a clear intent to settle and
 6   placed the material terms of their settlement on the record,
 7   and “neither party made any express reservation to be bound
 8   only by a writing.” Powell v. Omnicom, 497 F.3d 124, 129-30
 9   (2d Cir. 2007). As the magistrate judge observed,
10   “[a]lthough defendants could have conditioned the settlement
11   on plaintiff’s providing a physician’s letter or agreeing to
12   a [Medicare set-aside], they did not do so.” A. 131. And,
13   “[i]f defendants considered plaintiff’s Medicare status to
14   be critical in deciding whether to settle, they should have
15   ascertained that status before agreeing that the settlement
16   was effective as of November 5, 2012.” Id. at 132.
17
18        For the foregoing reasons, we hereby AFFIRM the
19   judgment of the district court.
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23
24




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