(See, e.g., Pl. Mot.) Moreover, the second Winston factor focuses on whether there has been partial performance of the contract, not whether there has been partial performance of the actions necessary to form the contract. See Delgrosso v. City of New York, No. 11-CV-4876 (MKB), 2013 WL 5202581, at *8 (E.D.N.Y. Sept. 13, 2013) ("Although the preparation of settlement paperwork may provide some indication of the preparer's belief that a settlement has been reached, it does not constitute a change in position, and no substantive rights of the parties have been affected in any way by the mere drafting of the documents."); see also Edwards v. City of New York, No. 08-CV-2199 (FB) (JO), 2009 WL 2865823, at *5 (E.D.N.Y. May 22, 2009); Alvarado v. Five Town Car Wash, Inc., No. 13-CV-1672 (RJD) (JO), 2014 WL 252015, at *2 (E.D.N.Y. Jan. 22, 2014). Here, the City's preparation of draft documents was not a term of the Preliminary Agreement. Thus, no party has performed any of the three terms in the Preliminary Agreement to which the parties actually agreed.
"Although the preparation of settlement paperwork may provide some indication of the preparer's belief that a settlement has been reached, it does not constitute a change in position, and no substantive rights of the parties have been affected in any way by the mere drafting of the documents." Delgrosso v. City of New York, No. 11-CV-4876 MKB, 2013 WL 5202581, at *8 (E.D.N.Y. Sept. 13, 2013) (citation omitted). Because the doctrine of apparent authority is inapplicable where the third party did not detrimentally rely on the principal's representations, a finding of apparent authority is not sufficient to compel the enforcement of the settlement agreement here.
While the Court acknowledges that such steps took the Settlement Agreement sufficiently forward that the parties could have formally executed and filed the agreement for approval by the Court, courts in the Second Circuit have made clear that preparatory actions such as these do not amount to partial performance. SeeNieves , 2011 WL 5533328, at *7 (finding that "[m]ere preparatory acts such as drafting and exchanging documents are insufficient to constitute partial performance") (citation and quotation marks omitted); see alsoStewart v. City of New York , 2017 WL 4769396, at *3 (S.D.N.Y. Oct. 20, 2017) (holding that "drafting paperwork" does not "constitute[ ] partial performance of a bargained-for contract"), report and recommendation adopted , 2017 WL 5897442 (S.D.N.Y. Nov. 29, 2017) ; Delgrosso v. City of New York , 2013 WL 5202581, at *8 (E.D.N.Y. Sept. 13, 2013) (finding that "drafting of the [settlement] documents" did not amount to partial performance because "it does not constitute a change in position, and no substantive rights of the parties have been affected"). The preparation and exchange of the Settlement Motion and the Notice Procedure Motion, even as "lengthy [and] detailed" as they were (Trial. Tr. (Berman) 28:20–22), fall squarely within this rule, and thus cannot constitute anything more than mere preparatory acts to the actual performance of the agreement.