Opinion
99 Civ. 1544 (RWS).
December 28, 2000.
MEMORANDUM OPINION AND ORDER
By motion of October 20, 2000, defendants Pretzel International, Inc. ("Pretzel International"), Whitman Pretzel Corp. ("Whitman Pretzel"), Westchester Pretzel Corp. ("Westchester Pretzel"), New York Pretzel Corp. ("N.Y. Pretzel"), Pretzel Management Corp. ("PMC") (collectively the "corporate defendants") Ronald Orfinger ("Orfinger"), John Novick ("Novick"), Gary Marcus ("Marcus"), Edward T. Davison ("Davison"), and H. Sinan Berkay ("Berkay") (collectively the "settlement defendants"), moved pursuant to Local Rule 6.3 to reargue the first line of Paragraph #4 of this Court's order granting motion to enforce settlement agreement and of dismissal, dated October 6, 2000. Plaintiff Pretzel Time, Inc. ("Pretzel Time") opposed the motion in a brief filed on October 30, 2000, and the settlement defendants filed a reply brief on November 6, 2000, whereupon the motion was deemed fully submitted.
Pursuant to a prior opinion, the October 6, 2000 order enforced an oral settlement agreement between the parties. Pretzel Time, Inc. v. Pretzel Int'l. Inc., No. 98 Civ. 1544 (RWS), 2000 WL 1510077 (S.D.N.Y. Oct. 10, 2000). However, a discrepancy between the original settlement agreement and the proposed order submitted by the plaintiff and endorsed by the Court is now the subject of this motion. Specifically, the settlement defendants dispute whether the following underscored language in the October 5, 2000 opinion should have been added to the first sentence of the fourth paragraph of the settlement agreement, both of which are set forth below:
Settlement Agreement: Defendants shall assign the New York Pretzel name, logo and associated intellectual property to MFOC or its designee for use in the retail, backed [sic] on the premises, hot pretzel business.
October 6, 2000 Order: . . . upon dismissal of the case, the Corporate defendants shall immediately assign the New York Pretzel name, logo, and other associated intellectual property to MFOC or its designee for use in the retail, baked-on-the-premises, hot-pretzel business. (Emphasis added.)
The plaintiff argues that this language was implicit in the terms of the original settlement agreement, or, in the alternative, that it constitutes the "reasonable" period of time that is implied in any contract that fails to specify a timeframe for compliance, see Falco Const. Corp. v. Summit General Contracting Corp., 760 F. Supp. 1004, 1012 (E.D.N.Y. 1991) ("[I]t is a matter of hornbook law that where a contract lacks an express provision regarding the time of performance a reasonable time is implied") . The settlement defendants allege that, pursuant to the October 5, 2000 opinion, the order should have bound the parties to their original agreement without adding any additional interpretive terms. See Pretzel Time, 2000 WL 1510077, at *4 (stating that "how to interpret the terms of the contract as recorded is a different question than whether or not the parties agreed to them" and addressing only the latter question)
The purpose of enforcing the settlement was to bind the parties to the agreement they had originally manifested an intent to follow, not to supply additional terms or to clarify any ambiguous provisions. As the language included in the October 6, 2000 order changes the meaning of the settlement agreement which the parties intended to enter into, the motion to reargue will be granted.
It is hereby ordered that this Court's order of October 6, 2000 be amended so that the first sentence of Paragraph 4 on page six shall read as follows:
Defendants shall assign the New York Pretzel name, logo and associated intellectual property to MFOC or its designee for use in the retail, backed [sic] on the premises, hot pretzel business.
It is so ordered.