1 20

- 3207

- cv Grullon v. Delta Air Lines, Inc.

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 (wit h the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Cou rthouse, 40 Foley Square, in the City of New York ,
on the 2 7 th day of December, two thousand twenty

- one

.

PRESENT: J OSÉ A. C ABRANES
, R

AYMOND J. L OHIER , J R

. B ETH R OBINSON
, Circuit Judges

.

N ERYS G RULLON ,
Plaintiff

- Appell ant , 20

- 3207

- cv

v.

D ELTA A IR L INES
, I NC

. ,
Defendant

- Appellee

.

FOR PLAINTIFF

- APPELLANT: James R. Brauchle

, Motley Rice LLC

, Mount Pleasant, SC

.

FOR DEFENDANT

- APPELLEE : Louis R. Martinez

, Michael Maragoudakis

, Martinez & Ritorto, P.C. , New York , NY

.
Appeal from an order of the United States District Court for the Eastern District of New York ( Frederic Block

, J udge ).2 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of t he District Court be and hereby is

AFFIRMED

.
Plaintiff Nerys G rullon (“Grullon”) sued Defendant Delta Air Lines, Inc. (“Delta”) based on an August 22, 2016 incident in which , following an altercation with a flight attendant, Grullon was removed from a Delta flight from the Dominican Republic to New York . Grullon was taken to a security holding room in the Punta Cana International A irport where she and a Delta employee

, Victor Rodriguez (“Rodriguez”), signed a mutual release of claims (the “Release”) drawn up by a public prosecutor of the Dominican Republic

. Pursuant to the Release, Grullon , Rodriguez, and Delta agreed to “renounce filing any CIVIL or CRIMINAL action ” against one another. Joint App’x

784. Ten months later, Grullon filed a complaint against Delta in the District Court claiming that she had sig ned the Release under duress, and alleging false arrest, defamation, negligence , and
intentional infliction of emotional distress

. Applying New York law, t he District Court concluded
that the Release had been signed under duress and was therefore voidable, but that Grullon’s failure to timely repudiate the Release barred her suit. The District Court therefore granted Delta’s motion for summary judgment under Federal Rule of Civil Procedure 56. We assume the parties’ familiarity with the underlying facts, th e procedural history of the case, and the issues on appeal.

DISCUSSION

“We review de novo a district court ’ s grant of summary judgment, construing the evidence in
the light most favorable to the nonmoving party and drawing all inferences and resolving all ambiguities in favor of [that] party.” Tompkins v. Metro

- N. Commuter R.R. Co. , 983 F.3d 74, 78 (2d Cir. 2020) (internal quotation marks omitted). We affirm a grant of summary judgment only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a)

.

I.

Grullon argues, as she did below, that the Release is a contract based upon a promise to forbear prosecution of a crime, and it is therefore void as a matter of public policy under New York
law . See Union Exch. Nat. ’l Bank of N.Y. v. Joseph , 231 N.Y. 250, 253 (1921) (“There is to be no tr affic in the privilege of invoking the public justice of the state

. ”). See generally Reddy v. Mihos, 160 A.D.3d 510, 513 n.2 (1st Dep’t 2018).

In evaluating the enforceability of the Release, we apply New York common law. See Colon de Mejias v. Lamont , 963 F.3d 196, 203 (2d Cir. 2020). As New York courts have recognized, “the principle that contracts in contravention of public policy are not enfo rceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.” Berger v. Dynamic Imps., Inc. , 274 N.Y.S.2d 537, 541 (N.Y. Civ. Ct. 1966) (quoting Twin City Pipe Line Co. v. Harding3 Glass Co. , 283 U.S. 353 , 356

- 57 (1931)) (alteration omitted). “For a contract to be void as against public policy, it shoul d . . . be quite clearly repugnant to the public conscience.” Kloberg v. Teller , 171 N.Y.S. 947, 948 (N.Y. Sup. Ct. 1918).

Generally, it is true that contr acts predicated on an agreement to refrain from engaging with the criminal justice system are void as against public policy under New York common law . See Union
Exch. , 231 N.Y. at 253

- 54. However, a combination of factors in this case mitigates the concern s underlying that general rule. First, the Release does not involve concealing information from law enforcement or suppressing evidence of a crime. See Branzburg v. Hayes

, 408 U.S. 665, 696

- 97 (1972) ( “[I]t is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy ” and “ concealment of crime and agreements
to do so are not looked upon with favor ” (emphases added) ) ; c f. Ventura v. Cincinnati Enquirer , 396 F.3d 784, 791

- 92 (6th Cir. 2005) (denying enforcement of agreement to withhold evidence of crime). The parties both had an opportunity to present their allegations to the prosecutor. Second, the
Release does not sti fle the prosecutor’s ability to bring charges against either party in this case. See People v. Eboli , 34 N.Y.2d 281, 289

- 90 (1974). The prosecutor in the Dominican Republic retains the discretion to pursue criminal charges against either party, and that di scretion is unaffected by the parties’ agreement. Given that the prosecutor drafted the R elease, it is clear that

, in the face of a mutual release of claims by the parties, the prosecutor has no interest in filing charges against either

party. 1 Finally, D elta provided separate consideration, apart from the promise not to pursue criminal action, for Grullon’s release of civil claims against Delta

— that is, Delta’s release of civil claims against Grullon.

In sum, based on the facts in this case, viewed in th e light most favorable to Grullon, we conclude that the Release is not void as a matter of public policy.

II.

We move, then, to consideration of whether the Release was voidable. “ Under New York law, a contract or release, the execution of which is induced by duress, is voidable.” VKK Corp. v.

Nat ’ l Football League , 244 F.3d 114, 122 (2d Cir. 2001) (internal quotation marks and alterations omitted). Construing the facts in favor of Grullon, as we must, we conclude that the release was
executed under duress. Being escorted by airport security officials to their offices in the Punta Cana

International A irport and told that Rodriguez intended to press charges against her might have
created the “ effect of pr ecluding the exercise of free will ” required to establish duress. In re

1 In the unlikely event that the prosecutor did choose to conduct further investigation of the incident or even to file charges against either party, for the public policy reasons noted above, we do not believe the Release could properly be construed to prev ent either party from cooperating with the prosecutor.4 Guttenplan , 222 A.D.2d 255, 257 ( 1st Dep’t 1995) ; s ee also id . ( explaining that “ a threat of criminal prosecution” can cause duress). The Release was therefore voidable.

That said, “ t he person claiming duress must act promptly to repudiate the contract or release or he will be deemed to have waived his right to do so.” VKK Corp

. , 244 F.3d at 122 (internal quotation marks omitted)

. A repudiation must be “ clear and unequivocal .” Walton Mgmt., LLC v. Walton Apartments, LLC , 298 A.D.2d 277, 278 ( 1st Dep’t 2002)

.

The District Court concluded that Grullon repudiate d the Release ten months after she signed it by filing her complaint, and that her repudiation was therefore untimely. Spec ial Ap p’x 3 ;

s ee VKK Corp. , 244 F.3d at 122 ( “D elays as short as six months have been held to constitute
forfeiture of the claim

. ”); s ee also Oquendo v. CCC Terek , 111 F.Supp.3d 389, 410 (S.D.N.Y. 2015) ( construing New York l aw and holding that a duress claim was forfeited by a delay of eight months )

.
On appeal, Grullon advances two arguments. First, she argues, as she did below, that her
duress wa s ongoing

, and that she therefore did not need to repudiate the R elease. See In re Guttenplan

, 222 A.D.2d at 257 ; Sosnoff v. Carter , 165 A.D.2d 486, 492 ( 1st Dep’t 1991) (“[W] here during the period of acquiescence

. . . the disaffirming party is still under the same continuing duress, he has no obligation to repudiate until the duress has ceased .”)

. We reject this argument. Once Grullon returned to the United States, her duress effectively ended. We need not rely, as the District Court did, on Grullon ’s voluntary return trip to the Dominican Republic , which she argues based on the record may have occu rred after she filed her complaint repudiating the Release. At a minimum, the
record shows that within three months of the incident, Grullon had retained counsel and was contemplating litigation, which belies the notion that a fear of prosecution still “pr eclud[e d ] the
exercise of [her] free will

. ” In re Guttenplan , 222 A.D.2d at 257

.

Second

, Grullon argues the District Court was wrong to date her repudiation to the filing of her complain t , and that instead a preservation letter she sent to Delta on Novembe r 14

, 2016, approximately three months after the incident, constitute d repudiation of the Release and was timely . This argument was not raised before the District Court, and we need not entertain it. See Wal

Mart Stores, Inc. v. Visa U.S.A., Inc. , 396 F.3d 96, 124 n.29 (2d Cir. 2005) (“The law in this Circuit is clear that where a party has shifted his position on appeal and advances arguments available but not pressed below

, . . . waiver will bar raising the issue on appeal.” (internal quotation marks omitted)). Were we to do so, we would conclude that the preservation letter was insufficient to repudiate the
Release. The letter does not claim the R elease was signed under duress, indicate that Grullon will in
fact breach the R elease, or indeed even ment ion the R elease

. Joint App’x 873

- 77

. It therefore cannot
be said to “clear[ly] and unequivocal[ly]” repudiate it. Walton Mgmt

. , 298 A.D.2d at 278

.

In sum, Grullon’s purported preservation letter did not repudiate the Release, and her repudiation by her c o mplaint, ten months after the August 22 incident, was untimely.5 CONCLUSION

We have reviewed all of the arguments raised by Grullon on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the July 24, 20 20 judgment of the District

Court.

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