Preview
FILED: NEW YORK COUNTY CLERK 03/16/2018 02:37 PM INDEX NO. 151998/2014
NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018
NEW YORK COUNTY CLERK 02/23/2018 06:39 INDEX NO. 151998/2014
(FILED: PM)
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018
COUR'I' 01'
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------X
THORA CLAUDETTE CHALLENGER, Index No.: 151998/14
Plaintiff,
I
-against- AFFIRMATION
IN SUPPORT
GEORGE J. LAMADELEINE, J.B. HUNT
TRANSPORT, INC., ZEPHANIAH P. MULLIN, and
I CHARLES S. GILES,
l
Defendants.
___________________________________ __ _____..-----------------------X
X
IOLANDA V. D'AMBROSI-FRANCAVILLA, an attorney duly admitted to practice
of'
before the Courts of the State of New York, hereby affirms the following under penalty of
and pursuant to CPLR §2106(b):
1. I am an associate of the law firm of RAWLE 4 HENDERSON LLP, attorneys for
the defendants, GEORGE J. LAMADELEINE and J.B. HUNT TRANSPORT, INC.,
(" Defendants"
("Defendants"), and am familiar with the facts of this case by virtue of my review of the file
maintained by this office.
2. This Affirmation is submitted in support of the instant Order to Show Cause on
behalf of defendants, seeking an Order:
a. Pursuant to CPLR §2104, enforcing the post-mediation settlement agreement
between plaintiff and defendants, George J. Lamadeline and J.B. Hunt
Transport, Inc. and finally settling thismatter as to those defendants; and
b. For such other and further relief in favor of defendants as this Court deems
just and proper.
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NEW COUNTY CLERK /23/2018 INDEX NO. 151998/2014
[FILED : YORK 02 0 6 : 39 PM)
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018
PROCEDURAL HISTORY
3, This is an action for alleged negligence in connection with an auto accident on
October 27, 2017.
4. On March 6, 2014, plaintiff filed a Summons and Complaint. A copy of the
Summons and Complaint isannexed hereto as Exhibit "A".
5. On July 18, 2014, an Answer was filed on behalf of defendants. A copy of
defendants'
Answer isannexed hereto as Exhibit "B".
6. On or about February 10, 2015, plaintiff served a Bill of Particulars. A copy of
plaintiff"
plaintiff'sBill of Particulars is annexed hereto as Exhibit "C".
7. On or about June 22, 2015, plaintiffserved a Supplemental Bill of Particulars, A
copy of the Supplemental Billof Particulars is annexed hereto as Exhibit "D".
8. On May 4, 2017, counsel for plaintiff and counsel from your affirmant's office
appeared at a mediation with Mediator Joseph Spinola. Counsel for co-defendants did not attend
the mediation. At the mediation, counsel for plaintiff and counsel from your affirmant's office
agreed to settle this matter. As such, the parties entered into a post-mediation settlement
agreement , which was executed by both parties.
August your.
9. On July 28, 2017 and 11, 2017, your affirmant's office sent
correspondence and settlernent documents to plaintiff. Copies of the July 28, 2017 and August
correspondence2
11, 2017 sent to plaintiffare collectively anneXed hereto as Exhibit "E".
10. In addition to many phone calls to Mediator Spinola's office on November 17,
2017, your affirmant's office wrote to Mediator Spinola to request assistance in finalizing the
' signed your and
The executed Post-Mediation SettlementAgreement by affirmant'soffice counsel forplaintiff
is
confidentialand willbe submittedin camera forJudge Silver'sreview.
2 have been annexed as exhibits.
Defendants will
of
Due to the confidentiality the settlementdocuments, they not
submit documents
the settlement in camera forJudge
.1udge Silver's
review.
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NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018
02/23/2018 INDEX NO. 151998/2014
|FILED: NEW YORK COUNTY CLERK 06: 39 PM)
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018
settlement of this matter. A copy of the letter to Mediator Spinola is annexed hereto as Exhibit
+FAN>
Ptl
tt
11. In addition to many phone calls to plaintiff's counsel's office regarding finalizing
I
the settlement of this matter, your affirmant's office wrote to plaintiff's counsel on December 18,
I 2017 in yet another attempt to finalize the settlement of this matter. A copy of the
I
I
correspondence to plaintiffs counsel dated December 18, 2017 is annexed hereto as Exhibit
I c
ccgtt
(x
12. Despite many efforts by your affirmant to contact plaintiff's counsel's office to
I finalize the settlement, plaintiff's counsel has refused to finalize the settlement and sign the
settlement documents from your affirmant's office. Upon information and belief, Mediator
Spinola has also contacted plaintiff'scounsel's office in an effort to finalizethe settlement.
~ 't 11 . '- - — —
J — Cl- ~- PI —
—
L —
—--t L t 1 6 h ~
13. All parties appeared at Settlement Conference before Judge George Silver on
December 14, 2017. At the Settlement Conference, plaintiff's counsel refused to finalize the
settlement with defendants. As such, Judge Silver instructed plaintiff's counsel to have the
handling attorney who appeared at the mediation from plaintiff's counsel's office appear in
court. The handling attorney did not appear. Judge Silver then directed plaintiff's counsel to
have the handling attorney appear at the next Settlement Conference.
14. The next Settlement Conference took place on December 19, 2017. Despite
Judge Silver directing him to do so, the handling attorney frons plaintiff's counsel's office did
not appear. The attorney who did appear on behalf of plaintiff indicated that plaintiff was
the agreed on settlement amount, despite both parties the post-
rejecting previously executing
mediation settlement agreement. At the Settlernent Conference, Judge Silver recommended that
your affirmant make the instant application.
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NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018
INDEX NO. 151998/2014
(FILED : NEW YORK COUNTY CLERK 02/23/2018 0 6 : 39 PM)
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018
15. Due to plaintiff's failure to finalize the settlement and execute the settlement
documents, the instant application is necessary.
ARGUMENT
I
THIS COURT SHOULD ENFORCE THE POST-MEDIATION
SETTLEMENT AGREEMENT ENTERED INTO AND EXECUTED
BY PLAINTIFF'S COUNSEL AND COUNSEL FOR GEORGE J.
LAMADELEINE and .I.B.
J.B. HUNT TRANSPORT, INC,
I
I
16. CPLR §2104, which guides the instant issue, sets forth that, in order for
agreements between parties, including settlement agreements, to be valid, they must be made in
1
open court or in a writing subscribed by the party or his/her attorney. Here, such settlement
I
plaintifT'
agreement was made in writing on May 4, 2017 between plaintiff and defendants, George J.
I
i
Lamadeleine and J.B. Hunt Transport before Mediator Joseph Spinola. Therefore, pursuant to
CPLR §2104, this settlement isbinding.
17. The principle of CPLR §2104 has been upheld atthe appellate level in many cases
such as Conlon v Concord Pools, Ltd., 170 A.D.2d 754, 565 N.Y.S.2d 860 (3d Dept. 1991), as it
should be here. In Conlon, the Appellate Division stated, "To be enforceable, a stipulation must
be (1) made in open court, (2) written and subscribed, or (3) reduced to a court order and entered.
/d. at 86 1 . See also, Peralta v. All Weather fire Sales 4 Serv., 58 A.D.3d 822, 873 N.Y.S.2d
1 1 1,
(2d Dept. 2009); Starr v Rogers, 44 A.D.3d 646, 843 N.Y.S.2d 371 (2d Dept. 20073
18. In the instant matter, itis undisputed that counsel for plaintiffand defendants,
George J. Lamadeleine and J.B.
.I,H. Hunt Transport entered into a written settlement agreement on
May 4, 2017. At no time prior to December 19, 2017, did plaintiff's counsel disagree with the
terms of the agreement or advise the defendants that the settlement agreement was not in effect.
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NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018
INDEX NO. 151998/2014
(FILED : NEW YORK COUNTY CLERK 02/23/2018 O 6: 39 PM|
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018
19. Additionally, despite the executed settlement agreement, defendants have had to
plaintift"
bear the time and expense of continuously following up with plaintiff s counsel for almost a year
the finalization of the settlement. Furthermore, defendants have attended six court-
regarding (6)
mandated settlement conferences, despite the executed settlement agreement.
I
20. Itis respectfully submitted that failure to enforce thissettlement would essentially
provide permission to plaintiffs to casually enter into settlement agreements without sincere
consideration and concern as to the consequences of the agreement and without regard for the
causal effects upon allother parties involved in the action.
21. Therefore, it is respectfully submitted that the previously agreed on settlement
should be binding upon plaintiff and defendants, George J. Lamadeleine and J.B. Hunt
Transport.
PI&'\TPIY TTATMKT
CONCLUSION
22. The defendants desire a final resolution to this case. Settlement has been agreed
to by plaintiff and defendants, George J. Lamadeleine and J.B. Hunt Transport, Inc. nearly one
year ago, with those parties executing a Post-Mediation Settlement Agreement. The defendants
respectfully request that this Court to enforce the Post-Mediation Settlement Agreement, and to
require that the plaintiff'scounsel take the necessary administrative steps to close this matter.
WHEREFORE, it is respectfully requested that the instant application be granted in its
entirety,as well as such other and furtherreliefas may be deemed just and proper.
Dated: New York, New York
February 23, 2018
«Kb
Iolanda V. D'Ambrosi-Francavilla
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Preview
FILED: NEW YORK COUNTY CLERK 03/16/2018 02:37 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018 NEW YORK COUNTY CLERK 02/23/2018 06:39 INDEX NO. 151998/2014 (FILED: PM) NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 COUR'I' 01' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------X THORA CLAUDETTE CHALLENGER, Index No.: 151998/14 Plaintiff, I -against- AFFIRMATION IN SUPPORT GEORGE J. LAMADELEINE, J.B. HUNT TRANSPORT, INC., ZEPHANIAH P. MULLIN, and I CHARLES S. GILES, l Defendants. ___________________________________ __ _____..-----------------------X X IOLANDA V. D'AMBROSI-FRANCAVILLA, an attorney duly admitted to practice of' before the Courts of the State of New York, hereby affirms the following under penalty of and pursuant to CPLR §2106(b): 1. I am an associate of the law firm of RAWLE 4 HENDERSON LLP, attorneys for the defendants, GEORGE J. LAMADELEINE and J.B. HUNT TRANSPORT, INC., (" Defendants" ("Defendants"), and am familiar with the facts of this case by virtue of my review of the file maintained by this office. 2. This Affirmation is submitted in support of the instant Order to Show Cause on behalf of defendants, seeking an Order: a. Pursuant to CPLR §2104, enforcing the post-mediation settlement agreement between plaintiff and defendants, George J. Lamadeline and J.B. Hunt Transport, Inc. and finally settling thismatter as to those defendants; and b. For such other and further relief in favor of defendants as this Court deems just and proper. 1I34 I580-I 1 of 5 1 of 5 FILED: NEW YORK COUNTY CLERK 03/16/2018 02:37 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018 NEW COUNTY CLERK /23/2018 INDEX NO. 151998/2014 [FILED : YORK 02 0 6 : 39 PM) NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 PROCEDURAL HISTORY 3, This is an action for alleged negligence in connection with an auto accident on October 27, 2017. 4. On March 6, 2014, plaintiff filed a Summons and Complaint. A copy of the Summons and Complaint isannexed hereto as Exhibit "A". 5. On July 18, 2014, an Answer was filed on behalf of defendants. A copy of defendants' Answer isannexed hereto as Exhibit "B". 6. On or about February 10, 2015, plaintiff served a Bill of Particulars. A copy of plaintiff" plaintiff'sBill of Particulars is annexed hereto as Exhibit "C". 7. On or about June 22, 2015, plaintiffserved a Supplemental Bill of Particulars, A copy of the Supplemental Billof Particulars is annexed hereto as Exhibit "D". 8. On May 4, 2017, counsel for plaintiff and counsel from your affirmant's office appeared at a mediation with Mediator Joseph Spinola. Counsel for co-defendants did not attend the mediation. At the mediation, counsel for plaintiff and counsel from your affirmant's office agreed to settle this matter. As such, the parties entered into a post-mediation settlement agreement , which was executed by both parties. August your. 9. On July 28, 2017 and 11, 2017, your affirmant's office sent correspondence and settlernent documents to plaintiff. Copies of the July 28, 2017 and August correspondence2 11, 2017 sent to plaintiffare collectively anneXed hereto as Exhibit "E". 10. In addition to many phone calls to Mediator Spinola's office on November 17, 2017, your affirmant's office wrote to Mediator Spinola to request assistance in finalizing the ' signed your and The executed Post-Mediation SettlementAgreement by affirmant'soffice counsel forplaintiff is confidentialand willbe submittedin camera forJudge Silver'sreview. 2 have been annexed as exhibits. Defendants will of Due to the confidentiality the settlementdocuments, they not submit documents the settlement in camera forJudge .1udge Silver's review. l 1341580-1 2 of 5 2 of 5 FILED: NEW YORK COUNTY CLERK 03/16/2018 02:37 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018 02/23/2018 INDEX NO. 151998/2014 |FILED: NEW YORK COUNTY CLERK 06: 39 PM) NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 settlement of this matter. A copy of the letter to Mediator Spinola is annexed hereto as Exhibit +FAN> Ptl tt 11. In addition to many phone calls to plaintiff's counsel's office regarding finalizing I the settlement of this matter, your affirmant's office wrote to plaintiff's counsel on December 18, I 2017 in yet another attempt to finalize the settlement of this matter. A copy of the I I correspondence to plaintiffs counsel dated December 18, 2017 is annexed hereto as Exhibit I c ccgtt (x 12. Despite many efforts by your affirmant to contact plaintiff's counsel's office to I finalize the settlement, plaintiff's counsel has refused to finalize the settlement and sign the settlement documents from your affirmant's office. Upon information and belief, Mediator Spinola has also contacted plaintiff'scounsel's office in an effort to finalizethe settlement. ~ 't 11 . '- - — — J — Cl- ~- PI — — L — —--t L t 1 6 h ~ 13. All parties appeared at Settlement Conference before Judge George Silver on December 14, 2017. At the Settlement Conference, plaintiff's counsel refused to finalize the settlement with defendants. As such, Judge Silver instructed plaintiff's counsel to have the handling attorney who appeared at the mediation from plaintiff's counsel's office appear in court. The handling attorney did not appear. Judge Silver then directed plaintiff's counsel to have the handling attorney appear at the next Settlement Conference. 14. The next Settlement Conference took place on December 19, 2017. Despite Judge Silver directing him to do so, the handling attorney frons plaintiff's counsel's office did not appear. The attorney who did appear on behalf of plaintiff indicated that plaintiff was the agreed on settlement amount, despite both parties the post- rejecting previously executing mediation settlement agreement. At the Settlernent Conference, Judge Silver recommended that your affirmant make the instant application. 11341580-1 3 of 5 3 of 5 FILED: NEW YORK COUNTY CLERK 03/16/2018 02:37 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018 INDEX NO. 151998/2014 (FILED : NEW YORK COUNTY CLERK 02/23/2018 0 6 : 39 PM) NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 15. Due to plaintiff's failure to finalize the settlement and execute the settlement documents, the instant application is necessary. ARGUMENT I THIS COURT SHOULD ENFORCE THE POST-MEDIATION SETTLEMENT AGREEMENT ENTERED INTO AND EXECUTED BY PLAINTIFF'S COUNSEL AND COUNSEL FOR GEORGE J. LAMADELEINE and .I.B. J.B. HUNT TRANSPORT, INC, I I 16. CPLR §2104, which guides the instant issue, sets forth that, in order for agreements between parties, including settlement agreements, to be valid, they must be made in 1 open court or in a writing subscribed by the party or his/her attorney. Here, such settlement I plaintifT' agreement was made in writing on May 4, 2017 between plaintiff and defendants, George J. I i Lamadeleine and J.B. Hunt Transport before Mediator Joseph Spinola. Therefore, pursuant to CPLR §2104, this settlement isbinding. 17. The principle of CPLR §2104 has been upheld atthe appellate level in many cases such as Conlon v Concord Pools, Ltd., 170 A.D.2d 754, 565 N.Y.S.2d 860 (3d Dept. 1991), as it should be here. In Conlon, the Appellate Division stated, "To be enforceable, a stipulation must be (1) made in open court, (2) written and subscribed, or (3) reduced to a court order and entered. /d. at 86 1 . See also, Peralta v. All Weather fire Sales 4 Serv., 58 A.D.3d 822, 873 N.Y.S.2d 1 1 1, (2d Dept. 2009); Starr v Rogers, 44 A.D.3d 646, 843 N.Y.S.2d 371 (2d Dept. 20073 18. In the instant matter, itis undisputed that counsel for plaintiffand defendants, George J. Lamadeleine and J.B. .I,H. Hunt Transport entered into a written settlement agreement on May 4, 2017. At no time prior to December 19, 2017, did plaintiff's counsel disagree with the terms of the agreement or advise the defendants that the settlement agreement was not in effect. 11341580-1 4 of 5 4 of 5 FILED: NEW YORK COUNTY CLERK 03/16/2018 02:37 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 03/16/2018 INDEX NO. 151998/2014 (FILED : NEW YORK COUNTY CLERK 02/23/2018 O 6: 39 PM| NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 19. Additionally, despite the executed settlement agreement, defendants have had to plaintift" bear the time and expense of continuously following up with plaintiff s counsel for almost a year the finalization of the settlement. Furthermore, defendants have attended six court- regarding (6) mandated settlement conferences, despite the executed settlement agreement. I 20. Itis respectfully submitted that failure to enforce thissettlement would essentially provide permission to plaintiffs to casually enter into settlement agreements without sincere consideration and concern as to the consequences of the agreement and without regard for the causal effects upon allother parties involved in the action. 21. Therefore, it is respectfully submitted that the previously agreed on settlement should be binding upon plaintiff and defendants, George J. Lamadeleine and J.B. Hunt Transport. PI&'\TPIY TTATMKT CONCLUSION 22. The defendants desire a final resolution to this case. Settlement has been agreed to by plaintiff and defendants, George J. Lamadeleine and J.B. Hunt Transport, Inc. nearly one year ago, with those parties executing a Post-Mediation Settlement Agreement. The defendants respectfully request that this Court to enforce the Post-Mediation Settlement Agreement, and to require that the plaintiff'scounsel take the necessary administrative steps to close this matter. WHEREFORE, it is respectfully requested that the instant application be granted in its entirety,as well as such other and furtherreliefas may be deemed just and proper. Dated: New York, New York February 23, 2018 «Kb Iolanda V. D'Ambrosi-Francavilla I1341580-1 5 of 5 5 of 5