Opinion
09 Civ. 5055 (SAS).
June 4, 2010
For Plaintiff:, H. Forest Horne, Jr., Esq., (HFH 4736), Martin Jones, PLLC, Raleigh, North Carolina, Samuel David Levy, Esq., Wuersch Gering LLP, New York, New York.
For Defendant:, Joseph F. Sullivan, Esq., (JFS 4750), Sullivan Brill, LLP, New York, New York.
ORDER
The Stipulation of Settlement, Release and Order of Dismissal is hereby ordered docketed.
SO ORDERED.
ECF CASE STIPULATION OF SETTLEMENT, RELEASE AND ORDER OF DIMISSAL
WHEREAS. Plaintiff, Martha Bernardo, individually and as Administratrix of the Estate of Jon Michael Bernardo, deceased, filed the Complaint in this action on June 16, 2009. alleging, inter alia, that Defendant Jeffrey Scott Ader drove a vehicle he was operating in such a manner as to cause an accident leading to the death of Jon Michael Bernardo: and
WHEREAS, the parties are interested in resolving all issues between them arising out of the accident and the claims asserted in this action, and have negotiated this settlement, release and agreement to dismiss this action; and
WHEREAS, the parties wish to discontinue this litigation under the terms provided for in this Stipulation of Settlement. Release and Order of Dismissal:
IT IS HEREBY STIPULATED AND AGREED by and between the parties and their respective counsel as follows:
1. The parties hereby agree that this action may be dismissed by the Court with prejudice, as to the Defendant, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
2. Any and all of the claims for damages brought by Plaintiff individually or on behalf of the estate or otherwise arise out of any of the incidents alleged in the Complaint are hereby settled, as against the Defendant and any other individual or entity that the Defendant would be obligated to indemnify or pay contribution to should that individual or entity be held liable to the Plaintiff, in consideration of Defendant's payment, under the terms and conditions set forth below, of the total sum ("Settlement Amount") of Seventy-Eight Thousand Dollars ($78,000.00), in full satisfaction of all claims for damages, costs, disbursements and legal fees.
3. Defendant shall pay the Settlement Amount to Plaintiff by periodic payments as follows: (1) payments by check or money order shall be mailed to Plaintiff at her present address. 909 Clarion Drive, Durham, North Carolina 27705, or mailed to her at any other address for which she may provide Defendant written notice is her future address.
4. In consideration of the agreement to make the payments of the Settlement Amount in Paragraph #2, above, Plaintiff, individually and on behalf of the Estate of Jon Michael Bernardo, his heirs, executors, administrators and assigns, hereby releases the Defendant, and his heirs, executors, administrators and assigns, from any and all claims, liabilities and causes of action related to or arising out of any and all of the events set forth in the Complaint and due to the death of Jon Michael Bernardo.
5. Defendant acknowledges the tragic loss and is sorry that Jon Michael Bernardo died in the accident.
6. The Settlement Amount in Paragraph #2 above shall be paid by Defendant according to the following schedule and shall begin on the dates specified below after execution of this stipulation by Plaintiff and Defendant and the filing of this Stipulation of Settlement, Release and Order of Dismissal with the Court:
a. On or before July 1, 2010 and continuing on the first day of each consecutive month until June 1, 2020. Defendant shall make monthly $650.00 payments to Plaintiff by check, money order or wire transfer. The total of the 10 years of $650.00 monthly payments is $78,000.00.
b. Defendant agrees that if he fails to make any of the periodic settlement payments to Plaintiff when due, then after Plaintiff has provided Defendant with notice that the settlement payment has not been received, than if Defendant fails to cure the default within forty-five (45) days of the date the periodic payment was originally due, then Defendant will be in default of the Settlement Agreement and the entire remaining unpaid amount due under the Settlement Amount shall be immediately due and payable in full to Plaintiff. In the event of a default that is not cured by Defendant, Plaintiff may bring an action against Defendant to recover the entire remaining settlement amount due in any Federal or State Court, in either New York or North Carolina and Defendant consents to personal and subject matter jurisdiction in any such court that Plaintiff chooses to bring an action to enforce the terms of this Settlement Agreement.
c. In the event that Defendant fails to make any Settlement Payments when due, then Plaintiff may send Notice of Default to Defendant at his current address, 37 Wall Street, Apt. 15P, New York, NY 10005 by regular first class mail. If Defendant's address changes. Defendant shall provide Plaintiff with notice of change of address by registered mail, then Plaintiff will send any notice of default to any subsequent address. In the event. Defendant fails to cure any default and legal action is necessary to enforce the terms of this Settlement Agreement and to recover the remaining Settlement Amount due, once legal action is instituted to recover the remaining Settlement Amount due, then Plaintiff will also be entitled to recover interest at the legal rate from the date of any such filing and a reasonable attorney fee in bringing the action for the unpaid Settlement Amount due.
7. This Stipulation of Settlement, Release and Order of Dismissal will constitute the entire agreement between the parties in this matter. New York Susan C. Taylor
Martha Bernardo, Individually and Jeffrey Scott Ader as Administratrix of the Estate of Jon Michael Bernardo, Deceased STATE OF NORTH CAROLINA STATE OF NEW YORK COUNTY OF DURHAM COUNTY OF Sworn to before me this Sworn to before me this 2nd day of June, 2010. 20 day of May, 2010. ___________ Notary Public Notary Public My commission expires: 10-9-2011 My commission expires:____ Seal Seal Raina F. Miller Notary Public, State of New York No. 02M16220963 Qualified in New York County Commission Expires, April 26, 2014