Opinion
No. 03 Civ. 7546 (LAK).
February 9, 2005
GORLICK, KRAVITZ LISTHAUS, P.C., Michael J. Vollbrecht, New York, New York, Attorneys for Plaintiffs.
Robert Bonanza, Business Manager, JACKSON LEWIS LLP, Attorneys for Defendant JJC.
Anthony J. DiOrio, Esq., White Plains, New York, JJC HOME IMPROVEMENTS, INC.
Louis Lazzinaro, Authorized Agent, COBERT, HABER HABER, Attorneys for VIVA VICTORIA DEFENDANTS.
Eugene F. Haber, Esq., Mineola, New York, VIVA VICTORIA ENTERPRISES LTD., Marcello Leone, Authorized Agent, Marcello Leone, Individually.
STIPULATION AND ORDER OF SETTLEMENT
IT IS HEREBY STIPULATED AND AGREED, by and among plaintiffs MASON TENDERS DISTRICT COUNCIL WELFARE FUND, PENSION FUND, ANNUITY FUND, TRAINING FUND, NEW YORK STATE LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, NEW YORK LABORERS' HEALTH AND SAFETY TRUST FUND and BUILDING CONTRACTORS ASSOCIATION INDUSTRY ADVANCEMENT PROGRAM and JOHN J. VIRGA in his fiduciary capacity as Director of the FUNDS (hereinafter "FUNDS"), and ANTHONY SILVERI as Business Manager of THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK AND LONG ISLAND (hereinafter "UNION") (sometimes collectively referred to as " PLAINTIFFS") and defendants JJC HOME IMPROVEMENTS, INC. (hereinafter "JJC"), and VIVA VICTORIA ENTERPRISE LTD. and MARCELLO LEONE (hereinafter the "VIVA VICTORIA DEFENDANTS"), and their respective counsel that the above-captioned action be and the same hereby is, settled upon the following terms and conditions:
1. JJC agrees to pay to plaintiffs FUNDS the amount of $91,944.65 for the period February 1, 2002 through October 29, 2003 as and for fringe benefit contributions due and owing the FUNDS pursuant to a collective bargaining agreement entered into between the UNION and the DEFENDANTS, and an additional $8,460.50 in interest, $3,000.00 in audit costs, and $13,076.33 in attorneys' fees incurred for late payment to the FUNDS by DEFENDANTS for a total sum of $116,481.48.
2. Plaintiffs FUNDS hereby agree to accept payment by JJC of the sum of $91,944.65 in full satisfaction of the fringe benefit contributions due to plaintiffs FUNDS for the period February 1, 2002 through October 29, 2003, and an additional $24,536.83 in interest, audit costs, costs and attorneys' fees incurred for late payment to the FUNDS by DEFENDANTS.
3. JJC further acknowledges an indebtedness to plaintiff UNION as and for unremitted dues checkoffs in the amount of $6,738.60 and as and for unremitted Political Action Committee ("PAC") contributions in the amount of $899.92 for the period February 1, 2002 through October 29, 2003, together with interest in the amounts of $775.00 and $105.00, respectively.
4. Plaintiff UNION hereby agrees to accept payment by DEFENDANTS, jointly and severally, of the total sum of $8,518.52 in full satisfaction of the dues check-offs and PAC contributions for the period February 1, 2002 through October 29, 2003.
5. The aforesaid total sum of $125,000.00 shall be paid in six installments. The first payment shall be in the amount of $50,000.00 and shall be due on April 15, 2005. The next five installments shall each be in the amount of $15,000.00 and shall be due on the 15th day of each month from May 15, 2005 through September 15, 2005, inclusive.
6. Payment to the PLAINTIFFS shall be made by check payable to the order of the Mason Tenders District Council Trust Funds and shall be remitted to the offices of the FUNDS at 520 Eighth Avenue, Suite 600, New York, New York 10018.
7. In the event of a default by JJC of any payment, term or condition agreed to or required by this Stipulation and Order of Settlement, plaintiffs FUNDS and plaintiff UNION shall have the right, at their sole option and discretion, to enter judgment against defendant JJC for the full amount of the stipulated fringe benefit contribution indebtedness and/or stipulated dues checkoff indebtedness then remaining due, together with all lawful interest thereon, statutory damages, costs of this action, audit costs, reasonable attorneys' fees, and any additional penalties, remedies and damages permitted by law, upon seven business days written notice by certified mail, return receipt requested, to the attorneys for JJC: Jackson Lewis LLP, Suite 1502, One North Broadway, White Plains, New York 10601, Attn: Anthony J. DiOrio, Esq., and the failure of JJC to cure said default within seven business days of their receipt thereof. JJC waives any notice of the submission of a judgment to the Court under this paragraph.
8. Any and all notices or other communications required or permitted to be given under any of the provisions of this Stipulation and Order of Settlement shall be sufficient if in writing and shall be deemed to have been duly given upon the mailing thereof by certified mail, return receipt requested, addressed to the parties at the addresses set forth below (or at such other address as any party may specify by notice to all other parties given as aforesaid).
For PLAINTIFFS: Gorlick, Kravitz Listhaus, P.C. 17 State Street, 4th Floor New York, New York 10004-1501 Attn: Michael J. Vollbrecht, Esq.
For JJC: Jackson Lewis LLP, One North Broadway, Suite 1502 White Plains, New York 10601 Attn: Anthony J. DiOrio, Esq. For VIVA DEFENDANTS: Cobert Haber Haber 190 Willis Avenue, Suite 130 Mineola, New York 11501 Attn: Eugene F. Haber, Esq.
9. This Stipulation and Order of Settlement shall be binding upon all PLAINTIFFS and all DEFENDANTS, jointly and severally, their respective assignees, executors, administrators, heirs, successors and assigns.
10. This Stipulation and Order of Settlement supersedes all prior agreements and understandings between the parties and constitutes the entire agreement of the parties with respect to the subject matter hereof. No provision of this Stipulation and Order of Settlement shall be modified, amended, extended, discharged, terminated or waived except by a writing specifically referring to this Stipulation and Order of Settlement and signed by all of the parties hereto and so ordered by the Court.
11. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall operate or be construed as a waiver of any subsequent breach or default of the same or similar nature.
12. Subject to the approval of this Court, the above-entitled action shall be discontinued with prejudice with respect to all claims by PLAINTIFFS against the VIVA DEFENDANTS for the period February 1, 2002 through October 29, 2003, and with prejudice as to defendant JJC as to all claims through the date of this Stipulation, and without assessed costs or attorneys' fees against any party except those specifically included herein, subject to reopening as to defendant JJC only in the event of default or failure of any payment or condition agreed to, or required in this Stipulation and Order of Settlement.
13. Each party to this Stipulation and Order of Settlement hereby acknowledges, represents, and warrants that they are authorized to enter into, execute, deliver, perform and implement this Stipulation and Order of Settlement, and agrees to indemnify and hold harmless each other party from all sums which may become due, including costs and reasonable attorneys' fees, as a result of this representation being false or inaccurate.
14. No provision within this Stipulation and Order of Settlement shall prohibit JJC from prepaying its stipulated indebtedness to plaintiffs FUNDS and JJC shall have the right to prepay without penalty.
SO ORDERED.