Preview
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
SUPREME COURT OF THE STATE OF NEW YORK (MOTION SEQ. NO.: 001)
COUNTY OF SUFFOLK
-------------------------------------------------------------------X
INEZ G. PERLIN, Index No.: 602421/2021
Plaintiff, HON. LINDA KEVINS, J.S.C.
- against -
THOMAS BOURNE, EAST NORTHPORT
FIRE DISTRICT, EAST NORTHPORT FIRE
DEPARTMENT RESCUE,
Defendants.
--------------------------------------------------------------------X
REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF MOTION TO ENFORCE SETTLEMENT
GALLO VITUCCI KLAR LLP
Attorneys for Defendants
Thomas Bourne and East Northport Fire District
100 Crossways Park West, Suite 305
Woodbury, New York 11797
(212) 683-7100 ext. 252
1 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
Reduced to its essence, plaintiff’s opposition to this motion boils down to the following
arguments: 1.) she did not know it was a settlement conference; 2.) she had previously told her
attorney many months before that she did not want to settle; 3.) she did not have the option to think
about the settlement; and 4.) she felt blindsided, pressured and ambushed. However, a review of
the evidence reveals otherwise. Plaintiff has not carried her burden of proving that the agreement
was the result of fraud, duress, or overreaching, or that its terms were unconscionable.
A. Plaintiff Spent Time in the Morning and Afternoon With Her Own Counsel
Upon questioning by her own attorney, plaintiff admitted that she spent time in the morning
and the afternoon with her own counsel. Hence, she became aware that it was a settlement
conference.
Q. Good Afternoon. We have spent some time this morning together and this afternoon
discussing your case?
A. Yes.
(Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P4 L5)
* * *
B. Plaintiff Accepted the Settlement
Plaintiff also admitted that she had agreed to accept the defendants’ final settlement offer
of $75,000.00. Hence, she obviously changed her prior position about not wanting to settle.
Q. I told you this afternoon that the defendant’s final settlement offer in this case was
$75,000.00, correct?
A. Yes.
Q. And we had some discussions with the Court?
A. Yes.
2 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
Q. And my understanding is that you have agreed to accept the $75,000.00 in full
settlement of your case?
A. Yes.
(Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P4 L9)
C. Plaintiff Admitted That She Had Enough Time With Her
Her Attorney And that She Was Happy With His Services
When questioned by the Court, plaintiff also admitted that she had enough time with her
attorney, and that she was happy with her attorney’s services:
THE COURT: Did you have enough time with your attorney?
THE WITNESS: I only met with him today, but I suppose, yes.
THE COURT: Was he from the firm of the other attorneys that you have been dealing
with for a long time, yes or no?
THE WITNESS: Yes.
THE COURT: And did you have enough time dealing with all of the attorneys at the
firm?
THE WITNESS: I am not really sure how to answer that. You need to have an answer of
yes or no?
THE COURT: Yes.
THE WITNESS: I have to say yes.
(Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P5 L10)
* * *
THE COURT: Are you happy with the services of your attorney?
THE WITNESS: I suppose.
THE COURT: It’s either yest or no.
3 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
THE WITNESS: I would have to go with a yes.
(Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P5 L4)
D. Plaintiff Admitted That She Was Not Under Undue Influence
Plaintiff admitted that she was not under the influence of any drugs or medication or
alcohol that would impair her ability to understand these proceedings. (Ex. D – July 15, 2022
Hearing Transcript - E-File Doc. # 33 at P6 L1) Plaintiff also admitted that she realized that: 1.)
all parties would be giving up their rights to continue including the right to go to trial (Ex. D – July
15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L6); 2.) she would be agreeing to the
Stipulation of Settlement which resolves all matters with respect to this case (Ex. D – July 15,
2022 Hearing Transcript - E-File Doc. # 33 at P6 L11); 3.) by agreeing to the Stipulation of
Settlement, there will be no further proceedings or trial (Ex. D – July 15, 2022 Hearing Transcript
- E-File Doc. # 33 at P6 L16).
E. Plaintiff Was Told By The Court That She Was The Master Of Her Own Destiny
The Court specifically told plaintiff that she is the master of her own destiny:
THE COURT: Are you agreeing to the Stipulation of Settlement of your own free will?
THE WITNESS: (No response.)
THE COURT: Ma’am, I have always told you that you are the master of your own
destiny. Are you agreeing to the stipulation of your own free will?
THE WITNESS: I don’t see any other option, so , yes.
(Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L20, P7 L1)
F. Plaintiff Signed The Stipulation Of Settlement And Then
Stated On The Record That She Agreed To Be Bound By Its Terms
Plaintiff then signed the Stipulation of Settlement and admitted on the record that she
signed it and that she agreed to be bound by its terms:
4 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
THE COURT: Okay. I am going to hand you this one page document called the
Stipulation of Settlement.
Officer, if you wouldn’t mind showing it to her.
(Handing.)
Is that your signature on the Stipulation of Settlement?
THE WITNESS: Yes.
THE COURT: Did you read and understand the terms?
THE WITNESS: Pretty much.
THE COURT: Do you agree to be bound by the terms?
THE WITNESS: Yes.
(Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P7 L5, Ex. E – July 14,
2022 Stipulation of Settlement – E-File Doc. #34.)
The Court then thanked all the attorneys for their hard work and professionalism and stated
“I feel this is a very fair settlement.” (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33
at P7 L20). Plaintiff then thanked the Court. (Ex. D – July 15, 2022 Hearing Transcript - E-File
Doc. # 33 at P8 L2)
G. Plaintiff Has Not Met Her Burden
Given all of the above, plaintiff has not met her burden of showing that the agreement was
the result of fraud, duress, or overreaching, or that its terms were unconscionable. Osipova v.
Silverberg, 200 A.D.3d 993, 993, 160 N.Y.S.3d 313, 314 (2nd Dept. 2021). A valid stipulation
must be construed as an independent contract subject to settled principles of contractual
interpretation. See e.g., Diarassouba v. Urban, 71 A.D.3d 51, 57-58, 892 N.Y.S.2d 410, 415 (2nd
Dept. 2015). Absent a showing of fraud, overreaching, mistake, or duress, the stipulation should
5 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
not be disturbed by the court. Id. An agreement will not be overturned merely because it was
improvident, not the most advantageous to the dissatisfied party, or because a party had a change
of heart. Osipova v. Silverberg, 200 A.D.3d 993, 993, 160 N.Y.S.3d 313, 314 (2nd Dept. 2021).
Here, the evidence demonstrates that the parties entered into an enforceable open court
stipulation of settlement for $75,000.00 where the material terms of the settlement were placed on
the record. Strict enforcement not only serves the interest of efficient dispute resolution but also is
essential to the management of court calendars and the integrity of the litigation process. See e.g.,
Nigro v. Nigro, 44 A.D.3d 831, 831, 843 N.Y.S.2d 664, 664-665 (2nd Dept 2007); see also Perry
v. McMahan, 164 A.D.3d 1490, 1491, 84 N.Y.S.3d 507, 508 (2nd Dept. 2018).
WHEREFORE, by virtue of the foregoing, it is respectfully requested that this Court issue
an order: A) pursuant to CPLR §2104 for an order enforcing the terms of the settlement agreement
by and between the parties; and B) granting defendants such other and further relief as this Court
may deem just and proper.
Dated: Woodbury, New York
March 24, 2023 GALLO VITUCCI KLAR LLP
_________________________
By: Andrew M. Lauri, Esq.
6 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------------------------------------------------------------X
INEZ G. PERLIN, Index No.: 602421/2021
Plaintiff, MOTION SEQUENCE NO.: 001
- against - WORD COUNT
CERTIFICATION
THOMAS BOURNE, EAST NORTHPORT
FIRE DISTRICT, EAST NORTHPORT FIRE
DEPARTMENT RESCUE,
Defendants.
--------------------------------------------------------------------X
I hereby certify that the number of words contained in Reply Memorandum Of Law In
Further Support Of Motion To Enforce Settlement to which this is attached contains 1,231 words
exclusive of the caption and signature block and does not exceed the maximum word count set
forth in Rule 202.8(b) of the Uniform Rules of the
Supreme Court.
Dated: Woodbury, New York
March 24, 2023 Yours etc.,
GALLO VITUCCI KLAR LLP
________________________________
By: Andrew M. Lauri, Esq.
Attorney for Defendants
Thomas Bourne and East Northport Fire District
100 Crossways Park West, Suite 305
Woodbury, New York 11797
(212) 683-7100 ext. 252
File No.: GB.2020007
7 of 8
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------------------------------------------------------------------x
INEZ G. PERLIN, Index No.: 602421/2021
Plaintiff,
- against -
THOMAS BOURNE, EAST NORTHPORT
FIRE DISTRICT, EAST NORTHPORT FIRE
DEPARTMENT RESCUE,
Defendants.
--------------------------------------------------------------------x
REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF MOTION TO ENFORCE SETTLEMENT
GALLO VITUCCI KLAR LLP
Attorneys for Defendants
Thomas Bourne and East Northport Fire District
100 Crossways Park West, Suite 305
Woodbury, New York 11797
(212) 683-7100 ext. 252
File No.: GB.2020007
8 of 8
Preview
FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 SUPREME COURT OF THE STATE OF NEW YORK (MOTION SEQ. NO.: 001) COUNTY OF SUFFOLK -------------------------------------------------------------------X INEZ G. PERLIN, Index No.: 602421/2021 Plaintiff, HON. LINDA KEVINS, J.S.C. - against - THOMAS BOURNE, EAST NORTHPORT FIRE DISTRICT, EAST NORTHPORT FIRE DEPARTMENT RESCUE, Defendants. --------------------------------------------------------------------X REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO ENFORCE SETTLEMENT GALLO VITUCCI KLAR LLP Attorneys for Defendants Thomas Bourne and East Northport Fire District 100 Crossways Park West, Suite 305 Woodbury, New York 11797 (212) 683-7100 ext. 252 1 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 Reduced to its essence, plaintiff’s opposition to this motion boils down to the following arguments: 1.) she did not know it was a settlement conference; 2.) she had previously told her attorney many months before that she did not want to settle; 3.) she did not have the option to think about the settlement; and 4.) she felt blindsided, pressured and ambushed. However, a review of the evidence reveals otherwise. Plaintiff has not carried her burden of proving that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable. A. Plaintiff Spent Time in the Morning and Afternoon With Her Own Counsel Upon questioning by her own attorney, plaintiff admitted that she spent time in the morning and the afternoon with her own counsel. Hence, she became aware that it was a settlement conference. Q. Good Afternoon. We have spent some time this morning together and this afternoon discussing your case? A. Yes. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P4 L5) * * * B. Plaintiff Accepted the Settlement Plaintiff also admitted that she had agreed to accept the defendants’ final settlement offer of $75,000.00. Hence, she obviously changed her prior position about not wanting to settle. Q. I told you this afternoon that the defendant’s final settlement offer in this case was $75,000.00, correct? A. Yes. Q. And we had some discussions with the Court? A. Yes. 2 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 Q. And my understanding is that you have agreed to accept the $75,000.00 in full settlement of your case? A. Yes. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P4 L9) C. Plaintiff Admitted That She Had Enough Time With Her Her Attorney And that She Was Happy With His Services When questioned by the Court, plaintiff also admitted that she had enough time with her attorney, and that she was happy with her attorney’s services: THE COURT: Did you have enough time with your attorney? THE WITNESS: I only met with him today, but I suppose, yes. THE COURT: Was he from the firm of the other attorneys that you have been dealing with for a long time, yes or no? THE WITNESS: Yes. THE COURT: And did you have enough time dealing with all of the attorneys at the firm? THE WITNESS: I am not really sure how to answer that. You need to have an answer of yes or no? THE COURT: Yes. THE WITNESS: I have to say yes. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P5 L10) * * * THE COURT: Are you happy with the services of your attorney? THE WITNESS: I suppose. THE COURT: It’s either yest or no. 3 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 THE WITNESS: I would have to go with a yes. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P5 L4) D. Plaintiff Admitted That She Was Not Under Undue Influence Plaintiff admitted that she was not under the influence of any drugs or medication or alcohol that would impair her ability to understand these proceedings. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L1) Plaintiff also admitted that she realized that: 1.) all parties would be giving up their rights to continue including the right to go to trial (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L6); 2.) she would be agreeing to the Stipulation of Settlement which resolves all matters with respect to this case (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L11); 3.) by agreeing to the Stipulation of Settlement, there will be no further proceedings or trial (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L16). E. Plaintiff Was Told By The Court That She Was The Master Of Her Own Destiny The Court specifically told plaintiff that she is the master of her own destiny: THE COURT: Are you agreeing to the Stipulation of Settlement of your own free will? THE WITNESS: (No response.) THE COURT: Ma’am, I have always told you that you are the master of your own destiny. Are you agreeing to the stipulation of your own free will? THE WITNESS: I don’t see any other option, so , yes. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P6 L20, P7 L1) F. Plaintiff Signed The Stipulation Of Settlement And Then Stated On The Record That She Agreed To Be Bound By Its Terms Plaintiff then signed the Stipulation of Settlement and admitted on the record that she signed it and that she agreed to be bound by its terms: 4 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 THE COURT: Okay. I am going to hand you this one page document called the Stipulation of Settlement. Officer, if you wouldn’t mind showing it to her. (Handing.) Is that your signature on the Stipulation of Settlement? THE WITNESS: Yes. THE COURT: Did you read and understand the terms? THE WITNESS: Pretty much. THE COURT: Do you agree to be bound by the terms? THE WITNESS: Yes. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P7 L5, Ex. E – July 14, 2022 Stipulation of Settlement – E-File Doc. #34.) The Court then thanked all the attorneys for their hard work and professionalism and stated “I feel this is a very fair settlement.” (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P7 L20). Plaintiff then thanked the Court. (Ex. D – July 15, 2022 Hearing Transcript - E-File Doc. # 33 at P8 L2) G. Plaintiff Has Not Met Her Burden Given all of the above, plaintiff has not met her burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable. Osipova v. Silverberg, 200 A.D.3d 993, 993, 160 N.Y.S.3d 313, 314 (2nd Dept. 2021). A valid stipulation must be construed as an independent contract subject to settled principles of contractual interpretation. See e.g., Diarassouba v. Urban, 71 A.D.3d 51, 57-58, 892 N.Y.S.2d 410, 415 (2nd Dept. 2015). Absent a showing of fraud, overreaching, mistake, or duress, the stipulation should 5 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 not be disturbed by the court. Id. An agreement will not be overturned merely because it was improvident, not the most advantageous to the dissatisfied party, or because a party had a change of heart. Osipova v. Silverberg, 200 A.D.3d 993, 993, 160 N.Y.S.3d 313, 314 (2nd Dept. 2021). Here, the evidence demonstrates that the parties entered into an enforceable open court stipulation of settlement for $75,000.00 where the material terms of the settlement were placed on the record. Strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and the integrity of the litigation process. See e.g., Nigro v. Nigro, 44 A.D.3d 831, 831, 843 N.Y.S.2d 664, 664-665 (2nd Dept 2007); see also Perry v. McMahan, 164 A.D.3d 1490, 1491, 84 N.Y.S.3d 507, 508 (2nd Dept. 2018). WHEREFORE, by virtue of the foregoing, it is respectfully requested that this Court issue an order: A) pursuant to CPLR §2104 for an order enforcing the terms of the settlement agreement by and between the parties; and B) granting defendants such other and further relief as this Court may deem just and proper. Dated: Woodbury, New York March 24, 2023 GALLO VITUCCI KLAR LLP _________________________ By: Andrew M. Lauri, Esq. 6 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------X INEZ G. PERLIN, Index No.: 602421/2021 Plaintiff, MOTION SEQUENCE NO.: 001 - against - WORD COUNT CERTIFICATION THOMAS BOURNE, EAST NORTHPORT FIRE DISTRICT, EAST NORTHPORT FIRE DEPARTMENT RESCUE, Defendants. --------------------------------------------------------------------X I hereby certify that the number of words contained in Reply Memorandum Of Law In Further Support Of Motion To Enforce Settlement to which this is attached contains 1,231 words exclusive of the caption and signature block and does not exceed the maximum word count set forth in Rule 202.8(b) of the Uniform Rules of the Supreme Court. Dated: Woodbury, New York March 24, 2023 Yours etc., GALLO VITUCCI KLAR LLP ________________________________ By: Andrew M. Lauri, Esq. Attorney for Defendants Thomas Bourne and East Northport Fire District 100 Crossways Park West, Suite 305 Woodbury, New York 11797 (212) 683-7100 ext. 252 File No.: GB.2020007 7 of 8 FILED: SUFFOLK COUNTY CLERK 03/24/2023 03:51 PM INDEX NO. 602421/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------x INEZ G. PERLIN, Index No.: 602421/2021 Plaintiff, - against - THOMAS BOURNE, EAST NORTHPORT FIRE DISTRICT, EAST NORTHPORT FIRE DEPARTMENT RESCUE, Defendants. --------------------------------------------------------------------x REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO ENFORCE SETTLEMENT GALLO VITUCCI KLAR LLP Attorneys for Defendants Thomas Bourne and East Northport Fire District 100 Crossways Park West, Suite 305 Woodbury, New York 11797 (212) 683-7100 ext. 252 File No.: GB.2020007 8 of 8