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INDEX NO. 652741/2015
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/02/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
TITAN FORMWORK SYSTEMS, LLC,
Petitioner,
v. Index No. 652741-2015
STIPULATION OF SETTLEMENT
BM of NY CONSTRUCTION CORP.,
Respondent.
IT IS HEREBY STIPUATED AND AGREED in accordance with Civil Practice
and Law Code § 3215(i), between Petitioner Titan Formwork Systems, LLC (“Titan”),
and Respondent BM of NY Construction Corp. (“BM of NY”) (collectively the
“parties”), and also in accordance with the settlement between the parties, as follows:
I In the event of BM of NY’s failure to comply with the terms of this
stipulation, then the Clerk shall, without further notice to BM of NY, enter final judgment
in favor of Titan and against BM of NY in the amount of $83,499.99, together with
interest at nine percent (9.0%) per year from August 24, 2015, all upon this stipulation
and an affidavit of Titan describing BM of NY’s failure to comply with the terms of this
stipulation, together with a concise statement of the facts on which Titan’s claim was
based, all in accordance with Civil Practice and Law Code § 3215(i)(1).
2. BM of NY shall make fourteen (14) payments as follows and in
accordance with the following schedule, TIME BEING OF THE ESSENCE, with each
payment to be received at Titan’s offices at 7855 South River Parkway, Suite 105,
Tempe, Arizona 85284, on or before the following dates, in at least the following
amounts:
A. On or before Friday, August 28, 2015, in the amount of $5,000.00.
I
On or before Wed., September 23, 2015, in the amount of $5,000.00.
On or before Wed., October 21, 2015, in the amount of $5,000.00.
On or before Wed., November 25, 2015, in the amount of $5,000.00.
On or before Wed., December 23, 2015, in the amount of $5,000.00.
On or before Wed., January 27, 2016, in the amount of $5,000.00.
On or before Wed., February 24, 2016, in the amount of $5,000.00.
On or before Wed., March 30, 2016, in the amount of $5,000.00.
On or before Wed., April 27, 2016, in the amount of $5,000.00.
On or before Wed., May 25, 2016, in the amount of $5,000.00.
On or before Wed., June 29, 2016, in the amount of $5,000.00.
On or before Wed., July 27, 2016, in the amount of $5,000.00.
On or before Wed., August 31, 2016, in the amount of $5,000.00.
On or before Wed., September 28, 2016, in the amount of $5,000.00.
3 If any of the foregoing payments is not timely received by Titan as set
forth above, then such an event shall constitute a “default.” After a default, then Titan
shall cause a written notice describing the default to be sent by email, with “Titan
Formwork: NOTICE OF DEFAULT” as the subject of the email, to
bmcofnyc@gmail.com and pv@aglaws.net. If any payment that is the subject of such a
written notice is not thereafter received at Titan’s offices at 7855 South River Parkway,
Suite 105, Tempe, Arizona 85284 within five (5) calendar days after the written notice
is sent as aforesaid, TIME BEING OF THE ESSENCE, then BM of NY shall have failed
to comply with the terms of this stipulation, and the Clerk shall, without further notice to
BM of NY, enter final judgment in favor of Titan and against BM of NY as set forth in
paragraph | of this stipulation.
4 If BM of NY makes all of the payments required of it under this
stipulation in accordance with the schedule and time periods as set forth above, time
being of the essence with respect thereto, then, except as provided below, following 95
days after BM of NY’s final payment shall have been honored and fully credited to
Titan’s account, Titan’s claims shall be released and satisfied. If, however, BM of NY
should file a petition in bankruptcy at any time after entering this stipulation and before
the day after the said 95 days shall have elapsed, then Titan’s claims shall not be released
and satisfied as aforesaid, unless the Bankruptcy Court having jurisdiction determines
that none of the payments made under this Agreement constitutes a preference subject to
avoidance. If a Bankruptcy Court determines that any of the payments made in
accordance with this stipulation is a preference pursuant to Bankruptcy Code § 547, or is
otherwise subject to avoidance or disgorgement, or if BM of NY does not make all of the
payments as required above, then any amounts that BM of NY has paid, and that are not
subject to avoidance, shall simply be credited against the full amount that Titan is and
shall be owed, which full amount is hereby stipulated and agreed to be the amount of
$83,499.99, plus interest at nine percent (9.0%) per year from August 24, 2015, plus any
additional attorneys’ fees, costs and disbursements as may be recoverable by Titan, if
any, pursuant to the May 31, 2013, contract between the parties.
5 TIME IS OF THE ESSENCE with respect to this stipulation and the
payment schedule set forth herein. If the foregoing payments are not made on or before
the times required above, then final judgment will be entered in the full amount as set
forth in paragraph | of this stipulation and any amounts that BM of NY has paid prior to
the entry of judgment will be credited first against the interest accruing at the rate of nine
percent (9%) from August 24, 2015. No forbearance or failure by Titan to strictly enforce
the timing of any payment under this stipulation shall be construed as a waiver with
respect to any subsequent payment.
6 This stipulation may be signed in counterparts, each of which when taken
together shall constitute one original document.
7 A facsimile copy of this stipulation shall be deemed to be an original and
may be filed by either party.
DATED: August 24, 2015
ANDREW GREENE & ASSOCIATES, LINDABURY, McCORMICK,
P.C., counsel for Respondent BM of NY ESTABROOK & COOPER, counsel for
Construction Corp., Petitioner Titan Formwork Systems, LLC
BY: lake BY: ke with lan
Paul Vink, Esq. Kenneth J. Soriero, Esq.
202 Mamaroneck Avenue 53 Cardinal Drive
White Plains, New York 10601 Westfield, New Jersey 07091
(914) 948-4800 (908)-233-6800
BM OF ONSTRUCTIO!
BY:
Begedetto Cupo, esident
fees
260 Madison Ave., 8th Floor
New York, NY 10016
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INDEX NO. 652741/2015 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/02/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TITAN FORMWORK SYSTEMS, LLC, Petitioner, v. Index No. 652741-2015 STIPULATION OF SETTLEMENT BM of NY CONSTRUCTION CORP., Respondent. IT IS HEREBY STIPUATED AND AGREED in accordance with Civil Practice and Law Code § 3215(i), between Petitioner Titan Formwork Systems, LLC (“Titan”), and Respondent BM of NY Construction Corp. (“BM of NY”) (collectively the “parties”), and also in accordance with the settlement between the parties, as follows: I In the event of BM of NY’s failure to comply with the terms of this stipulation, then the Clerk shall, without further notice to BM of NY, enter final judgment in favor of Titan and against BM of NY in the amount of $83,499.99, together with interest at nine percent (9.0%) per year from August 24, 2015, all upon this stipulation and an affidavit of Titan describing BM of NY’s failure to comply with the terms of this stipulation, together with a concise statement of the facts on which Titan’s claim was based, all in accordance with Civil Practice and Law Code § 3215(i)(1). 2. BM of NY shall make fourteen (14) payments as follows and in accordance with the following schedule, TIME BEING OF THE ESSENCE, with each payment to be received at Titan’s offices at 7855 South River Parkway, Suite 105, Tempe, Arizona 85284, on or before the following dates, in at least the following amounts: A. On or before Friday, August 28, 2015, in the amount of $5,000.00. I On or before Wed., September 23, 2015, in the amount of $5,000.00. On or before Wed., October 21, 2015, in the amount of $5,000.00. On or before Wed., November 25, 2015, in the amount of $5,000.00. On or before Wed., December 23, 2015, in the amount of $5,000.00. On or before Wed., January 27, 2016, in the amount of $5,000.00. On or before Wed., February 24, 2016, in the amount of $5,000.00. On or before Wed., March 30, 2016, in the amount of $5,000.00. On or before Wed., April 27, 2016, in the amount of $5,000.00. On or before Wed., May 25, 2016, in the amount of $5,000.00. On or before Wed., June 29, 2016, in the amount of $5,000.00. On or before Wed., July 27, 2016, in the amount of $5,000.00. On or before Wed., August 31, 2016, in the amount of $5,000.00. On or before Wed., September 28, 2016, in the amount of $5,000.00. 3 If any of the foregoing payments is not timely received by Titan as set forth above, then such an event shall constitute a “default.” After a default, then Titan shall cause a written notice describing the default to be sent by email, with “Titan Formwork: NOTICE OF DEFAULT” as the subject of the email, to bmcofnyc@gmail.com and pv@aglaws.net. If any payment that is the subject of such a written notice is not thereafter received at Titan’s offices at 7855 South River Parkway, Suite 105, Tempe, Arizona 85284 within five (5) calendar days after the written notice is sent as aforesaid, TIME BEING OF THE ESSENCE, then BM of NY shall have failed to comply with the terms of this stipulation, and the Clerk shall, without further notice to BM of NY, enter final judgment in favor of Titan and against BM of NY as set forth in paragraph | of this stipulation. 4 If BM of NY makes all of the payments required of it under this stipulation in accordance with the schedule and time periods as set forth above, time being of the essence with respect thereto, then, except as provided below, following 95 days after BM of NY’s final payment shall have been honored and fully credited to Titan’s account, Titan’s claims shall be released and satisfied. If, however, BM of NY should file a petition in bankruptcy at any time after entering this stipulation and before the day after the said 95 days shall have elapsed, then Titan’s claims shall not be released and satisfied as aforesaid, unless the Bankruptcy Court having jurisdiction determines that none of the payments made under this Agreement constitutes a preference subject to avoidance. If a Bankruptcy Court determines that any of the payments made in accordance with this stipulation is a preference pursuant to Bankruptcy Code § 547, or is otherwise subject to avoidance or disgorgement, or if BM of NY does not make all of the payments as required above, then any amounts that BM of NY has paid, and that are not subject to avoidance, shall simply be credited against the full amount that Titan is and shall be owed, which full amount is hereby stipulated and agreed to be the amount of $83,499.99, plus interest at nine percent (9.0%) per year from August 24, 2015, plus any additional attorneys’ fees, costs and disbursements as may be recoverable by Titan, if any, pursuant to the May 31, 2013, contract between the parties. 5 TIME IS OF THE ESSENCE with respect to this stipulation and the payment schedule set forth herein. If the foregoing payments are not made on or before the times required above, then final judgment will be entered in the full amount as set forth in paragraph | of this stipulation and any amounts that BM of NY has paid prior to the entry of judgment will be credited first against the interest accruing at the rate of nine percent (9%) from August 24, 2015. No forbearance or failure by Titan to strictly enforce the timing of any payment under this stipulation shall be construed as a waiver with respect to any subsequent payment. 6 This stipulation may be signed in counterparts, each of which when taken together shall constitute one original document. 7 A facsimile copy of this stipulation shall be deemed to be an original and may be filed by either party. DATED: August 24, 2015 ANDREW GREENE & ASSOCIATES, LINDABURY, McCORMICK, P.C., counsel for Respondent BM of NY ESTABROOK & COOPER, counsel for Construction Corp., Petitioner Titan Formwork Systems, LLC BY: lake BY: ke with lan Paul Vink, Esq. Kenneth J. Soriero, Esq. 202 Mamaroneck Avenue 53 Cardinal Drive White Plains, New York 10601 Westfield, New Jersey 07091 (914) 948-4800 (908)-233-6800 BM OF ONSTRUCTIO! BY: Begedetto Cupo, esident fees 260 Madison Ave., 8th Floor New York, NY 10016