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FILED: NEW YORK COUNTY CLERK 02/23/2018 06:39 PM INDEX NO. 151998/2014
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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THORA CLAUDETTE CHALLENGER, Index No.: 151998/14
Plaintiff,
-against- AFFIRMATION
IN SUPPORT
GEORGE J. LAMADELEINE, J.B. HUNT
TRANSPORT, INC., ZEPHANIAH P. MULLIN, and
CHARLES S. GILES,
Defendants.
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IOLANDA V. D'AMBROSI-FRANCAVILLA, an attorney duly admitted to practice
before the Courts of the State of New York, hereby affirms the following under penalty of
perjury and pursuant to CPLR §2106(b):
1. I am an associate of the law firm of RAWLE & 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 this matter 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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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 is annexed hereto as Exhibit "A".
5. On July 18, 2014, an Answer was filed on behalf of defendants. A copy of
defendants'
Answer is annexed hereto as Exhibit "B".
6. On or about February 10, 2015, plaintiff served a Bill of Particulars. A copy of
plaintiff's Bill of Particulars is annexed hereto as Exhibit "C".
7. On or about June 22, 2015, plaintiff served a Supplemental Bill of Particulars. A
copy of the Supplemental Bill of 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.
9. On July 28, 2017 and August 11, 2017, your affirmant's office sent
correspondence and settlement documents to plaintiff. Copies of the July 28, 2017 and August
correspondence2
11, 2017 correspondence sent to plaintiff are 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
I
The executed Post-Mediation Settlement Agreement signed by your affirmant's officeand counsel for plaintiffis
confidential and willbe submitted in camera forJudge Silver'sreview.
2
Due to the confidentialityofthe settlement documents, they have notbeen annexed as exhibits.Defendants will
submit the settlement documents incamera for Judge Silver'sreview.
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settlement of this matter. A copy of the letter to Mediator Spinola is annexed hereto as Exhibit
CCF90
11. In addition to many phone calls to plaintiff's counsel's office regarding finalizing
the settlement of this matter, your affirmant's office wrote to plaintiff's counsel on December 18,
2017 in yet another attempt to finalize the settlement of this matter. A copy of the
correspondence to plaintiff's counsel dated December 18, 2017 is annexed hereto as Exhibit
n
CCPT
12. Despite many efforts by your affirmant to contact plaintiff's counsel's office to
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's counsel's office in an effort to finalize the settlement.
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 from 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 despite both parties the post-
rejecting previously amount, executing
mediation settlement agreement. At the Settlement Conference, Judge Silver recommended that
your affirmant make the instant application.
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15. Due to plaintiff's failure to finalize the settlement and execute the settlement
documents, the instant application is necessary.
ARGUMENT
THIS COURT SHOULD ENFORCE THE POST-MEDIATION
SETTLEMENT AGREEMENT ENTERED INTO AND EXECUTED
BY PLAINTIFF'S COUNSEL AND COUNSEL FOR GEORGE J.
LAMADELEINE and J.B. HUNT TRANSPORT, INC.
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
open court or in a writing subscribed by the party or his/her attorney. Here, such settlement
agreement was made in writing on May 4, 2017 between plaintiff and defendants, George J.
Lamadeleine and J.B. Hunt Transport before Mediator Joseph Spinola. Therefore, pursuant to
CPLR §2104, this settlement is binding.
17. The principle of CPLR §2104 has been upheld at the 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.
Id. at 861. See also, Peralta v. All Weather Tire Sales 2 Serv., 58 A.D.3d 822, 873 N.Y.S.2d
111, (2d Dept. 2009); Starr v Rogers, 44 A.D.3d 646, 843 N.Y.S.2d 371 (2d Dept. 2007)
18. In the instant matter, it is undisputed that counsel for plaintiff and defendants,
George J. Lamadeleine and J.B. 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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19. Additionally, despite the executed settlement agreement, defendants have had to
bear the time and expense of continuously following up with plaintiff's counsel for almost a year
the finalization of the settlement. defendants have attended six court-
regarding Furthermore, (6)
mandated settlement conferences, despite the executed settlement agreement.
20. It isrespectfully submitted that failure to enforce this settlement 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 all other 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.
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's counsel 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 further relief as may be deemed just and proper.
Dated: New York, New York
February 23, 2018
Iolanda V. D'Ambrosi-Francavilla
g
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FILED: NEW YORK COUNTY CLERK 02/23/2018 06:39 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X THORA CLAUDETTE CHALLENGER, Index No.: 151998/14 Plaintiff, -against- AFFIRMATION IN SUPPORT GEORGE J. LAMADELEINE, J.B. HUNT TRANSPORT, INC., ZEPHANIAH P. MULLIN, and CHARLES S. GILES, Defendants. -----------------------------------------------------------------------X IOLANDA V. D'AMBROSI-FRANCAVILLA, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following under penalty of perjury and pursuant to CPLR §2106(b): 1. I am an associate of the law firm of RAWLE & 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 this matter as to those defendants; and b. For such other and further relief in favor of defendants as this Court deems just and proper. 11341580-1 1 of 5 FILED: NEW YORK COUNTY CLERK 02/23/2018 06:39 PM INDEX NO. 151998/2014 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 is annexed hereto as Exhibit "A". 5. On July 18, 2014, an Answer was filed on behalf of defendants. A copy of defendants' Answer is annexed hereto as Exhibit "B". 6. On or about February 10, 2015, plaintiff served a Bill of Particulars. A copy of plaintiff's Bill of Particulars is annexed hereto as Exhibit "C". 7. On or about June 22, 2015, plaintiff served a Supplemental Bill of Particulars. A copy of the Supplemental Bill of 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. 9. On July 28, 2017 and August 11, 2017, your affirmant's office sent correspondence and settlement documents to plaintiff. Copies of the July 28, 2017 and August correspondence2 11, 2017 correspondence sent to plaintiff are 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 I The executed Post-Mediation Settlement Agreement signed by your affirmant's officeand counsel for plaintiffis confidential and willbe submitted in camera forJudge Silver'sreview. 2 Due to the confidentialityofthe settlement documents, they have notbeen annexed as exhibits.Defendants will submit the settlement documents incamera for Judge Silver'sreview. 11341580-1 2 of 5 FILED: NEW YORK COUNTY CLERK 02/23/2018 06:39 PM INDEX NO. 151998/2014 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 CCF90 11. In addition to many phone calls to plaintiff's counsel's office regarding finalizing the settlement of this matter, your affirmant's office wrote to plaintiff's counsel on December 18, 2017 in yet another attempt to finalize the settlement of this matter. A copy of the correspondence to plaintiff's counsel dated December 18, 2017 is annexed hereto as Exhibit n CCPT 12. Despite many efforts by your affirmant to contact plaintiff's counsel's office to 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's counsel's office in an effort to finalize the settlement. 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 from 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 despite both parties the post- rejecting previously amount, executing mediation settlement agreement. At the Settlement Conference, Judge Silver recommended that your affirmant make the instant application. 113415110-1 3 of 5 FILED: NEW YORK COUNTY CLERK 02/23/2018 06:39 PM INDEX NO. 151998/2014 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 THIS COURT SHOULD ENFORCE THE POST-MEDIATION SETTLEMENT AGREEMENT ENTERED INTO AND EXECUTED BY PLAINTIFF'S COUNSEL AND COUNSEL FOR GEORGE J. LAMADELEINE and J.B. HUNT TRANSPORT, INC. 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 open court or in a writing subscribed by the party or his/her attorney. Here, such settlement agreement was made in writing on May 4, 2017 between plaintiff and defendants, George J. Lamadeleine and J.B. Hunt Transport before Mediator Joseph Spinola. Therefore, pursuant to CPLR §2104, this settlement is binding. 17. The principle of CPLR §2104 has been upheld at the 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. Id. at 861. See also, Peralta v. All Weather Tire Sales 2 Serv., 58 A.D.3d 822, 873 N.Y.S.2d 111, (2d Dept. 2009); Starr v Rogers, 44 A.D.3d 646, 843 N.Y.S.2d 371 (2d Dept. 2007) 18. In the instant matter, it is undisputed that counsel for plaintiff and defendants, George J. Lamadeleine and J.B. 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 FILED: NEW YORK COUNTY CLERK 02/23/2018 06:39 PM INDEX NO. 151998/2014 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 02/23/2018 19. Additionally, despite the executed settlement agreement, defendants have had to bear the time and expense of continuously following up with plaintiff's counsel for almost a year the finalization of the settlement. defendants have attended six court- regarding Furthermore, (6) mandated settlement conferences, despite the executed settlement agreement. 20. It isrespectfully submitted that failure to enforce this settlement 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 all other 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. 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's counsel 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 further relief as may be deemed just and proper. Dated: New York, New York February 23, 2018 Iolanda V. D'Ambrosi-Francavilla g 11341580-1 5 of 5