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FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016
NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018
1`0 NAL- d
At part of the Supreme Court of
State of New York in and for the County of
. Queens held at 88-1) Sutphin lvd., maica,
NY 11435 on thell the day of 2018.
H otwe_I CiteNbe"
PRESENT: HON. PETER J. O'DONOGHUE
'40 J.S.C.
VICTORIA REYES individually and as Mother and Index No.: 711261/2016
Natural Guardian of MARCIAL MARTINEZ-REYES,
an infant,
Plaintiffs, INFANT'S COMPROMISE
ORDER
-against-
AUDREY BERMAN, M.D., JOKATHLEEN RODRIGUEZ,
N.P., AARON KESSEI., M.D., RANDI TROPE, D.O.,
SUJATHA RAJAN, M.D., SUNIL KUMAR SOOD, M.D., P y 4
MICHELLE SEWNARINE, M.D., ST. MARY'S
HEALTHCARE SYSTEM FOR CHILDREN INC, COHEN 7g nito
CHILDREN'S MEDICAL CENTER, and NORTH SHORE-
LONG ISLAND JEWISH HEALTH SYSTEM, INC.,
pciimprt4
evaivsu ari l,
Defendants,
X
Upon reading and filing the annexed affidavit of VICTORIA REYES, the mother
and natural guardian of the infant plaintiff, MARCIAL MARTINEZ—REYES, duly sworn to
on the 19th day of July, 2018; the supplemental affidavit of VICTORIA REYES duly sworn
to on the 28th day of November, 2018; the affirmation of RUSSELL S. BURMAN, ESQ.
attorney for the plaintiffs, dated the 19th day of July, 2018; the supplemental affirmation of
RUSSELL S. BURMAN, ESQ., dated the 28th day of November, 2018; the affirMation o,f
WALTER J. MOLOFKSY, M.D., dated the 12th day of July; 2018; the affidavit of KEN
WERNICK of Creative Capital, Inc. dated the 13th day of July, 2018; the affirmation of
JOAN L. ROBERT, ESQ. dated the 19th day of July, 2018; The Marcia! Martinez-Reyes
Settlement Trust; the affidavit of Anne Recht, LMSW, dated the 11th day of July; and the
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Settlement Agreement and Release; and the court having waived plaintiffs' appearances;
and upon all papers filed and proceedings had herein; and it appears that MARCIAL
MARTINEZ—REYES being born on November 19, 2013; and the case against
defendants, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and
JOKATHLEEN RODRIGUEZ, N.P. being settled; and it appearing to the satisfaction of
the Court that it is in the best interest of the infant plaintiff MARCIAL MARTINEZ—REYES
to settle and compromise the cause of action herein against defendants, ST. MARY'S
HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P.
for future periodic payments and up-front cash at a total cost in the sum of $2,990,000.00.
NOW, on motion of Russell S. Burman, attorney for the plaintiffs, it is hereby
ORDERED, that pursuant to Rule 202.5(e) of the Uniform Civil Rules for the
Supreme Court and the County Court regarding Confidential Personal Information (CPI),
that the name of the infant plaintiff be provided; and it is further
ORDERED, that VICTORIA REYES, as mother and natural guardian of MARCIAL
MARTINEZ—REYES be and she is hereby authorized to enter into a compromise of the
personal injury claims of MARCIAL MARTINEZ—REYES against defendants, ST.
MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN
RODRIGUEZ, N.P., upon the within terms; and it is further
ORDERED, that the cause of action brought on behalf of MARCIAL MARTINEZ
—REYES against the defendants, ST. MARY'S HEALTHCARE SYSTEM FOR
CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P., be and the same is hereby
settled for future periodic payments and up-front cash at a total cost in the amount of
$2,990,000.00; and it is further
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ORDERED, that the action off VICTORIA REYES, Individually, and as mother and
natural guardian of MARCIAL MARTINEZ-REYES, an infant against, ST. MARY'S
HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P.
is hereby settled for future periodic payments and up-front cash at a cost in the amount of
$2,990,000.00 and is in accordance with CPLR Article 12; and it is further
ORDERED, that the settling defendants shall be held harmless and indemnified
from any claim and/or lien that may be claimed against this lawsuit, now and in the future
and Plaintiffs will have the sole responsibility to resolve and/or satisfy any claim and/or
lien that may become known arising out of the incident sued upon herein; and it is further
ORDERED, that out of the settlement proceeds in the total sum of $2,990,000.00
the up-front cash portion, as described below shall be paid and forwarded to Russell S.
Burman, Esq. at 18 Haven Ave. Suite 202, Port Washington, NY 11050 within 60 days
and upon presentation of a copy of this Infant Compromise Order, a duly executed
Settlement Agreement and Release, Stipulation of Discontinuance with prejudice and a
Hold Harmless agreement in full settlement of the infant's claim against defendants ST.
MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN
RODRIGUEZ, N.P. with checks issued as follows:
$1,990,000 paid by defendant, ST. MARY'S HEALTHCARE SYSTEM FOR
CHILDREN INC. and/or its insurers as follows:
a. $10,000.00 payable to New York State Department of Health for the
Suffolk County Department of Social Services Medicaid lien in full
satisfaction of its lien against the proceeds of MARCIAL MARTINEZ
-REYES's settlement;
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$572,386.25 payable to The Marcial Martinez-Reyes Settlement
Trust (hereinafter "Trust") do Wyatt N. Gibbons, Esq. and Orange
Bank and Trust Company as Co-Trustees of said Trust;
$6,950.00 to Joan Robert, Esq., Kassoff, Robert & Lerner, LLP, for
legal services in connection with the establishment of The Marcia!
Martinez -Reyes Settlement Trust;
$663.75 to Anne Markowitz Recht, LMSW, AMR CareGroup, for
Care Management services rendered in connection with a care plan
for MARCIAL MARTINEZ-REYES;
$774,710.00 payable to Pacific Life & Annuity Services, Inc. to fund
the future periodic payments payable to The Marcial Martinez-Reyes
Settlement Trust as is more fully set forth herein. This annuity
funding amount, if paid by check or draft, shall be sent to the defense
.broker as described below in this Order; and
$603,290.00 payable to MetLife Assignment Company, Inc. to fund
the purchase of an annuity to provide the future periodic payments
payable to The Marcial Martinez—Reyes Settlement Trust as is more
fully set forth herein. This annuity funding amount, if paid by check
or draft, shall be sent to the defense broker as described below in
this Order; and
$22,000.00 payable to VICTORIA REYES;
$1,000,000.00 paid by defendant, JOKATHLEEN RODRIGUEZ, N.P. and/or her
insurer as follows:
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$510,872.44 to be paid to Russell S. Burman, as and for his
attorney's fees, inclusive of disbursements, and;
$489,127.56 payable to The Marcia! Martinez-Reyes Settlement
Trust do Wyatt N. Gibbons, Esq. and Orange Bank and Trust
Company as Co-Trustees of said Trust;
and it is further;
ORDERED, that ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC.
and/or its insurers make future periodic payments as follows:
Payee: The Marcia! Martinez-Reyes Settlement Trust
Payments guaranteed for 7 years, providing $10,000 per month, beginning
01/15/2019, with the last guaranteed payment on 12/15/2025.
The total cost for this annuity: $774,710.00
Annuity Issuer: Pacific Life & Annuity Company
Assignee: Pacific Life & Annuity Services, Inc.
Payee: The Marcia! Martinez-Reyes Settlement Trust
Payments guaranteed for 7 years, providing $10,042.25 per month,
beginning 01/15/2026, with the last guaranteed payment on 12/15/2032
The total cost for this annuity: $603,290.00
Annuity Issuer: Metropolitan Tower Life Insurance Company
Assignee Company: MetLife Assignment Company, Inc.
The total guaranteed benefit payments from the two annuities is $1,683,549.00;
and it is further
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ORDERED, that the projected purchase date of the annuities is August 10, 2018
and August 15, 2018, respectively. If the defendants/carriers are unable to fund the
annuities by this funding date by reason of this Order having been signed on a date that
made it impossible to timely pay for the annuities, any resultant delay may require a
change in the infant Plaintiffs benefit payment dates or amounts which shall be recorded
in the Settlement Agreement and Release, qualified assignment document and annuity
contract without the necessity of obtaining further court approval; and it is further
ORDERED, that the defendant ST. MARY'S HEALTHCARE SYSTEM FOR
CHILDREN INC. and/or its insurers' obligation in paragraph (A) above may be met by
assigning to and arranging for an assumption by Pacific Life & Annuity Services, Inc.
("Assignee") of the said defendant's and/or the insurers' obligation to make the future
periodic payments set forth in paragraph (A) above, pursuant to Internal Revenue Code
§130(c), and that Pacific Life & Annuity Services, Inc. may fund the obligation assumed by
the purchase of an annuity from Pacific Life & Annuity Company, an A.M. Best Company
rated A+ insurer licensed to do business in the State of New York, which shall be owned
by Pacific Life & Annuity Services, Inc. pursuant to Internal Revenue Code §130(d).
MARCIAL MARTINEZ—REYES shall have a security interest in the annuity; and it is
further
ORDERED, that the defendant ST. MARY'S HEALTHCARE SYSTEM FOR
CHILDREN INC. and/or its insurers' obligation in paragraph (B) above may be met by
assigning to and arranging for an assumption by MetLife Assignment Company, Inc.
("Assignee") of the said defendant's and/or the insurers' obligation to make the future
periodic payments set forth in paragraph (B) above, pursuant to Internal Revenue Code
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§130(c), and that MetLife Assignment Company, Inc. may fund the obligation assumed by
the purchase of an annuity from Metropolitan Tower Life Insurance Company, an A.M.
Best Company rated A+ insurer licensed to do business in the State of New York, which
shall be owned by MetLife Assignment Company, Inc. pursuant to Internal Revenue Code
§130(d). MARCIAL MARTINEZ —REYES shall have a security interest in the annuity;
and it is further
ORDERED, that Pacific LifeCorp shall guarantee the performance of Pacific Life &
Annuity Services, Inc.; and it is further
ORDERED, that Metropolitan Tower Life Insurance Company shall guarantee the
performance of MetLife Assignment Company, Inc.; and it is further
ORDERED, that ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC.
and/or its insurers shall immediately forthwith fund the periodic payment obligation in
paragraph (A) by issuing a check, draft or wire transfer made payable to or wired to
Pacific Life & Annuity Services, Inc. in the sum of Seven Hundred Seventy Four
Thousand, Seven Hundred Ten and 00/100 dollars ($774,710.00). If payment is made
by check or draft, said check or draft shall be delivered to New York Settlement Math, Inc.,
an affiliate of Summit Structured Settlements, one of the structured settlement brokers
placing the case; and it is further
ORDERED, that ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC.
and/or its insurers shall immediately forthwith fund the periodic payment obligation in
paragraph (B) by issuing a check, draft or wire transfer made payable to or wired to
MetLife Assignment Company, Inc. in the sum of Six Hundred Three Thousand, Two
Hundred Ninety and 00/100 dollars ($603,290.00). If payment is made by check or draft,
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said check or draft shall be delivered to New York Settlement Math, Inc., an affiliate of
Summit Structured Settlements, one of the structured settlement brokers placing the
case; and it is further
ORDERED, that no part of the sum being paid by ST. MARY'S HEALTHCARE
SYSTEM FOR CHILDREN INC. and/or its insurance carriers to provide future periodic
payments as set forth in this order may be paid directly to Plaintiffs, this Court having
determined that a structured settlement is in the best interest of the infant Plaintiff and that
that all sums set forth herein constitute damages on account of personal physical injuries
or physical sickness, within the meaning of Section 104(a)(2) of the Internal Revenue
Code of 1986; and it is further
ORDERED, that attorney's fees of Four Hundred Forty-Two Thousand One
Hundred Twenty-Five Dollars And Twenty-Eight Cents ($442,125.28) along with
disbursements in the amount of Sixty-Eight Thousand Seven Hundred Forty-Seven
Dollars And Sixteen Cents ($68,747.16) are approved for a total sum of Five Hundred Ten
Thousand Eight Hundred Seventy-Two Dollars And Forty-Four Cents ($510,872.44) and
shall be paid to Russell S. Burman, Esq., attorney for plaintiffs, as set forth above; and it is
further
ORDERED, that VICTORIA REYES, as Mother and Natural Guardian of MARCIAL
MARTINEZ -REYES, be, and she hereby is, directed, authorized and empowered to
execute such general release and hold harmless as set forth as Exhibit H and Exhibit I
respectively in support of the Order and other ancillary documents reasonably required to
effectuate the settlement; and it is further
ORDERED, that the Settlement Agreement and Release (Exhibit R) is hereby
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approved and VICTORIA REYES, as Mother and Natural Guardian of MARCIAL
MARTINEZ-REYES, shall execute such Settlement Agreement and Release; and it is
further
ORDERED, that upon making and receipt of all of the payments above directed in
compliance with this order, as well as the assignments to Pacific Life & Annuity Services,
Inc. and MetLife Assignment Company, Inc., as set forth above, the defendants and their
insurance carriers shall then be discharged from any and all responsibility as to the
causes of action set forth in this action; and it is further
ORDERED, that in the event the infant shall die prior to the completion of the
guaranteed periodic payments, such payments shall be commuted to present value and
paid in a lump sum to The Marcia! Martinez-Reyes Settlement Trust, or to such other
payee pursuant to the terms of said trust; and it is further
ORDERED, that The Marcia! Martinez-Reyes Settlement Trust is hereby approved
and shall be created by VICTORIA REYES and Marcia! Martinez as Co-Settlors and
Wyatt N. Gibbons, Esq., and Orange Bank and Trust Company as Co-Trustees; and it is
further
ORDERED, that within a two year period, the mother is hereby authorized to seek
a further order of the Court to have the infant plaintiff come home, initially part time, for
home care and that the request for future home care, if made, is conditioned upon Victoria
Reyes' completion of training at ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN
INC. for homecare, and the consent of the infant's physician; and it is further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are
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authorized to pay a sum not to exceed One Thousand Dollars ($1,000.00) per month for
up to two years to a licensed transportation company that transports the plaintiff mother to
visit the infant plaintiff at ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC.
with receipts for the same to be provided to Co-Trustee Wyatt N. Gibbons, Esq.; and it is
further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are
authorized to pay a sum not to exceed Five Hundred Dollars ($500.00) per month for up to
two years for child care for the infant plaintiffs siblings while VICTORIA REYES visits the
infant plaintiff at ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. with
receipts for the same to be provided to Co-Trustee Wyatt N. Gibbons, Esq.; and it is
further
ORDERED, that the sum of Twenty-Two Thousand Dollars ($22,000.00) be paid to
VICTORIA REYES for loss of services; and it is further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are
authorized to pay up to $400 per month to a member of the clergy or a church outreach
group for up to twice a week visitations to MARCIAL MARTINEZ -REYES payable for up
to one year and receipts of payment to be maintained; and it is further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are
authorized to pay a sum not to exceed five hundred dollars ($500.00) to an immigration
law firm licensed to practice in the State of New York to evaluate the immigration situation
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of the parents of MARCIAL MARTINEZ-REYES, and if more funds are needed, to apply
to Co-Trustee Wyatt N. Gibbons, Esq.; and it is further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees of The Marcia! Martinez -Reyes Settlement Trust be and hereby are
authorized to pay an hourly fee not to exceed $500 per month for up to one year for
translation services after the signing of this Order for any post-Order review of documents
with VICTORIA REYES and Marcia] Martinez; and it is further
ORDERED, that, within thirty (30) days of the signing of this order, Wyatt N.
Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees shall execute and
file with this Court a copy of the fully executed The Marcia! Martinez-Reyes Settlement
Trust, an oath and designation of the Co-Trustees and a surtpciond, if required by terms
of this order; and it is further
MO. 14
ORDERED, that no later than ninety (916 days after the signing of this Order, the
Co-Trustees shall file an initial financial report, which shall show the opening of the Trust
account and its funding in accordance with this Order, with the Chambers of the Hon.
Peter J. O'Donoghue, and the Interested Parties set forth in the Trust; and it is further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees be and hereby are authorized to take commissions as set forth in its
published rates in effect from time to time without further order of the court; and it is further
ORDERED, that the Co-Trustees shall file during the month of May of each year
with this Court an annual accounting in such form as required by the Court, and shall mail
a copy of said annual accounting to each Interested Party named in the Trust and file said
report with the Queens County Clerk or as otherwise directed; and it is further
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ORDERED, that the attorney of record for the plaintiff shall serve a copy of this
Order upon the Co-Trustees; and it is further
ORDERED, that the plaintiffs shall hold the defendants and their insurers harmless
from any liens asserted against the settlement herein; and it is further
ORDERED, that conditioned upon compliance with the terms of this Order,
VICTORIA REYES be and is hereby authorized and empowered to execute and deliver a
modified General Release as annexed as Exhibit H of the affirmation of Russell S.
Burman, Esq., in favor of defendants ST. MARY'S HEALTHCARE SYSTEM FOR
CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P., a Stipulation of Discontinuance
and any other instruments necessary to effect said settlement; and it is further
ORDERED, that Co-Trustee Wyatt N. Gibbons, Esq., appointed herein shall
execute and file a bond in the amount of $1,500,000.00 with the Clerk of this Court, and
Orange Bank and Trust Company as Co-Trustee shall not be required to file a bond as it
is separately insured; and it is further
ORDERED, that upon MARCIAL MARTINEZ—REYES turning eighteen (18),
VICTORIA REYES be and hereby is directed to apply for the appointment of a legal
Guardian MARCIAL MARTINEZ—REYES; and it is further
ORDERED, that the court having jurisdiction over the legal Guardian of MARCIAL
MARTINEZ—REYES shall have jurisdiction over The Marcia! Martinez-Reyes Settlement
Trust; and it is further
ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as
Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust shall make no expenditures
from said trust after MARCIAL MARTINEZ—REYES turns eighteen (18) without further
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order of the Court having jurisdiction over the legal guardian of MARCIAL
MARTINEZ—REYES; and it is further
ENTER:
J. S. C.
I
a ?mid
nco
nr ukty cLERK
" ENs
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Preview
FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 1`0 NAL- d At part of the Supreme Court of State of New York in and for the County of . Queens held at 88-1) Sutphin lvd., maica, NY 11435 on thell the day of 2018. H otwe_I CiteNbe" PRESENT: HON. PETER J. O'DONOGHUE '40 J.S.C. VICTORIA REYES individually and as Mother and Index No.: 711261/2016 Natural Guardian of MARCIAL MARTINEZ-REYES, an infant, Plaintiffs, INFANT'S COMPROMISE ORDER -against- AUDREY BERMAN, M.D., JOKATHLEEN RODRIGUEZ, N.P., AARON KESSEI., M.D., RANDI TROPE, D.O., SUJATHA RAJAN, M.D., SUNIL KUMAR SOOD, M.D., P y 4 MICHELLE SEWNARINE, M.D., ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC, COHEN 7g nito CHILDREN'S MEDICAL CENTER, and NORTH SHORE- LONG ISLAND JEWISH HEALTH SYSTEM, INC., pciimprt4 evaivsu ari l, Defendants, X Upon reading and filing the annexed affidavit of VICTORIA REYES, the mother and natural guardian of the infant plaintiff, MARCIAL MARTINEZ—REYES, duly sworn to on the 19th day of July, 2018; the supplemental affidavit of VICTORIA REYES duly sworn to on the 28th day of November, 2018; the affirmation of RUSSELL S. BURMAN, ESQ. attorney for the plaintiffs, dated the 19th day of July, 2018; the supplemental affirmation of RUSSELL S. BURMAN, ESQ., dated the 28th day of November, 2018; the affirMation o,f WALTER J. MOLOFKSY, M.D., dated the 12th day of July; 2018; the affidavit of KEN WERNICK of Creative Capital, Inc. dated the 13th day of July, 2018; the affirmation of JOAN L. ROBERT, ESQ. dated the 19th day of July, 2018; The Marcia! Martinez-Reyes Settlement Trust; the affidavit of Anne Recht, LMSW, dated the 11th day of July; and the 1 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 Settlement Agreement and Release; and the court having waived plaintiffs' appearances; and upon all papers filed and proceedings had herein; and it appears that MARCIAL MARTINEZ—REYES being born on November 19, 2013; and the case against defendants, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P. being settled; and it appearing to the satisfaction of the Court that it is in the best interest of the infant plaintiff MARCIAL MARTINEZ—REYES to settle and compromise the cause of action herein against defendants, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P. for future periodic payments and up-front cash at a total cost in the sum of $2,990,000.00. NOW, on motion of Russell S. Burman, attorney for the plaintiffs, it is hereby ORDERED, that pursuant to Rule 202.5(e) of the Uniform Civil Rules for the Supreme Court and the County Court regarding Confidential Personal Information (CPI), that the name of the infant plaintiff be provided; and it is further ORDERED, that VICTORIA REYES, as mother and natural guardian of MARCIAL MARTINEZ—REYES be and she is hereby authorized to enter into a compromise of the personal injury claims of MARCIAL MARTINEZ—REYES against defendants, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P., upon the within terms; and it is further ORDERED, that the cause of action brought on behalf of MARCIAL MARTINEZ —REYES against the defendants, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P., be and the same is hereby settled for future periodic payments and up-front cash at a total cost in the amount of $2,990,000.00; and it is further 2 2 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 ORDERED, that the action off VICTORIA REYES, Individually, and as mother and natural guardian of MARCIAL MARTINEZ-REYES, an infant against, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P. is hereby settled for future periodic payments and up-front cash at a cost in the amount of $2,990,000.00 and is in accordance with CPLR Article 12; and it is further ORDERED, that the settling defendants shall be held harmless and indemnified from any claim and/or lien that may be claimed against this lawsuit, now and in the future and Plaintiffs will have the sole responsibility to resolve and/or satisfy any claim and/or lien that may become known arising out of the incident sued upon herein; and it is further ORDERED, that out of the settlement proceeds in the total sum of $2,990,000.00 the up-front cash portion, as described below shall be paid and forwarded to Russell S. Burman, Esq. at 18 Haven Ave. Suite 202, Port Washington, NY 11050 within 60 days and upon presentation of a copy of this Infant Compromise Order, a duly executed Settlement Agreement and Release, Stipulation of Discontinuance with prejudice and a Hold Harmless agreement in full settlement of the infant's claim against defendants ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P. with checks issued as follows: $1,990,000 paid by defendant, ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurers as follows: a. $10,000.00 payable to New York State Department of Health for the Suffolk County Department of Social Services Medicaid lien in full satisfaction of its lien against the proceeds of MARCIAL MARTINEZ -REYES's settlement; 3 3 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 $572,386.25 payable to The Marcial Martinez-Reyes Settlement Trust (hereinafter "Trust") do Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of said Trust; $6,950.00 to Joan Robert, Esq., Kassoff, Robert & Lerner, LLP, for legal services in connection with the establishment of The Marcia! Martinez -Reyes Settlement Trust; $663.75 to Anne Markowitz Recht, LMSW, AMR CareGroup, for Care Management services rendered in connection with a care plan for MARCIAL MARTINEZ-REYES; $774,710.00 payable to Pacific Life & Annuity Services, Inc. to fund the future periodic payments payable to The Marcial Martinez-Reyes Settlement Trust as is more fully set forth herein. This annuity funding amount, if paid by check or draft, shall be sent to the defense .broker as described below in this Order; and $603,290.00 payable to MetLife Assignment Company, Inc. to fund the purchase of an annuity to provide the future periodic payments payable to The Marcial Martinez—Reyes Settlement Trust as is more fully set forth herein. This annuity funding amount, if paid by check or draft, shall be sent to the defense broker as described below in this Order; and $22,000.00 payable to VICTORIA REYES; $1,000,000.00 paid by defendant, JOKATHLEEN RODRIGUEZ, N.P. and/or her insurer as follows: 4 4 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 $510,872.44 to be paid to Russell S. Burman, as and for his attorney's fees, inclusive of disbursements, and; $489,127.56 payable to The Marcia! Martinez-Reyes Settlement Trust do Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of said Trust; and it is further; ORDERED, that ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurers make future periodic payments as follows: Payee: The Marcia! Martinez-Reyes Settlement Trust Payments guaranteed for 7 years, providing $10,000 per month, beginning 01/15/2019, with the last guaranteed payment on 12/15/2025. The total cost for this annuity: $774,710.00 Annuity Issuer: Pacific Life & Annuity Company Assignee: Pacific Life & Annuity Services, Inc. Payee: The Marcia! Martinez-Reyes Settlement Trust Payments guaranteed for 7 years, providing $10,042.25 per month, beginning 01/15/2026, with the last guaranteed payment on 12/15/2032 The total cost for this annuity: $603,290.00 Annuity Issuer: Metropolitan Tower Life Insurance Company Assignee Company: MetLife Assignment Company, Inc. The total guaranteed benefit payments from the two annuities is $1,683,549.00; and it is further 5 5 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 ORDERED, that the projected purchase date of the annuities is August 10, 2018 and August 15, 2018, respectively. If the defendants/carriers are unable to fund the annuities by this funding date by reason of this Order having been signed on a date that made it impossible to timely pay for the annuities, any resultant delay may require a change in the infant Plaintiffs benefit payment dates or amounts which shall be recorded in the Settlement Agreement and Release, qualified assignment document and annuity contract without the necessity of obtaining further court approval; and it is further ORDERED, that the defendant ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurers' obligation in paragraph (A) above may be met by assigning to and arranging for an assumption by Pacific Life & Annuity Services, Inc. ("Assignee") of the said defendant's and/or the insurers' obligation to make the future periodic payments set forth in paragraph (A) above, pursuant to Internal Revenue Code §130(c), and that Pacific Life & Annuity Services, Inc. may fund the obligation assumed by the purchase of an annuity from Pacific Life & Annuity Company, an A.M. Best Company rated A+ insurer licensed to do business in the State of New York, which shall be owned by Pacific Life & Annuity Services, Inc. pursuant to Internal Revenue Code §130(d). MARCIAL MARTINEZ—REYES shall have a security interest in the annuity; and it is further ORDERED, that the defendant ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurers' obligation in paragraph (B) above may be met by assigning to and arranging for an assumption by MetLife Assignment Company, Inc. ("Assignee") of the said defendant's and/or the insurers' obligation to make the future periodic payments set forth in paragraph (B) above, pursuant to Internal Revenue Code 6 6 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 §130(c), and that MetLife Assignment Company, Inc. may fund the obligation assumed by the purchase of an annuity from Metropolitan Tower Life Insurance Company, an A.M. Best Company rated A+ insurer licensed to do business in the State of New York, which shall be owned by MetLife Assignment Company, Inc. pursuant to Internal Revenue Code §130(d). MARCIAL MARTINEZ —REYES shall have a security interest in the annuity; and it is further ORDERED, that Pacific LifeCorp shall guarantee the performance of Pacific Life & Annuity Services, Inc.; and it is further ORDERED, that Metropolitan Tower Life Insurance Company shall guarantee the performance of MetLife Assignment Company, Inc.; and it is further ORDERED, that ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurers shall immediately forthwith fund the periodic payment obligation in paragraph (A) by issuing a check, draft or wire transfer made payable to or wired to Pacific Life & Annuity Services, Inc. in the sum of Seven Hundred Seventy Four Thousand, Seven Hundred Ten and 00/100 dollars ($774,710.00). If payment is made by check or draft, said check or draft shall be delivered to New York Settlement Math, Inc., an affiliate of Summit Structured Settlements, one of the structured settlement brokers placing the case; and it is further ORDERED, that ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurers shall immediately forthwith fund the periodic payment obligation in paragraph (B) by issuing a check, draft or wire transfer made payable to or wired to MetLife Assignment Company, Inc. in the sum of Six Hundred Three Thousand, Two Hundred Ninety and 00/100 dollars ($603,290.00). If payment is made by check or draft, 7 7 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 said check or draft shall be delivered to New York Settlement Math, Inc., an affiliate of Summit Structured Settlements, one of the structured settlement brokers placing the case; and it is further ORDERED, that no part of the sum being paid by ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and/or its insurance carriers to provide future periodic payments as set forth in this order may be paid directly to Plaintiffs, this Court having determined that a structured settlement is in the best interest of the infant Plaintiff and that that all sums set forth herein constitute damages on account of personal physical injuries or physical sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986; and it is further ORDERED, that attorney's fees of Four Hundred Forty-Two Thousand One Hundred Twenty-Five Dollars And Twenty-Eight Cents ($442,125.28) along with disbursements in the amount of Sixty-Eight Thousand Seven Hundred Forty-Seven Dollars And Sixteen Cents ($68,747.16) are approved for a total sum of Five Hundred Ten Thousand Eight Hundred Seventy-Two Dollars And Forty-Four Cents ($510,872.44) and shall be paid to Russell S. Burman, Esq., attorney for plaintiffs, as set forth above; and it is further ORDERED, that VICTORIA REYES, as Mother and Natural Guardian of MARCIAL MARTINEZ -REYES, be, and she hereby is, directed, authorized and empowered to execute such general release and hold harmless as set forth as Exhibit H and Exhibit I respectively in support of the Order and other ancillary documents reasonably required to effectuate the settlement; and it is further ORDERED, that the Settlement Agreement and Release (Exhibit R) is hereby 8 8 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 approved and VICTORIA REYES, as Mother and Natural Guardian of MARCIAL MARTINEZ-REYES, shall execute such Settlement Agreement and Release; and it is further ORDERED, that upon making and receipt of all of the payments above directed in compliance with this order, as well as the assignments to Pacific Life & Annuity Services, Inc. and MetLife Assignment Company, Inc., as set forth above, the defendants and their insurance carriers shall then be discharged from any and all responsibility as to the causes of action set forth in this action; and it is further ORDERED, that in the event the infant shall die prior to the completion of the guaranteed periodic payments, such payments shall be commuted to present value and paid in a lump sum to The Marcia! Martinez-Reyes Settlement Trust, or to such other payee pursuant to the terms of said trust; and it is further ORDERED, that The Marcia! Martinez-Reyes Settlement Trust is hereby approved and shall be created by VICTORIA REYES and Marcia! Martinez as Co-Settlors and Wyatt N. Gibbons, Esq., and Orange Bank and Trust Company as Co-Trustees; and it is further ORDERED, that within a two year period, the mother is hereby authorized to seek a further order of the Court to have the infant plaintiff come home, initially part time, for home care and that the request for future home care, if made, is conditioned upon Victoria Reyes' completion of training at ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. for homecare, and the consent of the infant's physician; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are 9 9 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 authorized to pay a sum not to exceed One Thousand Dollars ($1,000.00) per month for up to two years to a licensed transportation company that transports the plaintiff mother to visit the infant plaintiff at ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. with receipts for the same to be provided to Co-Trustee Wyatt N. Gibbons, Esq.; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are authorized to pay a sum not to exceed Five Hundred Dollars ($500.00) per month for up to two years for child care for the infant plaintiffs siblings while VICTORIA REYES visits the infant plaintiff at ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. with receipts for the same to be provided to Co-Trustee Wyatt N. Gibbons, Esq.; and it is further ORDERED, that the sum of Twenty-Two Thousand Dollars ($22,000.00) be paid to VICTORIA REYES for loss of services; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are authorized to pay up to $400 per month to a member of the clergy or a church outreach group for up to twice a week visitations to MARCIAL MARTINEZ -REYES payable for up to one year and receipts of payment to be maintained; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust be and hereby are authorized to pay a sum not to exceed five hundred dollars ($500.00) to an immigration law firm licensed to practice in the State of New York to evaluate the immigration situation 10 10 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 of the parents of MARCIAL MARTINEZ-REYES, and if more funds are needed, to apply to Co-Trustee Wyatt N. Gibbons, Esq.; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of The Marcia! Martinez -Reyes Settlement Trust be and hereby are authorized to pay an hourly fee not to exceed $500 per month for up to one year for translation services after the signing of this Order for any post-Order review of documents with VICTORIA REYES and Marcia] Martinez; and it is further ORDERED, that, within thirty (30) days of the signing of this order, Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees shall execute and file with this Court a copy of the fully executed The Marcia! Martinez-Reyes Settlement Trust, an oath and designation of the Co-Trustees and a surtpciond, if required by terms of this order; and it is further MO. 14 ORDERED, that no later than ninety (916 days after the signing of this Order, the Co-Trustees shall file an initial financial report, which shall show the opening of the Trust account and its funding in accordance with this Order, with the Chambers of the Hon. Peter J. O'Donoghue, and the Interested Parties set forth in the Trust; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees be and hereby are authorized to take commissions as set forth in its published rates in effect from time to time without further order of the court; and it is further ORDERED, that the Co-Trustees shall file during the month of May of each year with this Court an annual accounting in such form as required by the Court, and shall mail a copy of said annual accounting to each Interested Party named in the Trust and file said report with the Queens County Clerk or as otherwise directed; and it is further 11 11 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 ORDERED, that the attorney of record for the plaintiff shall serve a copy of this Order upon the Co-Trustees; and it is further ORDERED, that the plaintiffs shall hold the defendants and their insurers harmless from any liens asserted against the settlement herein; and it is further ORDERED, that conditioned upon compliance with the terms of this Order, VICTORIA REYES be and is hereby authorized and empowered to execute and deliver a modified General Release as annexed as Exhibit H of the affirmation of Russell S. Burman, Esq., in favor of defendants ST. MARY'S HEALTHCARE SYSTEM FOR CHILDREN INC. and JOKATHLEEN RODRIGUEZ, N.P., a Stipulation of Discontinuance and any other instruments necessary to effect said settlement; and it is further ORDERED, that Co-Trustee Wyatt N. Gibbons, Esq., appointed herein shall execute and file a bond in the amount of $1,500,000.00 with the Clerk of this Court, and Orange Bank and Trust Company as Co-Trustee shall not be required to file a bond as it is separately insured; and it is further ORDERED, that upon MARCIAL MARTINEZ—REYES turning eighteen (18), VICTORIA REYES be and hereby is directed to apply for the appointment of a legal Guardian MARCIAL MARTINEZ—REYES; and it is further ORDERED, that the court having jurisdiction over the legal Guardian of MARCIAL MARTINEZ—REYES shall have jurisdiction over The Marcia! Martinez-Reyes Settlement Trust; and it is further ORDERED, that Wyatt N. Gibbons, Esq. and Orange Bank and Trust Company as Co-Trustees of The Marcia! Martinez-Reyes Settlement Trust shall make no expenditures from said trust after MARCIAL MARTINEZ—REYES turns eighteen (18) without further 12 12 of 13 FILED: QUEENS COUNTY CLERK 12/18/2018 11:50 AM INDEX NO. 711261/2016 NYSCEF DOC. NO. 260 RECEIVED NYSCEF: 12/18/2018 order of the Court having jurisdiction over the legal guardian of MARCIAL MARTINEZ—REYES; and it is further ENTER: J. S. C. I a ?mid nco nr ukty cLERK " ENs 13 13 of 13