Flemming v. Santamore et al

Filing 58

STIPULATION AND ORDER OF DISCONTINUANCE PURSUANT TO RULE 41(A). Signed by Judge David N. Hurd on 1/20/17. (served on plaintiff by regular and certified mail)(alh, )

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f UNITED STATES DISTRICT COURT NOR'lliERN DISTRICT OF NEW YORK WOODROW FLEMMINO, Plaintiff, STIPULATION AND ORDER OF DISCONTINUANCE PURSUANT TO RULE 4l(A) SCOTT SANTAMORE; JOHN J. DIMICK; JASON RUFA; JASON P. FERRICK; JOHN FINNAZZO; BRUCE W. DIMICK; APRIL M. FORBES; GERALD WILSON, lS-CV-0029 DNH/CFH Defendana. IT IS HEREBY STIPULATED AND AOREED by and between the undersigned, plaintiff Woodrow Flemming plaintiffprose, and Eric T. Schneiderman, Attorney Oeneral of the State of New York, Maria Lisi·Murray, Assistant Attorney Geoc:ra1, of ccnmsel, appearing for defendants, the parties to the above entided-action, that, whereas no party heme> is an infant or incompcteat person for whom a committee has been appointed, and no penon not a party has aa interest in the subject matter of the action, the above-entided action be and the same hereby is settled on the particular circumstances of this case, on the following terms and conditions, which it is agreed are of and shall have no legal precedential value in any other case either between the parties to this case or any other parties: 1. Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, plaintiff hereby discontinues this action with prejudice and without damages, costs, interest or attorney's fees, as against defendants John Dimick, Jason R~ Jason P. Ferrick, John Finnazro, Bruce W. Dimick, April M. Forbes, and Gerald Wilson, hereinafter and collectively referred to as the "non-settling defendants" and meant" to 1epacxnt all defmdants named in this action at any time with the exception of defendant Scott Santamore, who is hereinafter re&:ned to as "the settling defendant." . 2. Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, plaintiff hereby discontinues this action with prejudice and without damages, costs, interest or attorneys' fees, under the conditions described in Paragraph S of this agreement, as against defendant Scott Santamore as "the satling defendant," and discharges and releases the settling defendant. and the State of New York., including its agencies, subdivisions, employees, private contractors or assipees, of any and all claims, demands, or causes of actions, known or unknown. now existing or hereafter arisin& whether presently asserted or not, wbidl relate in any. way to the subject matter of this action, and fin1her agrees to discontinue and/or not to commence or to pursue in any comt, &lbitration or administrative proceedin& any litigation, appeal or claim against the defendant and others released hacby pertaining to the underlying filcts, citcumstanc:es or incidents that gave rise to the aforementioned actions, or any raults of the aforementioned facts, circumstances or incidents. 3. The parties agree that no provision of this settlement shall be interpreted to be an acknowledgment of the validity of any of the allegations or claims that have been made in the action. 4. This settlement does not constitute a determination o( or admission by any party to any underlying allegations, tBcts or merits of their respective positions. The sculement of this 2 action is limited to the circumstances in this case alone and shall not be given effect beyond the specific provisions stipulated to. This settlement does not form and shall not be claimed as any precedent for or an agreement by the parties to any generally applicable policy or procedure in the future. 5. following the execution of this Stipulatio~ and its being ordered by the Court: (1) the settling defendant shall pay to plaintiff the sum of Two Thousand Five Hundred Dollars ($2,S00.00) in full settlement of any and all claims, which amount includes all sums to which plaintiff is entitled, induding but not limited to damages. costs, and attorney's fees. Plaintiffs check will be mailed to his home addres.t at: P.O. Box 146, New York, New York 10039; and (2) in addition to the instant action, plaintiff agrees to discontinue the lawsuits Flemmingv King, t!I. al., (14-CV-316) U.S. District Court NONY, and Flemming v. Smida. et al.• (lS-CV-416) U.S. District Court NDNY, and Flemming v. Radle, et. al.• (l+cv-384) U.S. District Court NDNY, with prejudi~ and execute separate documents discontinuing such lawsuits which can be filed once executed by.the plaintiff and "so ordered" by the Court, and that the provisions ofparagraph 2 above shall be appHcable to such discontinuance, Ind (3) plaintiff' agrees that the instant settlement constitutes a "global settlanenf' intended to resolve any and all causes of action related in any way to his in~on by the State of New York which he believes may have accrued prior to the date this Stipulation is executed and agrees not to commence any lawsuit in any court. state or federal, related to any cause of action 3 against any DOCCS employee, DOCCS, or the State of New Yo~ which plaintift"believes bas acczued prior to the execution of this Stipulation. 6. Payment by the settling defendant of the amount specified in paragraph S is conditioned on the approval of all appropriate state officials in accordance with the provisions for indemnification under section 17 ofthe New York Public Offic:en Law. 7. Payment of the amount referenced in paragraph S will be made within one hundred and twenty (120) days after the approval of this Stipulation by the Court and receipt by counsel of a copy of the so-ordered stipulation, unless the provisions ofCbapter 62 of the Laws of 2001 apply to the plaintiff and the payment hereunder constitutes •fimds of a convicted person• under the Son of Sam Law, in which event, the one hundml and twenty (12~) day payment period shall be extended by an additional thirty (30) days to allow for compliance with that law. . 8. In the event that the terms of paragraph 6 me satisfied, but payment is not made within the periods set forth in paragraph 7, interest shall begin to accrue on the outstmcfing principal balance at the statutory rate OD the 12 Jst day after QOW1 approval or tho 151st day after court approval if the provisions of Chapter 62 of the Laws of2001 apply to plaintiff. 9. This stipulation shall be null and void if the approvals zefeued to in paragraph 6 me not obtained,, and these actions shall tbm be placed back on the active docket without prejudice. 10. Plaintiff rep1escnts and wammts that he is not a Medicare recipient, that be has never been on Medicare or Social Security Disability, that no conditional payments have been made by Medicare. and that he does not expect to be a Medicare recipient within the next 30 months. 4 11. The foregoing constitutes the entire agreement of the parties. c;; t1 1~3L !f 3 -; ~- Dated: Albany, New Yorlc December__, 2016 ~aimittpro ... Dated: Albany, New York December .,!l_, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New Yorlc Attorney for Detimdlmts The Capitol. Al Maria LisitM~tta.v Assistant General, ofCounsel Bar Roll No.302577 Telephone: (S 18) 776-2263 Email: mariLlisi-munay@as.ny.gov Dated: Albany, New York December 2016 SO ORDERED: . HON. CHRISTIAN F. HUMMEL UNITED STATES MAGISTRATE JUOOE January 20, 2017 s UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK WOODROW FLEMMING, Plaintiff, DECLARATION OF SERVICE -against- 15-CV-0029 SCOTT SANTAMORE; JOHN J. DIMICK; JASON RUFA; JASON P. FERRICK; JOHN FINNAZZO; BRUCE W. DIMICK; APRIL M. FORBES; GERALD WILSON, DNH/CFH Defendants. I, MARIA LISI-MURRAY, declare pursuant to 28 USC § 1746, that on January 20, 2017, I served the STIPULATION AND ORDER OF DISCONTINUANCE PURSUANT TO RULE 41(A), filed herein electronically upon the following individual(s), by depositing a true copy thereof, properly enclosed in a sealed, postpaid wrapper, in a post office box in the City of Albany, a depository under the exclusive care and custody of the United States Postal Service, directed to the individual(s) at the address(es), designated for that purpose, as follows: Woodrow Flemming Plaintiff pro se P.O. Box 146 New York, NY 10039 Dated: January 20, 2017 Albany, New York s/ Maria Lisi-Murray Maria Lisi-Murray

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