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, )

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: [e-mail]
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