Kaplan v. New York State Department of Labor et al

Filing 153

SETTLEMENT AGREEMENT, GENERAL RELEASE, AND ORDER OF DISMISSAL: NOW THEREFORE, in consideration of the mutual promises, covenants, representations and other consideration contained in this Settlement Agreement, Plaintiff and Defendant hereby stipulate and agree as follows: (As further set forth herein.) SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/13/2021) (va)

Case 1:18-cv-03629-KPF Document 153 Filed 08/13/21 Page 1 of 29

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FREDY KAPLAN,

Plaintiff,

18 CV 3629 (KPF)

- against NEW YORK STATE DEPARTMENT OF LABOR,

SETTLEMENT
AGREEMENT, GENERAL
RELEASE, AND ORDER
OF DISMISSAL

Defendant.

This SETTLEMENT AGREEMENT, GENERAL RELEASE, AND ORDER OF
DISMISSAL (“Settlement Agreement”) is made by and between Plaintiff Fredy Kaplan
(“Plaintiff”) and Defendant the New York State Department of Labor (“DOL” or “Defendant”) as
follows:
WHEREAS, Plaintiff commenced this action by filing a complaint on or about April 24,
2018 (“the Complaint”), in the United States District Court for the Southern District of New York,
Case Number 18 CV 3629 (KPF), alleging claims against DOL, Roberta Reardon, Pico Ben-Amotz,
Michael Paglialonga, and Kathy Dix (“Defendants”) under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), the New York State Human Rights Law, N.Y. Exec.
L. § 296 et seq. (the “NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin.
Code § 8-107 et seq. (the “NYCHRL”) (the “Federal Action”); and
WHEREAS, Plaintiff filed an amended complaint on or about October 29, 2018 and a
corrected amended complaint on or about June 26, 2019 (the “Corrected Amended Complaint”);
and
WHEREAS, by an Opinion and Order dated July 19, 2019, the Court dismissed all claims
against Reardon, Ben-Amotz, Paglialonga, and Dix (the “Individual Defendants”) and all NYSHRL
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and NYCHRL claims against DOL, and otherwise denied DOL’s motion to dismiss the Corrected
Amended Complaint; and
WHEREAS, by an Opinion and Order dated March 22, 2021, the Court granted in part and
denied in part DOL’s motion for summary judgment; and
WHEREAS, on or about September 27, 2019, Plaintiff commenced an action by filing a
summons and complaint in the Supreme Court of the State of New York, Suffolk County, Index
No. 619183/2019, alleging claims against DOL, Ben-Amotz, Paglialonga, and Dix under the
NYSHRL and NYCHRL (the “State Action”); and
WHEREAS, on or about December 20, 2019, Plaintiff filed a stipulation on behalf of
Plaintiff, DOL, Ben-Amotz, and Paglialonga to transfer the venue of the State Action to New York
County, but the docket indicates that the State Action has not been so transferred; and
WHEREAS, the claims and allegations in the Federal Action and State Action, together
with all related filings and proceedings, constitute “the Litigation”; and
WHEREAS, DOL expressly denies any wrongful conduct or liability, or violation of any
federal, state, or local statute, ordinance, or law in this matter whatsoever; and
WHEREAS, Plaintiff and DOL desire to fully resolve the claims between them and any and
all other disputes, whether known or unknown, without further litigation or proceedings before any
court or other agency, and without admission of fault or liability;
NOW THEREFORE, in consideration of the mutual promises, covenants, representations
and other consideration contained in this Settlement Agreement, Plaintiff and Defendant hereby
stipulate and agree as follows:

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1.

Dismissal of the Action with Prejudice.

a.

The Federal Action, and all claims asserted in it, are hereby dismissed with

prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) and without payments, attorneys’ fees, costs,
disbursements, or expenses in excess of the amounts specified in paragraph 3 of this Settlement
Agreement.
b.

Simultaneous with the execution of this Settlement Agreement, counsel for

Plaintiff shall execute and file a Notice of Voluntary Discontinuance with Prejudice of the State
Action in the form annexed hereto as Exhibit A, or in such other form as the Supreme Court, State
of New York, shall direct, dismissing with prejudice pursuant to N.Y. Civil Practice Law and Rules
§ 3217 the State Action and all claims asserted in it, without payments, attorneys’ fees, costs,
disbursements or expenses.
c.

Simultaneously with the execution of this Settlement Agreement, counsel for

Plaintiff shall execute and file a Stipulation and Order in the form annexed hereto as Exhibit B
(the “Stipulation and Order of Dismissal With Prejudice”), dismissing with prejudice the Federal
Action and all claims asserted in it against the Individual Defendants in their individual and official
capacities pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), without payments, attorneys’ fees, costs,
disbursements or expenses.
2.

Payments to Plaintiff and Plaintiff’s Attorney.

In full consideration of Plaintiff’s execution of this Settlement Agreement, his agreement to
be bound by its terms, and his undertakings as set forth herein, including the dismissal of the Federal
Action and the State Action with prejudice, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the State of New York on behalf of DOL shall pay

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the gross sum of ONE HUNDRED SIXTY-FIVE THOUSAND DOLLARS ($165,000.00) to
Plaintiff/Plaintiff’s attorneys as follows:
a.

DOL shall pay to Plaintiff the gross sum of ONE HUNDRED FIVE THOUSAND

DOLLARS ($105,000.00), for which an I.R.S. Form W-2 shall be issued, in full and complete
satisfaction of any and all claims, allegations, or causes of action for lost wages, including but not
limited to, lost wages, benefits, back pay, front pay, severance pay, commissions, bonuses,
reimbursements, pension plan contributions, and any non-vested retirement, pension, health, or
savings plan benefits, or other compensation, less all applicable withholdings, payroll deductions,
and taxes. The foregoing payment shall be made payable to Fredy Kaplan, Esq. and mailed to Saul
D. Zabell, Esq., Zabell & Collotta, P.C., 2 Corporate Drive, Bohemia, N.Y. 11716.
b.

The State of New York, on behalf of DOL, shall pay the gross sum of SIXTY

THOUSAND DOLLARS ($60,000.00), for which I.R.S. Forms 1099 shall be issued to each of
Plaintiff and Plaintiff’s attorneys in this amount, in full and complete satisfaction of any and all
claims, allegations, or causes of action for attorneys’ fees, costs, disbursements, and expenses
incurred by Plaintiff or Plaintiffs’ attorneys for any and all counsel who have at any time
represented or assisted Plaintiff in the Litigation, or in connection with any other proceeding,
administrative, judicial, or otherwise and any other claim or action arising from, related to, based
upon, or alleging any of the acts, transactions, occurrences, or omissions asserted or purportedly
asserted in the Litigation. The foregoing payment shall be made payable to Zabell & Collotta, P.C.
and mailed to Saul D. Zabell, Esq., Zabell & Collotta, P.C., 2 Corporate Drive, Bohemia, N.Y.
11716.

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3.

State Approval of Payments.
The payments referenced in Paragraph 2 of this Settlement Agreement are conditioned

upon and subject to the approval of all appropriate state officials in accordance with N.Y. Public
Officers Law § 17. Plaintiff and Plaintiff’s attorneys agree to promptly execute and deliver all
necessary and appropriate vouchers and other documentation requested with respect to obtaining
such approval and effectuating payment.
4.

Accrual of Interest.
In the event that the payments referenced in Paragraph 2 of this Settlement Agreement

have not been made by the one hundred twentieth (120th) day after the receipt by the Office of the
Attorney General of a “So Ordered” copy of this Settlement Agreement, entered on the docket by
the Clerk of the Court, together with all other requested documentation required under Paragraphs
3 and 7 of this Settlement Agreement, interest on any part of the sum not paid by the end of the
one hundred twentieth (120th) day shall accrue on the outstanding principal balance at the statutory
rate prescribed by 28 U.S.C. § 1961, commencing on the one hundred and twenty-first (121st) day
after receipt of all required documentation by the Office of the Attorney General of all
documentation required under Paragraphs 3 and 7 of this Settlement Agreement.
5.

Liability for Taxes.
Any taxes, or interest or penalties on taxes, on the payments referenced in Paragraph 2 of

this Settlement Agreement shall be the sole and complete responsibility of Plaintiff, or his
attorneys for fees paid to said attorneys. Plaintiff and his attorneys agree and acknowledge that
they shall have no claim, right, or cause of action against DOL and/or the State of New York, or
any of the State’s agencies, departments, divisions, officers, employees, agents, attorneys, and
insurers, whether in their individual or official capacities, or any of them, or all of them, on account

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of such taxes, interest, or penalties. Plaintiff agrees that he will defend, indemnify, and hold
harmless DOL and/or the State of New York, or its present and former agencies, subdivisions,
subsidiaries, administrators, principals, officers, employees, directors, members, trustees, agents,
attorneys, and insurers, whether in their individual or official capacities, or any of them, or all of
them, in any claim, proceeding, action, or demand brought in any forum or manner, judicial,
administrative or otherwise, to satisfy or for the satisfaction of any such tax or interest or penalty
on such tax.
6.

Responsibility of Plaintiff for Liens and Setoffs.
Plaintiff agrees that DOL or the State of New York, or any of the State’s agencies,

departments, divisions, officers, employees, agents, attorneys, and insurers, whether in their
individual or official capacities, or any of them, or all of them, shall not be responsible for the
satisfaction of any liens, or the payment of setoffs, deductions, or recoupments of any kind,
including any and all workers’ compensation, tax, Medicare, Medicaid, unemployment
compensation, or child support liens, that may attach to the payments referenced in Paragraph 2
and that Plaintiff shall have no claim, right, or cause of action on account of such liens or setoffs.
7.

Medicare Certification.
Plaintiff represents and warrants that he is not a Medicare recipient and/or Medicare

eligible, has never been on Medicare or Social Security Disability Insurance (“SSDI”), that no
conditional payments have been made on his behalf by Medicare, and further that he does not
expect to be Medicare eligible and/or a recipient within the next thirty (30) months following the
date of this Settlement Agreement. Plaintiff agrees to deliver a fully executed and notarized
Affidavit of Medicare Eligibility Status in the form annexed hereto as Exhibit C (“Medicare
Affidavit”) to the Office of the Attorney General. Plaintiff acknowledges and understands that

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receipt of this document by the Office of the Attorney General is a prerequisite to payment of the
settlement amounts referenced in paragraph 2, and that this document falls within the category of
“other documentation” and “required documentation” described in Paragraphs 3 and 4 of this
Settlement Agreement.
8.

Liability of Plaintiff for Any Medicare Payments or Medicare Liens.

Plaintiff agrees to defend, indemnify, and hold harmless DOL or the State of New York,
or any of the State’s offices, agencies, departments, divisions, officers, employees, agents,
attorneys, and insurers, whether in their individual or official capacities, or any of them, or all of
them, for any liens or past or future Medicare payments presently known or unknown in connection
with the Action. If conditional or future anticipated Medicare payments have not been satisfied,
DOL and the State of New York reserve the right to issue a multi-party settlement check naming
Medicare as a payee or to issue a check to Medicare directly based on the Medicare Final Demand
Letter with respect to the amounts specified in Paragraph 2 of this Settlement Agreement. Upon
receipt of all required documentation under Paragraphs 3 and 7, payment of the settlement amounts
specified in Paragraph 2 shall be made in accordance with the terms set forth herein.
9.

General Release in Favor of Defendant.

For and in consideration of the payments referenced in Paragraph 2 of this Settlement
Agreement and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, and except for the rights and obligations set forth in this Settlement Agreement,
Plaintiff, on behalf of himself, his heirs, executors, administrators, successors, and assigns
(collectively, “the Releasing Parties”), hereby releases and forever discharges DOL and the State
of New York, together with their offices, agencies, departments, divisions, as well as their present
and former officers, employees, agents, attorneys, insurers, whether in their individual or official

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capacities, or any of them, or all of them (collectively, “the Released Parties”) from all manner of
actions, proceedings, suits, grievances, injuries, debts, obligations, dues, sums of money, accounts,
contracts, controversies, agreements, promises, damages, judgments, claims, and demands
whatsoever, direct or indirect, known or unknown, discovered or undiscovered, that the Releasing
Parties ever had, now have, or shall or may have in the future against some, any, or all of the
Released Parties, for or by reason of any act, transaction, occurrence, omission, cause, matter, or
thing whatsoever up to and including the date of this Settlement Agreement, including: (a) any and
all claims, causes of action, grievances pursuant to any applicable collective bargaining agreement,
rights, or administrative charges related to or arising out of the acts, transactions, occurrences, or
omissions which are described, alleged, or contained in the Litigation; (b) any and all claims,
causes of action, grievances pursuant to any applicable collective bargaining agreement, rights, or
administrative charges related to or arising directly or indirectly from Plaintiff’s employment or
association with any of the Released Parties, including any and all claims under 42 U.S.C.
§§ 1981-1988, Title VII, the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act of 1993, 29
U.S.C. §2601 et seq., the NYSHRL, the NYCHRL, N.Y. Labor Law §§ 194, 740, and 741, N.Y.
Civil Service Law § 75-b, the United States Constitution, the New York State Constitution, and
the New York City Charter; and (c) any and all other claims, causes of action, grievances pursuant
to any applicable collective bargaining agreement, rights, or administrative charges for relief,
whether for moneys owed, equitable relief, costs, fees, or other expenses, including attorney’s fees.
Plaintiff is not waiving or releasing any nonwaivable statutory protections. Plaintiff is not waiving
or releasing and claims that may arise after Plaintiff executes this Settlement Agreement. Plaintiff
is not waiving or releasing and claims under New York Military Law; any claims under New York

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Labor Law §§ 220 to 224; any unemployment benefit rights under the New York Unemployment
Insurance Law. Additionally, nothing in this release prohibits Plaintiff’s right to testify, assist, or
participate in an investigation, hearing, or proceeding conducted by the EEOC.
10.

No Other Action or Proceeding Commenced.
Other than the Federal Action and State Action, Plaintiff represents that he has not

commenced, maintained, or prosecuted any action, charge, complaint, grievance, or proceeding of
any kind that is still pending against the Released Parties, on his own behalf or on behalf of any
other person and/or on behalf of or as a member of any alleged class of persons, that none of the
foregoing is currently pending in any court or before any administrative or investigative body or
agency, and acknowledges that this representation constitutes a material inducement for Defendant
to enter into this Settlement Agreement.
Waiver of Attorneys’ Lien.

11.

The undersigned attorneys for Plaintiff do hereby release and waive any attorneys’ lien
they may have on the settlement proceeds in the Action pursuant to N. Y. Judiciary Law §§ 475
and 475-a or any other state or federal law, statute, contract, or otherwise.
12.

No Other Attorney.

Plaintiff represents and warrants that besides the undersigned attorneys for Plaintiffs, there
are no other attorneys that have a lien on the settlement proceeds in the Action pursuant to the
provisions of N.Y. Judiciary Law §§ 475 and 475-a or any other state or federal law, statute,
contract, or otherwise.

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13.

No Prevailing Party.
Neither Plaintiff nor Defendant shall be deemed a “prevailing party” for any purpose,

including any statutory or contractual claim based upon “prevailing party” status with respect to
the Litigation.
14.

Binding Effect on Successors and Assigns.
The terms and conditions of this Settlement Agreement shall inure to the benefit of, and be

binding upon, the successors and assigns of each party hereto.
15.

Authority.
Each signatory to this Settlement Agreement hereby represents and warrants that he, she,

or it has the requisite authority to enter into this Settlement Agreement, and has not previously
assigned or transferred any rights or interests with respect to the matters covered by this Settlement
Agreement.
16.

Voluntary Agreement.
Plaintiff represents that he has thoroughly discussed all aspects of this Settlement

Agreement, including the General Release, with his counsel, and Plaintiff represents that he has
carefully read and fully understands all of the provisions of this Settlement Agreement. Plaintiff
represents that he executes and delivers this Settlement Agreement voluntarily after being fully
informed of its terms, contents, and effect, and acknowledges that he understands its terms,
contents, and effect. Plaintiff acknowledges that he has consulted with his attorneys before
agreeing to any settlement or release, and no compromise or representation of any kind, other than
as set forth or referred to herein, has been made to any party or any one acting on behalf of any
party.

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17.

Negotiated Agreement.
The parties acknowledge that each party has cooperated in the drafting and preparation

of this Settlement Agreement. The language in all parts of this Settlement Agreement shall be in
all cases construed according to its fair meaning and not strictly for or against any party.
18.

No Admission of Liability.

It is understood and agreed that any actions taken or payments made pursuant to this
Settlement Agreement are made solely to avoid the burdens and expense of protracted litigation;
that this Settlement Agreement and the actions taken pursuant hereto are not to be construed as
constituting any determination on the merits of any claims in this dispute or as constituting any
admission of wrongdoing or liability on the part of DOL, the State of New York, or their present
and former agencies, subdivisions, subsidiaries, administrators, principals, officers, employees,
directors, members, trustees, agents, attorneys, insurers, whether in their individual or official
capacities, or any of them, or all of them, and that they expressly deny any wrongdoing or liability.
Nothing contained in this Settlement Agreement shall be deemed to constitute a policy or practice
of DOL or the State of New York.
19.

No Precedential Value.

This Settlement Agreement shall not in any manner be construed as determinative of the
issues raised in the Litigation or any other proceeding, and shall have no precedential value. In
addition, notwithstanding the provisions of any paragraph herein, this Settlement Agreement shall
not bind or collaterally estop DOL, the State of New York, or their present and former agencies,
subdivisions, subsidiaries, administrators, principals, officers, employees, directors, members,
trustees, agents, attorneys, and insurers, whether in their individual or official capacities, or any of
them, or all of them, in pending or future actions or proceedings in which the same or similar issues

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are raised, from defending any and all issues raised in said actions or proceedings, or from
advancing any defenses.
20.

Entire Agreement.
This Settlement Agreement constitutes the entire agreement between the parties hereto

pertaining to the subject matter hereof, and supersedes and embodies, merges and integrates all
prior and current agreements and understandings of the parties hereto, whether written or oral, with
respect to the subject matter of this Settlement Agreement, and may not be clarified, modified,
changed, or amended except in a writing duly executed by the parties hereto or an authorized
representative of the parties hereto.
21.

Governing Law.
The terms of this Settlement Agreement shall be governed by, and construed in accordance

with, the laws of the State of New York applicable to contracts to be performed wholly within the
State of New York, except to the extent that federal law applies to the releases and waiver of
federal claims pursuant to this Settlement Agreement.
22.

Severability.
With the exception of paragraphs 1, 3, 7, 9, 10, and 13 of this Settlement Agreement, if any

other provision of this Settlement Agreement shall be held by a court of competent jurisdiction to
be invalid, void, or unenforceable in whole or in part, such decision shall not invalidate the
remaining portion or affect its validity.
23.

Headings.
The headings contained in this Settlement Agreement are for convenience of reference only

and are not a material part of this Settlement Agreement.

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Dated: August __11___, 2021

ZABELL & COLLOTTA, P.C.
Attorneys for Plaintiff Fredy Kaplan
By:
_________________________________
Saul D. Zabell, Esq.
2 Corporate Drive
Bohemia, New York 11716
[phone]
[e-mail]

Dated: August _____, 2021

LETITIA JAMES
Attorney General
State of New York
Attorney for Defendant the New York
State Department of Labor
By:

_________________________________
Michael A. Berg, Esq.
Assistant Attorney General
28 Liberty Street
New York, New York 10005
[phone]
[e-mail]

Dated:

August 13, 2021
New York, New York

SO ORDERED:

_________________________________
Honorable Katherine Polk Failla
United States District Judge

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13
New York, New York

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Exhibit A

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
FREDY KAPLAN,
Plaintiff,
-

against –

Index No. 619183/2019

NEW YORK STATE DEPARTMENT OF
LABOR, and KATHY DIX, MICHAEL
PAGLIALONGA and PICO BEN-AMOTZ in their
individual capacities as aiders and abettors,

STIPULATION OF
DISCONTINUANCE
WITH PREJUDICE

Defendants.

IT IS HEREBY STIPULATED AND AGREED by and between the undersigned, the
attorneys of record for all of the parties to the above-captioned action, that whereas no party hereto
is an infant, incompetent person for whom a committee has been appointed or conservatee, and no
person not a party has an interest in the subject matter of the action, this action is hereby is
discontinued with prejudice, without costs to any party as against any other party. It is further
agreed by all counsel of record that faxed or emailed copies of counsel’s signatures are valid and
effective as if original.

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Dated: August 11, 2021

Dated: August __, 2021

ZABELL & COLLOTTA, P.C.

By:

_______________________
Saul D. Zabell, Esq.
1 Corporate Drive, Suite 103
Bohemia, NY 11716
[phone]
[e-mail]

LETITIA JAMES
ATTORNEY GENERAL
STATE OF NEW YORK
By:

_______________________
Michael A. Berg, Esq.
Assistant Attorney General
28 Liberty Street
New York, New York 10005
[phone]
[e-mail]

Attorneys for Plaintiff Fredy Kaplan
Attorneys for Defendants the New York State
Department of Labor, Pico Ben-Amotz, and
Michael Paglialonga

Dated: August __, 2021
LUIBRAND LAW FIRM, LLC

By: ______________________
Kevin Luibrand, Esq.
950 New Loudon Road, Suite 270
Latham, New York 12110
[phone]
[e-mail]
Attorneys for Defendant Kathy Dix

So Ordered:

____________________________
J.S.C.

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Exhibit B

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FREDY KAPLAN,
Plaintiff,
– against –

No. 18 Civ. 3629 (KPF)

NEW YORK STATE DEPARTMENT OF
LABOR,
Defendant.
STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE
IT IS HEREBY STIPULATED, AGREED and ORDERED by and between the undersigned
attorneys for the parties herein that, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the above-captioned
action and all claims asserted therein against Roberta Reardon, Pico Ben-Amotz, Michael Paglialonga,
and Kathleen Dix are voluntarily dismissed with prejudice and without payments, attorneys’ fees,
costs, disbursements or expenses to any party as against the other.

Dated: August __11___, 2021

ZABELL & COLLOTTA, P.C.
Attorneys for Plaintiff Fredy Kaplan
_________________________________
Saul D. Zabell, Esq.
2 Corporate Drive
Bohemia, New York 11716
[phone]
[e-mail]

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Exhibit C

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FREDY KAPLAN,

Plaintiff,

18 CV 3629 (KPF)
PLAINTIFF’S AFFIDAVIT
REGARDING MEDICARE

- against NEW YORK STATE DEPARTMENT OF LABOR,
Defendant.

STATE OF NEW YORK
COUNTY OF NEW YORK

)
) ss.:
)

Fredy Kaplan, being duly sworn, deposes and says:
1.

I am the plaintiff in the above-entitled action and I reside at [address], New York 1xxxx and

my telephone number is [number].
2.

I am making this affidavit with full knowledge that the same will be relied upon by the State of

New York, its agents, employees and representatives (“OAG”) in connection with settlement of this
action against the New York State Department of Labor, specifically as it relates to the OAG’s
obligations as to Medicare compliance primarily pursuant to Section 111 of the Medicare, Medicaid
and SCHIP Extension Act of 2007 (“MMSEA”) and the Medicare Secondary Payer Act (“MSP”). I
understand that a query will be or has been made to verify my current Medicare eligibility status.
3.

I hereby acknowledge and understand that as mandated by the Centers for Medicare and

Medicaid Services (“CMS”) and promulgated by and through its rules and regulations including but
not limited to the MMSEA or MSP, I am required to:
a.

reimburse Medicare for conditional payments it has made from the settlement herein; or

b.

utilize the settlement proceeds to pay for future medical expenses, when necessary.

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4.

I further acknowledge that the information provided herein will be relied upon by defendant

and OAG as true and accurate and, when applicable, will be used for reporting pursuant to the
MMSEA or as deemed necessary or required by the defendant and OAG.
5.

I hereby agree to promptly provide the OAG with any and all information necessary and

required for its reporting pursuant to MMSEA .
PEDIGREE INFORMATION
6.

I have been known by (include all alias name(s), former name(s) maiden name(s)) the

following names: Fredy Kaplan. I hereby acknowledge that I can be identified by this/these name(s)
and all these names are indeed referring to me.
7.

I consent to OAG verifying my current Medicare eligibility for purposes of its compliance with

MMSEA. I affirm:
a.
b.
c.

my social security number is [Social Security Number];
my date of birth is [Date of Birth]; and
my gender is female.
CURRENT MEDICARE ELIGIBILITY
 Initial and affirm applicable current Medicare eligibility status 

8.

As of the date of this affidavit:
a.

_______ I am not currently eligible for Medicare coverage and/or benefits nor
have I ever received Medicare coverage and/or benefits;
OR

b.

_______ I am a Medicare beneficiary and my Medicare number [HIC #] is
______________________. I am aware of my obligation to reimburse Medicare, as
well as any Medicare Part C Plan (also referred to as Medicare Advantage Plans, MediGap Plans), (collectively hereinafter referred to as “Medicare”) for payments or benefits
that I received directly or indirectly from Medicare for medical expenses for injuries
that were the subject of this action. I understand that reimbursement directly to
Medicare may be made from proceeds I receive from the settlement of this action; and
i.

_______ Medicare has confirmed that no payment is due and owing from
the total proceeds of the above-captioned litigation. (Attach copy of Medicare’s
Conditional Payment letter or Final Demand Letter); or

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ii.

_______ Medicare has confirmed that it will accept the total amount of
$____________ as full and final reimbursement of all Medicare payments made
to date. (Attach copy of Medicare’s Conditional Payment Letter and/or Final
Demand Letter). In accordance with the attached Medicare letter, I consent to
the payment of that sum directly from the total proceeds of the above-captioned
litigation; or

iii.

_______ I am awaiting a Conditional Payment Letter and/or Final Demand
Letter or equivalent information from Medicare. Upon my receipt of the
necessary documentation, I will promptly provide it to Michael A. Berg and to
OAG’s Medicare Compliance Unit via email at
[e-mail]. I agree that no interest or penalty will be
assessed or demanded by me or on my behalf against the OAG for any delay in
payment pursuant to the terms and conditions of the settlement in the abovecaptioned litigation prior to OAG’s receipt of any and all necessary
documentation from me issued by Medicare (including but not limited to
Medicare’s Conditional Payment Letter or Final Demand Letter). In accordance
with Medicare’s Conditional Payment Letter or Final Demand Letter, I consent
to the payment of that sum directly from the total proceeds of the abovecaptioned litigation.

FUTURE MEDICARE ELIGIBILITY
 Initial and affirm applicable future Medicare eligibility status 
9.

As of the date of this affidavit:
a.

_______ I do not expect to be Medicare eligible within 30 months of the date of
this affidavit and as of the date of the settlement of the above-captioned litigation. I
affirm that I:
i.
have not applied for Social Security Disability Insurance (SSDI);
ii.
have not been denied SSDI and anticipating appealing that decision;
iii.
am not in the process of appealing or re-filing for SSDI;
iv.
am not 62.5 years or older; and
v.
do not have End Stage Renal Disease (a qualifying condition for Medicare);
OR

b.

_______ I am not current a Medicare beneficiary. However, I anticipate that I
will be Medicare eligible within 30 months of the date of this affidavit and the date of
the settlement of the above-captioned litigation; and
i.

_______ I do not require any future treatment for injuries that are the
subject of this action. The required certification(s) for the injuries alleged in the
complaint is attached. The attached certification attests that there is no
anticipated future treatment required for the injuries sustained in the within
action; or

Case 1:18-cv-03629-KPF Document 153 Filed 08/13/21 Page 29 of 29

ii.

_______ I do require future treatment for the injuries that are the subject of
this action. In accordance with the attached Medicare Set-Aside Trust (“MSA”),
I consent to the payment of $_________, payable from the total proceeds of the
above-captioned litigation. I affirm this sum will be used for the medicals
expenses relating to the injuries of this action; or

iii.

_______ I have not sought treatment for the injuries alleged in this case
and, as such, there are no medical expenses relating to the injuries alleged
herein. Furthermore, I do not anticipate seeking medical treatment for injuries
alleged in this action. I understand and agree should I require future treatment
and/or prescription medication for such injuries, I will use the requisite amount
of proceeds from this agreement to pay for any medical expenses relating to
such injuries.
OR

c.

_______

I am currently a Medicare beneficiary and

i.

_______ I do not require any future treatment for injuries that are the
subject of this action. The required certification(s) for the injuries alleged in the
complaint is attached. The attached certification attests that there is no
anticipated future treatment required for the injuries sustained in the within
action; or

ii.

_______ I do require future treatment for the injuries that are the subject of
this action. In accordance with the attached Medicare Set-Aside Trust (“MSA”),
I consent to the payment of $_________, payable from the total proceeds of the
above-captioned litigation. I affirm this sum will be used for the medicals
expenses relating to the injuries of this action; or

iii.

_______ I have not sought treatment for the injuries alleged in this case
and, as such, there are no medical expenses relating to the injuries alleged
herein. Furthermore, I do not anticipate seeking medical treatment for injuries
alleged in this action. I understand and agree should I require future treatment
and/or prescription medication for such injuries, I will use the requisite amount
of proceeds from this agreement to pay for any medical expenses relating to
such injuries.
____________________________

Sworn to before me this
____ day of ____________, 2021.

___________________________
NOTARY PUBLIC