Ritornato et al v. New York State Division of Naval and Military Affairs et al

Filing 202

SETTLEMENT AGREEMENT, GENERAL RELEASE, AND ORDER OF DISMISSAL WITH PREJUDICE: NOW THEREFORE, in consideration of the mutual promises, covenants, representations and other consideration contained in this Settlement Agreement, Plaintiffs and Defen dants hereby stipulate and agree as follows : 1. Dismissal of the Action with Prejudice. The Action, and all claims that were or could have been asserted therein, are dismissed with prejudice against Defendants pursuant to Fed. R. Civ. P. 41 (a) and without payments, attorneys' fees, costs, disbursements, or expenses in excess of the amounts set forth in Paragraph 2. Plaintiffs' counsel shall execute a Stipulation, in the form annexed hereto as Exhibit A, withdrawing the appea l of this Action with prejudice without costs and without attorneys' fees pursuant to Fed. R. App. P. 42(6), and shall file it with the Second Circuit Court of Appeals within five calendar days after this Settlement Agreement is "So Orde red" by the Court. Plaintiffs shall not appeal any orders or rulings in this Action, including, but not limited to, the orders dated May 23, 2019 (docket number 182),July 11, 2016 (docket number 71), March 26, 2019 (docket number 186), and No vember 25, 2019 (docket number 192). DMNA shall not enter a Bill of Costs in this Action. In full consideration of Plaintiff Heaven's execution of this Settlement Agreement, his agreement to be bound by its terms, and his undertakings as set f orth herein including, but not limited to, the dismissal of the Action with prejudice by Plaintiffs and the waiver of any appeals by Plaintiffs, Plaintiff Heaven's waiver and release of claims as set forth in Paragraph 10 and other good and va luable consideration, the sufficiency of which is hereby acknowledged by Plaintiffs, the State of New York shall pay, subject to any reservation for payment as set forth in Paragraphs 5, 6, 7 and 8 of this Settlement Agreement, the gross amount of THIRTY THOUSAND DOLLARS ($30,000.00) in full and complete satisfaction of all claims, allegations or actions, direct or indirect, known or unknown, that Plaintiffs had, have, o r may have against the State of New York and Defendants, together with all of DMNA's present and former agencies, principals, officers, directors, members, trustees, shareholders, employees, agents, attorneys, insurers, subdivisions, subsidiaries, heirs, administrators, and assigns, whether in their person al or official capacities, arising out of conduct, acts, or omissions prior to, up to and including the date of this Settlement Agreement, including but not limited to those asserted in the Action and/ or the DHR Charges, as well as in full and co mplete satisfaction of all claims for compensatory damages (including but not limited to pain and suffering, mental and emotional anguish and trauma, damage to reputation, punitive damages, and liquidated damages), lost wages, benefits, and econom ic damages (including but not limited to back pay, front pay, severance pay, commissions, bonuses, reimbursements, and pension plan contributions), and attorneys' fees, costs, disbursements, and expenses incurred by Plaintiffs for any and all counsel who have assisted Plaintiffs or at any time represented Plaintiffs in the Action, as well as in connection with any other representation, negotiation, proceeding, administrative, judicial, or otherwise, and any other claim or action alleg ing any of the acts, transactions, occurrences, or omissions asserted in the Action, as follows: a. The State of New York shall pay to Plaintiff Heaven the sum of TEN THOUSAND DOLLARS ($10,000.00), for which an I.R.S. Form 1099 shall be issue d, in full and complete satisfaction of any and all claims for compensatory damages (including but not limited to pain and suffering, mental and emotional anguish and trauma, damage to reputation, economic damages, punitive damages, and liquidated damages) incurred by Plaintiff Heaven that were or could have been the subject of any claim in the Action o r the Heaven DHR Charge, as well as in connection with any other representation, negotiation, proceeding, whether administrative, judicial , or otherwise, including but not limited to any other claim or action alleging any of the acts, transactions, occurrences, or omissions asserted in the Action or the Heaven DHR Charge. The foregoing payment shall be made payable to "VanderWo ude & Roma PLLC, for the benefit of Aldaine Heaven" and sent to Neil VanderWoude, Esq., VanderWoude & Roma, PLLC, 103 Old Route 52, Stormville, New York 12582. b. The State of New York shall pay to the VanderWoude & Roma, PLLC law firm, as at torneys for Plaintiffs, the sum of TWENTY THOUSAND DOLLARS ($20,000.00), for which an I.R.S. Form 1099 shall be issued, in full and complete satisfaction of any and all claims for attorneys' fees, costs, disbursements, and expenses incurr ed by Plaintiffs for any and all counsel who have assisted Plaintiffs or at any time represented Plaintiffs in the Action, the DHR Charges, as well as in connection with any other proceeding, whether administrative, judicial, or otherwise, includi ng but not limited to any other claim or action alleging any of the acts, transactions, occurrences, oromissions asserted in the Action or the DHR Charges. The foregoing payment shall be made payable to "VanderWoude & Roma PLLC, as attorneys for Plaintiffs" and sent to Neil VanderWoude, Esq., VanderWoude & Roma, PLLC, 103 Old Route 52, Stormville, New York 12582 as further set forth in this order. The Clerk of Court is respectfully directed to close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 8/14/2020) (rj)

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 1 of 32

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DARIA RITORNATO, VINCENT FERRARA,
MICHAEL SCARLATA, SEAN ARNI and
ALDAINE HEAVEN,
Plaintiffs,
- against NEW YORK STATE DIVISION OF MILITARY
AND NAVAL AFFAIRS, MAJOR GENERAL
ANTHONY P. GERMAN AS ADJUTANT
GENERAL, and JEFFREY CASTON,

14 Civ. 7854 (CS) (LMS)

SETTLEMENT AGREEMENT,
GENERAL RELEASE, AND ORDER
OF DIS:tvIISSAL WITH PREJUDICE

Defendants.
This SETTLEMENT AGREEMENT, GENERAL RELEASE, AND ORDER OF
DISMISSAL WITH PREJUDICE ("Settlement Agreement") is made by and between Plaintiffs
Daria Ritornato, Vincent Ferrara, Michael Scarlata, Sean Arni and Aldaine Heaven (together,
"Plaintiffs"), on the one hand, and Defendants New York State Division of Military and Naval
Affairs ("DMNA") and Jeffrey Caston (together, ''Defendants"), on the other hand, as of July 31,
2020:
WHEREAS, PlaintiffRitornato cross-filed on or about November 20, 2013 with the New
York State Division of Human Rights ("DHR") and the United States Egual Employment
Opportunity Commission ("EEOC") a complaint against DMNA charging retaliation, numbered
Case No. 10165722 (the "Ritornato DHR Charge");
WHEREAS, Plaintiff Ferrara cross-filed on or about November 20, 2013 with the DHR and
the EEOC a complaint against DMNA charging retaliation, numbered Case No. 10165729 (the
"Ferrara DHR Charge");
WHEREAS, Plaintiff Scarlata cross-filed on or about September 15, 2014 with the DHR and
the E EOC a complaint against DMNA charging retaliation, numbered Case No. 10171126 (the
"Scarlata DHR Charge");

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 2 of 32

WHEREAS, Plaintiff Arni cross -filed on or about October 31, 2014 with the DHR and the
EEOC a complaint against the D MNA charging retaliation, numbered Case No. 10171960 (the "Arni
DHR Charge");
WHEREAS, Plaintiff H eaven cross-filed on or about April 24, 2015 with the DHR and the
EEOC a complaint against D NINA charging retaliation, numbered Case No. 10174790 (the "Heaven
DHR Charge")
WHEREAS, the Ritornato DHR Charge, the Ferrara DHR Charge, the Scarlata DHR
Charge, the A rni DHR Charge and the Heaven DHR Charge are collectively referred to as the ''DHR
Charges";
WHEREAS, Plaintiffs Ritornato and Ferrara commenced this action by filing a complaint on
or about September 29, 2014 ("the Initial Complaint") in this Court, Case Number 14-CV-7854
against D efendants, the Civil Service Employees Association Inc. - Local 1000 AFSCME and Nancy
Wood, in the above-captioned action ("the Action"), alleging claims pursuant to Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq.; the New York State Human Rights Law,
New York Executive Law § 296, et seq.; and common law; and
WHEREAS, on or about June 3, 2015, an Amended Complaint was filed in this Action by
Plaintiffs Ritornato, Ferrara and Scarlata solely against D MNA; on or about August 7, 2015, a Second
Amended Complaint was filed in this Action by Plaintiffs Ritornato, Ferrara, Scarlata, Arni and
Heaven against D MNA and Caston; on or about January 4, 2016, a proposed Third Amended
Complaint was filed in this Action by Plaintiffs Ritornato, Ferrara, Scarlata, A rni and Heaven against
D MNA, Caston and Major General Patrick A. Murphy as Adjutant General of the State of New
York; and on or about January 26, 2017, a Fourth Amended Complaint was filed in this Action by
Plaintiffs Ferrara and Heaven against D MNA, Caston and Major General Anthony P. German as

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Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 3 of 32

Adjutant G eneral of the State of New York (the Initial Complaint and Amended Complaints ar e
collectively referred to as "the Complaint"); and
WHEREAS, the Court dismissed Major G eneral Anthony P . German as a defendant in this
action by order dated May 23, 2019 (docket number 182); and
WHEREAS, the Court dismissed all claims against D l\lINA as a defendant in this action by
orders dated July 11, 2016, March 26, 2019 and November 25, 2019 (docket numbers 71, 186, 192);
and
WHEREAS, D efendants expressly deny any wrongful conduct or liability, o r violation of any
federa~ state, or local statute, ordinance, or law in this matter whatsoever; and
WHEREAS, Plaintiffs and D efendants desire to fully resolve the claims between them and
any and all other disputes, whether known or unknown, without further litigation or proceedings 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, Plaintiffs and D efendants hereby
stipulate and agree as follows :
1.

Dismissal of the Action with Pre judice.

The Action, and all claims that were or could have been asserted therein, ar e dismissed with
prejudice against D efendants pursuant to Fed. R. Civ. P . 41 (a) and ·without payments, attorneys'
fees, costs, disbursements, or expenses in excess of the amounts set forth in Paragraph 2. Plaintiffs'
counsel shall execute a Stipulation, in the form annexed hereto as Exhibit A, withdrawing the
appeal of this Action with prejudice without costs and without attorneys' fees pursuant to Fed. R.
App. P . 42(6), and shall file it with the Second Circuit Court of Appeals within five calendar days
after this Settlement Agreement is "So O rdered" by the Court. Plaintiffs shall not appeal any orders
or rulings in this Action, including, but not limited to, the orders dated May 23, 2019 (docket
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number 182),July 11, 2016 (docket number 71), March 26, 2019 (docket number 186), and
November 25, 2019 (docket number 192). D MNA shall not enter a Bill of Costs in this Action.
2.

Payments to Plaintiff Heaven.

In full consideration of Plaintiff H eaven's execution of this Settlement Agreement, his
agreement to be bound by its terms, and his undertakings as set forth herein including, but not
limited to, the dismissal of the Action with prejudice by Plaintiffs and the waiver of any appeals by
Plaintiffs, Plaintiff H eaven's waiver and release of claims as set forth in Paragraph 10 and other good
and valuable consideration, the sufficiency of which is hereby acknowledged by Plaintiffs, the State
of New York shall pay, subject to any reservation for payment as set forth in Paragraphs 5, 6, 7 and
8 of this Settlement Agreement, the gross amount of THIRTY THOUSAND D O LLARS
($30,000.00) in full and complete satisfaction of all claims, allegations or actions, direct or indirect,
known or unknown, that Plaintiffs had, have, o r may have against the State of New York and
D efendants, together with all of D MNA's present and former agencies, principals, officers,
directors, members, trustees, shareholders, employees, agents, attorneys, insurers, subdivisions,
subsidiaries, heirs, administrators, and assigns, whether in their personal or official capacities, arising
out of conduct, acts, o r omissions prior to, up to and including the date of this Settlement
Agreement, including but not limited to those asserted in the Action and/ or the DHR Charges, as
well as in full and complete satisfaction of all claims for compensatory damages (including but not
limited to pain and suffering, mental and emotional anguish and trauma, damage to reputation,
punitive damages, and liquidated damages), lost wages, benefits, and economic damages (including
but not limited to back pay, front pay, severance pay, commissions, bonuses, reimbursements, and
pension plan contributions), and attorneys' fees, costs, disbursements, and expenses incurred by
Plaintiffs for any and all counsel who have assisted Plaintiffs or at any time represented Plaintiffs in
the Action, as well as in connection with any other representation, negotiation, proceeding,
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Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 5 of 32

administrative, judicial, or otherwise, and any other claim or action alleging any of the acts,
transactions, occurrences, or omissions asserted in the Action, as follows :
a. The State of New York shall pay to Plaintiff Heaven the sum of T EN THOUSAND
DOLLARS ($10,000.00), fo r which an I.R .S. Form 1099 shall be issued, in full and complete
satisfaction of any and all claims for compensatory damages (including but not limited to pain and
suffering, mental and emotional anguish and trauma, damage to reputation, economic damages,
punitive damages, and liquidated damages) incurred by Plaintiff H eaven that were o r could have been
the subject of any claim in the Action o r the Heaven DHR Charge, as well as in connection with any
other representation, negotiation, proceeding, whether administrative, judicial, o r otherwise, including
but not limited to any other claim or action alleging any of the acts, transactions, occurrences, or
omissions asserted in the Action or the Heaven DHR Charge. The foregoing payment shall be made
payable to ''VanderWoude & Roma PLLC, fo r the benefit of Aldaine Heaven" and sent to Neil
VanderWoude, Esq., VanderWoude & Roma, PLLC, 103 Old Route 52, Stormville, New York
12582.
b. T he State of New York shall pay to the VanderWoude & Roma, PLLC law firm, as
attorneys for Plaintiffs, the sum of TWENTY THOUSAND D OLLARS ($20,000.00), for which an
I.R .S. Form 1099 shall be issued, in full and complete satisfaction of any and all claims for attorneys'
fees, costs, disbursements, and expenses incurred by Plaintiffs for any and all counsel who have
assisted Plaintiffs o r at any time represented Plaintiffs in the Action, the DHR Charges, as well as in
connection with any other proceeding, whether administrative, judicial, or otherwise, including but
not limited to any other claim o r action alleging any of the acts, transactions, occurrences, or
omissions asser ted in the Action or the DHR Charges. The foregoing payment shall be made payable
to ''VanderWoude & Roma PLLC, as attorneys for Plaintiffs" and sent to Neil VanderWoude, Esq.,
VanderWoude & Roma, PLLC, 103 Old Route 52, Stormville, New York 12582.
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Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 6 of 32

3.

State Approv al of Payments.

The payments referenced in Paragraph 2 of this Settlement Agreement are subject to and
conditioned upon the approval of all appropriate State officials in accordance with N.Y. Public
Officers Law § 17. Plaintiffs and their attorneys agree to promptly execute and deliver all necessary
and appropriate vouchers and other requested documentation with respect to obtaining such
approval and effectuating payment, including, but not limited to the Affidavit of Medicare Eligibility
Status attached hereto as Exhibit B and any required attachments thereto. In the event such
approval is not obtained, this Settlement Agreement shall be null, void, and of no further force and
effect.

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 receipt by the Office of the Attorney
General of the State of New York ("OAG") of a "So O rdered" copy of this Settlement Agreement,
entered on the docket of the Clerk of Court, together with all other requested documentation
including, but not limited to, that required under Paragraphs 3 and 6 of this Settlement Agreement,
and the executed Medicare Affidavit attached hereto as E xhibit B, interest on any part of the sum
not paid pursuant to Paragraph 2 by the one hundred twentieth (120th) day shall accrue at the
statutory rate prescribed by 28 U.S.C. § 1961, commencing on the one hundred twenty-first (121st)
day after receipt of all required documentation. In the event the Court does not "So O rder" a copy
of this Settlement Agreement, interest on any part of the sum referenced in Paragraph 2 of this
Settlement Agreement not paid by the one hundred twentieth (120th) day will run from the time the
OAG receives all other documents required under Paragraphs 3 and 6 of this Settlement Agreement.
In the event that payment of the settlement amounts referenced in Paragraph 2 constitute "funds of

a convicted person" within the meaning of N.Y. Exec. Law § 632-a, then the aforementioned one
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Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 7 of 32

hundred twenty (120) day period shall be extended by an additional thirty (30) days to allow for
compliance with that law.

5.

Responsibility of Plaintiff Heaven and Plaintiffs' Attorneys for T axes.

It is understood and agreed that any taxes, or interest o r penalties on taxes, on the payments
or services referred to in Paragraph 2 of this Settlement Agreement shall be the sole and complete
res ponsi bility of Plaintiff Heaven (or Plaintiffs' attorneys respectively, for fees paid to said
attorneys) . Plaintiff H eaven and Plaintiffs' attorneys acknowledge and agree that neither
D efendants, the State of New York, nor any of their p resent o r fo rme r agencies, subdivisions,
subsidiaries, administrators, principals, officers, employees, directors, members, trustees, agents,
attorneys, insurers, heirs, and assigns, whether in their individual or official capacities, shall be
responsible for any taxes, or interest or penalties on taxes, of any kind which may attach to any
settlement amount by operation of law o r otherwise. Plaintiff H eaven and Plaintiffs' attorneys shall
have no claim, right or cause of action against D efendants (including but not limited to, any of their
officials, employees, agents or representatives, whether in their individual or official capacities),
and/ or the State of New York (including, but not limited to, any and all agencies, entities,
departments, offices, subdivisions, officials, employees, agents o r representatives thereof) on
account of any such taxes, interest or penalties. In the event that any taxing authority or any other
federaL state, or local government, administrative agency, or court issues a final determination that
D efendants or the State of New York (including, but not limited to, any of their agencies,
subdivisions, subsidiaries, administrators, p rincipals, officers, employees, directors, members,
trustees, agents, attorneys, insurers, heirs, and assigns, whether in their individual or official
capacities) is liable for the failure of Plaintiff Heaven (or Plaintiffs' attorneys respectively, for fees
paid to said attorneys) to pay federal, state, or local income or other taxes or withholdings ,vith
respect to any portion of the settlement amounts of this Settlement Agreement, o r are liable for
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Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 8 of 32

interest or penalties related thereto, Plaintiff Heaven (and Plaintiffs' attorneys respectively, for fees
paid to said attorneys) agrees to reimburse and indemnify D efendants or the State of New York for
such liability, so long as Plaintiff H eaven or Plaintiffs' attorneys have been provided with notice of
any such claim or proceeding promptly following receipt or notice of such claim o r proceeding by
D efendants or the State of New York.

6.

Medicare Certification.

Plaintiff Heaven acknowledges and understands that Section 111 of the Medicare, Medicaid,
and SCHIP Extension Act of 2007 ("ivr:MSEA"), 42 U.S.C. § 1395y(b), mandates that the State of
New York and the OAG repor t information to Medicare regarding settlements, judgments, awards,
and other payments, and agree to deliver an executed and notarized Affidavit of Medicare Eligibility
Status, in the form annexed hereto as Exhibit B, to the OAG.
Plaintiff Heaven represents and warrants that he is not a Medicare recipient, has never been
on Medicare or on Social Security Disability, that no conditional payments have been made by
Medicare, and that he does not e>.-pect to be a Medicare recipient within the next 30 months.
Plaintiff Heaven and his attorneys acknowledge and understand that the submission of the executed
and notarized Affidavit of Medicare Eligibility Status in the form annexed hereto as Exhibit B
reflecting the same, and any and all supporting documentation, to the OAG is a prerequisite to
payment of the settlement amounts referenced in Paragraph 2, and falls within the category of
"other documentation" described in in Paragraphs 3 (State Approval of Payments) and 4 (Accrual of
Interest).
7.

Responsibility of Plaintiff H eaven and Plaintiffs' Attorneys for Liens .

Plaintiff Heaven and Plaintiffs' attorneys acknowledge and agree that neither D efendants nor
the State of New York (including, but not limited to, any of their agencies, entities, departments,
offices, subdivisions, subsidiaries, administrators, principals, officers, employees, directors, members,
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trustees, agents, attorneys, insurers, heirs, and assigns, whether in their individual or official
capacities) shall be responsible for any liens, setoffs, deductions, or recoupments of any kind
(including, but not limited to, any and all unemployment benefits, workers' compensation, tax, or
child support liens, o r liens for attorneys' fees, costs, disbursements, o r expenses) which may attach
by operation of law or otherwise to any settlement payment amount referenced in this Settlement
Agreement. Plaintiff Heaven and Plaintiffs' attorneys acknowledge and agree that they shall have no
claim, right, or cause of action against D efendants or the State of New York (including, but not
limited to, any of their agencies, entities, departments, offices, subdivisions, subsidiaries,
administrators, principals, officers, employees, directors, members, trustees, agents, attorneys,
insurers, heirs, and assigns, whether in their individual or official capacities) on account of any such
liens, setoffs, deductions, or recoupments.

8.

Liability of Plaintiff H eaven for Medicare Payments and/or Liens.

Plaintiff Heaven agrees to defend, indemnify, and hold harmless D efendants, the State of
New York, or their present and former agencies, entities, departments, offices, subdivisions,
subsidiaries, administrators, principals, officers, employees, directors, members, trustees, agents,
attorneys, insurers, heirs, and assigns, whether in their individual or official capacities, o r any of
them, or all of them, regarding any liens or past and/ or future Medicar e payments presently known
or unknown in connection with the Action. If conditional and/ or future anticipated Medicare
payments have not been satisfied, the State of New York reserves the right to issue a multi-par ty
settlement check, naming Medicare as a payee or to issue a check to Medicare directly based on the
Medicare Final D emand Letter. Upon receipt of all required documentation under Paragraphs 3
(State Approval of Payments), 4 (Accrual of Interest), and 6 (Medicare Certification), payment of the
settlement amounts referenced in Paragraph 2 shall be made in accordance with the terms set forth
herein.
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9.

Covenant N ot to File Claim in Court of Claims.

Plaintiffs warrant and represent that, as of the date of this Settlement Agreement, they have
not filed or sought permission to file with the New York Court of Claims a claim against the State of
New York, D efendants, or their present and fo rme r agencies, entities, departments, offices,
subdivisions, subsidiaries, administrators, p rincipals, officers, employees, directors, members,
trustees, agents, attorneys, insurers, heirs, and assigns, whether in their individual or official
capacities, or any of them, or all of them, including but not limited to the D efendants, or any other
person or entity based in whole o r in part upon any of the acts, transactions, occurrences o r
omissions asser ted in the Complaint in the Action or the DHR Charges, and further covenant and
agree never to do so in the future.

10.

General Release in Favor of D efendants .

For and in consideration of the State of New York's agreement to pay the monies referenced
in Paragraph 2 of this Settlement Agreement, the agreement by D efendant D MNA to forego
entering and satisfying a Bill of Costs, 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, Plaintiffs, on behalf of themselves, their heirs, executors, administrators, successors, and
assigns (collectively, "the Releasing Parties"), hereby release and forever discharge, the State of New
York, D efendants, including but not limited to DMNA and Jeffery Caston, together with all of their
present and former agencies, entities, depar tments, offices, subdivisions, subsidiaries, administrators,
principals, officers, employees, directors, members, trustees, agents, attorneys, insurers, heirs, and
assigns, whether in their individual or official capacities, or any of them, or all of them (collectively,
"the Released Parties"), from all manner of actions, injuries, proceedings, causes of action,
grievances, suits, debts, obligations, dues, sums of money, accounts, contracts, controversies,
agreements, p romises, damages, judgments, claims, and demands whatsoever, direct o r indirect,
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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 but not limited to: (a) any and all claims regarding
or arising out of the acts, transactions, occurrences, or omissions which are described, alleged, or
contained in the Action, including without limitation the Complaint in the Action and the DHR
Charges; (b) any and all claims for attorneys' fees, costs, disbursements and all other expenses
incurred by or on behalf of Plaintiffs in connection with the Action, the EEOC charge, and any
other action or proceeding, whether judicia~ administrative or otherwise; (c) any and all claims
regarding or arising directly or indirectly from Plaintiffs' association with any of the Released Parties
or the terms and conditions of his association with any of the Released Parties; (d) any and all claims
of access to courts, conspiracy, retaliation, or discrimination based upon disability, age, race, color,
national origin, ancestry, religion, marital status, sex, sexual harassment, sexual orientation, gender
identity, citizenship, military service, status, or medical condition, whether actual or perceived; (e)
any and all claims under federal, state, or local laws, statutes, constitutions, regulations, rules,
ordinances, or o rders, including but not limited to claims under 42 U .S.C. §§ 1981-1988, Title VI,
Title VII, Title IX, the Equal Pay Act of 1963, 29 U.S.C. § 206(d), the Fair Labor Standards Act of
1938, 29 U.S.C. § 201 et seq., the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 634, the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.,
42 U.S.C. § 1983,42 U .S.C. § 1985, the New York State Human Rights Law, New York Executive
Law § 296, et seq.; the New York City Human Rights Law, New York City Administrative Code § 8101, et seq.; the New York State Labor Law, N.Y. Labor Law §§ 740 and 741 et seq., N .Y. Civil
Service Law § 75-b, the United States Constitution, the New York State Constitution, the New York
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Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 12 of 32

City Charter, and any other federal, state or local law; (f) any claims of retaliation for participation in
a protected activity and/ or engaging in any activity protected under any federal, state, or local laws,
statutes, constitutions, regulations, rules, ordinances, or orders; (g) any and all claims for salary,
bonuses, earnings, severance pay, vacation pay, sick pay, incentive pay, clinical practice income, o r
other compensation, or any non-vested retirement, pension, or savings plan or other benefits; (h)
any and all grievances pursuant to any applicable collective bargaining agreement; and (i) any and all
other claims, whether for moneys owed, damages (including but not limited to claims for equitable
relief, compensatory, punitive, or other damages), vocational services, breach of implied or express
contract, breach of promise, misrepresentation, negligence, fraud, estoppel, defamation, assault,
battery, infliction of emotional distress, tortious interference with contract, tortious interference with
business relations, tortious interference with prospective contractual relations, tortious interference
with prospective business relations, violation of public policy, wrongful or constructive discharge, or
any other tort, or any claim for costs, fees, or other expenses, including attorneys' fees, or any other
claims under federal, state, or local law relating to employment, education, vocational services,
discrimination, retaliation, retirement, or otherwise. Except for the rights and obligations set forth
in this Settlement Agreement, this release also includes a waiver and release of any and all claims
related to allegations made before the EEOC, the DHR, and/ or the New York City Commission on
Human Rights, as well as any and all claims against the State of New Yor k, its agencies, departments,
and officials in the New York Court of Claims or any other forum, administrative or otherwise,
related to o r arising from any transactions, acts, omissions, or occurrences up to and including the
date of this Settlement Agreement. Notwithstanding the foregoing, the only claims not being
released are claims by Plaintiffs Ferrara and Scarlata against DMNA solely for personal injury for
lung cancer, asbestosis or mesothelioma caused by alleged exposure to asbestos in October 2011 and
D ecember 2013 while employed by D MNA and working at D NINA's Camp Smith, which must be
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filed (if at all) only as Worker's Compensation claims with the New Yor k State Worker's
Compensation Board, but such claims are subject to any and all defenses that D MNA may assert.

11.

Future Employment.

Plaintiffs Ferrara, Heaven and Scarlata agree that they will not seek, apply for, o r accept
employment or contracted wor k with D l\llNA, including, without limitation, any and all constituent
units, training sites, armories or entities of DMNA, at any time in the future, any pending
applications for employment or contracted work with D l'vINA are deemed withdrawn, and Plaintiffs
Ferrara, Heaven and Scarlata hereby waive any rights that may accrue to them from rejection of any
application for employment or contracted wor k with D l\llNA. Plaintiffs Ferrara, Heaven and
Scarlata acknowledge that D MNA has no obligation, contractual or otherwise, to hire, employ, or
contract any of them in the future. Should any of Plaintiffs Ferrara, Heaven or Scarlata in violation
of this agreement seek, apply fo r, or accept employment o r contracted work with D MNA, they
agree that D l\llNA may summarily terminate their employment, without any procedure whatsoever,
including, but not limited to, notice and a hearing, and if any of them initiates any form of legal
claim or action against D MNA based upon his application for , or acceptance of employment or
contracted work fo r D l\llNA or the termination of that employment by D l\llNA, the parties agree
that said claim or action will be null and void and subject to immediate dismissal with prejudice
pursuant to this Paragraph.
12.

No Other Ac tion or Proceeding Commenced.

Other than the Action and the DHR Charges, Plaintiffs represent that they have not
commenced, maintained, or prosecuted any action, charge, complaint, grievance, or proceeding of
any kind against the State of New York or D efendants, including but not limited to Jeffrey Caston
and D l\llNA, and/or any of their present and former agencies, entities, subdivisions, subsidiaries,
administrators, principals, officers, employees, directors, members, trustees, agents, attorneys,
Page 13

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 14 of 32

insurers, heirs, and assigns, whether in their individual or official capacities, or any of them, or all of
them, on their own behalf and/ 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 o r investigative body or agency, and acknowledge that this
representation constitutes a material inducement for D efendants to enter into this Settlement
Agreement.
13.

No Other Attorney.

Plaintiffs represent and warrant that other than the undersigned attorneys fo r Plaintiffs, no
attorney has a lien on the settlement proceeds in the Action or for services rendered to Plaintiffs in
the Action, the DHR Charges, or in any other action or judicial or administrative proceeding alleging
any of the acts, transactions, occurrences, or omissions asserted in the Action or the DHR Charges,
whether pursuant to the provisions of §§ 475 and 475-a of the New York Judiciary Law or any other
state or federal law, or contract or otherwise.
14.

No Prevailing Party.

Neither the Plaintiffs (individually or collectivdy) nor any D efendant shall be deemed a
"prevailing party" for any purpose, including but not limited to any statutory or contractual claim
based upon "prevailing par ty" status with respect to the Action.
15.

Binding Effect on Successors and Assigns.

T he 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.
16.

Au thority.

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

Page 14

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 15 of 32

assigned or transferred any rights or interests with respect to the matters covered by this Settlement
Agreement.
17.

Voluntary Agreement.

Plaintiffs represent that they have thoroughly discussed all aspects of this Settlement
Agreement (including the General Release set forth in Paragraph 10) with their attorneys, and
Plaintiffs represent that they have carefully read and fully understand all of the provisions of the
Settlement Agreement. Plaintiffs represent that they execute and deliver the Settlement Agreement
voluntarily after being fully informed of its terms, contents, and effect, and acknowledges that they
understand its terms, contents, and effect. Plaintiffs acknowledge that they have been advised of
their right to seek the advice of an attorney and that they are and have been represented by counsel
of their own choosing 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.
18.

N egotiated Agreement.

T he parties acknowledge that each party has participated and cooperated in the drafting and
preparation of this Settlement Agreement. T he 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.
19.

N o Admission of Liability.
Nothing contained herein shall constitute an admission by D efendants or the State

of New York that they deprived Plaintiff of any right o r failed to perfo rm any duty under the
constitutions, charters, statutes, rules, regulations, or other laws of the United States or, the State of
New York, or the City of New York, or that any action or inaction by them was unlawful or
wrongful. 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;
Page 15

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 16 of 32

that this Settlement Agreement and the actions taken and payments made pursuant hereto are not to
be construed as constituting any determination on the merits of any claims in this Action or dispute
or as constituting any admission of wrongdoing or liability on the part of D efendant, the State of
New York, o r any of their present and fo rmer principals, officers, directors, members, trustees,
shareholders, affiliates, employees, agents, attorneys, insurers, offices, agencies, departments,
divisions, subdivisions, subsidiaries, heirs, administrators, or assigns, and that they expressly deny
any wrongdoing or liability. Nothing contained in this Settlement Agreement shall be deemed to
constitute a policy, custom, or practice of D efendant, or the State of New York, or any of their
offices, agencies, departments, divisions, subdivisions, officials, employees, or agents, whether in
their individual or official capacities.
20.

No Precedential Value .

T his Settlement Agreement shall not in any manner be construed as determinative of the
issues or claims raised, or that could have been raised, in the Action, or any other action or
proceeding. T his Settlement Agreement shall have no precedential value or effect whatsoever, and
shall not be admissible in any action or proceeding as evidence or for any other purpose, except in
an action or proceeding to enforce this Settlement Agreement. In addition, notwithstanding the
provisions of any paragraph herein, this Settlement Agreement shall not bind or collaterally es top
the State of New York or D efendants, or any of their present and former agencies, entities,
departments, offices, subdivisions, subsidiaries, administrators, principals, officers, employees,
directors, members, trustees, agents, attorneys, insurers, heirs, and assigns, whether in their
individual or official capacities, or any of them, or all of them, in any pending or future actions or
proceedings in which the same or similar issues are raised, from defending any and all issues and
claims raised in said actions or proceedings, or from advancing any defenses.

Page 16

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 17 of 32

21.

Entire Agreem ent.

T his Settlement Agreement constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof, and supersedes and embodies, merges and integrates all p rior
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.
22.

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, without regard to the conflict of laws provisions of New York law, except to the
extent that federal law applies to the releases and waiver of federal claims pursuant to this Settlement
Agreement.

23.

Severability.

With the exception of Paragraphs 1, 3, 6, 10, 11, and 12 of this Settlement Agreement, if any
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.
24.

H eadings .

T he headings contained in this Settlement Agreement are for convenience of reference only
and are not a material par t of this Settlement Agreement.

25.

Submission to the Court.

Upon signatures by all parties and counsel for all parties, this Settlement Agreement shall be
submitted without furthe r notice to the Court to be "So Ordered."
Page 17

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 18 of 32

26.

Counterparts.

This Settlement Agreement may be executed in several counterparts, each of which shall be
deemed an original and which, taken together, shall constitute one and the same instrument, and
may be executed by facsimile o r PDF signature and notary seal.
27 .

Acknowledgment of Full Understanding.

Plaintiffs acknowledge and agree that Plaintiffs have fully read, understand, and voluntarily
enter into this Settlement Agreement. Plaintiffs acknowledge and agree that Plaintiffs have had an
opportunity to ask questions and consult with an attorney of Plaintiffs' choice before signing this
Settlement Agreement. Plaintiffs further acknowledge that Plaintiffs' signatures below are a binding
agreement that releases and/ or waives claims, including claims that may be contingent or unknown
against the D efendants and all Released Parties, including the State of New York.

IN WITNESS WHE REOF, the parties hereto acknowledge that they have read this
Settlement Agreement, and accept and agree to the provisions contained herein, and have each
executed this Settlement Agreement to be effective on the day and date first above written.

[Signatures Contained on Following Pages]

Page 18

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 19 of 32

ST.c\TE Or NE\'\' YORK

Onk

COUNTY Of DGTCJ JESS

13~20, before me, the undersigned, a Notary Public in and for the State of

New York, personally appeared DARIA RITORNATO, personally known lo me or proved to me
o n the basis of satisfactory eYidence to be the indi,-idual whose name is subscribed to the ,,rithin
instrument, and acknowledged to me that ~he executed rhe same in her capaciry, and rhar by her
signature on the instrument, the individual, or the p erson upon behalf of which the indid dual
acced, executed rhc instrument.
NEIL \W«>ERWOUDE
Notary Public, State of New 'tt,lc
No. rt.NM191481
QuaUfied in Putnam County
Commi&aion &pt81 oet'1~

OTARY PUBLIC

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 20 of 32

LJ=~q

Vincent Ferrara, Plai11t[ff"

STATE or N 1 YORK
2\XI
CO UNTY OF D UTCHESS

Ont:,_

/0 , 2020, before me, the undersigned, a Notary Public in and for the Stare of

New York, personallr appeared VTNCENT FERR..A.RA, personally known to me or prO\·ed to me

on the basis of sa tisfactory evidence to be the indi,,idual whose name is subscribed co the within
instrumeot, and acknowledged to me that he executed the same in his capacicy, and that by his
signacure o n the instrnment, the ind ividual, o r the person upon behalf of which the individual
acted, executed the ins lrument.

GERAID JOSEPH f\OMA

Notary Public, Ste-te of New York
No. 02RO6290289
O~llfled !n Dutch~

Commission Expires

"'?

CountY ~

-

/

Page 20

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 21 of 32

fl~S~

Michael Sadata, Plai11tftr

STATE OF NEW YORK
COUNTY OF DUTCJ JESS

On July lfl_, 2020, before me, the undersigned, a Notary Public in and for the Stale of
New York, personally appeared J\rIC[-1..AEL SCARL\T1\, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is subscribed to the
·within instrument, and acknowledged to me that he executed the same in hi~ capacity, and that by
his signatmc on the instrumenc, the indiYidual, or the person upon bchnlf of which the individual
acted, executed the inscrumenc

Page 21

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 22 of 32

br-1\

STATE OF NE\'\! YORK

=

0

COU NTY 9F DUTClJ ESS

l+v1 .

ic:

On~ ~' 2020, before me, the undersigned, a Nota1-y Public in and for the State of
New York, personally appeared EAN ARNI, p ersonally known to me or pro\'ed to me on the
basis of satisfactory evidence to be the indiY-idual whose name is subscribed ro the within
ins trument, and acknowledged to me that he executed the sam e in his capacity, and that br his
signature on the instmmenc, the individual, o r the person upon behalf of which the indi,idual

,,,

acted, executed the instrument.

- Pl~~+.r-fZ

--''-------------

N8L VANDERWOUDE
Notary Public, State of New York
No. 02VA6191481
Qualified in Putnam County
Commission &piles 0611812.0 '2<...::>

P age 22

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 23 of 32

l]JJq,.·

M.•

kt~

r\ldaine f [ea,en, Plainli(l

STATE OF NEW YORK
COUNTY OF DUTCHESS

On J uly _3.L, 2020, before me, the undersigned, a Notary Public in and for the State uf

New York, personally appeared ALDAINE HEAVEN, personaUy known to me or proved to me
o n cbe basis of satisfactory evidence to be the individual whose name is subscribed to the ,vitb.in
instrnment, and ackno,vledged to me that he executed the same in his capacity, and that by his
signature on the instrumenc, the individual, or rhc person upon behalf of which the individual

acted, executed the instrnment.

-

RACHELL. BAR/..1ACK
NOTARY PUBLIC. STATE OF NEW YORK
Regisllation No. 02BA6336S58
Qualified In D~chess Cou,ty
Corrvnission Expires Febniary 8. 2024

Page 23

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 24 of 32

VA TOERWOLJDE & RO-l\lA, PLLC
Attomrys for Plai111fffs

By:

L ETITlA JAMES
,\ttorney General
State o f New York
A tlom~)'far D~fe11da11I DMN/1.

Br:

J~A.S~d

Neil VanderWoudc, Esq.
Gerald J. Roma, Esq.
103 Old Ro ute 52
Stormvillc, N cw York 12582
[phone]

Jonathan A. Siegel, Esq.
Assistan t Attorney General
28 Liberty Street
New York, N ew York 10005
[phone]

The Clerk of Court is respectfully directed to close the case.
DeCARO & DeCARO
Attomrys.for Defe11da11I h/li~y Cas/011

SO ORDERED:

By:

Philip A. DeCaro, Esq.
'-t80 l\famaconeck 1\venue
Harrison, NY 10528
(914) 835- 6200

T h e 1l onorablc Cathy Seibel
United States OimictJu<lge

8/14/2020
D ared: _ _ _ _ _ _ _ _ __

Page 24

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 25 of 32

EXHIBIT A

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 26 of 32

UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood .Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day nf August, two thousand and twenty,

STIPULATION

Daria Ritomato, et al.

Docket Number: 20-547

V.

ew York ' tatc Division of Naval and lvlilitarr Affairs,
ct al.
111e undersigned counsel for the parties stipulate that the above-captioned case is withdmwn
with prejudice without costs and without attorneys' fees pursuant to FR.AP 42(b).

Av~ . l'2, ~c,z c:,
Date:

J~

Attorhey for Appellant
Neil Vandcr\\:'oudc, Vander\Voude & Rom.,, J>LLC
Print Name and Firm

Date:

August 13, 2020

1\ttorney for AppeUee

NYS Office of the Attomer General
Pnnt Name and Firm

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 27 of 32

EXHIBITB

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 28 of 32

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DARIA RITORNATO, VINCENT FERRARA,
MICHAEL SCARLATA, SEAN ARNI and ALDAINE
HEAVEN,
Plaintiffs,
- against -

14 Civ. 7854 (CS) (LSM)

PLAINTIFF'S AFFIDAVIT
REGARDING MEDICARE

NEW YORK STATE DIVISION OF MILITARY AND
NAVAL AFFAIRS, MAJOR GENERAL ANTHONY P.
GERMAN AS ADJUTANT GENERAL, AND
JEFFREY CASTON,
Defendants.
STATE OF NEW YORK

)
)
COUNTY OF DUTCHESS )

ss.:

ALDAINE HEAVEN, being duly sworn, says:
1.

Peekskill, NY
2.

I am the plaintiff in the above-entitled action and I reside at

1111I 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 (collectively, "OAG") in
connection with the settlement of this action against JEFFREY CASTON and the NEW YORK
STATE DIVISION OF MILITARY AND NAVAL AFFAIRS, 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"). {Note: A query will be I has been made pursuant to Section 111 ofthe Medicare,

Medicaid and SCHIP Extension Act of2007, 42 US.C 1395(B)(8) to verify your current
Medicare status.]
Page 1

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 29 of 32

3.

I hereby acknowledge and understand that as mandated by CMS and promulgated by

and through its rules and regulations including but not limited to the MMSEA and/or MSP, I am
required to:
a.
b.

4.

reimburse Medicare for conditioJJalP'!Jmen/s it has made from the settlement
herein; and/or
utilize the settlement proceeds to pay for future medical expenses, when
necessary.

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

defendants and OAG as true and accurate and, when applicable, will be used for reporting pursuant
to Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 and/or as deemed
necessary and/or required by the defendants and OAG.

5.

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

and required for its reporting pursuant to Section 111 of the Medicare, Medicaid and SCHIP
Extension Act of 2007.

PEDIGREE INFORMATION

6.

I have been known by (include all alias name(s), former name(s) and/or maiden

name(s)) the following names: Aldaine Heaven. 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 Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007. I
affirm:

a.

b.

c.

my social security number is ;
my date of birth i s ~
my gender is male.
Page2

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 30 of 32

CURRENT MEDICARE ELIGIBILITY
/ Initial and effim1 applicable mrre11/ Medicare eligibili!J s/altts /
8.

As of the date of th.is affidavit:
a.

/
I am not currently receiving nor have I ever received Medicare
coverage and/ or benefits;

OR

b.

/ _ __
I am a Medicare beneficiary and my 1vk dicare number [HIC # ] is
__________. I am awa re of my obligation to reimburse Iviedicare for
payments a nd/ or benefits that I received directly or indirectly from Medicare for

medical expenses for injuries that were the subject of this action. I understand tl1at
r eimbursement directly to Medicare may be made from proceeds I receive from the
settlement of th.is action; and
1.

ii.

Medicare ha s confirmed that no payment is due and owing
from the total proceeds of the above-captioned litigation. (Attach copy of
Medicare's letter); or
/

____

/ ____
IVIcclicarc has confirn1ed that it ,vill accept the total a111ount of
$.______ as full and final reimbursement of all Medicare payments
m ade to date. (Attach copy ofMedicare reimbursement Jetter). In

accordance ,vith the attached j'viedicate letter, J consent to the payment of
that sum directly from the total proceeds of the above-captioned litigation; or

111.

/

____

I am awaiting a Final Demand letter or equivalent

information from Medicare. Upon m y receip t of tl1e necessary
documentation, I ,vill prom.ptly provide it to Assistant Attorney General
J onath an A. Siegel, and to OAG's Medicare Compliance via email at
[e-mail]. I agree that no interest or penalty will be
asscsse<l or <lcmanded by me or on my behalf against tl1e O.t G for any delay
\
in payment pursuant to the terms and conditions of the settlement in the
above-captioned litigation prior to OAG's receipt of any and all necessary
documentation from me issued by Medicare (including but not limited to
Medicare's Final Demand letter or equivalent correspondence) . In
accordance with Medicare's Final Demand letter or its equivalent
corresp ondence, J consent to the payment of that sum directly from the total
proceeds of the above-captioned litigation.

Page 3

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 31 of 32

FUTURE MEDICARE ELIGIBILITY
Initial and q(!lm1 applicable jttlm-e J\!lediccm eligibili(J• status /

/
9.

As of the date of this affidavit:
a.

_J__61__

/
1 do not e>qJect to b e a Medicare recipient within 30 months of the
date of this affidavit and the date of the settlement of the above-captioned litigation.
I affirm that I:
L
I have not applied for social security disability (SSD I);
u.
have not been denied SSDI and anticipating appealing that decision;
111.
am not in the process of appealing or re-filing for SSDT;
1v.
am not 62.5 years or older; and
v.
do not have E nd Stage Renal Disease (a qualifying condition for Medicare);

OR
b.

/ ____
1 am not current a Nfedicare beneficiary. H owever, I anticipate that l
will be ~Iedicare eligible within 30 months of the:: date of this affidavit and the date
of the settlement of the above-captioned litigation and
1.

/

____

I do not require any future treatment for injuries that are the

subject of this action. T he :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; o r
u.

/ ____
I do require future treatment for the injuries that are the
subject of this action. Tn accordance with the attached Medicare Set-Aside
Trnst ("MSA"), l consent to the payment of$ _ ____ , payable to
$_ _____ from the roral proceeds of the above-captioned litigation. I
affirm this sum wilJ be used for the medical expenses relating to tJ1e injuries
of chis action;

OR
c.

/
1.

__

I am currently a .l\tl edicare beneficiary and

/ ____
I do not require any future treatment for injuries that are tl1e
subject o f this personal injury action. T he rcc1uired certification(s) for the
injuries alleged in the Complaint is attached. The attached certification
attests that tbere is no anticipated future treatment required for the injuries
sustained in the within action; or

Page 4

Case 7:14-cv-07854-CS Document 202 Filed 08/14/20 Page 32 of 32

ll.

I do require fu ture treatm ent for the injuries that are the
subject o f this action . In accordance with the attached Medicare Set-Aside
Trust ("MSA"), I consen r ro the payment of$_ _ _ _, payable to
$_ _ _ _ _ from the total proceeds o f the above-captioned litigation. I
a ffmn this sum will be used for the medical expenses relating co rhe injuries
of this action.
/

___

!Note: T hese queries ar c maJc pursuant to Sec tion 111 of the Medicar e, Mc
Extension r\ct of 2007, 42 U.S.C. 1395y(b)].

Sworn to before me tlus
3 \ day ofJuly, 2020.

N~ - - - - . . . .

RACHELL. BARMACK

NOTARY PUBLIC, STATE OF NEV-I YORK
Registration No. 02BA6336558
Qualified In Dutchess County

CocMlission Expires Februa-y 8. 2024

Page 5