rdd Doc 1181 Filed 08/10/15 Entered 08/10/15 11:09:58 Main Document Pg 1 of 7

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1 Pg 1 of 7 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: Chapter 11 SOUND SHORE MEDICAL CENTER OF WESTCHESTER, et al. Debtors x Case No (RDD) STIPULATION AND ORDER SETTLING AND ALLOWING NEGLIGENCE CLAIM AS A GENERAL UNSECURED CLAIM AND MODIFYING THE AUTOMATIC STAY AND LIMITING (CLAIMANTS FRANCISCO AND THALIANA FRENCIQUI, CLAIM NOS. 811 AND 814) IT IS HEREBY STIPULATED, by and among Sound Shore Medical Center of Westchester and its affiliated debtor entities (collectively, the Debtors ), as debtors and debtorsin-possession in the above-captioned case, Francisco Frenciqui and Thaliana Frenciqui (each a Claimant and collectively, the Claimants ) acting by and through their respective counsel, as follows: A. On May 29, 2013 (the Petition Date ), the Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code (the Chapter 11 Cases ). Pursuant to Sections 1107 and 1108 of the Bankruptcy Code, the Debtors are continuing to operate their businesses and manage their affairs as debtors-in-possession. No trustee or examiner has been appointed in these cases. On June 10, 2013, the United States Trustee for the Southern District of New York (the U.S. Trustee ) appointed an official committee of unsecured creditors (the Committee ). B. Prior to the Petition Date, the Claimants had sought to commence an action as against the Debtors, in the Supreme Court of the State of New York based on allegations of negligence and/or medical malpractice as against the Debtors and certain Medical Professionals (the Proposed Action ).

2 Pg 2 of 7 C. Upon the commencement of the Chapter 11 Cases, the Claimants were stayed from commencing the Proposed Action by operation of section 362(a) of the Bankruptcy Code. D. On September 16, 2013, the Claimant, Thaliana Frenciqui, filed the following proofs of claim in the Chapter 11 Cases, for unliquidated amounts, in connection with the alleged negligence and/or malpractice: (a) (b) (c) Claim No. 811 ( Claim 811 ) as against the estate of The Mount Vernon Hospital, Inc.; Claim No. 812 ( Claim 812 ) as against the estate of Sound Shore Medical Center of Westchester; and Claim No. 813 ( Claim 813 ) as against the estate of Sound Shore Health System Inc. E. On September 16, 2013, the Claimant, Francisco Frenciqui, filed the following proofs of claim in the Chapter 11 Cases, for unliquidated amounts, in connection with the alleged negligence and/or malpractice: (a) (b) (c) Claim No. 809 ( Claim 809 ) as against the estate of Sound Shore Health System, Inc.; Claim No. 814 ( Claim 814 ) as against the estate of The Mount Vernon Hospital, Inc.; Claim No. 815 ( Claim 815 ) as against the estate of Sound Shore Medical Center of Westchester. F. Pursuant to an order dated October 25, 2013 [Docket No. 402] (the Mediation Order ), 1 the Court authorized the Debtors to, among other things, establish uniform procedures for the liquidation of all malpractice and/or negligence claims filed against the Debtors and requiring certain claimants to participate in a claims resolution process (the Mediation ). The Mediation Order further provided that pursuant to the Stay Modification Option, the Debtors could enter into and file stipulations with the Court modifying the automatic stay for the sole 1 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Order. 2

3 Pg 3 of 7 purpose of permitting the Claimants to liquidate their claims in a forum outside of this Court, but limiting all recovery solely to any available insurance coverage. G. Pursuant to the Mediation Order, the parties subsequently participated, in good faith, in the Mediation and the Claimants reached a Settlement with the Debtors as to the allowance and treatment of their respective claims (collectively referred to herein as the Claims ). H. On November 6, 2014, the Court entered its Findings of Fact, Conclusions of Law and Order Confirming First Amended Plan of Liquidation Under Chapter 11 of the Bankruptcy Code of Sound Shore Medical Center of Westchester, et al. (the Plan ) [Docket No. 908]. I. Among other things, the Confirmation Order enjoined all persons from commencing or continuing in any manner, any claims or causes of action as against the Debtors, provided, however, nothing in the injunction precludes the holder of a Claim against the Debtors from pursing any applicable insurance after the Cases are closed, from seeking discovery in actions against third parties or from pursuing third-party insurance that does not cover Claims against the Debtors. J. In accordance with the Mediation Order, the Debtors have agreed to modify the automatic stay and, except as otherwise set forth herein, solely to permit the Claimants to liquidate the Claims but limiting all recovery solely to any available insurance coverage, it being understood that the Debtors make no representation as to the availability, applicability or amount of any such insurance applicable to the Proposed Action. K. Claimants have further agreed that except as to the allowed claim granted pursuant to this stipulation, all Claims filed by the Claimants against the Debtors estates, including without limitation Claims 809, 811, 812, 813, 814 and 815 shall be deemed withdrawn 3

4 Pg 4 of 7 and Claimants shall not file any other or additional claims against any of the Debtors or any Medical Professionals with respect to any recovery or judgment that may be obtained in connection with the Proposed Action. IT IS THEREFORE STIPULATED, AGREED AND ORDERED as follows: 1. The foregoing recitals are hereby fully incorporated into and made an express part of this Stipulation and Agreed Order. 2. Effective as of the date this Stipulation and Order is So Ordered by the Bankruptcy Court (the Effective Date ), the Claimant, Fransisco Frenciqui shall have an allowed, general, unsecured pre-petition claim in the amount of $400,000 (the Allowed Claim ) as against the estate of The Mount Vernon Hospital, Inc.. 3. On and after the Effective Date of this Stipulation and Order, GCG, Inc., the Claims Agent appointed in these Chapter 11 Cases, is authorized to reflect the allowance of the Allowed Claim as described in paragraph 2 above on the official claims register maintained in these Chapter 11 Cases. 4. The recovery of the Claimant on account of the Allowed Claim shall be limited to the distribution provided on account of such claims under any plan of liquidation filed by the Debtors and the Claimant hereby releases the Debtors and the other Medical Professionals from any and all claims or causes of action, whether direct or indirect, arising out of, or related to, the Proposed Action, the Claims, Allowed Claim or otherwise. 5. Effective as of the date hereof, the automatic stay imposed in the Chapter 11 Cases pursuant to section 362(a) of the Bankruptcy Code, as extended by the Mediation Order, and the Plan Injunction are hereby modified for the sole purpose of allowing the Claimants to proceed with the Proposed Action to judgment or settlement in a forum other than this Court; provided, however, that (a) any recovery by the Claimants as against the Debtors shall be 4

5 Pg 5 of 7 limited solely to the Allowed Claim; (b) other than as set forth herein, the Claimants (i) withdraw with prejudice any and all claims filed against the Debtors or the Medical Professionals in these Chapter 11 proceedings, including without limitation Claims 809, 811, 812, 813, 814 and 815, and (ii) shall not file any other or additional claims against the Debtors and/or any Medical Professionals in these Chapter 11 proceedings; (c) each party shall bear its own legal fees and defense costs and other related fees and expenses in connection with any such litigation; and (d) no Debtor shall be required to participate in any way in the Proposed Action. 6. Except as otherwise set forth herein, the provisions of section 362 of the Bankruptcy Code, including, without limitation, those provisions prohibiting execution, enforcement, or collection of any judgment that may be obtained against the Debtors shall remain in full force and effect, and neither the Claimants, nor their agents, attorneys or representatives shall take any action to execute, enforce or collect on any such judgment against the Debtors or their estates. 7. This Stipulation and Order may be executed in multiple counterparts, each of which shall be deemed an original, including any facsimile or PDF counterparts, and which together shall constitute one and the same agreement. 8. This Stipulation and Order constitutes the entire agreement between the parties and may not be amended or modified in any manner except by a writing signed by each of the parties or their counsel and approved by the Court. 9. Each party and signatory to this Stipulation and Order represents and warrants to each other party hereto that such party or signatory has full power, authority and legal right and 5

6 Pg 6 of 7 has obtained all approvals and consents necessary to execute, deliver and perform all actions required under this Stipulation and Order. 10. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Stipulation and Order. 11. Nothing contained in this Stipulation and Order shall be construed as an admission of liability by the Debtors or their estates in connection with the Claims and/or Allowed Claim. 6

7 Pg 7 of 7 AGREED TO IN FORM AND SUBSTANCE: Dated: Great Neck, New York July 30, 2015 GARFUNKEL WILD, P.C. Counsel for the Debtors By: /s/ Afsheen A. Shah Burton S. Weston Afsheen A. Shah Adam T. Berkowitz 111 Great Neck Road Great Neck, NY Telephone: (516) Facsimile: (516) Dated: New York, New York July 30, 2015 FITZGERALD & FITZGERALD, P.C. Attorneys for Claimants By: /s/ John M. Daly John M. Daly 538 Riverdale Avenue Yonkers, NY Telephone: (914) SO ORDERED: Dated: White Plains, New York August 10, 2015 /s/robert D. Drain Honorable Robert D. Drain United States Bankruptcy Judge 7