Case ast Doc 263 Filed 10/14/14 Entered 10/14/14 15:36:10. (Jointly Administered)

Transcription

1 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF NEW YORK x In re: Chapter 11 LONG BEACH MEDICAL CENTER, Case No (AST) et al., 1 Debtors x (Jointly Administered) STIPULATION AND AGREED ORDER MODIFYING THE AUTOMATIC STAY AND LIMITING RECOVERY TO PROCEEDS OF AVAILABLE INSURANCE (Linda Gregory, Claim Nos. 48 & 49) THIS CAUSE coming before the Court on the agreement between Long Beach Medical Center, and Long Beach Memorial Nursing Home, Inc. dba The Komanoff Center for Geriatric and Rehabilitative Medicine the above-captioned debtors and debtors-in-possession (collectively, the Debtors ) and Linda Gregory (the Claimant ), to modify the automatic stay in connection with the Actions (as defined below) against the Debtors, but limiting all recovery against the Debtors solely to any available insurance coverage; and the Court being fully advised of the following agreement between the parties: A. On February 19, 2014 (the Petition Date ), the Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code (the Chapter 11 Cases ). B. Prior to the Petition Date, the Claimant commenced two separate actions against the Debtors based on allegations of medical malpractice in the Supreme Court of the State of New York, County of Nassau, styled as (i) Linda Gregory v. Jay W. Eneman, M.D., Individually, Jay W. Eneman, M.D., P.C., Jay W. Eneman, M.D., P.C., D/B/A Bridge Rehabilitation & 1 The debtors in these chapter 11 cases, along with the last four digits of each debtor s federal tax identification number include: Long Beach Medical Center (5084) and Long Beach Memorial Nursing Home, Inc. dba The Komanoff Center for Geriatric and Rehabilitative Medicine (3422).

2 Musculoskeletal Care and Long Beach Medical Center, Index No (the LBMC Action ) and (ii) Linda Gregory v. Long Beach Memorial Nursing Home, Inc., and Long Beach Memorial Nursing Home, Inc. D/B/A The Komanoff Center for Geriatric and Rehabilitative Medicine and Long Beach Medical Center the Nursing Home Action and collectively with the LBMC Action, the Actions ), Index No As used herein, the term Actions shall also include the consolidation of the "LBMC Action" and the "Nursing Home Action". C. Upon the commencement of the Chapter 11 Cases, the Actions were stayed by operation of section 362(a) of the Bankruptcy Code. D. On or about March 12, 2014, the Claimant filed a proof of claim in the Chapter 11 Cases in the amount of $ 3,000, in connection with the allegations raised in the LBMC Action, which has been assigned Claim No. 48 in the claims register maintained in the Chapter 11 Cases (the Claim 48 ). On that same date, Claimant also filed a proof of claim in the amount of $3,000, in connection with the allegations raised in the Nursing Home Action, which has been assigned Claim No. 49 ( Claim 49 and collectively with Claim 48, the Claims ) in the claims register maintained in the Chapter 11 Cases. E. In connection with the Actions, the Claimant seeks relief from the automatic stay for the sole purpose of proceeding with the Actions and liquidating the Claims. Claimant has agreed to limit any recovery that may be obtained against the Debtors in connection with the Actions solely to the proceeds of any available insurance coverage and waive the Claims filed against the Debtors bankruptcy estates. 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

3 2. Effective as of the date this Stipulation is so-ordered by the Court, the automatic stay imposed in the Chapter 11 Cases pursuant to section 362(a) of the Bankruptcy Code is hereby modified for the sole purpose of allowing each of the Actions to proceed to judgment or settlement in a forum other than this Court; provided, however, that (a) any recovery by the Claimant in the Actions against the Debtors shall be limited solely to any available insurance coverage of the Debtors; (b) Claimant (i) withdraws with prejudice any and all claims filed against the Debtors bankruptcy estates in these Chapter 11 proceedings, including, without limitation, Claim 48 and Claim 49, and (ii) waives and releases any and all claims solely as against each of the Debtors bankruptcy estates; provided however, this shall in no way be deemed or construed as a waiver and/or release of the Claimant s rights to pursue and recover damages awarded in connection with the Actions, whether jointly or severally, from any applicable insurance policies maintained by the Debtors; (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 either the LBMC Action or the Nursing Home Action. Notwithstanding the foregoing; the Debtors shall cooperate with Claimant to the extent necessary for the prosecution of the Claimant s State Court Actions and as may be requested by the Debtors insurer(s), provided however, that the payment of any costs incurred by Claimant in connection with requests made to the Debtors shall be the sole and exclusive responsibility of Claimant. 3. 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 Claimant, nor his or her agents, attorneys or 3

4 representatives shall take any action to execute, enforce or collect on any such judgment against the Debtors or their estates. Notwithstanding the foregoing, the provisions of this paragraph shall in no way be deemed or construed to prevent the Claimant from seeking execution, enforcement, or collection of any judgment that may be obtained against the Debtor(s) from the carriers providing insurance coverage to the Debtor(s). 4. This Stipulation and Agreed 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. 5. This Stipulation and Agreed 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. 6. Each party and signatory to this Stipulation and Agreed Order represents and warrants to each other party hereto that such party or signatory has full power, authority and legal right and has obtained all approvals and consents necessary to execute, deliver and perform all actions required under this Stipulation. 7. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Stipulation and Agreed Order. 8. This Stipulation and Agreed Order is solely to allow the Claimant to proceed with the Actions in the forum where filed and to liquidate the Claims against the Debtors (but limiting all recovery against the Debtors solely to any available insurance coverage) and this Stipulation and Agreed Order shall not be construed as an admission of liability by the Debtors or their estates in connection with the Claims. 4

5 AGREED TO IN FORM AND SUBSTANCE: GARFUNKEL WILD, P.C. 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) DAVID W. MCCARTHY By: /s/ David M. McCarthy David W. McCarthy 100 Crossways Park West St. 201 Tel: (516) Fax: (516) Counsel to the Claimant Counsel for the Debtors and Debtors in Possession SO ORDERED: Dated: October 14, 2014 Central Islip, New York Alan S. Trust United States Bankruptcy Judge 5