SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
-_----------------------------------------------------------------------x
ELIOT SPITZER, as the Attorney General of the State
ofNew York, in the name and on behalf of
the People of the State of New York, and on behalf of
ultimate charitable beneficiaries,
Plaintiff,
- against ALL-PRO TELEMARKETING ASSOCIATES CORP.
and MARK GELVAN,
Defendants .
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'Index No. 6726-02
STIPULATION AND
ORDER OF SETTLEMENT
Albany County Clerk
Document Number 9154085
Rcvd 01/09/2004 2:35:09
PM
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINUgh

WHEREAS, by Verified Complaint dated October 7, 2002, the Attorney General of the
State of New York (the "Attorney General") commenced this action against defendants All-Pro
Telemarketing Associates Corp. ("All-Pro") and its sole officer, director, and shareholder Mark
Gelvan, seeking, inter alia, to permanently enjoin said defendants from soliciting charitable
donations from residents ofthe State ofNew York;
WHEREAS, on or about November 27, 2002, defendants filed a motion pursuant to
CPLR 3211 seeking partial dismissal of the action, as against All-Pro based, in part, upon a
purported statute oflimitations defense, and dismissal ofthe action as against defendant Gelvan;
WHEREAS, on or about December 19, 2002, the Attorney General filed papers in
opposition to defendants' motion to dismiss;
WHEREAS, this Court, by Decision and Order dated February 21, 2003, denied
defendants' motion in its entirety;
WHEREAS, on or about March 19, 2003, defendants filed a notice of appeal of this
Court's Decision and Order dated February 21, 2003, which appeal has not yet been perfected ;

.

 WHEREAS, defendants answered the Attorney General's complaint on or about March 5,
2003, demanding judgment dismissing the action in its entirety; and.
WHEREAS, the Attorney General and defendants agree that it is in their.respective best
interests to compromise, settle and dismiss this action as between them without further litigation,
on the terms set forth below;
IT IS HEREBY STIPULATED AND AGREED, by and among the Attorney General and
defendants, that:
Definitions
The terms "person," "charitable organization," "solicit," "solicitation,"

1.

"contribution," "professional fund raiser," "professional solicitor," "fiend raising counsel," and
"commercial co-vehturer," as used herein, shall have such meanings as are defined in Executive
Law § 171-a or any amendment or successor thereto .
2.

"Benefit," as used herein, shall include, without limitation, gifts, devises, or

bequests in cash or in kind, and the use ofreal or personal property.
3.

"Effective Date," as used herein, shall mean the date the Court "so orders"this

Stipulation . The terms ofthis Stipulation are effective as ofthe Effective Date unless otherwise
provided .

.
.
Stipulations

4.

Neither All-Pro nor Mark Gelvan shall solicit any contributions for any charitable

organization from any person resident in the State of New York, or participate in or control such
solicitations conducted by any other person.

 Neither All-Pro nor Mark Gelvan shall, directly or indirectly (including through

5.

any alter ego such as a family member ofMark Gelvan), act as a professional fund raiser,
professional solicitor, fund raising counsel,

or

commercial co-venturer for the solicitation of

charitable contributions from any person resident in the State of New York, or as a broker of
contracts or agreements contemplating such solicitations.
Defendant Gelvan shall not serve as an officer, director, shareholder, owner,

6.

partner, employee, independent contractor or agent of, nor be otherwise retained or engaged by a
professional fundraiser, professional solicitor, fund raising counsel, or any person that sells or
brokers contracts or agreements contemplating the solicitation of charitable contributions from
any person resident in the State of New York.

, .

Neither All-Pro nor Mark Gelvan shall directly or indirectly acquire any right to

7.

receive any compensation of any kind whatsoever in respect of or derive, directly or indirectly.,
any benefit from the solicitation of contributions for charitable organizations from anyperson
resident in the State of New York or from the sale .or brokering of contracts or agreements
contemplating such solicitations . Notwithstanding the foregoing, All-Pro and Gelvan may

'

receive such compensation or benefit after the Effective Date regarding any contract or
agreement that is in effect as of the Effective Date, so long as neither All-Pro nor Gelvan engage
after the Effective Date in any activity prohibited by paragraphs 4, 5, or 6 of this Stipulation.
8.

Notwithstanding the restrictions set forth in paragraphs 6 and 7, Gelvan may serve

as a paid employee of a professional fund raiser that solicits charitable contributions from
persons resident in the State ofNew York provided that: a) in doing so he does not otherwise

 engage in any activity prohibited by paragraphs 4, .5, 6, or 7 of this Stipulation, and;b) such
employment occurs after three years from the Effective Date.
Within ten days after the Effective Date, defendants shall file such papers as are

9.

necessary to discontinue, with prejudice, the appeal of this Court's Decision and Order dated
February 21, 2003.
10.

Within thirty days after the Effective Date, All-Pro shall provide the Attorney

General with evidence reasonably satisfactory to the Attorney General that All-Pro has cancelled,
effective immediately, all of its contracts with charitable organizations for the solicitation of
persons resident in the State ofNew York, or, in the case of contracts contemplating solicitation
in multiple states, a contract addendum signed by All-Pro and its client indicating that no further
solicitations of persons resident in the State ofNew York shall occur thereunder .
11 .

Within ninety days after the Effective Date, All-Pro shall file with the Attorney

General's Charities Bureau such closing statements as are required by Executive Law § 173-a
and 1.3 N.Y .C .R .R. § 95.5, in the form described therein, along with an affidavit sworn to under
the penalties for perjury that all required closing statements have been filed.
12.

Within ten days after the last of the actions by.defendants required under

Paragraphs 8, 9, 10 ; and 11 of this Stipulation has been completed, the Attorney General shall
file with the Court a stipulation of dismissal with prejudice pursuant to CPLR 3217(a)(2).
13 .

In the event that All-Pro shall hereafter do business in the State of New York

through activities not otherwise prohibited hereunder, it shall do so only after becoming

 authorized to do business as provided in Business Corporation Law Article 13. All-Pro shall
give the Attorney General, attention Charities Bureau, immediate written notice of any such
authorization .
14.

.
By "so ordering" this Stipulation, this Court shall retain jurisdiction in this action

for the purpose of interpreting or carrying out the terms ofthis Stipulation and/or granting such
other and further relief as may be necessary for its enforcement. In addition, if the Court should
find or hold that the defendants have materially breached any portion ofthis Stipulation, t'ie

.

defendants agree that the Attorney General's causes of action against the defendants shall be
revived without right to any defenses.based upon the statute of limitation, latches, estoppel or any
other defenses based on lapses of time or changed circumstances or both.
15 .

This Stipulation constitutes the entire agreement among the parties hereto and

supersedes all prior agreements, negotiations, representations, statements, understandings and
discussions among the Attorney General, defendants, and counsel concerning the subject matter
hereof.
ELIOT SPITZER
Attorney General ofthe
State ofNew York
By:

Timothy B. Lennon
Assistant Attorney General
The Capitol
Albany, New York 12224

 ALL-PRO TELEMARKETING
ASSOCIATES CORP.
By:

k ,ejelvan; President
1-Pro Telemarketing
Associates, Corp .
c/o Copilevitz & Canter, LLC
423 W. Eighth Street
Kansas City, Missouri 64105

Errol Copilevitz, Esq.
Copilevitz & Canter, LLC
423 W . Eighth Street
Kansas City, Missouri 64105
As co-counsel to defendants

MARK GELVAN, for himself in his
personal capacity as defendant

elvan

o Copilevitz & Canter, LLC

423 W. Eighth Street
Kansas City, Missouri 64105

_z/03

rian D. Casey, Esq.
Bouck, Holloway, Kiernan~& Casey
107 Columbia Street
Albany, New York 12210
As co-counsel to defendants

So ordered,

Hon. Thomas W. Keegan
J.S.C.
ENTER