throbber
SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`______________________________________________________________________x
`LAURA BURDICK-SHERMAN and MARK SHERMAN
`
`-against-
`
`Plaintiffs,
`
`KAREN L. HIOTIS, M.D., FARBOD DARVISHIAN,
`M.D., SARA D. SHAYLOR, M.D., AMY D. TIERSTEN,
`M.D., NYU BREAST AND SURGICAL ONCOLOGY
`ASSOCIATES, NYU CANCER INSTITUTE, NYU
`CLINICAL CANCER CENTER, NYU IMAGING, INC.,
`NYU LANGIONE MEDICAL CENTER, TISCH
`HOSPITAL, NYU HOSPITALS CENTER and NYU
`MEDICAL CENTER,
`
`ATT°RNEY’5
`AFFIRMATION
`
`Index N°- 805052/2013
`
`Defendants.
`____________________________________________________________________-_x
`DAVID A. KATES, ESQ., an attorney admitted to practice before the Courts of this
`
`State affirms the truth of the following under the penalty of perjury:
`
`I am a Partner with the law offices of SCHWARTZ GOLDSTONE & CAMPISI, LLP,
`
`attorneys for the petitioner herein, and as such I am fully familiar with the facts and
`
`circumstances of this action» based upon a review of the case file and the investigation
`
`materials contained therein.
`
`I make this Affirmation in support of the Petition dated August
`
`5, 2016, brought about by MARK SHERMAN, as the Administrator of the Estate of LAURA
`
`BURDICK-SHERMAN, deceased, and in support of the proposed Order of Compromise
`
`annexed hereto.
`
`This case sounding in medical malpractice arises from plaintiff-decedent LAURA
`
`BURDICK-SHERMAN, being diagnosed with breast cancer in early November, 2011.
`
`After a prolonged and painful course of palliative treatment LAURA BURDICK-SHERMAN
`
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`died on August 27, 2015. As a result of the defendants’ acts/omissions of medical
`
`malpractice and negligence, LAURA BURDICK-SHERMAN suffered the following injuries:
`
`METASTATIC BREAST CANCER OF THE RIGHT BREAST;
`BILATERAL MASTECTOMY
`AFFECTED VISIONIDRY EYES;
`DIARRHEA;
`FATIGUE;
`RIGHT DUCT EXCISION;
`ASPIRATION BIOPSY;
`METASTASES TO THE BRAIN, BONE, LUNG, LIVER;
`BRAIN RADIATION THERAPY;
`CHEMOTHERAPY;
`SKIN RASHES;
`AFFECTED HEARING;
`HAIR LOSS;
`POOR APPETITE;
`WEIGHT LOSS;
`NAUSEA;
`MEDIPORT PLACEMENT;
`PAIN AND SUFFERING;
`LOSS OF CHANCE TO PREVENT SPREAD OF CANCER;
`LOSS OF BENEFIT FROM EARLIER DIAGNOSIS OF CANCER;
`WRONGFUL DEATH.
`
`Prior to her death in 2015, LAURA BURDICK SHERMAN retained the law firm of
`
`Schwartz, Goldstone & Campisi LLC, to represent her in the above-captioned medical
`
`malpractice case. Afterthe plaintiff-decedent passed away and upon being issued Letters
`
`of Administration on December 3, 2015, MARK SHERMAN retained the law office of
`
`Schwartz, Goldstone & Campisi, LLP, as attorneys, to prosecute the claims of medical
`
`malpractice and wrongful death on behalf of LAURA BURDICK-SHERMAN’s estate. On
`
`December 3, 2015 Letters of Administration were issued. Annexed hereto and marked as
`
`Exhibit “C” is a copy of the retainer.
`
`After decedent passed away and upon being issued Letters of Administration on
`
`December 3, 2015, Mark Sherman retained the law office of Schwartz, Goldstone &
`
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`Campisi, LLP, as attorneys, to prosecute the claims of medical malpractice and wrongful
`
`death on behalf of LAURA BURDlCK—SHERMAN’S estate. Annexed hereto and marked
`
`as Exhibit “C” is a copy of the retainer. A retainer statement was filed with the Office of
`
`Court Administration, and OCA retainer number 3925444 was issued.
`
`Prior to decedent’s death, on or about February 13, 2013, she commenced the
`
`instant action in the Supreme Court, New York County, by the filing of a summons and
`
`complaint.
`
`Issue was joined on or about June 6, 2013, by service of their Answers on
`
`behalf of the defendants, KAREN L. HIOTIS, M.D., FARBOD DARVISHIAN, M.D., SARA
`
`D. SHAYLOR, M.D., AMY D. TIERSTEN, M.D., NYU CANCER INSTITUTE, NYU
`
`CLINICAL CANCER CENTER, NYU LANGIONE MEDICAL CENTER, TISCH HOSPITAL,
`
`NYU HOSPITALS CENTER and NYU MEDICAL CENTER. Defendants, NYU BREAST
`
`AND SURGICAL ONCOLOGY ASSOCIATES & NYU IMAGING, |NC., did not appear nor
`
`answer. After decedent’s death in 2015, plaintiff filed a supplemental summons &
`
`amended complaint to include a wrongful death claim as part of the medical malpractice
`
`action. Following extensive discovery, the matter was placed on the trial calendar.
`
`During the trial of this action and after extensive discussions between the parties, a
`
`High—Low Settlement Agreement was reached wherein if the jury returned a verd lot for the
`
`defendant(s) or a verdict for the plaintiff in a total amount less than $390,000.00, then the
`
`case will be settled for $390,000.00.
`
`If the jury returns a verdict for the plaintiff in a total
`
`amount
`
`in excess of, or equal to, $1,520,000.00,
`
`then the case will be settled for
`
`$1,520,000.00. If the jury returns a verdict for the plaintiff for a total amount between
`
`$390,000 and $1,520,000 then the settlement will be for the total amount thejury awarded
`
`between $390,000 and $1 ,520,000. Plaintiff/Administrator, Mark Sherman was advised and
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`understand that said settlement represents an entire recovery from these defendants and
`
`that no further claims or actions can be brought against the aforementioned parties.
`
`Annexed hereto and marked as Exhibit “D” is a copy of the High-Low Settlement
`
`Agreement.
`
`Your Affirmant believes that it is in the best interests of the distributees and the
`
`estate of the decedent and those interested therein to accept the settlements so offered
`
`and that this is the best resolution and the largest amount that could have been obtained.
`
`The instant petition is submitted to the Supreme Court, New York County, underthe
`
`provision of EPTL §5—4.6. The Court is respectfully requested to allow petitionerto release
`
`defendants, to order defendants to pay all sums payable under the Order of Compromise,
`
`pursuant to the time frame required by CPLR §5003—a (or otherwise agreed upon), and
`
`allow for collection of the settlement funds to be held in an interest bearing account forthe
`
`benefits of the distribute, and payout creditors,
`
`lienholders, and attorneys fees and
`
`disbursements. Upon collection of the settlement funds, the attorneys shall pay all due and
`
`payable expenses, including liens, if any, approved by the Supreme Court.
`
`The attorneys for the Administrator shall continue to serve as attorneys for the
`
`estate until the entry of a final decree in the Surrogate’s Court.
`
`In the prosecution of this action, the attorneys have incurred the following expenses,
`
`in the sum of $179,292.00:
`
`The disbursement breakdown on this case is as follows:
`
`Court Filing Fees
`Deposition Costs
`Medical Records
`Cal Watching
`Service of Process
`
`445
`1,585.75
`3,176.18
`85.75
`929
`
`Expert Record Review
`
`12,437.50
`
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`Trial Expenses
`Expert Witness Fees
`Subpoena Fees
`Film Reproduction
`Fed Ex
`
`Printing/Reproduction
`Postage
`TOTAL:
`
`23,783.60
`46,733.70
`195
`1,488.46
`539
`
`867.80
`122.59
`$92,389.33
`
`Petitioner has reviewed the list of legal disbursements and acknowledges that all are
`
`justified and should be reimbursed.
`
`The undersigned respectfully requested that the expenses in the sum of $92,389.33
`
`are returned to counsel as reimbursement of their actual expenses.
`
`In accordance with the
`
`terms of the retainer herein, under which the attorneys are to receive a fee under the
`medical malpractice sliding scale contingency fee, pending Court approval.
`It
`is
`
`respectfully requested that the Court approve a fee as follows: That the from the gross
`
`settlement of THREE HUNDRED NINETY THOUSAND AND 00/100 ($390,000.00)
`
`DOLLARS the amount of ONE HUNDRED SEVENTY NINE THOUSAND TWO HUNDRED
`
`NINETY TWO and 00/100 ($179,292.00) be allowed; disbursements in the sum of
`
`$92,389.33 which together with attorneys fees, would amount to a total compensation of
`
`$179,292.00.
`
`CMS-Medicare will not be asserting a Medicare lien/claim against the proceeds of
`
`the instant lawsuit. A copy of said letter, dated December 10, 2015, is annexed hereto as
`
`Exhibit “E. At this juncture, I am not aware of any other liens, claims, or assignments
`
`against the proceeds of the instant case.
`
`Decedent’s funeral bill was paid by Administrator, MARK SHERMAN, in the amount
`
`of $6,508.00 and reimbursement by Administrator is not sought. Funeral bill is annexed as
`
`Exhibit “F” in Surrogate Petition attached hereto.
`
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`Your Affirmant respectfully requests that the balance of said settlement, in the sum
`
`of TWO HUNDRED TEN THOUSAND SEVEN HUNDRED EIGHT and 99/00
`
`($210,708.00), be held in the interest bearing escrow account, until the Surrogate’s Court
`
`approves the Compromise Order, and enters a Final Decree.
`
`A Petition was submitted simultaneously to Surrogate’s Court, County of New York,
`
`File No.: 2015-4395, for approval of a compromise, for allocation and distribution in the
`
`Surrogate’s Court on behalf of the decedent’s estate, and for the final settlement of the
`
`account of the Administrator. A copy of said duly executed Petition to Surrogate’s Court,
`
`dated March 10, 2016, is annexed hereto as Exhibit “G”.
`
`It is respectfully requested that Petitioner, MARK SHERMAN, as the Administrator of
`
`the Estate of LAURA BURDICK-SHERMAN, deceased, be authorized to deliver releases
`
`and any and all papers necessary to effectuate such settlement and collect such monies
`
`herein, and petitioner’s attorneys be hereby authorized to deliver Stipulations of
`
`Discontinuance of the above-entitled action to said Defendants.
`
`No previous application for the relief sought herein has been made to any court or
`
`judge.
`
`WHEREFORE, your Affirmant prays the Court to make and enter an Order herein
`
`for the relief sought.
`
`Dated:NewYork, NewYork
`
`August 5, 2016
`
`V
`
` A
`
`
`
`DAVID A. KATES, ESQ.
`
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`______________________________________________________________________x
`LAURA BURDICK-SHERMAN and MARK SHERMAN
`
`-against-
`
`Plaintiffs,
`
`KAREN L. HIOTIS, M.D., FARBOD DARVISHIAN,
`M.D., SARA D. SHAYLOR, M.D., AMY D. TIERSTEN,
`M.D., NYU BREAST AND SURGICAL ONCOLOGY
`ASSOCIATES, NYU CANCER INSTITUTE, NYU
`CLINICAL CANCER CENTER, NYU IMAGING, INC.,
`NYU LANGIONE MEDICAL CENTER, TISCH
`HOSPITAL, NYU HOSPITALS CENTER and NYU
`MEDICAL CENTER,
`
`Defendants.
`____________________________________________________________________-_x
`STATE OF NEW YORK )
`S.S.
`COUNTY OF NEW YORK )
`
`PETITION
`
`'"°'°X#= 3050629013
`
`MARK SHERMAN, being duly sworn deposes and says:
`
`I am the husband of the above named decedent and presently reside at 1 River
`
`Place, Apt. 2214, New York, NY 10036.
`
`My late wife, LAURA BURDICK-SHERMAN, died on August 27, 2015, being a
`
`resident of 1 River Place, Apt. 2214, New York, NY 10036. The decedent at the time of
`
`her death was 68 years of age, having been born on— 1947. Annexed hereto and
`
`marked as Exhibit “A” is a copy of the decedent’s Certificate of Death. At the time of her
`
`death, my wife and I had one daughter, Sabrina Sherman (d/o/b: SNQQ1).
`
`On December 3, 2015, Letters of Administration were issued to petitioner MARK
`
`SHERMAN by the Surrogates Court of New York County. Said Letters were of limited
`
`authority and restrained your petitioner from collecting any assets derived from a personal
`
`injury action until further order of the Surrogate’s Court. To date, said Letters have not
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`been revoked and are presently in full force and effect. Annexed hereto and marked as
`
`Exhibit “B” is a copy of the Letters of Administration.
`
`The circumstances giving rise to this claim are as follows:
`
`In early November 2011, my wife, LAURA BURDICK-SHERMAN, was diagnosed
`
`with breast cancer. After a prolonged and painful course of palliative treatment my wife
`
`died on August 27, 2015. As a result of the defendants’ acts/omissions of medical
`
`malpractice and negligence, my wife suffered the following injuries:
`
`METASTATIC BREAST CANCER OF THE RIGHT BREAST;
`BILATERAL MASTECTOMY
`AFFECTED VISION/DRY EYES;
`DIARRHEA;
`FATIGUE;
`RIGHT DUCT EXCISION;
`ASPIRATION BIOPSY;
`METASTASES TO THE BRAIN, BONE, LUNG, LIVER;
`BRAIN RADIATION THERAPY;
`CHEMOTHERAPY;
`SKIN RASHES;
`AFFECTED HEARING;
`HAIR LOSS;
`POOR APPETITE;
`WEIGHT LOSS;
`NAUSEA;
`MEDIPORT PLACEMENT;
`PAIN AND SUFFERING;
`LOSS OF CHANCE TO PREVENT SPREAD OF CANCER;
`LOSS OF BENEFIT FROM EARLIER DIAGNOSIS OF CANCER;
`WRONGFUL DEATH.
`
`Prior to her death in 2015, on April 26, 2012, my wife retained the law firm of
`
`Schwartz, Goldstone & Campisi LLC, to represent her in the above-captioned medical
`
`malpractice case. After my wife passed away and upon being issued Letters of
`
`Administration on December 3, 2015, l retained the law office of Schwartz, Goldstone &
`
`Campisi, LLP, as attorneys, to prosecute the claims of medical malpractice and wrongful
`
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`

`

`death on behalf of my wife’s estate. Annexed hereto and marked as Exhibit “C” is a copy
`
`of the retainer.
`
`Priorto my wife’s death, on or about February 13, 2013, she commenced the instant
`
`action in the Supreme Court, New York County, by the filing of a summons and complaint.
`
`Issue was joined on or about June 6, 2013, by service of their Answers on behalf of the
`
`defendants, KAREN L. HIOTIS, M.D., FARBOD DARVISHIAN, M.D., SARA D. SHAYLOR,
`
`M.D., AMY D. TIERSTEN, M.D., NYU CANCER INSTITUTE, NYU CLINICAL CANCER
`
`CENTER, NYU LANGIONE MEDICAL CENTER, TISCH HOSPITAL, NYU HOSPITALS
`
`CENTER and NYU MEDICAL CENTER. Defendants, NYU BREAST AND SURGICAL
`
`ONCOLOGY ASSOCIATES & NYU IMAGING, lNC., did not appear nor answer. After my
`wife’s death in 2015, plaintiff filed a supplemental summons & amended complaint to
`
`include a wrongful death claim as part of the medical malpractice action. Following
`
`extensive discovery, the matter was placed on the trial calendar.
`
`During the trial of this action and after extensive discussions between the parties, a
`
`High-Low Settlement Agreement was reached wherein if the jury returned a verdict forthe
`
`defendant(s) or a verdict forthe plaintiff in a total amount less than $390,000.00, then the
`
`case will be settled for $390,000.00.
`
`If the jury returns a verdict for the plaintiff in a total
`
`amount in excess of, or equal to, $1,520,000.00, then the case will be settled for
`
`$1,520,000.00. If the jury returns a verdict for the plaintiff for a total amount between
`
`$390,000 and $1,520,000 then the settlement will be forthe total amount the jury awarded
`
`between $390,000 and $1,520,000.
`
`I have been advised and understand that said
`
`settlement represents an entire recovery from these defendants and that no further claims
`
`90f 50
`9 of 50
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`

`

`or actions can be brought against the aforementioned parties. Annexed hereto and
`
`marked as Exhibit “D” is a copy of the High-Low Settlement Agreement.
`
`Your Petitioner believes that it is in the best interests of the distributees and the
`
`estate of the decedent and those interested therein to accept the settlement so offered and
`
`that this is the best resolution and the largest amount that could have been obtained.
`
`In view of the results achieved and the extensive work, petitioner would request that
`
`the Court approve an attorneys fee as follows: Out of the gross settlement of THREE
`
`HUNDRED NINETY THOUSAND AND 00/100 ($390,000.00) DOLLARS a fee based on
`
`the medical malpractice sliding scale contingency in the amount of EIGHTY SIX
`
`THOUSAND NINE HUNDRED TWO and 67/100 ($86,902.67) be allowed; disbursements
`
`in the sum of $ 92,389.33, which together with attorneys fees would amount to a total
`
`compensation of $179,292.00. Petitioner has reviewed the list of legal disbursements and
`
`acknowledges that all are justified and should be reimbursed.
`
`My attorneys have been informed,
`
`in writing, that CMS-Medicare will not be
`
`asserting a Medicare lien/claim against the proceeds of the instant lawsuit. A copy of said
`
`letter, dated December 10, 2015, is annexed hereto as Exhibit “E”. At thisjuncture, I am
`
`not aware of any other liens, claims, or assignments against the proceeds of the instant
`
`case. My wife was never a Medicaid recipient.
`
`The instant petition is submitted to the Supreme Court, New York County, underthe
`
`provision of EPTL §5-4.6. The Supreme Court has been requested to allow petitioner to
`
`release defendants, to order defendants to pay all sums payable under the Order of
`
`Compromise, pursuant to the time frame required by CPLR §5003-a (or othen/vise agreed
`
`upon), and allow for collection of the settlement funds to be held in an interest bearing
`
`10 of 50
`10 of 50
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`

`

`account for the benefits of the distributees, and payout creditors, Iienholders, and attorneys
`
`fees and disbursements. Upon collection of the settlement funds, the attorneys shall pay
`
`all due and payable expenses, including liens, if any, approved by the Supreme Court.
`
`Decedent’s funeral bill was paid by Plaintiff/Administrator, MARK SHERMAN in the
`
`amount of $6,508.00 and reimbursement is not being sought from the proceeds of the
`
`case. Annexed hereto as Exhibit “F” is copy of funeral bill.
`
`Petitioner respectfully requests that the balance of said settlement, in the sum of
`
`TWO HUNDRED TEN THOUSAND SEVEN HUNDRED SEVEN and 99/00 ($210,707.99),
`
`be held in the interest bearing escrow account, until the Surrogate’s Court approves the
`
`Compromise Order, and enters a Final Decree.
`
`A Petition has been submitted simultaneously to Surrogate’s Court, County of New
`
`York, File No.: 2015-4395, for approval of a compromise, for allocation and distribution in
`
`the Surrogate’s Court on behalf of the decedent’s estate, and for the final settlement of the
`
`account of the Administrator. A copy of said duly executed Petition to Surrogate’s Court,
`
`dated August 11, 2016, is annexed hereto as Exhibit “G”.
`
`The attorneys for the Administrator shall continue to serve as attorneys for the
`
`estate until the entry of a final decree in the Surrogate’s Court.
`
`Petitioner has not become interested in the within matter at the instance of the
`
`defendants or anyone acting on defendants behalf, directly or indirectly.
`
`No previous application for the relief sought herein has been made to any court or
`
`judge.
`
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`

`WHEREFORE,
`
`I respectfully pray that the Court enter an Order approving and
`
`authorizing the Compromise as herein set forth and further pray for such other relief as the
`
` I
`
`~
`'
`‘
`HERMAN
`
`Court may deem fitting and proper.
`
`Dated:August 11, 2016
`
`STATE OF NEW YORK )
`
`COUNTY oFl\\iZJ4‘JOW;)
`
`): ss
`
`On the
`
`ti
`day of
`
`,
`Q7 , 2016, before me personally came MARK
`
`SHERMAN, to me known, and known to be the individual described in, and who executed
`
`the foregoing petition, and duly acknowledged to me that(she executed the same.
`
`
`
`
`
`No" zr‘\1-10o\(()9rk County
`Cert. Filed in _eW 0.
`Commission Expires on 04-01-2 17
`
`
`
`
`
`12 of 50
`12 of 50
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`EX!-QEEIT “A”
`
`13 of 50
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`EMH I BIT “B”
`
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`
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`Surrogate’s Court of the State of New York
`New York county
`
`Certificateaif 173182
`
`FiIe#: 2015-4395
`
`Certificate of Appointment of Administrator
`
`To all to whom these presents shaII come or may concern,
`
`
`
`gate’s Court in and for the County of New York, do find that
`,
`T
`__
`_
`__
`_
`.
`i on December 3, 2015 by said court, LETTERS OF LIMITED ADMINISTRATION on the goods, chattels and
` credits of Laura Budric,I_(_-.Sherr_nan, deceased, Iate of the County of New York were granted unto the
`‘x;fid.!.JgI.a
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`7” .”Budrick-Shannan
`akat Laura Budrick Sherman
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`_‘ Bgte ofDeath:_ 93? 1‘August 27, 2015
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`"i
`it
`
`,.
`
`,
`
`: December 4, 2015
`' New York, New York
`
`
`
`
`
`
`
`
`‘ -
`---
`-‘
`__
`'s
`1.':._
`‘I
`-
`‘V
`
`IN TESTIMONY. wHERi§i§i=; trré
`or
`County Surrogate's Court has been ‘afflxed "
`
`WITNESS, Honorablgfffiita
`York County Surrogate .
`
`
`
`
`
`Diana Sanabria, Chief Clerk
`New York County Surrogate's Court
`This Certificate is Not Valid Without the Raised Seal ofthe New York County Surrogates Court
`
`and expires -six months from the issue date of this certificate.
`
`
`
`16 of 50
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`EXHIBIT “C”
`
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`RETAINER
`
`MEDICAL MALPRACTICE
`
`(Subject to Investigation)
`
`SCHWARTZ GOLDSTONE & CAMPISI, LLP
`90 Broad Street
`
`New York, New York 10004
`
`and
`
`
`
`, herelgy retains you to
`I91»-‘=55 . MY “H
`l V~9‘45l3—-
`The undersigned, residing at
`prosecute or adjust a claim for damages arising from personal injuries to 1-"°‘“"”‘
`“E553-ie’%%1,iloss of
`services to
`and property damage to
`on
`and
`through
`negligence
`
`thereafter,
`
`the
`
`of
`
`written consent.
`
`In consideration ofthe services rendered, and to berendered by you, the undersigned hereby
`agrees to pay you and you are authorized to retain out of any moneys that may come into your hand
`through judgment, settlement or otherwise by reason of the above claim:
`
`30% of the first $250,000 of the sum recovered;
`25% of the next $250,000 of the sum recovered;
`20% of the next $500,000 of the sum recovered;
`15% of the next $250,000 of the sum recovered;
`10% of any amount over $1,250,000 of the sum recovered.
`
`On an infant's case, a different fee may be set by the Court.
`
`This schedule applies only to actions for medical, dental, and podiatric malpractice. In other
`claims, including, but not limited to, ordinary negligence, hospital negligence, assault and battery,
`defamation, prgglcts liability, wrongful death (even ifarising out ofmedical malpractice), etc., your
`fee will be 335‘ o of the sum recovered.
`(The claim may contain causes of action for medical
`malpractice and for negligence. Accordingly, part of any recovery may be subject to one fee scale
`and part to the other fee scale.)
`
`22 of 50
`22 of 50
`
`

`

`I have read, and understand the above.
`Z0/L.
`[£6 Em ) 26
`201T‘
`
`
`Dated:
`Wimess:
`
`%</1/~—« fl/;O*(/1/—/L;3
`
`________________________(L.S .)
`
`Witness: _____________________ @.S.)
`
`23 of 50
`23 of 50
`
`

`

`EXH I BIT “DJ!
`
`24 of 50
`
`

`

`High - Low SettlementAgreement- Mark Sherman as temporary
`administrator of the estate Laura Burdiok Sherman and Mark Sherman, individually,
`against Hiotis, Shaylor, NYU Hospital Center
`
`Hiotis, MD, Sara Shaylor, MD and NYU Hospital Center, s/h/a ”NYU Langone Medical Center",
`that the parties agree and stipulate to the following high — low settlement agreement on the ’
`following terms and condition:
`
`é.
`
`..
`
`'
`
`.3?
`
`0
`
`V
`
`.
`
`l t
`
`han (S J 09% , then the case will be settled for$ - D
`2.
`If the jury returns a verdict for the plaintiff in a total amount in excess of, or equal to, $ \
`then the case will be settled for$
`D ‘V’, £3
`000
`3.
`if the jury returns a verdict forthe plaintiff fora total amount between 33 Q
`and $
`J 0 then the settlementwill be forthattotal amountthejuryawarded between $%0§0\j000
`and$\\..‘S«&.§‘5Q\3g ©.\( . W).
`4. Any settlement will be without costs or disbursement as to any side.
`5. Any settlement wlil be a full and final settlement not subject to any appeal or review.
`
`7. There will be no publicity about the terms or fact of the settlement, which consideration for
`this agreement was contemplated as part of the dollar amounts of the settlement, _as well as the
`mutual agreement of the parties not to publicize the terms or fact of the settlement.
`
`to any liens on the form provided by defense counsel, and a wrongful death compromise order.
`
`25 of 50
`25 of 50
`
`

`

`
`
`Agreed and stipulated to
`Clearwater & Bell, LLP
`
`
`
`Dated: October 5th, 2015
`
`New York, New York
`
`.NJ
`
`26 of 50
`26 of 50
`
`

`

`EXH I BE? “E”
`
`27 of 50
`27 of 50
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`

`

`
`
`{_':’:‘«‘:'!?.€ R31 RIDIORE&}IID€Cfi.%§) Sliidflfi
`
`
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`$
`
`375$Coordiaafian of
`
`Bezsaiéis and Rgcavrq‘
`..._........M.,.._.,..,....._.........m.«....,.._.....mw..m....,.,,.m.......,..4.,_....._..~..u.....,..”._.........,...4..,w,_.....y.._..4..,._...........................................................»..,...~.,.W_.....,......._......__..
`Decenaber 10, 2015
`
`IWWI!!!/Ill!/Illlf1i
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`JllllfllllllflflilNIIIIIIIIIIIIIIWIIIIlflllfllflllmmW
`
`1749 '1 MB 0.439
`***AUTO**MLXZ_€iD AADC 730 R1749 T:
`SCHAEVRTZ GOLD-STONE CAMPISI
`90 BROAD
`STE 403
`i\’}3‘W YORK, NY 10004-3338
`
`}5 P13} PC.'2 F:570-’a‘~Oi
`
`mi3u:i‘zi:““"i:¥::!*15*!-;i5zi3::z*¥*ElH;*“'*1:I‘”:”§*
`
`
`
`FL)rI.'nf01‘n1a€ion Only
`
`December 10, 2015
`
`1749 "i
`(7.439
`***'AUTO"‘*MIXf{iD AABC 720 R1749 T215 I-‘:31 }:’C:2 P1570401
`OF LAURA. M B URDICK S1:-IERMAN
`1 RIVER PL AFT 2214
`NEW’ YORK, NY }O(')36-4378
`
`Beneficiary Name:
`Medicare Number:
`Case .Ide.ntifi.cation Number:
`Date of .I'nc.iden_1‘:
`
`BLBDIC SHERIVIAN, LAURA NI
`1‘
`
`May 02, 201 1
`
`Dear Estate of LAURA
`
`BLERDICK SHERMAN:
`
`The Centers for Medicarz: & Medicaid Services (CMS) has b:3enno1'ifiedihai you have received a
`setrlcxnem, ju.dgment., award, or other payment related to your case for the Date ofIncident listed
`
`above.
`
`A review of z\/Iedicarefs records indicates Medicare has not paid any Pan A or B Fee-for-Service
`c.}aim.s related to this case and, acwrdingiy we have ciosed our fiie.
`
`
`NGHP a PO BOX 138832
`
`s 0i§LAH{)3§-TA C}TY, GK ’?3I13
`
`
`SGLB34NGHP
`Page 3 of 3
`
`28 of 50
`28 of 50
`
`

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`29 of 50
`29 of 50
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`EXHIBIT “F”
`
`30 of 50
`30 of 50
`
`

`

`
`sHo:x»;3z%E'};A13As'cHA;?EL ”
`,3'803 14?}: Ave
`Btooiziyn, NY 11218
`
`Phone: 718-436-8709! Fax: 7}8-4-36-8740
`
`emaii: ofiioc-sh@gznai1.c9n1
`___..____...j_.
`
`
`Name :3? Deceased
`
`I
`
`Laura Burdick Shanna};
`
`fiaie of 138311’:
`
`invoice
`
` Transfer of Reanams
`
`Rfifiigeratioa
`
`Anaagemenis
`—
`
`Supervision — Grave;-sidé Sarvice
`Use ofTai1ara Room 52: Mikvah
`Hearse
`Pine Casket
`
`Tachrichim
`Shomer
`Grave Markcr
`Cemetery Grave Opezzing
`Death Certificate:
`Burial Pemzii
`Gratuities-
`
`Simmct $12 Per Hour
`
`
`
`
`Momefiore Cemetezy
`
`
`
`
`
` W mm
`
`
`
`
`AUG 3G,2::*:'}
`
`
`
`
`SHOMRE1 HADAS GHAPELS
`,_..__._._...4........=_.s.-........».-as
`
`31 of 50
`31 of 50
`
`

`

`E}l|(HIBIT “G”
`
`32 of 50
`32 of 50
`
`

`

`State of New York
`
`New York County Surrogate's Court
`31 Chambers Street
`
`New York, NY 10007
`
`(646)386a5000
`
`Receipt# 264778
`
`August 15, 2016 01:50 PM
`
`RE: F ileName - Laura Budrick-Sherman
`File # 2015-4395/A
`
`1 Wrongful Death Petition
`
`Check# 20589
`
`Total Due
`Total Tendered
`
`*** FEES OWED ***
`
`*** PAYMENTS ***
`
`*** TOTALS ***
`
`Received of: Schwartz Goldstone & Campisi Llp
`Comment:
`
`Operator tcoxall
`
`$625.00
`
`$625.00
`
`$625 .00
`$625.00
`
`33 of 50
`33 of 50
`
`

`

`SURROGATE’S COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`A
`-.———-—-____———————-.-_.-___—-—_____.——_—_———___-_
`._..__..__..._._______.__..______X
`in the Matter of Application of MARK SHERMAN
`as Administrator of the Estate of
`
`
`
`LAURA BURDICK-SHERMAN
`
`Settled an Account of the Proceedings as
`
`It is respectfully alleged:
`
`Petitioner/Administrator MARK SHERMAN, is the husband of
`1.
`the above named decedent and presently resides at 1 River Place, Apt. 2214,
`New York, NY 10036.
`
`Decedent, LAURA BURDlCK-SHERMAN, died on August 27,
`2.
`2015 and resided with me at 1 River Place, Apt. 2214, New York, NY 10036,
`County of New York. At the time of her death, decedent was 68 years ofage,
`having been born on— 1947. Prior to her death decedent was
`employed as a nurse. My wife was not on Welfare, did not have any debts,
`hospital or other medical bills. Annexed hereto and marked as Exhibit
`a copy of the decedent's Certificate of Death.
`
`“A” is
`
`3.
`
`in early May 201 1, my wife, LAURA BURDICK-SHERMAN, was
`misdiagnosed with breast cancer and treated at NYU Hospitals Center.
`After a prolonged and painful course of palliative treatment my wife died on
`August 27, 2015.
`
`Prior to her death, on April 26, 2012, my wife retained the law firm of
`Schwartz, Goldstone & Campisi LLC,
`to represent her in a medical
`
`34 of 50
`
`

`

`Issue was joined on or about June 6, 2013, by
`summons and complaint.
`service of their Answers on behalf of the defendants, KAREN L. HIOTIS,
`
`M.D., FARBOD DARVISHIAN, M.D., SARA D. SHAYLOR, M.D., AMY D.
`
`TIERSTEN, M.D., NYU CANCER INSTITUTE, NYU CLINICAL CANCER
`
`CENTER, NYU LANGIONE MEDICAL CENTER, TISCH HOSPITAL, NYU
`
`INC., did not appear nor answer. After my wife's death in 2015, a
`
`supplemental summons & amended complaint was filed to include a wrongful
`
`death claim as part of the medical malpractice action. Following extensive
`
`discovery, the matter was placed on the -trial calendar
`
`Verified Bills of
`
`Particulars were prepared and served.
`
`4.
`following:
`
`As a result of the defendants negligence, my wife suffered the
`
`METASTATIC BREAST CANCER OF THE RIGHT BREAST;
`BILATERAL MASTECTOMY
`AFFECTED VISIONIDRY EYES;
`DIARRHEA;
`FATIGUE;
`RIGHT DUCT EXCISION;
`ASPIRATION BIOPSY; .
`METASTASES TO THE. BRAIN, BONE, LUNG, LIVER;
`BRAIN RADIATION THERAPY;
`CHEMOTHERAPY;
`SKIN RASHES;
`AFFECTED HEARING;
`HAIR LOSS;
`POOR APPETITE;
`WEIGHT LOSS;
`NAUSEA;
`MEDIPORT PLACEMENT;
`PAIN AND SUFFERING;
`LOSS OF CHANCE TO PREVENT SPREAD OF CANCER;
`LOSS OF BENEFIT FROM EARLIER DIAGNOSIS; AND
`WRONGFUL DEATH
`
`35 of 50
`35 of 50
`
`

`

`On December 3, 201 5, Letters ofAdministration were issued to
`
`are presently in full force and effect. Annexed hereto and marked as Exhibit
`“B” is a copy of the Letters of Administration.
`
`6.
`
`Decedent at the time of death was married.
`
`7.
`
`
`
`At the time of her death, my wife left the following survivors:
`Relationship
`Date of Birth
`Present Age
`Name
`Sabrina Sherman Daughter
`‘Q91
`24
`Mark Sherman
`Husband
`.1 952
`63
`8.
`
`Upon being issued Letters of Administration on December 3,
`2015, l retained the law office of Schwartz, Goldstone & Campisi, LLP, as
`attorneys, to prosecute the claims of medical malpractice and wrongful death
`on behalf of my wife’s estate. Annexed hereto and marked as Exhibit “C” is
`a copy of the retainer. A Retainer Statement was filed with the Office of Court
`Administration and assigned number 3925444.
`
`An extensive investigation was undertaken by my attorneys,
`9.
`SCHWARTZ GOLDSTONE & CAMPISI, LLP, to determine and establish
`liability coverage on the part of the defendants. Thereafter, an exhaustive
`study and review of voluminous medical records followed. Application was
`made by my attorneys for Letters ofAdministration. My attorneys engaged in
`lengthy and voluminous discovery, obtained investigative reports and other
`related investigation materials surrounding the occurrence, and made
`
`numerous court appearances. At the same time, extensive discussions and
`
`3
`
`36 of 50
`36 of 50
`
`

`

`plaintiff in a total amount less than $390,000.00, then the case will be settled
`for $390,000.00.
`if the jury returns a verdict for the plaintiff in a total amount
`in excess of, or equal to, $1 ,520,000.00, then the case will be settled for
`$1,520,000.00. If the jury returns a verdict forthe plaintiff for a total amount
`between $390,000 and $1,520,000 then the settlement will be for the total
`amount the jury awarded between $390,000 and $1,520,000. The jury
`returned a defense verdict thereby making the settlement in the amount of
`$390,000.00. Annexed hereto and marked as Exhibit “D” is a copy of the
`High—Low Settlement Agreement.
`
`11.
`United States.
`
`Your Petitioner is of sound mind, full age and is a citizen of the
`
`12.
`
`l have been advised and understand that said settlement
`
`accept the settlements so offered and that this is the best resolution and the
`largest amount that could have been obtained.
`
`14.
`
`37 of 50
`37 of 50
`
`

`

`($390,000.00) DOLLARS a fee based on the medical malpractice sliding
`scale contingency in the amount of EIGHTY SIX THOUSAND NINE
`HUNDRED TWO and 67/100 ($86,902.67) be allowed; disbursements in the
`sum of $ 92,389.33, which together with attorneys fees would amount to a
`
`reimbursed.
`
`The disbursement breakdown on this case is as follows:
`Court Filing Fees
`445
`Deposition Costs
`1,585.75
`Medical Records
`3,176.18
`Cal Watching
`85.75
`Service of Process
`929
`Expert Record Review
`12,437.50
`Trial Expenses
`23,783.60
`Expert Witness Fees
`4 ,733.70
`Subpoena Fees
`95
`Film Reproduction
`1,488.46
`Fed

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