SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`
`_________________________________________________________________________X
`
`ROSEMARIE DURANTE, as Administrator of the Estate of
`
`ANTOINETTE AWAID, Deceased,
`
`Plaintiff,
`
`—against-
`
`ORDER OF
`COMPROMISE
`
`PURSUANT TO
`EPTL 5-4.6
`
`STATEN ISLAND UNIVERSITY HOSPITAL,
`
`Index No.: 150348/12
`
`______,———---—------————-———-——————-————----—--~-—-——-—-—-——~———-------—--X
`
`Defendant.
`
`Upon the annexed Affidavit of Rosemarie Durante, Administrator of the Estate of
`
`Antoinette Awaid, deceased, duly sworn to on the 12th day of March, 2014, the Affirmation of
`
`Damien Cortese, Esq., duly affirmed on the 19th day of March, 2014, and upon all the pleadings
`
`and proceedings heretofore had herein, and after due deliberation thereon,
`
`NOW, upon motion of Bonina & Bonina, P.C., attorneys for plaintiffs, it is hereby
`
`ORDERED, that the settlement provided for herein is deemed adequate and in the best
`
`interest of the Estate; and it is further
`
`ORDERED, that Rosemarie Durante, as Administrator of the Estate of Antoinette Awaid,
`
`deceased, be and is hereby authorized and permitted to settle and compromise the above entitled
`
`action against Staten Island University Hospital for the total sum of $90,000.00; and it is further
`
`ORDERED, that the cause of action for conscious pain and suffering is discontinued with
`
`prejudice and Without payment; and it is further
`
`ORDERED,
`
`that all causes of action for medical malpractice are discontinued with
`
`prejudice and without payment; and it is further
`
`{00042507}
`
`

`

`ORDERED, that the Administrator, Rosemarie Durante, be and is hereby authorized and
`
`permitted to execute and deliver a General Release, Stipulation of Discontinuance and Hold
`
`Harmless Agreement to defendant Staten Island University Hospital, together with any and all
`
`papers necessary to effectuate the settlement herein; and it is further
`
`ORDERED,
`
`that
`
`the defendant, Staten Island University Hospital
`
`and/or
`
`its
`
`representatives shall within the time frame set forth in the CPLR 5003(a) pay the sum of
`
`$90,000.00 as follows:
`
`a)
`
`a check in the amount of $
`
`payable to Rosemarie Durante,
`
`as Administrator of the Estate of Antoinette Awaid, deceased and Bonina &
`
`Bonina, P.C., as attorneys; and
`
`b)
`
`a check in the amount of $20,000.00 payable to New York City Department of
`
`Social Services, and stating “full and final satisfaction of lien — E/O Awaid on the
`
`face of the check. Said check must be sent Via Certified Mail — Return Receipt
`
`Requested; and
`
`ORDERED, that defendant Staten Island University Hospital and/or its representatives
`
`will provide plaintiff’ s attorneys with a copy of the cover letter, certification and canceled checks
`
`payable to Medicaid regarding payment and full satisfaction of their liens; and it is further
`
`ORDERED, that upon making such payments to Medicaid and providing plaintiff’s
`
`attorneys with a copy of the cover letter, certification and canceled check, defendant Eger Health
`
`Care and Rehabilitation Center and/or its representatives shall be relieved of any further
`
`responsibility relating to said liens; and it is further
`
`ORDERED, that upon receipt of the settlement monies, plaintiff’ s attorneys shall deposit
`
`said funds into an interest bearing escrow account; and it is further
`
`{00042507}
`
`

`

`ORDERED, that having submitted to this Court proof of filing of a petition for allocation
`
`and distribution in the Surrogate’s Court of Richmond County on behalf of the decedent’s estate,
`
`plaintiffs attorneys may draw a check in the sum of $
`
`, as and for their
`
`expenses and disbursements, and $
`
`, as and for their attorney’s fees herein; and
`
`it is further
`
`ORDERED, that after payment of attorney’s fees and disbursements and the Medicaid
`
`lien, the balance of the settlement monies in the sum of $
`
`shall be held in
`
`said interest bearing escrow account pending a further Order or Decree from the Surrogate’s
`
`Court regarding the allocation and distribution of said funds; and it is fithher
`
`ORDERED, that Bonina & Bonina, P.C. shall continue to serve as attorneys for the
`
`Estate until the entry of a final Decree in Surrogate’s Court; and it is further
`
`ORDERED, that the filing of a bond is dispensed with.
`
`ENTER,
`
`J.S.C.
`
`{00042507}
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF RICHMOND
`_________________________________________________________________________X
`
`RO SEMARIE DURANTE, as Administrator of the Estate of
`ANTOINETTE AWAID, Deceased,
`
`Plaintiff,
`
`-against—
`
`STATEN ISLAND UNIVERSITY HOSPITAL,
`
`_________________________________________________________________________X
`
`Defendant.
`
`STATE OF NEW YORK
`
`)
`
`COUNTY OF RICHMOND :S-i
`
`AFFIDAVIT
`
`Index N0.: 150348/12
`
`Rosemarie Durante, having first been duly sworn deposes and says as follows:
`
`1.
`
`I reside at 416 Doane Avenue, Staten Island, NY 10308. Letters of Administration
`
`were issued to me by the Surrogate’s Court of Richmond County on June 21, 2012 and said
`
`appointment is still in full force and effect (Annexed as Exhibit “A” is a copy of said Letters of
`
`Administration). No bond was required to be filed at the time of my appointment to cover any
`
`probable amounts to be realized from this action.
`
`2.
`
`The decedent, Antoinette Awaid, was my Aunt. She was born on August 22, 1911
`
`and died on October 18, 2011 at the age of 100. After her death, I was appointed Administrator
`
`of her Estate. The decedent was single and never had any children, marital, non-marital or
`
`adopted. She is survived by me and my sister, Joyce Masella.
`
`3.
`
`At the time of her passing, the decedent resided at 382 Ionia Avenue, Staten
`
`Island, NY 10312.
`
`4.
`
`On October 10, 2011 my Aunt was admitted to Staten Island University Hospital
`
`because she had persistent stomach pain. On October 11, 2011 she was taken for a HIDA scan
`
`{00042350}
`
`

`

`and was dropped from the table during the procedure. She broke her nose, her upper arm, a
`
`couple ribs, her dentures, and had multiple bruises on her face and body. My Aunt passed away
`
`seven days later on October 18, 2011 (A copy of Ms. Awaid’s Death Certificate is annexed
`
`hereto as Exhibit “B”).
`
`5.
`
`I was extremely close with my Aunt and had been designated to be her Health
`
`Proxy while she was alive. In December of 2011 I decided to consult with Daniella Levi and
`
`Associates, PC. to pursue a negligence and medical malpractice action on my Aunt’s behalf. My
`
`request was that they look into the circumstances surrounding the fall, and more generally her
`
`care and treatment at Staten Island University Hospital and see if legal grounds could be found to
`
`bring an action against the Hospital (A copy of the Retainer Agreement is annexed hereto as
`
`Exhibit “C”). The contractual agreement of retainer provided their law firm was to receive a
`
`percentage of the recovery as its fee, after first deducting all legal expenses incurred during the
`
`investigation and prosecution of this claim as follows:
`
`Thirty three and one third percent (33%) percent, of the sum
`recovered, whether recovered by suit, settlement or otherwise.
`
`However, our attorneys have agreed to take a reduced compensation fee at thirty percent (3 0%).
`
`6.
`
`In January of 2012 I was told by Daniella Levi and Associates, PC. that they had
`
`partnered with a firm that specialized in medical malpractice cases. Thereafter, I was contacted
`
`by the law firm of Bonina & Bonina, PC. The firm explained that as a result of my Aunt’s death,
`
`her Estate had to be formed immediately. Bonina & Bonina, P.C. filed all the necessary papers
`
`with the Surrogate’s Court of Richmond County in order for me to be appointed Administrator of
`
`my late Aunt’s Estate. As a result of my appointment, I have kept in close contact with my
`
`attorneys and provided them with any information that became necessary during the
`
`investigation and prosecution of this claim.
`
`{00042350}
`
`2
`
`

`

`7.
`
`After completing their medical investigation, my attorneys informed me that they
`
`would be starting a lawsuit against Staten Island University Hospital. After they started this
`
`lawsuit,
`
`I was advised that
`
`the defendant had served an Answer in which they denied
`
`responsibility for Antoinette Awaid’s injuries and death.
`
`8.
`
`Thereafter, my deposition was conducted at the law offices of Bonina & Bonina,
`
`P.C. Throughout the course of this lawsuit my attorneys have kept me well informed and advised
`
`as to what was happening. During the first settlement conference, held on May 2, 2013, I was in
`
`contact with my attorneys and am aware that defense counsel made an offer of settlement in the
`
`amount of $50,000.00 which I rejected. My attorneys at Bonina & Bonina, P.C. kept me aware
`
`that the next step was to depose the nuclear medicine technologist at Staten Island University
`
`Hospital, who had conducted the HIDA scan on October 11, 2011. Following that deposition
`
`another settlement conference was held and an offer of $90,000.00 was made. At that time, liens
`
`remained unresolved and I therefore did not want to settle for that amount, so I instructed my
`
`attorneys to reject that offer for the time being. Over the course of the next few weeks, my
`
`attorneys at Bonina & Bonina, P.C. kept in contact with me as they attempted to negotiate the
`
`liens. The Medicaid lien was reduced from $503,486.96 to $20,000.00 (A copy of the letter
`
`confirming this Medicaid Lien agreement is annexed as Exhibit “D”). Furthermore, Strategic
`
`Recovery Partnership, Inc. did not assert the Elderplan Medicare Advantage plan lien.
`
`9.
`
`With the liens resolved, my attorneys informed defense counsel.
`
`I was made
`
`aware that a full and final offer of settlement in the amount of $90,000.00 was made. At that
`
`time, I agreed to accept this offer of settlement.
`
`10.
`
`My reasons for accepting this offer included both questions of liability and
`
`damages, including the following:
`
`{00042350}
`
`3
`
`

`

`QUESTIONS OF LIABILITY
`
`11.
`
`My attorneys explained to me that if the case were to proceed to trial, they would
`
`be able to present proof that the defendant Hospital deviated and departed from accepted
`
`standards of medical practice in their care and treatment of my aunt, Antoinette Awaid.
`
`However, my attorneys also made clear that
`
`there might be sharp questions of liability.
`
`Specifically, I understand that the defendant would claim, through its own experts, that at 100
`
`years old my Aunt was in an already fragile condition and beyond her life expectancy, entered
`
`the hospital suffering from Cholecystitis, had an elevated white blood cell count, and fell as a
`
`result of her own culpable conduct. In other words, the defense would argue that my Aunt’s
`
`injuries and deaths were due to her own condition and negligence and not a result of any
`
`malpractice on the part of the defendants. While I disagree with the defendant’s opinion in this
`
`regard,
`
`I understand that if a jury accepted the defendants’ argument,
`
`it could result in a
`
`defendants’ verdict, in which case there would be no recovery for the Estate.
`
`12.
`
`Given these questions of liability, it is my opinion that it is in my best interest and
`
`the best interest of the Estate to accept the offer of $90,000.00 as full and final settlement of this
`
`matter rather than risk the uncertainties of a jury verdict. Additionally, there are questions of
`
`damages.
`
`QUESTIONS OF DAMAGES
`
`13.
`
`My attOrneys explained to me in detail the legal issues at play with regards to
`
`damages. My Aunt fell on October 11, 2011 and passed away on October 18, 2011. With respect
`
`to the decedent’s conscious pain and suffering during those days, I understand that it is likely
`
`that the defendants would argue that the plaintiffs decedent was not fully conscious (and
`
`therefore not suffering greatly) during those seven days because she was being administered pain
`
`{00042350}
`
`4
`
`

`

`medication. In this respect, a jury could return a limited award or none at all due to the patient’s
`
`lack of consciousness. If a jury accepted the defendant’s argument, this could result in a small or
`
`moderate jury verdict on the issue of pain and suffering damages.
`
`14.
`
`Moreover, I have come to understand that wrongful death damages are limited to
`
`pecuniary and economic loss sustained by family members as a result of the decedent’s death. At
`
`the time of her passing, my Aunt was a 100-year—old single woman who never had any children.
`
`In other words, no one relied upon her for economic assistance. However, my sister and I relied
`
`heavily on our Aunt, and only living matriarch, for moral guidance and support. Therefore I
`
`believe 100% of the proceeds should be attributed to wrongful death. Overall, I understand that
`
`the defendant Hospital would argue that the pecuniary and economic loss sustained by our family
`
`as a result of my Aunt’s death was limited. Considering all these factors, any award the Estate
`
`would be entitled to receive from a cause of action for wrongful death would have been nominal
`
`at best.
`
`15. When I consider the questions of liability and damages,
`
`I believe that the
`
`settlement of this case for the total sum of $90,000.00 represents an excellent result.
`
`16.
`
`I have consulted with my attorneys concerning the proposed distribution of
`
`settlement. They have advised me that their firm has advanced a total of $1,121.55 in expenses to
`
`date. (Please see Exhibit “F” for a complete list of file expenses and disbursements). These
`
`expenses have been explained to me and I approve of the same. I understand that if Bonina &
`
`Bonina, P.C. had not spent these sums investigating the case, purchasing copies of the decedent’s
`
`medical records, paying Court filing fees and other expenses related to the lawsuits, that the
`
`excellent result obtained by the instant settlement could never have been achieved. Accordingly,
`
`{00042350}
`
`5
`
`

`

`I ask this Court to include reimbursement to Bonina & Bonina, PC. for expenses in the amount
`
`of$1,121.55.
`
`17.
`
`Furthermore, I am entirely satisfied with the legal services performed by Bonina
`
`& Bonina, PC. in the prosecution of this case. Since they became of counsel of Daniella Levi
`
`and Associates, PC. handling our lawsuit, I believe that the legal services rendered by Bonina &
`
`Bonina, P.C. were excellent.
`
`I desire to uphold my contractual obligation with my lawyers as
`
`noted above and respectfully request that this Court issue in its Order an award of attorney’s fees
`
`in the total amount of $26,663.54.
`
`18.
`
`Accordingly, it is respectfully requested that this Court issue an Order approving
`
`of the following Proposed Distribution of Settlement Proceeds, in accordance with the agreement
`
`of all interested parties:
`
`Gross Settlement ............................................................................................................ $ 90,000.00
`
`Less File Expenses ........................................................................................................ $
`
`1,121.55
`
`Adjusted Gross Settlement............................................................................................. $ 88,878.45
`
`Less 1/3 Attorney’s Fees ................................................................................................ $ 26,663.54
`
`[30% of $88,878.45 = $26,663.54]
`
`Further Adjusted Gross Settlement................................................................................ $ 62,214.91
`
`Statutory Commission for Administrator....................................................................... $
`
`3,110.75
`
`[5% of$62,214.91= $3,110.75]
`
`Less Medicaid ................................................................................................................ $ 20,000.00
`
`Net to Estate of Antoinette Awaid ................................................................................ $ 39,104.16
`
`19.
`
`The decedent was not a recipient of Workers” Compensation, Welfare or Public
`
`Assistance to my knowledge. She was a recipient of Medicare and Medicaid. 1 am aware of a
`
`{00042350}
`
`6
`
`

`

`lien being asserted by Medicaid in the total amount of $20,000.00. (A copy of the letter
`
`confirming this agreement is annexed as Exhibit “D”). The Medicare lien will not be asserted. (A
`
`copy of the e-mail confirming the non—assertion of the lien is annexed as Exhibit “E”).
`
`I
`
`respectfully request that this Court include in its Order or Decree reimbursement of the lien in
`
`the total amount of $20,000.00. I was not a recipient of Workers’ Compensation, Welfare or
`
`Public Assistance. I am not aware of any liens of any kind, nature or description other than the
`
`attorney’s fees and services, and Medicaid lien, which are provided for herein.
`
`20.
`
`There are no debts,
`
`liens, assignments or compensation claims outstanding or
`
`unpaid, for which the Estate or her distributees would be liable other than the lien asserted by
`
`Medicaid.
`
`21.
`
`No claims have been filed against the Estate and no creditors of the deceased have
`
`notified me of any claims against the Estate.
`
`I know of no creditors of the Estate and am not
`
`aware of any claims outstanding or due from the deceased to any creditors or third parties and no
`
`creditors of the deceased have filed any claims against the Estate.
`
`22.
`
`l have been advised that my attorneys, Bonina & Bonina, P.C., have had no
`
`relationship with the above~referenced defendant nor its attorneys or representatives and that
`
`they have not become interested in this application or its subject matter at the insistence of the
`
`defendant or attorneys or representatives.
`
`23.
`
`No prior application for the relief sought herein has been made to this Court or
`
`any other Court or Judge.
`
`I understand that an application will be made to the Surrogate’s Court
`
`of Richmond County regarding the allocation and distribution of the settlement proceeds
`
`remaining after payment of attorney’s fees and disbursements and the Medicaid lien.
`
`{00042350}
`
`7
`
`

`

`WHEREFORE, your Affirmant respectfully requests that this Court issue an Order
`
`authorizing Rosemarie Durante, as Administrator of the Estate of Antoinette Awaid, deceased,
`
`to:
`
`Settle and compromise the claims against Staten Island University Hospital for
`
`the total sum of $90,000.00;
`
`b)
`
`Discontinue all causes of action for conscious pain and suffering with prejudice
`
`and Without payment;
`
`Discontinue all causes of action for medical malpractice with prejudice and
`
`without payment;
`
`Attribute 100% of the settlement to the cause of action for wrongful death;
`
`Fix and allow the fee to Bonina & Bonina, PC. for legal services in the amount of
`
`$26,663.54 and disbursements in the amount of$1,121.55;
`
`Approve of the payment of $20,000.00 to New York City Department of Social
`
`Services for full reimbursement and satisfaction of its lien;
`
`g)
`
`Direct that the balance of the settlement funds, after payment of attorney’s fees
`
`and disbursements and the Medicaid lien be deposited in an interest bearing
`
`escrow account pending a further Order or Decree from the Surrogate’s Court of
`
`Richmond County regarding allocation and distribution thereof;
`
`h)
`
`Permit plaintiff to execute and deliver any and all papers necessary to effectuate
`
`the settlement;
`
`Modify the restrictions in the Letters of Administration issued to permit the
`
`compromise and settlement of the cause of action for wrongful death in the total
`
`amount of $90,000.00; and
`
`{00042350}
`
`

`

`j)
`
`For such other and further relief as this Court may deem just and proper.
`
`
`
`'e Durante, as Administrator of the
`Estate of Antoinette Awaid, deceased
`
`Dated: Staten Island, New York
`March/__7/,' 2014
`
`Sworn to before me this
`4’ Y/da'y of March 2014
`
`
`
`KATHLEEN M GA
`_
`RGU:L
`Notary Puhim ~ Stare at Neonork
`Ne: 61 &%$O47257
`‘gn Richmond County
`e on Expires Aug. 28, 2014
`
`{00042350}
`
`9
`
`

`

`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF RICHMOND
`_________________________________________________________________________X
`
`ROSEMARIE DURANTE, as Administrator of the Estate of
`ANTOINETTE AWAID, Deceased,
`
`Plaintiff,
`
`-against-
`
`ATTORNEY’S
`
`AFFIRMATION
`
`STATEN ISLAND UNIVERSITY HOSPITAL,
`
`Index N0.: 150348/12
`
`Defendant.
`_________________________________________________________________________X
`
`)s
`
`)
`
`s.:
`
`STATE OF NEW YORK
`
`COUNTY OF KINGS
`
`Damien Cortese, Esq., an attorney at law duly admitted to practice law before all of the
`
`Courts of record of the State of New York, hereby affirms the following to be true upon
`
`information and belief under the penalties of perjury:
`
`1.
`
`I am an associate in the law firm of Bonina & Bonina, P.C., attorneys working of-
`
`counsel for the law offices of Daniella Levi & Associates, PC who are the attorneys of record for
`
`the plaintiff in the above captioned action, and as such I am fully familiar with the facts and
`
`circumstances of this action by virtue of a file maintained in my office.
`
`2.
`
`In 2011, Mrs. Durante signed an agreement of retainer with Daniella Levi &
`
`Associates, PC asking that law firm to investigate the facts and circumstances surrounding the
`
`care and treatment rendered to her aunt, Antoinette Awaid, at Staten Island University Hospital,
`
`as well as the circumstances surrounding her death. In January of 2012 Daniella Levi &
`
`Associates, PC asked our law firm, Bonina & Bonina, PC, to work Of Counsel and handle the
`
`investigation of the Awaid case. A copy of the retainer is annexed as Exhibit “C” which fixed the
`
`{00041829}
`
`

`

`firm’s compensation as a percentage of any sums recovered whether by suit, settlement or
`
`otherwise after first deducting all of the costs and disbursements of the litigation as follows:
`
`Thirty three and one third percent (33 l/3%) percent, of the sum
`recovered, whether recovered by suit, settlement or otherwise.
`
`However, our firm has agreed with our client, Rosemarie Durante, to take a reduced
`
`compensation fee at thirty percent (30%).
`
`3.
`
`A statement concerning the Retainer Agreement was then filed with the Office of
`
`Court Administration which assigned Statement Number 7181264. (See Exhibit “G”).
`
`4.
`
`Following our agreement to work Of Counsel with Daniella Levi & Associates,
`
`PC, we undertook an investigation of the circumstances concerning Ms. Awaid’s care and
`
`treatment and wrongful death at Staten Island University Hospital.
`
`BRIEF AND FACTUAL DESCRIPTION
`
`5.
`
`On October 10, 2011 Ms. Awaid presented to Staten Island University Hospital
`
`complaining of abdominal pain, nausea and vomiting. She was diagnosed with a thickened
`
`gallbladder and acute cholelithiasis and put on antibiotics. On October 11, 2011 she was
`
`undergoing a HIDA Scan under the supervision of a nuclear medicine technologist. During the
`
`course of the scan, Ms. Awaid indicated that she was uncomfortable. The technologist loosened
`
`the straps which secured Ms. Awaid to the table. The phone rang and the technologist turned his
`
`back to the patient to answer. Ms. Awaid fell to the floor and suffered a right humeral fracture,
`
`right nasal bone fracture, two rib fractures, and multiple contusions. Seven days later, on October
`
`18, 2011, she passed away. (A copy of her Death Certificate is annexed as Exhibit “B”).
`
`6.
`
`After we were brought on to work of counsel with Daniella Levi & Associates,
`
`PC we filed all of the necessary papers with the Surrogate’s Court of Richmond County in order
`
`{00041829}
`
`2
`
`

`

`for Ms. Awaid’s niece, Rosemarie Durante, to be appointed Administrator of her late aunt’s
`
`Estate.
`
`7.
`
`The Letters of Limited Administration were granted on June 21, 2012, appointing
`
`Mrs. Durante as administrator of the estate of Antoinette Awaid. Once we completed our
`
`investigation and initial expert consultation, we informed Ms. Durante that we would be starting
`
`a lawsuit on behalf of the Estate of Antoinette Awaid against Staten Island University Hospital.
`
`The lawsuit was based upon theories of negligence and departures from accepted medical
`
`practice and sought recovery for Antoinette Awaid’s conscious pain and suffering and wrongful
`
`death.
`
`8.
`
`This lawsuit proceeded through the usual steps of litigation, including filing and
`
`service of a Summons and Verified Complaint, preparation of Bills of Particulars, discovery
`
`demands and responses, appearances at Preliminary and Compliance Conferences, and
`
`depositions. On May 2, 2013 a settlement conference was held before the Honorable Judith N.
`
`McMahon. Your Affirmant interposed a demand of $175,000.00 and defense counsel offered
`
`$50,000.00. We were unable to find an agreeable settlement figure at that time. Following the
`
`deposition on July 1, 2013 of Mr. Maschender Reddy Eticala, the nuclear medicine technologist
`
`and representative of Staten Island University Hospital, defense counsel indicated a willingness
`
`to settle.
`
`.
`
`9.
`
`On July ll, 2013 another settlement conference was held before the Honorable
`
`Judith N. McMahon. Defense counsel Schaub, Ahmuty, Citrin, & Spratt, LLP was present as
`
`well as representatives from Physicians’ Reciprocal Insurers. An offer of $90,000.000 was made.
`
`We were unable to agree on settlement at that time, due to unresolved liens. Thereafter, your
`
`{00041829}
`
`3
`
`

`

`Affirmant negotiated with NYC HRA to reduce the Medicaid lien from $503,486.96 to
`
`$20,000.00 (A copy of the letter confirming this agreement is annexed as Exhibit “D”).
`
`10.
`
`Additionally, your affirmant had discussions with Strategic Recovery Partnership,
`
`Inc. who were representing Elderplan Medicare Advantage plan, who had a possible lien. After
`
`further examination of the claims of this case, as well as the benefits covered in the plan
`
`provided to Ms. Awaid, Strategic Recovery Partnership advised us that they would not be
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`asserting a lien (A copy of the e-mail confirming the non-assertion of the lien is annexed as
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`Exhibit “E”). Following this (with both liens resolved) we recommended that the plaintiff
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`administrator, Rosemarie Durante, agree to the settlement of $90,000.00. Ms. Durante accepted
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`this offer.
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`11.
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`Our reason for recommending this offer included questions of liability and
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`damages which are set forth in greater detail below.
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`QUESTIONS OF LIABILITY
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`12.
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`During the investigation and litigation of this matter, it became apparent that there
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`were certain questions of liability which could easily have resulted in a defendants’ verdict if this
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`case proceeded to trial. While we consulted with experts who were of the opinion that Ms.
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`Awaid’s fall occurred as a result of the negligence of the defendant Staten Island University
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`Hospital, we knew the defendants would produce their own experts who would testify that the
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`decedent was elderly (100 years old), entered the hospital suffering from Cholecystitis, had an
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`elevated white blood cell count, and fell as a result of her own culpable conduct. In other words,
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`defendants would argue that Ms. Awaid’s injuries and death were due to her own condition and
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`negligence and not a result of any malpractice on the part of the defendants. If a jury were to
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`believe the defendants” opinion, it could result in a jury verdict in favor of the defendants and
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`there would be no recovery for the Estate.
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`QUESTIONS OF DAMAGES
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`13.
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`Ms. Awaid fell on October 11, 2011 and passed away on October 18, 2011. With
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`respect to the decedent’s conscious pain and suffering during those days, it is likely that the
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`defendants would argue that the plaintiffs decedent was not fully conscious (and therefore not
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`suffering greatly) during those seven days because she was being administered pain medication.
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`In this respect, a jury could return a limited award or none at all due to the patient’s lack of
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`consciousness. If a jury accepted the defendants’ argument, this could result in a small or
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`moderate jury verdict on the issue of pain and suffering damages.
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`14.
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`Additionally, with respect to wrongful death damages, these too would be called
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`into question if this case proceeded to trial. That is because wrongful death damages are limited
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`to pecuniary and economic loss sustained by family members as a result of the decedent’s death.
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`At the time of her passing Ms. Awaid was a lOO—year—old single woman who never had children.
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`She lived well beyond her life expectancy and had zero dependents. Ms. Durante and her sister,
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`Joyce Masella, relied heavily on their Aunt (who was their only living matriarch) for moral
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`guidance and support. Therefore I believe 100% of the proceeds of the settlement should be
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`attributed to wrongful death. If the case went to trial it is likely that the defendants would argue
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`that the pecuniary and economic loss sustained by the family members as a result of the
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`decedent’s death, was at best limited and at worst zero. The defendants could argue that a
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`significant wrongful death award was not warranted in this case.
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`15.
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`Given the above questions of liability and damages, it is respectfully submitted
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`that Rosemarie Durante made a wise choice when she elected to accept the final offer of
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`settlement in the total amount of $90,000.00.
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`It is respectfully requested that this Court issue an
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`Order reimbursing my firm’s file expenses and disbursements in the amount of $1,121.55. The
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`excellent result obtained by the settlement could never have been achieved if these sums had not
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`been spent conducting discovery and depositions, paying Court filing fees and engaging in all
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`other ordinary and necessary expenses inherent to complex medical malpractice cases. (Please
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`see Exhibit “F” for a complete list of file expenses and disbursements).
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`16.
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`It
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`is additionally requested that this Court
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`include in its Order an award of
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`attorney’s fees in the amount of $26,663.54, pursuant to the contractual agreement of retainer
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`between Daniella Levi & Associates, PC. with Rosemarie Durante, and our agreement to work
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`as of counsel for Ms. Levi. After deducting attorney’s expenses and disbursements and the
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`attorney’s fees from the gross settlement, there is left an adjusted gross settlement in the amount
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`of $62,214.91.
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`17.
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`It is fithher submitted that, in view of the respective value of the claims for
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`decedent’s conscious pain and suffering and her wrongful death, that attributing 100% of the net
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`recovery to wrongful death would be most equitable and would most accurately reflect the facts
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`and circumstances in this case. Although the purely economic loss was not dramatic, the loss of
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`the intellectual, moral, spiritual, educational guidance and support to the decedent’s family was
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`and is tremendous.
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`PARTIAL LISTING OF ATTORNEY SERVICES AND DISBURSEMENTS
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`18.
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`Upon this firm’s retainer in January 2012, we consulted with Rosemarie Durante,
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`discussed in detail her Aunt’s medical history and the treatment she received from Staten Island
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`University Hospital, and informed her that the first step in litigation would be to form the Estate.
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`After obtaining all of this information, the merits of the potential case were discussed in detail.
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`19.
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`Thereafter, we filed the necessary documents to form the estate with the
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`Surrogate’s Court of Richmond County. Ms. Awaid’s niece, Rosemarie Durante, was then
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`appointed Administrator of her late aunt’s Estate via the Letters of Limited Administration which
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`were granted on June 21, 2012.
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`20.
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`The medical records were received and reviewed. It was determined that there
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`was a reasonable basis to go forward with a claim for negligence against the defendants,
`specifically as a result of their negligence on October 11, 2012 in causing Ms. Awaid to fall.
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`21.
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`On August 6, 2012 we filed and served a Summons and Complaint naming Staten
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`Island University Hospital as the defendant. This Complaint sought recovery from the defendant
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`hospital for Ms. Awaid’s conscious pain and suffering and wrongful death under a theory of
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`negligence and medical malpractice.
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`22.
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`We then paid a process server to serve the defendant. After an Answer was
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`received from the defendant denying all aspects of liability, we prepared a Verified Bill of
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`Particulars, as well as an Exchange of Medical Information, Response to Combined Demands,
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`Notice of Discovery and Inspection and Demands for Non-Medical Expert Witness and
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`Insurance Information and served them upon the defendant. We appeared on the necessary
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`conferences to move the discovery process along.
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`23.
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`In March of 2013 following the plaintiff administrator’s deposition, Physicians”
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`Reciprocal Insurance contacted our firm to discuss the possibility of a settlement. At that time
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`your affirmant demanded $175,000.00. In the following months your affirmant had several
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`discussions with the plaintiff administrator, Rosemarie Durante, explaining the merits and
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`limitations of the case and discussing possible settlement figures. On May 5, 2013 your affirmant
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`attended a settlement conference before Honorable Judith