FILED: ROCKLAND COUNTY CLERK 09/23/2013
`FILED: ROCKLAND COUNTY CLERK 09E2013
`
`NYSCEF DOC. NO. 93
`NYSCEF DOC. NO. 93
`
`INDEX NO. 035122/2012
`INDEX NO' 035122/2012
`
`
`
`
`
`Rac
`«IVaD yYSCEF: 09/23/2013
`RECEIVED NYSCEF: 09/23/2013
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY or ROCKLAND
`————————————————————————————————————————————————————————————————x
`
`SILVIA MENDOZA as guardian ad litem of
`AMALIA OLIVEROS and SANTOS OLIVEROS
`
`INDEX Ii: 35122/2012
`
`individually,
`
`—against—
`
`Petitioner,
`
`AFFIRMATION
`
`IN SUPPORT
`
`FURY, KENNEDY & GRIFFIN, ESQS., DORFMAN,
`
`KNOEBEL, CONWAY, FURY & GRIFFIN, LLP,
`
`DORFIVIAN, KNOEBEL, CONWAY & FURY, LLP,
`
`MICHAEL H. FURY, ESQ, F. HOLLIS GRIFFIN,
`
`ESQ, BURTON DORFMAN, ESQ, ROBERT S.
`
`KNOEBEL, ESQ, and KEVIN T. CONWAY, ESQ,
`
`Respondents.
`________________________________________________________________X
`
`JEFFREY M. ADAMS, an attorney duly admitted to practice before the Courts of
`
`the State of New York affirms the following:
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`1.
`
`I am an attorney for the petitioners/plaintiffs; am fully familiar with the
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`facts and circumstances of this matter; and submit the following in support of the
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`application to compromise and settle this matter.
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`2.
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`This is an action for legal malpractice that emanates from a motor vehicle
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`collision that occurred on November 19, 2005. AMALIA OLIVEROS, "AMALIA”, was a
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`pedestrian struck by a motor vehicle.
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`3.
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`As a result of the injuries sustained by the plaintiff, AMALIA, a guardian ad
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`litem, SYLIVIA MENDOZA, has been appointed to act on her behalf.
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`
`FILED: ROCKLAND COUNTY CLERK 09E2013
`
`NYSCEF DOC. NO. 93
`NYSCEF DOC. NO. 93
`
`INDEX NO. 035122/2012
`INDEX NO' 035122/2012
`
`
`
`
`
`Rac
`«IVaD yYSCEF: 09/23/2013
`RECEIVED NYSCEF: 09/23/2013
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY or ROCKLAND
`————————————————————————————————————————————————————————————————x
`
`SILVIA MENDOZA as guardian ad litem of
`AMALIA OLIVEROS and SANTOS OLIVEROS
`
`INDEX Ii: 35122/2012
`
`individually,
`
`—against—
`
`Petitioner,
`
`AFFIRMATION
`
`IN SUPPORT
`
`FURY, KENNEDY & GRIFFIN, ESQS., DORFMAN,
`
`KNOEBEL, CONWAY, FURY & GRIFFIN, LLP,
`
`DORFIVIAN, KNOEBEL, CONWAY & FURY, LLP,
`
`MICHAEL H. FURY, ESQ, F. HOLLIS GRIFFIN,
`
`ESQ, BURTON DORFMAN, ESQ, ROBERT S.
`
`KNOEBEL, ESQ, and KEVIN T. CONWAY, ESQ,
`
`Respondents.
`________________________________________________________________X
`
`JEFFREY M. ADAMS, an attorney duly admitted to practice before the Courts of
`
`the State of New York affirms the following:
`
`1.
`
`I am an attorney for the petitioners/plaintiffs; am fully familiar with the
`
`facts and circumstances of this matter; and submit the following in support of the
`
`application to compromise and settle this matter.
`
`2.
`
`This is an action for legal malpractice that emanates from a motor vehicle
`
`collision that occurred on November 19, 2005. AMALIA OLIVEROS, "AMALIA”, was a
`
`pedestrian struck by a motor vehicle.
`
`3.
`
`As a result of the injuries sustained by the plaintiff, AMALIA, a guardian ad
`
`litem, SYLIVIA MENDOZA, has been appointed to act on her behalf.
`
`
`
`4.
`
`Following the motor vehicle collision, AMALlA retained defendant, F.
`
`HOLLlS GRIFFIN, ESQ, "GRIFFlN", and his law firm to represent her. That lawsuit was
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`dismissed due to a failure to prosecute. A legal malpractice action was commenced.
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`That action has been subsumed by this action.
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`4.
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`The proposed settlement agreement will conclusively resolve all litigation
`
`in this matter.
`
`5.
`
`To maintain privacy and confidentiality, and to protect the best interests of
`
`the plaintiffs, limited particulars of this litigation shall be set-forth in this Affirmation.
`
`Should the Court require a clarification of any issue,
`
`it is requested that an ex parte
`
`conference be conducted.
`
`6.
`
`This settlement and compromise is being recommended by your affirmant
`
`for the following reasons:
`
`a.
`
`AMALIA, a native of Mexico, not conversant in English, was struck
`
`by a motor vehicle while crossing a street in Pearl River, New York. Her last recollection
`
`before the incident was leaving the sidewalk. She has no recollection where in the
`
`roadway the impact occurred;
`
`b.
`
`The operator of
`
`the vehicle that struck her stated to the
`
`investigating police officer that she did not see AMALlA until the impact;
`
`c.
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`There were two alleged eyewitnesses to the incident, one a relation
`
`of AMALIA, corroborates that she was in the cross-walk when struck, and the vehicle
`
`took no evasive action;
`
`
`
`cl.
`
`The other alleged witness, not related to the parties, and who has
`
`testified pursuant to subpoena in the underlying action, states that AMALIA ran directly
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`into the path of the vehicle that struck her and that the vehicle had no opportunity to
`
`avoid the impact;
`
`e.
`
`Should a
`
`jury accept
`
`this
`
`individual’s
`
`testimony,
`
`the legal
`
`malpractice action may not survive. At best,
`
`there presently exists an issue of
`
`comparative negligence;
`
`f.
`
`AMALIA testified in depositions that, while she has no recollection
`
`of the incident, she walked "fast” while trying to cross the street;
`
`g.
`
`As such, this testimony supports the defendants’ contention that
`
`this is a ”dart—out” case and the collision was unavoidable;
`
`h.
`
`AMALIA’S cost of future care, as calculated by a defense expert,
`
`based upon the presumption she will return to Mexico once the case concludes, are less
`
`than $100,000. Expenses incurred by AMALIA for her care the last several years were
`
`limited which supports the defendants’ claims that her future care expenses are limited;
`
`i.
`
`Reports prepared by the defendants’ medical witnesses reflect that
`
`ALMALlA’S condition, at least in part, pre-date the underlying collision, as she had
`
`exhibited conditions of Alzheimer’s disease;
`
`j.
`
`AMALIA’s medical records that pre—date the underlying accident
`
`support the defendants’ contention that she had a prior hearing loss and she had signs
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`of Alzheimer’s disease;
`
`
`
`k.
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`The motor vehicle that struck AMALIA was coming from her right.
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`This is significant as she had hearing loss in her right ear before the occurrence;
`
`l.
`
`GRIFFIN was essentially the only attorney who was responsible for
`
`the handling of the file. This is significant as will be addressed below;
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`m.
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`It has been judicially determined that GRIFFIN is responsible for
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`legal malpractice that resulted in the underlying action being dismissed.
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`(Please
`
`reference the Order of the Hon. Linda Iamieson dated May 2, 2012). A question of fact
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`exists as to the other defendants;
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`n.
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`No dispute exists that
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`the dismissal of the underlying action
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`occurred after GRIFFIN left the DORFMAN firm, and while in his own practice, and
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`without a policy of professional liability insurance;
`
`0.
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`The contention is that GRIFFIN’s former law partners and his former
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`firms (the Dorfman firm) had no responsibility to AMALIA for malpractice that occurred
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`after GRIFFIN left the DORFMAN firm, and while in his own practice;
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`p.
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`GRIFFIN’s prior firm (the Dorfman firm) did have a policy of
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`professional malpractice insurance. That carrier has been defending these litigations
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`under a reservation of rights in which they, among other things, disclaim responsibility
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`for any loss payment. Should this settlement not be approved, your affirmant has been
`
`advised that a proceeding to fully deny and disclaim coverage will be instituted;
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`q.
`
`In all five law firms have represented AMALIA at one time or
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`another during the pendency of the underlying action. The common denominator in the
`
`
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`last four firms was GRIFFIN. The malpractice, however, accrued at the last firm -
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`GRIFFIN’s own — and he did not have a policy of professional malpractice insurance;
`
`r.
`
`While GRIFFlN will most certainly be held liable for malpractice
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`should AMALlA prove she would have prevailed in the underlying action, GRIFFlN, a
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`recently disbarred (unrelated to these proceedings)
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`legal aid lawyer,
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`is without
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`professional malpractice insurance and in all probability is judgment proof;
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`5.
`
`GRIFFlN’S partner in the original firm, MICHAEL F. FURY,
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`is not
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`engaged in the practice of law,
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`in very poor health and residing in an assisted living
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`facility. This has been confirmed by his attorney;
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`t.
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`The professional liability is providing a defense in this litigation, is
`
`an ”eroding” policy. Simply put, all defense costs and expenses are deducted from the
`
`available coverage;
`
`u.
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`Should this matter proceed to verdict and through post-trial
`
`proceedings (it is reasonably anticipated that in addition to the one appeal presently
`
`pending, there will be two more appeals, a declaratory judgment action, and the
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`continued expense of three (3) defense firms; all eroding the same insurance policy), the
`
`available coverage, assuming the insurer does not prevail in its declaratory proceeding,
`
`likely could be less than the settlement amount;
`
`7.
`
`For these compelling reasons; including the defenses’ contentions that
`
`AMALlA will be unable to meet her burden of proof that she would have prevailed in the
`
`underlying accident, that her damages may not be found to be substantial, that the
`
`
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`individual responsible for the legal malpractice has no ability to satisfy a judgment as he
`
`is unemployed, disbarred and without professional liability insurance to pay this loss,
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`and that should all obstacles be overcome the only possible policy that may apply could
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`be eroded to an amount below the current settlement proposal, (and for other reasons
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`not fully set-forth in these papers) it is your affirmant’s opinion that the proposed
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`resolution will net
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`the plaintiffs the best possible results; under the totality of
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`circumstances.
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`8.
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`It is submitted that the proposed resolution is in the best interests of the
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`plaintiffs, above-named. '
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`WHEREFORE,
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`it
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`is
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`respectfully requested that
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`the aforesaid proposal of
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`settlement be approved and that a judgment be entered herein granting your affirmant
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`leave to settle and compromise the claim of the plaintiffs and to discontinue the above-
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`captioned action against the defendants.
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`May I 5 , 2013
`
`_
`
`'
`
`’ /3.
`
`/O;
`‘
`.xzj/ "'
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`
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`/
`
`L/
`
`Jeffrey M. Adams
`
`
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