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FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X Index No.: 805035/2022 ANA MARIE VALES, as Administrator of the Estate of MA'ANGELA VALES, deceased, Plaintiff, PLAINTIFF'S AFFIDAVIT - against - ATIYA LATMORE, R.N., JOHN DOE AND NEW YORK PRESBYTERIAN/ WEILL CORNELL MEDICAL CENTER, Defendants. ___------------------______---------____________________--------------_Ç SIRS: This Affidavit of Plaintiff sets forth as follows: 1. I,ANA MARIE VALES, am the Plaintiff in the above captioned matter and the Administrator of the Estate of MA'ANGELA VALES, my sister, who is deceased. I reside at 5 Curtis Court, Manalapan, New Jersey 07726. The Decedent died a resident of Farmingdale, New Jersey. (See, Letters Testamentary annexed to the Petition as Exhibit "A"). 2. I make this Affidavit in connection with the settlement of the above captioned matter, and the application before the Court for approval of the compromise of the instant wrongful death action. 3. The circ*mstances giving rise to this occurrence arose during my sister,MA'ANGELA VALES' June 2020 admission at Defendant, NEW YORK PRESBYTERIAN/ WEILL CORNELL MEDICAL CENTER, resulting in her death on June 22, 2020. 1 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 Defendants' 4. The nature and extent of the injuries sustained by my sister as a result of negligence are as follows: A. COMMINUTED RIGHT ZYGOMATICO-MAXILLARY COMPLEX TETRAPOD FRACTURE OF THE FACE; B. COMMINUTED DEPRESSED FRACTURE OF THE RIGHT ORBITAL FLOOR INVOLVING THE ORBIT FORAMEN OF THE EYE; C. COMMINUTED DEPRESSED FRACTURE OF THE RIGHT ORBITAL WALL OF THE EYE; D. COMMINUTED FRACTURE OF THE POSTERIOR MAXILLARY SINUS WITH DEPRESSION OF FRACTURE FRAGMENTS INTO THE POSTERIOR MAXILLARY SINUS OF THE FACE; E. COMMINUTED FRACTURE OF ZYGOMATIC ARCH OF THE FACE; F. PRE-MAXILLARY SOFT TISSUE SWELLING AND HEMATOMA OF THE FACE; G. PERI-ORBITAL SOFT TISSUE SWELLING AND HEMATOMA OF THE EYE; H. PROPTOSIS (ABNORMAL PROTRUSION OF THE EYE OUT OF THE SOCKET); I. RIGHT GLOBE PERI-ORBITAL EDEMA OF THE EYE; J. DISSECTING PSEUDOANEURYSM OF RIGHT INTERNAL MAXILLARY ARTERY; 2 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 K. HEMORRHAGE DUE TO DISSECTING PSEUDOANEURYSM OF RIGHT INTERNAL MAXILLARY ARTERY BRANCH OF HEAD AND NECK; L. HYPOTENSION/ TRAUMATIC SHOCK; M. LOSS OF CONSCIOUSNESS; N. NEED FOR TRANSFUSIONS OF ELEVEN UNITS OF PACKED RED BLOOD CELLS, FOUR UNITS OF FRESH FROZEN PLASMA AND TWO BAGS OF PLATELETS; O. NEED FOR UNPLANNED EMERGENCY EMBOLIZATION FROM DISSECT1NG PSEUDOANEURYSM OF INTERNAL MAXILLARY ARTERY BRANCH OF HEAD AND NECK; P. CARDIOPULMONARY ARREST REQUIRING CARDIOPULMONARY RESUSCITATION, CHEST COMPRESSIONS, DEFIBRILLATION, ADMINISTRATION OF CARDIAC STIMULANTS AND VASOPRESSERS; Q. PAIN AND SUFFERING; R. DEATH. 5. The injuries my sister sustained were caused by the negligence of Defendants in allowing her to fall while being transferred from a gurney to a procedure table, resulting in devastating injuries which lead to her death approximately six hours later. 6. My sister died at New York Presbyterian/ Weill Cornell Medical Center on June 20, 2020. 7. On July 15, 2020, Letters Testamentary were duly issued to me, ANA MARIE VALES, by the Surrogate's Court of Monmouth County. To date, said letters issued on July 15, 3 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 2020, have not been revoked and are presently in full force and effect. No bond was required of me to cover any probable amount to be realized from said action. 8. Upon the retention of LAW OFFICES OF SANDRA M. RADNA, P.C., pursuant to a retainer agreement, a combined action for wrongful death and conscious pain and suffering was commenced against Defendants in Supreme Court, New York County, bearing index number 805035/22. (See, copy of retainer agreement annexed to the Petition as Exhibit "C"): SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------X Index No. 805035/2022 ANA MARIE VALES, as Administrator of the Estate of MA'ANGELA VALES, deceased, Plaintiff, -against- ATIYA LATMORE, R.N.,JOHN DOE AND NEW YORK PRESBYTERIAN /WEILL CORNELL MEDICAL CENTER, Defendants. ----_______-----------------_.---__________--------X After Defendants appeared, my attorneys prosecuted the action in the manner of a complex action. Pre-trial discovery was exchanged, Bills of Particulars were served, and a Preliminary Conference Order was issued. 9. My attorneys, my two remaining sisters and I participated in mediation with Defendants on September 1, 2022, during which we agreed to discontinue the action against Defendant LATMORE and settle the claim as against Defendant NEW YORK PRESBYTERIAN/ WEILL CORNELL MEDICAL CENTER, for TWO HUNDRED SEVENTY FIVE THOUSAND and 0/100 ($275,000.00), in full satisfaction of the within claim. My attorneys have explained to me that by accepting this settlement, we are forever barred from bringing any further action against these Defendants for the injuries claimed in the above captioned lawsuit. My attorneys also have explained to us that the Court must review and approve the settlement. 4 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 10. There are no Medicare or Medicaid liens to be asserted against the settlement sum. (See, correspondence from Medicare and Medicaid annexed to the Petition collectively as Exhibit "E"). There are no expenses such as medical bills or funeral costs due from the estate. 11. I understand that my attorney's fees are to be calculated pursuant to the medical malpractice sliding scale set forth in §474-a of the New York Judiciary Law such that, subtracting my attorney's expenses in the amount of THREE THOUSAND NINE HUNDRED SEVENTY ONE and 23/100 ($3,971.23) DOLLARS, after which remains TWO HUNDRED SEVENTY ONE THOUSAND TWENTY EIGHT and 77/100 ($271,028.77) DOLLARS. Attorney's fees payable from this sum are 30% of the first $250,000.00 recovered, or SEVENTY FIVE THOUSAND and 00/100 ($75,000.00) DOLLARS, and 25% of the next $21,028.77 recovered, or FIVE THOUSAND TWO HUNDRED FIFTY SEVEN and 19/100 ($5,257.19) DOLLARS, for a total of EIGHTY THOUSAND TWO HUNDRED FIFTY SEVEN and 19/100 ($80,257.19) DOLLARS in attorney's fees. Combined with expenses, the total amount to be paid to my attorney is EIGHTY FOUR THOUSAND TWO HUNDRED TWENTY EIGHT and 42/100 ($84,228.42) DOLLARS. 12. I approve and consent to this settlement and proposed distribution and request the Court's approval of the compromise offer rather than risk uncertainty and expense of protracted ligation. 13. Neither I,nor any member of the law firm, became concerned in the settlement at the instance of a third party or person opposing, or with interests adverse to, the deceased, or indirectly: nor received nor will receive any compensation from such party; nor directly represented and do not now represent any other person asserting a claim arising from the same occurrence. 5 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 14. My attorneys also advised me that they would be making an application to this Court for the following: (i) to approve their attorney's fees in the amount of EIGHTY THOUSAND TWO HUNDRED FIFTY SEVEN and 19/100 ($80,257.19) DOLLARS and disbursem*nts in the amount of THREE THOUSAND NINE HUNDRED SEVENTY ONE and 23/100 ($3,971.23) DOLLARS for the total sum of EIGHTY FOUR THOUSAND TWO HUNDRED TWENTY EIGHT and 42/100 ($84,228.42) DOLLARS; (ii)have the settlement proceeds of TWO HUNDRED SEVENTY FIVE THOUSAND ($275,000.00) DOLLARS paid to my attorneys and placed in an IOLA escrow account; attorneys' and (iii)for my attorneys to be allowed to withdraw their fees and disbursem*nts with the balance of the proceeds, to wit: ONE HUNDRED NINETY THOUSAND SEVEN HUNDRED SEVENTY ONE and 58/100 ($190,771.58) to remain in their IOLA escrow account pending distribution to my sister's distributees in accordance with New Jersey law. 15. No previous application for the relief sought herein has been made to this or to any Court. WH E R E F O R E, it isrespectfully requested that the application of LAW OFFICES OF SANDRA M. RADNA, P.C., be granted. A MARI ALES 6 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 VERIFICATION and ACKNOWLEDGEMENT STATE OF NEW JERSEY ) ) ss.: COUNTY OF )!)() ) ANA MARIE VALES, being duly sworn, deposes and says, that she is the Petitioner in the within action, that she has read the foregoing Affidavit and Petition and knows the contents thereof that the same is true of her own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters, she believes them to be true. c#ocal On the day of flf)/)brin the year, before me, the undersigned notary public, personally appeared Ana Marie Vales, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed in her capacity and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed this instrument. Sworn to before me this day of 2 . Notary Public (affix stamp or seal) em PATRICIA A. SCIARAPPA ."N, NOTARYPUBLIC, STATE0F NEWJERSEY si$ COMMISSION # 50190678 MY COMMISSION EXPIRES03/31/2027 7 of 8 FILED: NEW YORK COUNTY CLERK 01/11/2023 02:18 PM INDEX NO. 805035/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2023 Index No.: 805035 Year: 2022 SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK ANA MARIE VALES, as Administrator of the Estate of MA'ANGELA VALES, deceased, Plaintiff(s), -against- ATIYA LATMORE, R.N., JOHN DOE and NEW YORK-PRESBYTERIAN/ WEILL CORNELL MEDICAL CENTER, Defendant(s). PLAINTIFF'S AFFIDAVIT LAW OFFICES OF SANDRA M. RADNA, P.C. Attorneys for Plaintiff 200 Broadhollow Road, Suite 314 Melville, New York 11747 (631)754-6382 (telephone) (631)754-6381 (facsimile) To: Attorney(s) for Service of a copy ofthe within ishereby admitted Dated: Attorney(s) for PLEASE TAKE NOTICE [ ] that thewithin is a(certif led) truecopy ofa entered in theofficeof theclerk of thewithin named Court on , 20 [ ] that an Order of which thewithin is a truecopy will be presented for settlement to theHon. one of thejudges ofthe within named Court, at on , 20 , at .m. Dated: LAW OFFICES OF SANDRA M. RADNA, P.C. Attorneys forPlaintiff 200 Broadhollow Road, Suite 314 Melville, New York 11747 (631)754-6382 (telephone) (631)754-6381 (facsimile) 8 of 8
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Knox vs. Mohamud, et al.
Aug 22, 2024 |23CV-0202275
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Aug 19, 2024 |19CV03844
19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if the Page 4 of 6prevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
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Aug 14, 2024 |C22-01974
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