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FILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 EXHIBIT AFILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX --------------------------------------------------------------------X VERIFIED BILL FRANCISCO CONTRERAS, OF PARTICULARS Plaintiff(s), Index No.: 28832/2019E -against- NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), BRITESTARR HOMES, INC. a/k/a BRIGHTSTAR HOMES, INC., CSX TRANSPORTATION, INC., MCINNIS USA INC., THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY and MTA METRO-NORTH RAILROAD, Defendant(s). --------------------------------------------------------------------X Plaintiff, by his attorneys, BUDIN, REISMAN, KUPFERBERG & BERNSTEIN, LLP, responding to the demands of defendants MCINNIS USA INC., for a Verified Bill of Particulars, allege upon information and belief, as follows: 1. Plaintiff FRANCISCO CONTRERAS presently resides at 770 Faile Street, Apartment 3G, Bronx, New York 10474 c/o Pablo Arbaio. 2. The accident herein occurred on February 7, 2018, a Wednesday, at approximately 7:00 P.M. 3. The accident herein occurred while the plaintiff FRANCISCO CONTRERAS was traversing the railroad yard and/or train yard located at or near Legget Avenue Bridge at or near its intersection with Bruckner Boulevard, in the County of Bronx, City and State of New York when he was caused to be struck by a train. 4. The defendants their agents, servants, employees licensees, contractors and/or subcontractors, were negligent in the ownership, operation, management, maintenance and control of the aforesaid location; in that they failed to follow proper internal procedures when a pedestrian is observed on the tracks, in operating the aforesaid train in a manner which endangered theFILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 claimant; in that they caused the train to be operated at an excessive speed under the circ*mstances; in that they failed to utilize devices on the tracks that would alert the engineer that there was someone or something on the tracks that needed to be avoided; in that they failed to keep a lookout, see, observe the area with known local pedestrians that were permitted unabated access along an informal path and/or track crossing that has been long established by local pedestrians and remain in use until this date; in that they failed to avoid the accident, in that they failed to timely engage brakes or other stoppings mechanisms; in that they failed to secure the area; in that they failed to properly place gates, locks and other devices to prevent pedestrians from using the aforesaid area; in that they negligently left gates open, inviting pedestrians and others onto the premises; in that they failed to provide police and/or security guards and/or facility security to prevent pedestrians including claimant from entering upon the train tracks, despite clear knowledge of "pedestrian activity" in the area as evidenced by the magnitude of graffiti in and about the location; in that they failed to exercise due caution despite the knowledge that said location was commonly known as a site for "pedestrian activity"; in that they failed to provide alternate access for pedestrians that were using the crossing, making it unnecessarily dangerous to cross the railroad tracks; in that they failed to address the method of accident avoidance with this specific train operator who states he had a close call with this claimant prior to the incident; in that they failed to provide proper warning signs in both English and Spanish; in that they failed to warn the claimant of the dangers existing at the said location and in otherwise being negligent. 5. As herein before set forth under response to Demand # 3. 6. through 8. Actual and/or constructive notice is not a prerequisite in this instant action. 9. Plaintiff FRANCISCO CONTRERAS sustained the following injuries: 1) Complete traumatic amputation of right hip and thigh; 2FILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 2) Open fracture to the right thigh with fragmentation to the extending greater trochanter; 3) Non depressed fracture of the left occipital bone; 4) Multiple orbital fractures; 5) Edema along the inferior aspect of the right frontal lobe; 6) Severed femoral artery; 7) Essential hemorrhagic thrombocythemia; and 8) Permanent scarring at the operative sites. All of the aforesaid injuries extended to the surrounding nerves, tendons, tissues, ligaments, musculature and bony structure, including but not limited to the periosteum, cortex and blood circulatory system. That by reason of traurna to the right hip, plaintiff suffered and still does suffer from pain, tenderness, restriction and limitation of motion of the hip and leg, difficulty in ambulation and gait, recurrent persistent limping, with increased intensification of symptomatology on inclement weather, exertion or fatigue. Plaintiff has been required to undergo an extensive and extended course of physiotherapy in an effort to restore a semblance of former mobility to the affected areas. Due to the persistence of pain and symptomatology of the aforesaid injury, plaintiff was caused to undergo the following surgical procedures: 2018- Right lower guillotine high above knee amputation 1) February 7, extremity under general endotracheal anesthesia; 2018- Right traumatic above knee amputation and 2) February 10, sharp excisional debridement of skin, soft tissue and bone under general anesthesia; 2018- Irrigation and washout of above knee 3) February 12, amputation, femoral osteotomy and tenodesis of adductor musculature to the right femur; 2018- Debridement of wound and wound vac 4) February 17, placement; 3FILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 2018- Debridement of wound and wound vac 5) February 20, placement; 2018- Right lower wound washout with excisional 6) February 21, extremity debridement. Wound vac exchange and irrigation with washout of above knee amputation, femoral osteotomy and tenodesis of adductor musculature to the right femur under general anesthesia; 2018- Debridement of open wound from the right lower and 7) February 22, extremity washout of wound and coverage with split - thickness skin graft donor site of using the lower anterolateral thigh under general anesthesia. That by reason of the surgical procedures as hereinbefore set forth, plaintiff has been left with a permanent cosmetic defect and deformity in the form of scarring at the operative sites and suffered and continues to suffer from pain, tenderness and soreness at and about the said sites. Plaintiff has been advised and verily believes that the aforesaid injuries are of a chronic and protracted nature, which has resulted in permanent residuals and/or sequelae; and that his prognosis is guarded. Plaintiff will prove upon the trial hereof the manifestations of the injuries sustained as well as the medical aid and attention sought and received in an effort to cure and alleviate the symptomatology complained of, impairment and loss of function, and the resultant diminution of his economic and social capacity. Plaintiff reserves the right to supplement this response in accordance with the CPLR. 10. That as a result of the accident and the injuries sustained, plaintiff received emergency medical treatment at Lincoln Medical and Mental Health Center located at 249 East 149th street, Bronx, New York 10451 and was confined thereto for a period of approximately twenty four (24) days. Plaintiff was thereafter confined in and about his bed and home to present date and continuing, except when medical aid and receiving necessary attention, or upon isolated instances, or during the course of rehabilitation and/or convalescence, therapy. 4FILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 11. Plaintiff FRANCISCO CONTRERAS was not employed at the time of the occurrence. 12. Plaintiff FRANCISCO CONTRERAS claims the following special damages: Physicians' a. Services, all bills not received to date, exact amount unknown, approximated at: $ 25,000.00 "A" b. Medical Supplies, approximated at Included in c. Loss of Earnings, approximated at Not Applicable. "A" d. X-rays, approximated at Included in e. Hospital Expenses, approximated at $ 100,000.00 Nurses' f. Services Not Applicable. g. Incidental, miscellaneous and sundry expenses including carfares, drugs, transportation, etc., approximated at $100.00 Plaintiff reserves the right to supplement this response in accordance with the CPLR. 13. Not Applicable. 14. 15. Defendants violated all those statutes, ordinances and rules in the cases made and provided, of which the Court will take judicial notice upon the trial hereof, 16. A loss of services claim is not being made in this action. 5FILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 17. through 22. Not Applicable. Dated: New York, New York March 9, 2020 Yours, etc., ADAM S. BE TEIN, Q. BUDIN REISMAN KUP RBERG & BERNSTEIN LLP Attorneys for Plaintiff Office and P.O. ess 112 Madison Avenue New York, New York 10016-7416 (212) 696-5500 Our File No. LL11109; pcm TO: Landman Corsi Ballaine & Ford, P.C. Attorneys for Defendants NATIONAL RAILROAD PASSENGER CORPORATION, CSX TRANSPORTATION, INC., METROPOLITAN TRANSPORTATION AUTHORITY and MTA METRO-NORTH RAILROAD 120 Broadway 27th Floor New York, New York 10271-0079 212-238-4800 Kowalski & DeVito Attorneys for Defendant MCINNIS USA, INC. 80 Pine Street, Suite 300 New York, New York 10005-1702 212-250-1100 Zachary W. Carter, Esq. Attorneys for Defendants THE CITY OF NEW YORK 100 Church Street New York, NY 10007 6FILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/06/2020 ATTORNEY'S VERIFICATION ADAM S. BERNSTEIN, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: I am an attorney at BUDIN, REISMAN, KUPFERBERG & BERNSTEIN, LLP, attorneys of record for Plaintiff, in the action within. I have read the annexed BILL OF PARTICULARS and know the contents thereof, and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon facts, records, and other pertinent information contained in my files. This verification is made by me because Plaintiff is not presently in the county wherein I maintain my offices. DÄTED: New York, New York March 9, 2020 ADAM S. BERNS INFILED: BRONX COUNTY CLERK 07/06/2020 01:30 PM INDEX NO. 24832/2019ENYSCEF DOC. NO. 62 C C RECEIVED NYSCEF: 07/06/2020 AFFIDAVIT OF SERVICE STATE OF NEW YORK, COUNTY OF New York ss.: PETER C. MRAKOVCIC, being duly sworn, deposes and says: That deponent is not a party to this action is over the age of 18 years and resides in QUEENS County in the State of New York. That on March , 2020, deponent served the within VERIFIED BILL OF PARTICULARS upon: Landman Corsi Ballaine & Ford, P.C. 120 Broadway 27th Floor New York, New York 10271-0079 Kowalski & DeVito 80 Pine Street, Suite 300 New York, New York 10005-1702 Zachary W. Carter, Esq. 100 Church Street New York, NY 10007 by depositing a true copy of the same securely enclosed in a postpaid wrapper in a Post Office Box regularly maintained by the United States Government at Madison Avenue and East 30th Street, New York, New York directed to the above mentioned attorneys at their respective address, that being the address within the State designated by them for that purpose upon the preceding papers in this action or the place where they kept an office, between w 'ch places there then was and now is regular communication by mail. ETER C. MRAKOVCIC Sworn to efore me on March 2020 Not Public YULlYA BLOKHINA Commissioner of Deeds City of New York No. 2-12193 Commission Expires May 1, 20
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Case Number: BC585574 Hearing Date: August 27, 2024 Dept: 78 Superior Court of California County of Los Angeles Department 78 ¿ DANIEL CORONA, by and through his Guardian Ad Litem REBECCA GUTIERREZ, Plaintiff(s), vs. WHITE MEMORIAL MEDICAL CENTER, et al., Defendant(s). Case No.: BC585574 Hearing Date: August 27, 2024 [TENTATIVE] ORDER GRANTING MOTION FOR ATTORNEY FEES I. BACKGROUND & PROCEDURAL HISTORY Plaintiff Daniel Corona, a minor through his mother and guardian ad litem Rebecca Gutierrez, (Plaintiff) filed this action against his mothers prenatal health care provider Dr. Kathryn Shaw (Dr. Shaw). Plaintiff alleged Dr. Shaw negligently failed to diagnose his serious abnormalities that were evident on his ultrasound. On April 19, 2018, the parties filed a Notice of Settlement. On April 16, 2019, Plaintiffs petition to approve minors compromise was granted and the court found that the proposed $1,250,0000 settlement reasonably compensated minor Plaintiff for his claim. After deducting expenses and attorney fees, the balance of $873,504.18 was divided between a deferred annuity and an irrevocable special needs trust. (Order Approving Compromise, April 16, 2019.) Further, with the consent of Department of Health Care Services, (DHCS), $358,117.51 would be disbursed to Plaintiffs counsels Client Trust Account pending determination of DHCS lien claim. (Ibid.) On July 6, 2020, DHCS provided a revised final lien letter stating that it had paid $358,061 for Plaintiffs medical care, from which it sought to recover $229,696. On August 10, 2020, Judge Draper granted DHCS Medi-Cal Lien in the amount of $229,696. Plaintiff timely appealed, and the Court of Appeal found that the court erred by failing to equitably allocate the settlement amount. On November 29, 2023, Judge Feeney ruled that DHCS was to recover on its lien in the amount of $23,204.70. On June 12, 2024, Plaintiffs counsel filed the instant motion seeks approval for disbursem*nt of minor Plaintiffs funds in the amount of $30,973.80 for attorneys fees and $1,499.61 for costs advanced arising from the determination of DHCS lien, and pursuant to the retainer agreement between Plaintiff and his counsel. II. DISCUSSION Plaintiffs counsel avers that Plaintiff previously paid to DHCS $229,696 as determined by Judge Draper. After Judge Feeney determined that DHCS was entitled to collect $23,204.70 for its lien claim, the court ordered DHCS to issue a refund to Plaintiff in the amount of $206,492.03. DHCS paid the refund on February 14, 2024 via a check made payable to Plaintiffs counsels Client Trust Account. Plaintiffs counsel declares he distributed $174,018.62 to Plaintiffs Special Needs Trust, and held the remaining $32,473.41 in the Client Trust Account pending approval of distribution to Plaintiffs counsel for fees and costs advanced. Attorneys fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).) Here, Plaintiffs counsel attests that he and Plaintiff have a contingency fee agreement ,which specifies that Plaintiffs counsel is to receive 15% in fees of any reduction of DHCS lien claim, and that Plaintiffs counsel would be reimbursed for any costs advanced on Plaintiffs behalf. (Mot. Exh. 3.) Plaintiffs counsel avers 15% of $206,492.03 equates to $30,973.80, and that the receipts demonstrate costs advanced of $1,499.61 (Mot. Exh. 4) for filing fees and transaction costs incurred for filing the appeal and documents with the superior court. The Court has reviewed the Retainer Agreement Contingency Fee Contract and finds that Plaintiffs counsel has demonstrated that he is entitled to attorneys fees arising from settlement/determination of the DHCS lien by contractual agreement with Plaintiff through his guardian ad litem. Further, Plaintiffs counsel has supported, with evidence, the amount of costs advanced on behalf of Plaintiff. III. CONCLUSION The motion for attorney fees in the amount of $30,973.80 and reimbursem*nt of costs in the amount of $1,499.61 to be distributed from the Client Trust Account to Plaintiffs counsel is GRANTED. Moving Party is ordered to give notice. DATED: August 23, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
MONCINO HADNOT-BROWN VS GLAM HOUSE LOS ANGELES
Aug 26, 2024 |24STCV00245
Case Number: 24STCV00245 Hearing Date: August 26, 2024 Dept: 28 On August 1, 2024, the Court granted Midvale Indemnity Company (Midvale) leave to intervene on behalf of Defendant Happy Home Goods LLC dba Glam House (erroneously sued and served as Glam House Los Angeles) based on the stipulation between Midvale and Plaintiff Moncino Hadnot-Brown. Therefore, Midvales motion for leave to intervene, set to be heard on August 26, 2024, is moot.
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