Preview
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
The City of New York
JAMES E. JOHNSON LAW DEPARTMENT
Corporation Counsel 100 CHURCH STREET
NEW YORK, NEW YORK 10007
Dear Counsel:
If you would like to have this case considered for possible early settlement by the
Early Intervention Unit of the Tort Division, the following items (as applicable) should be
forwarded to the attention of Millicent Nicholas-Richards via email to mnichola@law.nyc.gov.
IN ALL CASES COPIES OF THE FOLLOWING ITEMS MUST BE PROVIDED:
1. Notice of Claim and Filed Summons & Complaint.
2. Aided Card, if prepared.
3. UF18 - Involved Accident if prepared.
City Report,
4. All medical and hospital records, including ambulance call report, first treatment, full
emergency room record, operative and radiology reports, treating physician(s) reports,
physical therapy records, etc.
5. Photographs (duplicates, color or laser copies preferred) of the location and of injuries, if
scarring is claimed.
6. Proof of any special damages claimed.
7. Any other item(s) that you believe pertinent to an early resolution of your case.
8. Social number and other Medicare information - see attached notice
Security any
ALLEGED TRIP AND FALL ON A SIDEWALK OR ROADWAY
1. Most recently dated Big Apple map.
2. Any other documents that the plaintiff will rely upon to prove prior written notice.
MOTOR VEHICLE ACCIDENT CASES
1. Police Accident Report.
2. Agency incident/accident report, if prepared.
3. Repair bills and/or estimates.
4. If the accident involves traffic light or stop sign, any documentation that the plaintiff will
rely upon to prove notice.
ALLEGED PREMISES LIABILITY
1. Copies of any documents that plaintiff will rely on to establish ownership of the premises.
2. Prior complaints.
3. Accident/incident reports.
DEPARTMENT OF EDUCATION CASES
1. Accident and/or incident report and attachments, if any.
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
2. Custodian reports.
3. Teacher(s) statements/reports.
4. Witness statements.
ALLEGED POLICE MISCONDUCT
1. Any police reports in your possession.
2. Arrest Report, Complaint report, follow-up reports and photographs.
3. Certified copy of the disposition of any criminal proceedings.
4. If entitlement to reimbursement of legal fees is claimed, copies of any bills incurred.
ALLEGED PROPERTY DAMAGE
1. Photographs (duplicates, color or laser copies preferred) depicting the items alleged to have
been damaged, prior and subsequent to the damage.
2. Original purchase receipts, cancelled checks, and/or charge slips for the items alleged to
have been damaged.
3. Appraisals, warranties, etc.
4. Copies of any insurance agreements pertaining to property damages and/or loss.
Please be advised that all of the above materials must be sent in order to have your case considered
for possible settlement - incomplete cases cannot be considered. Within 30 days after receipt
early
of the above materials via email, you will be contacted to discuss the case further. Counsel
appearing at the conference must have settlement authority and be prepared to establish liability
and damages. If you have any questions, you may contact Nancy A. Goldbach directly by email to
ngoldbac@1aw.nyc.gov.
Very truly yours,
Nancy A. Goldbach
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
The City of New York
LAW DEPARTMENT
Office of the Corporation Counsel (212) 356-3109 (fax)
medicare(allaw.nve.gov
Tort Division
JAMES E. JOHNSON Medicare Compliance and Recovery Unit
Corporation 4"'
Counsel 100 Church Floor
Street,
New York, NY 10007-2668
November 18, 2019
LIAKAS LAW, PC.
65 BROADWAY, 13TH FLOOR
NEW YORK, NY 10006
Re: NICHOLAS GARCIA v. THE CITY OF NEW
YORK AND THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION
Law Dept. File No: 2018-079899
Dear Counselor:
We write to request that you provide us with certain personal identifying information
about each plaintiff you represent in this lawsuit in order for us to determine whether they are a
Medicare recipient(s). Specifically, we need each plaintiff's date of birth, gender, and Social
Security number or Health Insurance Claim Number (HICN), also known as the Medicare
number. This information will be used by the Law Department to obtain plaintiff's Medicare
status via a database established by the Centers for Medicare & Medicaid Services ("CMS") for
this purpose.1
Information about a plaintiff's Medicare status is required by the City in order to comply
with federal Medicare laws. Self-insured liability entities (such as the City of New York) are
plans"
considered "primary under the Medicare laws and are, therefore, required to report to
CMS all monetary recoveries obtained by Medicare-eligible plaintiffs in personal injury lawsuits.
See Medicare Secondary Payer Act (MSPA) 42 U.S.C. 1395y(b)(8)(A)(i); Seger v. Tank
Connection, LLC, 2010 U.S. Dist. LEXIS 49013 (D. Neb. Apr. 22, 2010) ) ("the Extension Act
process"
CMS has developed a "query under which a responsible reporting entity (RRE) (such as the City in this
case) can determine a claimant's Medicare status electronically, as long as the RRE has access to the claimant's
name, date of birth, gender and social security number. Seger v. Tank Connection, LLC, 2010 U.S. Dist. LEXIS
49013 at *13 (D. Neb. Apr. 22, 2010).
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NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
adds new mandatory reporting obligations to the Medicare Secondary Payer Act ("MSPA")
requiring . . . self-insurers to provide detailed information regarding all liability settlements or
open claims with ongoing responsibility for medical treatment with Medicare beneficiaries to the
Centers for Medicare and Medicaid Services ("CMS")"). Torres v Visto Realty Corp., 2015 N.Y.
App. Div. LEXIS 3216, 1-2 (1st Dep't 2015) ("plaintiff did not satisfy his obligations under
CPLR 5003-a, since he failed to provide defendant with the information relating to his Medicare
status that defendant requires to comply with its reporting obligations under 42 USC § 1395y")
(citations omitted); Bey v. City of New York, 2013 U.S. Dist. LEXIS 15597, at *5-6 (E.D.N.Y.
Feb. 5, 2013) (same.). Thus, the City needs to ascertain plaintiff's Medicare status for the
purposes of satisfying its reporting obligations.
Additionally, the City also requires the personal identifying information to resolve any
outstanding Medicare claims before issuing payment on settlements. See MSPA, 42 U.S.C.
1395y(b)(2)(B)(ii) ("a primary plan's responsibility for such payment may be demonstrated by a
judgment [or settlement] . . . for items or services included in a claim against the primary plan . .
(2nd
. ."); see also Torres v. Hirsch Park, LLC, 91 AD.3d 942 Dep't 2012) ("the authorizations
that the Supreme Court directed the plaintiff to provide are necessary for the defendant to
comply with its statutory duty to report the identity of a claimant who is entitled to Medicare
benefits (see 42 USC 1395y[b][8]) and to determine the existence of potential subrogation claims
[under federal law]") (citations omitted); Liss v. Brigham Park Coop Apts., 264 A.D.2d 717 (2d
Dep't 1999) (because the Federal government has a right of action directly against the defendant
for recovery of its lien, it was "incumbent upon plaintiff to resolve the lien and give the
defendant a release.")
Indeed, the responsibility of assuring reimbursement of Medicare claims extends to all
entities involved in the underlying liability action, including the plaintiff's counsel. CFR §
411.24(g); United States v. Harris, 2009 U.S. Dist. LEXIS 23956 (N.D. W. Va. Mar. 26, 2009)
(holding that plaintiff's attorney is liable to Medicare for unpaid liens because he disbursed
settlement funds in a liability case to his client without first reimbursing Medicare for its claims).
parties'
Thus, it is to all benefit to ascertain a plaintiff's Medicare status as early as possible so as
to resolve any existing Medicare claims and facilitate payment of settlements.
In view of the foregoing, we ask that you promptly submit to us the requested
information. If you know for a fact that your client presently receives Medicare, you should
lawsuit;2
immediately (1) notify Medicare of the pending (2) provide the Law Department with
plaintiff's Medicare identification number and/or social security number; (3) obtain conditional
and final payment information from Medicare and (4) provide copies of any correspondences to
2
If you have never notified Medicare about this injury claim before, the first step is to report the injury to the
Benefits Coordination & Recovery Contractor (BCRC) at P.O. Box 138897, Oldahoma City, OK 73113-8897, or by
telephone at 1-855-798-2627. A case identifier will be established, and you will then receive a correspondence
from the BCRC concerning any conditional payments made by Medicare on your client's behalf for the injuries
underlying this case. BCRC is the agency that will issue final demand letters on amounts due Medicare. More
detailed information concerning the foregoing procedures can be found at http://go.cms.gov/cobro by clicking on
Recovery'
the links to the left of the screen entitled 'Non-Group Health Plan and 'Reimbursing Medicare'. There is
also a portal on this website, the Medicare Secondary Payer Recovery Portal (MSPRP) that allows registered users
to access and update certain case-specific information online, including an electronic conditional payment letter.
Please visit the website for information as how to register for this service.
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
the City. If future medical care for plaintiff is anticipated, you may also need to consider a
costs;3
Medicare set-aside instrument for payment of future medical
If plaintiff was insured under a Medicare Advantage Plan ("MAP") under Part C of the
Medicare Act at any time after the incident at issue here, plaintiff should notify the City about
the MAP coverage, and also inform the MAP(s) of this lawsuit. Recent New York decisions
have held that a MAP provider can pursue recovery of its reimbursement and/or subrogation
claims in the same manner as traditional Medicare. See Potts v. Rawlings Co., LLC, 897 F.
Supp. 2d 185 (S.D.N.Y. 2012); Trezza v Trezza, 104 A.D.3d 37, 48 (2d Dep't 2012)
("Based on the express preemption provision set forth in 42 USC § 1395w-26(b)(3), as well as
the regulations set forth in 42 CFR 422.108(f), we hold that General Obligations Law § 5-335,
insofar as applied to Medicare Advantage organizations under Part C, is preempted by federal
law since it would impermissibly constrain contractual reimbursement rights authorized under
payer"
the "Organization as secondary provisions of the Medicare Act."). Moreover, several
federal courts have ruled that a MAP provider can also bring a federal action to collect on its
liens under 42 U.S.C. - and can seek double damages thereunder. See In re
§ 1395y(b)(3)(A)
Avandia Mktg., 685 F.3d 353, 360 (3d Cir. Pa. 2012); Collins v. Wellcare Healthcare Plans, Inc.,
2014 U.S. Dist. LEXIS 174420 (E.D. La. Dec. 16, 2014). The City, therefore, will require
resolution of any Medicare-related claims as a condition to any settlement in this matter,
regardless whether the claims are asserted by the government under a traditional Medicare plan
or by a MAP under a Medicare Part C.
Thank you for your attention to the foregoing. Should you have any questions, feel free
to contact the City's Medicare Compliance Unit at 212-356-2687.
PLEASE BE ADVISED THAT WE CANNOT FINALIZE ANY SETTLEMENT
WITH A CURRENT MEDICARE RECIPIENT WITHOUT FIRST RESOLVING
MEDICARE'S CLAIM.
Very truly yours, .
Medicare Compliance Officer
Encl.
3
You should be aware that if CMS determines that Medicare's future interests were not adequately protected, CMS
may require that plaintiff expend up to the entire amount of the settlement on Medicare-covered expenses related to
the injury claimed in this lawsuit before Medicare will provide coverage for the further treatment of such injury. See
Cribb v. Sulzer Metco (US) Inc., 2012 U.S. Dist. LEXIS 134900 (E.D.N.C. Sept. 5, 2012); Sipler v. Trans Am
Trucking, 881 F. Supp. 2d 635, 638 (D.N.J. 2012).
Inc., Accordingly, we suggest that plaintiff evaluate her future
medical needs with her physicians and consider creating a Medicare set-aside instrument at the appropriate time.
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---___________________-----------------------------------------__-------X
NICHOLAS GARCIA,
ANSWER
Plaintiff(s),
-against- Index #: 519451/2019
THE CITY OF NEW YORK AND THE NEW YORK Law Dept. #: 2018-079899
CITY DEPARTMENT OF TRANSPORTATION,
Defendant(s).
__-----__---------------------------------------------------------------X
Defendants THE CITY OF NEW YORK, and THE CITY OF NEW YORK
S/H/A THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, by upon JAMES
E. JOHNSON, Corporation Counsel, answering the complaint, allege information and belief:
1. Deny each allegation set forth in paragraph(s) 47, 51-57, inclusive.
2. Deny knowledge or information sufficient to form a belief with respect to
the truth of the allegations set forth in paragraph(s) 1, 19-29, 34-40, 44, 46, 49, 50, inclusive.
3. Deny the allegations set forth in paragraph(s) 3-8, 10-15, inclusive, except
that a notice of a claim was presented, that more than thirty days have elapsed without
adjustment thereof.
4. Deny each allegation set forth in paragraph(s) 16-18, 30-33, 41-43, 45, 48,
inclusive, except that with respect to those portions of the street(s), sidewalks and appurtenances
referred to in the complaint which were or may have been owned by the City of New York,
defendant(s) had such duties as were imposed by law.
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024
5. Deny each allegation set forth in paragraph(s) 2, 9, inclusive, except that
the City of New York is a municipal corporation which maintains a Department of
Transportation pursuant to law.
AFFIRMATIVE DEFENSE(S)
Plaintiff(s)'
6. culpable conduct caused or contributed, in whole or in part, to
his/her/their injuries and or damages.
7. At all times mentioned in the complaint, plaintiff(s) knew or should have
known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the
activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged activity and
assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required,
proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper,
Plaintiff(s)'
appropriate and reasonable steps to assure his/her/their safety. primary assumption
of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the
Plaintiff(s)'
plaintiff(s) with respect to the risk assumed. express assumption of risk solely
caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with
Plaintiff(s)'
respect to the risk assumed. implied assumption of risk caused or contributed, in
whole or in part to his/her/their injuries. In any action for injuries arising from the use of a
vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries and/or
damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts and/or
other safety devices.
8. Defendants are immune from suit for their exercise of discretion in the
performance of a governmental function and/or their exercise of professional judgment.
9. The amounts recoverable by plaintiff(s) are subject to limitation pursuant
to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other
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person(s) who are, or with reasonable diligence could have been made party defendant(s) to this
action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior
settlement between plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil
Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or
by reason of the fact that punitive damages are not recoverable against municipal defendant(s).
10. Plaintiff(s) did not submit to an examination pursuant to Section 50-h,
General Municipal Law, before commencement of this action.
WHEREFORE, defendant(s) demand judgment dismissing the complaint and all
cross-claims against them, or, in the event that they are adjudged liable, granting judgment over,
or apportioning such liability in accordance with their equitable shares of responsibility, and
awarding the costs of this action, together with such other and further relief as to the court may
seem just.
JAMES E. JOHNSON
Corporation Counsel
100 Church Street
New York, New York 10007
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019
NYSCEF D
Preview
FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 The City of New York JAMES E. JOHNSON LAW DEPARTMENT Corporation Counsel 100 CHURCH STREET NEW YORK, NEW YORK 10007 Dear Counsel: If you would like to have this case considered for possible early settlement by the Early Intervention Unit of the Tort Division, the following items (as applicable) should be forwarded to the attention of Millicent Nicholas-Richards via email to mnichola@law.nyc.gov. IN ALL CASES COPIES OF THE FOLLOWING ITEMS MUST BE PROVIDED: 1. Notice of Claim and Filed Summons & Complaint. 2. Aided Card, if prepared. 3. UF18 - Involved Accident if prepared. City Report, 4. All medical and hospital records, including ambulance call report, first treatment, full emergency room record, operative and radiology reports, treating physician(s) reports, physical therapy records, etc. 5. Photographs (duplicates, color or laser copies preferred) of the location and of injuries, if scarring is claimed. 6. Proof of any special damages claimed. 7. Any other item(s) that you believe pertinent to an early resolution of your case. 8. Social number and other Medicare information - see attached notice Security any ALLEGED TRIP AND FALL ON A SIDEWALK OR ROADWAY 1. Most recently dated Big Apple map. 2. Any other documents that the plaintiff will rely upon to prove prior written notice. MOTOR VEHICLE ACCIDENT CASES 1. Police Accident Report. 2. Agency incident/accident report, if prepared. 3. Repair bills and/or estimates. 4. If the accident involves traffic light or stop sign, any documentation that the plaintiff will rely upon to prove notice. ALLEGED PREMISES LIABILITY 1. Copies of any documents that plaintiff will rely on to establish ownership of the premises. 2. Prior complaints. 3. Accident/incident reports. DEPARTMENT OF EDUCATION CASES 1. Accident and/or incident report and attachments, if any. FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 2. Custodian reports. 3. Teacher(s) statements/reports. 4. Witness statements. ALLEGED POLICE MISCONDUCT 1. Any police reports in your possession. 2. Arrest Report, Complaint report, follow-up reports and photographs. 3. Certified copy of the disposition of any criminal proceedings. 4. If entitlement to reimbursement of legal fees is claimed, copies of any bills incurred. ALLEGED PROPERTY DAMAGE 1. Photographs (duplicates, color or laser copies preferred) depicting the items alleged to have been damaged, prior and subsequent to the damage. 2. Original purchase receipts, cancelled checks, and/or charge slips for the items alleged to have been damaged. 3. Appraisals, warranties, etc. 4. Copies of any insurance agreements pertaining to property damages and/or loss. Please be advised that all of the above materials must be sent in order to have your case considered for possible settlement - incomplete cases cannot be considered. Within 30 days after receipt early of the above materials via email, you will be contacted to discuss the case further. Counsel appearing at the conference must have settlement authority and be prepared to establish liability and damages. If you have any questions, you may contact Nancy A. Goldbach directly by email to ngoldbac@1aw.nyc.gov. Very truly yours, Nancy A. Goldbach FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 The City of New York LAW DEPARTMENT Office of the Corporation Counsel (212) 356-3109 (fax) medicare(allaw.nve.gov Tort Division JAMES E. JOHNSON Medicare Compliance and Recovery Unit Corporation 4"' Counsel 100 Church Floor Street, New York, NY 10007-2668 November 18, 2019 LIAKAS LAW, PC. 65 BROADWAY, 13TH FLOOR NEW YORK, NY 10006 Re: NICHOLAS GARCIA v. THE CITY OF NEW YORK AND THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION Law Dept. File No: 2018-079899 Dear Counselor: We write to request that you provide us with certain personal identifying information about each plaintiff you represent in this lawsuit in order for us to determine whether they are a Medicare recipient(s). Specifically, we need each plaintiff's date of birth, gender, and Social Security number or Health Insurance Claim Number (HICN), also known as the Medicare number. This information will be used by the Law Department to obtain plaintiff's Medicare status via a database established by the Centers for Medicare & Medicaid Services ("CMS") for this purpose.1 Information about a plaintiff's Medicare status is required by the City in order to comply with federal Medicare laws. Self-insured liability entities (such as the City of New York) are plans" considered "primary under the Medicare laws and are, therefore, required to report to CMS all monetary recoveries obtained by Medicare-eligible plaintiffs in personal injury lawsuits. See Medicare Secondary Payer Act (MSPA) 42 U.S.C. 1395y(b)(8)(A)(i); Seger v. Tank Connection, LLC, 2010 U.S. Dist. LEXIS 49013 (D. Neb. Apr. 22, 2010) ) ("the Extension Act process" CMS has developed a "query under which a responsible reporting entity (RRE) (such as the City in this case) can determine a claimant's Medicare status electronically, as long as the RRE has access to the claimant's name, date of birth, gender and social security number. Seger v. Tank Connection, LLC, 2010 U.S. Dist. LEXIS 49013 at *13 (D. Neb. Apr. 22, 2010). FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 adds new mandatory reporting obligations to the Medicare Secondary Payer Act ("MSPA") requiring . . . self-insurers to provide detailed information regarding all liability settlements or open claims with ongoing responsibility for medical treatment with Medicare beneficiaries to the Centers for Medicare and Medicaid Services ("CMS")"). Torres v Visto Realty Corp., 2015 N.Y. App. Div. LEXIS 3216, 1-2 (1st Dep't 2015) ("plaintiff did not satisfy his obligations under CPLR 5003-a, since he failed to provide defendant with the information relating to his Medicare status that defendant requires to comply with its reporting obligations under 42 USC § 1395y") (citations omitted); Bey v. City of New York, 2013 U.S. Dist. LEXIS 15597, at *5-6 (E.D.N.Y. Feb. 5, 2013) (same.). Thus, the City needs to ascertain plaintiff's Medicare status for the purposes of satisfying its reporting obligations. Additionally, the City also requires the personal identifying information to resolve any outstanding Medicare claims before issuing payment on settlements. See MSPA, 42 U.S.C. 1395y(b)(2)(B)(ii) ("a primary plan's responsibility for such payment may be demonstrated by a judgment [or settlement] . . . for items or services included in a claim against the primary plan . . (2nd . ."); see also Torres v. Hirsch Park, LLC, 91 AD.3d 942 Dep't 2012) ("the authorizations that the Supreme Court directed the plaintiff to provide are necessary for the defendant to comply with its statutory duty to report the identity of a claimant who is entitled to Medicare benefits (see 42 USC 1395y[b][8]) and to determine the existence of potential subrogation claims [under federal law]") (citations omitted); Liss v. Brigham Park Coop Apts., 264 A.D.2d 717 (2d Dep't 1999) (because the Federal government has a right of action directly against the defendant for recovery of its lien, it was "incumbent upon plaintiff to resolve the lien and give the defendant a release.") Indeed, the responsibility of assuring reimbursement of Medicare claims extends to all entities involved in the underlying liability action, including the plaintiff's counsel. CFR § 411.24(g); United States v. Harris, 2009 U.S. Dist. LEXIS 23956 (N.D. W. Va. Mar. 26, 2009) (holding that plaintiff's attorney is liable to Medicare for unpaid liens because he disbursed settlement funds in a liability case to his client without first reimbursing Medicare for its claims). parties' Thus, it is to all benefit to ascertain a plaintiff's Medicare status as early as possible so as to resolve any existing Medicare claims and facilitate payment of settlements. In view of the foregoing, we ask that you promptly submit to us the requested information. If you know for a fact that your client presently receives Medicare, you should lawsuit;2 immediately (1) notify Medicare of the pending (2) provide the Law Department with plaintiff's Medicare identification number and/or social security number; (3) obtain conditional and final payment information from Medicare and (4) provide copies of any correspondences to 2 If you have never notified Medicare about this injury claim before, the first step is to report the injury to the Benefits Coordination & Recovery Contractor (BCRC) at P.O. Box 138897, Oldahoma City, OK 73113-8897, or by telephone at 1-855-798-2627. A case identifier will be established, and you will then receive a correspondence from the BCRC concerning any conditional payments made by Medicare on your client's behalf for the injuries underlying this case. BCRC is the agency that will issue final demand letters on amounts due Medicare. More detailed information concerning the foregoing procedures can be found at http://go.cms.gov/cobro by clicking on Recovery' the links to the left of the screen entitled 'Non-Group Health Plan and 'Reimbursing Medicare'. There is also a portal on this website, the Medicare Secondary Payer Recovery Portal (MSPRP) that allows registered users to access and update certain case-specific information online, including an electronic conditional payment letter. Please visit the website for information as how to register for this service. FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 the City. If future medical care for plaintiff is anticipated, you may also need to consider a costs;3 Medicare set-aside instrument for payment of future medical If plaintiff was insured under a Medicare Advantage Plan ("MAP") under Part C of the Medicare Act at any time after the incident at issue here, plaintiff should notify the City about the MAP coverage, and also inform the MAP(s) of this lawsuit. Recent New York decisions have held that a MAP provider can pursue recovery of its reimbursement and/or subrogation claims in the same manner as traditional Medicare. See Potts v. Rawlings Co., LLC, 897 F. Supp. 2d 185 (S.D.N.Y. 2012); Trezza v Trezza, 104 A.D.3d 37, 48 (2d Dep't 2012) ("Based on the express preemption provision set forth in 42 USC § 1395w-26(b)(3), as well as the regulations set forth in 42 CFR 422.108(f), we hold that General Obligations Law § 5-335, insofar as applied to Medicare Advantage organizations under Part C, is preempted by federal law since it would impermissibly constrain contractual reimbursement rights authorized under payer" the "Organization as secondary provisions of the Medicare Act."). Moreover, several federal courts have ruled that a MAP provider can also bring a federal action to collect on its liens under 42 U.S.C. - and can seek double damages thereunder. See In re § 1395y(b)(3)(A) Avandia Mktg., 685 F.3d 353, 360 (3d Cir. Pa. 2012); Collins v. Wellcare Healthcare Plans, Inc., 2014 U.S. Dist. LEXIS 174420 (E.D. La. Dec. 16, 2014). The City, therefore, will require resolution of any Medicare-related claims as a condition to any settlement in this matter, regardless whether the claims are asserted by the government under a traditional Medicare plan or by a MAP under a Medicare Part C. Thank you for your attention to the foregoing. Should you have any questions, feel free to contact the City's Medicare Compliance Unit at 212-356-2687. PLEASE BE ADVISED THAT WE CANNOT FINALIZE ANY SETTLEMENT WITH A CURRENT MEDICARE RECIPIENT WITHOUT FIRST RESOLVING MEDICARE'S CLAIM. Very truly yours, . Medicare Compliance Officer Encl. 3 You should be aware that if CMS determines that Medicare's future interests were not adequately protected, CMS may require that plaintiff expend up to the entire amount of the settlement on Medicare-covered expenses related to the injury claimed in this lawsuit before Medicare will provide coverage for the further treatment of such injury. See Cribb v. Sulzer Metco (US) Inc., 2012 U.S. Dist. LEXIS 134900 (E.D.N.C. Sept. 5, 2012); Sipler v. Trans Am Trucking, 881 F. Supp. 2d 635, 638 (D.N.J. 2012). Inc., Accordingly, we suggest that plaintiff evaluate her future medical needs with her physicians and consider creating a Medicare set-aside instrument at the appropriate time. FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---___________________-----------------------------------------__-------X NICHOLAS GARCIA, ANSWER Plaintiff(s), -against- Index #: 519451/2019 THE CITY OF NEW YORK AND THE NEW YORK Law Dept. #: 2018-079899 CITY DEPARTMENT OF TRANSPORTATION, Defendant(s). __-----__---------------------------------------------------------------X Defendants THE CITY OF NEW YORK, and THE CITY OF NEW YORK S/H/A THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, by upon JAMES E. JOHNSON, Corporation Counsel, answering the complaint, allege information and belief: 1. Deny each allegation set forth in paragraph(s) 47, 51-57, inclusive. 2. Deny knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraph(s) 1, 19-29, 34-40, 44, 46, 49, 50, inclusive. 3. Deny the allegations set forth in paragraph(s) 3-8, 10-15, inclusive, except that a notice of a claim was presented, that more than thirty days have elapsed without adjustment thereof. 4. Deny each allegation set forth in paragraph(s) 16-18, 30-33, 41-43, 45, 48, inclusive, except that with respect to those portions of the street(s), sidewalks and appurtenances referred to in the complaint which were or may have been owned by the City of New York, defendant(s) had such duties as were imposed by law. FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 5. Deny each allegation set forth in paragraph(s) 2, 9, inclusive, except that the City of New York is a municipal corporation which maintains a Department of Transportation pursuant to law. AFFIRMATIVE DEFENSE(S) Plaintiff(s)' 6. culpable conduct caused or contributed, in whole or in part, to his/her/their injuries and or damages. 7. At all times mentioned in the complaint, plaintiff(s) knew or should have known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged activity and assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required, proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper, Plaintiff(s)' appropriate and reasonable steps to assure his/her/their safety. primary assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the Plaintiff(s)' plaintiff(s) with respect to the risk assumed. express assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with Plaintiff(s)' respect to the risk assumed. implied assumption of risk caused or contributed, in whole or in part to his/her/their injuries. In any action for injuries arising from the use of a vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries and/or damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts and/or other safety devices. 8. Defendants are immune from suit for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment. 9. The amounts recoverable by plaintiff(s) are subject to limitation pursuant to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/08/2024 person(s) who are, or with reasonable diligence could have been made party defendant(s) to this action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior settlement between plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or by reason of the fact that punitive damages are not recoverable against municipal defendant(s). 10. Plaintiff(s) did not submit to an examination pursuant to Section 50-h, General Municipal Law, before commencement of this action. WHEREFORE, defendant(s) demand judgment dismissing the complaint and all cross-claims against them, or, in the event that they are adjudged liable, granting judgment over, or apportioning such liability in accordance with their equitable shares of responsibility, and awarding the costs of this action, together with such other and further relief as to the court may seem just. JAMES E. JOHNSON Corporation Counsel 100 Church Street New York, New York 10007 FILED: KINGS COUNTY CLERK 03/08/2024 12:37 PM INDEX NO. 519451/2019 NYSCEF D