On March 20, 2024 a
Motion-Secondary
was filed
involving a dispute between
Caralyn Bourbar As Parent And Natural Guardian Of Lily Bourbar, A Minor,
and
North Tonawanda School District,
for Torts - Other Negligence (premises liability)
in the District Court of Niagara County.
Preview
FILED: NIAGARA COUNTY CLERK 03/20/2024 11:30 AM INDEX NO. E182892/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/20/2024
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
CARALYN BOURBAR as
as Parent and Natural Guardian of
LILY BOURBAR, A minor.
AFFIDAVIT
- against -
NORTH TONAWANDA SCHOOL DISTRICT
STATE OF NEW YORK )
COUNTY OF NIAGARA ) ss:
CITY OF NIAGARA FALLS )
1. I am the parent and natural guardian of the infant, LILY BOURBAR born on
February 10, 2010.
2. On September 10, 2021 at approximately 2:50 P.M. Lily Bourbar, a minor, was
playing kickball on a tarped field within the property commonly known as the North Tonawanda
Intermediate High School located at 405 Meadow Drive in the City of North Tonawanda. This
claim was predicated upon negligent supervision, the negligent maintenance, negligent repair,
negligent construction, negligent design and failure to warn of a defect in that area on the playing
field located on the property in question.. It is claimed that the North Tonawanda School District,
through their agents or employees, created the dangerous condition by improperly placing a tarp
on a playing field and not placing warning signs or other instruments warning of the hazards in
the area thus enabling kids to play various sporting activities in the area, they directed the
children to play in that location despite the danger therein, by supervising the children including
infant claimant and permitting them to play in the dangerous area. It is claimed that the aforesaid
1 of 3
FILED: NIAGARA COUNTY CLERK 03/20/2024 11:30 AM INDEX NO. E182892/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/20/2024
condition constituted a dangerous condition to those individuals lawfully upon the premises such
as the minor claimant, Lily Bourbar.
.3. Following the incident, infant petitioner, LILY BOURBAR was taken to Pediatric
Urgent Care. According to the urgent car records, she complained of right ankle pain. She was given
an X-ray which revealed a non-displaced spiral fracture of the distal tibia. She was treated and
released that day.
4. Further medical treatment included follow up care with UBMD Orthopedics & Sports
Medicine. Lily waws given a CT scan which revealed well aligned fractures requiring no surgery.
She was casted, given crutches and required to remain out of school until 9/28/2021.
5. She continued to follow up with UBMD Orthopedics & Sports Medicine physical
therapy until she was fully release to physical education on 1/3/2022. There was no further follow up
care after 1/3/2022.
6. As a result of this incident, I retained the law offices of Viola, Cummings & Lindsay
LLP on September 13, 2021 to investigate the circumstances surrounding this incident.
5. After investigating the facts of the collision, serving a Notice of Claim, preparing
Lily for a 50-h hearing and negotiating with the insurance carrier, my attorney was able to
negotiate a settlement of $25,000.00.
6. I understand my attorneys have incurred disbursements in the amount of $516.66
for prosecuting a claim for my infant daughter Lily. I further understand that my attorneys have
earned the 33 1/3% agreed upon in the retainer. However, I understand that my attorneys have
agreed to reduce their fee to 30%.
7. I understand that, if this settlement if permitted, Lilly's share, after the attorney's
fee of Viola, Cummings, Lindsay, LLP will be deposited in an annuity with New York A+ rated
company with guaranteed lump sum payments set forth in the structured settlement agreement.
2 of 3
FILED: NIAGARA COUNTY CLERK 03/20/2024 11:30 AM INDEX NO. E182892/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/20/2024
8. The distribution of proceeds under the proposed $25,000.00 settlement are:
Settlement $25,000.00
Disbursements $516.66
Balance $24483.34
Attorney's Fees (30%) $7345.00
Balance $17,138.34
9. 1 understand that if the Court approves this settlement my daughter cannot make
any future claim against the defendant for pain and suffering from the accident of September 12,
2021.
CARALYNdOURBAR
Sworn to before me this d
day of (Ndt , 2024
m MATTHEW T. MOSHER
Pune, stage of Net
QusMed in Erie County
yok
Commission Expies15
My
Notary Pi lic
3 of 3
Document Filed Date
March 20, 2024
Case Filing Date
March 20, 2024
Category
Torts - Other Negligence (premises liability)
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: NIAGARA COUNTY CLERK 03/20/2024 11:30 AM INDEX NO. E182892/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/20/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA CARALYN BOURBAR as as Parent and Natural Guardian of LILY BOURBAR, A minor. AFFIDAVIT - against - NORTH TONAWANDA SCHOOL DISTRICT STATE OF NEW YORK ) COUNTY OF NIAGARA ) ss: CITY OF NIAGARA FALLS ) 1. I am the parent and natural guardian of the infant, LILY BOURBAR born on February 10, 2010. 2. On September 10, 2021 at approximately 2:50 P.M. Lily Bourbar, a minor, was playing kickball on a tarped field within the property commonly known as the North Tonawanda Intermediate High School located at 405 Meadow Drive in the City of North Tonawanda. This claim was predicated upon negligent supervision, the negligent maintenance, negligent repair, negligent construction, negligent design and failure to warn of a defect in that area on the playing field located on the property in question.. It is claimed that the North Tonawanda School District, through their agents or employees, created the dangerous condition by improperly placing a tarp on a playing field and not placing warning signs or other instruments warning of the hazards in the area thus enabling kids to play various sporting activities in the area, they directed the children to play in that location despite the danger therein, by supervising the children including infant claimant and permitting them to play in the dangerous area. It is claimed that the aforesaid 1 of 3 FILED: NIAGARA COUNTY CLERK 03/20/2024 11:30 AM INDEX NO. E182892/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/20/2024 condition constituted a dangerous condition to those individuals lawfully upon the premises such as the minor claimant, Lily Bourbar. .3. Following the incident, infant petitioner, LILY BOURBAR was taken to Pediatric Urgent Care. According to the urgent car records, she complained of right ankle pain. She was given an X-ray which revealed a non-displaced spiral fracture of the distal tibia. She was treated and released that day. 4. Further medical treatment included follow up care with UBMD Orthopedics & Sports Medicine. Lily waws given a CT scan which revealed well aligned fractures requiring no surgery. She was casted, given crutches and required to remain out of school until 9/28/2021. 5. She continued to follow up with UBMD Orthopedics & Sports Medicine physical therapy until she was fully release to physical education on 1/3/2022. There was no further follow up care after 1/3/2022. 6. As a result of this incident, I retained the law offices of Viola, Cummings & Lindsay LLP on September 13, 2021 to investigate the circumstances surrounding this incident. 5. After investigating the facts of the collision, serving a Notice of Claim, preparing Lily for a 50-h hearing and negotiating with the insurance carrier, my attorney was able to negotiate a settlement of $25,000.00. 6. I understand my attorneys have incurred disbursements in the amount of $516.66 for prosecuting a claim for my infant daughter Lily. I further understand that my attorneys have earned the 33 1/3% agreed upon in the retainer. However, I understand that my attorneys have agreed to reduce their fee to 30%. 7. I understand that, if this settlement if permitted, Lilly's share, after the attorney's fee of Viola, Cummings, Lindsay, LLP will be deposited in an annuity with New York A+ rated company with guaranteed lump sum payments set forth in the structured settlement agreement. 2 of 3 FILED: NIAGARA COUNTY CLERK 03/20/2024 11:30 AM INDEX NO. E182892/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/20/2024 8. The distribution of proceeds under the proposed $25,000.00 settlement are: Settlement $25,000.00 Disbursements $516.66 Balance $24483.34 Attorney's Fees (30%) $7345.00 Balance $17,138.34 9. 1 understand that if the Court approves this settlement my daughter cannot make any future claim against the defendant for pain and suffering from the accident of September 12, 2021. CARALYNdOURBAR Sworn to before me this d day of (Ndt , 2024 m MATTHEW T. MOSHER Pune, stage of Net QusMed in Erie County yok Commission Expies15 My Notary Pi lic 3 of 3