Preview
FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
JOANNE SPOTO DECKER, Commissioner of the
Onondaga County Department of Adult & Long-Term AFFIDAVIT
Care Services, as Guardian of the Persons and Property of (JoAnne Spoto Decker)
BARBARA KREN, an Incapacitated Person.
Index No.:
i
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA )
JoAnne Spoto Decker, being duly sworn, deposes and states as follows:
1. I, JoAnne Spoto Decker, am currently the Commissioner of the Onondaga County
Department of Adult & Long-Term Care Services.
2. By Order of the Supreme Court of Onondaga County, dated January 5, 2018, the
Department of Adult and Long-Term Care Services was duly appointed under the
provisions of Article 81 of the Mental Hygiene Law, as Guardian of the Person and
Property of Barbara Kren. The most recent Order modifying such previous Order is
attached hereto as Exhibit A.
3. Given my role as Commissioner of the Onondaga County Department of Adult &
Long-Term Care Services, and by virtue of the Order ofthe Hon. Jospeh E. Lamendola,
I serve as Ms. Kren's representative and guardian of her person and property.
F
4. Your deponent submits this Affidavit in support of Ms. Barbara Kren's application
respectfully asking this Court to: (1) approve the compromise of Ms. Kren's claims for
alleged injuries she sustained when struck as a pedestrian by a motor vehicle operated
by Jaime E. Graves on November 5, 2022, for the total sum of $100,000.00; (2) permit
myself to compromise and settle all claims against Jaime E. Graves, and permit me to
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FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
sign and execute and deliver any and all documents, releases, or any other papers
necessary to effectuate said compromise; (3) permit the Cherundolo Law Firm, PLLC,
to pay out of the settlement proceeds the sum of $33,333.33 for attorney's fees, together
with costs and disbursements in the sum of $1,764.53, and that such amount be deemed
reasonably under the circumstances; (4) permit the Cherundolo Law Firm, PLLC, to
pay out of the settlement the sum of $9,627.57 to Medicare in full satisfaction of the
lien asserted; and (5) permit the Cherundolo Law Firm, PLLC, to pay the balance of
the settlement proceeds totaling $55,274.57 to the Supplemental Needs Trust attached
hereto.
5. By way of background, Ms. Kren (DOB: 9/21/1946) currently resides at 7164 East
Genesee Street, Room 19, Fayetteville, New York 13066 (mailing address is Attn: M.
5th
Friedrich, Adult Protectives Services Senior Case Worker, 421 Montgomery Street,
Floor East, Syracuse, New York 13202).
6. On November 5, 2022, Ms. Kren was lawfully crossing Lodi Street as a pedestrian (at
the intersection of Butternut Street) and was struck by a vehicle operated by Jaime E.
Graves. See police report attached hereto as Exhibit B.
7. As a result of such occurrence, Ms. Kren was transported emergently to Upstate
University (community campus), and was subsequently diagnosed with a right hip
femoral neck fracture and stage IV avascular necrosis of the impacted area.
8. On November 7, 2022, Dr. Emil Azer performed a right total hip arthroplasty to address
such injuries.
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FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
9. Ms. Kren subsequently underwent significant inpatient rehabilitation to address her
injuries, along with extensive physical therapy. A copy ofthe pertinent medical records
pertaining to Ms. Kren's initial injury and surgery are attached hereto as Exhibit C.
10. Upon information and belief, Ms. Kren has reached maximum medical improvement
and is able to ambulate.
11. Thereafter, the Cherundolo Law Firm, PLLC, was retained to pursue legal action
arising from this occurrence after an application was made by the Onondaga County
Department of Adult & Long-Term Care Services to the Supreme Court to obtain
counsel on behalf of Ms. Kren.
Graves'
12. It is my understanding that after negotiations with Jaime insurance company,
i.e., Progressive, the entirety of the available policy in the amount of $100,000.00 has
been offered. It is further my understanding that Jaime Graves did not maintain any
excess insurance policy. A copy of the correspondence indicating that the entirety of
Jamie Grave's insurance policy has been offered is attached hereto as Exhibit D.
13. After discussions, I believe it is in the best interest to resolve this matter for the
maximum available insurance policy totaling $100,000.00 for the following reasons:
a. There are no additional insurance monies available;
b. Pursuing an action against Jaime Graves in an attempt to obtain a verdict in
excess of the policy limits and then seek his personal assets, if any, would be
challenging, and likely not fruitful; and
c. Settlement ofthis action would do away with the need for depositions, or a trial,
and would bring closure to Ms. Kren.
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FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
14. With regard to attorneys fees, a retainer agreement was executed that detailed any
attorney fee would be 33.33% of any resolution.
15. Pursuant to the terms of the retainer agreement, I support an attomey fee totaling
$33,333.33 for work completed by the Cherundolo Law Firm, PLLC, in pursuing a
recovery for Ms. Kren and reaching a preliminary settlement for the maximum
insurance coverage available.
16. I further find that the costs incurred in pursing this action reasonable, and ask that
Cherundolo Law Firm, PLLC, be paid $1,764.53 out of the proceeds of the settlement
for costs and disbursements.
17. It is my understanding that Ms. Kren's medical expenses were originally paid via Jaime
Graves'
no-fault policy, i.e., personal injury protection. It is further my understanding
that Ms. Kren ultimately exhausted the no fault policy/personal injury protection
Graves'
afforded under Mr. policy that totaled $75,000.00. A copy of the First Party
Medical Summary is attached hereto as Exhibit E.
18. Once the no-fault policy/personal injury protection was exhausted, Medicare
paid/reimbursed Ms. Kren's medical expenses. Initially, Medicare claimed a lien
totaling $14,484.73. It is my understanding that the Cherundolo Law Firm, PLLC, was
able to reduce/negotiate the claimed lien by Medicare to $9,627.57. A copy of the
final demand letter promulgated by Medicare is attached hereto as Exhibit F.
19. Your deponent respectfully asks that the Cherundolo Law Firm, PLLC, pay out of the
settlement proceeds $9,627.57 to Medicare in full satisfaction of the lien asserted.
20. With regard to the remaining balance totaling $55,274.57, your deponent respectfully
asks that such be paid to the annexed supplemental needs trust previously established
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FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
for the benefit of Ms. Kren. A copy of the supplemental needs trust is attached hereto
as Exhibit G.
21. Ms. Kren was not working at the time of this incident, and sustained no lost wages.
22. Ms. Kren, her representatives nor any member of her family have made a claim for
damages alleged to have been suffered as a result of this occurrence besides submitting
the instant application/petition. i
23. No previous application has been made for the relief sought herein.
WHEREFORE, your deponent respectfully requests this Court:
(1) approve the compromise of Ms. Kren's claims for alleged injuries she sustained
when struck by a motor vehicle operated by Jaime E. Graves on November 5, 2022, for
the total sum of $100,000.00;
(2) permit myself to compromise and settle all claims against Jaime E. Graves, and
permit me to sign and execute and deliver any and all documents, releases, or any other
papers necessary to effectuate said compromise;
(3) permit the Cherundolo Law Firm, PLLC, to pay out of the settlement proceedsthe
sum of$33,333.33 for attorney's fees, together with costs and disbursements in the sum
of $1,764.53, and that such amount be deemed reasonably under the circumstances.;
(4) permit the Cherundolo Law Finn, PLLC, to pay out of the settlement the sum of
$9,627.57 to Medicare in satisfaction of the lien asserted; and
(5) permit the Cherundolo Law Firm, PLLC, to pay the balance of the settlement
proceeds totaling $55,274.57 to the annexed Supplemental Needs Trust.
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FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024
JoAnne Spoto Decker, Commissioner
of the Onondaga County Department of
Adult & Long-Term Care Services
Swo o before me
this day of April, 2024.
Notary Public
SU7ANNE WILCOX
of New Yom
Wotary Public in the State
Dualified in Onondaga Co. No.01WI6095046
My Commission Expires Jure 30,202f)
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Preview
FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA JOANNE SPOTO DECKER, Commissioner of the Onondaga County Department of Adult & Long-Term AFFIDAVIT Care Services, as Guardian of the Persons and Property of (JoAnne Spoto Decker) BARBARA KREN, an Incapacitated Person. Index No.: i STATE OF NEW YORK ) ) ss.: COUNTY OF ONONDAGA ) JoAnne Spoto Decker, being duly sworn, deposes and states as follows: 1. I, JoAnne Spoto Decker, am currently the Commissioner of the Onondaga County Department of Adult & Long-Term Care Services. 2. By Order of the Supreme Court of Onondaga County, dated January 5, 2018, the Department of Adult and Long-Term Care Services was duly appointed under the provisions of Article 81 of the Mental Hygiene Law, as Guardian of the Person and Property of Barbara Kren. The most recent Order modifying such previous Order is attached hereto as Exhibit A. 3. Given my role as Commissioner of the Onondaga County Department of Adult & Long-Term Care Services, and by virtue of the Order ofthe Hon. Jospeh E. Lamendola, I serve as Ms. Kren's representative and guardian of her person and property. F 4. Your deponent submits this Affidavit in support of Ms. Barbara Kren's application respectfully asking this Court to: (1) approve the compromise of Ms. Kren's claims for alleged injuries she sustained when struck as a pedestrian by a motor vehicle operated by Jaime E. Graves on November 5, 2022, for the total sum of $100,000.00; (2) permit myself to compromise and settle all claims against Jaime E. Graves, and permit me to 1 of 6 FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 sign and execute and deliver any and all documents, releases, or any other papers necessary to effectuate said compromise; (3) permit the Cherundolo Law Firm, PLLC, to pay out of the settlement proceeds the sum of $33,333.33 for attorney's fees, together with costs and disbursements in the sum of $1,764.53, and that such amount be deemed reasonably under the circumstances; (4) permit the Cherundolo Law Firm, PLLC, to pay out of the settlement the sum of $9,627.57 to Medicare in full satisfaction of the lien asserted; and (5) permit the Cherundolo Law Firm, PLLC, to pay the balance of the settlement proceeds totaling $55,274.57 to the Supplemental Needs Trust attached hereto. 5. By way of background, Ms. Kren (DOB: 9/21/1946) currently resides at 7164 East Genesee Street, Room 19, Fayetteville, New York 13066 (mailing address is Attn: M. 5th Friedrich, Adult Protectives Services Senior Case Worker, 421 Montgomery Street, Floor East, Syracuse, New York 13202). 6. On November 5, 2022, Ms. Kren was lawfully crossing Lodi Street as a pedestrian (at the intersection of Butternut Street) and was struck by a vehicle operated by Jaime E. Graves. See police report attached hereto as Exhibit B. 7. As a result of such occurrence, Ms. Kren was transported emergently to Upstate University (community campus), and was subsequently diagnosed with a right hip femoral neck fracture and stage IV avascular necrosis of the impacted area. 8. On November 7, 2022, Dr. Emil Azer performed a right total hip arthroplasty to address such injuries. 2 of 6 FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 9. Ms. Kren subsequently underwent significant inpatient rehabilitation to address her injuries, along with extensive physical therapy. A copy ofthe pertinent medical records pertaining to Ms. Kren's initial injury and surgery are attached hereto as Exhibit C. 10. Upon information and belief, Ms. Kren has reached maximum medical improvement and is able to ambulate. 11. Thereafter, the Cherundolo Law Firm, PLLC, was retained to pursue legal action arising from this occurrence after an application was made by the Onondaga County Department of Adult & Long-Term Care Services to the Supreme Court to obtain counsel on behalf of Ms. Kren. Graves' 12. It is my understanding that after negotiations with Jaime insurance company, i.e., Progressive, the entirety of the available policy in the amount of $100,000.00 has been offered. It is further my understanding that Jaime Graves did not maintain any excess insurance policy. A copy of the correspondence indicating that the entirety of Jamie Grave's insurance policy has been offered is attached hereto as Exhibit D. 13. After discussions, I believe it is in the best interest to resolve this matter for the maximum available insurance policy totaling $100,000.00 for the following reasons: a. There are no additional insurance monies available; b. Pursuing an action against Jaime Graves in an attempt to obtain a verdict in excess of the policy limits and then seek his personal assets, if any, would be challenging, and likely not fruitful; and c. Settlement ofthis action would do away with the need for depositions, or a trial, and would bring closure to Ms. Kren. 3 of 6 FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 14. With regard to attorneys fees, a retainer agreement was executed that detailed any attorney fee would be 33.33% of any resolution. 15. Pursuant to the terms of the retainer agreement, I support an attomey fee totaling $33,333.33 for work completed by the Cherundolo Law Firm, PLLC, in pursuing a recovery for Ms. Kren and reaching a preliminary settlement for the maximum insurance coverage available. 16. I further find that the costs incurred in pursing this action reasonable, and ask that Cherundolo Law Firm, PLLC, be paid $1,764.53 out of the proceeds of the settlement for costs and disbursements. 17. It is my understanding that Ms. Kren's medical expenses were originally paid via Jaime Graves' no-fault policy, i.e., personal injury protection. It is further my understanding that Ms. Kren ultimately exhausted the no fault policy/personal injury protection Graves' afforded under Mr. policy that totaled $75,000.00. A copy of the First Party Medical Summary is attached hereto as Exhibit E. 18. Once the no-fault policy/personal injury protection was exhausted, Medicare paid/reimbursed Ms. Kren's medical expenses. Initially, Medicare claimed a lien totaling $14,484.73. It is my understanding that the Cherundolo Law Firm, PLLC, was able to reduce/negotiate the claimed lien by Medicare to $9,627.57. A copy of the final demand letter promulgated by Medicare is attached hereto as Exhibit F. 19. Your deponent respectfully asks that the Cherundolo Law Firm, PLLC, pay out of the settlement proceeds $9,627.57 to Medicare in full satisfaction of the lien asserted. 20. With regard to the remaining balance totaling $55,274.57, your deponent respectfully asks that such be paid to the annexed supplemental needs trust previously established 4 of 6 FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 for the benefit of Ms. Kren. A copy of the supplemental needs trust is attached hereto as Exhibit G. 21. Ms. Kren was not working at the time of this incident, and sustained no lost wages. 22. Ms. Kren, her representatives nor any member of her family have made a claim for damages alleged to have been suffered as a result of this occurrence besides submitting the instant application/petition. i 23. No previous application has been made for the relief sought herein. WHEREFORE, your deponent respectfully requests this Court: (1) approve the compromise of Ms. Kren's claims for alleged injuries she sustained when struck by a motor vehicle operated by Jaime E. Graves on November 5, 2022, for the total sum of $100,000.00; (2) permit myself to compromise and settle all claims against Jaime E. Graves, and permit me to sign and execute and deliver any and all documents, releases, or any other papers necessary to effectuate said compromise; (3) permit the Cherundolo Law Firm, PLLC, to pay out of the settlement proceedsthe sum of$33,333.33 for attorney's fees, together with costs and disbursements in the sum of $1,764.53, and that such amount be deemed reasonably under the circumstances.; (4) permit the Cherundolo Law Finn, PLLC, to pay out of the settlement the sum of $9,627.57 to Medicare in satisfaction of the lien asserted; and (5) permit the Cherundolo Law Firm, PLLC, to pay the balance of the settlement proceeds totaling $55,274.57 to the annexed Supplemental Needs Trust. 5 of 6 FILED: ONONDAGA COUNTY CLERK 04/11/2024 10:16 AM INDEX NO. 003766/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/11/2024 JoAnne Spoto Decker, Commissioner of the Onondaga County Department of Adult & Long-Term Care Services Swo o before me this day of April, 2024. Notary Public SU7ANNE WILCOX of New Yom Wotary Public in the State Dualified in Onondaga Co. No.01WI6095046 My Commission Expires Jure 30,202f) 6 of 6