Preview
FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017
NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
DENNIS GALLETTA, as Administrator of Index No.: 503905/2017
The Estate of BARBARA GALLETTA,
Plaintiff
-against- AFFIRMATION IN SUPPORT
OF EPTL 5-4.6 ORDER
RITU APARAJITA, M.D., HARTMAN MARTIN, M.D.,
HART MART MEDICAL SERVICES PLLC a.k.a.
HART MART MEDICAL SERVICES, JOSEPH
COSTA, M.D., AMBREEN KHALIL, M.D., JORDAN B.
GLASER, M.D. P.C., LAWRENCE MANCINO, M.D.,
SOTTILE AND MEGNA, M.D., P.C., AKASH
FERDAUS, M.D., STATEN ISLAND UNIVERSITY
HOSPITAL NORTH CAMPUS, and
NORTHWELL HEALTH, INC.,
Defendants
X
JOHN M.TOMSKY, ESQ., an attorney duly admitted to practice before the Courts of the
State of New York, affirms the following under penalties of perjury pursuant to CPLR §2106:
1. I am Counsel to the firm of Sullivan, Papain, Block. McGrath Coffinas & Cannavo,
P.C., attorneys for the plaintiffs herein and submit this affirmation in support of the application of
Petitioner, DENNIS GALLETTA, as Administrator of the Estate of BARBARA GALLETTA,
deceased to compromise the settlement of the above-entitled action.
2. Decedent, Barbara Galletta (hereinafter referred to as "Barbara" or "decedent")
died on March 5, 2015 as a result of negligence and medical malpractice arising from the defendant's
failure to perform surgery for treatment of decedent's diverticulitis and an abscess when she presented
to the hospital with abdominal pain and history of recent treatment for diverticulitis, which resulted
in a sudden perforation of her bowel on February 18, 2015 and belated surgery, which was
unsucce,,,;1.k11. Decedent remained intubated and did not regain consciousness before passing on March
5, 2015. Annexed hereto as Exhibit "A" is a copy of the Death Certificate.
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3. Letters of Administration were issued by the Surrogate's Court, Richmond County
to me, as Administrator of the Estate of BARBARA GALLETTA, deceased, on March 9, 2017. A
copy of these Letters is annexed hereto as Exhibit "B." These Letters are still in full force and
effect, and I am qualified and still acting as Administrator. The Letters were limited as follows:
Limitations: Said Letters are Limited to the prosecution of a cause
of action, and the Administrator is hereby restrained from a
compromise of such action or any other action and/or the
enforcement of any judgment recovered therein until the further
Order of this Court upon the filing of satisfactory security, or the
order of any court of competent jurisdiction (EPTL 5-4.6)
4. At the time of her death, decedent was domiciled at 71 Winchester Avenue, Staten
Island, New York, 10312. She was 58 years old, having been born on May 14, 1956.
5. Decedent was survived by Dennis Galletta, and their children, Stephen Galletta,
who was 34 years of age at the time of decedent's death, and Andrew Galletta, who was 28 years
of age at the time of decedent's death. Decedent had no other children, natural, illegitimate or
adopted.
6. At the time of her death, decedent was employed as a bank teller at Richmond
County Savings Bank, earning in excess of $21,000 per year.
7. On August 4, 2017, Petitioner retained our firm to prosecute a combined action for
personal injuries and wrongful death sustained by Barbara through the malpractice of others. A
copy of the Retainer Agreement is annexed hereto as Exhibit "C." Upon being retained a statement
of retainer was filed with the Office of Court Administration and bears Retainer Statement Number
4058300 OCT 26 17. A copy of the Retainer Statement is annexed hereto as Exhibit "D.-
8. Prior to retaining the Sullivan Firm, Mr. Galletta had retained the firm of Duffy &
Duffy PLLC, which commenced an action entitled DENNIS GALLETTA, as Proposed
Administrator of the Estate of BARBARA GALLETTA, deceased, plaintiff, against RITU
APARAJITA, M.D., HARTMAN MARTIN, M.D., HART MART MEDICAL SERVICES PLLC
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a.k.a. HART MART MEDICAL SERVICES, JOSEPH COSTA, M.D., AMBREEN KHALIL,
M.D., JORDAN B. GLASER, M.D. P.C., LAWRENCE MANCINO, M.D., SOTTILE AND
MEGNA, M.D., P.C., AKASH FERDAUS, M.D., STATEN ISLAND UNIVERSITY HOSPITAL
NORTH CAMPUS, and NORTHWELL HEALTII, INC., defendants, in the Supreme Court, Kings
County, under Index Number: 503905/2017 by the filing of a Summons and Complaint on or about
February 27, 2017. A copy of the Summons and Complaint is annexed hereto as Exhibit "E."
9. During the course of this litigation, counsel for petitioner received, reviewed and
responded to defendants' multiple Demands for Authorizations and Notices for Discovery and
Inspection, Demands for Statements and Photographs, Demands for all Physicians, Combined
Demands, Notices to Take Depositions upon Oral Examination, and Notices to Produce Copies of
the Letters of Administration. Responses were served to each Notice for Discovery and Inspection
and Notice to Produce, and a Combined Demand for names and addresses of witnesses, party
statements, insurance policies, doctor records, hospital records, expert witness Information,
videotapes, photographs, films, recordings, and incident reports was served.
10. Depositions were prepared for and conducted by us as follows: Plaintiff Dennis
Galletta conducted on April 23, 2018; Defendant Ritu Aparajita, M.D. on October 23, 2010;
Defendant Hartman Martin, M.D. on February 4, 20129; Defendant Joseph Costa, M.D. on March
28, 2019; Defendant Ambreen Khalil, M.D. on June 13, 2019; Defendant Jordan B. Glaser, M.D.
on July 11, 2019; Defendant Lawrence Mancino, M.D. on July 23, 2019; Defendant Akash
Ferdaus, M.D. on September 26, 2019; and Non-party Witness Murlidhar Pahuja, M.D. on October
3, 2019. We also prepared and defended the Non-Party Witness depositions of decedent's sons,
Stephen Galletta on November 5, 2020, and Andrew Galletta on November 18, 2020, and
decedent's sister in law, Patricia Losquadro on December 4, 2020.
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11. Throughout the course of this litigation, we conferred with defense counsel and
submitted proposed Compliance Conference Orders, which were submitted to this Court on
multiple occasions for scheduling and status conferences.
12. On a number of occasions, we met with the plaintiff, the plaintiff's family and
liability and damage experts in order to appropriately prepare for depositions and for the ultimate
trial of this action.
13. Our office also filed a motion to compel the further deposition of defendant Dr.
Glaser and to compel outstanding discovery on October 9, 2019. Our office also filed a motion to
extend the to file the Note of Issue on January 15, 2019 due to outstanding discovery.
14. The Note of Issue was filed on August 25, 2020 and defendants filed motions to
strike the Note of Issue, which our office opposed. Thereafter defendants filed Motion for
Summary Judgment, which we also opposed. On July 6, 2021, the Court issued an Order denying
defendants' motions for Summary Judgment and granting defendant Glaser P.C.'s branch of
motion seeking dismissal of plaintiff's direct liability claims.
15. On June 16, 2022 a Stipulation of Discontinuance as to defendants Jordan B. Glaser.
M.D., P.C., Lawrence Mancino, M.D., and Sottile and Megna, M.D., P.C. was So-Ordered.
16. Our office attended numerous Pre-Trial Conferences and Settlement Conferences.
17. On January 3, 2024, a Stipulation of Discontinuance as to Defendant Hart Mart
Medical Services PLLC a/k/a Hart Mark Medical Services was filed.
18. On January 3, 2024, on the date of jury selection, after numerous conversations and
discussions with defense counsel and defendants' insurers, a settlement was reached for the sum
of SIX HUNDRED THOUSAND ($600,000.00) DOLLARS to be paid by PHYSICIANS'
RECIPROCAL INSURERS on behalf of NORTHWELL HEALTH, INC. f/k/a NORTH SHORE-
LONG ISLAND JEWISH HEALTH SYSTEM, INC., and STATEN ISLAND UNIVERSITY
HOSPITAL, only, and all said claims and causes of action be discontinued with prejudice.
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ATTORNEYS' FEE AND DISTRIBUTION
19. As previously set forth, the retainer agreement with petitioner provided for a
medical malpractice scale, plus reimbursement of attorney disbursements, which were in the sum
of FIFTY-SIX THOUSAND SIX HUNDRED FOUR and 89/100 ($56,604.89) DOLLARS,
including the filing fee of $1,250.00 to be paid to the Surrogate's Court, Richmond County in the
allocation and distribution proceeding which shall follow the instant application.
27. After reimbursement of disbursements the net recovery is FIVE HUNDRED
FORTY-THREE THOUSAND THREE HUNDRED NINETY-FIVE and 11/100 ($543,395.11)
DOLLARS.
28. The attorneys' fee to be paid pursuant to the retainer agreement executed by
Petitioner. which provided for the statutory medical malpractice sliding scale fee schedule, after
reimbursement of disbursements, is ONE HUNDRED FORTY-SIX THOUSAND ONE
HUNDRED SEVENTY-NINE and 02/100 ($146,179.02) DOLLARS, calculated as follows:
Gross $600,000.00
Disbursements $ 56,604.89
Net Recovery $543,395.11
Fee (Med mal scale) First $250,000 x .30 $75,000.00
Next $250,000 x .25 $62,500.00
Next $43,395.11 x .20 $8,679.02
Total Fee $145,920.02
29. I join in Petitioner's prayer that the Court allow compensation to my firm for our
services rendered in accordance with the retainer agreement.
THE SETTLEMENT SHOULD BE APPROVED
30. I join Petitioner's request that this Court approve the settlement. The liability
against the defendants was questionable based on that defendants' claim that decedent's abscess
was not drainable, nor was she a surgical candidaiQ Defendants claimed that discharge with
antibiotic treatment was an acceptable course of care.
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31. It will be proposed that the total settlement be allocated entirely to the cause of
action for wrongful death and none to pain and suffering as there is no reasonable way to separate
the pain and suffering she suffered from the diverticulitis versus the worsening condition of the
sudden perforation of bowel on 2/18/15. Decedent underwent surgery on February 19, 2015 and
remained intubated thereafter and did not regain consciousness after being put under anesthesia
for the surgery.
20. I also believe the proposed settlement is in the best interests of the estate and the
petitioner as distributee as it provides fair and just compensation for the pecuniary losses suffered
by Petitioner, who was surviving spouse. Our disbursements are annexed to the Petition as Exhibit
21. A search of the court records reveals the existence of no powers, power of attorney,
liens, assignments or encumbrances.
22. No rules or laws of any foreign jurisdiction apply in this case.
23. Neither your Affirmant, nor your Affirmant's law firm has become interested or
concerned with the instant matter or with the litigation which is the subject matter of these
proceedings at the instance and request of the defendants or their representatives and all steps taken
herein were had in the sole interest of the decedent's distributees.
24. It is respectfully submitted that the filing of a bond be dispensed with.
25. No prior application for this or similar relief has been made to this or any other
Court.
WHEREFORE, deponent respectfully prays that the relief requested herein be granted.
Dated: New York, New York
March 1,1) , 2024
L-1
JOHN M. TOMSKY
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FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X DENNIS GALLETTA, as Administrator of Index No.: 503905/2017 The Estate of BARBARA GALLETTA, Plaintiff -against- AFFIRMATION IN SUPPORT OF EPTL 5-4.6 ORDER RITU APARAJITA, M.D., HARTMAN MARTIN, M.D., HART MART MEDICAL SERVICES PLLC a.k.a. HART MART MEDICAL SERVICES, JOSEPH COSTA, M.D., AMBREEN KHALIL, M.D., JORDAN B. GLASER, M.D. P.C., LAWRENCE MANCINO, M.D., SOTTILE AND MEGNA, M.D., P.C., AKASH FERDAUS, M.D., STATEN ISLAND UNIVERSITY HOSPITAL NORTH CAMPUS, and NORTHWELL HEALTH, INC., Defendants X JOHN M.TOMSKY, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under penalties of perjury pursuant to CPLR §2106: 1. I am Counsel to the firm of Sullivan, Papain, Block. McGrath Coffinas & Cannavo, P.C., attorneys for the plaintiffs herein and submit this affirmation in support of the application of Petitioner, DENNIS GALLETTA, as Administrator of the Estate of BARBARA GALLETTA, deceased to compromise the settlement of the above-entitled action. 2. Decedent, Barbara Galletta (hereinafter referred to as "Barbara" or "decedent") died on March 5, 2015 as a result of negligence and medical malpractice arising from the defendant's failure to perform surgery for treatment of decedent's diverticulitis and an abscess when she presented to the hospital with abdominal pain and history of recent treatment for diverticulitis, which resulted in a sudden perforation of her bowel on February 18, 2015 and belated surgery, which was unsucce,,,;1.k11. Decedent remained intubated and did not regain consciousness before passing on March 5, 2015. Annexed hereto as Exhibit "A" is a copy of the Death Certificate. 1 1 of 6 FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024 3. Letters of Administration were issued by the Surrogate's Court, Richmond County to me, as Administrator of the Estate of BARBARA GALLETTA, deceased, on March 9, 2017. A copy of these Letters is annexed hereto as Exhibit "B." These Letters are still in full force and effect, and I am qualified and still acting as Administrator. The Letters were limited as follows: Limitations: Said Letters are Limited to the prosecution of a cause of action, and the Administrator is hereby restrained from a compromise of such action or any other action and/or the enforcement of any judgment recovered therein until the further Order of this Court upon the filing of satisfactory security, or the order of any court of competent jurisdiction (EPTL 5-4.6) 4. At the time of her death, decedent was domiciled at 71 Winchester Avenue, Staten Island, New York, 10312. She was 58 years old, having been born on May 14, 1956. 5. Decedent was survived by Dennis Galletta, and their children, Stephen Galletta, who was 34 years of age at the time of decedent's death, and Andrew Galletta, who was 28 years of age at the time of decedent's death. Decedent had no other children, natural, illegitimate or adopted. 6. At the time of her death, decedent was employed as a bank teller at Richmond County Savings Bank, earning in excess of $21,000 per year. 7. On August 4, 2017, Petitioner retained our firm to prosecute a combined action for personal injuries and wrongful death sustained by Barbara through the malpractice of others. A copy of the Retainer Agreement is annexed hereto as Exhibit "C." Upon being retained a statement of retainer was filed with the Office of Court Administration and bears Retainer Statement Number 4058300 OCT 26 17. A copy of the Retainer Statement is annexed hereto as Exhibit "D.- 8. Prior to retaining the Sullivan Firm, Mr. Galletta had retained the firm of Duffy & Duffy PLLC, which commenced an action entitled DENNIS GALLETTA, as Proposed Administrator of the Estate of BARBARA GALLETTA, deceased, plaintiff, against RITU APARAJITA, M.D., HARTMAN MARTIN, M.D., HART MART MEDICAL SERVICES PLLC 2 2 of 6 FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024 a.k.a. HART MART MEDICAL SERVICES, JOSEPH COSTA, M.D., AMBREEN KHALIL, M.D., JORDAN B. GLASER, M.D. P.C., LAWRENCE MANCINO, M.D., SOTTILE AND MEGNA, M.D., P.C., AKASH FERDAUS, M.D., STATEN ISLAND UNIVERSITY HOSPITAL NORTH CAMPUS, and NORTHWELL HEALTII, INC., defendants, in the Supreme Court, Kings County, under Index Number: 503905/2017 by the filing of a Summons and Complaint on or about February 27, 2017. A copy of the Summons and Complaint is annexed hereto as Exhibit "E." 9. During the course of this litigation, counsel for petitioner received, reviewed and responded to defendants' multiple Demands for Authorizations and Notices for Discovery and Inspection, Demands for Statements and Photographs, Demands for all Physicians, Combined Demands, Notices to Take Depositions upon Oral Examination, and Notices to Produce Copies of the Letters of Administration. Responses were served to each Notice for Discovery and Inspection and Notice to Produce, and a Combined Demand for names and addresses of witnesses, party statements, insurance policies, doctor records, hospital records, expert witness Information, videotapes, photographs, films, recordings, and incident reports was served. 10. Depositions were prepared for and conducted by us as follows: Plaintiff Dennis Galletta conducted on April 23, 2018; Defendant Ritu Aparajita, M.D. on October 23, 2010; Defendant Hartman Martin, M.D. on February 4, 20129; Defendant Joseph Costa, M.D. on March 28, 2019; Defendant Ambreen Khalil, M.D. on June 13, 2019; Defendant Jordan B. Glaser, M.D. on July 11, 2019; Defendant Lawrence Mancino, M.D. on July 23, 2019; Defendant Akash Ferdaus, M.D. on September 26, 2019; and Non-party Witness Murlidhar Pahuja, M.D. on October 3, 2019. We also prepared and defended the Non-Party Witness depositions of decedent's sons, Stephen Galletta on November 5, 2020, and Andrew Galletta on November 18, 2020, and decedent's sister in law, Patricia Losquadro on December 4, 2020. 3 3 of 6 FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024 11. Throughout the course of this litigation, we conferred with defense counsel and submitted proposed Compliance Conference Orders, which were submitted to this Court on multiple occasions for scheduling and status conferences. 12. On a number of occasions, we met with the plaintiff, the plaintiff's family and liability and damage experts in order to appropriately prepare for depositions and for the ultimate trial of this action. 13. Our office also filed a motion to compel the further deposition of defendant Dr. Glaser and to compel outstanding discovery on October 9, 2019. Our office also filed a motion to extend the to file the Note of Issue on January 15, 2019 due to outstanding discovery. 14. The Note of Issue was filed on August 25, 2020 and defendants filed motions to strike the Note of Issue, which our office opposed. Thereafter defendants filed Motion for Summary Judgment, which we also opposed. On July 6, 2021, the Court issued an Order denying defendants' motions for Summary Judgment and granting defendant Glaser P.C.'s branch of motion seeking dismissal of plaintiff's direct liability claims. 15. On June 16, 2022 a Stipulation of Discontinuance as to defendants Jordan B. Glaser. M.D., P.C., Lawrence Mancino, M.D., and Sottile and Megna, M.D., P.C. was So-Ordered. 16. Our office attended numerous Pre-Trial Conferences and Settlement Conferences. 17. On January 3, 2024, a Stipulation of Discontinuance as to Defendant Hart Mart Medical Services PLLC a/k/a Hart Mark Medical Services was filed. 18. On January 3, 2024, on the date of jury selection, after numerous conversations and discussions with defense counsel and defendants' insurers, a settlement was reached for the sum of SIX HUNDRED THOUSAND ($600,000.00) DOLLARS to be paid by PHYSICIANS' RECIPROCAL INSURERS on behalf of NORTHWELL HEALTH, INC. f/k/a NORTH SHORE- LONG ISLAND JEWISH HEALTH SYSTEM, INC., and STATEN ISLAND UNIVERSITY HOSPITAL, only, and all said claims and causes of action be discontinued with prejudice. 4 4 of 6 FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024 ATTORNEYS' FEE AND DISTRIBUTION 19. As previously set forth, the retainer agreement with petitioner provided for a medical malpractice scale, plus reimbursement of attorney disbursements, which were in the sum of FIFTY-SIX THOUSAND SIX HUNDRED FOUR and 89/100 ($56,604.89) DOLLARS, including the filing fee of $1,250.00 to be paid to the Surrogate's Court, Richmond County in the allocation and distribution proceeding which shall follow the instant application. 27. After reimbursement of disbursements the net recovery is FIVE HUNDRED FORTY-THREE THOUSAND THREE HUNDRED NINETY-FIVE and 11/100 ($543,395.11) DOLLARS. 28. The attorneys' fee to be paid pursuant to the retainer agreement executed by Petitioner. which provided for the statutory medical malpractice sliding scale fee schedule, after reimbursement of disbursements, is ONE HUNDRED FORTY-SIX THOUSAND ONE HUNDRED SEVENTY-NINE and 02/100 ($146,179.02) DOLLARS, calculated as follows: Gross $600,000.00 Disbursements $ 56,604.89 Net Recovery $543,395.11 Fee (Med mal scale) First $250,000 x .30 $75,000.00 Next $250,000 x .25 $62,500.00 Next $43,395.11 x .20 $8,679.02 Total Fee $145,920.02 29. I join in Petitioner's prayer that the Court allow compensation to my firm for our services rendered in accordance with the retainer agreement. THE SETTLEMENT SHOULD BE APPROVED 30. I join Petitioner's request that this Court approve the settlement. The liability against the defendants was questionable based on that defendants' claim that decedent's abscess was not drainable, nor was she a surgical candidaiQ Defendants claimed that discharge with antibiotic treatment was an acceptable course of care. 5 5 of 6 FILED: KINGS COUNTY CLERK 05/08/2024 11:56 AM INDEX NO. 503905/2017 NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 05/08/2024 31. It will be proposed that the total settlement be allocated entirely to the cause of action for wrongful death and none to pain and suffering as there is no reasonable way to separate the pain and suffering she suffered from the diverticulitis versus the worsening condition of the sudden perforation of bowel on 2/18/15. Decedent underwent surgery on February 19, 2015 and remained intubated thereafter and did not regain consciousness after being put under anesthesia for the surgery. 20. I also believe the proposed settlement is in the best interests of the estate and the petitioner as distributee as it provides fair and just compensation for the pecuniary losses suffered by Petitioner, who was surviving spouse. Our disbursements are annexed to the Petition as Exhibit 21. A search of the court records reveals the existence of no powers, power of attorney, liens, assignments or encumbrances. 22. No rules or laws of any foreign jurisdiction apply in this case. 23. Neither your Affirmant, nor your Affirmant's law firm has become interested or concerned with the instant matter or with the litigation which is the subject matter of these proceedings at the instance and request of the defendants or their representatives and all steps taken herein were had in the sole interest of the decedent's distributees. 24. It is respectfully submitted that the filing of a bond be dispensed with. 25. No prior application for this or similar relief has been made to this or any other Court. WHEREFORE, deponent respectfully prays that the relief requested herein be granted. Dated: New York, New York March 1,1) , 2024 L-1 JOHN M. TOMSKY 6 6 of 6