Preview
FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/18/2022
SUPREME COURT: STATE OF NEW YORK
COUNTY OF ST. LAWRENCE
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ANDREW BELAIR as ADMINISTRATOR OF THE
ESTATE OF ASHLEY McDONALD, AFFIRMATION
Plaintiff,
Index No: 2016/149019
vs. IAS No.: 44-1-2017-0108
MEGAN M. PHELIX, Hon. Mary M. Farley, J.S.C
Defendant.
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MEGAN M. PHELIX,
Defendant/Third-Party Plaintiff,
vs.
VINO VIDI VICI, L.L.C.,
Third-Party Defendant.
-------------------------------------------------------X
I, Thomas C. Yatto, an attorney duly licensed to practice law in the State of New York,
affirm the following under the penalties of perjury:
1. I am an associate of the law firm of O’Connor & Partners, PLLC, attorneys for the
plaintiff in the above-captioned action and as such, I am fully familiar with the facts and
circumstances set forth in this affirmation.
2. This affirmation is made in support of the plaintiff's application for an Order of
this Court to compromise and settle the above action, pursuant to the Estates, Powers &
Trusts Law section 5-4. On this application, the plaintiff requests that this Court
approve a settlement of the action in the amount of $150,000.00, approve payment from
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such gross settlement of the reasonable and necessary attorneys' fees and expenses
incurred in the prosecution of the plaintiff's claims, and further, to transfer the action to
the Surrogate's Court of Clinton County for an Order permitting the distribution of the
plaintiff's net settlement through the Estate of Ashley McDonald, and the allocation and
distribution of the claims of the decedent's distributees.
3. Decedent, Ashley McDonald, died on December 4, 2015 after being struck by a
vehicle while she was outside of her vehicle in the roadway on County Route 37 at the
intersection of Taylor Road, in the Town of Massena, County of St. Lawrence, State of
New York. Ashley McDonald was 33 years of age and was survived by her husband and
two infant children. Ashley McDonald was married at the time of her death.
4. On November 23, 2016, Karin Layo, applied for and received Letters of
Administration with Limitations from the Surrogate's Court of Clinton County
permitting the plaintiff to bring this action in the capacity of the Estate representative,
as the Administrator of the Estate of Ashley McDonald.
5. Karin Layo died suddenly on July 4, 2017. Thereafter, on August 28, 2018, Andrew
Belair applied for and received Letters of Administration De Bonis Non with Limitations,
permitting him to continue this action in the capacity of the Estate representative, as the
Administrator of the Estate of Ashley McDonald.
6. On December 28, 2021, after the depositions were conducted and after extensive
negotiations, defendant Megan M. Phelix agreed to settle this matter for the sum of
$75,000.00 and third-party defendant Vino Vidi Vici, LLC agreed to settle all claims for
the sum of $75,000.00. After a thorough investigation, no additional applicable insurance
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coverage has been identified.
7. The plaintiff, Andrew Belair, agreed to the terms of the proposed settlement. On
this application, Andrew Belair submits his own affidavit seeking the Court's Order of
Settlement and Transfer.
8. It was and is my recommendation to the plaintiff that the proposed settlement of
this action against defendant Megan M. Phelix, in the amount of $75,000.00, and third-
party defendant Vino Vidi Vici, LLC, in the amount of $75,000.00, is reasonable under
the circumstances, and in the best interests of the Estate of Ashley McDonald, and the
distributees of her Estate.
9. On June 27, 2016, Kevin Layo and Karin Layo signed a retainer agreement with my
former law firm, Mainetti, Mainetti & O’Connor, PC. Karin Leyo died suddenly in July
2017. On July 1, 2018, the law firm of Mainetti, Mainatti & O’Connor, PC disbanded. In
August 2018, Andrew Belair was appointed as successor Administrator. He signed a
Retainer Agreement with my new law firm, O’Connor & Partners, PLLC on November 8,
2018. The Retainer Agreements provide that my law firm will be reimbursed for all
disbursements which were reasonably and necessarily incurred during the prosecution
of the case. In this action, I have performed legal services on behalf of the plaintiff,
pursuant to our law firm's Retainer Agreements. Copies the Retainer Agreements are
annexed hereto as Exhibit “A”.
10. As the attorneys for the plaintiff, my firm handled the pleading and discovery
proceedings in the underlying action. It was necessary for our firm to read, review and
understand all aspects of the medical records, accident reports, and investigative reports
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to handle this case properly.
11. Over the course of the litigation, this law firm went about the usual course of
preparing a case for trial, including, but not limited to, obtaining and reviewing all of the
plaintiff's decedent's medical records; meeting with plaintiff Karin Leyo and, after
Karin’s death, Andrew Belair; filing and serving the summons and complaint; preparing
and serving a bill of particulars, discovery responses and discovery demands; attending
Court conferences and depositions; and routine correspondence and conversations with
Ms. Leyo and Mr. Belair and the defendant and third-party defendant’s attorneys.
12. I shared responsibility for progressing the case through the various procedures up
to the present time.
13. As of this date, my law firm's disbursements in this matter total Four Thousand
Two and 08/100 Dollars ($4,002.08). The Closing Statement including attorneys’ fees
and disbursements is annexed hereto as Exhibit “B”.
14. Attorney’s fees are calculated per our firm’s retainer agreement at 33.33%. A
breakdown of these fees and the net total settlement amount is shown in the Closing
Statement (Ex. B). I calculated the attorneys' fees in the sum of Fifty Thousand and
00/100 Dollars ($50,000.00).
15. After payment of the attorneys' fees to O’Connor & Partners ($50,000.00),
disbursements ($4,002.08) the remaining net cash proceeds amount to Ninety-five
Thousand Nine Hundred Ninety-seven and 92/100 Dollars ($95,997.92).
16. The remaining net settlement of $95,997.92 will be transferred to an interest-
bearing account for allocation and distribution by further Order of the Surrogate of
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Clinton County.
17. I believe the proposed settlement is in the best interests of the Estate of Ashley
McDonald. and should be approved. The basis of my belief is that, if the matter is
settled, all speculation is eliminated as to how the Court may decide this matter. The
settlement removes the possibility of an adverse outcome for the plaintiff. Additionally,
the settlement includes the total amount of the defendant’s applicable insurance policy.
18. No previous application for the relief herein requested has been made to any court
or judge.
WHEREFORE, I respectfully request that the Court:
(A) Approve the annexed Order of Settlement permitting the plaintiff, Andrew Belair,
to sign Release Agreements and other documents necessary to compromise and settle the
above action in the gross amount of $150,000.00;
(B) Approve the application of the plaintiff's attorneys for reimbursement of
disbursements in the amount of $4,002.08 and payment of O’Connor & Partners, PLLC
attorneys' fees in the amount of $50,000.00;
(C) Pursuant to the Estates, Powers & Trusts Law section 5-4.6, transfer this action
to the Surrogate's Court of Clinton County, for allocation and distribution of all
remaining net cash proceeds in the amount of $95,997.92, and related matters;
(D) For such other and further relief as the Court may deem just and proper.
DATED: Newburgh, New York
February 16, 2020
Thomas C. Yatto
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Preview
FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/18/2022 SUPREME COURT: STATE OF NEW YORK COUNTY OF ST. LAWRENCE -------------------------------------------------------X ANDREW BELAIR as ADMINISTRATOR OF THE ESTATE OF ASHLEY McDONALD, AFFIRMATION Plaintiff, Index No: 2016/149019 vs. IAS No.: 44-1-2017-0108 MEGAN M. PHELIX, Hon. Mary M. Farley, J.S.C Defendant. -------------------------------------------------------X MEGAN M. PHELIX, Defendant/Third-Party Plaintiff, vs. VINO VIDI VICI, L.L.C., Third-Party Defendant. -------------------------------------------------------X I, Thomas C. Yatto, an attorney duly licensed to practice law in the State of New York, affirm the following under the penalties of perjury: 1. I am an associate of the law firm of O’Connor & Partners, PLLC, attorneys for the plaintiff in the above-captioned action and as such, I am fully familiar with the facts and circumstances set forth in this affirmation. 2. This affirmation is made in support of the plaintiff's application for an Order of this Court to compromise and settle the above action, pursuant to the Estates, Powers & Trusts Law section 5-4. On this application, the plaintiff requests that this Court approve a settlement of the action in the amount of $150,000.00, approve payment from 1 of 5 FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/18/2022 such gross settlement of the reasonable and necessary attorneys' fees and expenses incurred in the prosecution of the plaintiff's claims, and further, to transfer the action to the Surrogate's Court of Clinton County for an Order permitting the distribution of the plaintiff's net settlement through the Estate of Ashley McDonald, and the allocation and distribution of the claims of the decedent's distributees. 3. Decedent, Ashley McDonald, died on December 4, 2015 after being struck by a vehicle while she was outside of her vehicle in the roadway on County Route 37 at the intersection of Taylor Road, in the Town of Massena, County of St. Lawrence, State of New York. Ashley McDonald was 33 years of age and was survived by her husband and two infant children. Ashley McDonald was married at the time of her death. 4. On November 23, 2016, Karin Layo, applied for and received Letters of Administration with Limitations from the Surrogate's Court of Clinton County permitting the plaintiff to bring this action in the capacity of the Estate representative, as the Administrator of the Estate of Ashley McDonald. 5. Karin Layo died suddenly on July 4, 2017. Thereafter, on August 28, 2018, Andrew Belair applied for and received Letters of Administration De Bonis Non with Limitations, permitting him to continue this action in the capacity of the Estate representative, as the Administrator of the Estate of Ashley McDonald. 6. On December 28, 2021, after the depositions were conducted and after extensive negotiations, defendant Megan M. Phelix agreed to settle this matter for the sum of $75,000.00 and third-party defendant Vino Vidi Vici, LLC agreed to settle all claims for the sum of $75,000.00. After a thorough investigation, no additional applicable insurance 2 of 5 FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/18/2022 coverage has been identified. 7. The plaintiff, Andrew Belair, agreed to the terms of the proposed settlement. On this application, Andrew Belair submits his own affidavit seeking the Court's Order of Settlement and Transfer. 8. It was and is my recommendation to the plaintiff that the proposed settlement of this action against defendant Megan M. Phelix, in the amount of $75,000.00, and third- party defendant Vino Vidi Vici, LLC, in the amount of $75,000.00, is reasonable under the circumstances, and in the best interests of the Estate of Ashley McDonald, and the distributees of her Estate. 9. On June 27, 2016, Kevin Layo and Karin Layo signed a retainer agreement with my former law firm, Mainetti, Mainetti & O’Connor, PC. Karin Leyo died suddenly in July 2017. On July 1, 2018, the law firm of Mainetti, Mainatti & O’Connor, PC disbanded. In August 2018, Andrew Belair was appointed as successor Administrator. He signed a Retainer Agreement with my new law firm, O’Connor & Partners, PLLC on November 8, 2018. The Retainer Agreements provide that my law firm will be reimbursed for all disbursements which were reasonably and necessarily incurred during the prosecution of the case. In this action, I have performed legal services on behalf of the plaintiff, pursuant to our law firm's Retainer Agreements. Copies the Retainer Agreements are annexed hereto as Exhibit “A”. 10. As the attorneys for the plaintiff, my firm handled the pleading and discovery proceedings in the underlying action. It was necessary for our firm to read, review and understand all aspects of the medical records, accident reports, and investigative reports 3 of 5 FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/18/2022 to handle this case properly. 11. Over the course of the litigation, this law firm went about the usual course of preparing a case for trial, including, but not limited to, obtaining and reviewing all of the plaintiff's decedent's medical records; meeting with plaintiff Karin Leyo and, after Karin’s death, Andrew Belair; filing and serving the summons and complaint; preparing and serving a bill of particulars, discovery responses and discovery demands; attending Court conferences and depositions; and routine correspondence and conversations with Ms. Leyo and Mr. Belair and the defendant and third-party defendant’s attorneys. 12. I shared responsibility for progressing the case through the various procedures up to the present time. 13. As of this date, my law firm's disbursements in this matter total Four Thousand Two and 08/100 Dollars ($4,002.08). The Closing Statement including attorneys’ fees and disbursements is annexed hereto as Exhibit “B”. 14. Attorney’s fees are calculated per our firm’s retainer agreement at 33.33%. A breakdown of these fees and the net total settlement amount is shown in the Closing Statement (Ex. B). I calculated the attorneys' fees in the sum of Fifty Thousand and 00/100 Dollars ($50,000.00). 15. After payment of the attorneys' fees to O’Connor & Partners ($50,000.00), disbursements ($4,002.08) the remaining net cash proceeds amount to Ninety-five Thousand Nine Hundred Ninety-seven and 92/100 Dollars ($95,997.92). 16. The remaining net settlement of $95,997.92 will be transferred to an interest- bearing account for allocation and distribution by further Order of the Surrogate of 4 of 5 FILED: ST. LAWRENCE COUNTY CLERK 02/18/2022 10:34 AMINDEX NO. EFCV-2016-0149019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/18/2022 Clinton County. 17. I believe the proposed settlement is in the best interests of the Estate of Ashley McDonald. and should be approved. The basis of my belief is that, if the matter is settled, all speculation is eliminated as to how the Court may decide this matter. The settlement removes the possibility of an adverse outcome for the plaintiff. Additionally, the settlement includes the total amount of the defendant’s applicable insurance policy. 18. No previous application for the relief herein requested has been made to any court or judge. WHEREFORE, I respectfully request that the Court: (A) Approve the annexed Order of Settlement permitting the plaintiff, Andrew Belair, to sign Release Agreements and other documents necessary to compromise and settle the above action in the gross amount of $150,000.00; (B) Approve the application of the plaintiff's attorneys for reimbursement of disbursements in the amount of $4,002.08 and payment of O’Connor & Partners, PLLC attorneys' fees in the amount of $50,000.00; (C) Pursuant to the Estates, Powers & Trusts Law section 5-4.6, transfer this action to the Surrogate's Court of Clinton County, for allocation and distribution of all remaining net cash proceeds in the amount of $95,997.92, and related matters; (D) For such other and further relief as the Court may deem just and proper. DATED: Newburgh, New York February 16, 2020 Thomas C. Yatto 5 of 5