FILED: ONONDAGA COUNTY CLERK 08/19/2019 03:37 PM INDEX NO.

2015EF4455
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 08/19/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ONONDAGA

REBEKA KWIATKOWSKI, Individually and as

Administratrix of the Estate of CHANEL LAKATOSZ,
ATTORNEY AFFIDAVIT

Plaintiff,
-against- Index No.: 2015EF4455
RJI No.: 33-15-3740
COUNTY OF ONONDAGA,
Hon. Gregory R. Gilbert, J.S.C.
Defendant.

STATE OF NEW YORK )

COUNTY OF ONONDAGA ) SS.:

Anthony S. Bottar, Esq., being duly sworn, deposes and says:

1. I am a member of Bottar Law, PLLC, trial counsel to Richard D. Priest,

Esq., attorney for the plaintiff.

2. I am fully familiar with the facts and circumstances of this case and submit

this affidavit in support of the plaintiff's motion for an order authorizing her to settle all of

her claims against the defendant. ·

3. This case involves the death of Chanel Lakatosz while she was

temporarily confined to the Onondaga County Justice Center in August, 2014.

4. Chanel was brought to the Justice Center during the early morning hours

of August 18, 2014. She was evaluated by Justice Center personnel, including a

registered nurse and a social worker and found to be withdrawing from alcohol and

opioids. Treatment and monitoring for her withdrawal was ordered but not followed.

She received only 2 of 4 scheduled doses of Librium (chlordiazepoxide) and 1 of 2

scheduled doses of Thiamine, and she was not monitored or evaluated accordiiig to

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Justice Center protocol. On August 19, 2014, Chanel was found unresponsive in her

cell at approximately 10:30 a.m. Resuscitative efforts were unsuccessful and she was

pronounced dead at 11:21 a.m.

5. An autopsy was performed by the Onondaga County Medical Examiner

and he determined Chanel died from complications of opiate and alcohol withdrawal.

6. The New York State Commission of Correction investigated Chanel's

death as required by N.Y Correction Law. The Commission's report of its investigation

noted the following:

FINDINGS:

1. Chanel Lakatosz was a 26-year-old white female who died on 8/19/14, at

10:40 a.m., while in the custody of the Onondaga County Sheriff at the
Onondaga County Justice Center (JC) from complications of opiate and
alcohci withdrawal. The Medical Review Board has found that in the
matter of Lakatosz's death, there were compounding failures between the
contracted medical and mental health care provider, Correct Care
Solutions (CCS), and the Onondaga Sheriff's Office including failures to
communicate critical information, failures to properly assess and monitor
a patient in florid withdrawal, and failures to properly provide appropriate
supervision in comportment with 9 NYCRR §7003. The Medical Review
Board opines that these collective lapses resulted in deficient withdrawal
management for Lakatosz, which was contributory to her death. Had
adequate withdrawal management and supervision been provided, her
death may have been preventable.

7. On September 10, 2015, Rebeka Kwiatkowski was appointed administratrix

of the estate of Chanel Lakatosz by the Circuit Court of Cook County, Illinois. A copy of

- "A."
the Letters of Office Decedent's Estate is attached as Exhibit

8. On October 30, 2015, a summons and complaint were filed with the

Onondaga County Clerk's Office. A copy of the summons and complaint is attached as

"B."
Exhibit

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9. On or about February 11, 2016, the defendant served its answer, demand

for bills of particulars and other discovery demands. In due course, Bottar Law, PLLC,

responded to the demands and served discovery demands of its own.

10. Bottar Law, PLLC moved to compel responses to the plaintiff's discovery

demands. The defendant supplied its responses before the return date on the motion.

11. The plaintiff was deposed on November 20, 2017.

12. Bottar. Law, PLLC moved to compel the deposition of Elenora

Ben-Shidah, R.N., the nurse who failed to give Chanel medication for her withdrawal

symptoms. The motion was ultimately withdrawn and Nurse Ben-Shidah was deposed

on July 19, 2018.

13. Bottar Law, PLLC filed a trial note of issue on August 7, 2018, and a

motion for a trial preference on August 10, 2018.

14. A scheduling conference was held on September 10, 2018 and a trial was

scheduled to begin on August 19, 2019.

15. The plaintiff's lawsuit was prepared for trial. In addition to reviswing the

Onondaga County Sheriff Department's investigative file and approxirñately 30 hours of

video footage from the Onondaga County Justice Center, Bottar Law, PLLC, reviewed

the New York State Commission of Correction preliminary and final reports, the

Onondaga County Sheriff Department's and New York Correct Care Solutions Medical

Services, P.C.'s responses to the reports and the autopsy report prepared by the

Onondaga County Medical Examiner.

16. In anticipation of trial, Bottar Law, PLLC, identified and retained a board

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certified forensic pathologist and a registered nurse with experience in providing nursing

care to inmates.

17. The board certified forensic pathologist was provided with all discovery

materials, including the New York State Commission of Correction reports and the

autopsy report prepared by the Onondaga County Medical Examiner. After reviewing

the material, the pathologist agreed to testify at the trial of this action Specifically, the

pathologist agreed to testify that Chanel died as a result of alcohol withdrawal

complicated by opiate withdrawal, and that she experienced conscious pain and

suffering before her death.

18. The registered nurse was provided with all discovery materisis, including

the deposition transcript of Elenora Ben-Shidah, R.N. After reviewing the material, the

nurse agreed to testify at the trial of this action. Specifically, the nurse agreed to testify

that good and accepted standards of practice for the care, treatment and supervision of

inmates experiencing withdrawal symptoms were not followed at the Justice Center,

and that Elenora Ben-Shidah, R.N., inexcusably and negligently failed to administer

medication ordered for Chanel.

.

19. In May, 2019, the parties agreed to a mediation session in an attempt to

settle the lawsuit.

20. Bottar Law, PLLC, contacted Jeffrey K. Anderson, Esq. at Litigation

Resolution Services, Latham, New York and requested his assistance as a mediator.

Mr. Anderson agreed to act as a mediator and scheduled a mediation session for

June 24, 2019.

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21. In preparation for the mediation session, Bottar Law, PLLC, prepared and

forwarded to Mr. Anderson discovery material from the lawsuit and a memorandum

outlining the facts and circumstances of Chanel's death, her conscious pain and

suffering and the damages.

22. Prior to the mediation session, Kristy Fischmann and I spoke with the

plaintiff on several occasions to discuss the case generally, its strengths and

weaknesses, the risks and expenses associated with a trial, and the plaintiff's wishes

with respect to resolving the case. We also explained the mediation process to the

plaintiff.

23. Mediation took place on June 24, 2019 at the Bottar Law, PLLC offices in

Syracuse, New York. It began at approximately 10:00 a.m. and concluded at

approximately 4:00 p.m.

24. Plaintiff was unable to attend the mediation but remained available via

telephone for the duration of the session.

25. Over the course of the day, Ms. Fischmann and I regularly spoke with the

plaintiff to keep her informed of the defendant's offers and to discuss responses to the

offers with her or a family member.

26. At approximately 3:30 p.m., the defendant made a final offer of $440,000.

27. I explained the terms of the proposed settlement to the plaintiff and

received authorization to accept it.

28. Upon information and belief, I answered all of the plaintiff's questions with

respect to the strengths and weaknesses of her claims against the defendant and the

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likelihood of a verdict greater or less than the settlement offer.

29. Upon information and belief, the settlement is fair and reasonable given

the facts and circumstances of Chanel's injuries and death, the anticipated defenses

involving Chanel's background and history of drug and alcohol abuse and the provable

damages.

30. The plaintiff retained Bottar Law, PLLC, on a contingency fee basis

pursuant to a written retainer agreement.

31. Bottar Law, PLLC, has spent a total of $9,494.68 on costs and

disbursements.

32. The plaintiff has reviewed a breakdown of the costs and disbursements,

and believes them to be fair and reasonable.

33. I request Court approval for the reimbursement of $9,494.68 in costs and

disbursements.

34. The retainer agreement provides for a legal fee of 30% of the first

$250,000.00 of the net recovery, 25% of the next $250,000.00 of the net recovery, 20%

of the next $500,000.00 of the net recovery, 15% of the next $250,000.00 net recovery

and 10% of the balance of the net recovery.

35. After deducting the costs and disbursements from the proposed

settlement figure, the net recovery is $430,505.30. Using the statutory fee structure

provided for in the retainer agreement, the legal fee is $120,126.30.

36. I request the Court fix the legal fee at $120,126.30, and that Bottar Law,

PLLC be paid $120,126.30 as reasonable compensation for the services it provided.

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37. I am not aware of any outstanding bills for hospital, medical, or nursing

services.

38. No hospital notice of lien has been filed under section 189 of the Lien

Law.

39. I am not aware of any other outstanding debts or liens.

40. Bottar Law, PLLC, and its attorneys are not concerned with the plaintiff's

motion or its subject matter at the instance of the defendant or at the instance of any

representative of the defendant.

41. There has been no previous application for the relief requested in this

affidavit.

WHEREFORE, I respectfully request an Order of this Court:

• the settlement of this action against the defendant for the sum
authorizing
of $440,000.00; and

• Rebeka Kwiatkowski to execute a general release and such

authorizing
other papers as may be necessary to effectuate the settlement; and

• Bottar Law, PLLC, to execute a stipulation of discontinuance

authorizing
and such other papers as may be necessary to complete the settlement of
this action; and

• and the defendant and/or its insurance carrier to

authorizing directing pay
Bottar Law, PLLC, the sum of $9,494.68 as and for its costs and

disbursements; and

• and the defendant and/or its insurance carrier to

authorizing directing pay
Bottar Law, PLLC the sum of $120,126.30 as and for its legal fee; and

• and the defendant and/or its insurance carrier to

authorizing directing pay
Rebeka Kwiatkowski, Administratrix of the Estate of Chanel Lakatosz, the
balance of the settlement proceeds of $310,379.00 to be held in trust by
Bottar Law, PLLC, pending a!!ocation and distribution of the net

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settlement proceeds by the Circuit Court of Cook County, Illinois, County

Department, Probate Division; and

• that this matter be referred to the Circuit Court of Cook

directing County,
Illinois, County Department, Probate Division for a determination with
respect to the allocation and distribution of the net settlement proceeds; and

• that the settlement papers and order which be issued

directing any may
by the Court with respect to the settlement be sealed; and

• together with such other and further relief as the Court deem just and
may
proper.

DATED: August 19, 2019

Anthony S. Bottar, Esq

Sworn to before me this 19th

day of August, 2019.

0 N2dther k-

Notary Public

SABRE M. MADDOCK-BRACY
Notary Public, State of New York
No. 01MA6256760
Qualified in Cayuga County
Commission Expires March 5, 20_4Q

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