Defendants’ records indicate that you resided at the Facility at some point from August 15, 2014, through December 14, 2017 (the “Settlement Class Period”).
The Court ordered that you be sent this notice because you have a right to know about a proposed settlement of a class action lawsuit, and about all of your options, before the Court can approve the settlement. If the Court approves the settlement and after objections and appeals are heard, you will receive a payment if you do not exclude yourself from the settlement. This notice explains the Action, the settlement, your legal rights, and what benefits are available.
The Court overseeing this case is the Supreme Court of the State of New York in Onondaga County. This lawsuit is known as Farruggio et al. v. 918 James Receiver, LLC et al., Index No. 3831/2017 (Supreme Court Onondaga County) (the “Action”). The people who filed the lawsuit are called the “Plaintiffs.” Excelerate Healthcare Services, LLC, Judy Kushner, Abraham Gutnicki, Liberty Senior Holdings, LLC, River Meadows, LLC, and Eliezer Friedman are the “Defendants” who are participating in this Settlement Agreement.
This Action alleges that Defendants were negligent and violated the New York Public Health Law (“PHL”) § 2801-d by depriving Facility residents of “any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation.” In particular, Plaintiffs allege that Defendants have failed to provide sufficient nursing staff to provide the nursing and related services necessary to attain and maintain the highest practicable physical and psycho-social well-being of the residents, violating their obligations pursuant to New York and federal law. Defendants deny all wrongdoing and liability, and maintains that it fully complied with the law.
The Court has not ruled in favor of either Plaintiffs or Defendants. The Parties believe they would have prevailed in the case, but both sides have agreed to a settlement to avoid the cost and delay of litigating the case. The settlement also ensures that the people affected will receive compensation. The Plaintiffs and Class Counsel recommend the settlement for all Settlement Class Members.
The Settlement Benefits – What You Get
Defendants have agreed to pay $5,500,000.00 (the “Gross Settlement Amount”). This Gross Settlement Amount covers all payments to the Class Member Payment Settlement Fund, the Catastrophic Injury Fund, the Individual Plaintiff Actions Fund, and the Fees, Costs, and Enhancements Settlement Fund.
The Class Member Payment Settlement Fund, net of payments to the Claims Administrator for its fees and costs, will cover settlement payments to participating Settlement Class Members. Payments to participating Settlement Class Members will be based on the allocation formula approved by the Court, described in Paragraph 5 below, and made by check mailed directly to each Settlement Class Member. Any unclaimed funds will be revert to the Catastrophic Injury Fund.
In addition to the Class Member Payment Settlement Fund, Class Members may be entitled to additional funds through the Catastrophic Injury Fund, the portion of the settlement distributed to Class Members who suffered catastrophic injuries, as determined by the Settlement Master. The Catastrophic Injury Fund shall be funded with the value of all unclaimed funds after the claims period expires. Class Members participating in the Catastrophic Injury Fund (which may include Individual Plaintiffs and the Named Plaintiffs) shall provide any documentation requested to the Settlement Master.
Based on a formula preliminarily approved by the Court, the settlement payment for Settlement Class Members will be calculated as follows:
Class Members’ Settlement Check = total money available after deducting cost of administration, payment to the Trustee, payment to the Individual Plaintiffs, Payment of Enhancement Awards, and Class Counsel’s Attorneys’ Fees and Costs, multiplied by total number of days the Class Member resided at the Facility in the Settlement Class Period, divided by the total number of days all Class Members resided at the Facility in the Settlement Class Period.
The Settlement Master shall, using his expertise and acting at his sole discretion, determine how the funds in the Catastrophic Injury Fund should be distributed. He shall share this determination with the Claims Administrator, who shall distribute the funds in the Catastrophic Injury Fund in accordance with the Settlement Master’s determination. All moneys in the Catastrophic Injury Fund, minus any costs of administration or money that Individual Plaintiffs privately contract to pay to their counsel, shall be distributed to Class Members participating in the Catastrophic Injury Fund (which may include Individual Plaintiffs and the Named Plaintiffs) as determined by the Settlement Master. All Money in the Catastrophic Injury Fund shall be entirely distributed within nine (9) months of the Effective Date.
To participate and receive a payment from the Class Member Payment Settlement Fund, you must submit a valid claim online or postmarked by March 10, 2021. Once the Court approves the settlement and after all possible appeals have been exhausted, you will be sent a settlement check. If you choose to timely exclude yourself, then you will not receive a payment. You will have ninety (90) days from the date the settlement payment was mailed to cash or deposit your payment. Payments from the Catastrophic Injury Fund will be made following this 90-day time period.
Unless you timely exclude yourself from the settlement, you will remain in the Settlement Class. You will release all of the Released Claims (as defined in Paragraphs 4 through 11 of the Settlement Agreement). This means you will not be able to bring a new lawsuit or benefit from any other lawsuit against Defendants about the legal issues in this Action or any legal issues involving any of the Released Claims during the Settlement Class Period. It does not apply to any claims prior to August 15, 2014. If you remain in the Settlement Class, all of the Court’s rulings in this Action will apply to you and legally bind you.
Once the Court approves the settlement and any appeals are resolved, settlement checks will be mailed for all valid claim submissions. The Court hearing to decide whether to approve the settlement will be on a later date to be approved by the Court. Once confirmed, the date of the hearing will be available on the case website. You can contact the Claims Administrator at any time for an update on the status of the case or the settlement.
Yes. Class Counsel will ask the Court to approve payment to the Claims Administrator, which will come from the Class Member Payment Settlement Fund. Class Counsel will also ask the Court to approve the distribution of fifty-thousand ($50,000) to each Individual Plaintiff in recognition of their lawsuits. Additionally, Class Counsel will seek Court approval of an Enhancement Award to Michael Farruggio and Susan Karpen in recognition of the assistance they provided in the Lawsuit in the amount of twenty-five thousand dollars ($25,000.00) each, for a total of fifty-thousand ($50,000). Specifically, the Enhancement Award is intended to compensate them for their efforts in bringing and supporting the lawsuit, assisting Class Counsel, and responding to discovery requests.
Objecting to and Opting-Out of the Settlement
If you disapprove of any part of the settlement, you have the right to make an objection.
To submit an objection, you must send a letter to the Claims Administrator (address in Section 17, below) postmarked by March 10, 2021. You must include your name, address, telephone number, and the words: “I object to the settlement in the Farruggio et al. v. 918 James Receiver et al. Action.” You must sign the letter. You must identify the specific part (or parts) of the settlement you find objectionable and explain in detail all of the reasons for your objection so the Parties, their counsel, and the Court can fully understand, consider, and address your objection.
If you submit an objection to the settlement, you may ask the Court for permission to speak at the final approval hearing. To do so, you must include the words “I request permission to appear and speak at the final approval hearing” in your written objection. The Court will ultimately decide whether to allow you to speak at the final approval hearing.
If you object to the settlement, you may withdraw your objection at any time before the final approval hearing by sending a written request to the Claims Administrator.
To exclude yourself from the settlement, you must send a letter to the Claims Administrator (address in Section 17, below) postmarked by March 10, 2021. You must include your name, address, social security number, telephone number, and, if you have one, e-mail address, and the words: “I want to opt out of the Farruggio et al. v. 918 James Receiver et al. Settlement.” You must sign and date the letter.
If you ask to be excluded, you will NOT receive any settlement payment, and you cannot object to the settlement. You will not be legally bound by anything that happens in this lawsuit.
If you exclude yourself from the settlement, you may withdraw your request at any time before the final approval hearing by sending a written request to the Claims Administrator.
Objecting is simply telling the Court that you disapprove of something about the settlement. To present an objection, you must remain in the Settlement Class. Excluding yourself is telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
Lawyers and Costs
The Court has decided that the lawyers at the law firm of Finkelstein, Blankinship, Frei-Pearson & Garber, LLP are qualified to represent you and all Class Members. These lawyers are called “Class Counsel.” You do not owe Class Counsel any money for their services relating to this Action or the settlement. You do not need to retain your own attorney to participate in the settlement. If you do not opt out of the Settlement Class and want to be represented by your own lawyer in connection with the settlement, you may hire a lawyer at your own expense.
Class Counsel accepted this case on a contingent basis, meaning they would have received nothing if the case had been lost. Class Counsel have worked on this lawsuit since prior to August 2017 without receiving any fees and paid all of the costs associated with this lawsuit without receiving any reimbursement. As part of the settlement, Class Counsel will ask the Court to approve an attorneys’ fee of $1,833,330.00 and reimbursement for their actual litigation costs and expenses in the amount of $75,000.00.
Final Approval Hearing
The Court will hold a final approval hearing on a later date to be approved by the Court. Once confirmed, the date of the hearing will be available on the case website. The hearing will take place in the Supreme Court of the State of New York, County of Onondaga, 401 Montgomery Street, Syracuse, New York 13202 or, due to the pandemic, the hearing may be virtual..
At this hearing, the Court will consider whether the settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court may listen to people who have asked to speak at the hearing. The Court will also consider Class Counsel’s request for enhancement awards to Mr. Farruggio and Ms. Karpen, the payment of attorneys’ fees and costs, and the payment to the Claims Administrator. After the hearing, the Court will decide whether to approve the settlement and the requested enhancement awards, fees, and cost payments. It is impossible to predict how long these decisions will take.
No. The Parties and their attorneys are responsible for presenting the settlement to the Court at the final approval hearing. You may attend the hearing at your own expense. If you submit a timely, valid objection, the Court will consider it. You do not have to appear at the hearing to support your objection or pay your own lawyer to attend the hearing, but you may do these things.
Please do not contact employees or managers at the Facility for information about the settlement or the claims process. If you have more questions about the settlement, please direct them to the Claims Administrator at the below address. You can also request a copy of the full Settlement Agreement from the Claims Administrator via the address below:
James Square Settlement
c/o Postlethwaite & Netterville
PO Box 1188
Baton Rouge, Louisiana 70821-1188
You may also contact Class Counsel:
Jeremiah Frei-Pearson, Esq.
Finkelstein, Blankinship, Frei-Pearson & Garber, LLP
One North Broadway, Suite 900
White Plains, New York 10601
If you change your address or reside at an address other than the one at which this notice was mailed to you, please promptly inform the Claims Administrator of your new address to ensure processing of your claim and mailing of your check to the correct address. It is your responsibility to keep a current address on file with the Claims Administrator. Please see the Update Contact Information page to update your contact information online.