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Electronically Filed

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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BARBARA FORLASTRO and ROBERT G. FORLASTRO, Case No.: 1:07-CV-3288

as Co-Administrators of The Estate of (RPP)(FM)

ROBERT J. FORLASTRO,

Plaintiffs, AFFIRMATION IN

OPPOSITION

-againstJAMES COLLINS,

Defendants.

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Sara Luca Salvi, Esq., being an attorney duly admitted to practice law before this Court,

under the penalties of perjury, hereby affirms, upon information and belief:

1. I am associated with the firm of Mead, Hecht, Conklin & Gallagher, LLP, attorneys

for the defendant, JAMES COLLINS, and I am fully familiar with the facts and circumstances of

this matter, as they are maintained in our file at the undersigned’s office.

2. This Affirmation is being submitted in opposition to Plaintiffs’ motion in opposition

to Plaintiffs’ motion to apply Connecticut law and to apply Connecticut’s wrongful death

damages law. As explained in the accompanying Memorandum of Law, the Law of New York

should be applied to the damages being sought by Plaintiffs.

3. The Complaint alleges that defendant James Collins was operating the truck of his

employer New York State Electric & Gas Corporation and struck plaintiffs’ decedent causing

serious injury and death. Plaintiffs’ attorney concedes that on the date of the accident, Plaintiffs’

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decedent was collecting garbage in the Carmel, New York area in the course of his employment. 

Plaintiffs’ decedent purposely entered New York as a part of his job responsibilities. Plaintiffs’

attorney also indicates decedent had decided to stop at a deli in Carmel, New York to get

breakfast. 

4. Defendant’s domicile and residence is located in New York State. Further,

Plaintiff’s statement that “Mr. Collins frequently drives his vehicle in Danbury, Connecticut. . ..”

is irrelevant. 

Prior New York State Litigation

5. On or about March 21, 2006, Plaintiffs commenced an action against the same

defendant in this action, JAMES M. COLLINS, and against New York State Electric & Gas

Corp. in Putnam County Supreme Court under Index No. 581/2006. The attorneys for Plaintiffs

in the Putnam action were Burke, Miele & Golden, LLP. The Putnam County action sought

damages for the injuries sustained by decedent on December 6, 2004 and for pecuniary loss

sustained by the decedent’s beneficiaries.

6. The defendants, JAMES M. COLLINS and NEW YORK STATE ELECTRIC AND

GAS CORP. served a Verified Answer, dated May 3, 2006, along with discovery demands. This

office appeared as the attorneys for both defendants in the Putnam County Supreme Court action. 

7. Thereafter, Plaintiffs executed a Consent to Change Attorney form, dated August 1,

2006, which substituted Robert G. Forlastro, pro se, in place of prior counsel. 

8. By letter dated August 23, 2006, Michael A. Stratton, Esq., of Stratton Faxon, sent a

letter to Elizabeth M. Hecht, Esq., of Mead, Hecht, Conklin & Gallagher, LLP, requesting that an

enclosed Stipulation of Discontinuance without prejudice for the Putnam County Supreme Court

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action be executed. The Stipulation was executed by Robert G. Forlastro, Barbara Forlastro and

by Elizabeth M. Hecht,, Esq., of Mead, Hecht, Conklin and Gallagher, LLP, the attorneys for the

Defendants. 

Federal Action Was Commenced in the Southern District of New York

9. On or about November 30, 2006, Plaintiffs, ROBERT G. FORLASTRO and

BARBARA FORLASTRO, as Co-Administrators of the Estate of ROBERT J. FORLASTRO,

filed an action against NEW YORK STATE ELECTRIC AND GAS CORP. and JAMES M.

COLLINS, in the United States District Court, Southern District of New York with Case Number

06-CV-13591. 

10. By Order, dated March 23, 2007, Senior U.S. District Judge William C. Conner

ordered that the action be dismissed with prejudice based upon the failure to serve the Summons

and Complaint and Plaintiffs’ attorney’s statement that Plaintiffs would not pursue the action. 

 11. By Order, dated March 28, 2007, Senior U.S. District Judge William C. Conner

rescinded the March 23, 2007 Order and ordered that the action be dismissed without prejudice

and without costs or attorneys’ fees where the plaintiff informed the Court that he had

commenced an identical action in United States District Court, District of Connecticut. 

District of Connecticut Action

12. On or about October 2, 2006, Plaintiffs, BARBARA FORLASTRO and ROBERT

G. FORLASTRO, as Co-Administrators of the Estate of ROBERT J. FORLASTRO, filed an

action against defendant JAMES COLLINS in the United States District Court, District of

Connecticut with Case Number: 3:06-CV-01541. Defendant JAMES COLLINS was represented

by Marisa A. Bellair, Esq., and Steven J. Errante, Esq., both of Lynch, Traub, Keefe & Errante in

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the District of Connecticut action. 

13. A telephone conference was held on March 27, 2007 with Judge Robert N.

Chatigny, where the issue of transferring the action to New York was discussed. The parties

were to report to the Court by March 30, 2007 as to any stipulation to transfer the action to New

York. 

14. A stipulation to transfer the action to the United States District Court for the

Southern District of New York was executed by the attorneys for the Plaintiffs and the attorneys

for the Defendant. The Stipulation provided: “Pursuant to 28 U.S.C. § 1404(b), the parties,

through undersigned counsel, are agreeable to the above action being transferred by the Court to

the United States District Court for the Southern District of New York at White Plains.” 

15. United States District Judge Robert N. Chatigny approved the Stipulation to

Transfer. Judge Chatigny added the following language:

“Approved. The parties consent to transfer the case to the

United States District Court, Southern District of New York, White

Plains Division, pursuant to 28 U.S.C. § 1404(a). All further

pleadings or documents in this matter should be filed with the

Clerk’s Office of the United States District Court, Southern

District of New York, White Plains Division . . . .”

16. The case was thereafter transferred to the Southern District of New York, and an

Answer was served on behalf of defendant JAMES COLLINS, by the law firm of Mead, Hecht,

Conklin & Gallagher, LLP.

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WHEREFORE, it is respectfully requested that this Court deny the Plaintiff’s motion in

its entirety and apply the Law of New York, along with such other and further relief as this Court

deems just and proper.

Dated: Mamaroneck, New York

July 2, 2007

Yours, etc., 

MEAD, HECHT, CONKLIN & GALLAGHER, L.L.P. 

______S/_____________________________

By: SARA LUCA SALVI (SS 6292)

109 Spencer Place 

Mamaroneck, New York 10543

(914) 899-3100

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