Preview
FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018
703484/18E CJH/cb
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
———— X
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MARIE S. BUTEAU,
Plaintiff,
VERIFIED ANSWER TO
-against- AMENDED COMPLAINT
DELLEW CORPORATION Index No. 703484/18E
And FEDCAP REHABILITATION SERVICES, INC.,
Defendants
X
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Defendant, DELLEW CORPORATION, by its attorneys MARTYN AND MARTYN,
answering the Amended Complaint of the plaintiff herein alleges:
FACTS COMMON TO ALL CAUSES OF ACTION
1. Denies any knowledge or information sufficient to form a belief as to each and every
"5"
allegation contained in paragraphs designated "1", "4", and of the Amended Complaint.
2. Denies, upon information and belief, each and every allegation contained in paragraph
"2"
designated of the Amended Complaint.
AS AND FOR AN ANSWER FOR A FIRST CAUSE OF ACTION AGAINST
DEFENDANT DELLEW CORPORATION ON BEHALF OF PLAINTIFF
3. Defendant repeats and reiterates all the admissions and denials contained in the foregoing
"6"
Answer, with reference to those paragraphs repeated and reiterated in paragraph of the
Amended Complaint
4. Denies, upon information and belief, each and every allegation contained in paragraphs
"13"
designated "7", "8", "8", "10", "11", "12", and of the Amended Complaint and demand
greater particularity and specificity.
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5. Plaintiff'sVerified Amended Complaint does not contain any paragraph numbered "9".
6. Denies, upon information and belief, each and every allegation contained in paragraph
"14"
designated of the Amended Complaint and refer allquestions of law to the Honorable Court.
7. Denies any knowledge or information sufficient to form a belief as to each and every
"15"
allegation contained in paragraph designated of the Amended Complaint.
8. Denies, upon information and belief, each and every allegation contained in paragraphs
"24"
designated "16", "17", "18", "19", "21", "22", "23", and of the Amended Complaint.
9. Denies any knowledge or information sufficient to form a belief as to each and every
"20"
allegation contained in paragraph designated of the Amended Complaint and refer allquestions
of law to the Honorable Court.
AS AND FOR AN ANSWER FOR A SECOND CAUSE OF ACTION AGAINST
DEFENDANT FEDCAP REHABILITATION ON BEHALF OF PLAINTIFF
10. Defendant repeats and reiterates all the admissions and denials contained in the foregoing
"25"
Answer, with reference to those paragraphs repeated and reiterated in paragraph of the
Amended Complaint.
11. Denies any knowledge or information sufficient to form a belief as to each and every
allegation contained in paragraphs designated "26", "27", "28", "29", "30", "31", "32", "33", "34",
"40"
"37", "40", "42", and of the Amended Complaint.
12. Denies, upon information and belief, each and every allegation contained in paragraphs
"41"
designated "35", "36", "38", and of the Amended Complaint.
13. Denies any knowledge or information sufficient to form a belief as to each and every
"39"
allegation contained in paragraph designated of the Amended Complaint and refer allquestions
of law to the Honorable Court.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
14. In the event that the plaintiff recovers any judgment against the defendant herein, this
defendant demands that any such judgment be diminished in the proportion which the culpable
conduct attributable to the plaintiff bears to the total culpable conduct which caused the damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
15. The plaintiff's recovery, if any, shall be reduced by allcollateral sources pursuant to C.P.L.R.
4545.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
16. That defendant's liability,ifany, is limited pursuant to Article 16 of the CPLR.
THE DEFENDANT, DELLEW CORPORATION, SETS
FORTH THE FOLLOWING UPON INFORMATION
AND BELIEF AS AND FOR A CROSS-CLAIM
AGAINST THE CO-DEFENDANT,
FEDCAP REHABILITATION SERVICES, INC.
17. That if the damages and injuries alleged in the Verified Amended Complaint filed herein by
the plaintiff was the result of any negligence other than plaintiff's own negligence, then such injuries
and damages were caused wholly or in part by the negligence of the co-defendant, without any
negligence or active participation on the part of DELLEW CORPORATION contributing thereto
and in that said co-defendant actually, caused, created, maintained and were responsible for the
conditions alleged in the plaintiff's Verified Amended Complaint and at the situs of the occurrence
and in that the aforesaid co-defendant was the primary wrongdoer of any and all unusual or
plaintiffs'
wrongful acts and were responsible for the conditions alleged in Verified Amended
Complaint and that for these reasons the co-defendant is obligated to indemnify and hold harmless
DELLEW CORPORATION from and against any and all liability and damages which may be
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imposed upon itby reason of this lawsuit and that if any negligence or liabilityis found to exist on
the part of DELLEW CORPORATION such liability and negligence will be secondary and/or
passive or the result solely of operation of law as opposed to the liabilityof the co-defendant whose
liability will be primary and active as aforesaid and in such event DELLEW CORPORATION
demands judgment over and against co-defendant for the amount of any verdict or judgment which
shall or may be had against DELLEW CORPORATION in this action together with allcosts and
expenses which may be incurred in the defense of this action.
SECOND CROSS-CLAIM
18. That the defendant, DELLEW CORPORATION repeats and reiterates each and every
allegation set forth in the First Cross-claim with the same force and effect as if set forth at length
herein.
19. That ifDELLEW CORPORATION is held liable in this action, such liabilityand damages
will have arisen out of and have been contributed to in allor in part the negligence of the co-
by
defendant and in such event DELLEW CORPORATION demands judgment over and against the
aforesaid co-defendant for all or part of any verdict or judgment which shall or may be had against
DELLEW CORPORATION in this action and that such damages shall be apportioned accordingly
as the proportion of their respective liabilityshall be determined.
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WHEREFORE, the defendant, DELLEW CORPORATION demands judgment
the Verified Amended Complaint of the plaintiff herein as to it together with the costs
dismissing
and disbursements of this action and further demands that the ultimate rights of DELLEW
CORPORATION and of the plaintiff, and of the co-defendant, be determined in this action and
that DELLEW CORPORATION have judgment over and against the aforesaid parties for all or
part of any verdict or judgment which shall or may be had against DELLEW CORPORATION in
this action, together with allreasonable costs and expenses which may have been incurred in the
defense of this action.
Dated: Mineola, New York
April 9, 2018
Yours & etc.,
MARTYN AND MARTYN
Attorneys for Defendant
DELLEW CORPORATION
330 Old Country Road, Suite 211
Mineola, New York 11501
516-739-0000
TO: Falk & Klebanoff, P.C.
Attorneys for Plaintiff
392 Woodfield Road
West Hempstead, NY 11552
(516) 564-4200
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STATE OF NEW YORK)
ss:
COUNTY OF NASSAU )
Christine Hill, duly admitted to practice law before the Courts of the State of New York,
affirms the following to be true under the penalties of perjury:
That she is an attorney with the office of MARTYN AND MARTYN attorneys for the
defendant, DELLEW CORPORATION, with offices at 330 Old Country Rd., Suite 211,Mineola,
N.Y. 11501, County of Nassau, State of New York; that she has read the foregoing ANSWER and
knows the contents thereof and that the same is true to her own knowledge except as to matters
therein stated to be alleged on information and belief and that as to those matters she believes it to
be true.
That the reason why this affirmation is made by affirmant and not by the defendant is that
the defendant does not reside in the County where MARTYN AND MARTYN have their aforesaid
offices. That the sources of affirmant's information and grounds of her belief as to all matters in the
Answer therein stated upon her knowledge are records, reports, and correspondence in
foregoing
connection with thismatter reviewed by your affirmant.
Dated: Mineola, New York
April 9, 2018
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CJH/cb 703484/18E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------X
MARIE S. BUTEAU,
Plaintiff,
. DEMAND FOR VERIFIED
-agamst-
BILL OF PARTICULARS
DELLEW CORPORATION
Index No. 703484/18E
And FEDCAP REHABILITATION SERVICES, INC.,
Defendants
X
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S I R S:
1. State the exact date and approximate time of day of the occurrence.
2. Describe the location of the accident in sufficient detail to permit definite
identification.
3. State the acts or omissions constituting the negligence claimed.
4. Set forth the nature and extent of the injuries claimed to have been sustained.
5. Describe the injuries claimed to be permanent in their nature and
consequences in sufficient detail to permit definite identification.
6. Set forth the length of time itwill be claimed plaintiff was confined (a) to bed
and (b) to house; (c) identify the hospital(s) to which confined.
7. State (a) the usual business or occupation of the plaintiff and (b) plaintiffs
or income, if any, per day, week or month.
salary
8. Set forth the name and address of plaintiffs employer; or if self-employed, so
state, the name and address under which the plaintiff is doing
indicating
business.
9. Set forth the length of time, if any, plaintiff was incapacitated from
employment or occupation, or if plaintiff was a student, give the name of the
school attended, and the grade in which he was a student.
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10. Set forth the amount of lost earnings or any financial loss incurred and the
method by which the lost earnings and financial loss is computed.
11. State (a) the plaintiff s date and place of birth (b) social security number (c)
present address and (d) the address of the plaintiff at the time of the
occurrence.
12. Set forth the amounts incurred for:
(a) medical, surgical and dental services, stating separately the amount of each
service identifying by whom rendered.
(b) hospital services, stating separately the name and address of each hospital
and the amount of each bill.
(c) nursing services.
(d) services for ambulance, x-rays, prescription drugs and prosthetics, stating
separately the amount of each bill and the service for which itwas
rendered.
(e) any other item of expense, or damage.
13. Set forth the statutes or ordinances alleged to have been violated by the defendant,
designating by chapter, article,division, subdivision section, paragraph and
otherwise the particular portions and provisions of the specific laws, ordinances,
rules and regulations allegedly violated by defendant.
14. State whether itis claimed that defendant had notice of the condition complained
of and if so, statewhether actual or constructive notice is claimed; if constructive
notice is claimed, state for how long plaintiff claims the alleged condition existed
before the alleged accident; if actual notice is claimed, state by whom and to
whom such notice was allegedly given and the place and time itwas given, and
whether oral or written and ifwritten, set forth a copy thereof.
15. State where plaintiff was standing at the time of the alleged occurrence.
16. State for what purpose the plaintiff was on the premises.
17. State what itis claimed plaintiff'sinjury and the claimed acts or omissions on the part
of the defendant.
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18. Describe the particular portions of the premises where plaintiff was allegedly injured,
in sufficient detail to permit identification and that portion thereon where plaintiff
was allegedly injured.
19. State the nature of the defective or negligent condition complained of and state its
approximate location.
20. Describe the condition of the premises stating what, itis alleged, caused plaintiff's
injury.
21. State the nature of the defective or negligent condition complained of and state its
approximate location, giving distance and direction from the curb or the adjoining
building and specifying from which points said distances and directions are given.
Dated: Mineola, New York
April 9, 2018
Yours & etc.,
MARTYN AND MARTYN
Attorneys for Defendant
DELLEW CORPORATION
330 Old Country Road, Suite 211
Mineola, New York 11501
516-739-0000
TO: Falk & Klebanoff, P.C.
Attorneys for Plaintiff
392 Woodfield Road
West Hempstead, NY 11552
(516) 564-4200
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
————————————————
------------------------------------------------------------------X
MARIE S. BUTEAU,
Plaintiff'
DEMAND FOR
. MEDICAL
-agamst-
INFORMATION
DELLEW CORPORATION
Index No. 703484/18E
And FEDCAP REHABILITATION SERVICES, INC.,
Defendants
————
---------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE, that pursuant to C.P.L.R. 3101 et seq. you are required to
serve and deliver to the undersigned within (20) days the following:
twenty
(a) Full, true, legible and complete copies of medical reports complying with the mandates
of 22 NYCRR Section 202.17 of those physicians, dentists or other medical providers who have
treated, examined, consulted or saw the plaintiff for the condition(s) alleged in the Complaint or
any prior related condition(s). These shall include a detailed recital of the injuries and conditions
as to which testimony will be offered at the trial, to and those and
referring identifying x-ray
technician reports which willbe offered at the trial.
(b) The names and addresses of allphysicians who have examined or treated the plaintiff
for any of the injuries or conditions complained of or alleged herein, together with executed
duly
authorizations permitting the defendant to examine such physician's records.
(c) Duly executed authorizations to examine allhospital records, including x-rays and
technician reports, involving the injuries or conditions complained of herein. All authorizations
are to expressly state the name, complete address and file number of each provider. All
authorizations must comply with the provisions of The Health Insurance and
Portability
Accountability Act (HIPAA).
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Upon your failure to comply herewith, the plaintiff(s) herein will be precluded at the time
of trialof this action from in evidence part of the hospital medical x-
offering any records, records,
ray reports or report of other technicians not made available pursuant to the aforementioned rule,
nor will the Court hear the testimony of any physicians whose medical reports have not been
served pursuant to the aforementioned demand.
Dated: Mineola, New York
April 9, 2018
Yours & etc.,
MARTYN AND MARTYN
Attorneys for Defendant
DELLEW CORPORATION
330 Old Country Road, Suite 211
Mineola, New York 11501
516-739-0000
TO: Falk & Klebanoff, P.C.
Attorneys for Plaintiff
392 Woodfield Road
West Hempstead, NY 11552
(516) 564-4200
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------X
MARIE S. BUTEAU,
Plaintiff,
NOTICE FOR DISCOVERY
-against- AND INSPECTION
DELLEW CORPORATION Index No. 703484/18E
And FEDCAP REHABILITATION SERVICES, INC.,
Defendants
X
----------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE, that pursuant to the Civil Practice Law & Rules, the defendant
by its attorneys, MARTYN AND MARTYN, demands that each plaintiff and their attorneys
produce and permit discovery by the defendant, their attorneys or another acting on their behalf, the
following documents and things for inspection, copying and photographing:
1. Each plaintiff(s) seeking to recover for the costs of medical care, dental care, custodial
care or rehabilitation services, loss of earnings or other economic loss is to serve on the defendant's
attorneys within thirty (30) days of the service of this demand, a statement of allpast and future
costs and expense which has been or will, with reasonable certainty, be replaced or indemnified, in
whole or in part, from any collateral source such as insurance (except lifeinsurance), social security,
Worker's Compensation. Each statement is to set forth the name, address and insurance policy (or
other account) number of each collateral-source payor; and, separately stated for each payor, a list
specifying the date and amount of each payment and the name, address and social security number
or other taxpayer identification number of each payee. (C.P.L.R. 4545 (c)).
Said documents and things are to be produced at the offices of MARTYN AND MARTYN,
330 Old Country Road, Suite 211, Mineola, NY 11501 within thirty (30) days of receipt of this
notice, at which time they will be physically inspected, copied or mechanically reproduced and then
returned.
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PLEASE TAKE FURTHER NOTICE, that a written communication enclosing the
aforerequested information may be sent prior to the above mentioned time in lieu of a personal
appearance at the above time.
Dated: Mineola, New York
April 9, 2018
Yours & etc.,
MARTYN AND MARTYN
Attorneys for Defendant
DELLEW CORPORATION
330 Old Country Road, Suite 211
Mineola, New York 11501
516-739-0000
TO: Falk & Klebanoff, P.C.
Attorneys for Plaintiff
392 Woodfield Road
West Hempstead, NY 11552
(516) 5644200
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-----------------------------------------------------------------X
MARIE S. BUTEAU,
Plaintiff,
NOTICE FOR DISCOVERY
-against- AND INSPECTION
DELLEW CORPORATION Index No. 703484/18E
And FEDCAP REHABILITATION SERVICES, INC.,
Defendants
------------------------------------------------------------------X
S IRS:
PLEASE TAKE NOTICE, that pursuant to Rule 3120 of the Civil Practice Law & Rules,
the defendant by its attorneys, MARTYN AND MARTYN, demand that the plaintiff(s),
defendant(s) and/or third party defendant(s) produce and permit discovery by MARTYN AND
MARTYN or another acting on their behalf, the following documents and things for inspection,
copying and photographing:
1. The names and addresses of any witnesses at the scene of the occurrence, or people
who in any way witnessed the happening of the occurrence involving the plaintiff in this action, or
who appeared on the scene immediately following the occurrence, pursuant to the rule in
ZELLMAN vs METROPOLITAN TRANSPORTATION AUTHORITY, 40 A.D. 2d 248,
WOLKEN y_s. E.W.HOWELL COMPANY,41A.D. 2d 545.
2. The names and addresses of any witnesses or persons whom the plaintiff proposes
to call as notice witnesses as to the purported dangerous, defective and/or unsafe condition allegedly
causing this occurrence pursuant to the rule set forth in ZAYAS v_s. MORALES, 45 A.D. 2d 610.
Said documents and things are to be produced at the offices of MARTYN AND MARTYN
330 Old Country Road, Suite 211, Mineola, NY 11501 within twenty (20) days after receipt of this
notice at 10:00 in the forenoon of that day at which time they willbe physically inspected, copied or
mechanically reproduced and then returned.
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PLEASE TAKE FURTHER NOTICE, that if the above parties or their attorneys
obtaining names and addresses of persons who witnessed the occurrence or who have firsthand
knowledge of same or are notice witnesses, subsequent to the service of this notice, such
information is to be furnished to MARTYN AND MARTYN whenever so obtained. The
defendant will object at the time of trial of this action to the testimony of any persons not so
identified.
PLEASE TAKE FURTHER NOTICE, that a written communication enclosing the
afore-requested information may be sent prior to the above mentioned time in lieu of personal
appearance on the above date.
Dated: Mineola, New York
April 9, 2018
Yours & etc.,
MARTYN AND MARTYN
Attorneys for Defendant
DELLEW CORPORATION
330 Old Country Road, Suite 211
Mineola, New York 11501
516-739-0000
TO: Falk & Klebanoff, P.C.
Attorneys for Plaintiff
392 Woodfield Road
West Hempstead, NY 11552
(516) 564-4200
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
X
------------------------------------------------------------------X
MARIE S. BUTEAU,
Plaintiff,
NOTICE FOR DISCOVERY
-against- AND INSPECTION
DELLEW CORPORATION Index No. 703484/18E
And FEDCAP REHABILITATION SERVICES, INC.,
Defendants
X
------------------------------------------------------------------X
S I R S :
PLEASE TAKE NOTICE, that pursuant to C.P.L.R §3101(d), defendant by itsattorneys,
MARTYN AND MARTYN demands that plaintiff(s), defendant(s), and third party defendant(s)
and their attorneys, produce and permit discovery by MARTYN AND MARTYN or another acting
on its behalf, the following documents and things for inspection, copying, photographing and
testing:
1. Set forth the names and addresses of each person you intend to call as an expert
witness at the time of trialof this action, and
2. Describe in reasonable detail the subject matter on which each expert is expected
to testify,and
3. Set forth the substance of the facts and opinions to which each expert is
expected to testify,and
4. Set forth the qualifications of each expert, witness, and
5. Set forth a summary of the grounds for each expert's opinion, and
Said documents, things and information are to be produced at the offices of MARTYN
AND MARTYN 330 Old Country Road, Suite 211, Mineola, NY 11501 within twenty (20) days
o'
after receipt of this notice at 10:30 clock in the forenoon of that day at which time they will be
inspected, copied or mechanically reproduced and then returned.
physically
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PLEASE TAKE FURTHER NOTICE, that in the event that an expert is retained
subsequent to the service of this notice, such information is to be furnished to the office of
MARTYN AND MARTYN whenever so obtained. The office of MARTYN AND MARTYN will
object at the time of trial of this action to the testimony of any expert witness with regard to whom
you have failed to comply with this Notice for Discovery and Inspection.
PLEASE TAKE FURTHER NOTICE, that a written communication enclosing the
afore-requested information may be sent to the above named attorneys prior to the abovementioned
time in lieu of a personal appearance on the above date.
Dated: Mineola, New York
April 9, 2018
Yours & etc.,
MARTYN AND MARTYN
Attorneys for Defendant
Preview
FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 703484/18E CJH/cb SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ———— X ------------------------------------------------------------------X MARIE S. BUTEAU, Plaintiff, VERIFIED ANSWER TO -against- AMENDED COMPLAINT DELLEW CORPORATION Index No. 703484/18E And FEDCAP REHABILITATION SERVICES, INC., Defendants X ------------------------------------------------------------------X Defendant, DELLEW CORPORATION, by its attorneys MARTYN AND MARTYN, answering the Amended Complaint of the plaintiff herein alleges: FACTS COMMON TO ALL CAUSES OF ACTION 1. Denies any knowledge or information sufficient to form a belief as to each and every "5" allegation contained in paragraphs designated "1", "4", and of the Amended Complaint. 2. Denies, upon information and belief, each and every allegation contained in paragraph "2" designated of the Amended Complaint. AS AND FOR AN ANSWER FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT DELLEW CORPORATION ON BEHALF OF PLAINTIFF 3. Defendant repeats and reiterates all the admissions and denials contained in the foregoing "6" Answer, with reference to those paragraphs repeated and reiterated in paragraph of the Amended Complaint 4. Denies, upon information and belief, each and every allegation contained in paragraphs "13" designated "7", "8", "8", "10", "11", "12", and of the Amended Complaint and demand greater particularity and specificity. 1 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 5. Plaintiff'sVerified Amended Complaint does not contain any paragraph numbered "9". 6. Denies, upon information and belief, each and every allegation contained in paragraph "14" designated of the Amended Complaint and refer allquestions of law to the Honorable Court. 7. Denies any knowledge or information sufficient to form a belief as to each and every "15" allegation contained in paragraph designated of the Amended Complaint. 8. Denies, upon information and belief, each and every allegation contained in paragraphs "24" designated "16", "17", "18", "19", "21", "22", "23", and of the Amended Complaint. 9. Denies any knowledge or information sufficient to form a belief as to each and every "20" allegation contained in paragraph designated of the Amended Complaint and refer allquestions of law to the Honorable Court. AS AND FOR AN ANSWER FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT FEDCAP REHABILITATION ON BEHALF OF PLAINTIFF 10. Defendant repeats and reiterates all the admissions and denials contained in the foregoing "25" Answer, with reference to those paragraphs repeated and reiterated in paragraph of the Amended Complaint. 11. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs designated "26", "27", "28", "29", "30", "31", "32", "33", "34", "40" "37", "40", "42", and of the Amended Complaint. 12. Denies, upon information and belief, each and every allegation contained in paragraphs "41" designated "35", "36", "38", and of the Amended Complaint. 13. Denies any knowledge or information sufficient to form a belief as to each and every "39" allegation contained in paragraph designated of the Amended Complaint and refer allquestions of law to the Honorable Court. 2 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 14. In the event that the plaintiff recovers any judgment against the defendant herein, this defendant demands that any such judgment be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the total culpable conduct which caused the damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 15. The plaintiff's recovery, if any, shall be reduced by allcollateral sources pursuant to C.P.L.R. 4545. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 16. That defendant's liability,ifany, is limited pursuant to Article 16 of the CPLR. THE DEFENDANT, DELLEW CORPORATION, SETS FORTH THE FOLLOWING UPON INFORMATION AND BELIEF AS AND FOR A CROSS-CLAIM AGAINST THE CO-DEFENDANT, FEDCAP REHABILITATION SERVICES, INC. 17. That if the damages and injuries alleged in the Verified Amended Complaint filed herein by the plaintiff was the result of any negligence other than plaintiff's own negligence, then such injuries and damages were caused wholly or in part by the negligence of the co-defendant, without any negligence or active participation on the part of DELLEW CORPORATION contributing thereto and in that said co-defendant actually, caused, created, maintained and were responsible for the conditions alleged in the plaintiff's Verified Amended Complaint and at the situs of the occurrence and in that the aforesaid co-defendant was the primary wrongdoer of any and all unusual or plaintiffs' wrongful acts and were responsible for the conditions alleged in Verified Amended Complaint and that for these reasons the co-defendant is obligated to indemnify and hold harmless DELLEW CORPORATION from and against any and all liability and damages which may be 3 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 imposed upon itby reason of this lawsuit and that if any negligence or liabilityis found to exist on the part of DELLEW CORPORATION such liability and negligence will be secondary and/or passive or the result solely of operation of law as opposed to the liabilityof the co-defendant whose liability will be primary and active as aforesaid and in such event DELLEW CORPORATION demands judgment over and against co-defendant for the amount of any verdict or judgment which shall or may be had against DELLEW CORPORATION in this action together with allcosts and expenses which may be incurred in the defense of this action. SECOND CROSS-CLAIM 18. That the defendant, DELLEW CORPORATION repeats and reiterates each and every allegation set forth in the First Cross-claim with the same force and effect as if set forth at length herein. 19. That ifDELLEW CORPORATION is held liable in this action, such liabilityand damages will have arisen out of and have been contributed to in allor in part the negligence of the co- by defendant and in such event DELLEW CORPORATION demands judgment over and against the aforesaid co-defendant for all or part of any verdict or judgment which shall or may be had against DELLEW CORPORATION in this action and that such damages shall be apportioned accordingly as the proportion of their respective liabilityshall be determined. 4 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 WHEREFORE, the defendant, DELLEW CORPORATION demands judgment the Verified Amended Complaint of the plaintiff herein as to it together with the costs dismissing and disbursements of this action and further demands that the ultimate rights of DELLEW CORPORATION and of the plaintiff, and of the co-defendant, be determined in this action and that DELLEW CORPORATION have judgment over and against the aforesaid parties for all or part of any verdict or judgment which shall or may be had against DELLEW CORPORATION in this action, together with allreasonable costs and expenses which may have been incurred in the defense of this action. Dated: Mineola, New York April 9, 2018 Yours & etc., MARTYN AND MARTYN Attorneys for Defendant DELLEW CORPORATION 330 Old Country Road, Suite 211 Mineola, New York 11501 516-739-0000 TO: Falk & Klebanoff, P.C. Attorneys for Plaintiff 392 Woodfield Road West Hempstead, NY 11552 (516) 564-4200 5 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 STATE OF NEW YORK) ss: COUNTY OF NASSAU ) Christine Hill, duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: That she is an attorney with the office of MARTYN AND MARTYN attorneys for the defendant, DELLEW CORPORATION, with offices at 330 Old Country Rd., Suite 211,Mineola, N.Y. 11501, County of Nassau, State of New York; that she has read the foregoing ANSWER and knows the contents thereof and that the same is true to her own knowledge except as to matters therein stated to be alleged on information and belief and that as to those matters she believes it to be true. That the reason why this affirmation is made by affirmant and not by the defendant is that the defendant does not reside in the County where MARTYN AND MARTYN have their aforesaid offices. That the sources of affirmant's information and grounds of her belief as to all matters in the Answer therein stated upon her knowledge are records, reports, and correspondence in foregoing connection with thismatter reviewed by your affirmant. Dated: Mineola, New York April 9, 2018 6 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 CJH/cb 703484/18E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X MARIE S. BUTEAU, Plaintiff, . DEMAND FOR VERIFIED -agamst- BILL OF PARTICULARS DELLEW CORPORATION Index No. 703484/18E And FEDCAP REHABILITATION SERVICES, INC., Defendants X ------------------------------------------------------------------X S I R S: 1. State the exact date and approximate time of day of the occurrence. 2. Describe the location of the accident in sufficient detail to permit definite identification. 3. State the acts or omissions constituting the negligence claimed. 4. Set forth the nature and extent of the injuries claimed to have been sustained. 5. Describe the injuries claimed to be permanent in their nature and consequences in sufficient detail to permit definite identification. 6. Set forth the length of time itwill be claimed plaintiff was confined (a) to bed and (b) to house; (c) identify the hospital(s) to which confined. 7. State (a) the usual business or occupation of the plaintiff and (b) plaintiffs or income, if any, per day, week or month. salary 8. Set forth the name and address of plaintiffs employer; or if self-employed, so state, the name and address under which the plaintiff is doing indicating business. 9. Set forth the length of time, if any, plaintiff was incapacitated from employment or occupation, or if plaintiff was a student, give the name of the school attended, and the grade in which he was a student. 7 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 10. Set forth the amount of lost earnings or any financial loss incurred and the method by which the lost earnings and financial loss is computed. 11. State (a) the plaintiff s date and place of birth (b) social security number (c) present address and (d) the address of the plaintiff at the time of the occurrence. 12. Set forth the amounts incurred for: (a) medical, surgical and dental services, stating separately the amount of each service identifying by whom rendered. (b) hospital services, stating separately the name and address of each hospital and the amount of each bill. (c) nursing services. (d) services for ambulance, x-rays, prescription drugs and prosthetics, stating separately the amount of each bill and the service for which itwas rendered. (e) any other item of expense, or damage. 13. Set forth the statutes or ordinances alleged to have been violated by the defendant, designating by chapter, article,division, subdivision section, paragraph and otherwise the particular portions and provisions of the specific laws, ordinances, rules and regulations allegedly violated by defendant. 14. State whether itis claimed that defendant had notice of the condition complained of and if so, statewhether actual or constructive notice is claimed; if constructive notice is claimed, state for how long plaintiff claims the alleged condition existed before the alleged accident; if actual notice is claimed, state by whom and to whom such notice was allegedly given and the place and time itwas given, and whether oral or written and ifwritten, set forth a copy thereof. 15. State where plaintiff was standing at the time of the alleged occurrence. 16. State for what purpose the plaintiff was on the premises. 17. State what itis claimed plaintiff'sinjury and the claimed acts or omissions on the part of the defendant. 8 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 18. Describe the particular portions of the premises where plaintiff was allegedly injured, in sufficient detail to permit identification and that portion thereon where plaintiff was allegedly injured. 19. State the nature of the defective or negligent condition complained of and state its approximate location. 20. Describe the condition of the premises stating what, itis alleged, caused plaintiff's injury. 21. State the nature of the defective or negligent condition complained of and state its approximate location, giving distance and direction from the curb or the adjoining building and specifying from which points said distances and directions are given. Dated: Mineola, New York April 9, 2018 Yours & etc., MARTYN AND MARTYN Attorneys for Defendant DELLEW CORPORATION 330 Old Country Road, Suite 211 Mineola, New York 11501 516-739-0000 TO: Falk & Klebanoff, P.C. Attorneys for Plaintiff 392 Woodfield Road West Hempstead, NY 11552 (516) 564-4200 9 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ———————————————— ------------------------------------------------------------------X MARIE S. BUTEAU, Plaintiff' DEMAND FOR . MEDICAL -agamst- INFORMATION DELLEW CORPORATION Index No. 703484/18E And FEDCAP REHABILITATION SERVICES, INC., Defendants ———— ---------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE, that pursuant to C.P.L.R. 3101 et seq. you are required to serve and deliver to the undersigned within (20) days the following: twenty (a) Full, true, legible and complete copies of medical reports complying with the mandates of 22 NYCRR Section 202.17 of those physicians, dentists or other medical providers who have treated, examined, consulted or saw the plaintiff for the condition(s) alleged in the Complaint or any prior related condition(s). These shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, to and those and referring identifying x-ray technician reports which willbe offered at the trial. (b) The names and addresses of allphysicians who have examined or treated the plaintiff for any of the injuries or conditions complained of or alleged herein, together with executed duly authorizations permitting the defendant to examine such physician's records. (c) Duly executed authorizations to examine allhospital records, including x-rays and technician reports, involving the injuries or conditions complained of herein. All authorizations are to expressly state the name, complete address and file number of each provider. All authorizations must comply with the provisions of The Health Insurance and Portability Accountability Act (HIPAA). 10 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 Upon your failure to comply herewith, the plaintiff(s) herein will be precluded at the time of trialof this action from in evidence part of the hospital medical x- offering any records, records, ray reports or report of other technicians not made available pursuant to the aforementioned rule, nor will the Court hear the testimony of any physicians whose medical reports have not been served pursuant to the aforementioned demand. Dated: Mineola, New York April 9, 2018 Yours & etc., MARTYN AND MARTYN Attorneys for Defendant DELLEW CORPORATION 330 Old Country Road, Suite 211 Mineola, New York 11501 516-739-0000 TO: Falk & Klebanoff, P.C. Attorneys for Plaintiff 392 Woodfield Road West Hempstead, NY 11552 (516) 564-4200 11 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X MARIE S. BUTEAU, Plaintiff, NOTICE FOR DISCOVERY -against- AND INSPECTION DELLEW CORPORATION Index No. 703484/18E And FEDCAP REHABILITATION SERVICES, INC., Defendants X ----------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE, that pursuant to the Civil Practice Law & Rules, the defendant by its attorneys, MARTYN AND MARTYN, demands that each plaintiff and their attorneys produce and permit discovery by the defendant, their attorneys or another acting on their behalf, the following documents and things for inspection, copying and photographing: 1. Each plaintiff(s) seeking to recover for the costs of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss is to serve on the defendant's attorneys within thirty (30) days of the service of this demand, a statement of allpast and future costs and expense which has been or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance (except lifeinsurance), social security, Worker's Compensation. Each statement is to set forth the name, address and insurance policy (or other account) number of each collateral-source payor; and, separately stated for each payor, a list specifying the date and amount of each payment and the name, address and social security number or other taxpayer identification number of each payee. (C.P.L.R. 4545 (c)). Said documents and things are to be produced at the offices of MARTYN AND MARTYN, 330 Old Country Road, Suite 211, Mineola, NY 11501 within thirty (30) days of receipt of this notice, at which time they will be physically inspected, copied or mechanically reproduced and then returned. 12 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 PLEASE TAKE FURTHER NOTICE, that a written communication enclosing the aforerequested information may be sent prior to the above mentioned time in lieu of a personal appearance at the above time. Dated: Mineola, New York April 9, 2018 Yours & etc., MARTYN AND MARTYN Attorneys for Defendant DELLEW CORPORATION 330 Old Country Road, Suite 211 Mineola, New York 11501 516-739-0000 TO: Falk & Klebanoff, P.C. Attorneys for Plaintiff 392 Woodfield Road West Hempstead, NY 11552 (516) 5644200 13 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -----------------------------------------------------------------X MARIE S. BUTEAU, Plaintiff, NOTICE FOR DISCOVERY -against- AND INSPECTION DELLEW CORPORATION Index No. 703484/18E And FEDCAP REHABILITATION SERVICES, INC., Defendants ------------------------------------------------------------------X S IRS: PLEASE TAKE NOTICE, that pursuant to Rule 3120 of the Civil Practice Law & Rules, the defendant by its attorneys, MARTYN AND MARTYN, demand that the plaintiff(s), defendant(s) and/or third party defendant(s) produce and permit discovery by MARTYN AND MARTYN or another acting on their behalf, the following documents and things for inspection, copying and photographing: 1. The names and addresses of any witnesses at the scene of the occurrence, or people who in any way witnessed the happening of the occurrence involving the plaintiff in this action, or who appeared on the scene immediately following the occurrence, pursuant to the rule in ZELLMAN vs METROPOLITAN TRANSPORTATION AUTHORITY, 40 A.D. 2d 248, WOLKEN y_s. E.W.HOWELL COMPANY,41A.D. 2d 545. 2. The names and addresses of any witnesses or persons whom the plaintiff proposes to call as notice witnesses as to the purported dangerous, defective and/or unsafe condition allegedly causing this occurrence pursuant to the rule set forth in ZAYAS v_s. MORALES, 45 A.D. 2d 610. Said documents and things are to be produced at the offices of MARTYN AND MARTYN 330 Old Country Road, Suite 211, Mineola, NY 11501 within twenty (20) days after receipt of this notice at 10:00 in the forenoon of that day at which time they willbe physically inspected, copied or mechanically reproduced and then returned. 14 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 PLEASE TAKE FURTHER NOTICE, that if the above parties or their attorneys obtaining names and addresses of persons who witnessed the occurrence or who have firsthand knowledge of same or are notice witnesses, subsequent to the service of this notice, such information is to be furnished to MARTYN AND MARTYN whenever so obtained. The defendant will object at the time of trial of this action to the testimony of any persons not so identified. PLEASE TAKE FURTHER NOTICE, that a written communication enclosing the afore-requested information may be sent prior to the above mentioned time in lieu of personal appearance on the above date. Dated: Mineola, New York April 9, 2018 Yours & etc., MARTYN AND MARTYN Attorneys for Defendant DELLEW CORPORATION 330 Old Country Road, Suite 211 Mineola, New York 11501 516-739-0000 TO: Falk & Klebanoff, P.C. Attorneys for Plaintiff 392 Woodfield Road West Hempstead, NY 11552 (516) 564-4200 15 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X ------------------------------------------------------------------X MARIE S. BUTEAU, Plaintiff, NOTICE FOR DISCOVERY -against- AND INSPECTION DELLEW CORPORATION Index No. 703484/18E And FEDCAP REHABILITATION SERVICES, INC., Defendants X ------------------------------------------------------------------X S I R S : PLEASE TAKE NOTICE, that pursuant to C.P.L.R §3101(d), defendant by itsattorneys, MARTYN AND MARTYN demands that plaintiff(s), defendant(s), and third party defendant(s) and their attorneys, produce and permit discovery by MARTYN AND MARTYN or another acting on its behalf, the following documents and things for inspection, copying, photographing and testing: 1. Set forth the names and addresses of each person you intend to call as an expert witness at the time of trialof this action, and 2. Describe in reasonable detail the subject matter on which each expert is expected to testify,and 3. Set forth the substance of the facts and opinions to which each expert is expected to testify,and 4. Set forth the qualifications of each expert, witness, and 5. Set forth a summary of the grounds for each expert's opinion, and Said documents, things and information are to be produced at the offices of MARTYN AND MARTYN 330 Old Country Road, Suite 211, Mineola, NY 11501 within twenty (20) days o' after receipt of this notice at 10:30 clock in the forenoon of that day at which time they will be inspected, copied or mechanically reproduced and then returned. physically 16 of 28 FILED: QUEENS COUNTY CLERK 04/17/2018 03:38 PM INDEX NO. 703484/2018 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/17/2018 PLEASE TAKE FURTHER NOTICE, that in the event that an expert is retained subsequent to the service of this notice, such information is to be furnished to the office of MARTYN AND MARTYN whenever so obtained. The office of MARTYN AND MARTYN will object at the time of trial of this action to the testimony of any expert witness with regard to whom you have failed to comply with this Notice for Discovery and Inspection. PLEASE TAKE FURTHER NOTICE, that a written communication enclosing the afore-requested information may be sent to the above named attorneys prior to the abovementioned time in lieu of a personal appearance on the above date. Dated: Mineola, New York April 9, 2018 Yours & etc., MARTYN AND MARTYN Attorneys for Defendant