Preview
FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
DIANNE DAVIS, VERIFIED ANSWER
Plaintiff(s), Index No: 703510/18
-against-
FRANZ A. MATZELLE
Defendant(s),
The defendant(s), Franz A. Matzelle, answering the Complaint herein:
First: Admit(s) each and every allegation in the paragraph(s) of the Complaint
designated as follows: 6 and 8.
Second: Deny/denies each and every allegation in the paragraph(s) of the Complaint
designated as follows: 16, 17, 18, 19, 20, 21, 22 and 28.
Third: Deny/denies any knowledge or information sufficient to form a belief as to the
truth of any of the allegations contained in the paragraph(s) of the Complaint designated as follows:
1, 2, 3, 4, 7, 9, 10, 11 and 14.
Fourth: Deny/denies each and every allegation contained in the paragraph(s) of the
Complaint designated as follows, and refers allquestions of law to the Court: 23 and 24.
Fifth: Deny/denies each any every allegation contained in paragraph 5 of the
Complaint except to admit that defendant, Franz A. Matzelle was the operator of a 2005 Dodge
motor vehicle bearing New York State License Plate Number DDP6942.
Sixth: Deny/denies any knowledge or information sufficient to form a belief as to the
truth of any of the allegations contained in the paragraph(s) of the Complaint designated as follows,
and refers allquestions of law to the Court: 12, 13, 25, 26 and 27.
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Seventh: Repeat(s), reiterate(s) and reallege(s) all admissions and denials contained in
the foregoing paragraph(s) which set forth an answer to all the allegations contained in all of the
paragraphs of the Complaint designated as follows: 15.
The Defendant(s), Franz A. Matzelle, Set(s) Forth the
Following Affirmative Defenses
Eighth: That whatever damage, personal injury, injury to property or wrongful death
the plaintiff(s) and/or the plaintiff(s)'s decedent may have sustained, ifany, at the time and place
alleged in the Complaint herein, or any amendments thereto, was caused by the carelessness,
negligence, recklessness, assumption of risk and culpable conduct and want of care on the part of
the plaintiff(s) and/or the plaintiff(s)'s decedent; and if any carelessness, negligence, recklessness
or culpable conduct upon the part of the answering defendant(s) caused or contributed to such
injury or wrongful death and damages to the plaintiff(s) and/or the plaintiff's decedent, such
carelessness, negligence, recklessness or culpable conduct bore only a slight proportion to the
entire negligence and culpable conduct attributable to both the plaintiff(s) and/or the plaintiff's
decedent in causing the accident and any damages sustained.
Ninth: The plaintiff(s) failed to mitigate damages allegedly suffered.
Tenth: Upon information and belief, some or all of the damages alleged in the
plaintiff(s)'s Complaint is/are barred and/or subject to the qualification of the provision of § 4545
of the CPLR.
Eleventh: If it is determined that the plaintiff(s) failed to use available seat belts, the
defendant(s) plead(s) said fact in mitigation of damages.
Twelfth: In the event that any person or entity liable or claimed to be liable for the injuries
or damages alleged in this action has been given or may hereafter be given a release or covenant
not to sue, the answering defendant(s) will be entitled to protection under New York General
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Obligations Law 15-108 and the corresponding reduction of any damages that may be determined
to be due against the answering defendant(s).
Thirteenth: The plaintiff(s) failed to state a cause of action for gross negligence.
Fourteenth: The Complaint fails to join a necessary party to the action.
Wherefore, the defendant(s), Franz A. Matzelle, demand(s) judgment as follows:
a. dismissing the Complaint herein, together with the costs and disbursements of
this action.
Dated: Jericho, New York
April 6, 2018
Sincerely,
LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s)
Dianne Davis Franz A. Matzelle
475 Park Avenue South P. O. Box 9040
28th Floor 300 Jericho Quadrangle, Suite 260
New York, NY 10016 Jericho, NY 11753
(212) 686-4655 (516) 229-6000
File Number: 18NEWY07930
Claim Number: 32-1082-1V4
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STATE OF NEW YORK, COUNTY OF NASSAU
The undersigned, an attorney admitted to practice in the courts of New York State, shows:
affirmant is Marcella Gerbasi Crewe, an attorney in the law firm of Richard T. Lau & Associates,
attorneys of record for the defendant(s), in the within action; affirmant has read the foregoing
Answer and knows the contents thereof; the same is true to affirmant's own knowledge, except as
to the matters therein stated to be alleged on information and belief and that as to those matters
affirmant believes itto be true. This verification is made by affirmant and not by the defendant(s),
in that the defendant(s), is/are not within the county where undersigned has his/her office.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge
are as follows: investigations made relative to the subject matter, information and records in his/her
file.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: Jericho, NY
April 6, 2018
18NEWY07930
MARCELLA BASI CREWE, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
DIANNE DAVIS, DEMAND FOR
BILL OF PARTICULARS
Plaintiff(s),
Index No: 703510/18
-against-
FRANZ A. MATZELLE
Defendant(s),
Please take notice that pursuant to the applicable rules of the CPLR, the defendant(s)
demand(s) that you serve upon the undersigned within twenty days:
1. State any name used by each plaintiff other than specifically stated above.
2. The date, time of day of the claimed occurrence and its exact location.
3. Statement of the acts or omissions constituting the negligence claimed as they
allegedly relate to the defendant(s).
4. State by section and title,statutes, regulations, rules, ordinances and any other laws
itwill be claimed were violated by the defendant(s).
5. State the nature, location and extent of claimed injuries.
a. State in detail which injuries are claimed to be permanent.
6. Length of time confined to: (a) hospital(s) giving name and address of hospital(s),
(b) bed, (c) house; (d) length of time totally disabled, (e) length of time partially disabled.
7a. State the occupation, employment or trade of the plaintiff(s) setting forth: (i) name
of employer(s); (ii)address of employer(s); (iii) name of the plaintiff direct supervisor(s) (iv) the
number of working days incapacitated; (v) rate of pay and (vi) total loss of earnings claimed.
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7b. If the plaintiff(s) was a student/were students, state (i) the name and address of the
school(s), (ii)the dates the plaintiff(s) claim(s) to have been unable to attend school.
8. Separately, state the amounts claimed as special damages for each of the following,
itemizing special damages for each provider: (a) physician's services, (b) medical supplies, (c)
hospital charges, (d) x-ray expenses, (e) nurse's services, (f) loss of earnings, (g) other expenses
(itemized).
9. Provide the plaintiff(s)'s address, date of birth and social security and/or tax
identification number if an alien, please provide alien registration card number.
10. State the directions of travel of the parties at the time of the occurrence.
11. If loss of services, society and consortium is claimed, set forth: (a) the length of
time said loss is claimed to have occurred; (b) the relationship of the plaintiff to the party claiming
the loss; (c) the particular services claimed for loss of services, consortium, medical expenses and
other expenses.
12. If it is claimed that a dangerous and/or defective condition caused and/or
contributed to the occurrence alleged in the Complaint, set forth in detail each and every condition,
claimed to have been dangerous and/or defective, and how and in what manner each is claimed to
have been dangerous and/or defective and state how such condition(s) caused and/or contributed
to the alleged occurrence.
13. If actual notice of any dangerous and/or defective condition is claimed to have been
given and/or supplied to the defendant(s), set forth: (a) the names and addresses of any persons by
whom notice was given/supplied; (b) the names and addresses of any persons to whom notice was
given/supplied; (c) the time, date and place notice was given/supplied in each instance.
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14. If constructive notice of any dangerous and/or defective condition is claimed was
given and/or supplied to the defendant(s), set forth: (a) the conditions by which notice was
supplied; (b) the time, date and place notice was had in each instance; (c) duration of condition
with the date(s) of inception constructive notice will be claimed to have been given defendant(s).
15. If medical payments or lost earning were obtained from any collateral source,
including but not limited to worker's compensation, no-fault, private health insurance, employee
benefit programs, prepaid health plans or other liability or first party coverage, state and/or
provide: (a) the name of each organization that made such payments; (b) the amounts of each such
payment and copies of receipts and/or canceled checks; (c) the dates of each payment; (d) the
policy(ies) or contract number pursuant to which such payments were made and a copy of such
policy(ies); (e)the limits of coverage for such payments; (f) the premium amounts paid by the
plaintiff for such coverage; (g) the length of time such coverage remained or will remain in effect
for; and (h) the amounts to be owed plaintiff to continue such coverage.
16. Set forth in what respect the plaintiff(s) sustained a serious injury, as defined in
subdivision four of the Insurance Law, § 5102(d).
17. Set forth in what respect the plaintiff(s) sustained an economic loss greater than
basic economic loss, as defined subdivision one of the Insurance Law, Section 5102(a).
18. If personal or real property damage is claimed, set forth: (a) description of the
property damaged, (b) date of purchase and price paid, (c) value of property at time of loss, (d)
detailed list of repairs necessary and the cost thereof and (e) salvage value recovered, if any.
19. State the amounts of any purported lien(s) or lawful lien(s) against the plaintiff(s)'s
recovery, and ifany are known to the plaintiff(s), state the basis of said lien(s), the date(s) said
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lien(s) were established, asserted, filed, and/or perfected and state the name(s) of any lienholder(s)
or purported lienholder(s).
20. State the basis for the claim that the defendant(s) is/are jointly and severally liable.
21. State the basis of the claim that defendant operated his vehicle without due regard
for the conditions, traffic light, stop sign, road regulations and without due regard for the rights
and safety of others.
Dated: Jericho, New York
April 6, 2018
Sincerely,
LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s)
Dianne Davis Franz A. Matzelle
475 Park Avenue South P. O. Box 9040
28th Floor 300 Jericho Quadrangle, Suite 260
New York, NY 10016 Jericho, NY 11753
(212) 686-4655 (516) 229-6000
File Number: 18NEWY07930
Claim Number: 32-1082-1V4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
DIANNE DAVIS, NOTICE OF
DISCOVERY AND
Plaintiff(s), INSPECTION
-against- Index No: 703510/18
FRANZ A. MATZELLE
Defendant(s),
Sir(s)/Madam(s):
Please take notice that pursuant to CPLR 3101 and 3120, the plaintiff(s) is/are hereby
required to produce, furnish and permit discovery by the defendant(s), defendant(s)'s attorneys, or
representatives, the following items and/or documents for inspection within 30 days from the date
o'
of this Notice at 10 clock in the forenoon at the office of the defendant(s)'s attorneys:
1. The names and addresses of each person claimed by any party you represent, to be
a witness to the occurrence complained of; and in addition thereto, any witness to the claimed acts,
omissions or conditions which allegedly caused the accident alleged in the Complaint. If no such
witnesses are known to the plaintiff(s), so state in reply to this demand.
2. Pursuant to CPLR 3101(e) and 3120, each and every statement, written or recorded
or otherwise, made by or taken from each such party represented by the undersigned and his, her,
or its agents, servants, or employees now in your possession, custody or control or in the
possession, custody or control of any party you represent in this action if such statement in any
manner bears on the issues in this action.
3. If the plaintiff(s) was a/were student(s) at the time of the occurrence complained of
herein, itis hereby requested that you furnish the undersigned with the names and addresses of all
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schools attended by the plaintiff(s), along with duly executed and acknowledged authorizations
enabling the undersigned to obtain the complete file compiled by the relevant school authority in
connection with the plaintiff(s)'s status as a student in that school or school district. This
authorization shall allow access to,but shall not be limited to, records concerning the plaintiff(s)'s
class attendance, grades performance and disciplinary matters (if any).
4. The names and addresses of all physicians or other health care providers of every
description who have consulted, examined or treated the plaintiff(s) for each of the conditions
allegedly caused by or exacerbated by the occurrence described in the Complaint, including the
date(s) of such treatment or examination.
5. Duly executed and acknowledged written authorizations allowing the defendant(s)
to obtain the complete office medical records relating to the plaintiff(s) of each health care provider
identified in (4).
6. Duly executed and acknowledged written authorizations directed to any hospital(s),
clinic(s) or other health care facility in which the injured plaintiff herein is or was confined due to
the occurrence set forth in the Complaint, so as to permit the securing of a copy of the entire
technicians'
hospital record or records, including x-rays, technicians reports and intra-operative photographs.
7. All photographs under the control of the plaintiff(s), the plaintiff(s)'s attorney(s),
representatives and agents showing: (a) the condition of the scene or to be alleged to represent the
scene at the time of the accident; (b) extent of damage to the vehicle(s), ifany, following the
accident; (c) injuries to the plaintiff(s).
8. Authorizations permitting the undersigned to obtain the plaintiff(s)'s personnel,
employment and/or wage records and W-2s from the plaintiff(s)'s employer(s) for the period two
years prior to the occurrence which is the basis for the lawsuit, and for any subsequent year in
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which itis claimed that the plaintiff(s) sustained a loss and/or decrease in income and/or earnings
as a result of the aforementioned occurrence.
a. If the plaintiff(s) was/were self-employed, provide an IRS Form 4506-T
(Request for Transcript of Tax Return) as well as copies of the plaintiff Federal, State and
City Income Tax Returns for the period commencing three years prior to the alleged
occurrence through the current tax year.
9. Duly executed authorizations allowing the defense to review and/or obtain the
records of the Worker's Compensation Board of the State of New York with reference to the
injured party(ies)'s claim for worker's compensation benefits. Also provide: (a) The Worker's
Compensation Board file number; (b) The name, address and file number of each insurance
company that provided worker's compensation benefits to the injured party(ies) and duly executed
authorizations to obtain their files with reference to the injured party(ies)'s claim.
plaintiff(s)' Fault"
10. Authorizations permitting the undersigned to obtain the "No file
Fault"
records with respect to injuries claimed in the accident. Include "No filenumber.
11. Duly executed HIPAA complaint authorization permitting defense counsel to
obtain plaintiff(s)'s Medicare records.
12. Duly executed HIPAA complaint authorization permitting defense counsel to
obtain plaintiff(s)'s Medicaid records.
13. Pursuant to CPLR 3101 and 4545(c), all documents, records, bills, invoices,
receipts or canceled checks concerning indemnification, payment and reimbursement, in whole or
in part, which the plaintiff(s) have/had received from collateral sources, including, but not limited
to, benefit programs for the cost of medical, custodial, and rehabilitation services, loss of earnings
and other economic loss which the plaintiff(s) will claim as special damages in this action; and in
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the event the plaintiff(s) is/are awarded judgment against the defendant(s), the amount of such
judgment be reduced by such amount(s) that may be established on trial,and as authorized by
CPLR 4545(c).
14. Names and addresses of all ambulance (private and public) companies, taxicab
and/or public and/or private livery services which have conveyed the plaintiff(s) and whose
services allegedly were necessitated as a result of injuries incurred from the occurrence complained
of in this action. Should the costs of those services constitute an item claimed as and for special
damages in connection with the above-captioned lawsuit, supply the following information for
each identified provider specific dates of hire, time period hired, places of departure and
destination, and charges incurred for each episode of hire.
15. Any written report of the subject accident prepared in the regular course of business
operation or practices of any person, firm, corporation, association or other public or private entity.
16. Copies of transcripts or records of all examinations before trial and statutory
hearings heretofore conducted.
17. Copies of any purported or lawful liens against the plaintiff(s)'s recovery.
18. Photographs under the control of the plaintiff(s) or plaintiff(s)'s counsel showing
the condition of the motor vehicle(s) allegedly involved hereinbefore, during and/or after the
alleged occurrence.
19. Photographs under the control of the plaintiff(s) or plaintiff(s)'s counsel showing
the accident situs before, during and after the alleged occurrence.
20. Photographs under the control of the plaintiff(s) or plaintiff(s)'s counsel showing
the injuries complained of.
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21. Copies of any repair bills or estimates relating to the items of personal or real
property damaged.
22. If the plaintiff(s) possessed an automobile telephone for the vehicle which was
involved in the accident, or a cellular phone which was on the person of the plaintiff(s) or in the
vehicle of the plaintiff(s) at the time of the accident, and said telephone(s), as applicable, was
operational on the date of the accident, then demand is hereby made for the automobile
telephone/cellular telephone records for the date of the alleged occurrence.
23. Duly executed and acknowledged written authorizations directed to any hospitals,
clinics, health care facilities, physicians or other health care providers that have performed surgery
upon the plaintiff(s), so as to permit the securing of a copy of the entire hospital/clinic/health care
facility/physician records, including x-rays, films and reports of diagnostic studies and tests,
technicians'
surgical photographs, video recordings of any surgeries, and technicians reports.
24. Any video recording of the events of the accident that is the subject of this lawsuit,
plaintiff(s)'
and any video of the plaintiff(s) showing physical condition as a result of the accident.
Please take further notice that the foregoing are continuing demands and that if any of the
above items are obtained after the date of this demand, they are to be furnished to the undersigned
pursuant to this demand. The undersigned will move to preclude said items not so provided and/or
object upon the trial of this matter to the testimony and/or introduction of any items sought herein.
Please take further notice that failure to timely respond to this Notice of Discovery and
Inspection and Combined Demands will result in application to the Court for appropriate sanctions.
Please take further notice that this office does not consent to service by fax or email, unless
otherwise stipulated.
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Dated: Jericho, New York
April 6, 2018
Sincerely,
LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s)
Dianne Davis Franz A. Matzelle
475 Park Avenue South P. O. Box 9040
28th Floor 300 Jericho Quadrangle, Suite 260
New York, NY 10016 Jericho, NY 11753
(212) 686-4655 (516) 229-6000
File Number: 18NEWY07930
Claim Number: 32-1082-1V4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
DIANNE DAVIS, DEMAND FOR
RELIEF REQUESTED
Plaintiff(s),
Index No: 703510/18
-against-
FRANZ A. MATZELLE
Defendant(s),
Pursuant to CPLR 3017(c), the defendant(s), Franz A. Matzelle, demand(s) that within 15
days of the date of this demand, the plaintiff(s), Dianne Davis, serve a supplemental demand for
relief setting forth the total damages to which plaintiff deem(s) himself/herself/themselves entitled.
Dated: Jericho, New York
April 6, 2018
Sincerely,
LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s)
Dianne Davis Franz A. Matzelle
475 Park Avenue South P. O. Box 9040
28th Floor 300 Jericho Quadrangle, Suite 260
New York, NY 10016 Jericho, NY 11753
(212) 686-4655 (516) 229-6000
File Number: 18NEWY07930
Claim Number: 32-1082-1V4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
DIANNE DAVIS, NOTICE OF
DEPOSITION
Plaintiff(s),
Index No: 703510/18
-against-
FRANZ A. MATZELLE
Defendant(s),
Please take notice that pursuant to Article 31, § 3101 et seq. of the CPLR, the undersigned
will take deposition upon oral testimony of the parties listed below as adverse parties at the date,
time and place indicated below, concerning all of the relevant facts and circumstances in
connection with this action, including negligence, contributory negligence, liability and damages.
Please take further notice that the said persons to be examined are required to produce at
such examination all books, papers and memoranda relating to the occurrence.
Parties to be Examined: All Parties
Date and Time: July 6, 2018
Place: Richard T. Lau & Associates
P. O. Box 9040
300 Jericho Quadrangle, Suite 260
Jericho, NY 11753
Dated: Jericho, New York
April 6, 2018
Sincerely,
LERNER, ARNOLD 4 WINSTON, LLP RICHARD T. LAU & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s)
Dianne Davis Franz A. Matzelle
475 Park Avenue South P. O. Box 9040
28th Floor 300 Jericho Quadrangle, Suite 260
New York, NY 10016 Jericho, NY 11753
(212) 686-4655 (516) 229-6000
File Number: 18NEWY07930
Claim Number: 32-1082-1V4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
DIANNE DAVIS, DEMAND PURSUANT
TO CPLR 3101(d)
Plaintiff(s),
Index No: 703510/18
-against-
FRANZ A. MATZELLE
Defendant(s),
Please take notice that this demand is deemed to be continuing and the undersigned will
object at the time of trial to the testimony of any expert concerning whom appropriate notice has
not been given:
1. Identify each person whom you expect to call as an expert witness at trial and state
the qualifications of each such expert.
2. State in detail the subject matter on which each expert is expected to testify.
3. State the facts and opinions on which each expert is expected to testify.
4. Provide a summary of the grounds for each expert's opinion.
5. The dates of allreports provided by the expert to the attorney.
Dated: Jericho, New York
April 6, 2018
Sincerely,
LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s)
Dianne Davis Franz A. Matzelle
475 Park Avenue South P. O. Box 9040
28th Floor 300 Jericho Quadrangle, Suite 260
New York, NY 10016 Jericho, NY 11753
(212) 686-4655 (516) 229-6000
File Number: 18NEWY07930
Claim Number: 32-1082-1V4
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FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS DIANNE DAVIS, VERIFIED ANSWER Plaintiff(s), Index No: 703510/18 -against- FRANZ A. MATZELLE Defendant(s), The defendant(s), Franz A. Matzelle, answering the Complaint herein: First: Admit(s) each and every allegation in the paragraph(s) of the Complaint designated as follows: 6 and 8. Second: Deny/denies each and every allegation in the paragraph(s) of the Complaint designated as follows: 16, 17, 18, 19, 20, 21, 22 and 28. Third: Deny/denies any knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in the paragraph(s) of the Complaint designated as follows: 1, 2, 3, 4, 7, 9, 10, 11 and 14. Fourth: Deny/denies each and every allegation contained in the paragraph(s) of the Complaint designated as follows, and refers allquestions of law to the Court: 23 and 24. Fifth: Deny/denies each any every allegation contained in paragraph 5 of the Complaint except to admit that defendant, Franz A. Matzelle was the operator of a 2005 Dodge motor vehicle bearing New York State License Plate Number DDP6942. Sixth: Deny/denies any knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in the paragraph(s) of the Complaint designated as follows, and refers allquestions of law to the Court: 12, 13, 25, 26 and 27. 1 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 Seventh: Repeat(s), reiterate(s) and reallege(s) all admissions and denials contained in the foregoing paragraph(s) which set forth an answer to all the allegations contained in all of the paragraphs of the Complaint designated as follows: 15. The Defendant(s), Franz A. Matzelle, Set(s) Forth the Following Affirmative Defenses Eighth: That whatever damage, personal injury, injury to property or wrongful death the plaintiff(s) and/or the plaintiff(s)'s decedent may have sustained, ifany, at the time and place alleged in the Complaint herein, or any amendments thereto, was caused by the carelessness, negligence, recklessness, assumption of risk and culpable conduct and want of care on the part of the plaintiff(s) and/or the plaintiff(s)'s decedent; and if any carelessness, negligence, recklessness or culpable conduct upon the part of the answering defendant(s) caused or contributed to such injury or wrongful death and damages to the plaintiff(s) and/or the plaintiff's decedent, such carelessness, negligence, recklessness or culpable conduct bore only a slight proportion to the entire negligence and culpable conduct attributable to both the plaintiff(s) and/or the plaintiff's decedent in causing the accident and any damages sustained. Ninth: The plaintiff(s) failed to mitigate damages allegedly suffered. Tenth: Upon information and belief, some or all of the damages alleged in the plaintiff(s)'s Complaint is/are barred and/or subject to the qualification of the provision of § 4545 of the CPLR. Eleventh: If it is determined that the plaintiff(s) failed to use available seat belts, the defendant(s) plead(s) said fact in mitigation of damages. Twelfth: In the event that any person or entity liable or claimed to be liable for the injuries or damages alleged in this action has been given or may hereafter be given a release or covenant not to sue, the answering defendant(s) will be entitled to protection under New York General 2 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 Obligations Law 15-108 and the corresponding reduction of any damages that may be determined to be due against the answering defendant(s). Thirteenth: The plaintiff(s) failed to state a cause of action for gross negligence. Fourteenth: The Complaint fails to join a necessary party to the action. Wherefore, the defendant(s), Franz A. Matzelle, demand(s) judgment as follows: a. dismissing the Complaint herein, together with the costs and disbursements of this action. Dated: Jericho, New York April 6, 2018 Sincerely, LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s) Dianne Davis Franz A. Matzelle 475 Park Avenue South P. O. Box 9040 28th Floor 300 Jericho Quadrangle, Suite 260 New York, NY 10016 Jericho, NY 11753 (212) 686-4655 (516) 229-6000 File Number: 18NEWY07930 Claim Number: 32-1082-1V4 3 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 STATE OF NEW YORK, COUNTY OF NASSAU The undersigned, an attorney admitted to practice in the courts of New York State, shows: affirmant is Marcella Gerbasi Crewe, an attorney in the law firm of Richard T. Lau & Associates, attorneys of record for the defendant(s), in the within action; affirmant has read the foregoing Answer and knows the contents thereof; the same is true to affirmant's own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters affirmant believes itto be true. This verification is made by affirmant and not by the defendant(s), in that the defendant(s), is/are not within the county where undersigned has his/her office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: investigations made relative to the subject matter, information and records in his/her file. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: Jericho, NY April 6, 2018 18NEWY07930 MARCELLA BASI CREWE, ESQ. 4 4 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS DIANNE DAVIS, DEMAND FOR BILL OF PARTICULARS Plaintiff(s), Index No: 703510/18 -against- FRANZ A. MATZELLE Defendant(s), Please take notice that pursuant to the applicable rules of the CPLR, the defendant(s) demand(s) that you serve upon the undersigned within twenty days: 1. State any name used by each plaintiff other than specifically stated above. 2. The date, time of day of the claimed occurrence and its exact location. 3. Statement of the acts or omissions constituting the negligence claimed as they allegedly relate to the defendant(s). 4. State by section and title,statutes, regulations, rules, ordinances and any other laws itwill be claimed were violated by the defendant(s). 5. State the nature, location and extent of claimed injuries. a. State in detail which injuries are claimed to be permanent. 6. Length of time confined to: (a) hospital(s) giving name and address of hospital(s), (b) bed, (c) house; (d) length of time totally disabled, (e) length of time partially disabled. 7a. State the occupation, employment or trade of the plaintiff(s) setting forth: (i) name of employer(s); (ii)address of employer(s); (iii) name of the plaintiff direct supervisor(s) (iv) the number of working days incapacitated; (v) rate of pay and (vi) total loss of earnings claimed. 5 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 7b. If the plaintiff(s) was a student/were students, state (i) the name and address of the school(s), (ii)the dates the plaintiff(s) claim(s) to have been unable to attend school. 8. Separately, state the amounts claimed as special damages for each of the following, itemizing special damages for each provider: (a) physician's services, (b) medical supplies, (c) hospital charges, (d) x-ray expenses, (e) nurse's services, (f) loss of earnings, (g) other expenses (itemized). 9. Provide the plaintiff(s)'s address, date of birth and social security and/or tax identification number if an alien, please provide alien registration card number. 10. State the directions of travel of the parties at the time of the occurrence. 11. If loss of services, society and consortium is claimed, set forth: (a) the length of time said loss is claimed to have occurred; (b) the relationship of the plaintiff to the party claiming the loss; (c) the particular services claimed for loss of services, consortium, medical expenses and other expenses. 12. If it is claimed that a dangerous and/or defective condition caused and/or contributed to the occurrence alleged in the Complaint, set forth in detail each and every condition, claimed to have been dangerous and/or defective, and how and in what manner each is claimed to have been dangerous and/or defective and state how such condition(s) caused and/or contributed to the alleged occurrence. 13. If actual notice of any dangerous and/or defective condition is claimed to have been given and/or supplied to the defendant(s), set forth: (a) the names and addresses of any persons by whom notice was given/supplied; (b) the names and addresses of any persons to whom notice was given/supplied; (c) the time, date and place notice was given/supplied in each instance. 6 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 14. If constructive notice of any dangerous and/or defective condition is claimed was given and/or supplied to the defendant(s), set forth: (a) the conditions by which notice was supplied; (b) the time, date and place notice was had in each instance; (c) duration of condition with the date(s) of inception constructive notice will be claimed to have been given defendant(s). 15. If medical payments or lost earning were obtained from any collateral source, including but not limited to worker's compensation, no-fault, private health insurance, employee benefit programs, prepaid health plans or other liability or first party coverage, state and/or provide: (a) the name of each organization that made such payments; (b) the amounts of each such payment and copies of receipts and/or canceled checks; (c) the dates of each payment; (d) the policy(ies) or contract number pursuant to which such payments were made and a copy of such policy(ies); (e)the limits of coverage for such payments; (f) the premium amounts paid by the plaintiff for such coverage; (g) the length of time such coverage remained or will remain in effect for; and (h) the amounts to be owed plaintiff to continue such coverage. 16. Set forth in what respect the plaintiff(s) sustained a serious injury, as defined in subdivision four of the Insurance Law, § 5102(d). 17. Set forth in what respect the plaintiff(s) sustained an economic loss greater than basic economic loss, as defined subdivision one of the Insurance Law, Section 5102(a). 18. If personal or real property damage is claimed, set forth: (a) description of the property damaged, (b) date of purchase and price paid, (c) value of property at time of loss, (d) detailed list of repairs necessary and the cost thereof and (e) salvage value recovered, if any. 19. State the amounts of any purported lien(s) or lawful lien(s) against the plaintiff(s)'s recovery, and ifany are known to the plaintiff(s), state the basis of said lien(s), the date(s) said 7 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 lien(s) were established, asserted, filed, and/or perfected and state the name(s) of any lienholder(s) or purported lienholder(s). 20. State the basis for the claim that the defendant(s) is/are jointly and severally liable. 21. State the basis of the claim that defendant operated his vehicle without due regard for the conditions, traffic light, stop sign, road regulations and without due regard for the rights and safety of others. Dated: Jericho, New York April 6, 2018 Sincerely, LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s) Dianne Davis Franz A. Matzelle 475 Park Avenue South P. O. Box 9040 28th Floor 300 Jericho Quadrangle, Suite 260 New York, NY 10016 Jericho, NY 11753 (212) 686-4655 (516) 229-6000 File Number: 18NEWY07930 Claim Number: 32-1082-1V4 8 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS DIANNE DAVIS, NOTICE OF DISCOVERY AND Plaintiff(s), INSPECTION -against- Index No: 703510/18 FRANZ A. MATZELLE Defendant(s), Sir(s)/Madam(s): Please take notice that pursuant to CPLR 3101 and 3120, the plaintiff(s) is/are hereby required to produce, furnish and permit discovery by the defendant(s), defendant(s)'s attorneys, or representatives, the following items and/or documents for inspection within 30 days from the date o' of this Notice at 10 clock in the forenoon at the office of the defendant(s)'s attorneys: 1. The names and addresses of each person claimed by any party you represent, to be a witness to the occurrence complained of; and in addition thereto, any witness to the claimed acts, omissions or conditions which allegedly caused the accident alleged in the Complaint. If no such witnesses are known to the plaintiff(s), so state in reply to this demand. 2. Pursuant to CPLR 3101(e) and 3120, each and every statement, written or recorded or otherwise, made by or taken from each such party represented by the undersigned and his, her, or its agents, servants, or employees now in your possession, custody or control or in the possession, custody or control of any party you represent in this action if such statement in any manner bears on the issues in this action. 3. If the plaintiff(s) was a/were student(s) at the time of the occurrence complained of herein, itis hereby requested that you furnish the undersigned with the names and addresses of all 9 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 schools attended by the plaintiff(s), along with duly executed and acknowledged authorizations enabling the undersigned to obtain the complete file compiled by the relevant school authority in connection with the plaintiff(s)'s status as a student in that school or school district. This authorization shall allow access to,but shall not be limited to, records concerning the plaintiff(s)'s class attendance, grades performance and disciplinary matters (if any). 4. The names and addresses of all physicians or other health care providers of every description who have consulted, examined or treated the plaintiff(s) for each of the conditions allegedly caused by or exacerbated by the occurrence described in the Complaint, including the date(s) of such treatment or examination. 5. Duly executed and acknowledged written authorizations allowing the defendant(s) to obtain the complete office medical records relating to the plaintiff(s) of each health care provider identified in (4). 6. Duly executed and acknowledged written authorizations directed to any hospital(s), clinic(s) or other health care facility in which the injured plaintiff herein is or was confined due to the occurrence set forth in the Complaint, so as to permit the securing of a copy of the entire technicians' hospital record or records, including x-rays, technicians reports and intra-operative photographs. 7. All photographs under the control of the plaintiff(s), the plaintiff(s)'s attorney(s), representatives and agents showing: (a) the condition of the scene or to be alleged to represent the scene at the time of the accident; (b) extent of damage to the vehicle(s), ifany, following the accident; (c) injuries to the plaintiff(s). 8. Authorizations permitting the undersigned to obtain the plaintiff(s)'s personnel, employment and/or wage records and W-2s from the plaintiff(s)'s employer(s) for the period two years prior to the occurrence which is the basis for the lawsuit, and for any subsequent year in I 10 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 which itis claimed that the plaintiff(s) sustained a loss and/or decrease in income and/or earnings as a result of the aforementioned occurrence. a. If the plaintiff(s) was/were self-employed, provide an IRS Form 4506-T (Request for Transcript of Tax Return) as well as copies of the plaintiff Federal, State and City Income Tax Returns for the period commencing three years prior to the alleged occurrence through the current tax year. 9. Duly executed authorizations allowing the defense to review and/or obtain the records of the Worker's Compensation Board of the State of New York with reference to the injured party(ies)'s claim for worker's compensation benefits. Also provide: (a) The Worker's Compensation Board file number; (b) The name, address and file number of each insurance company that provided worker's compensation benefits to the injured party(ies) and duly executed authorizations to obtain their files with reference to the injured party(ies)'s claim. plaintiff(s)' Fault" 10. Authorizations permitting the undersigned to obtain the "No file Fault" records with respect to injuries claimed in the accident. Include "No filenumber. 11. Duly executed HIPAA complaint authorization permitting defense counsel to obtain plaintiff(s)'s Medicare records. 12. Duly executed HIPAA complaint authorization permitting defense counsel to obtain plaintiff(s)'s Medicaid records. 13. Pursuant to CPLR 3101 and 4545(c), all documents, records, bills, invoices, receipts or canceled checks concerning indemnification, payment and reimbursement, in whole or in part, which the plaintiff(s) have/had received from collateral sources, including, but not limited to, benefit programs for the cost of medical, custodial, and rehabilitation services, loss of earnings and other economic loss which the plaintiff(s) will claim as special damages in this action; and in 11 11 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 the event the plaintiff(s) is/are awarded judgment against the defendant(s), the amount of such judgment be reduced by such amount(s) that may be established on trial,and as authorized by CPLR 4545(c). 14. Names and addresses of all ambulance (private and public) companies, taxicab and/or public and/or private livery services which have conveyed the plaintiff(s) and whose services allegedly were necessitated as a result of injuries incurred from the occurrence complained of in this action. Should the costs of those services constitute an item claimed as and for special damages in connection with the above-captioned lawsuit, supply the following information for each identified provider specific dates of hire, time period hired, places of departure and destination, and charges incurred for each episode of hire. 15. Any written report of the subject accident prepared in the regular course of business operation or practices of any person, firm, corporation, association or other public or private entity. 16. Copies of transcripts or records of all examinations before trial and statutory hearings heretofore conducted. 17. Copies of any purported or lawful liens against the plaintiff(s)'s recovery. 18. Photographs under the control of the plaintiff(s) or plaintiff(s)'s counsel showing the condition of the motor vehicle(s) allegedly involved hereinbefore, during and/or after the alleged occurrence. 19. Photographs under the control of the plaintiff(s) or plaintiff(s)'s counsel showing the accident situs before, during and after the alleged occurrence. 20. Photographs under the control of the plaintiff(s) or plaintiff(s)'s counsel showing the injuries complained of. I 12 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 21. Copies of any repair bills or estimates relating to the items of personal or real property damaged. 22. If the plaintiff(s) possessed an automobile telephone for the vehicle which was involved in the accident, or a cellular phone which was on the person of the plaintiff(s) or in the vehicle of the plaintiff(s) at the time of the accident, and said telephone(s), as applicable, was operational on the date of the accident, then demand is hereby made for the automobile telephone/cellular telephone records for the date of the alleged occurrence. 23. Duly executed and acknowledged written authorizations directed to any hospitals, clinics, health care facilities, physicians or other health care providers that have performed surgery upon the plaintiff(s), so as to permit the securing of a copy of the entire hospital/clinic/health care facility/physician records, including x-rays, films and reports of diagnostic studies and tests, technicians' surgical photographs, video recordings of any surgeries, and technicians reports. 24. Any video recording of the events of the accident that is the subject of this lawsuit, plaintiff(s)' and any video of the plaintiff(s) showing physical condition as a result of the accident. Please take further notice that the foregoing are continuing demands and that if any of the above items are obtained after the date of this demand, they are to be furnished to the undersigned pursuant to this demand. The undersigned will move to preclude said items not so provided and/or object upon the trial of this matter to the testimony and/or introduction of any items sought herein. Please take further notice that failure to timely respond to this Notice of Discovery and Inspection and Combined Demands will result in application to the Court for appropriate sanctions. Please take further notice that this office does not consent to service by fax or email, unless otherwise stipulated. I 13 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 Dated: Jericho, New York April 6, 2018 Sincerely, LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s) Dianne Davis Franz A. Matzelle 475 Park Avenue South P. O. Box 9040 28th Floor 300 Jericho Quadrangle, Suite 260 New York, NY 10016 Jericho, NY 11753 (212) 686-4655 (516) 229-6000 File Number: 18NEWY07930 Claim Number: 32-1082-1V4 I 14 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS DIANNE DAVIS, DEMAND FOR RELIEF REQUESTED Plaintiff(s), Index No: 703510/18 -against- FRANZ A. MATZELLE Defendant(s), Pursuant to CPLR 3017(c), the defendant(s), Franz A. Matzelle, demand(s) that within 15 days of the date of this demand, the plaintiff(s), Dianne Davis, serve a supplemental demand for relief setting forth the total damages to which plaintiff deem(s) himself/herself/themselves entitled. Dated: Jericho, New York April 6, 2018 Sincerely, LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s) Dianne Davis Franz A. Matzelle 475 Park Avenue South P. O. Box 9040 28th Floor 300 Jericho Quadrangle, Suite 260 New York, NY 10016 Jericho, NY 11753 (212) 686-4655 (516) 229-6000 File Number: 18NEWY07930 Claim Number: 32-1082-1V4 I 15 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS DIANNE DAVIS, NOTICE OF DEPOSITION Plaintiff(s), Index No: 703510/18 -against- FRANZ A. MATZELLE Defendant(s), Please take notice that pursuant to Article 31, § 3101 et seq. of the CPLR, the undersigned will take deposition upon oral testimony of the parties listed below as adverse parties at the date, time and place indicated below, concerning all of the relevant facts and circumstances in connection with this action, including negligence, contributory negligence, liability and damages. Please take further notice that the said persons to be examined are required to produce at such examination all books, papers and memoranda relating to the occurrence. Parties to be Examined: All Parties Date and Time: July 6, 2018 Place: Richard T. Lau & Associates P. O. Box 9040 300 Jericho Quadrangle, Suite 260 Jericho, NY 11753 Dated: Jericho, New York April 6, 2018 Sincerely, LERNER, ARNOLD 4 WINSTON, LLP RICHARD T. LAU & ASSOCIATES Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s) Dianne Davis Franz A. Matzelle 475 Park Avenue South P. O. Box 9040 28th Floor 300 Jericho Quadrangle, Suite 260 New York, NY 10016 Jericho, NY 11753 (212) 686-4655 (516) 229-6000 File Number: 18NEWY07930 Claim Number: 32-1082-1V4 I 16 of 19 FILED: QUEENS COUNTY CLERK 04/06/2018 02:11 PM INDEX NO. 703510/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS DIANNE DAVIS, DEMAND PURSUANT TO CPLR 3101(d) Plaintiff(s), Index No: 703510/18 -against- FRANZ A. MATZELLE Defendant(s), Please take notice that this demand is deemed to be continuing and the undersigned will object at the time of trial to the testimony of any expert concerning whom appropriate notice has not been given: 1. Identify each person whom you expect to call as an expert witness at trial and state the qualifications of each such expert. 2. State in detail the subject matter on which each expert is expected to testify. 3. State the facts and opinions on which each expert is expected to testify. 4. Provide a summary of the grounds for each expert's opinion. 5. The dates of allreports provided by the expert to the attorney. Dated: Jericho, New York April 6, 2018 Sincerely, LERNER, ARNOLD & WINSTON, LLP RICHARD T. LAU & ASSOCIATES Attorney(s) for Plaintiff(s) Attorney(s) for Defendant(s) Dianne Davis Franz A. Matzelle 475 Park Avenue South P. O. Box 9040 28th Floor 300 Jericho Quadrangle, Suite 260 New York, NY 10016 Jericho, NY 11753 (212) 686-4655 (516) 229-6000 File Number: 18NEWY07930 Claim Number: 32-1082-1V4 I 17