Motion for Discovery in Roberto Rodriguez v. Villagefh, Llc, Smi Construction Management, Inc.| Trellis.Law

On May 23, 2018 a Exhibit,Appendix was filed involving a dispute between Roberto Rodriguez, and Smi Construction Management, Inc., Villagefh, Llc, for Torts - Other (Fall) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 10/23/2018 04:01 PM INDEX NO. 154863/2018
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/23/2018

"C"
EXHIBIT
FILED: NEW YORK COUNTY CLERK 10/23/2018 04:01 PM INDEX NO. 154863/2018
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/23/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------ -------- -X
ROBERTO RODRIGUEZ, Index No.: 154863/2018

Plaintiff(s), DEMAND FOR A VERIFIED
BILL OF PARTICULARS
-against- DIRECTED TO PLAINTIFF

VILLAGEFH, LLC and SMI CONSTRUCTION
MANAGEMENT, INC.,

Defendant(s).
--- --------X

S I R S:

PLEASE TAKE NOTICE that defendant, SMI CONSTRUCTION MANAGEMENT,

INC., (hereinafter referred to as "answering defendant"), demands that plaintiff herein serve a

Verified Bill of Particulars within thirty (30) days, setting forth in detail the following

information:

1. Date of birth and social security number of plaintiff.

2. The home address of each plaintiff on the date of the accident and at present.

3. The date and time of day of the accident alleged in the Verified Conrplaint.

4. The exact location where the alleged accident took place.

5. The manner in which the plaintiff claims the accident occurred.

6. The name and address of any witness to the occurrence.

7. With respect to any witness to the occurrence state his or her relationship to the plaintiff.

8. Set forth the nature and extent of all injuries claimed to have been sustained by plaintiff.

9. Describe all injuries claimed to be permanent in their nature and consequences in sufficient
detail to permit definite identification.

10. State whether plaintiff claims any limitation of motion, loss of use, or loss of function as a result

of the injuries alleged, and, if so, statethe nature, extent and degree of permanency thereof.
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11. State the name and address of all doctors, therapist, physicians, chiropractors, nurses, hospitals,
counselors, psychiatrists, psychologist, and any other medical care providers whom plaintiff saw
or consulted for the injuries allegedly sustained as a result of the incident alleged in the

complaint, and state the nature of the ailment, illness or other reason for which such doctor was
consulted and the dates of each consultation.

12. State whether plaintiff has ever suffered injury or disease to the areas alleged to be injured in the
incident from which the action arises at any time prior to or subsequent to the incident and, if so,
state: (a) the date of such injury or disease; its nature; and (b) name and address of any treating
medical care provider for such injury or disease, including dates of such treatment.

13. State the name and address of all doctors whom plaintiff saw or consulted during the five years

preceding the date of the alleged accident, and state the nature of the ailment, illness or other

reason for which such doctor was consulted and the dates of each consultation.

14. Describe in detail all ailments, infirmities, disabilities and injuries existing prior to the date of
the alleged accident.

15. State whether the occurrence of the alleged accident exacerbated any of plaintiffs previous

ailments, infinnities, disabilities and injuries if any, and if so, for each such ailment, infirmity,

disability and injury set forth: (a) the nature, location and extent of the exacerbation claimed; (b)
the name and address of all doctors whom the plaintiff saw or consulted.

16. Length of time plaintiff was confined to a hospital and name of hospital, setting forth the dates
of each hospital confinement and identify the hospitals to which confined.

17. Length of time plaintiff was confined to: (a) bed; (b) home; and (c) give the dates of
confinement

18. State whether plaintiff alleges damages to clothing or other personal items as a result of the

incident alleged in plaintiffs complaint and, if so, (a) describe each item; (b) the damage

sustained to each item; and (c) amount plaintiff alleges as special damages for such item.

19. Set forth: (a) occupation of plaintiff at the time of the incident and at present; (b) name and
address of employer at the time of the incident and at present; (c) number of working days

incapacitated; (d) plaintiffs salary at the time of the incident and present, if any, per day, per

week and per month; and (e) total loss of earnings claimed by plaintiff.

20. If self-employed at the time of the incident or present, so state indicating the name and

address under which the plaintiff was or is doing business.

21. Set forth the length of time, if any, plaintiff was iñcapacitated from employment or occupation,
or if plaintiff was a student, give the name of the school attended and the grade in which

plaintiff was a student.

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22. 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.

23. The total amounts claimed by plaintiff as special damages for charges incurred for: (a) medical,
surgical and dental services, stating separately the amount for each service and identifying by
whom rendered; (b) hospital services, stating separately the name and address of each hospital
and the amount of each bill;(c) nurse's services, stating separately the amount for each service
and identifying by whom rendered; (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) physical therapy services, stating separately the amount for each service and identifying by
whom rendered; (f) chiropractic services, stating separately the amount for each service and

identifying by whom rendered; and (g) any other item of expense or special damage (specify).

24. State the exact length of time, ifany, during which plaintiff (a) was required to wear a cast or
other protective device (please describe); and (b) was required to use crutches or a cane (please
describe).

25. State whether or not plaintiff received or are receiving any of the following benefits: (a) Social

Security Disability; (b) Supplemental Security Income (SSI); (c) Disability Benefits; (d)
Workers'
Compensation Benefits; (e) Social Security Benefits (food stamps, home relief, ADC,

etc.);(f) Disability Pension Benefits; (g) Medicare; and (h) Medicaid.

26. If so, set forth the amount of same on a weekly or monthly basis, when the receipt of said
income was commenced and when itis anticipated said benefits will terminate.

27. As to bills for medical, hospital, therapy, chiropractic, physician services, nurses, surgical

appliance, ambulance services and other special damages claimed, state the following: (a) the

name of the insurance carrier providing benefit; (b) name of the health plan and policy number;

(c) out of pocket expenses by plaintiff not covered by health insurance; and (d) if there is any
co-insurance paid, the name of the co-insurance carrier and the amounts of benefits paid.

28. State the amount that plaintiff expects will be expended in the future as a result of the injuries

claimed for: (a) medical care and treatment; and (b) nurses, medicine, appliance or other aids to

cure.

29. With specificity, state the acts or omissions constituting the negligence, recklessness and

carelessness claimed against this answering defendant in this action.

30. State whether any other claim or lawsuit was filed against anyone other than the defendants

named herein which arises out of the alleged accident.

31. State whether or not any claim is being made under Worker's Compensation of New York or

any other state.

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32. Pursuant to CPLR §3101(e), state whether any representative of this answering defendant has
made any statement or admission regarding the occurrence, if so, set forth: (a) their name and

address; (b) their employment position; (c) the substance of said admission or statement; (d) the
date of said admission or statement.

33. Identify each and every ordinance, regulation, and statute that this answering defendant is
claimed to have violated.

34. State whether there will be a claim that a dangerous or defective condition or equipment caused
or added to the occurrence and, if so, describe (a) in detail the location of any such condition
claimed and (b) the nature of each defect or danger.

35. For each defective or dangerous condition or equipment described above, state whether itwill
be claimed this answering defendant actively caused or created said condition or condition,

specifying the manner in which itwill be claimed that this answering defendant actively caused
or created the defect or danger.

36. State the name and address of any party alleged to have created a dangerous or defective
condition and date thereof.

37. State whether actual notice of the alleged dangerous or defective condition or equipment was
given to this answering defendant, and, if so, state,(a) the date; (b) the time, place and manner;

oral; and (e) specify the details of the notice.

38. State whether constructive notice of the alleged dangerous or defective condition or equipment
was given to this answering defendant, and, ifso, state, (a) the nature of the condition; and (b)
the length of time the condition existed.

39. If a claim is being made that this answering defendant failed to train and/or supervise its

employee(s), state how such training and/or supervision was inadequate and what training
and/or supervision should have been provided.

40. If itis claimed that this answering defendant deviated from any industry custom, practice or

usage, describe with particularity each applicable industry custom, practice and usage and the
precise manner in which itis claimed this answering defendant deviated from such.

41. If itis claimed that Section 200 of the Labor Law was violated set forth: (a) the connection, if

any, of the party represented by the undersigned to the methods and details of the work being
performed; and (b) the basis and particulars of any claim that the plaintiff was not provided
with a reasonable safe place to work.

42. If itis claimed that Section 240(1) or 241 of the Labor Law was violated set forth: (a) how the

plaintiff was not provided with proper protection; (b) state whether or not the plaintiff alleges
he/she was not provided with any safety devices and if not, set forth the devices or devices it

will be alleged the plaintiff should have been provided with; and (c) identify with

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particularity the nature of the hazard it will be alleged that from which the plaintiff was not
given proper protection; and (d) identify all regulations allegedly violated by this defendant.

43. Set forth whether or not plaintiff was at the time of the occurrence working with any
construction equipment, scaffolding, hoist, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, planking and if so, set forth the owner of said items and the person in
control of said items at the time of the occurrence.

PLEASE TAKE FURTHER NOTICE that in the event that the party served with the

demand has no knowledge of any of the above matters, he shall so state under oath.

PLEASE TAKE FURTHER NOTICE that in the event of your failure to furnish a bill of

particulars (and documents, if any) within the said period of thirty (30) days, a motion will be made

for an order precluding you from offering any evidence at the time of trial of any of the items of

which particulars (and documents) have not been delivered in accordance with the demand and for

other penalties.

Dated: July 24, 2018
New York, New York Yours, etc.

RAVEN & KOLBE, LLP

By:
rge S. Kolbe
Attorneys for Defendant

SMI CONSTRUCTION MANAGEMENT, INC.
56th
126 East Street, Suite 202
New York, New York 10022

Tel. (212) 759-7466
Fax (212) 759-0166

TO: File No.: 360-014-05

STAVROS E. SITINAS, LLC
Attorneys for Plaintiff

ROBERTO RODRIGUEZ
444 Madison Avenue

New York, New York 10022

Tel. (212) 539-1800
Fax (855) 300-4863

VILLAGEFH, LLC
*Has not yet appeared in this matter

5
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AFFIDAVIT OF SERVICE BY MAIL

STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )

Nelida M. Lamboy-Perez, being duly sworn, deposes and says:

1. That she is an employee in the office of RAVEN & KOLBE, LLP, attorneys

herein.

2. That deponent is not a party to the action or proceeding, is over eighteen (18)
years of age, and resides in Queens, New York.

3. That on July 25, 2018, she served the within copy of the DEMAND FOR A
VERIFIED BILL OF PARTICULARS DIRECTED TO PLAINTIFF upon:

STAVROS E. SITINAS, LLC
444 Madison Avenue
New York, New York 10022

VILLAGEFH, LLC
*Has not yet appeared in this matter

by depositing a true copy of the same securely in a postpaid wrapper, in a Post Office Box

regularly maintained by the United States Goverñmeñt directed to the above-mentioned parties at
their respective address above, that this being the address within the State designated by them for
the purpose upon the preceding papers in this action or the place where they then kept an office,
between which place, there then was and now is a regular communication by mail.

^
NELIDA OY- EREZ

Sworn to before me this
25th day o July, 2018

Lo Ro†ney
Notary Pfblic, State of ew York
No. 01R05056568
Qualified in Kings County
Commission Expires 3-4-22
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
ROBERTO RODRIGUEZ, Index No.: 154863/2018

Plaintiff(s),

-against-

VILLAGEFH, LLC and SMI CONSTRUCTION
MANAGEMENT, INC.,

Defendant(s).
..-------- X

DEMAND FOR A VERIFIED BILL OF PARTICULARS DIRECTED TO PLAINTIFF

RAVEN & KOLBE, LLP
Attorneys for Defendant
SMI CONSTRUCTION MANAGEMENT, INC.
56th
126 East street, suite 202

New York, New York 10022
Tel. (212) 759-7466
Fax (212) 759-0166

To: All Parties
FILED: NEW YORK COUNTY CLERK 10/23/2018 04:01 PM INDEX NO. 154863/2018
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/23/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_________ ..______ -- X
ROBERTO RODRIGUEZ, Index No.: 154863/2018

Plaintiff(s), NOTICE FOR DISCOVERY
AND INSPECTION
-against- AND WITNESS DEMAND
DIRECTED TO PLAINTIFF
VILLAGEFH, LLC and SMI CONSTRUCTION
MANAGEMENT, INC.,

Defendant(s).
------------------------------X

S I R S:

PLEASE TAKE NOTICE, that pursuant to Article 31 of the CPLR, plaintiff,

ROBERTO RODRIGUEZ, is hereby required to produce and permit discovery by defendant,

SMI CONSTRUCTION MANAGEMENT, INC. (hereinafter, "this defendant"), or itsattorneys

or representatives, of the following documents and records for inspection copying at the offices

56*
of RAVEN & KOLBE, LLP, 126 East Street, Suite 202, New York, New York 10022,

within thirty (30) days hereof.

DEFINITIONS

The following words and phrases shall mean and include the following when capitalized

in the text. Words that are not defined herein shall have the meanings given to them in common

usage within the context in which they are used.

a) ACCIDENT means the incident identified in plaintiff's Verified Complaint that is

alleged to have occurred on September 13, 2016.

b) DOCUMENT means and includes, but is not limited to, any and all writings,

letters, e-mails, correspondence, memoranda, notes, records, work papers, tapes, videotapes,

graphs, charts, books, ledgers, logs, drawings, sketches, photographs, phone records, data
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compilations, and any and allother written, printed, typed, recorded, transcribed, punched, taped,

filmed, or electronically-stored, or graphic matter of any kind or nature, including all drafts,

copies, or reproductions thereof in you possession, custody, or control, or known to you.

c) IDENTIFY means, as to a person, state the full name, address and telephone

number, social security number, date of birth, and, ifapplicable, relationship to the plaintiff. As

to a document, IDENTIFY means (1) describe it sufficiently to enable its production to be

requested and IDENTIFY the custodian thereof or (2) attach a true copy of said document(s) to

your answers.

d) YOU or YOUR refers to plaintiff, ROBERTO RODRIGUEZ, and the perseils

he/she represents, his/her counsel, and any consultations, experts, investigators, agents, or other

persons acting on their behalf.

INSTRUCTIONS

a) These requests are continuing in nature so as to require the filing of supplemental

answers iffurther or different information or documents become known to YOU or are obtained

prior to trial.

b) If any request or portion thereof is objected to or unanswered on the basis of a

claim of privilege or immunity, YOU are requested to state the nature of the claimed privilege or

immunity, including each and every fact on which YOU base such claim, and sufficiently state

the nature of the information withheld to allow an assessment of the applicability of the claimed

privilege or protection.

c) If any request or portion thereof is objected to or unanswered for any other reason,

please fully set forth the nature of YOUR objection.

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.

DOCUMENTS TO BE PRO_DUCED

1. Copies of all pleadings and materials exchanged and/or served co-
discovery by

defendant.

physicians'
2. All medical reports, hospital records, physical therapy records, records

or written, printed or recorded DOCUMENTS of any type, including x-ray films or diagnostic

tests which describe or relate in any way to the injuries allegedly sustained by YOU as a result of

the ACCIDENT.

*
3. Pursuant to Romano v. Steelcase, Inc.. 2006-2233, NYLJ 1202472439237, at 1

(Sup. SU., Decided September 21, 2010), authorizations permitting access to and/or the release

of all of YOUR social networking accounts including, but not limited to, Facebook, My-space

and Twitter for any and all current and historical pages, accounts, postings, and all deleted

pages/postings. Should YOU not subscribe to any social networking online sites, provide an

affidavit attesting to same. Any and all authorizations should include information specific to the

host's siteto enable the host to identify YOUR account, including but not limited to YOUR email

address and home town and state.

physicians'
4. All medical bills, bills, hospital bills, invoices or other DOCUMENTS

which describe or relate in any way to medical or other expenses incurred by YOU for the

injuries allegedly caused by the ACCIDENT.

5. Duly executed current authorizations permitting this office to obtain and make

copies of all records and reports of all hospitals, doctors, physicians, physical therapist,

chiropractors, ambulances, psychiatrist, psychologist, therapist, counselors, clinics, and any other

medical care providers who treated, examined or consulted YOU for the injuries allegedly

caused by the ACCIDENT.

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.

6. Duly executed current authorizations permitting this office to obtain and make

copies of all records and reports of YOUR primary care physician and/or family doctor.

7. Duly executed current authorizations permitting this office to obtain and make

copies of all reports, medical data and films pertaining to any x-rays, MRI, CAT Scans, EEGs,

EKGs, any other diagnostic tests performed on YOU for the injuries allegedly caused by the

ACCIDENT.

8. Duly executed current authorizations permitting this office to obtain and make a

copy of the YOUR medical insurance company's records.

9. All photographs (duplicative copies, not chotocopies) taken on or since the date

of the ACCIDENT depicting or relating to the injuries allegedly sustained by YOU.

10. All photographs (duplicative copies, not photocopies) taken on or since the date

of the ACCIDENT depicting or relating to the scene of the ACCIDENT.

11. If a Social Security claim for disability has been made as a result of the injuries

allegedly caused by the ACCIDENT, all claim papers and supporting documentation submitted

to the Social Security Administration along with duly executed current authorization permitting

this office to obtain and make copies of their files.

12. If a loss of wages is claimed as a result of the injuries allegedly caused by the

ACCIDENT, all federal and state income tax returns filed by YOU for the three years preceding

the incident, including the year of the ACCIDENT, as well as for each year following the

incident wherein YOU are claiming any loss of wages as well as duly executed IRS form 4506

and two forms of identification as required by the IRS.

13. A duly executed current authorization permitting the undersigned attorneys or

their representative to inspect, copy and/or obtain copies of YOUR complete personnel,

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compensation, employment, medical and attendance records on file with or in the possession of

YOUR employer(s).

14. A copy of any statement(s) obtained from this defendant, whether signed or

unsigned; or the transcript of any recorded statement or testimony in YOUR possession, or any

electronic recording concerning the ACCIDENT.

15. A copy of any statement(s) obtained from the co-defendant, whether signed or

unsigned; or the transcript of any recorded statement or testimony in YOUR possession, or any

electronic recording concerning the ACCIDENT.

16. A copy of any statement(s) obtained from any representative of YOUR employer

at the time of the incident regarding the ACCIDENT, whether signed or unsigned; or the

transcript of any recorded statement or testimony in YOUR possession, or any electronic

recording concerning the ACCIDENT.

17. A copy of any statement(s) obtained from any witness to the ACCIDENT,

whether signed or unsigned; or the transcript of any recorded statement or testimony in YOUR

possession, or any electronic recording concerning the ACCIDENT.

18. A copy of any statement(s) obtained from any emergency personnel responding to

the ACCIDENT, whether signed or unsigned; or the transcript of any recorded statement or

testimony in YOUR possession, or any electronic recording concerning the ACCIDENT.

19. All DOCUMENTS in YOUR possession with respect to reimbursement which the

YOU have received from collateral sources for the cost of medical care, custodial care,

rehabilitation services, loss of earnings and other economic loss which YOU will claim or have

claimed as special damages as a result of the ACCIDENT. Said DOCUMENTS shall include

bills and invoices for the services rendered and canceled checks or receipts with respect to their

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workers'
24. If a compensation claim has been made as a result of the injuries

allegedly caused by the ACCIDENT, all claim papers and supporting documentation submitted

Workers'
to the Compensation Board along with a duly executed current authorization form

provided herewith permitting this office to obtain and make copies of its files.

25. An executed and acknowledged written authorization permitting the undersigned

attorneys or their representative to inspect, copy and/or obtain copies of YOUR complete records

on file with or in the possession of YOUR union.

26. Any DOCUMENT, report, memoranda or any other written material, which refers

or relates to a Police account of the ACCIDENT.

27. A duly executed authorization to obtain complete pharmacy or drug store records

with respect to any drugs prescribed YOU from one year prior to the ACCIDENT to the present

date.

28. A copy of any written report of the ACCIDENT.

29. The names and addresses of all persons that YOU claim have first-hand

knowledge of the facts and circumstances regarding the ACCIDENT. If no such persons are

known to YOU or YOUR representative, so state in reply to this demand. This defendant will

object at the time of trialto testimony of any person not so identified.

30. The name and address of all persons that YOU claim to have knowledge

regarding any alleged defective and/or dangerous condition which are claimed to have caused the

ACCIDENT. If no such persons are known to YOU or YOUR representative, so state in reply to

this demand. This defendant will object at the time of trial to testimony of any person not so

identified.

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31. The name and address of all persons YOU claim to have knowledge of the

injuries YOU allegedly sustained as a result of the ACCIDENT. If no such persons are known to

YOU or YOUR representative, so state in reply to this demand. This defendant will object at the

time of trialto testimony of any person not so identified.

32. The name and address of allpersons YOU claim to have knowledge of any actual

notice allegedly given to this defendant or any servant, agent or employee of this defendant of

any condition which allegedly caused the ACCIDENT. If no such persons are known to YOU or

YOUR representative, so state in reply to this demand. This defendant will object at the time of

trial to testimony of any persons not so identified.

33. A copy of any diagrams, maps, schematics, charts, photographs or other

depictions which YOU or YOUR representative plans to introduce or exhibit to the trier of fact at

trial.

34. Any and all DOCUMENTS relating to the condition of the area where the

ACCIDENT occurred for the period of one year prior to the date of the ACCIDENT, including,

but not limited to: allrecords and documents relating to the maintenance, inspection and repair of

the area, including, but not limited to, deferred maintenance item logs, work tickets, repair

tickets, master logs, card files,inspection reports, work orders, and invoices.

PLEASE TAKE that plaintiff produce photocopies of the above-
NOTICE, may

requested documents in lieu of producing for inspection.

PLEASE TAKE FURTHER NOTICE, that all of the aforesaid demands are continuing

in nature, and that plaintiff and plaintiff's representative are requested to supplement any and all

responses upon acquisition of new or additional items pertaining thereto. This defendant will

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.

object to the introduction of, or allusion to, any items, which have not been provided as

requested.

Dated: July 24, 2018
New York, New York

Yours, etc.

RAVEN & KOLBE, LLP

By:
rfe S. Kolbe

Attorneys for Defendant
SMI CONSTRUCTION MANAGEMENT, INC.
56th
126 East Street, Suite 202

New York, New York 10022

Tel. (212) 759-7466

Fax (212) 759-0166

File No.: 360-014-05

TO:

STAVROS E. SITINAS, LLC
Attorneys for Plaintiff

ROBERTO RODRIGUEZ
444 Madison Avenue
New York, New York 10022

Tel. (212) 539-1800
Fax (855) 300-4863

VILLAGEFH, LLC
*Has not yet appeared in this matter

Case Info

Judge

Arlene P. Bluth Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 23, 2018

Case Filing Date

May 23, 2018

County

Parties

GLEASON, MICHAEL THOMAS Attorney for the Defendant
KOLBE, GEORGE S Attorney for the Defendant
PHELAN, JOHN JOSEPH Attorney for the Defendant
PHELAN, JOHN JOSEPH Attorney for the Defendants
PREZIOSO, RICHARD C Attorney for the Defendant
Roberto Rodriguez Plaintiff
SITINAS, STAVROS E Attorney for the Plaintiff
SMI CONSTRUCTION MANAGEMENT, INC. Defendant
VILLAGEFH, LLC Defendant
Joseph Redd Attorneys for Defendants
Danielle Rudkin Attorneys for Plaintiffs
ROGER MCTIERNAN Attorneys for Defendants
CARMEN VASQUEZ Attorneys for Defendants

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Exhibit,Appendix: Roberto Rodriguez v. Villagefh, Llc, Smi Construction Management, Inc.

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Case Info

Parties