Preview
FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BORIS SOFIEV, and YEHUDA SOUSSAN
VERIFIED ANSWER
Plaintiffs,
Index No.: 523027/2020
-against-
JUAN DEPENA, and ENERGY TRUCKING LLC,
Defendants.
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Defendants, JUAN DEPENA, and ENERGY TRUCKING LLC, by and through
their attorneys, DONOHUE LAW FIRM, P.C., answering the Plaintiff's Verified Complaint,
upon information and belief, states as follows:
AS AND FOR A FIRST CAUSE OF ACTION
1. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations of the Verified Complaint as contained in the paragraphs thereof numbered "1", "2",
"47."
"3", "32", "33", "34", and
2. Deny each and every allegation of the Verified Complaint as contained in the paragraphs
thereof numbered "7", "9", "10", "11", "12", "36", "37", "38", "39", "40", "41", "42", "43",
"49"
"44", "45", "46", "48", and
3. Deny each and every allegation of the Verified Complaint as contained in the paragraph
"30."
thereof numbered "13", "14", "19", "23", "24", "25", "26", "27", "28", "29", and and
leaves all questions of law to this honorable court.
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AS AND FOR A SECOND CAUSE OF ACTION
4. The answering Defendants repeat, reiterate and reallege each and every Answer to
the allegations contained in paragraphs numbered “1 through “49” as if more fully set forth
herein.
5. Denies knowledge or information sufficient to form a belief as to the truth of
the allegations of the Verified Complaint as contained in the paragraphs thereof numbered “51”,
“52”, “53”, “54”, and “67.”
6. Denies each and every allegation of the Verified Complaint as contained in
the paragraphs thereof numbered “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”,
“66”, “68”, and “69.”
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
3. That any verdict in the within action, for past, present, and future medical care, dental
care, custodial care, or rehabilitation services, loss of earnings or other economic loss, should be
reduced by the amount that any such expense has or will with reasonable certainty be replaced or
indemnified in whole or in part of or from any collateral source, in accordance with the
provisions and limitations of Section 4545(c) of the CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
4. The plaintiffs’ sole and exclusive remedy is confined and limited to the benefits and
provisions of Article 51 of the Insurance Law of the State of New York.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
5. Plaintiffs did not sustain a serious injury as defined by Section 5102 of the Insurance law
of the State of New York and their exclusive remedy therefore is confined and limited to the
benefits and provisions of Article 51 of the Insurance law of the State of New York.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
6. Plaintiffs’ cause of action is barred by Article 51, Section 5103 of the Insurance Law of
the State of New York.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
7. Any damages sustained by the plaintiffs were caused by the culpable conduct of the
plaintiffs, including contributory negligence or assumption of risk, and not by the culpable
conduct or negligence of the answering defendants.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
8. The Verified Complaint should be dismissed for failure to state a cause of action against
the answering defendants.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
9. The Verified Complaint should be dismissed on the ground that the Court lacks personal
jurisdiction over the answering defendants.
AS AND FOR AN EIGHT AFFIRMATIVE DEFENSE
10. Upon information and belief, plaintiff failed to use or misused available seat belts,
and thereby contributed to the alleged injuries
AS AND FOR A COUNTER-CLAIM AGAINST
PLAINTIFF BORIS SOFIEV
13. In the event that the Plaintiff YEHUDA SOUSSAN recovers any judgment against
the Defendants herein, the answering Defendants demand that any such judgment be divided
amongst the Defendants and the Plaintiff BORIS SOFIEV in accordance with the degree of
culpability of each herein, and further demand that the answering Defendants be granted
indemnification and/or contribution in accordance with any applicable contracts, agreements or
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warranties, express or implied, or by reason of the active and primary negligence of the Plaintiff,
BORIS SOFIEV.
WHEREFORE, the answering defendants demand judgment dismissing the
Complaint, together with the costs and disbursements of this action, including attorneys' fees.
Dated: New York, New York
January 15, 2021
BY:___ Robert D. Donohue______
ROBERT D. DONOHUE
DONOHUE LAW FIRM, P.C.
Attorneys for Defendants
JUAN DEPENA, and ENERGY TRUCKING LLC
745 5TH AVENUE, 5TH FLOOR
New York, NY 10151
(212) 972-5252
To:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
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VERIFICATION
ROBERT D. DONOHUE, an attorney admitted to practice in the Courts of the State of New
York, affirm: that I am a member of the DONOHUE LAW FIRM, P.C., attorneys of record for
the defendants, JUAN DEPENA, and ENERGY TRUCKING LLC, in the within action; that I
have read the foregoing Verified Answer and know the contents thereof; that the same is true to
my knowledge, except as to the matters therein stated to be alleged on information and belief,
and that as to those matters I believe them to be true. I further say that the reason this
verification is made by me and not by the defendant is that the answering defendant does not
reside within the County of New York where I maintain my office.
The grounds of my belief as to all matters not stated upon my knowledge are as
follows: the records of the defendant made available to me.
I affirm that the foregoing statements are true, under penalties of perjury.
Dated: New York, New York
January 15, 2021
Robert D. Donohue__
ROBERT D. DONOHUE
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BORIS SOFIEV, and YEHUDA SOUSSAN,
NOTICE TO TAKE
DEPOSITION UPON
ORAL EXAMINATION
Plaintiffs,
Index No: 523027/2020
-against-
JUAN DEPENA, and ENERGY TRUCKING LLC,
,
Defendants.
----------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE that, pursuant to Article 31 of the Civil Practice Law and
Rules, the testimony upon oral examination of the plaintiff will be taken before a Notary Public
who is not an attorney, or employee of any attorney, for any party or prospective party herein,
and is not a person who would be disqualified to act as a juror because of interest or because of
consanguinity or affinity to any person herein at the offices of DONOHUE LAW FIRM, P.C.,
5™
745 5™AVENUE, FLOOR, New York, New York at 10:00 a.m. on January 23, 2021.
Dated: New York, New York
January 15, 2021
BY:__ #G6en & no/me
ROBERT D. DONOHUE
DONOHUE LAW FIRM, P.C.
Attorneys for Defendants
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JUAN DEPENA, and ENERGY TRUCKING LLC
745 5TH AVENUE, 5TH FLOOR
New York, NY 10151
(212) 972-5252
To:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BORIS SOFIEV, and YEHUDA SOUSSAN,
DEMAND FOR A
VERIFIED BILL OF
PARTICULARS
Plaintiffs,
Index No.: 523027/2020
-against-
JUAN DEPENA, and ENERGY TRUCKING LLC,
,
Defendants.
----------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE that pursuant to the provisions of the Civil Practice Law and
Rules, the undersigned hereby demands that you serve upon them, within twenty (20) days, a
plaintiffs'
Verified Bill of Particulars of the claim as alleged in the Complaint, setting forth
specifically and in detail the answers to the following items.
1. The approximate time of day that the alleged accident occurred, giving the day,
month, year and approximate hour thereof.
2. The approximate place and location where the alleged accident occurred showing
on what street or road, with the name thereof, if it occurred at intersecting streets,
the names thereof and the particular part of the intersection; if it occurred between
intersecting streets, the names thereof and the distance from the intersection.
3. The general direction and on what street or road, with the name thereof, that it is
claimed defendant's motor vehicle was proceeding at the time of the alleged
accident.
4. A general statement of the acts of negligence on the part of the defendants, of
which plaintiffs complain.
5. The nature, location, extent and duration of each and every injury claimed to have
been sustained by plaintiffs as a result of the alleged accident.
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6. A. Set forth which of the above injuries plaintiffs will claim are
"serious injuries" within the scope, definition and meaning of Section
5102(d) of the Insurance Law, and
B. Specify in what manner plaintiffs will claim the injuries are
"serious injuries".
7. The age of plaintiffs at the time of the alleged accident, and the length of time, if
any, plaintiff was:
a. confined to a hospital;
b. confined to home;
c. confined to bed;
d. received medical care and attention,
hospitalization, etc.
8. The amounts of money expended by plaintiffs for medical care and attention.
9. State in what respect plaintiffs have sustained serious injuries or suffered
economic loss greater than the basic loss as defined under Section 5102(4) of the
New York State Insurance Law.
10. The nature of the usual occupation or vocation of the plaintiffs at the time of the
alleged accident, the amount of salary or income which he received therefrom, the
length of time they were unable to pursue their usual occupation or vocation, and
the amount of salary or income which they lost by reason thereof.
11. The name and address of the employer(s) of plaintiffs at the time of the alleged
accident.
12. The particular provision of the rules, regulations, statutes and ordinances of the
State of New York with the title, article and section number thereof which it is
claimed the defendants violated.
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PLEASE TAKE FURTHER NOTICE, that in case of your failure to serve said Bill of
Particulars as demanded, we will move for an Order precluding the plaintiffs from giving any
evidence at the trial of this action concerning the matters contained in said demands.
Dated: New York, New York
January 15, 2021
BY:___ Robert D. Donohue______
ROBERT D. DONOHUE
DONOHUE LAW FIRM, P.C.
Attorneys for Defendants
JUAN DEPENA, and ENERGY TRUCKING LLC
745 5TH AVENUE, 5TH FLOOR
New York, NY 10151
(212) 972-5252
To:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
BORIS SOFIEV, and YEHUDA SOUSSAN,
DEMAND FOR
COLLATERAL SOURCE
INFORMATION
Plaintiffs,
Index No.: 523027/2020
-against-
JUAN DEPENA, and ENERGY TRUCKING LLC,
Defendants.
SIR S:
PLEASE TAKE NOTICE, that you are hereby required to furnish to the undersigned
within twenty (20) days hereof pursuant to 3101 of the CPLR, all documents, bills, invoices,
receipts or canceled checks concerning indemnification, payment and/or reimbursements, in
whole or in part, which plaintiffs have received from collateral sources, including but not limited
to insurance, for economic losses which the plaintiffs will claim as special damages in this
action.
PLEASE TAKE FURTHER NOTICE, that failure to comply with the above-mentioned
request will render the plaintiffs subject to available provisions provided under the CPLR.
PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and should any of
the information requested become available or known in the future, then you are required to
furnish same at such time.
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Dated: New York, New York
January 15, 2021
BY:___ Robert D. Donohue______
ROBERT D. DONOHUE
DONOHUE LAW FIRM, P.C.
Attorneys for Defendants
JUAN DEPENA, and ENERGY TRUCKING LLC
745 5TH AVENUE, 5TH FLOOR
New York, NY 10151
(212) 972-5252
To:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
SUPREME COURT OF THE STATE OF NEW YORK
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COUNTY OF KINGS
----------------------------------------------------------------X
BORIS SOFIEV, and YEHUDA SOUSSAN,
DEMAND FOR
INFORMATION
Plaintiffs,
Index No.: 523027/2020
-against-
JUAN DEPENA, and ENERGY TRUCKING LLC,
Defendants.
----------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE, that you are hereby required to serve upon and deliver to the
undersigned, the following:
1. Pursuant to Rule 2103(e) of the CPLR, a list of those attorneys
who have appeared in this action, together with their addresses and
the name of the party for whom such attorney has appeared.
2. Pursuant to Section 3101(e) of the CPLR, a copy of any statement
given by or on behalf of any answering defendants serving this
notice.
3. Copies of the medical reports of those physicians who have
previously treated or examined the party seeking recovery for the
conditions claimed in this lawsuit. These shall include a detailed
recital of the injuries and conditions as to which testimony will be
offered at the trial, referring to and identifying those X-ray and
technicians'
reports which will be offered at the trial.
4. Copies of the medical reports of those physicians who will testify
on behalf of the party seeking recovery. These shall include a
detailed recital of the injuries and conditions as to which testimony
will be offered at the trial, referring to and identifying those X-ray
technicians'
and reports which will be offered at the trial.
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5. A copy of the written report of the subject accident prepared by
any adverse party for submission and filing with the State of New
York Department of Motor Vehicles commonly known as MV104.
6. All photographs under the control of adverse parties or the
attorneys or representative of the adverse parties showing the
conditions of the accident site to be alleged to represent said site as
of the time of the occurrence and intended to be introduced at the
trial for this purpose.
7. Photographs taken of the vehicle of any adverse party showing the
extent of the damage, if any, to the adverse party's vehicle follow-
ing the accident herein.
8. Plaintiffs’ income tax returns for the calendar year of the
occurrence and the two preceding calendar years.
9. The name and address of plaintiffs’ employers and authorizations
to secure employment records from all of the plaintiffs’ employers
during the calendar year of the occurrence up to and including the
present.
10. Duly executed and acknowledged written authorizations permitting
all parties to obtain and make copies of all hospital records, and
such other records including X-ray and technicians' reports as may
be referred to and identified in the statement of the examined
party's physicians.
11. The name and address of any school attended by the plaintiffs
during the calendar years subsequent to the occurrence up to and
including the present; and authorizations to secure the school
records of any of the aforementioned schools attended by the
plaintiffs during the periods so specified.
12. A duly executed and acknowledged written authorization
permitting
all parties to obtain and make copies of the plaintiffs’ no-fault file.
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PLEASE TAKE NOTICE, that said discovery is to take place on February 15, 2021 at
the offices of the undersigned, or a written communication enclosing the aforerequested
information may be sent prior to the above-mentioned time in lieu of a personal appearance on
that date.
Dated: New York, New York
January 15, 2021
BY:___ Robert D. Donohue______
ROBERT D. DONOHUE
DONOHUE LAW FIRM, P.C.
Attorneys for Defendants
JUAN DEPENA, and ENERGY TRUCKING LLC
745 5TH AVENUE, 5TH FLOOR
New York, NY 10151
(212) 972-5252
To:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BORIS SOFIEV, and YEHUDA SOUSSAN,
DEMAND
FOR WITNESSES
Plaintiffs,
Index No.: 523027/2020
-against-
JUAN DEPENA, and ENERGY TRUCKING LLC,
Defendants.
----------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE, that pursuant to CPLR 310(a), and the cases of Zellman_v.
Metropolitan Transportation Authority 40 A.D.2d 248, 339 N.Y.S.2d 255, and Zayas v.
defendants'
Morales, 45 A.D.2d 610, 360 N.Y.S.2d 279, and the demand, you are requested to
produce and permit discovery by its attorneys or another acting on its behalf of the following:
Names and addresses of all persons claimed by parties you represent herein to
have either witnessed the occurrence or to have firsthand knowledge of same, or
to have notice of the conditions proximately causing this occurrence, or having
firsthand knowledge of facts and circumstances regarding this occurrence whether
by the parties you represent at the scene of the occurrence or thereafter obtained
by said attorneys or representatives. If no such persons are known to said parties
or representatives, so state in reply to this demand. The defendants will object at
time of trial of this action to the testimony of any person not so identified.
PLEASE TAKE FURTHER NOTICE, that if the party you represent obtains names and
addresses of persons who witnessed the occurrence or have firsthand knowledge of same,
subsequent to the service of this notice, such information is to be furnished to the defendant
whenever so obtained. The defendants will object at the time of trial of this action to the
testimony of any person not so identified.
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PLEASE TAKE NOTICE, that said discovery is to take place on February 15, 2021 at
the offices of the undersigned, or a written communication enclosing the aforerequested
information may be sent prior to the above-mentioned time in lieu of a personal appearance on
that date.
Dated: New York, New York
January 15, 2021
BY:___ Robert D. Donohue______
ROBERT D. DONOHUE
DONOHUE LAW FIRM, P.C.
Attorneys for Defendants
JUAN DEPENA, and ENERGY TRUCKING LLC
745 5TH AVENUE, 5TH FLOOR
New York, NY 10151
(212) 972-5252
To:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
AFFIDAVIT OF SERVICE
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STATE OF NEW YORK)
) ss:
COUNTY OF KINGS)
Theresa Tapinekis being duly sworn, says: I am not a party to the action, am over
18 years of age, and reside at Brewster, New York.
On January 15, 2021 I served a true copy of the annexed VERIFIED ANSWER by mailing the
same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of
the U.S. Postal Service within the State of New York, addressed to the last known address of the
addressee(s) as indicated below:
KLEBAN LAW GROUP, P.C.
Alla Kleban, Esq.
Attorneys for plaintiff
4924 Avenue K
Brooklyn, New York 11234
(718) 304-0064
_Theresa Tapinekis_
Theresa Tapinekis
Sworn to before me on January 15, 2021
__ Robert D. Donohue _____________
NOTARY PUBLIC
Attorney At Law
State of New Jersey
SUPREME COURT OF THE STATE OF NEW YORK
Preview
FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------X BORIS SOFIEV, and YEHUDA SOUSSAN VERIFIED ANSWER Plaintiffs, Index No.: 523027/2020 -against- JUAN DEPENA, and ENERGY TRUCKING LLC, Defendants. ----------------------------------------------------------------X Defendants, JUAN DEPENA, and ENERGY TRUCKING LLC, by and through their attorneys, DONOHUE LAW FIRM, P.C., answering the Plaintiff's Verified Complaint, upon information and belief, states as follows: AS AND FOR A FIRST CAUSE OF ACTION 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations of the Verified Complaint as contained in the paragraphs thereof numbered "1", "2", "47." "3", "32", "33", "34", and 2. Deny each and every allegation of the Verified Complaint as contained in the paragraphs thereof numbered "7", "9", "10", "11", "12", "36", "37", "38", "39", "40", "41", "42", "43", "49" "44", "45", "46", "48", and 3. Deny each and every allegation of the Verified Complaint as contained in the paragraph "30." thereof numbered "13", "14", "19", "23", "24", "25", "26", "27", "28", "29", and and leaves all questions of law to this honorable court. 1 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 AS AND FOR A SECOND CAUSE OF ACTION 4. The answering Defendants repeat, reiterate and reallege each and every Answer to the allegations contained in paragraphs numbered “1 through “49” as if more fully set forth herein. 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations of the Verified Complaint as contained in the paragraphs thereof numbered “51”, “52”, “53”, “54”, and “67.” 6. Denies each and every allegation of the Verified Complaint as contained in the paragraphs thereof numbered “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “68”, and “69.” AS AND FOR A FIRST AFFIRMATIVE DEFENSE 3. That any verdict in the within action, for past, present, and future medical care, dental care, custodial care, or rehabilitation services, loss of earnings or other economic loss, should be reduced by the amount that any such expense has or will with reasonable certainty be replaced or indemnified in whole or in part of or from any collateral source, in accordance with the provisions and limitations of Section 4545(c) of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 4. The plaintiffs’ sole and exclusive remedy is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 5. Plaintiffs did not sustain a serious injury as defined by Section 5102 of the Insurance law of the State of New York and their exclusive remedy therefore is confined and limited to the benefits and provisions of Article 51 of the Insurance law of the State of New York. 2 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 6. Plaintiffs’ cause of action is barred by Article 51, Section 5103 of the Insurance Law of the State of New York. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 7. Any damages sustained by the plaintiffs were caused by the culpable conduct of the plaintiffs, including contributory negligence or assumption of risk, and not by the culpable conduct or negligence of the answering defendants. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 8. The Verified Complaint should be dismissed for failure to state a cause of action against the answering defendants. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE 9. The Verified Complaint should be dismissed on the ground that the Court lacks personal jurisdiction over the answering defendants. AS AND FOR AN EIGHT AFFIRMATIVE DEFENSE 10. Upon information and belief, plaintiff failed to use or misused available seat belts, and thereby contributed to the alleged injuries AS AND FOR A COUNTER-CLAIM AGAINST PLAINTIFF BORIS SOFIEV 13. In the event that the Plaintiff YEHUDA SOUSSAN recovers any judgment against the Defendants herein, the answering Defendants demand that any such judgment be divided amongst the Defendants and the Plaintiff BORIS SOFIEV in accordance with the degree of culpability of each herein, and further demand that the answering Defendants be granted indemnification and/or contribution in accordance with any applicable contracts, agreements or 3 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 warranties, express or implied, or by reason of the active and primary negligence of the Plaintiff, BORIS SOFIEV. WHEREFORE, the answering defendants demand judgment dismissing the Complaint, together with the costs and disbursements of this action, including attorneys' fees. Dated: New York, New York January 15, 2021 BY:___ Robert D. Donohue______ ROBERT D. DONOHUE DONOHUE LAW FIRM, P.C. Attorneys for Defendants JUAN DEPENA, and ENERGY TRUCKING LLC 745 5TH AVENUE, 5TH FLOOR New York, NY 10151 (212) 972-5252 To: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 4 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 VERIFICATION ROBERT D. DONOHUE, an attorney admitted to practice in the Courts of the State of New York, affirm: that I am a member of the DONOHUE LAW FIRM, P.C., attorneys of record for the defendants, JUAN DEPENA, and ENERGY TRUCKING LLC, in the within action; that I have read the foregoing Verified Answer and know the contents thereof; that the same is true to my knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters I believe them to be true. I further say that the reason this verification is made by me and not by the defendant is that the answering defendant does not reside within the County of New York where I maintain my office. The grounds of my belief as to all matters not stated upon my knowledge are as follows: the records of the defendant made available to me. I affirm that the foregoing statements are true, under penalties of perjury. Dated: New York, New York January 15, 2021 Robert D. Donohue__ ROBERT D. DONOHUE 5 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------X BORIS SOFIEV, and YEHUDA SOUSSAN, NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION Plaintiffs, Index No: 523027/2020 -against- JUAN DEPENA, and ENERGY TRUCKING LLC, , Defendants. ----------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE that, pursuant to Article 31 of the Civil Practice Law and Rules, the testimony upon oral examination of the plaintiff will be taken before a Notary Public who is not an attorney, or employee of any attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity or affinity to any person herein at the offices of DONOHUE LAW FIRM, P.C., 5™ 745 5™AVENUE, FLOOR, New York, New York at 10:00 a.m. on January 23, 2021. Dated: New York, New York January 15, 2021 BY:__ #G6en & no/me ROBERT D. DONOHUE DONOHUE LAW FIRM, P.C. Attorneys for Defendants 6 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 JUAN DEPENA, and ENERGY TRUCKING LLC 745 5TH AVENUE, 5TH FLOOR New York, NY 10151 (212) 972-5252 To: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 7 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------X BORIS SOFIEV, and YEHUDA SOUSSAN, DEMAND FOR A VERIFIED BILL OF PARTICULARS Plaintiffs, Index No.: 523027/2020 -against- JUAN DEPENA, and ENERGY TRUCKING LLC, , Defendants. ----------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE that pursuant to the provisions of the Civil Practice Law and Rules, the undersigned hereby demands that you serve upon them, within twenty (20) days, a plaintiffs' Verified Bill of Particulars of the claim as alleged in the Complaint, setting forth specifically and in detail the answers to the following items. 1. The approximate time of day that the alleged accident occurred, giving the day, month, year and approximate hour thereof. 2. The approximate place and location where the alleged accident occurred showing on what street or road, with the name thereof, if it occurred at intersecting streets, the names thereof and the particular part of the intersection; if it occurred between intersecting streets, the names thereof and the distance from the intersection. 3. The general direction and on what street or road, with the name thereof, that it is claimed defendant's motor vehicle was proceeding at the time of the alleged accident. 4. A general statement of the acts of negligence on the part of the defendants, of which plaintiffs complain. 5. The nature, location, extent and duration of each and every injury claimed to have been sustained by plaintiffs as a result of the alleged accident. 8 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 6. A. Set forth which of the above injuries plaintiffs will claim are "serious injuries" within the scope, definition and meaning of Section 5102(d) of the Insurance Law, and B. Specify in what manner plaintiffs will claim the injuries are "serious injuries". 7. The age of plaintiffs at the time of the alleged accident, and the length of time, if any, plaintiff was: a. confined to a hospital; b. confined to home; c. confined to bed; d. received medical care and attention, hospitalization, etc. 8. The amounts of money expended by plaintiffs for medical care and attention. 9. State in what respect plaintiffs have sustained serious injuries or suffered economic loss greater than the basic loss as defined under Section 5102(4) of the New York State Insurance Law. 10. The nature of the usual occupation or vocation of the plaintiffs at the time of the alleged accident, the amount of salary or income which he received therefrom, the length of time they were unable to pursue their usual occupation or vocation, and the amount of salary or income which they lost by reason thereof. 11. The name and address of the employer(s) of plaintiffs at the time of the alleged accident. 12. The particular provision of the rules, regulations, statutes and ordinances of the State of New York with the title, article and section number thereof which it is claimed the defendants violated. 9 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 PLEASE TAKE FURTHER NOTICE, that in case of your failure to serve said Bill of Particulars as demanded, we will move for an Order precluding the plaintiffs from giving any evidence at the trial of this action concerning the matters contained in said demands. Dated: New York, New York January 15, 2021 BY:___ Robert D. Donohue______ ROBERT D. DONOHUE DONOHUE LAW FIRM, P.C. Attorneys for Defendants JUAN DEPENA, and ENERGY TRUCKING LLC 745 5TH AVENUE, 5TH FLOOR New York, NY 10151 (212) 972-5252 To: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 10 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS BORIS SOFIEV, and YEHUDA SOUSSAN, DEMAND FOR COLLATERAL SOURCE INFORMATION Plaintiffs, Index No.: 523027/2020 -against- JUAN DEPENA, and ENERGY TRUCKING LLC, Defendants. SIR S: PLEASE TAKE NOTICE, that you are hereby required to furnish to the undersigned within twenty (20) days hereof pursuant to 3101 of the CPLR, all documents, bills, invoices, receipts or canceled checks concerning indemnification, payment and/or reimbursements, in whole or in part, which plaintiffs have received from collateral sources, including but not limited to insurance, for economic losses which the plaintiffs will claim as special damages in this action. PLEASE TAKE FURTHER NOTICE, that failure to comply with the above-mentioned request will render the plaintiffs subject to available provisions provided under the CPLR. PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and should any of the information requested become available or known in the future, then you are required to furnish same at such time. 11 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 Dated: New York, New York January 15, 2021 BY:___ Robert D. Donohue______ ROBERT D. DONOHUE DONOHUE LAW FIRM, P.C. Attorneys for Defendants JUAN DEPENA, and ENERGY TRUCKING LLC 745 5TH AVENUE, 5TH FLOOR New York, NY 10151 (212) 972-5252 To: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 SUPREME COURT OF THE STATE OF NEW YORK 12 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 COUNTY OF KINGS ----------------------------------------------------------------X BORIS SOFIEV, and YEHUDA SOUSSAN, DEMAND FOR INFORMATION Plaintiffs, Index No.: 523027/2020 -against- JUAN DEPENA, and ENERGY TRUCKING LLC, Defendants. ----------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE, that you are hereby required to serve upon and deliver to the undersigned, the following: 1. Pursuant to Rule 2103(e) of the CPLR, a list of those attorneys who have appeared in this action, together with their addresses and the name of the party for whom such attorney has appeared. 2. Pursuant to Section 3101(e) of the CPLR, a copy of any statement given by or on behalf of any answering defendants serving this notice. 3. Copies of the medical reports of those physicians who have previously treated or examined the party seeking recovery for the conditions claimed in this lawsuit. These shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians' reports which will be offered at the trial. 4. Copies of the medical reports of those physicians who will testify on behalf of the party seeking recovery. These shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray technicians' and reports which will be offered at the trial. 13 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 5. A copy of the written report of the subject accident prepared by any adverse party for submission and filing with the State of New York Department of Motor Vehicles commonly known as MV104. 6. All photographs under the control of adverse parties or the attorneys or representative of the adverse parties showing the conditions of the accident site to be alleged to represent said site as of the time of the occurrence and intended to be introduced at the trial for this purpose. 7. Photographs taken of the vehicle of any adverse party showing the extent of the damage, if any, to the adverse party's vehicle follow- ing the accident herein. 8. Plaintiffs’ income tax returns for the calendar year of the occurrence and the two preceding calendar years. 9. The name and address of plaintiffs’ employers and authorizations to secure employment records from all of the plaintiffs’ employers during the calendar year of the occurrence up to and including the present. 10. Duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of all hospital records, and such other records including X-ray and technicians' reports as may be referred to and identified in the statement of the examined party's physicians. 11. The name and address of any school attended by the plaintiffs during the calendar years subsequent to the occurrence up to and including the present; and authorizations to secure the school records of any of the aforementioned schools attended by the plaintiffs during the periods so specified. 12. A duly executed and acknowledged written authorization permitting all parties to obtain and make copies of the plaintiffs’ no-fault file. 14 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 PLEASE TAKE NOTICE, that said discovery is to take place on February 15, 2021 at the offices of the undersigned, or a written communication enclosing the aforerequested information may be sent prior to the above-mentioned time in lieu of a personal appearance on that date. Dated: New York, New York January 15, 2021 BY:___ Robert D. Donohue______ ROBERT D. DONOHUE DONOHUE LAW FIRM, P.C. Attorneys for Defendants JUAN DEPENA, and ENERGY TRUCKING LLC 745 5TH AVENUE, 5TH FLOOR New York, NY 10151 (212) 972-5252 To: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 15 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------X BORIS SOFIEV, and YEHUDA SOUSSAN, DEMAND FOR WITNESSES Plaintiffs, Index No.: 523027/2020 -against- JUAN DEPENA, and ENERGY TRUCKING LLC, Defendants. ----------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE, that pursuant to CPLR 310(a), and the cases of Zellman_v. Metropolitan Transportation Authority 40 A.D.2d 248, 339 N.Y.S.2d 255, and Zayas v. defendants' Morales, 45 A.D.2d 610, 360 N.Y.S.2d 279, and the demand, you are requested to produce and permit discovery by its attorneys or another acting on its behalf of the following: Names and addresses of all persons claimed by parties you represent herein to have either witnessed the occurrence or to have firsthand knowledge of same, or to have notice of the conditions proximately causing this occurrence, or having firsthand knowledge of facts and circumstances regarding this occurrence whether by the parties you represent at the scene of the occurrence or thereafter obtained by said attorneys or representatives. If no such persons are known to said parties or representatives, so state in reply to this demand. The defendants will object at time of trial of this action to the testimony of any person not so identified. PLEASE TAKE FURTHER NOTICE, that if the party you represent obtains names and addresses of persons who witnessed the occurrence or have firsthand knowledge of same, subsequent to the service of this notice, such information is to be furnished to the defendant whenever so obtained. The defendants will object at the time of trial of this action to the testimony of any person not so identified. 16 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 PLEASE TAKE NOTICE, that said discovery is to take place on February 15, 2021 at the offices of the undersigned, or a written communication enclosing the aforerequested information may be sent prior to the above-mentioned time in lieu of a personal appearance on that date. Dated: New York, New York January 15, 2021 BY:___ Robert D. Donohue______ ROBERT D. DONOHUE DONOHUE LAW FIRM, P.C. Attorneys for Defendants JUAN DEPENA, and ENERGY TRUCKING LLC 745 5TH AVENUE, 5TH FLOOR New York, NY 10151 (212) 972-5252 To: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 AFFIDAVIT OF SERVICE 17 of 19 FILED: KINGS COUNTY CLERK 01/19/2021 11:02 AM INDEX NO. 523027/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/19/2021 STATE OF NEW YORK) ) ss: COUNTY OF KINGS) Theresa Tapinekis being duly sworn, says: I am not a party to the action, am over 18 years of age, and reside at Brewster, New York. On January 15, 2021 I served a true copy of the annexed VERIFIED ANSWER by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee(s) as indicated below: KLEBAN LAW GROUP, P.C. Alla Kleban, Esq. Attorneys for plaintiff 4924 Avenue K Brooklyn, New York 11234 (718) 304-0064 _Theresa Tapinekis_ Theresa Tapinekis Sworn to before me on January 15, 2021 __ Robert D. Donohue _____________ NOTARY PUBLIC Attorney At Law State of New Jersey SUPREME COURT OF THE STATE OF NEW YORK