Preview
FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022
FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022
FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------X
SARAH M. LANZA,
Plaint(/[, Index No.
VERIFIED
-against- COMPLAINT
SANTO MERCEDES BAEZ and GUMA CONSTRUCTION,
Defendants.
---------------·-------------------------------------------X
Plaintiff, complaining of the Defendants, through her attorneys, THE LAW FIRM OF
DAVIDOFF & ASSOCIATES, respectfully alleges upon information and belief:
FIRST: That at all times mentioned herein, the Plaintiff, SARAH M. LANZA, was
and still is a resident of the County of Queens, City and State of New York.
SECOND: That at all times mentioned herein, the Defendant, SANTO MERCEDES
BAEZ, was and still is a resident of the County of Queens, City and State of New York.
THIRD: That at all times mentioned herein, the Defendant, GUMA
CONSTRUCTION, was and continues to be a corporation duly licensed and authorized to transact
business within the State of New York.
FOURTH: That at all times mentioned herein, the Defendant, GUMA
CONSTRUCTION, was and continues to be a corporation duly licensed and authorized to transact
business within the State of New York with its principal place of business located at 240 Water
Street, Brooklyn, NY.
FIFTH: That at all times mentioned herein, the Defendant, GUMA
CONSTRUCTION, was and still is a business corporation, duly organized and existing, by and
under virtue of the laws of the State of New York.
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NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022
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FILED: KINGS COUNTY CLERK 12/22/2020
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NYSCEF DOC. NO. 4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X
SARAH M. LANZA, :
: Index No.: 523020/2020
Plaintiff, :
: CERTIFICATION
-against- :
SANTO MERCEDES BAEZ and GUMA :
CONSTRUCTION, :
:
Defendants. :
----------------------------------------------------------------------X
C O U N S E L O R S:
PLEASE TAKE NOTICE, that pursuant to 22 NYCRR §130-1.1, the undersigned, an
attorney duly admitted to practice in the Courts of the State of New York, hereby certifies, upon
information and belief, that the contentions contained in the annexed documents are not
frivolous.
• Verified Answer
• Demand for Verified Bill of Particulars
• Notice for and Inspection
Discovery
• Demand for Medical Record Authorizations
Bills/Billing
• Demand for Medical Information, Records and Authorizations
• Demand for Arons Authorizations
• Demand for Social Authorizations and Notice to Preserve
Media/Networking
• Demand for Mobile Device Records/Authorizations and Notice to Preserve
• Demand for Black Box/Roadside Assistance Records and Notice to Preserve
• Demand for E-Discovery/Litigation Hold and Notice to Preserve
• Demand Pursuant to CPLR 3017(c)
• Notice of Deposition
• Notice of Independent Medical Examination
• Notice of Revocation of Service Fax
by
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Dated: New York, New York
December 22, 2020
Yours, etc.
LAW OFFICE OF KEVIN J. PHILBIN
Attorneys for Defendants
SANTO MERCEDES BAEZ and
GUMA CONSTRUCTION CORP.
One Whitehall Street, 13th Floor
New York, New York 10004-2109
(212) 248-9100
Matter No.: 20-018329
By: __________________________
Arlene E. Lewis
TO: THE LAW FIRM OF DAVIDOFF &
ASSOCIATES, P.C.
Attorneys for Plaintiff
SARAH M. LANZA
108-18 Queens Blvd., Suite 404
Forest Hills, New York 11374
(718) 268-8800
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X
SARAH M. LANZA, :
: Index No.: 523020/2020
Plaintiff, :
: VERIFIED ANSWER
-against- :
SANTO MERCEDES BAEZ and GUMA :
CONSTRUCTION, :
:
Defendants. :
----------------------------------------------------------------------X
Defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP., by
and through their attorneys, the LAW OFFICE OF KEVIN J. PHILBIN, as and for their Answer
to the Verified Complaint, dated November 18, 2018, allege the following, upon information and
belief:
1. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs of the Verified Complaint designated "FIRST",
"FIFTEENTH"
"SIXTH", "NINTH", and "TWENTY-FIRST".
2. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated "SECOND",
except admit that SANTO MERCEDES BAEZ resides in Queens, City and State of New York.
3. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated "THIRD",
except admit that GUMA CONSTRUCTION CORP. is a New York corporation, and reserve and
refer allquestions of law to the Trial Court.
4. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated "FOURTH",
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except admit that GUMA CONSTRUCTION CORP. is a New York corporation with an office
located at 240 Water Street, Brooklyn, New York, and reserve and refer all questions of law to
the Trial Court.
5. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated “FIFTH”, except
admit that defendant, GUMA CONSTRUCTION CORP. is a New York corporation, and reserve
and refer all questions of law to the Trial Court.
6. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated “SEVENTH”,
except to the extent that the motor vehicle referenced in said paragraph of the Verified
Complaint designated “SEVENTH”, bearing license plate number 78844MK also bears VIN
1M2AX04C0JM039696, in which case, admit that GUMA CONSTRUCTION CORP. owned
said vehicle.
7. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs of the Verified Complaint designated “EIGHTH” and
“ELEVENTH”, except to the extent that said vehicle bearing license number 78844MK also
bears VIN 1M2AX04C0JM039696, admit that on March 11, 2020, SANTO MERCEDES BAEZ
operated said vehicle with the permission and consent of GUMA CONSTRUCTION CORP.
8. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated “TENTH”,
except to the extent that the motor vehicle referenced in said paragraph of the Verified
Complaint designated “TENTH”, bearing license plate number 78844MK also bears VIN
2
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1M2AX04C0JM039696, in which case, admit that GUMA CONSTRUCTION CORP. owned
said vehicle.
9. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated “TWELFTH”,
except admit the existence of the roadways referenced in said paragraph of the Verified
Complaint designated “TWELFTH”.
10. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs of the Verified Complaint designated
“THIRTEENTH”, except admit the existence of the roadways referred to therein and reserve and
refer all questions of law to the Trial Court.
11. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Verified Complaint designated
“FOURTEENTH”, except admit the existence of the roadway referred to therein, and to the
extent that the motor vehicle referenced in said paragraph of the Verified Complaint designated
“FOURTEENTH”, bearing license plate number 78844MK also bears VIN
1M2AX04C0JM039696, admit that SANTO MERCEDES BAEZ operated said vehicle on
March 11, 2020 with the permission and consent of GUMA CONSTRUCTION CORP.
12. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs of the Verified Complaint designated
“SIXTEENTH”, “EIGHTEENTH” and “TWENTIETH”, and reserve and refer all questions of
law to the Trial Court.
13. Deny each and every allegation contained in the paragraphs of the Verified
Complaint designated “SEVENTEENTH” and “NINETEENTH”.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
14. That the incident alleged in the Verified Complaint and the injuries and damages
alleged therein to have been incurred by plaintiff, were proximately caused in whole or in part by
the contributory negligence and/or culpable conduct of plaintiff herein.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
15. That plaintiff was further contributorily negligent in that she failed and neglected
to make use of restraining seat belts with which the motor vehicle which she was occupying was
equipped, and that said failure contributed in whole or in part to the injuries and damages
claimed by said plaintiff.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
16. Plaintiff fails to state a viable cause of action against the answering defendants.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
17. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce
the injuries, damages and disabilities alleged in the Verified Complaint.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
18. Plaintiff’s 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.
19. Plaintiff did not sustain a serious and permanent injury as defined by Section
5102 of the Insurance Law of the State of New York, and her exclusive remedy is confined and
limited to the benefits and provisions of Article 51 thereof.
20. Plaintiff’s cause of action is barred by Article 51, Section 5104 of the Insurance
Law of the State of New York.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
21. That plaintiff had knowledge or, appreciated and voluntarily encountered the risks
incident to the activities in which she was engaged as alleged in the Verified Complaint. The
injuries alleged by plaintiff were caused by or arose out of such risks assumed by her.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
22. Upon information and belief, any past or future costs or expenses incurred or to
be incurred by plaintiff for medical care, dental care, custodial care or rehabilitative services,
loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or
indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New
York Civil Practice Law and Rules.
23. If any damages are recoverable against the answering defendants the amount of
such damages shall be diminished by the amount of the funds which plaintiff has or shall receive
from such collateral sources.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
24. That any injuries and damages allegedly sustained by plaintiff were caused solely
and wholly by reason of plaintiff’s carelessness and negligence, or by the carelessness of some
third person, party, persons or parties not under the control of the answering defendants.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
25. That plaintiff has failed to join, as defendants, all necessary and proper parties in
this action.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
26. That the Court lacks jurisdiction over the person of the answering defendants.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
27. That plaintiff’s claims against defendants are barred by the emergency doctrine as
defendants’ actions were reasonable and prudent in the context of an emergency.
WHEREFORE, defendants, SANTO MERCEDES BAEZ and GUMA
CONSTRUCTION CORP. demand judgment dismissing the Verified Complaint, together with
costs, disbursements, interest and attorneys’ fees.
Dated: New York, New York
December 22, 2020
Yours, etc.
LAW OFFICE OF KEVIN J. PHILBIN
Attorneys for Defendants
SANTO MERCEDES BAEZ and
GUMA CONSTRUCTION CORP.
One Whitehall Street, 13th Floor
New York, New York 10004-2109
(212) 248-9100
Matter No.: 20-018329
By: __________________________
Arlene E. Lewis
TO: THE LAW FIRM OF DAVIDOFF &
ASSOCIATES, P.C.
Attorneys for Plaintiff
SARAH M. LANZA
108-18 Queens Blvd., Suite 404
Forest Hills, New York 11374
(718) 268-8800
6
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ATTORNEY’S VERIFICATION
ARLENE E. LEWIS, under penalty of perjury, hereby affirms the following:
1. I am an attorney duly admitted and licensed to practice in the courts of the State of
New York, and I am associated with the LAW OFFICE OF KEVIN J. PHILBIN, attorneys for
defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP..
2. I have read the foregoing Answer and know the contents thereof, and the same is
true to my own knowledge except as to the matters therein stated to be alleged upon information
and belief, and as to those matters, I believe them to be true.
3. The reason I make this verification is that defendant, SANTO MERCEDES BAEZ
does not reside in, and defendant GUMA CONSTRUCTION CORP. does not have offices within
the county where I have my office.
4. The sources of my information and the grounds of my belief as to the matters so
alleged herein are investigations had by defendants, SANTO MERCEDES BAEZ and GUMA
CONSTRUCTION CORP., their agents, servants and representatives, into the subject matter
hereof and correspondence relating thereto, reports of which investigations and copies of which
correspondence are in my possession.
Dated: New York, New York
December 22, 2020
ARLENE E. LEWIS
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X
SARAH M. LANZA, :
: Index No.: 523020/2020
Plaintiff, :
: DEMAND FOR
-against- : VERIFIED BILL
: OF PARTICULARS
SANTO MERCEDES BAEZ and GUMA :
CONSTRUCTION, :
:
Defendants. :
----------------------------------------------------------------------X
C O U N S E L O R S
PLEASE TAKE NOTICE, that pursuant to CPLR 3042, plaintiff,SARAH M. LANZA, is
to serve upon the undersigned, within thirty (30) days, a Verified Bill of Particulars, setting forth in
detail the following
1. The date, day of the week and approximate hour on said date when itis claimed the
alleged incident occurred.
2. The location of the alleged occurrence described in sufficient detail to identify the
same, giving the name, number, or other designation of the intersecting streets or
avenues; and, if at an intersection, plaintiff shall so state;if not at an intersection,
plaintiff shall give the distance from or to the nearest intersecting street or avenue.
3. Give a description of the alleged occurrence, stating: (a) the description of each of
the vehicles involved in sufficient detail to permit identification; (b) the direction in
which each of the vehicles and plaintiff were proceeding immediately prior to the
occurrence; and (c) the parts of the respective vehicles that were in contact with each
other.
4. A statement of the acts of omission and/or commission constituting the negligence
claimed against defendants, SANTO MERCEDES BAEZ and GUMA
CONSTRUCTION.
5. A statement of any statutes, ordinances, regulations or rules of the State,
Municipality, or any of its departments or subdivisions, which are claimed to have
been violated by defendants, SANTO MERCEDES BAEZ and GUMA
CONSTRUCTION, specifying the chapter or chapters, section or sections of the
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particular statute, ordinance, regulation or rule, and the manner in which it is alleged
that defendant violated each such statute.
6. A statement of the injuries.
7. A description of those injuries claimed to be permanent.
8. A statement of any injuries claimed to have resulted from an aggravation and/or
exacerbation of a pre-existing or prior medical condition or injury, and if so, state:
(a) the pre-existing or prior medical condition or injury; (b) the manner in which it is
claimed that such pre-existing or prior condition or injury was aggravated and/or
exacerbated by the alleged occurrence; and (c) the date of onset of the pre-existing
or prior condition or injury.
9. If this action is brought pursuant to Insurance Law §5104(a), state: (a) which injuries
are alleged to come within the meaning of Insurance Law §5102(d); and/or (b) in
what respects the economic loss is greater than basic economic loss as defined in
Insurance Law §5102(a).
10. If it is claimed that plaintiff is qualified to sue for pain and suffering under New
York State No-Fault Insurance Law, state the exact manner in which compliance
with the Insurance Law is alleged, including the precise nature of the “serious
injury” which plaintiff claims to have sustained as that term is defined by Insurance
Law § 5102(d):
(a) If “significant disfigurement” is claimed, state the exact manner and location of
the alleged disfigurement;
(b) if a fracture is claimed, identify each and every fracture allegedly sustained by
the injured plaintiff;
(c) ifa “permanent loss of use of a body organ, member, function or system” is
claimed, identify particularly the exact “organ, member, function or system”
with respect to which permanent loss is claimed;
(d) if“permanent consequential limitation of use of a body organ or member” is
claimed, identify each body, organ or member for which such a claim is made
and describe the “consequential limitation of use” which is alleged;
(e) if a “medically determined injury or impairment of a non-permanent nature”
which prevents plaintiff from performing substantially all of the material acts
which constitute plaintiff’s usual and customary daily activities for not less than
90 days during the 180 days immediately following the occurrence of the injury
or impairment is claimed, identify in detail the particular injury or impairment
which is claimed to have an effect and identify by date each day within 180
immediately following the accident on which plaintiff was prevented from
performing substantially all of the material acts which constituted plaintiff’s
usual and customary daily activities; and
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(f) state every item of economic loss that the plaintiff will claim was sustained and
is greater than the basic economic loss described in Section 5102(a) of the
Insurance Law.
11. The length of time, if any, plaintiff was confined to a hospital.
12. The length of time, if any, plaintiff was confined to bed.
13. The length of time, if any, plaintiff was confined to home.
14. Total amounts, if any, plaintiff will claim as past special damages for: (a)
physicians’ services; (b) hospital expenses; (c) loss of earnings; and (d) any other
special damages (please specify).
15. Total amounts, if any, plaintiff will claim as future special damages for: (a)
physicians’ services; (b) hospital expenses; (c) loss of earnings; and (d) any other
special damages (please specify).
16. State over what period of time plaintiff claims each item of future expense or loss
shall occur.
17. The nature of plaintiff’s vocation at the time of the alleged occurrence herein.
18. The length of time, if any, it will be claimed plaintiff was disabled from attending
said vocation.
19. The average daily, weekly, monthly or yearly earnings of plaintiff at the time of the
alleged occurrence herein.
20. The name and address of plaintiff’s employer at the time of the alleged occurrence
herein.
21. If plaintiff was self-employed, set forth the business name and address, and
plaintiff’s annual income (gross and net) from that business.
22. If plaintiff was attending an educational institution at the time of the alleged
occurrence herein, state: (a) the name and address of each educational institution;
(b) the number of days, if any, it will be claimed plaintiff was absent from said
educational institution(s) by reason of the alleged injuries sustained in the alleged
occurrence herein; and (c) the grade level attained by plaintiff at the time of the
alleged occurrence herein.
23. Plaintiff’s present residence address.
24. Plaintiff’s current age.
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25. If the Complaint alleges a cause of action for vehicular property damage, state: (a)
the make, year, type and mileage of plaintiff’s vehicle; (b) the date when plaintiff
acquired title to this vehicle; (c) in detail each and every item of damage claimed
to have been sustained to plaintiff’s vehicle, setting forth each part claimed to
have been damaged or replaced, and the cost of repair or replacement for each
part so damaged or replaced; (d) the fair and reasonable market value of
plaintiff’s vehicle immediately prior to the accident; (e) the salvage value of
plaintiff’s vehicle immediately prior to the accident; and (f) the salvage value of
plaintiff’s vehicle after the accident.
26. If there is a cause of action for loss of services, state: (a) the exact date and
specific place of plaintiffs’ marriage; (b) if applicable, the maiden name of the
plaintiff-spouse; (c) in what manner the plaintiff-spouse was deprived of services
and state what the services were; and (d) with regard to any monies expended and
the obligation incurred to expend additional monies, set forth the amount of
money expended and precisely to whom such monies were paid and/or are owed.
PLEASE TAKE FURTHER NOTICE, that unless you comply with this demand within
thirty (30) days, a motion will be made to preclude you from presenting any evidence at the trial of
this action as to any of the items for which a bill of particulars has been demanded and has not been
complied with, together with costs.
Dated: New York, New York
December 22, 2020
Yours, etc.
LAW OFFICE OF KEVIN J. PHILBIN
Preview
FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X SARAH M. LANZA, Plaint(/[, Index No. VERIFIED -against- COMPLAINT SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, Defendants. ---------------·-------------------------------------------X Plaintiff, complaining of the Defendants, through her attorneys, THE LAW FIRM OF DAVIDOFF & ASSOCIATES, respectfully alleges upon information and belief: FIRST: That at all times mentioned herein, the Plaintiff, SARAH M. LANZA, was and still is a resident of the County of Queens, City and State of New York. SECOND: That at all times mentioned herein, the Defendant, SANTO MERCEDES BAEZ, was and still is a resident of the County of Queens, City and State of New York. THIRD: That at all times mentioned herein, the Defendant, GUMA CONSTRUCTION, was and continues to be a corporation duly licensed and authorized to transact business within the State of New York. FOURTH: That at all times mentioned herein, the Defendant, GUMA CONSTRUCTION, was and continues to be a corporation duly licensed and authorized to transact business within the State of New York with its principal place of business located at 240 Water Street, Brooklyn, NY. FIFTH: That at all times mentioned herein, the Defendant, GUMA CONSTRUCTION, was and still is a business corporation, duly organized and existing, by and under virtue of the laws of the State of New York. FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 FILED: KINGS COUNTY CLERK 01/21/2022 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/21/2022 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X SARAH M. LANZA, : : Index No.: 523020/2020 Plaintiff, : : CERTIFICATION -against- : SANTO MERCEDES BAEZ and GUMA : CONSTRUCTION, : : Defendants. : ----------------------------------------------------------------------X C O U N S E L O R S: PLEASE TAKE NOTICE, that pursuant to 22 NYCRR §130-1.1, the undersigned, an attorney duly admitted to practice in the Courts of the State of New York, hereby certifies, upon information and belief, that the contentions contained in the annexed documents are not frivolous. • Verified Answer • Demand for Verified Bill of Particulars • Notice for and Inspection Discovery • Demand for Medical Record Authorizations Bills/Billing • Demand for Medical Information, Records and Authorizations • Demand for Arons Authorizations • Demand for Social Authorizations and Notice to Preserve Media/Networking • Demand for Mobile Device Records/Authorizations and Notice to Preserve • Demand for Black Box/Roadside Assistance Records and Notice to Preserve • Demand for E-Discovery/Litigation Hold and Notice to Preserve • Demand Pursuant to CPLR 3017(c) • Notice of Deposition • Notice of Independent Medical Examination • Notice of Revocation of Service Fax by 1 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 Dated: New York, New York December 22, 2020 Yours, etc. LAW OFFICE OF KEVIN J. PHILBIN Attorneys for Defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. One Whitehall Street, 13th Floor New York, New York 10004-2109 (212) 248-9100 Matter No.: 20-018329 By: __________________________ Arlene E. Lewis TO: THE LAW FIRM OF DAVIDOFF & ASSOCIATES, P.C. Attorneys for Plaintiff SARAH M. LANZA 108-18 Queens Blvd., Suite 404 Forest Hills, New York 11374 (718) 268-8800 2 2 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X SARAH M. LANZA, : : Index No.: 523020/2020 Plaintiff, : : VERIFIED ANSWER -against- : SANTO MERCEDES BAEZ and GUMA : CONSTRUCTION, : : Defendants. : ----------------------------------------------------------------------X Defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP., by and through their attorneys, the LAW OFFICE OF KEVIN J. PHILBIN, as and for their Answer to the Verified Complaint, dated November 18, 2018, allege the following, upon information and belief: 1. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the Verified Complaint designated "FIRST", "FIFTEENTH" "SIXTH", "NINTH", and "TWENTY-FIRST". 2. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated "SECOND", except admit that SANTO MERCEDES BAEZ resides in Queens, City and State of New York. 3. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated "THIRD", except admit that GUMA CONSTRUCTION CORP. is a New York corporation, and reserve and refer allquestions of law to the Trial Court. 4. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated "FOURTH", 3 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 except admit that GUMA CONSTRUCTION CORP. is a New York corporation with an office located at 240 Water Street, Brooklyn, New York, and reserve and refer all questions of law to the Trial Court. 5. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated “FIFTH”, except admit that defendant, GUMA CONSTRUCTION CORP. is a New York corporation, and reserve and refer all questions of law to the Trial Court. 6. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated “SEVENTH”, except to the extent that the motor vehicle referenced in said paragraph of the Verified Complaint designated “SEVENTH”, bearing license plate number 78844MK also bears VIN 1M2AX04C0JM039696, in which case, admit that GUMA CONSTRUCTION CORP. owned said vehicle. 7. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the Verified Complaint designated “EIGHTH” and “ELEVENTH”, except to the extent that said vehicle bearing license number 78844MK also bears VIN 1M2AX04C0JM039696, admit that on March 11, 2020, SANTO MERCEDES BAEZ operated said vehicle with the permission and consent of GUMA CONSTRUCTION CORP. 8. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated “TENTH”, except to the extent that the motor vehicle referenced in said paragraph of the Verified Complaint designated “TENTH”, bearing license plate number 78844MK also bears VIN 2 4 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 1M2AX04C0JM039696, in which case, admit that GUMA CONSTRUCTION CORP. owned said vehicle. 9. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated “TWELFTH”, except admit the existence of the roadways referenced in said paragraph of the Verified Complaint designated “TWELFTH”. 10. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the Verified Complaint designated “THIRTEENTH”, except admit the existence of the roadways referred to therein and reserve and refer all questions of law to the Trial Court. 11. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Verified Complaint designated “FOURTEENTH”, except admit the existence of the roadway referred to therein, and to the extent that the motor vehicle referenced in said paragraph of the Verified Complaint designated “FOURTEENTH”, bearing license plate number 78844MK also bears VIN 1M2AX04C0JM039696, admit that SANTO MERCEDES BAEZ operated said vehicle on March 11, 2020 with the permission and consent of GUMA CONSTRUCTION CORP. 12. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the Verified Complaint designated “SIXTEENTH”, “EIGHTEENTH” and “TWENTIETH”, and reserve and refer all questions of law to the Trial Court. 13. Deny each and every allegation contained in the paragraphs of the Verified Complaint designated “SEVENTEENTH” and “NINETEENTH”. 3 5 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 14. That the incident alleged in the Verified Complaint and the injuries and damages alleged therein to have been incurred by plaintiff, were proximately caused in whole or in part by the contributory negligence and/or culpable conduct of plaintiff herein. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 15. That plaintiff was further contributorily negligent in that she failed and neglected to make use of restraining seat belts with which the motor vehicle which she was occupying was equipped, and that said failure contributed in whole or in part to the injuries and damages claimed by said plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 16. Plaintiff fails to state a viable cause of action against the answering defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 17. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the Verified Complaint. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 18. Plaintiff’s 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. 19. Plaintiff did not sustain a serious and permanent injury as defined by Section 5102 of the Insurance Law of the State of New York, and her exclusive remedy is confined and limited to the benefits and provisions of Article 51 thereof. 20. Plaintiff’s cause of action is barred by Article 51, Section 5104 of the Insurance Law of the State of New York. 4 6 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 21. That plaintiff had knowledge or, appreciated and voluntarily encountered the risks incident to the activities in which she was engaged as alleged in the Verified Complaint. The injuries alleged by plaintiff were caused by or arose out of such risks assumed by her. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 22. Upon information and belief, any past or future costs or expenses incurred or to be incurred by plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. 23. If any damages are recoverable against the answering defendants the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral sources. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 24. That any injuries and damages allegedly sustained by plaintiff were caused solely and wholly by reason of plaintiff’s carelessness and negligence, or by the carelessness of some third person, party, persons or parties not under the control of the answering defendants. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 25. That plaintiff has failed to join, as defendants, all necessary and proper parties in this action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 26. That the Court lacks jurisdiction over the person of the answering defendants. 5 7 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 27. That plaintiff’s claims against defendants are barred by the emergency doctrine as defendants’ actions were reasonable and prudent in the context of an emergency. WHEREFORE, defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. demand judgment dismissing the Verified Complaint, together with costs, disbursements, interest and attorneys’ fees. Dated: New York, New York December 22, 2020 Yours, etc. LAW OFFICE OF KEVIN J. PHILBIN Attorneys for Defendants SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. One Whitehall Street, 13th Floor New York, New York 10004-2109 (212) 248-9100 Matter No.: 20-018329 By: __________________________ Arlene E. Lewis TO: THE LAW FIRM OF DAVIDOFF & ASSOCIATES, P.C. Attorneys for Plaintiff SARAH M. LANZA 108-18 Queens Blvd., Suite 404 Forest Hills, New York 11374 (718) 268-8800 6 8 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 ATTORNEY’S VERIFICATION ARLENE E. LEWIS, under penalty of perjury, hereby affirms the following: 1. I am an attorney duly admitted and licensed to practice in the courts of the State of New York, and I am associated with the LAW OFFICE OF KEVIN J. PHILBIN, attorneys for defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP.. 2. I have read the foregoing Answer and know the contents thereof, and the same is true to my own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. 3. The reason I make this verification is that defendant, SANTO MERCEDES BAEZ does not reside in, and defendant GUMA CONSTRUCTION CORP. does not have offices within the county where I have my office. 4. The sources of my information and the grounds of my belief as to the matters so alleged herein are investigations had by defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP., their agents, servants and representatives, into the subject matter hereof and correspondence relating thereto, reports of which investigations and copies of which correspondence are in my possession. Dated: New York, New York December 22, 2020 ARLENE E. LEWIS 7 9 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X SARAH M. LANZA, : : Index No.: 523020/2020 Plaintiff, : : DEMAND FOR -against- : VERIFIED BILL : OF PARTICULARS SANTO MERCEDES BAEZ and GUMA : CONSTRUCTION, : : Defendants. : ----------------------------------------------------------------------X C O U N S E L O R S PLEASE TAKE NOTICE, that pursuant to CPLR 3042, plaintiff,SARAH M. LANZA, is to serve upon the undersigned, within thirty (30) days, a Verified Bill of Particulars, setting forth in detail the following 1. The date, day of the week and approximate hour on said date when itis claimed the alleged incident occurred. 2. The location of the alleged occurrence described in sufficient detail to identify the same, giving the name, number, or other designation of the intersecting streets or avenues; and, if at an intersection, plaintiff shall so state;if not at an intersection, plaintiff shall give the distance from or to the nearest intersecting street or avenue. 3. Give a description of the alleged occurrence, stating: (a) the description of each of the vehicles involved in sufficient detail to permit identification; (b) the direction in which each of the vehicles and plaintiff were proceeding immediately prior to the occurrence; and (c) the parts of the respective vehicles that were in contact with each other. 4. A statement of the acts of omission and/or commission constituting the negligence claimed against defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION. 5. A statement of any statutes, ordinances, regulations or rules of the State, Municipality, or any of its departments or subdivisions, which are claimed to have been violated by defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION, specifying the chapter or chapters, section or sections of the 10 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 particular statute, ordinance, regulation or rule, and the manner in which it is alleged that defendant violated each such statute. 6. A statement of the injuries. 7. A description of those injuries claimed to be permanent. 8. A statement of any injuries claimed to have resulted from an aggravation and/or exacerbation of a pre-existing or prior medical condition or injury, and if so, state: (a) the pre-existing or prior medical condition or injury; (b) the manner in which it is claimed that such pre-existing or prior condition or injury was aggravated and/or exacerbated by the alleged occurrence; and (c) the date of onset of the pre-existing or prior condition or injury. 9. If this action is brought pursuant to Insurance Law §5104(a), state: (a) which injuries are alleged to come within the meaning of Insurance Law §5102(d); and/or (b) in what respects the economic loss is greater than basic economic loss as defined in Insurance Law §5102(a). 10. If it is claimed that plaintiff is qualified to sue for pain and suffering under New York State No-Fault Insurance Law, state the exact manner in which compliance with the Insurance Law is alleged, including the precise nature of the “serious injury” which plaintiff claims to have sustained as that term is defined by Insurance Law § 5102(d): (a) If “significant disfigurement” is claimed, state the exact manner and location of the alleged disfigurement; (b) if a fracture is claimed, identify each and every fracture allegedly sustained by the injured plaintiff; (c) ifa “permanent loss of use of a body organ, member, function or system” is claimed, identify particularly the exact “organ, member, function or system” with respect to which permanent loss is claimed; (d) if“permanent consequential limitation of use of a body organ or member” is claimed, identify each body, organ or member for which such a claim is made and describe the “consequential limitation of use” which is alleged; (e) if a “medically determined injury or impairment of a non-permanent nature” which prevents plaintiff from performing substantially all of the material acts which constitute plaintiff’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment is claimed, identify in detail the particular injury or impairment which is claimed to have an effect and identify by date each day within 180 immediately following the accident on which plaintiff was prevented from performing substantially all of the material acts which constituted plaintiff’s usual and customary daily activities; and 9 11 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 (f) state every item of economic loss that the plaintiff will claim was sustained and is greater than the basic economic loss described in Section 5102(a) of the Insurance Law. 11. The length of time, if any, plaintiff was confined to a hospital. 12. The length of time, if any, plaintiff was confined to bed. 13. The length of time, if any, plaintiff was confined to home. 14. Total amounts, if any, plaintiff will claim as past special damages for: (a) physicians’ services; (b) hospital expenses; (c) loss of earnings; and (d) any other special damages (please specify). 15. Total amounts, if any, plaintiff will claim as future special damages for: (a) physicians’ services; (b) hospital expenses; (c) loss of earnings; and (d) any other special damages (please specify). 16. State over what period of time plaintiff claims each item of future expense or loss shall occur. 17. The nature of plaintiff’s vocation at the time of the alleged occurrence herein. 18. The length of time, if any, it will be claimed plaintiff was disabled from attending said vocation. 19. The average daily, weekly, monthly or yearly earnings of plaintiff at the time of the alleged occurrence herein. 20. The name and address of plaintiff’s employer at the time of the alleged occurrence herein. 21. If plaintiff was self-employed, set forth the business name and address, and plaintiff’s annual income (gross and net) from that business. 22. If plaintiff was attending an educational institution at the time of the alleged occurrence herein, state: (a) the name and address of each educational institution; (b) the number of days, if any, it will be claimed plaintiff was absent from said educational institution(s) by reason of the alleged injuries sustained in the alleged occurrence herein; and (c) the grade level attained by plaintiff at the time of the alleged occurrence herein. 23. Plaintiff’s present residence address. 24. Plaintiff’s current age. 10 12 of 54 FILED: KINGS COUNTY CLERK 12/22/2020 01/21/2022 02:38 05:20 PM INDEX NO. 523020/2020 NYSCEF DOC. NO. 4 31 RECEIVED NYSCEF: 12/22/2020 01/21/2022 25. If the Complaint alleges a cause of action for vehicular property damage, state: (a) the make, year, type and mileage of plaintiff’s vehicle; (b) the date when plaintiff acquired title to this vehicle; (c) in detail each and every item of damage claimed to have been sustained to plaintiff’s vehicle, setting forth each part claimed to have been damaged or replaced, and the cost of repair or replacement for each part so damaged or replaced; (d) the fair and reasonable market value of plaintiff’s vehicle immediately prior to the accident; (e) the salvage value of plaintiff’s vehicle immediately prior to the accident; and (f) the salvage value of plaintiff’s vehicle after the accident. 26. If there is a cause of action for loss of services, state: (a) the exact date and specific place of plaintiffs’ marriage; (b) if applicable, the maiden name of the plaintiff-spouse; (c) in what manner the plaintiff-spouse was deprived of services and state what the services were; and (d) with regard to any monies expended and the obligation incurred to expend additional monies, set forth the amount of money expended and precisely to whom such monies were paid and/or are owed. PLEASE TAKE FURTHER NOTICE, that unless you comply with this demand within thirty (30) days, a motion will be made to preclude you from presenting any evidence at the trial of this action as to any of the items for which a bill of particulars has been demanded and has not been complied with, together with costs. Dated: New York, New York December 22, 2020 Yours, etc. LAW OFFICE OF KEVIN J. PHILBIN