Preview
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
EXHIBIT 1
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
SUPREME COURT OF'THE STATE OF'NEW YORI(
COUNTY OF NEW YORK
GREG ROHLES, VERIF'IED BILL OF
PARTICULARS
Plaintffis),
Index No.: 157185/2019
-against-
METROPOLITAN TRANSPORTATION AUTHORITY, THE
NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSIT AUTHORITY (CAPITAL
CONSTRUCTION COMPANY, AND JUDLAU
CONTRACTTNG/TC ELECTRTC, A JOrNT VENTURE,
Defendant(s).
x
ATTORNEYS:
PLEASE TAKE NOTICE that the plaintiffs, by his attorneys, SACKS AND SACKS,
LLP, hereby responds to the demand for a Verified Bill of Particulars by the defendants, based
upon information and belief as follows:
1. Plaintiff s accident occurred on March 28,2019 at approximately 10:00 a.m.
2. Plaintiff s accident occurred at construction work being performed on the MTA's
L line at l4th Street & Avenue A, specifically at street level in the Borough of Manhattan, Crty
and State of New York.
3. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the cleJendnnts ov,Ined,
operated, managed and controlled the aforesaid premises and further retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occu11ence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
allowed the aforesaid excavation machine to be backed over claimant without warning; further,
failed to have signals, b:uzzerc; further, failed to have men guiding the aforesaid machinery
causing same to strike claimant knocking him down causing him to sustain serious and severe
injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate
waming device when the machine was backing, causing dangerous and hazardous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-1.5,23'
|.7, 23-r .8, 23-1.1r,23-r.29, 23-r.31, 23-2.1, 23-2.2, 23-2.3, 23-4, 23-5, 23-6, 23-7 , 23-8, 23-9,
23-9.1, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.10, 23-9.11, Article
1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe injuries.
4. Defendants violated Sections 200,240 and 241(6) of the Labor Law of the State
of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not
limited to:23-1.5,23-1.7,23-1.8,23-1.11,23-1.29,23-1.31,23-2.1,23-2.2,23-2.3,23-4,23-5,
23-6, 23-7 , 23-8, 23-9 , 23-9 .I , 23-9 .2, 23-9 .3, 23-9 .4, 23-9 .5 , 23-9 ,6, 23-9 .7 , 23-9 .8, 23-9 .9, 23-
9.10,23-9.11, Article 1926 of O.S.H.A.
5. Objection, not within the scope of a bill of particulars. See CPLR 3043.
However, without waiving such objection, the claim arose on the 28th day of March, 2019 at
approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the
street level, in the Borough of Manhattan, City and State of New York. At all times herein
mentioned the de.lbndttnt,g owned, operated, managed and controlled the aforesaid premises and
further retained numerous contractors including Rebar Steel Corp. to perform work, labor and
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the
aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was
caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless
and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of
negligence, carelessness and recklessness of the defendants and its contractors who were
negligent in the ownership, operation, management and control of the aforesaid premises. The
defendants and its contractors were negligent, careless and reckless causing serious and severe
injuries to claimant; further, allowed the aforesaid excavation machine to be backed over
claimant without waming; further, failed to have signals, buzzers; further, failed to have men
guiding the aforesaid machinery causing same to strike claimant knocking him down causing
him to sustain serious and severe injuries; further, failed to properly coordinate the trades;
further, failed to have an appropriate warning device when the machine was backing, causing
dangerous andhazardous conditions; further; violated Sections 200,240 and24I(6) of the Labor
Law of the State of New York, Rule 23 of the Industrial Code of the State of New York,
specifically, but not limited to: 23-I.5,23-1.7,23-I.8,23-1.1I,23-I.29,23-I.31,23-2.1,23-2.2,
23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,23-9.1,23-9.2,23-9.3,23-9.4,23-9.5,23-9.6,23-9.7,
23-9.8,23-9.9,23-9.10,23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless
and reckless causing claimant to sustain serious and severe injuries.
6-7. Although actual and constructive notice is not a prerequisite for this action, both
are claimed. Upon information and belief, defendants METROPOLITAN
TRANSPORTATION AUTHORITYO THE NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY)
AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE' retained an
inspection firm, site safety personnel, general contractor, site supervisor and/or designated
METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL
CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A
JOINT VENTURE, to monitor the work being performed. Plaintiff believes that either the
inspection firm, site safety personnel, general contractor, site supervisor andlor the designated
personnel, who acted as agents of METROPOLITAN TRANSPORTATION AUTHORITY'
THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT
AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU
CONTRACTING/TC ELECTRIC, A JOINT VENTURE, had actual knowledge of the
worksite conditions which they were monitoring andlor observing andlor inspecting pursuant to
their contract and/or employment responsibilities with METROPOLITAN
TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY)
AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, to eNSufE
contractual compliance with job specifications and architectural drawings. At this time, plaintiff
does not know the names of other inspectors, site safety personnel, general contractors
METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY
TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL
CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A
JOINT VENTURE site supervisors or assistant site supervisors but will supplement this
response upon receipt of this information.
Although actual and constructive notice is not a prerequisite for this action, both are
claimed. Upon information and belief, defendants, METROPOLITAN TRANSPORTATION
AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN
TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU
CONTRACTING/TC ELECTRIC, A JOINT VENTURE, retained an inspection firm, site
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
safety personnel, general contractor, site supervisor and/or designated METROPOLITAN
TRANSPORTATION AUTHORITYO THE NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY)
AND JUDLAU CONTRACTING/TC ELECTRIC' A JOINT VENTURE personnel, who
acted as agents of METROPOLITAN TRANSPORTATION AUTHORITY' THE NEW
YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY
(CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC
ELECTRIC, A JOINT VENTURE, to monitor the work being performed. Plaintiff believes
that either the inspection firm, site safety personnel, general contractor, site supervisor andlor the
designated personnel, who acted as agents of METROPOLITAN TRANSPORTATION
AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN
TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU
CONTRACTING/TC ELECTRIC, A JOINT VENTURE had constructive knowledge of the
worksite conditions which they were monitoring andlor observing andlor inspecting pursuant to
their contract and/or employment responsibilities with, to ensure contractual compliance with job
specifications and architectural drawings. At this time, plaintiff does not know the names of
other inspectors, site safety personnel, general contractors, site supervisors or assistant site
supervisors but will supplement this response upon receipt of this information.
Notice is not a requisite to recovery in this action. However, both actual and constructive
notice is alleged. The name of the person and persons to whom notice was given is not known at
the present time and will be provided if and when it is available. Constructive notice is alleged
because said condition existed several hours to several days prior to the happening of plaintiffs
accident.
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
8 Iniuries:
LUMBAR SPINE:
Disc herniation at L5-S1 with annular tear;
Central disc herniation at L4-L5;
Disc bulge atTI2-LI;
Radiculopathy at L5;
Intemal derangement;
Restriction of motion;
Severe pain;
Stiffness;
Activation of any pre-existing degenerative changes that were entirely
asymptomatic on the date of the accident;
Post traumatic arthritis has developed and will continue develop over the course
of plaintiff s lifetime.
*Surgical intervention may be required in the future.
RIGHT HIP:
Internal derangement;
Restriction of motion;
Severe pain;
Stiffness;
Activation of any pre-existing degenerative changes that were entirely
asymptomatic on the date of the accident;
Post traumatic arthritis has developed and will continue develop over the course
of plaintiff s lifetime.
*surgical intervention may be required in the future.
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
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All of plaintiffs injuries have already required extensive orthopedic care, neurological
care, physical therapy and will in the future, require further medical care and treatment including
physical therapy, orthopedic care and the need for future surgical intervention.
All of the above injuries were attendant with extreme pain and suffering and have
affected plaintiffs bodily systems and the skin, nerves, bones, tissues, tendons, muscles, blood
vessels and other tissues. All of the above injuries and ill effects there from are permanent in
nature exceot those o f a suoerficial nature
Further, plaintiff, GREG ROHLES will likely require lifetime medical care as a
result of the injuries sustained including orthopedic evaluation, neurological evaluations,
physical therapy, pain management, diagnostic tests including X-rays, MRI's, CT-Scans and
EMG's of the affected areas above, lifetime medications including: pain killers, anti-
inflammatories, sleep medication and anti-depressants, lifetime assistance of aides including but
not limited to cane, walker, braces, and other devices, will require lifetime household services in
cleaning as well as multiple future surgical procedures to the above effected areas. The full
amounts for monies needed for plaintiff s medical care at this date is not known but will be set
forth in a life care plan prior to trial.
9. Plaintiff has been confined to bed and home, except for necessary visits to
healthcare providers for approximately four weeks in total since the date of the accident.
Plaintiff has not been hospitalized to date as a result of the accident.
10. At the time of the accident plaintiff was employed as a Union Laborer with Rebar
Steel Corp. and was earning approximately $90.00 per hour in union wages and benefits.
Plaintiff has been completely and totally disabled from his normal vocation as a Union Laborer
from the day after the accident up to the present time and for an indefinite time in the future. If
plaintiff is unable to return to his normal vocation as a Union Laborer, plaintiff will claim
approximately $150,000.00 per year and all lost wages and union benefits including but not
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
limited to loss of annuity, loss of wage, loss of family health coverage, loss of vacation pay, and
loss of pension or severe dimunition of the same. Plaintiff reserves the right to supplement this
response pursuant to the CPLR with expert economic exchanges.
11. Based upon information and belief, all of plaintiffs medical expenses to date
have been paid by workers' compensation. Plaintiffs workers' compensation carrier is State
Insurance Fund, 199 Church Street, New York, New York 10007, carrier case number:
72011448-127, WCB# 02474561.
It is claimed in the future that plaintiff will require additional medical care over the course
of his lifetime including doctors' visits, hospitalizations, surgery, radiological exams, and
multiple forms of therapy, medications and modifications to his home as well as assistive
devices. All the same will be testified to at the time of trial by plaintiffs treating physicians and
plaintiff reserves the right to exchange an expert report by a life care plan pursuant to the CPLR.
12. Plaintiff resides at 27 South Ridgefield Road, Hewitt, New Jersey 07421 on the
date of the accident and at the current time.
13. Plaintiffs date of birth is ____.
14. Plaintiffs social security number is .
15. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the defendants owned,
operated, managed and controlled the aforesaid premises and further retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
allowed the aforesaid excavation machine to be backed over claimant without waming; further,
failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery
causing same to strike claimant knocking him down causing him to sustain serious and severe
injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate
waming device when the machine was backing, causing dangerous and hazardous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York, specifically, but not limited to 23-1.5, 23-
r.7,23-1.8,23-1.11,23-1.29,23-1.31,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,
23-9.1,23-9.2,23-9.3,23-9.4,23-9.5,23-9.6,23-9.7,23-9.8,23-9.9,23-9.r0,23-9.r1, Article
t926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe injuries.
16. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the deJbndaLrl.s owned,
operated, managed and controlled the aforesaid premises and further retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
allowed the aforesaid excavation machine to be backed over claimant without waming; further,
failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery
causing same to strike claimant knocking him down causing him to sustain serious and severe
injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate
warning device when the machine was backing, causing dangerous and hazardous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York, specifically, but not limited to:23-1.5,23-
1.7,23-1.9,23-1.11,23-1.29,23-r.31,23-2.r,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-9,23-9,
23-9.r, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.10, 23-9.11, Article
1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe iniuries.
17. Objection, not within the scope of a bill of particulars. See CPLR 3043.
18. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the defbndanls owned,
operated, managed and controlled the aforesaid premises and fuither retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
allowed the aforesaid excavation machine to be backed over claimant without warning; further,
failed to have signals, buzzerc; further, failed to have men guiding the aforesaid machinery
causing same to strike claimant knocking him down causing him to sustain serious and severe
injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate
warning device when the machine was backing, causing dangerous and hazardous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York, specifically, but not limited to:23-1.5,23-
r.7,23-r.8,23-1.11,23-1.29,23-r.3r,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,
23-9.1, 23-9.2, 23-9.3,23-9.4, 23-9.5,23-9.6, 23-9.7, 23-9.8, 23-9.9,23-9.10, 23-9.11, Article
1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe injuries.
19. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the defendtrnls owned,
operated, managed and controlled the aforesaid premises and further retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occuffence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
allowed the aforesaid excavation machine to be backed over claimant without warning; further,
failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
causing same to strike claimant knocking him down causing him to sustain serious and severe
injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate
warning device when the machine was backing, causing dangerous and hazardous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 ofthe Industrial Code of the State of New York, specifically, butnot limited to:23-1.5,23-
1.7,23-1.9,23-r.11,23-1.29,23-r.31,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,
23-9.r, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.r0, 23-9.11, Article
1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe iniuries.
20. Duplicativedemand.
21. Please see plaintiffs response to combined demands for a list of healthcare
providers.
22. Objection, not within the scope of a bill of particulars. See CPLR 3043.
23. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the oL' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the defendants owned,
operated, managed and controlled the aforesaid premises and further retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
allowed the aforesaid excavation machine to be backed over claimant without waming; frrther,
failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery
causing same to strike claimant knocking him down causing him to sustain serious and severe
injtnies; further, failed to properly coordinate the trades; further, failed to have an appropriate
warning device when the machine was backing, causing dangerous and hazardous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-1.5, 23-
r.7,23-1.8,23-r.rr,23-1.29,23-1.3r,23-2.r,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,
23-9.1, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.r0, 23-9.r1, Article
1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe injuries.
24. Objection, not within the scope of a bill of particulars. See CPLR 3043.
25. Not applicable.
26. Objection, not within the scope of a bill of particulars. See CPLR 3043.
27-29. Not applicable.
30. Objection, not within the scope of a bill of particulars. See CPLR 3043.
31. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at
the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of
Manhattan, City and State of New York. At all times herein mentioned the tlefentlcrl?t.r
owned,
operated, managed and controlled the aforesaid premises and further retained numerous
contractors including Rebar Steel Corp. to perform work, labor and services thereat. While
claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel
Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a
CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The
occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
and recklessness of the defendants and its contractors who were negligent in the ownership,
operation, management and control of the aforesaid premises. The defendants and its contractors
were negligent, careless and reckless causing serious and severe injuries to claimant; further,
allowed the aforesaid excavation machine to be backed over claimant without warning; further,
failed to have signals, buzzers; fuilher, failed to have men guiding the aforesaid machinery
causing same to strike claimant knocking him down causing him to sustain serious and severe
injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate
waming device when the machine was backing, causing dangerous and hazndous conditions;
further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York, specifically, butnot limited to 23-1.5,23-
1.7,23-1.8,23-r.1r,23-r.29,23-1.31,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,
23-9.r, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.10, 23-9.11, Article
1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain
serious and severe injuries.
32. Objection, not within the scope of a bill of particulars. See CPLR 3043.
33. Objection, not within the scope of a bill of particulars. See CPLR 3043.
34. Not applicable.
35. Duplicative demand.
36. Duplicative demand.
37. Not applicable.
38. Not applicable.
39. Not applicable.
40. Not applicable.
41. Duplicative demand.
42-44. Not applicable.
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
DATED: NEW YORK, NEW YORK
December 3,2019
Yours,
SA
DAVID H. MAYER, ESQ.
Attorneys for Plaintiff
150 Broadway - 4thFloor
New York, N.Y. 10038
(2t2) 964-ss70
TO
WILSON ELSER MOSKOWITZ
EDELMAN & DICIGR LLP
Attorneys for Defendants
METROPOLITAN TRANSPORTATION AUTHORITY
THE NEW YORK CITY TRANSIT AUTHORITY
METROPOLITAN TRANSIT AUTHORITY
(CAPTTAL CONSTRUCTION COMpANyo AND
JUDLAU CONTRACTING/TC ELf, CTRTC,
A JOINT VENTURE
150 E. 42nd Street
New York, New York 10017
(212) 490-3000
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022
VERIFICA
I, DAVID H. MAYER, an attorney duly admitted to practice in the courts of New York
State, and say that: I am the attorney of record, or of counsel with the attorney(s) of record, for
the plaintiff(s), I have read the annexed VERIFIED BILL OF PARTICULARS know the
contents thereof and the same are true to my knowledge, except those matters therein which are
stated to be alleged on information and belief, and as to those matters I believe them to be true.
My belief, as to those matters therein not stated upon knowledge, is based upon the following:
facts, investigations and pertinent data contained in deponent's file.
The reason I make this affirmation instead of plaintiff is because plaintiff(
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K. QUILLIN VS. NOELLE BECKER MORENO ET AL
Jul 10, 2024 |
CGC24611734
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance. Appear to address the status of case following the unsuccessful mediation
and whether it is time to set this matter for trial.
Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 EXHIBIT 1 FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 SUPREME COURT OF'THE STATE OF'NEW YORI( COUNTY OF NEW YORK GREG ROHLES, VERIF'IED BILL OF PARTICULARS Plaintffis), Index No.: 157185/2019 -against- METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY, AND JUDLAU CONTRACTTNG/TC ELECTRTC, A JOrNT VENTURE, Defendant(s). x ATTORNEYS: PLEASE TAKE NOTICE that the plaintiffs, by his attorneys, SACKS AND SACKS, LLP, hereby responds to the demand for a Verified Bill of Particulars by the defendants, based upon information and belief as follows: 1. Plaintiff s accident occurred on March 28,2019 at approximately 10:00 a.m. 2. Plaintiff s accident occurred at construction work being performed on the MTA's L line at l4th Street & Avenue A, specifically at street level in the Borough of Manhattan, Crty and State of New York. 3. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the cleJendnnts ov,Ined, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occu11ence as aforesaid was caused solely and wholly by the reason of negligence, carelessness FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, allowed the aforesaid excavation machine to be backed over claimant without warning; further, failed to have signals, b:uzzerc; further, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate waming device when the machine was backing, causing dangerous and hazardous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-1.5,23' |.7, 23-r .8, 23-1.1r,23-r.29, 23-r.31, 23-2.1, 23-2.2, 23-2.3, 23-4, 23-5, 23-6, 23-7 , 23-8, 23-9, 23-9.1, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.10, 23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe injuries. 4. Defendants violated Sections 200,240 and 241(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to:23-1.5,23-1.7,23-1.8,23-1.11,23-1.29,23-1.31,23-2.1,23-2.2,23-2.3,23-4,23-5, 23-6, 23-7 , 23-8, 23-9 , 23-9 .I , 23-9 .2, 23-9 .3, 23-9 .4, 23-9 .5 , 23-9 ,6, 23-9 .7 , 23-9 .8, 23-9 .9, 23- 9.10,23-9.11, Article 1926 of O.S.H.A. 5. Objection, not within the scope of a bill of particulars. See CPLR 3043. However, without waiving such objection, the claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the de.lbndttnt,g owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, allowed the aforesaid excavation machine to be backed over claimant without waming; further, failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate warning device when the machine was backing, causing dangerous andhazardous conditions; further; violated Sections 200,240 and24I(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-I.5,23-1.7,23-I.8,23-1.1I,23-I.29,23-I.31,23-2.1,23-2.2, 23-2.3,23-4,23-5,23-6,23-7,23-8,23-9,23-9.1,23-9.2,23-9.3,23-9.4,23-9.5,23-9.6,23-9.7, 23-9.8,23-9.9,23-9.10,23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe injuries. 6-7. Although actual and constructive notice is not a prerequisite for this action, both are claimed. Upon information and belief, defendants METROPOLITAN TRANSPORTATION AUTHORITYO THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE' retained an inspection firm, site safety personnel, general contractor, site supervisor and/or designated METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, to monitor the work being performed. Plaintiff believes that either the inspection firm, site safety personnel, general contractor, site supervisor andlor the designated personnel, who acted as agents of METROPOLITAN TRANSPORTATION AUTHORITY' THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, had actual knowledge of the worksite conditions which they were monitoring andlor observing andlor inspecting pursuant to their contract and/or employment responsibilities with METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, to eNSufE contractual compliance with job specifications and architectural drawings. At this time, plaintiff does not know the names of other inspectors, site safety personnel, general contractors METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE site supervisors or assistant site supervisors but will supplement this response upon receipt of this information. Although actual and constructive notice is not a prerequisite for this action, both are claimed. Upon information and belief, defendants, METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, retained an inspection firm, site FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 safety personnel, general contractor, site supervisor and/or designated METROPOLITAN TRANSPORTATION AUTHORITYO THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC' A JOINT VENTURE personnel, who acted as agents of METROPOLITAN TRANSPORTATION AUTHORITY' THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, to monitor the work being performed. Plaintiff believes that either the inspection firm, site safety personnel, general contractor, site supervisor andlor the designated personnel, who acted as agents of METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL CONSTRUCTION COMPANY) AND JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE had constructive knowledge of the worksite conditions which they were monitoring andlor observing andlor inspecting pursuant to their contract and/or employment responsibilities with, to ensure contractual compliance with job specifications and architectural drawings. At this time, plaintiff does not know the names of other inspectors, site safety personnel, general contractors, site supervisors or assistant site supervisors but will supplement this response upon receipt of this information. Notice is not a requisite to recovery in this action. However, both actual and constructive notice is alleged. The name of the person and persons to whom notice was given is not known at the present time and will be provided if and when it is available. Constructive notice is alleged because said condition existed several hours to several days prior to the happening of plaintiffs accident. FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 8 Iniuries: LUMBAR SPINE: Disc herniation at L5-S1 with annular tear; Central disc herniation at L4-L5; Disc bulge atTI2-LI; Radiculopathy at L5; Intemal derangement; Restriction of motion; Severe pain; Stiffness; Activation of any pre-existing degenerative changes that were entirely asymptomatic on the date of the accident; Post traumatic arthritis has developed and will continue develop over the course of plaintiff s lifetime. *Surgical intervention may be required in the future. RIGHT HIP: Internal derangement; Restriction of motion; Severe pain; Stiffness; Activation of any pre-existing degenerative changes that were entirely asymptomatic on the date of the accident; Post traumatic arthritis has developed and will continue develop over the course of plaintiff s lifetime. *surgical intervention may be required in the future. FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 All of plaintiffs injuries have already required extensive orthopedic care, neurological care, physical therapy and will in the future, require further medical care and treatment including physical therapy, orthopedic care and the need for future surgical intervention. All of the above injuries were attendant with extreme pain and suffering and have affected plaintiffs bodily systems and the skin, nerves, bones, tissues, tendons, muscles, blood vessels and other tissues. All of the above injuries and ill effects there from are permanent in nature exceot those o f a suoerficial nature Further, plaintiff, GREG ROHLES will likely require lifetime medical care as a result of the injuries sustained including orthopedic evaluation, neurological evaluations, physical therapy, pain management, diagnostic tests including X-rays, MRI's, CT-Scans and EMG's of the affected areas above, lifetime medications including: pain killers, anti- inflammatories, sleep medication and anti-depressants, lifetime assistance of aides including but not limited to cane, walker, braces, and other devices, will require lifetime household services in cleaning as well as multiple future surgical procedures to the above effected areas. The full amounts for monies needed for plaintiff s medical care at this date is not known but will be set forth in a life care plan prior to trial. 9. Plaintiff has been confined to bed and home, except for necessary visits to healthcare providers for approximately four weeks in total since the date of the accident. Plaintiff has not been hospitalized to date as a result of the accident. 10. At the time of the accident plaintiff was employed as a Union Laborer with Rebar Steel Corp. and was earning approximately $90.00 per hour in union wages and benefits. Plaintiff has been completely and totally disabled from his normal vocation as a Union Laborer from the day after the accident up to the present time and for an indefinite time in the future. If plaintiff is unable to return to his normal vocation as a Union Laborer, plaintiff will claim approximately $150,000.00 per year and all lost wages and union benefits including but not FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 limited to loss of annuity, loss of wage, loss of family health coverage, loss of vacation pay, and loss of pension or severe dimunition of the same. Plaintiff reserves the right to supplement this response pursuant to the CPLR with expert economic exchanges. 11. Based upon information and belief, all of plaintiffs medical expenses to date have been paid by workers' compensation. Plaintiffs workers' compensation carrier is State Insurance Fund, 199 Church Street, New York, New York 10007, carrier case number: 72011448-127, WCB# 02474561. It is claimed in the future that plaintiff will require additional medical care over the course of his lifetime including doctors' visits, hospitalizations, surgery, radiological exams, and multiple forms of therapy, medications and modifications to his home as well as assistive devices. All the same will be testified to at the time of trial by plaintiffs treating physicians and plaintiff reserves the right to exchange an expert report by a life care plan pursuant to the CPLR. 12. Plaintiff resides at 27 South Ridgefield Road, Hewitt, New Jersey 07421 on the date of the accident and at the current time. 13. Plaintiffs date of birth is ____. 14. Plaintiffs social security number is . 15. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the defendants owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, allowed the aforesaid excavation machine to be backed over claimant without waming; further, failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate waming device when the machine was backing, causing dangerous and hazardous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to 23-1.5, 23- r.7,23-1.8,23-1.11,23-1.29,23-1.31,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9, 23-9.1,23-9.2,23-9.3,23-9.4,23-9.5,23-9.6,23-9.7,23-9.8,23-9.9,23-9.r0,23-9.r1, Article t926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe injuries. 16. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the deJbndaLrl.s owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 were negligent, careless and reckless causing serious and severe injuries to claimant; further, allowed the aforesaid excavation machine to be backed over claimant without waming; further, failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate warning device when the machine was backing, causing dangerous and hazardous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to:23-1.5,23- 1.7,23-1.9,23-1.11,23-1.29,23-r.31,23-2.r,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-9,23-9, 23-9.r, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.10, 23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe iniuries. 17. Objection, not within the scope of a bill of particulars. See CPLR 3043. 18. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the defbndanls owned, operated, managed and controlled the aforesaid premises and fuither retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 allowed the aforesaid excavation machine to be backed over claimant without warning; further, failed to have signals, buzzerc; further, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate warning device when the machine was backing, causing dangerous and hazardous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to:23-1.5,23- r.7,23-r.8,23-1.11,23-1.29,23-r.3r,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9, 23-9.1, 23-9.2, 23-9.3,23-9.4, 23-9.5,23-9.6, 23-9.7, 23-9.8, 23-9.9,23-9.10, 23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe injuries. 19. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the defendtrnls owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occuffence as aforesaid was caused solely and wholly by the reason of negligence, carelessness and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, allowed the aforesaid excavation machine to be backed over claimant without warning; further, failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate warning device when the machine was backing, causing dangerous and hazardous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 ofthe Industrial Code of the State of New York, specifically, butnot limited to:23-1.5,23- 1.7,23-1.9,23-r.11,23-1.29,23-r.31,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9, 23-9.r, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.r0, 23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe iniuries. 20. Duplicativedemand. 21. Please see plaintiffs response to combined demands for a list of healthcare providers. 22. Objection, not within the scope of a bill of particulars. See CPLR 3043. 23. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the oL' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the defendants owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 allowed the aforesaid excavation machine to be backed over claimant without waming; frrther, failed to have signals, buzzers; further, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injtnies; further, failed to properly coordinate the trades; further, failed to have an appropriate warning device when the machine was backing, causing dangerous and hazardous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-1.5, 23- r.7,23-1.8,23-r.rr,23-1.29,23-1.3r,23-2.r,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9, 23-9.1, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.r0, 23-9.r1, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe injuries. 24. Objection, not within the scope of a bill of particulars. See CPLR 3043. 25. Not applicable. 26. Objection, not within the scope of a bill of particulars. See CPLR 3043. 27-29. Not applicable. 30. Objection, not within the scope of a bill of particulars. See CPLR 3043. 31. The claim arose on the 28th day of March, 2019 at approximately 10:00 a.m. at the 'L' line on 14th Street and Avenue A, more specifically on the street level, in the Borough of Manhattan, City and State of New York. At all times herein mentioned the tlefentlcrl?t.r owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including Rebar Steel Corp. to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid Rebar Steel Corp. he was caused to sustain serious and severe injuries when he was caused to be struck by a CAT 315 excavation machine that was driven in a negligent, careless and reckless manner. The occurrence as aforesaid was caused solely and wholly by the reason of negligence, carelessness FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 and recklessness of the defendants and its contractors who were negligent in the ownership, operation, management and control of the aforesaid premises. The defendants and its contractors were negligent, careless and reckless causing serious and severe injuries to claimant; further, allowed the aforesaid excavation machine to be backed over claimant without warning; further, failed to have signals, buzzers; fuilher, failed to have men guiding the aforesaid machinery causing same to strike claimant knocking him down causing him to sustain serious and severe injuries; further, failed to properly coordinate the trades; further, failed to have an appropriate waming device when the machine was backing, causing dangerous and hazndous conditions; further; violated Sections 200,240 and24l(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, butnot limited to 23-1.5,23- 1.7,23-1.8,23-r.1r,23-r.29,23-1.31,23-2.1,23-2.2,23-2.3,23-4,23-5,23-6,23-7,23-8,23-9, 23-9.r, 23-9.2, 23-9.3, 23-9.4, 23-9.5, 23-9.6, 23-9.7, 23-9.8, 23-9.9, 23-9.10, 23-9.11, Article 1926 of O.S.H.A. and was otherwise negligent, careless and reckless causing claimant to sustain serious and severe injuries. 32. Objection, not within the scope of a bill of particulars. See CPLR 3043. 33. Objection, not within the scope of a bill of particulars. See CPLR 3043. 34. Not applicable. 35. Duplicative demand. 36. Duplicative demand. 37. Not applicable. 38. Not applicable. 39. Not applicable. 40. Not applicable. 41. Duplicative demand. 42-44. Not applicable. FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 DATED: NEW YORK, NEW YORK December 3,2019 Yours, SA DAVID H. MAYER, ESQ. Attorneys for Plaintiff 150 Broadway - 4thFloor New York, N.Y. 10038 (2t2) 964-ss70 TO WILSON ELSER MOSKOWITZ EDELMAN & DICIGR LLP Attorneys for Defendants METROPOLITAN TRANSPORTATION AUTHORITY THE NEW YORK CITY TRANSIT AUTHORITY METROPOLITAN TRANSIT AUTHORITY (CAPTTAL CONSTRUCTION COMpANyo AND JUDLAU CONTRACTING/TC ELf, CTRTC, A JOINT VENTURE 150 E. 42nd Street New York, New York 10017 (212) 490-3000 FILED: NEW YORK COUNTY CLERK 05/11/2022 04:49 PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/11/2022 VERIFICA I, DAVID H. MAYER, an attorney duly admitted to practice in the courts of New York State, and say that: I am the attorney of record, or of counsel with the attorney(s) of record, for the plaintiff(s), I have read the annexed VERIFIED BILL OF PARTICULARS know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: facts, investigations and pertinent data contained in deponent's file. The reason I make this affirmation instead of plaintiff is because plaintiff(