Preview
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021
Exhibit
E
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
DENISE CLAY, Individually and as Administratrix of
the Estate of RANDALL CLAY;
THADDEUS C. TOMAKA, Individually and as
Executor of the Estate of LILLIAN TOMAKA;
ARDITH E. BULMAHN, Individually and as
Administratrix of the Estate of DONALD BULMAHN;
ALBERT YOUNG, Individually and as Executor of
the Estate of LULA STEVENS;
BRENDA BARNES, Individually and as Administratrix DEMAND FOR A
De Bonis Non of the Estate of VERIFIED BILL OF
JOHN ANTHONY DOBBINS; PARTICULARS TO
VELPO JOHNSON, III, Individually and as Executor of PLAINTIFF, VELPO
the Estate of WILLIE LEE STEWART; JOHNSON, III,
DIANE ANTKOWIAK and DAVID JANUSZ, INDIVIDUALLY AND
Individually and as Co-Executors of the Estate of AS EXECUTOR OF THE
LEOCADIA FRANUSIAK; and on behalf of all ESTATE OF WILLIE
others similarly situated, LEE STEWART
Plaintiffs, Index No.: I2010-3907
vs.
RIDGE VIEW MANOR, LLC;
WILLIAMSVILLE SUBURBAN, LLC;
SHERIDAN MANOR, LLC;
LEGACY HEALTH CARE, LLC;
W. RICHARD ZACHER (Incorrectly sued herein as
RICHARD ZACHER); and
JOHN DOES 1-200,
Defendants.
PLEASE TAKE NOTICE that, pursuant to Rule 3041 et sequitur of the CPLR, plaintiff,
VELPO JOHNSON, III (hereinafter “plaintiff”), is hereby required to serve upon the
undersigned attorneys for defendants, LEGACY HEALTH CARE, LLC; W. RICHARD
ZACHER (Incorrectly sued herein as RICHARD ZACHER); and JOHN DOES 1-200 (hereinafter
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021
“defendants”), within THIRTY (30) days after the service of this demand, a Verified Bill of
Particulars of the Complaint, setting forth in detail the following:
DEMAND NO. 1
The manner and respect in which it is claimed defendants, were negligent, careless, and
unskillful including, but not limited to, how defendants failed to exercise due and reasonable care
under the circumstances in rendering care and treatment to the plaintiff’s decedent, WILLIE LEE
STEWART (hereinafter “decedent”), so as to avoid injury to decedent.
DEMAND NO. 2
State decedent’s condition which it is claimed that defendants failed to take due and proper
cognizance of, and the true condition from which the decedent was suffering, which it is claimed
that defendants failed to guard and treat against.
DEMAND NO. 3
The place or places where the services were rendered by defendants.
DEMAND NO. 4
The nature, location, extent, and duration of each injury it will be claimed was caused by
the negligence of defendants.
DEMAND NO. 5
Pursuant to the authority of Webb-Weber v Community Action for Human Services, Inc.,
23 N.Y.3d 448 (2014), and Neissel v Rensselaer Polytechnic Inst., 30 A.D.3d 881 (3rd Dept. 2006),
identify each section of every statute, code, regulation, and/or ordinance which plaintiff will claim
defendants violated and as to each such alleged violation:
a. State the manner and respect in which it is claimed that defendants violated each
statute, code regulation, and/or ordinance set forth above; and
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b. As to each such alleged violation, identify the agent or employee or other
representative of defendants for whom plaintiff would hold defendants vicariously
liable whom plaintiff alleges committed the violation.
DEMAND NO. 6
If it will be claimed defendants violated any right or benefit of the decedent, identify each
and every such right and/or benefit plaintiff claims was violated and as to each such alleged
violation:
a. State the date of each and every alleged violation as claimed above;
b. Set forth the source of each such right and/or benefit claimed to have been violated,
specifically identifying whether such right and/or benefit was created by the
following:
1. The terms of any contract and, if so, the date and signatories to such
contract;
2. State statute;
3. State rule or regulation;
4. State code;
5. Federal statute;
6. Federal code; and/or
7. Federal rule or regulation;
c. Identify each section and subsection of every contract, statute, code, regulation,
rule, and ordinance set forth above as the source of each right or benefit defendants
alleged to have violated; and
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d. If it will be claimed that the decedent suffered injuries as a result of a violation of
any of the above rights and/or benefits, state the nature, location, extent, and
duration of each such injury.
DEMAND NO. 7
State with particularity each other act and/or omission on the part of defendants not
included above which plaintiff will claim constituted a violation of a right and/or benefit of the
decedent.
DEMAND NO. 8
A particular statement setting forth the name and address of each and every physician who
rendered treatment to the decedent as a result of the injuries alleged in the Complaint, providing
the dates of all such treatment.
DEMAND NO. 9
A particular statement setting forth the name and address of each and every physician who
rendered treatment to the decedent, prior to the date(s) of the alleged negligence/violation, for the
injuries and/or conditions alleged in the Complaint, providing the dates of all such treatment.
DEMAND NO. 10
If it will be claimed that the aforesaid injuries necessitated any hospitalization or treatment
at a health care facility, set forth the name of each hospital or health care facility with the dates of
confinement or outpatient treatment.
DEMAND NO. 11
If it will be claimed that the aforesaid injuries necessitated treatment by any other facility
or institution, set forth the name of each facility and/or institution with dates of confinement or
outpatient treatment.
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DEMAND NO. 12
If it will be claimed that the aforesaid injuries necessitated confinement to bed or home,
set forth the following:
a. The date or dates of confinement to home; and
b. The date or dates of confinement to bed.
DEMAND NO. 13
If any special damages are claimed as a result of the alleged negligence or violation by
defendants, set forth the following:
a. The charges for the above-named hospitals, health care facilities, or any other
facilities or institutions, separately listing each hospital or other facility bill;
b. Physicians’ charges, separately listing each such physician and the amount of
special damages claimed;
c. Charges for medicines, itemizing the medicines charged; and
d. Chares for nursing care.
DEMAND NO. 14
A particular statement as to each of the aforesaid amounts of money paid on behalf of the
decedent setting forth which, if any, were covered by insurance, the name of the insurance
company involved in each case, and the amount paid in each case by said insurance company.
DEMAND NO. 15
If any of the said amounts were reimbursed to plaintiff or his/her decedent or paid directly
by a source other than insurance, a particular statement as to each setting forth the source involved
and the amount paid.
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DEMAND NO. 16
Set forth the nature and amount of each and every other claim for damages and/or fees not
specified above including, but not limited to:
a. Punitive damages;
b. Attorneys’ fees;
c. Specify the basis for each claim(s) for the damage(s) and/or fee(s) set forth above;
and
d. If punitive damages will be claimed, state in what manner/respect it is claimed that
defendants’ conduct was willful, reckless, and/or grossly negligent.
DEMAND NO. 17
Set forth the nature of affinity between plaintiff, VELPO JOHNSON, III, and decedent.
DEMAND NO. 18
State the names, addresses, and ages of decedent’s distributes at the time of decedent’s
death.
DEMAND NO. 19
State the date and place of decedent’s birth including decedent’s name at the time of birth.
DEMAND NO. 20
State with particularity each and every other act or omission not included above which
plaintiff will claim constituted negligence on the part of defendants.
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021
DEMAND NO. 21
State with particularity each and every other act or omission not included above which
plaintiff will claim constituted a violation of a statute, regulation, code, or ordinance with respect
to defendants’ provision of services to decedent.
DEMAND NO. 22
State whether plaintiff and/or decedent made a claim or claims against any other party,
individual, or entity arising out of the facts and circumstances giving rise to this suit, specifying
the following:
a. The name of each such person(s) or entities against whom additional claims are
being made or have been made;
b. Whether or not those claims have been placed into suit and, if so, state the title,
venue, and index number for each such action;
c. Attach copies of any pleadings or claims served in said action or actions; and
d. State whether or not such claim or action has been settled or otherwise resolved
and, if so, state the amount of such settlement and the parties with whom such
settlement was entered into; if otherwise resolved, set forth a statement of the
manner in which it was otherwise resolved and attach copies of general releases or
stipulations of discontinuance evidencing such settlement, resolution, or
discontinuance.
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021
The foregoing demands are served with respect to the plaintiffs’ pending Motion for Class
Certification and defendants hereby expressly reserve the right to serve a further Demand for a
Verified Bill of Particulars should the plaintiffs be successful upon their Motion for Class
Certification.
DATED: Buffalo, New York
June 17, 2020
s/ Norman B. Viti, Jr.
Norman B. Viti, Jr., Esq.
Melissa M. Morton, Esq.
GIBSON, McASKILL & CROSBY, LLP
Attorneys for Defendants
LEGACY HEALTH CARE, LLC,
W. RICHARD ZACHER (Incorrectly sued herein
as RICHARD ZACHER) and
JOHN DOES 1-200
(as they apply to the aforementioned Defendants)
69 Delaware Avenue, Suite 900
Buffalo, New York 14202-3866
Telephone: (716) 856-4200
TO: Michael C. Scinta, Esq.
Nicole T.C. Marques, Esq.
BROWN CHIARI, LLP
Attorneys for Plaintiffs
2470 Walden Avenue, Suite 300
Buffalo, New York 14225
Telephone: (716) 681-7190
Patrick B. Curran, Esq.
HURWITZ & FINE, P.C.
Attorneys for Defendants
RIDGE VIEW MANOR, LLC,
WILLIAMSVILLE SUBURBAN, LLC, and
SHERIDAN MANOR, LLC
1300 Liberty Building
424 Main Street
Buffalo, New York 14202
Telephone: (716) 849-8900
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Preview
FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 Exhibit E FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE DENISE CLAY, Individually and as Administratrix of the Estate of RANDALL CLAY; THADDEUS C. TOMAKA, Individually and as Executor of the Estate of LILLIAN TOMAKA; ARDITH E. BULMAHN, Individually and as Administratrix of the Estate of DONALD BULMAHN; ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA BARNES, Individually and as Administratrix DEMAND FOR A De Bonis Non of the Estate of VERIFIED BILL OF JOHN ANTHONY DOBBINS; PARTICULARS TO VELPO JOHNSON, III, Individually and as Executor of PLAINTIFF, VELPO the Estate of WILLIE LEE STEWART; JOHNSON, III, DIANE ANTKOWIAK and DAVID JANUSZ, INDIVIDUALLY AND Individually and as Co-Executors of the Estate of AS EXECUTOR OF THE LEOCADIA FRANUSIAK; and on behalf of all ESTATE OF WILLIE others similarly situated, LEE STEWART Plaintiffs, Index No.: I2010-3907 vs. RIDGE VIEW MANOR, LLC; WILLIAMSVILLE SUBURBAN, LLC; SHERIDAN MANOR, LLC; LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER (Incorrectly sued herein as RICHARD ZACHER); and JOHN DOES 1-200, Defendants. PLEASE TAKE NOTICE that, pursuant to Rule 3041 et sequitur of the CPLR, plaintiff, VELPO JOHNSON, III (hereinafter “plaintiff”), is hereby required to serve upon the undersigned attorneys for defendants, LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER (Incorrectly sued herein as RICHARD ZACHER); and JOHN DOES 1-200 (hereinafter FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 “defendants”), within THIRTY (30) days after the service of this demand, a Verified Bill of Particulars of the Complaint, setting forth in detail the following: DEMAND NO. 1 The manner and respect in which it is claimed defendants, were negligent, careless, and unskillful including, but not limited to, how defendants failed to exercise due and reasonable care under the circumstances in rendering care and treatment to the plaintiff’s decedent, WILLIE LEE STEWART (hereinafter “decedent”), so as to avoid injury to decedent. DEMAND NO. 2 State decedent’s condition which it is claimed that defendants failed to take due and proper cognizance of, and the true condition from which the decedent was suffering, which it is claimed that defendants failed to guard and treat against. DEMAND NO. 3 The place or places where the services were rendered by defendants. DEMAND NO. 4 The nature, location, extent, and duration of each injury it will be claimed was caused by the negligence of defendants. DEMAND NO. 5 Pursuant to the authority of Webb-Weber v Community Action for Human Services, Inc., 23 N.Y.3d 448 (2014), and Neissel v Rensselaer Polytechnic Inst., 30 A.D.3d 881 (3rd Dept. 2006), identify each section of every statute, code, regulation, and/or ordinance which plaintiff will claim defendants violated and as to each such alleged violation: a. State the manner and respect in which it is claimed that defendants violated each statute, code regulation, and/or ordinance set forth above; and -2- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 b. As to each such alleged violation, identify the agent or employee or other representative of defendants for whom plaintiff would hold defendants vicariously liable whom plaintiff alleges committed the violation. DEMAND NO. 6 If it will be claimed defendants violated any right or benefit of the decedent, identify each and every such right and/or benefit plaintiff claims was violated and as to each such alleged violation: a. State the date of each and every alleged violation as claimed above; b. Set forth the source of each such right and/or benefit claimed to have been violated, specifically identifying whether such right and/or benefit was created by the following: 1. The terms of any contract and, if so, the date and signatories to such contract; 2. State statute; 3. State rule or regulation; 4. State code; 5. Federal statute; 6. Federal code; and/or 7. Federal rule or regulation; c. Identify each section and subsection of every contract, statute, code, regulation, rule, and ordinance set forth above as the source of each right or benefit defendants alleged to have violated; and -3- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 d. If it will be claimed that the decedent suffered injuries as a result of a violation of any of the above rights and/or benefits, state the nature, location, extent, and duration of each such injury. DEMAND NO. 7 State with particularity each other act and/or omission on the part of defendants not included above which plaintiff will claim constituted a violation of a right and/or benefit of the decedent. DEMAND NO. 8 A particular statement setting forth the name and address of each and every physician who rendered treatment to the decedent as a result of the injuries alleged in the Complaint, providing the dates of all such treatment. DEMAND NO. 9 A particular statement setting forth the name and address of each and every physician who rendered treatment to the decedent, prior to the date(s) of the alleged negligence/violation, for the injuries and/or conditions alleged in the Complaint, providing the dates of all such treatment. DEMAND NO. 10 If it will be claimed that the aforesaid injuries necessitated any hospitalization or treatment at a health care facility, set forth the name of each hospital or health care facility with the dates of confinement or outpatient treatment. DEMAND NO. 11 If it will be claimed that the aforesaid injuries necessitated treatment by any other facility or institution, set forth the name of each facility and/or institution with dates of confinement or outpatient treatment. -4- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 DEMAND NO. 12 If it will be claimed that the aforesaid injuries necessitated confinement to bed or home, set forth the following: a. The date or dates of confinement to home; and b. The date or dates of confinement to bed. DEMAND NO. 13 If any special damages are claimed as a result of the alleged negligence or violation by defendants, set forth the following: a. The charges for the above-named hospitals, health care facilities, or any other facilities or institutions, separately listing each hospital or other facility bill; b. Physicians’ charges, separately listing each such physician and the amount of special damages claimed; c. Charges for medicines, itemizing the medicines charged; and d. Chares for nursing care. DEMAND NO. 14 A particular statement as to each of the aforesaid amounts of money paid on behalf of the decedent setting forth which, if any, were covered by insurance, the name of the insurance company involved in each case, and the amount paid in each case by said insurance company. DEMAND NO. 15 If any of the said amounts were reimbursed to plaintiff or his/her decedent or paid directly by a source other than insurance, a particular statement as to each setting forth the source involved and the amount paid. -5- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 DEMAND NO. 16 Set forth the nature and amount of each and every other claim for damages and/or fees not specified above including, but not limited to: a. Punitive damages; b. Attorneys’ fees; c. Specify the basis for each claim(s) for the damage(s) and/or fee(s) set forth above; and d. If punitive damages will be claimed, state in what manner/respect it is claimed that defendants’ conduct was willful, reckless, and/or grossly negligent. DEMAND NO. 17 Set forth the nature of affinity between plaintiff, VELPO JOHNSON, III, and decedent. DEMAND NO. 18 State the names, addresses, and ages of decedent’s distributes at the time of decedent’s death. DEMAND NO. 19 State the date and place of decedent’s birth including decedent’s name at the time of birth. DEMAND NO. 20 State with particularity each and every other act or omission not included above which plaintiff will claim constituted negligence on the part of defendants. -6- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 DEMAND NO. 21 State with particularity each and every other act or omission not included above which plaintiff will claim constituted a violation of a statute, regulation, code, or ordinance with respect to defendants’ provision of services to decedent. DEMAND NO. 22 State whether plaintiff and/or decedent made a claim or claims against any other party, individual, or entity arising out of the facts and circumstances giving rise to this suit, specifying the following: a. The name of each such person(s) or entities against whom additional claims are being made or have been made; b. Whether or not those claims have been placed into suit and, if so, state the title, venue, and index number for each such action; c. Attach copies of any pleadings or claims served in said action or actions; and d. State whether or not such claim or action has been settled or otherwise resolved and, if so, state the amount of such settlement and the parties with whom such settlement was entered into; if otherwise resolved, set forth a statement of the manner in which it was otherwise resolved and attach copies of general releases or stipulations of discontinuance evidencing such settlement, resolution, or discontinuance. -7- FILED: ERIE COUNTY CLERK 08/25/2021 02:47 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/25/2021 The foregoing demands are served with respect to the plaintiffs’ pending Motion for Class Certification and defendants hereby expressly reserve the right to serve a further Demand for a Verified Bill of Particulars should the plaintiffs be successful upon their Motion for Class Certification. DATED: Buffalo, New York June 17, 2020 s/ Norman B. Viti, Jr. Norman B. Viti, Jr., Esq. Melissa M. Morton, Esq. GIBSON, McASKILL & CROSBY, LLP Attorneys for Defendants LEGACY HEALTH CARE, LLC, W. RICHARD ZACHER (Incorrectly sued herein as RICHARD ZACHER) and JOHN DOES 1-200 (as they apply to the aforementioned Defendants) 69 Delaware Avenue, Suite 900 Buffalo, New York 14202-3866 Telephone: (716) 856-4200 TO: Michael C. Scinta, Esq. Nicole T.C. Marques, Esq. BROWN CHIARI, LLP Attorneys for Plaintiffs 2470 Walden Avenue, Suite 300 Buffalo, New York 14225 Telephone: (716) 681-7190 Patrick B. Curran, Esq. HURWITZ & FINE, P.C. Attorneys for Defendants RIDGE VIEW MANOR, LLC, WILLIAMSVILLE SUBURBAN, LLC, and SHERIDAN MANOR, LLC 1300 Liberty Building 424 Main Street Buffalo, New York 14202 Telephone: (716) 849-8900 -8-