Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021
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; ALBERT YOUNG, Individually and as
Executor of the Estate of LULA STEVENS; BRENDA
BARNES, Individually and as Administratrix De Bonis
Non of the Estate of JOHN ANTHONY DOBBINS;
VELPO JOHNSON, III, Individually and as Executor of
the Estate of WILLIE LEE STEWART; DIANE
ANTKOWIAK and DAVID JANUSZ, Individually and as
Co-Executors of the Estate of LEOCADIA FRANUSIAK;
and on behalf of all others similarly situated,
Plaintiffs
Plaintiffs'
Verified
vs. BILL OF PARTICULARS
Index #003907/2010
RIDGE VIEW MANOR, LLC,
WILLIAMSVILLE SUBURBAN, LLC
LEGACY HEALTH CARE, LLC
W. RICHARD ZACHER
JOHN DOES 1-200
Defendants
Pursuant to Rule 3041 et sequitur of the Civil Practice Law and Rules, BROWN
CHIARI LLP, attorneys for the Plaintiffs, above named, herein serves upon the attorneys for
Defendant, RIDGE VIEW MANOR NURSING HOME, submits this verified bill of particulars
of the complaint:
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1. The reaññct and respect in which it isclaimed the said Defendant was negligent,
careless, and unskillful, including but not limited to, how said Defendant deviated from the
standard applicable to cases involving the treatment of the condition which affected the Plaintiff,
RANDALL CLAY.
Plaintiff objects to this demand to the extent that itinfers that Plaintiff's decedent,
RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME.
Plaintiff's decedent, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR
NURSING HOME for nursing home/rehabilitative services.
2. State the condition which itis claimed the said Defendant failed to take proper
and due cognizance of, and the true condition from which the Plaintiff was suffering, which itis
claimed that said Defendant allegedly failed to guard and treat against.
Objection is made to this demand, upon the grounds that Plaintiff's decedest,
RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for
nursing home/rehabilitative services.
3. The date or dates of the alleged negligence.
Objection is made to this demand, upon the grounds that Plaintiff's decedent,
RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for
nursing home/rehabilitative services.
4. The dates of firstand last services rendered by said Defendant.
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Objection is made to this demand, upon the grounds that Plaintiff's decedent,
RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for
nursing home/rehabilitative services.
5. The place or places where the services were rendered by said Defendant.
Plaintiff objects to this demand to the extent that it infers that Plaintiff's decedent,
RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME.
Plaintiff, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING
HOME for nursing home/rehabilitative services.
6. The nature, location, extent and duration of each injury which itwill be claimed
was caused by the negligence of said Defendant. If any injuries are claimed to be permanent, so
state.
Plaintiff objects to this demand to the extent that it infers that Plaintiff's decedent,
RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME.
Plaintiff, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING
HOME for nursing home/rehabilitative services.
7. A particular statement setting forth the name and address of each and every
physician who rendered treatment to the Plaintiff as a result of the injuries alleged in the
Complaint, providing the dates of all such treatment.
Upon information and belief, the names and address of each and every physician
who rendered treatment to Plaintiff's decedent, RANDALL CLAY, are contained in the
clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union Road,
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Wimameville, New York 14221; Buffalo General Medical Center, 100 High Street, Buffalo,
New York 14203; Erie County Medical Center, 462 Grider Street, Buffalo, New York
14215; and Comprehensive Dialysis Center, Inc., 6010 Main Street, Williamsville, New
York 14221. Plaintiff will rely upon the medical recards for exact dates and types of
treatment.
Further information responsive to this demand is presently unknown or unavailable
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
completion of discovery and, further, will rely on any and all facts clicited at depositions,
during other discovery proceedings, and at the trial of this action to establish a claim in this
regard.
8. If itwill be claimed that the aforesaid injuries necessitated any hospitalization, set
forth the name of each hospital, with the dates of confinement or out-patient treatment.
Upon infor=ation and belief, Plaintiff's decedent, RANDALL CLAY, was admitted
to Buffalo General Medical Center, located at 100 High Street, Buffalo, New York 14203;
and Erie County Medical Center, located at 462 Grider Street, Buffalo, New York 14215.
Plaintiff relies upon the medical records for any and all medical providers and dates of
treatment.
Further information responsive to this demand is presently unknown or unavailâhis
to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon
completicñ of discovery and, further, will rely on any and all facts elicited at depositions,
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during other discovery proceediñgs, and at the trial of this action to establish a claim in this
regard.
9. If itwill be claimed that the aforesaid injuries necessitated treatment by any other
institutions, set forth the name of each institution with dates of confinement or out-patient
treatment.
Objection is made to this demand, upon the grounds of ambiguity. To the extent
"institutions,"
that is understood by the term Plaintiff's decedent, RANDALL CLAY, did
"institutions."
not receive treatment by any other
10. If itwill be claimed that the aforesaid injuries necessitated confiñement to bed or
home, set forth the following:
a. The date or dates of confinement to home;
b. The date or dates of confinement to bed.
(a-b) Based upon information presently available, the Plaintiff alleges that as a
result of the negligêñce of the Defendants, decedcat, RANDALL CLAY, was generally
confined to bed as a result of the events in the underlying matter, through the time of his
death on November 27, 2013.
11. If loss of earnings is claimed as a result of the alleged negligence, set forth the
following:
a. The name and address of the employer of Plaintiff, RANDALL CLAY, at
the time of the alleged negligence;
b. The capacity in which Plaintiff was employed;
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c. The earnings of Plaintiff, RANDALL CLAY, for the last full year prior to
the alleged negligence;
d. The last date Plaintiff, RANDALL CLAY, worked prior to the alleged
negligence;
e. The name and address of the employer of Plaintiff, RANDALL CLAY;
f. The loss of earnings claimed.
(a-f) Not applicable. Plaintiff's decêdent, RANDALL CLAY, is not making a
claim for loss of earnings.
12. If any special damages are claimed as a result of the alleged negligence, set forth,
including, but not limited to, the following:
a. The charges for the above-named hospitals, separately listing each hospital
bill;
b. Physician's charges;
c. Charges for medicines, itemizing the medicines charged for;
d. Nursing;
e. Other.
(a-e) Plaintiff presently has no record or information regarding the total sr:::ts
paid for medical care and treatment readcred to Plaintiff's decedent, RANDALL CLAY,
as a result of the events in the underlying matter. Upon information and belief, the
relevant medical expenses of Plaintiff's decedent, RANDALL CLAY, were paid by
Medicaid (Medicâid No.: AT16708K) and Medicare (Medicare No.: *****8901A).
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13. If the party who incurred the above-named expêñsês reasonably expects to expend
additional sums as a result of the alleged negligence, set forth the following:
physicians'
a. Anticipated charges;
b. Anticipated hospital charges;
c. Anticipated charges for medicines;
d. Anticipated nursing charges;
e. Anticipated other charges.
(a-e) Not applicable.
14. A particular statement as to each of the aforesaid amounts of money, 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.
Defendant is referred to paragraph number 12, supra.
15. If any of the said amounts were reimbursed to Plaintiff, RANDALL CLAY, or
paid directly by a source other than insurance, a particular statement as to each setting forth the
source involved and the amount paid.
Unknown at present. Plaintiff is not presently aware of any other insurance pr,licies
other than those disclosed in paragraph number 12, supra. Plaintiff reserves the right to
amend and/or supplement this response at the concis-len of discovery in the herein matter.
16. State with the same particularity each other act or omission not included above
which Plaintiff will claim constituted negligence on the part of said Defendant.
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Plaintiff objects to this demand to the extent that it infers that Plaintiff's decedent,
RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME.
Plaintiff's decêdent, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR
NURSING HOME for nursing home/rehabilitative services.
17. State whether Plaintiff, RANDALL CLAY, has 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 or names of such parties against whom additional claims are
being made;
(b) whether or not those claims have been placed into suit, and ifso, state the
title of the action and venue of the action, together with the index number
of the action, if any;
(c) attach copies of any pleadings or claims served in said action or actions;
(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, and attach
copies of general releases or stipulations of discontinuance evidencing
such settlement, resolution or discontinuance.
(a-d) Plaintiff has not made a claim against any other party, individual, or entity,
other than the named Defendants herein, arising out of the facts and circumstances
underlying in this action.
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DATED: Buffalo, New York
August $, 2021
Jesse A. D , sq. f r
BROWN C RM
Attorneys for Plaintiffs
2470 Walden Avenue
Buffalo, New York 14225
(716) 681-7190
TO: Patrick B. Curran, Esq.
HURWITZ & FINE, P.C.
Attorneys for Defendants
RIDGE VIEW MANOR, LLC
WILLIAMSVILLE SUBURBAN, LLC
JOHN DOES 1-200
1300 Liberty Building
Buffalo, NY 14202
(716) 849 8900
CC: Norman B. Viti, Jr., Esq.
GIBSON, McASKILL & CROSBY, LLP
Attorneys for Defendants
LEGACY HEALTH CARE, LLC
W. RICHARD ZACHER
JOHN DOES 1-200
69 Delaware Avenue, Suite 900
Buffalo, NY 14202
(716) 856-4200
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Preview
FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 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; ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA BARNES, Individually and as Administratrix De Bonis Non of the Estate of JOHN ANTHONY DOBBINS; VELPO JOHNSON, III, Individually and as Executor of the Estate of WILLIE LEE STEWART; DIANE ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors of the Estate of LEOCADIA FRANUSIAK; and on behalf of all others similarly situated, Plaintiffs Plaintiffs' Verified vs. BILL OF PARTICULARS Index #003907/2010 RIDGE VIEW MANOR, LLC, WILLIAMSVILLE SUBURBAN, LLC LEGACY HEALTH CARE, LLC W. RICHARD ZACHER JOHN DOES 1-200 Defendants Pursuant to Rule 3041 et sequitur of the Civil Practice Law and Rules, BROWN CHIARI LLP, attorneys for the Plaintiffs, above named, herein serves upon the attorneys for Defendant, RIDGE VIEW MANOR NURSING HOME, submits this verified bill of particulars of the complaint: - BROWN CHIARI LLP - 1 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 2 - 1. The reaññct and respect in which it isclaimed the said Defendant was negligent, careless, and unskillful, including but not limited to, how said Defendant deviated from the standard applicable to cases involving the treatment of the condition which affected the Plaintiff, RANDALL CLAY. Plaintiff objects to this demand to the extent that itinfers that Plaintiff's decedent, RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME. Plaintiff's decedent, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 2. State the condition which itis claimed the said Defendant failed to take proper and due cognizance of, and the true condition from which the Plaintiff was suffering, which itis claimed that said Defendant allegedly failed to guard and treat against. Objection is made to this demand, upon the grounds that Plaintiff's decedest, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 3. The date or dates of the alleged negligence. Objection is made to this demand, upon the grounds that Plaintiff's decedent, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 4. The dates of firstand last services rendered by said Defendant. BROWN CHIARI LLP - 2 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 3 - Objection is made to this demand, upon the grounds that Plaintiff's decedent, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 5. The place or places where the services were rendered by said Defendant. Plaintiff objects to this demand to the extent that it infers that Plaintiff's decedent, RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME. Plaintiff, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 6. The nature, location, extent and duration of each injury which itwill be claimed was caused by the negligence of said Defendant. If any injuries are claimed to be permanent, so state. Plaintiff objects to this demand to the extent that it infers that Plaintiff's decedent, RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME. Plaintiff, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 7. A particular statement setting forth the name and address of each and every physician who rendered treatment to the Plaintiff as a result of the injuries alleged in the Complaint, providing the dates of all such treatment. Upon information and belief, the names and address of each and every physician who rendered treatment to Plaintiff's decedent, RANDALL CLAY, are contained in the clinical chart/records of Williamsville Suburban Nursing Home, 193 South Union Road, - BROWN CHIARI LLP - 3 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 4 - Wimameville, New York 14221; Buffalo General Medical Center, 100 High Street, Buffalo, New York 14203; Erie County Medical Center, 462 Grider Street, Buffalo, New York 14215; and Comprehensive Dialysis Center, Inc., 6010 Main Street, Williamsville, New York 14221. Plaintiff will rely upon the medical recards for exact dates and types of treatment. Further information responsive to this demand is presently unknown or unavailable to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon completion of discovery and, further, will rely on any and all facts clicited at depositions, during other discovery proceedings, and at the trial of this action to establish a claim in this regard. 8. If itwill be claimed that the aforesaid injuries necessitated any hospitalization, set forth the name of each hospital, with the dates of confinement or out-patient treatment. Upon infor=ation and belief, Plaintiff's decedent, RANDALL CLAY, was admitted to Buffalo General Medical Center, located at 100 High Street, Buffalo, New York 14203; and Erie County Medical Center, located at 462 Grider Street, Buffalo, New York 14215. Plaintiff relies upon the medical records for any and all medical providers and dates of treatment. Further information responsive to this demand is presently unknown or unavailâhis to the Plaintiff. However, the Plaintiff reserves the right to amend this response upon completicñ of discovery and, further, will rely on any and all facts elicited at depositions, -BROWN CHIARI LLP - 4 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 5 - during other discovery proceediñgs, and at the trial of this action to establish a claim in this regard. 9. If itwill be claimed that the aforesaid injuries necessitated treatment by any other institutions, set forth the name of each institution with dates of confinement or out-patient treatment. Objection is made to this demand, upon the grounds of ambiguity. To the extent "institutions," that is understood by the term Plaintiff's decedent, RANDALL CLAY, did "institutions." not receive treatment by any other 10. If itwill be claimed that the aforesaid injuries necessitated confiñement to bed or home, set forth the following: a. The date or dates of confinement to home; b. The date or dates of confinement to bed. (a-b) Based upon information presently available, the Plaintiff alleges that as a result of the negligêñce of the Defendants, decedcat, RANDALL CLAY, was generally confined to bed as a result of the events in the underlying matter, through the time of his death on November 27, 2013. 11. If loss of earnings is claimed as a result of the alleged negligence, set forth the following: a. The name and address of the employer of Plaintiff, RANDALL CLAY, at the time of the alleged negligence; b. The capacity in which Plaintiff was employed; -BROWN CHIARI LLP - 5 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 6 - c. The earnings of Plaintiff, RANDALL CLAY, for the last full year prior to the alleged negligence; d. The last date Plaintiff, RANDALL CLAY, worked prior to the alleged negligence; e. The name and address of the employer of Plaintiff, RANDALL CLAY; f. The loss of earnings claimed. (a-f) Not applicable. Plaintiff's decêdent, RANDALL CLAY, is not making a claim for loss of earnings. 12. If any special damages are claimed as a result of the alleged negligence, set forth, including, but not limited to, the following: a. The charges for the above-named hospitals, separately listing each hospital bill; b. Physician's charges; c. Charges for medicines, itemizing the medicines charged for; d. Nursing; e. Other. (a-e) Plaintiff presently has no record or information regarding the total sr:::ts paid for medical care and treatment readcred to Plaintiff's decedent, RANDALL CLAY, as a result of the events in the underlying matter. Upon information and belief, the relevant medical expenses of Plaintiff's decedent, RANDALL CLAY, were paid by Medicaid (Medicâid No.: AT16708K) and Medicare (Medicare No.: *****8901A). - BROWN CHIARI LLP - 6 of 9 INDEX NO. 003907/2010 1 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 7 - 13. If the party who incurred the above-named expêñsês reasonably expects to expend additional sums as a result of the alleged negligence, set forth the following: physicians' a. Anticipated charges; b. Anticipated hospital charges; c. Anticipated charges for medicines; d. Anticipated nursing charges; e. Anticipated other charges. (a-e) Not applicable. 14. A particular statement as to each of the aforesaid amounts of money, 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. Defendant is referred to paragraph number 12, supra. 15. If any of the said amounts were reimbursed to Plaintiff, RANDALL CLAY, or paid directly by a source other than insurance, a particular statement as to each setting forth the source involved and the amount paid. Unknown at present. Plaintiff is not presently aware of any other insurance pr,licies other than those disclosed in paragraph number 12, supra. Plaintiff reserves the right to amend and/or supplement this response at the concis-len of discovery in the herein matter. 16. State with the same particularity each other act or omission not included above which Plaintiff will claim constituted negligence on the part of said Defendant. -BROWN CHIARI LLP - 7 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 8 - Plaintiff objects to this demand to the extent that it infers that Plaintiff's decedent, RANDALL CLAY, was a resident of RIDGE VIEW MANOR NURSING HOME. Plaintiff's decêdent, RANDALL CLAY, was never admitted to RIDGE VIEW MANOR NURSING HOME for nursing home/rehabilitative services. 17. State whether Plaintiff, RANDALL CLAY, has 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 or names of such parties against whom additional claims are being made; (b) whether or not those claims have been placed into suit, and ifso, state the title of the action and venue of the action, together with the index number of the action, if any; (c) attach copies of any pleadings or claims served in said action or actions; (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, and attach copies of general releases or stipulations of discontinuance evidencing such settlement, resolution or discontinuance. (a-d) Plaintiff has not made a claim against any other party, individual, or entity, other than the named Defendants herein, arising out of the facts and circumstances underlying in this action. BROWN CHIARI LLP - 8 of 9 FILED: ERIE COUNTY CLERK 08/30/2021 02:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/30/2021 - Page 9 - DATED: Buffalo, New York August $, 2021 Jesse A. D , sq. f r BROWN C RM Attorneys for Plaintiffs 2470 Walden Avenue Buffalo, New York 14225 (716) 681-7190 TO: Patrick B. Curran, Esq. HURWITZ & FINE, P.C. Attorneys for Defendants RIDGE VIEW MANOR, LLC WILLIAMSVILLE SUBURBAN, LLC JOHN DOES 1-200 1300 Liberty Building Buffalo, NY 14202 (716) 849 8900 CC: Norman B. Viti, Jr., Esq. GIBSON, McASKILL & CROSBY, LLP Attorneys for Defendants LEGACY HEALTH CARE, LLC W. RICHARD ZACHER JOHN DOES 1-200 69 Delaware Avenue, Suite 900 Buffalo, NY 14202 (716) 856-4200 -BROWN CHIARI LLP - 9 of 9