Preview
FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
---------------------------------------------------------------------- X
DAVID FISHER, :
: INDEX NO. 35478/2020E
Plaintiffs, :
: NOTICE TO TAKE
-against- : DEPOSITIONS UPON ORAL
: EXAMINATION
TUTOR-PERINI, CITY OF NEW YORK, TRIBOROUGH :
BRIDGE AND TUNNEL AUTHORITY, :
METROPOLITAN TRANSPORTATION AUTHORITY, :
PORT AUTHORITY OF NEW YORK AND NEW :
JERSEY and ATLANTIC REINFORCING CONCRETE :
COMPANY, INC. :
Defendants. :
:
---------------------------------------------------------------------- X
:
CITY OF NEW YORK, TRIBOROUGH BRIDGE AND :
TUNNEL AUTHORITY, METROPOLITAN :
TRANSPORTATION AUTHORITY, :
:
Third-Party Plaintiffs, :
:
-against- :
:
ATLANTIC REINFORCING CONCRETE COMPANY,
:
INC.,
:
Third-Party Defendant. :
X
----------------------------------------------------------------------
PLEASE TAKE NOTICE that pursuant to the Civil Practice Laws and Rules, defendants
and third-party plaintiffs CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL
AUTHORITY, and METROPOLITAN TRANSPORTATION AUTHORITY, will take the
testimony of all parties before a Notary Public on a mutually convenient date and time to be
determined at the Preliminary Conference at Ropers Majeski PC, 750 Third Avenue, 25th Floor,
New York, New York 10017, or to be conducted remotely.
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PLEASE TAKE FURTHER NOTICE, that pursuant to the Civil Practice Laws and
Rules, the parties to be deposed are directed to produce at the examinations, for the purpose of
refreshing their recollections and for examination, inspection and copying, all records, books,
photographs, documents, correspondence and other writings and papers in their possession or
available to them, which relate to the matters herein on which the parties are to be examined under
this notice.
Dated: New York, New York Respectfully submitted,
August 5, 2021
ROPERS MAJESKI PC
750 Third Avenue, 25th Floor
New York, NY 10017
(212) 668-5927
By:____________________________________
ROBERT J. PALISENO
Attorneys for Defendants/Third-Party
Plaintiffs CITY OF NEW YORK,
TRIBOROUGH BRIDGE AND TUNNEL
AUTHORITY, and METROPOLITAN
TRANSPORTATION AUTHORITY
TO:
John E. Lavelle
Cellino Law LLP
Attorneys for Plaintiff David Fisher
600 Old Country Road, Suite 412
Garden City, NY 11530
(800) 555-5555 Ext. 2507
john.lavelle@cellinolaw.com
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Cody A. Brittain
Cullen and Dykman LLP
Attorneys for Defendant
Tutor Perini Corporation i/s/h/a Tutor-Perrini
44 Wall Street, 15th Floor
New York, NY 10005
(212) 732-2000
cbrittain@cullenanddykman.com
Natalie D. Russell
The Port Authority Law Department
Attorneys for Defendant Port Authority of New York and New Jersey
4 World Trade Center
150 Greenwich Street, 23rd Floor
New York, NY 10007
nrussell@panynj.gov
Glenn McNamee
Connick, Myers, McNamee & Fitzgerald, P.L.L.C.
Attorneys for Third-Party Defendant
Atlantic Reinforcing Concrete Company, Inc.
1225 Franklin Avenue, Suite 510
Garden City, NY 11530
(516) 873-3900
mail@cmmf-law.com
-3-
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
---------------------------------------------------------------------- X
DAVID FISHER, :
: INDEX NO. 35478/2020E
Plaintiffs, :
: DEMAND FOR A VERIFIED
-against- : BILL OF PARTICULARS
:
TUTOR-PERINI, CITY OF NEW YORK, TRIBOROUGH :
BRIDGE AND TUNNEL AUTHORITY, :
METROPOLITAN TRANSPORTATION AUTHORITY, :
PORT AUTHORITY OF NEW YORK AND NEW :
JERSEY and ATLANTIC REINFORCING CONCRETE :
COMPANY, INC. :
Defendants. :
:
---------------------------------------------------------------------- X
:
CITY OF NEW YORK, TRIBOROUGH BRIDGE AND :
TUNNEL AUTHORITY, METROPOLITAN :
TRANSPORTATION AUTHORITY, :
:
Third-Party Plaintiffs, :
:
-against- :
:
ATLANTIC REINFORCING CONCRETE COMPANY,
:
INC.,
:
Third-Party Defendant. :
X
----------------------------------------------------------------------
PLEASE TAKE NOTICE that defendants and third-party plaintiffs CITY OF NEW
YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN
TRANSPORTATION AUTHORITY (“defendants”) by their attorneys, ROPERS MAJESKI PC,
demand that a Verified Bill of Particulars be served herein within thirty (30) days, setting forth in
detail specifically as to defendants represented by the undersigned, the following, with reference
to each cause of action alleged:
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1. The age of plaintiff, date of birth, place of birth and social security number.
2. Date of accident.
3. Time of accident.
4. Address of the premises where the accident occurred.
5. Cause of the accident.
6. Describe the area of the premises in which it is claimed the subject accident
occurred, with sufficient detail as to allow defendants to identify the particular area
and distinguish it from other areas at the premises. Plaintiff may narratively
describe the area in terms of compass points, size and shape, proximity to other
areas, exits or structural landmarks, or in any sufficient description which will
permit identification.
7. Describe the location of the accident within the afore-described area with sufficient
particularity to allow defendants to identify the exact location of the area where the
accident occurred. (Plaintiff may attach a diagram.)
8. State the exact cause of the accident.
9. State the plaintiff’s job title and duties on the day of the alleged accident.
10. Is it claimed that there was any debris or foreign substance or foreign object(s) on
the area which caused or contributed to the happening of the alleged accident?
11. If the answer to the above question is in the affirmative, describe each item of debris
and substance and foreign object(s) which plaintiff will claim caused or contributed
to the happening of the alleged accident.
12. Set forth each and every act or omission of negligence on the part of defendants
which plaintiff will claim caused or contributed to the alleged occurrence.
13. If actual notice is alleged:
(a) Person or persons to whom given;
(b) Place or places where given;
(c) Date or dates when given; and
(d) The substance or each said notice.
14. If constructive notice is claimed:
State the duration of condition (in minutes, hours, or days or otherwise), with date and time
of inception, to date and time constructive notice will be claimed to be given to defendants prior
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to the happening of the alleged occurrence. If the length of time is not known, so state.
15. Statement of permanent injuries claimed.
16. Statement of other injuries claimed.
17. The date(s) plaintiff received treatment at any hospital, or out-patient department
of clinic with the name and address of each such hospital or clinic.
18. The length of time plaintiff was totally disabled, as a result of the occurrence
including specific dates.
19. The length of time plaintiff was partially disabled, as a result of the occurrence
including specific dates.
20. Loss of earning claimed, including:
(a) Name and address of employer;
(b) Number of days incapacitated, setting forth the dates;
(c) Daily, weekly or monthly earnings;
(d) Total amount of loss claimed.
21. If plaintiff was a student at the time of the accident:
(a) Name and address of school;
(b) Dates student failed to attend school as a result of the accident.
22. If confined to hospital:
(a) Length of time confined, giving dates;
(b) Name and address of hospital.
23. If confined to bed or home:
(a) Length of time confined to bed, giving dates;
(b) Length of time confined of home, giving dates.
24. Set forth the total amount claimed as special damages for the following, and in
each instance set forth the date(s) that care is alleged to have been rendered and
the name(s) and address(es) of the provider(s):
(a) Physicians’ services;
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(b) Medical supplies;
(c) X-rays, CT scans, MRI’S and other diagnostic films;
(d) Hospital expenses;
(e) Nurses’ services, together with the name(s) and address(es) to whom paid;
(f) All other expenses, damages and injuries which will be claimed by plaintiff,
including but not limited to, household help expenses, together with the
name(s) and address(es) of the recipient(s) thereof.
25. With respect to the amounts of special damages set forth in paragraph 24;
(a) State whether any part of the cost of physicians’ services, medical supplies,
hospital expenses, nurses’ services or loss of earning s was replaced or
indemnified from any collateral source such as insurance, social security,
workers’ compensation or employee benefit programs.
(b) If the answer is in the affirmative, set forth separately as to each item, the
amount of reimbursement received, and the name and address of the
organization or program from whom each reimbursement was received.
(c) For each organization or program, state the identifying number of the policy
or program, and its effective dates.
26. Statement of total special damages anticipated to be incurred in the future and/or to
plaintiff’s life expectancy with regard to the following:
(a) Medical care, including hospital, physicians, and other medical/mental
health professionals, and nurses;
(b) Medications;
(c) Life care, including case management, home or facility care, housing,
transportation, and equipment; and
(d) All other items of special damages.
27. A verified statement setting forth the residence and post office address of the
plaintiff.
28. If any statutes, ordinances, regulations, laws, or rules are claimed to have been
violated by the defendant, set forth the titleof any such law and the section or
sections and subsection or subsections claimed to have been violated.
29. Set forth all statements made by each of the defendant, or their agents, in writing
with respect to the occurrence.
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30. State whether or not plaintiff has been reimbursed for the claims of economic loss
from any collateral source.
(a) Which of such claims plaintiff has been reimbursed, the amount of
reimbursement received and the name of the person, firm or organization
who made such reimbursement;
(b) If such reimbursement was made by an insurance company, state the
number of the policy under which it was paid;
(c) State whether or not plaintiff has made a claim for reimbursement for
economic loss to any collateral course and which has not as yet been paid;
(d) If the answer to 30 (c) is in the affirmative, state the name of the person,
firm, or organization to whom such claim was presented, the date of
presentation, and the amount claimed.
31. Set forth whether plaintiff is claiming a reduced life expectancy, and if so, the
extent of same.
32. Set forth whether plaintiff is claiming a reduced work expectancy, and if so, the
extent of same.
33. Set forth each occurrence prior to the occurrence alleged in the Verified Complaint,
in which the plaintiff sustained an injury to any bodily portion alleged to have been
injured during the occurrence alleged in the Verified Complaint, whether or not
medical care was obtained. If medical care was obtained, set forth the names(s) and
address(es) of each and every health care facility/physician/therapist who treated or
examined plaintiff for such prior injury.
34. State whether the occurrence alleged in the Verified Complaint was reported to
defendants or anyone on defendants’ behalf.
(a) If the occurrence was reported, state the date(s), time(s) and place(s) the
occurrence was reported and name(s) of the person(s) on behalf of said
defendants to whom it was reported.
(b) State whether the said report was in writing or verbal each time it was
reported to said defendants.
35. If the occurrence alleged in the Verified Complaint is claimed to have happened as
a result of plaintiff’s slip, trip or fall, on or upon a product, set forth, where
applicable, as follows:
(a) The location of the slip, trip or fall, on or upon a product;
(b) A description of the object, article, equipment or product upon which
plaintiff slipped, tripped or fell;
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(c) The manner in which the alleged slip, trip or fall in, or upon a product,
caused or contributed to the injuries alleged in the Verified Complaint.
36. If the occurrence alleged in the Verified complaint is claimed to have happened due
to improper or inadequate supervision, then set forth in detail:
(a) The period of time during which said supervision was improper prior to the
occurrence alleged in the Verified Complaint;
(b) The manner in which said supervision was improper and/or inadequate’
(c) Identify the specific location within the premises at which the supervision
as inadequate so as to cause the occurrence alleged in the Verified
Complaint;
(d) The acts and/or omissions constituting the improper or inadequate
supervision;
(e) Whether defendants were advised at any time prior to the occurrence
(alleged in the Verified Complaint) by the plaintiff or any person on behalf
of or known to plaintiff that supervision was inadequate and/or improper,
stating the person(s) on behalf of said defendants who was/were so
informed, the person(s) so informing said defendants and the time(s) and
date(s) of said informing.
(f) State the manner in which the alleged improper or inadequate supervision
caused or contributed to the occurrence and injuries alleged in the Verified
Complaint.
37. If the occurrence alleged in the Verified Complaint is claimed to have happened
due to carelessness and/or negligence in the construction, maintenance or repair of
certain premises or product then set forth in detail:
(a) The manner in which such construction, maintenance or repair was careless
and/or negligent;
(b) Identify the specific location within the premises at which the construction,
maintenance or repair was careless or negligent;
(c) The specific carelessness or negligence in connection with the construction,
maintenance or repair which it is alleged existed;
(d) Whether defendants were advised any time prior to the occurrence (alleged
in the Verified Complaint) by the plaintiff or any person(s) on behalf of or
known to plaintiff that said construction, maintenance or repair was careless
or negligent, stating the person(s) on behalf of said defendants who
was/were so informed, the person(s) so informing said defendants and the
time(s) and date(s) of said informing;
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(e) The manner in which the alleged negligent construction, maintenance or
repair of the premises or product caused or contributed to the occurrence
and injuries alleged in the Verified Complaint.
38. If a product is alleged to be involved in the occurrence alleged in the Verified
Complaint, sate the following:
(a) In what respects plaintiff claims that the product was in a dangerous,
defective and/or improper condition;
(b) The location of the occurrence on the product by distances from the nearest
wall, corner, or building (or other fixed and described point), stating the
address of the building;
(c) The manner in which the product caused or contributed to the occurrence of
the injuries alleged therein.
39. If the occurrence took place on the premises where plaintiff did not have his place
of residence, business or employment, state whether the plaintiff claims to be a
visitor, and if so, set forth the purpose of the visit.
40. State said plaintiff’s occupation and then name and address of plaintiff’s
employer(s):
(a) At the time of the accident.
(b) At the present time.
(c) If self-employed or engaged in some other pursuit, so state and give the
address.
41. Is plaintiff receiving Medicare benefits?
42. If your response to “41” above is in the affirmative, please provide:
(a) Plaintiff’s Medicare Health Insurance Claim Number;
(b) The date plaintiff’s eligibility began;
(c) If Medicare has made any payments for health care services that are related
to plaintiff’s alleged injuries, state the services and the amount paid;
(d) If there is a Medicare lien for benefits plaintiff received, state the amount;
(e) If Medicare has been contacted regarding plaintiff’s receipt of benefits and
this lawsuit, explain in detail the result of said contact (e.g., receipt of
conditional payment form, final demand, closing letter, establishment of
hold back);
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(f) A copy of plaintiff’s Medicare beneficiary card.
43. Set forth whether plaintiff has made a claim for Medicare benefits.
44. Set forth whether or not plaintiff expects to be a Medicare beneficiary within the
next five (5) years.
45. Has plaintiff applied for Social Security Disability (“SSD”) benefits?
46. If plaintiff has applied for Social Security Disability (“SSD” benefits, set forth:
(a) The date plaintiff applied for SSD benefits;
(b) If SSD benefits were awarded, set forth:
(i) The date of such award;
(ii) The period for which SSD benefits were paid (i.e., 06/01/07 to
present);
(iii) The injury claimed that resulted in the award;
(iv) The date the injury occurred for which SSD was awarded.
(c) If SSD benefits were not awarded, set forth:
(i) Whether or not the application was denied, and if denied, the date
the denial of benefits was made;
(ii) The reason for the denial as provided by the Social Security
Administration;
(iii) Whether or not the denial of benefits was appealed, and if
appealed, the date of any such appeal;
(iv) Whether or not the denial of benefits was reversed.
PLEASE TAKE FURTHER NOTICE that unless this demand is complied with, the
undersigned will move for (1) an order precluding plaintiff from giving evidence at the trial of the
items of which particulars have not been furnished; (2) an order staying all proceedings in this
action pursuant to Civil Practice Law and Rules 3042; and (3) such other and further relief as the
Court may deem just and proper.
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Dated: New York, New York Respectfully submitted,
August 5, 2021
ROPERS MAJESKI PC
750 Third Avenue, 25th Floor
New York, NY 10017
(212) 668-5927
By:____________________________________
ROBERT J. PALISENO
Attorneys for Defendants/Third-Party
Plaintiffs CITY OF NEW YORK,
TRIBOROUGH BRIDGE AND TUNNEL
AUTHORITY, and METROPOLITAN
TRANSPORTATION AUTHORITY
TO:
John E. Lavelle
Cellino Law LLP
Attorneys for Plaintiff David Fisher
600 Old Country Road, Suite 412
Garden City, NY 11530
(800) 555-5555 Ext. 2507
john.lavelle@cellinolaw.com
Cody A. Brittain
Cullen and Dykman LLP
Attorneys for Defendant
Tutor Perini Corporation i/s/h/a Tutor-Perrini
44 Wall Street, 15th Floor
New York, NY 10005
(212) 732-2000
cbrittain@cullenanddykman.com
Natalie D. Russell
The Port Authority Law Department
Attorneys for Defendant Port Authority of New York and New Jersey
4 World Trade Center
150 Greenwich Street, 23rd Floor
New York, NY 10007
nrussell@panynj.gov
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Glenn McNamee
Connick, Myers, McNamee & Fitzgerald, P.L.L.C.
Attorneys for Third-Party Defendant
Atlantic Reinforcing Concrete Company, Inc.
1225 Franklin Avenue, Suite 510
Garden City, NY 11530
(516) 873-3900
mail@cmmf-law.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
---------------------------------------------------------------------- X
DAVID FISHER, :
: INDEX NO. 35478/2020E
Plaintiffs, :
: COMBINED DISCOVERY
-against- : DEMANDS
:
TUTOR-PERINI, CITY OF NEW YORK, TRIBOROUGH :
BRIDGE AND TUNNEL AUTHORITY, :
METROPOLITAN TRANSPORTATION AUTHORITY, :
PORT AUTHORITY OF NEW YORK AND NEW :
JERSEY and ATLANTIC REINFORCING CONCRETE :
COMPANY, INC. :
Defendants. :
:
---------------------------------------------------------------------- X
:
CITY OF NEW YORK, TRIBOROUGH BRIDGE AND :
TUNNEL AUTHORITY, METROPOLITAN :
TRANSPORTATION AUTHORITY, :
:
Third-Party Plaintiffs, :
:
-against- :
:
ATLANTIC REINFORCING CONCRETE COMPANY,
:
INC.,
:
Third-Party Defendant. :
X
----------------------------------------------------------------------
PLEASE TAKE NOTICE that defendants and third-party plaintiffs CITY OF NEW
YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN
TRANSPORTATION AUTHORITY (“defendants”) by their attorneys, ROPERS MAJESKI PC,
hereby make the following Discovery Demands upon you pursuant to Article 31 of the Civil
Practice Law and Rules. The foregoing demands are returnable at the law offices of Ropers
Majeski PC, located at 750 Third Avenue, 25th Floor, New York, New York 10017, at 10:00 a.m.
within twenty (20) days hereof, unless otherwise stated.
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DEMAND FOR NAMES AND ADDRESSES OF PARTIES
PLEASE TAKE NOTICE that pursuant to CPLR 3120, you are required to furnish the
name, address, and telephone number of each party and attorney appearing in this action.
DEMAND FOR NAMES, ADDRESSES AND
TELEPHONE NUMBERS OF WITNESSES
PLEASE TAKE NOTICE that pursuant to CPLR 3101(a), you are required to set forth
in writing the name, address and telephone number of each person claimed by any party you
represent to be a witness to any of the following:
(a) The occurrence alleged in the Verified Complaint;
(b) Any acts, omissions or conditions which allegedly caused the occurrence
alleged in the Verified Complaint;
(c) Any actual or constructive notice allegedly given to any defendant or any
employee of any defendant or any other individual or entity claimed to be
responsible for the occurrence alleged in the Verified Complaint of any
condition which allegedly caused the occurrence alleged in the Verified
Complaint.
(d) The nature and extent of the injuries and damages which plaintiff alleges
were caused by the occurrence alleged in the Verified Complaint.
If no such witnesses are known, so state in the response to this Demand. The
undersigned will object upon trial to the testimony of any witnesses not so identified.
DEMAND FOR PHOTOGRAPHS, VIDEOTAPES
AND OTHER VISUAL REPRODUCTIONS
PLEASE TAKE NOTICE that pursuant to Article 31 of the CPLR, and particularly CPLR
3101, you are required to furnish duplicate originals of all photographs, videotapes and visual
reproductions of the scene of the incident which is the subject of this litigation; photographs,
videotapes and visual reproductions of the instrumentalities involved in such litigation;
photographs, videotapes and visual reproductions depicting plaintiff’s injuries
Preview
FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------- X DAVID FISHER, : : INDEX NO. 35478/2020E Plaintiffs, : : NOTICE TO TAKE -against- : DEPOSITIONS UPON ORAL : EXAMINATION TUTOR-PERINI, CITY OF NEW YORK, TRIBOROUGH : BRIDGE AND TUNNEL AUTHORITY, : METROPOLITAN TRANSPORTATION AUTHORITY, : PORT AUTHORITY OF NEW YORK AND NEW : JERSEY and ATLANTIC REINFORCING CONCRETE : COMPANY, INC. : Defendants. : : ---------------------------------------------------------------------- X : CITY OF NEW YORK, TRIBOROUGH BRIDGE AND : TUNNEL AUTHORITY, METROPOLITAN : TRANSPORTATION AUTHORITY, : : Third-Party Plaintiffs, : : -against- : : ATLANTIC REINFORCING CONCRETE COMPANY, : INC., : Third-Party Defendant. : X ---------------------------------------------------------------------- PLEASE TAKE NOTICE that pursuant to the Civil Practice Laws and Rules, defendants and third-party plaintiffs CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN TRANSPORTATION AUTHORITY, will take the testimony of all parties before a Notary Public on a mutually convenient date and time to be determined at the Preliminary Conference at Ropers Majeski PC, 750 Third Avenue, 25th Floor, New York, New York 10017, or to be conducted remotely. 4821-2873-9828.1 1 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 PLEASE TAKE FURTHER NOTICE, that pursuant to the Civil Practice Laws and Rules, the parties to be deposed are directed to produce at the examinations, for the purpose of refreshing their recollections and for examination, inspection and copying, all records, books, photographs, documents, correspondence and other writings and papers in their possession or available to them, which relate to the matters herein on which the parties are to be examined under this notice. Dated: New York, New York Respectfully submitted, August 5, 2021 ROPERS MAJESKI PC 750 Third Avenue, 25th Floor New York, NY 10017 (212) 668-5927 By:____________________________________ ROBERT J. PALISENO Attorneys for Defendants/Third-Party Plaintiffs CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN TRANSPORTATION AUTHORITY TO: John E. Lavelle Cellino Law LLP Attorneys for Plaintiff David Fisher 600 Old Country Road, Suite 412 Garden City, NY 11530 (800) 555-5555 Ext. 2507 john.lavelle@cellinolaw.com -2- 4821-2873-9828.1 2 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 Cody A. Brittain Cullen and Dykman LLP Attorneys for Defendant Tutor Perini Corporation i/s/h/a Tutor-Perrini 44 Wall Street, 15th Floor New York, NY 10005 (212) 732-2000 cbrittain@cullenanddykman.com Natalie D. Russell The Port Authority Law Department Attorneys for Defendant Port Authority of New York and New Jersey 4 World Trade Center 150 Greenwich Street, 23rd Floor New York, NY 10007 nrussell@panynj.gov Glenn McNamee Connick, Myers, McNamee & Fitzgerald, P.L.L.C. Attorneys for Third-Party Defendant Atlantic Reinforcing Concrete Company, Inc. 1225 Franklin Avenue, Suite 510 Garden City, NY 11530 (516) 873-3900 mail@cmmf-law.com -3- 4821-2873-9828.1 3 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------- X DAVID FISHER, : : INDEX NO. 35478/2020E Plaintiffs, : : DEMAND FOR A VERIFIED -against- : BILL OF PARTICULARS : TUTOR-PERINI, CITY OF NEW YORK, TRIBOROUGH : BRIDGE AND TUNNEL AUTHORITY, : METROPOLITAN TRANSPORTATION AUTHORITY, : PORT AUTHORITY OF NEW YORK AND NEW : JERSEY and ATLANTIC REINFORCING CONCRETE : COMPANY, INC. : Defendants. : : ---------------------------------------------------------------------- X : CITY OF NEW YORK, TRIBOROUGH BRIDGE AND : TUNNEL AUTHORITY, METROPOLITAN : TRANSPORTATION AUTHORITY, : : Third-Party Plaintiffs, : : -against- : : ATLANTIC REINFORCING CONCRETE COMPANY, : INC., : Third-Party Defendant. : X ---------------------------------------------------------------------- PLEASE TAKE NOTICE that defendants and third-party plaintiffs CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN TRANSPORTATION AUTHORITY (“defendants”) by their attorneys, ROPERS MAJESKI PC, demand that a Verified Bill of Particulars be served herein within thirty (30) days, setting forth in detail specifically as to defendants represented by the undersigned, the following, with reference to each cause of action alleged: 4840-3727-9220.1 4 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 1. The age of plaintiff, date of birth, place of birth and social security number. 2. Date of accident. 3. Time of accident. 4. Address of the premises where the accident occurred. 5. Cause of the accident. 6. Describe the area of the premises in which it is claimed the subject accident occurred, with sufficient detail as to allow defendants to identify the particular area and distinguish it from other areas at the premises. Plaintiff may narratively describe the area in terms of compass points, size and shape, proximity to other areas, exits or structural landmarks, or in any sufficient description which will permit identification. 7. Describe the location of the accident within the afore-described area with sufficient particularity to allow defendants to identify the exact location of the area where the accident occurred. (Plaintiff may attach a diagram.) 8. State the exact cause of the accident. 9. State the plaintiff’s job title and duties on the day of the alleged accident. 10. Is it claimed that there was any debris or foreign substance or foreign object(s) on the area which caused or contributed to the happening of the alleged accident? 11. If the answer to the above question is in the affirmative, describe each item of debris and substance and foreign object(s) which plaintiff will claim caused or contributed to the happening of the alleged accident. 12. Set forth each and every act or omission of negligence on the part of defendants which plaintiff will claim caused or contributed to the alleged occurrence. 13. If actual notice is alleged: (a) Person or persons to whom given; (b) Place or places where given; (c) Date or dates when given; and (d) The substance or each said notice. 14. If constructive notice is claimed: State the duration of condition (in minutes, hours, or days or otherwise), with date and time of inception, to date and time constructive notice will be claimed to be given to defendants prior -2- 4840-3727-9220.1 5 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 to the happening of the alleged occurrence. If the length of time is not known, so state. 15. Statement of permanent injuries claimed. 16. Statement of other injuries claimed. 17. The date(s) plaintiff received treatment at any hospital, or out-patient department of clinic with the name and address of each such hospital or clinic. 18. The length of time plaintiff was totally disabled, as a result of the occurrence including specific dates. 19. The length of time plaintiff was partially disabled, as a result of the occurrence including specific dates. 20. Loss of earning claimed, including: (a) Name and address of employer; (b) Number of days incapacitated, setting forth the dates; (c) Daily, weekly or monthly earnings; (d) Total amount of loss claimed. 21. If plaintiff was a student at the time of the accident: (a) Name and address of school; (b) Dates student failed to attend school as a result of the accident. 22. If confined to hospital: (a) Length of time confined, giving dates; (b) Name and address of hospital. 23. If confined to bed or home: (a) Length of time confined to bed, giving dates; (b) Length of time confined of home, giving dates. 24. Set forth the total amount claimed as special damages for the following, and in each instance set forth the date(s) that care is alleged to have been rendered and the name(s) and address(es) of the provider(s): (a) Physicians’ services; -3- 4840-3727-9220.1 6 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 (b) Medical supplies; (c) X-rays, CT scans, MRI’S and other diagnostic films; (d) Hospital expenses; (e) Nurses’ services, together with the name(s) and address(es) to whom paid; (f) All other expenses, damages and injuries which will be claimed by plaintiff, including but not limited to, household help expenses, together with the name(s) and address(es) of the recipient(s) thereof. 25. With respect to the amounts of special damages set forth in paragraph 24; (a) State whether any part of the cost of physicians’ services, medical supplies, hospital expenses, nurses’ services or loss of earning s was replaced or indemnified from any collateral source such as insurance, social security, workers’ compensation or employee benefit programs. (b) If the answer is in the affirmative, set forth separately as to each item, the amount of reimbursement received, and the name and address of the organization or program from whom each reimbursement was received. (c) For each organization or program, state the identifying number of the policy or program, and its effective dates. 26. Statement of total special damages anticipated to be incurred in the future and/or to plaintiff’s life expectancy with regard to the following: (a) Medical care, including hospital, physicians, and other medical/mental health professionals, and nurses; (b) Medications; (c) Life care, including case management, home or facility care, housing, transportation, and equipment; and (d) All other items of special damages. 27. A verified statement setting forth the residence and post office address of the plaintiff. 28. If any statutes, ordinances, regulations, laws, or rules are claimed to have been violated by the defendant, set forth the titleof any such law and the section or sections and subsection or subsections claimed to have been violated. 29. Set forth all statements made by each of the defendant, or their agents, in writing with respect to the occurrence. -4- 4840-3727-9220.1 7 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 30. State whether or not plaintiff has been reimbursed for the claims of economic loss from any collateral source. (a) Which of such claims plaintiff has been reimbursed, the amount of reimbursement received and the name of the person, firm or organization who made such reimbursement; (b) If such reimbursement was made by an insurance company, state the number of the policy under which it was paid; (c) State whether or not plaintiff has made a claim for reimbursement for economic loss to any collateral course and which has not as yet been paid; (d) If the answer to 30 (c) is in the affirmative, state the name of the person, firm, or organization to whom such claim was presented, the date of presentation, and the amount claimed. 31. Set forth whether plaintiff is claiming a reduced life expectancy, and if so, the extent of same. 32. Set forth whether plaintiff is claiming a reduced work expectancy, and if so, the extent of same. 33. Set forth each occurrence prior to the occurrence alleged in the Verified Complaint, in which the plaintiff sustained an injury to any bodily portion alleged to have been injured during the occurrence alleged in the Verified Complaint, whether or not medical care was obtained. If medical care was obtained, set forth the names(s) and address(es) of each and every health care facility/physician/therapist who treated or examined plaintiff for such prior injury. 34. State whether the occurrence alleged in the Verified Complaint was reported to defendants or anyone on defendants’ behalf. (a) If the occurrence was reported, state the date(s), time(s) and place(s) the occurrence was reported and name(s) of the person(s) on behalf of said defendants to whom it was reported. (b) State whether the said report was in writing or verbal each time it was reported to said defendants. 35. If the occurrence alleged in the Verified Complaint is claimed to have happened as a result of plaintiff’s slip, trip or fall, on or upon a product, set forth, where applicable, as follows: (a) The location of the slip, trip or fall, on or upon a product; (b) A description of the object, article, equipment or product upon which plaintiff slipped, tripped or fell; -5- 4840-3727-9220.1 8 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 (c) The manner in which the alleged slip, trip or fall in, or upon a product, caused or contributed to the injuries alleged in the Verified Complaint. 36. If the occurrence alleged in the Verified complaint is claimed to have happened due to improper or inadequate supervision, then set forth in detail: (a) The period of time during which said supervision was improper prior to the occurrence alleged in the Verified Complaint; (b) The manner in which said supervision was improper and/or inadequate’ (c) Identify the specific location within the premises at which the supervision as inadequate so as to cause the occurrence alleged in the Verified Complaint; (d) The acts and/or omissions constituting the improper or inadequate supervision; (e) Whether defendants were advised at any time prior to the occurrence (alleged in the Verified Complaint) by the plaintiff or any person on behalf of or known to plaintiff that supervision was inadequate and/or improper, stating the person(s) on behalf of said defendants who was/were so informed, the person(s) so informing said defendants and the time(s) and date(s) of said informing. (f) State the manner in which the alleged improper or inadequate supervision caused or contributed to the occurrence and injuries alleged in the Verified Complaint. 37. If the occurrence alleged in the Verified Complaint is claimed to have happened due to carelessness and/or negligence in the construction, maintenance or repair of certain premises or product then set forth in detail: (a) The manner in which such construction, maintenance or repair was careless and/or negligent; (b) Identify the specific location within the premises at which the construction, maintenance or repair was careless or negligent; (c) The specific carelessness or negligence in connection with the construction, maintenance or repair which it is alleged existed; (d) Whether defendants were advised any time prior to the occurrence (alleged in the Verified Complaint) by the plaintiff or any person(s) on behalf of or known to plaintiff that said construction, maintenance or repair was careless or negligent, stating the person(s) on behalf of said defendants who was/were so informed, the person(s) so informing said defendants and the time(s) and date(s) of said informing; -6- 4840-3727-9220.1 9 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 (e) The manner in which the alleged negligent construction, maintenance or repair of the premises or product caused or contributed to the occurrence and injuries alleged in the Verified Complaint. 38. If a product is alleged to be involved in the occurrence alleged in the Verified Complaint, sate the following: (a) In what respects plaintiff claims that the product was in a dangerous, defective and/or improper condition; (b) The location of the occurrence on the product by distances from the nearest wall, corner, or building (or other fixed and described point), stating the address of the building; (c) The manner in which the product caused or contributed to the occurrence of the injuries alleged therein. 39. If the occurrence took place on the premises where plaintiff did not have his place of residence, business or employment, state whether the plaintiff claims to be a visitor, and if so, set forth the purpose of the visit. 40. State said plaintiff’s occupation and then name and address of plaintiff’s employer(s): (a) At the time of the accident. (b) At the present time. (c) If self-employed or engaged in some other pursuit, so state and give the address. 41. Is plaintiff receiving Medicare benefits? 42. If your response to “41” above is in the affirmative, please provide: (a) Plaintiff’s Medicare Health Insurance Claim Number; (b) The date plaintiff’s eligibility began; (c) If Medicare has made any payments for health care services that are related to plaintiff’s alleged injuries, state the services and the amount paid; (d) If there is a Medicare lien for benefits plaintiff received, state the amount; (e) If Medicare has been contacted regarding plaintiff’s receipt of benefits and this lawsuit, explain in detail the result of said contact (e.g., receipt of conditional payment form, final demand, closing letter, establishment of hold back); -7- 4840-3727-9220.1 10 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 (f) A copy of plaintiff’s Medicare beneficiary card. 43. Set forth whether plaintiff has made a claim for Medicare benefits. 44. Set forth whether or not plaintiff expects to be a Medicare beneficiary within the next five (5) years. 45. Has plaintiff applied for Social Security Disability (“SSD”) benefits? 46. If plaintiff has applied for Social Security Disability (“SSD” benefits, set forth: (a) The date plaintiff applied for SSD benefits; (b) If SSD benefits were awarded, set forth: (i) The date of such award; (ii) The period for which SSD benefits were paid (i.e., 06/01/07 to present); (iii) The injury claimed that resulted in the award; (iv) The date the injury occurred for which SSD was awarded. (c) If SSD benefits were not awarded, set forth: (i) Whether or not the application was denied, and if denied, the date the denial of benefits was made; (ii) The reason for the denial as provided by the Social Security Administration; (iii) Whether or not the denial of benefits was appealed, and if appealed, the date of any such appeal; (iv) Whether or not the denial of benefits was reversed. PLEASE TAKE FURTHER NOTICE that unless this demand is complied with, the undersigned will move for (1) an order precluding plaintiff from giving evidence at the trial of the items of which particulars have not been furnished; (2) an order staying all proceedings in this action pursuant to Civil Practice Law and Rules 3042; and (3) such other and further relief as the Court may deem just and proper. -8- 4840-3727-9220.1 11 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 Dated: New York, New York Respectfully submitted, August 5, 2021 ROPERS MAJESKI PC 750 Third Avenue, 25th Floor New York, NY 10017 (212) 668-5927 By:____________________________________ ROBERT J. PALISENO Attorneys for Defendants/Third-Party Plaintiffs CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN TRANSPORTATION AUTHORITY TO: John E. Lavelle Cellino Law LLP Attorneys for Plaintiff David Fisher 600 Old Country Road, Suite 412 Garden City, NY 11530 (800) 555-5555 Ext. 2507 john.lavelle@cellinolaw.com Cody A. Brittain Cullen and Dykman LLP Attorneys for Defendant Tutor Perini Corporation i/s/h/a Tutor-Perrini 44 Wall Street, 15th Floor New York, NY 10005 (212) 732-2000 cbrittain@cullenanddykman.com Natalie D. Russell The Port Authority Law Department Attorneys for Defendant Port Authority of New York and New Jersey 4 World Trade Center 150 Greenwich Street, 23rd Floor New York, NY 10007 nrussell@panynj.gov -9- 4840-3727-9220.1 12 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 Glenn McNamee Connick, Myers, McNamee & Fitzgerald, P.L.L.C. Attorneys for Third-Party Defendant Atlantic Reinforcing Concrete Company, Inc. 1225 Franklin Avenue, Suite 510 Garden City, NY 11530 (516) 873-3900 mail@cmmf-law.com -10- 4840-3727-9220.1 13 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------- X DAVID FISHER, : : INDEX NO. 35478/2020E Plaintiffs, : : COMBINED DISCOVERY -against- : DEMANDS : TUTOR-PERINI, CITY OF NEW YORK, TRIBOROUGH : BRIDGE AND TUNNEL AUTHORITY, : METROPOLITAN TRANSPORTATION AUTHORITY, : PORT AUTHORITY OF NEW YORK AND NEW : JERSEY and ATLANTIC REINFORCING CONCRETE : COMPANY, INC. : Defendants. : : ---------------------------------------------------------------------- X : CITY OF NEW YORK, TRIBOROUGH BRIDGE AND : TUNNEL AUTHORITY, METROPOLITAN : TRANSPORTATION AUTHORITY, : : Third-Party Plaintiffs, : : -against- : : ATLANTIC REINFORCING CONCRETE COMPANY, : INC., : Third-Party Defendant. : X ---------------------------------------------------------------------- PLEASE TAKE NOTICE that defendants and third-party plaintiffs CITY OF NEW YORK, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, and METROPOLITAN TRANSPORTATION AUTHORITY (“defendants”) by their attorneys, ROPERS MAJESKI PC, hereby make the following Discovery Demands upon you pursuant to Article 31 of the Civil Practice Law and Rules. The foregoing demands are returnable at the law offices of Ropers Majeski PC, located at 750 Third Avenue, 25th Floor, New York, New York 10017, at 10:00 a.m. within twenty (20) days hereof, unless otherwise stated. 4816-5786-3924.1 14 of 45 FILED: BRONX COUNTY CLERK 08/05/2021 11:43 AM INDEX NO. 35478/2020E NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 08/05/2021 DEMAND FOR NAMES AND ADDRESSES OF PARTIES PLEASE TAKE NOTICE that pursuant to CPLR 3120, you are required to furnish the name, address, and telephone number of each party and attorney appearing in this action. DEMAND FOR NAMES, ADDRESSES AND TELEPHONE NUMBERS OF WITNESSES PLEASE TAKE NOTICE that pursuant to CPLR 3101(a), you are required to set forth in writing the name, address and telephone number of each person claimed by any party you represent to be a witness to any of the following: (a) The occurrence alleged in the Verified Complaint; (b) Any acts, omissions or conditions which allegedly caused the occurrence alleged in the Verified Complaint; (c) Any actual or constructive notice allegedly given to any defendant or any employee of any defendant or any other individual or entity claimed to be responsible for the occurrence alleged in the Verified Complaint of any condition which allegedly caused the occurrence alleged in the Verified Complaint. (d) The nature and extent of the injuries and damages which plaintiff alleges were caused by the occurrence alleged in the Verified Complaint. If no such witnesses are known, so state in the response to this Demand. The undersigned will object upon trial to the testimony of any witnesses not so identified. DEMAND FOR PHOTOGRAPHS, VIDEOTAPES AND OTHER VISUAL REPRODUCTIONS PLEASE TAKE NOTICE that pursuant to Article 31 of the CPLR, and particularly CPLR 3101, you are required to furnish duplicate originals of all photographs, videotapes and visual reproductions of the scene of the incident which is the subject of this litigation; photographs, videotapes and visual reproductions of the instrumentalities involved in such litigation; photographs, videotapes and visual reproductions depicting plaintiff’s injuries