Preview
FILED: QUEENS COUNTY CLERK 05/13/2021
08/19/2021 09:30
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PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 71
85 RECEIVED NYSCEF: 05/13/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
INDEX NO.:
703721/2018
THALIA AGATHOCLEOUS,
REPLY
Plaintiff(s),
AFFIRMATION TO
-against- CROSS-MOTION
795 FIFTH AVENUE CORPORATION d/b/a THE Honorable Pam B.
PIERRE, Jackman Brown
Defendant(s). Returnable: May 24, 2021
Albert R. Matuza, Jr., Esq., an attorney admitted to practice in the State of New York, affirms
the following under penalty of perjury:
1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for
the plaintiff, and as such am thoroughly conversant with the facts and circumstances
herein based upon the contents of the file maintained by this office.
2. I make this reply affirmation in response to the opposition papers filed by the defendant
and in support of the imtant cross-motion for an Order pursuant to New York Civil
Practice Law and Rules ("C.P.L.R.") Rule, 3025 (b), and 3025(c), granting leave to
amend a pleading and granting such other and further relief as the court deems just and
proper.
3. Defendant argues that a copy of the proposed Amended Bill of Particulars is not
"G"
annexed to the cross-motion. The proposed is annexed as Exhibit of defendant's
Particulars'
motion. That document is titled"Supplemental Verified Bill of because itis
plaintiff's contention that the pleading is a supplement and not amendmêõt As plaintiff
"1"
noted in paragraph of the affirmation in support of cross-motion, if this Court were
to find that this Supplemental Verified Bill of Particulars is an amendment, then this
Court should order the document be titled an Amended Verified Bill of Particulars or
plaintiff should be granted leave to serve an Amended Verified Bill of Particulars. The
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"G"
document annexed as Exhibit of the motion is the proposed amended document.
"A"
However, annexed hereto as Exhibit is that same document was annexed as Exhibit
"G"
to defendant's motion with the only change being the date and title of the document
now reflecting that itis the proposed amendment.
4. Defense counsel argues that they were not provided with an authorization for the 2018
W2's since the employment authorization included in Plaintiff's Responses to Combined
"D"
Demands, dated June 8, 2018 (annexed to Exhibit of the cross-motion) was dated
"K"
prior to the end of the tax year. This authorization is annexed to Exhibit of
defendant's opposition. This authorization is valid until the conclusion of litigation so
the authorization has remained valid and there is no reason why the defendant cannot
use this authorization to obtain the 2018 W2's. Defendant also argues the employment
"B"
authorization did not include the payroll records. Annexed hereto as Exhibit is an
additional employment authorization.
5. Defense counsel also argues that since at the time of plaintiff's deposition the plaintiff
was not claiming lost wages, the defendant did not ask plaintiff questions pertaining to
inissed time from work or lost wages at the deposition. As noted in the cross-motion, if
the defendant wanted a further deposition limited to plaintiff's lost wages claim, the
defendant's counsel could have served a notice of deposition or contacted this office to
schedule it,both of which have not been done. Therefore, itis the continuing position of
this office that defendant has waived their right to a further deposition since they have
not sought this limited further deposition which should be held prior to a date certain.
6. Defendant also argues that the plaintiff has failed to show any causal relationship
between the rib fracture and accident. However, that is not accurate, Dr. Guy's report
"4"
noted that he reviewed the X-Ray report of the ribs (See paragraph of page "1") and
healed."
his diagnoses included "Status post fracture of the eight rib,now (he number
"4" "Diagnosis"
of the Section titled on page 2) of Dr. Guy's report annexed to the
cross-motion as Exhibit "F". Plaintiff also testified that after her fall she felt pain to her
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ribs, which was mostly on her right side. S_ee the deposition transcript annexed to the
"G"
cross motion as Exhibit at p. 42, line 12 to p. 44, line 7.
7. Lastly, defendant argues plaintiff's relief sought in the cross-motion should be denied
since plaintiff has not shown any valid excuse for the delay in serving the subject
supplemental or amended document. However, the defendant does not provide any
examples of prejudice by service the aforesaid Supplemental Verified Bill of Particulars
after the filing of the Note of Issue and Certificate of Readiness and cannot claim any
prejudice.
WHEREFORE, in view of the foregoing, it is hereby respectfully requested that the plaintiff's
cross-motion be granted, together with any such other and further relief as to this Honorable Court
may deem just and proper.
Dated: Astoria, New York
May 11, 2021
ALBERT R. MATUZA, JR.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index No.: 703721/2018
THALIA AGATHOCLEOUS,
Plaintiff(s),
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE,
Defendant(s).
REPLY AFFIRMATION TO CROSS-MOTION
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts
of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed documents are not frivolous.
Dated: New York -
Astoria,
May 11, 2021 Signature:
Alifert R. satuza, Jr.,Esq.
SACCO & FILLAS, LLP
Attorneys for Plaintiff
31-19 Newtown Avenue
Seventh Floor
Astoria, New York 11102
(718) 746-3440
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SUPREME COURT OF THE STATE OF NEW YORK Index #: 703721/2018
COUNTY OF QUEENS
SUPPLEMENTAL
THALIA AGATHOCLEOUS VERIFIED BILL
OF PARTICULARS
Plaintiff(s),
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE
Defendant(s).
Plaintiff Thalia Agathocleous, by her attorneys, Sacco & Fillas LLP, as and for her
Supplemental Verified Bill of Particulars, respectfully submits as follows:
1. As a result of the accident herein, plaintiff, Thalia Agathocleous, will claim the following
additional serious, severe and permanent personal injuries:
• Fracture of right posterior eighth rib;
• Blunted right costophrenic angle;
• Pleural fluid.
In order to negate needless duplication, the plaintiff incorporates by reference the hospital
physicians'
records and reports to be served in conjunction with the medical exchange rules insofar
as the conteñts thereof are admissible in evidence at the trial of this action, and to the extent itis
consistent with the injuries alleged in the Bill of Particulars.
All of the foregoing injuries are with involvement of the surro'mmns muscles, bones,
ligaments, tendons, nerves, both venous and arterial,fascia and other soft parts in said regions, and
with pain, deformity and disability. Said injuries, upon information and belief, are permanent and
protracted in nature.
2. Plaintiff will claim the following special damages:
SACCO& FILLAS,LL
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a. Loss of Earñiñgs: Approximately $244,417.73
Plaintiff(s) reserves the right to amend and/or supplement this res se up to d including
the time of trial.
Dated: Astoria, New York
February 3, 2021
By: Toni o Sacco, Esq.
SACC & FILLAS, L
Atto eys for Plainti s)
31-1 Newtown enue
Sev nth Flo
Asto , ew York 11102
(718) 746-3440
Our File # 20173-18
TO:
McMahon, Martine & Gallagher, LLP
Attorney for Defendant(s)
795 FIFTH AVENUE CORPORATION
55 Washington Street, 7th Floor
Brooklyn, NY 11201
(212) 747-1230
SACCO& FILLAS,LL *
FILED: QUEENS COUNTY CLERK 05/13/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
INDEX NO.: 703721/2018
THALIA AGATHOCLEOUS
Plaintiff(s), ATTORNEY'S
VERIFICATION
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE
Defendant(s).
Tonino Sacco, Esq., an attorney duly admitted to practice law in the State of New York,
makes the following affirmation under the penalty of perjury:
I am of the firm of SACCO & FILLAS, LLP, the attorneys of record for the plaintiff.
I have read the foregoing Supplemental Bill of Particulars and know the contents thereof;
the same is true to my own knowledge except as to the matters therein stated to be alleged on
information and belief and that as to those matters, I believe them to be true.
This verification is made by affirmant and not by plaintiff because she is not in the County
of Queens, which is the County where your affirmant maintains offices.
The grounds of affirmant's belief as to all ers not sta ed upon affirmant's knowledge are
correspondence had with the said plaintiff, i a 10 contain in the said plaintiffs file, which is
in affirmant's possession, and other pe e data re ing ther 0.
Dated: Queens, New York
February 3, 2021
Ton o Sacco, Esq
SACCO&FILLAS, LL *
FILED: QUEENS COUNTY CLERK 05/13/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
INDEX NO.: 703721/2018
THALIA AGATHOCLEOUS
Plaintiff(s), AFFIDAVIT OF MAIL
SERVICE
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE
Defendant(s).
STATE OF NEW YORK
COUNTY OF QUEENS
Regina M. Szmuc, being duly sworn, says:
I am not a party to the action; I reside at Queens, New York and I am over 18 years of age.
On 3 day of February, 2021, I served the within P1nintifFs Supplemental Verified Bill of
Particulars by depositing a true copy thereof, enclosed in a post-paid wrapper, in an official
depository under the exclusive care and custody of the United States Postal Service within New York
State, addressed to the following at the last known address set forth below:
McMahon, Martine & Gallagher, LLP
55 Washington Street, 7th Floor
Brooklyn, NY 11201
Regina M. Szmuc
Sworn to befor m
3 day of Febru 021
TONINO SACCO
Notary Public, State of New York
No.02SA4979498
Qualified in Queens
County
NOTARY PU IC mmission Expires April 01, 2023
FILED: QUEENS COUNTY CLERK 05/13/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index No.: 703721/2018
THALIA AGATHOCLEOUS
Plaintiff(s),
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE
Defendant(s).
PLAINTIFF'S SUPPLEMENTAL VERIFIED BILL OF PARTICULARS
Pursuant to 22 NYCRR 130-1.1, the undersigned, an atto
New York State, certifies that, upon information and bel
contained in the annexed documents are not frivolous.
Dated: Queens, NY
February 3, 2021
Signa
By: T
SACCO 4 FILLA,
Attorneys for Plainti ff(s)
Thalia Agathocleous
31-19 Newtown Avenue
Seventh Floor
Astoria, New York 11102
(718) 746-3440
Our File 8 20173-18
SACCO5 FILLAS,LL
FILED: QUEENS COUNTY CLERK 05/13/2021
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Sacco & Fillas, II P
Attorneys at Law
31-19 Newtown Avenue
Seventh Floor
Astoria, NY 11102
May 13, 2021
Tel: 718 746-3440
Direct: 718 269-2231
Direct Fax: 718 425-9931 McMahon, Martine & Gallagher, LLP
55 Washington Street, 7th Floor
rszmuc@saccofillas.com Brooklyn, NY 11201
www.saccofillas.com
Re: Agathocleous v. 795 Fifth Avenue Corporation
Sacco*
Tonino Index #: 703721/2018
EliasN. Fillas
Brandimarte* D/A: 01/06/2018
Luigi
Our File No.: 20173-18
Elizabeth A. Athenas Your File Number: 553.0215
Baez*
James R.
Alexander Berger
Boris Bernstein Dear Counselor:
Eric S. Cantor
la°ªn"al G on n In furtherance of the plaintiff's ongoing response to the defendant's demands,
Zachary S. Kaplan enclosed herein please find a duly executed and acknowledged authorization to
obtain plaintiff's employment records from SBK Associates Inc., 3 East 63 Street
1-Î haran Krishnaraj
ElliotL. Lewis # 1C, New York, NY 10065.
PatriciaR. Lynch
If you have any further questions or need any further documentation, please
4 bertR. Matuz Jr.
PatrickJ. McGrath contact the undersigned. Thank you for your attention in this matter.
Lamont K.Rodgers
Richard E Schirmer
Morris J. Schlaf Very Truly Yours,
Jared Scotto SACCO & FILLAS, LLP
David E. Silverman
Cindy S. Simms
U. William Sung
Michael S. Warycha By: Regina M. Szm Paralegal
c,
Dana M. Whitfield
James A. Wolff
Alsoadmitted in New,Jersey
Bayside Office:
42-40 BellBoulevard
Suite 300
Bayside, NY 11361
New Office:
Jersey
2160 North Central Road
Suite 100-3
Fort Lee, NJ 07624
FILED: QUEENS COUNTY CLERK 05/13/2021
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Power of Attorney
To Execute HIPAA Medical Record Authorization Forms Pursuant to NY Public
Health Law § 18(1)(G) As Amended 10/26/04.
(insert your name and address)
do hereby appoint: SACCO & FILLAS, LLP, their attorneys, employees and agents
with offices at31-19 NEWTOWN AVENUE, SEVENTH FLOOR, ASTORIA, NEW
YORK 11102, my attorneys-in-fact to act (each agent may act separately) in my name,
place, and stead in any way which I myself could do, ifI were personally present to
execute HIPAA medical records authorization forms pursuañ‡ to NY Public Health
Law § 18(1)(G) as a:nended 10/26/04. This power of attorney may be revoked by me at
any time. This Power of Attorney shall not be affected by my subsequent disability or
incompetence.
To induce any third party to act hereunder, I hereby agree that any third party receiving a
duly executed copy or facsimile of thisinstrument may act hereunder, and that revocation
or termination hereof shall be ineffective as to such third party unless and until actual
notice or knowledge of such revocatica or termination shall have been received by such
third party, and I for myself and for my heirs, executors, legal representatives and
assigns, hereby agree to indemnify and hold harmless any such third party from and
against any and all claims that may arise against such third party by reason of such third
party having relied on the provisions of thisinstrument.
In Witness Whereof I have hereunto signed my name this Óday of , 20Ó
(IslGNATURE)
Acknowledgement
STATE OF NEW YORK
COUNTY OF QUEENS
On this day of , 20 efore me theundersigned, personally appeared
, personallyknown to be orproved to me on thebasis of
satisfactoryevidence tobe the individü-1 whose name is subscribedto the within instrument and
acknowledged to me that he executed the same inhis capacity,and thatby his sigñarare on the
instrument, the individual,or theperson who acted on behalf ofthe iñdividual,---ested the
instrument and thatsuch individual made such appearance before the undersigned atQueens,
w York.
No - REGINA M S2MUC
0
Notary Public • State of New York
NO. 015Z6342939
Qualified in 0ueens County
My Commission Expires May 31, 2020
FILED: QUEENS COUNTY CLERK 05/13/2021
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NYSCEF DOC. NO. 73
85 OCA
RECEIVED NYSCEF:
Official Form 05/13/2021
08/19/2021
No.: 960
AUTHORIZATION FOR RELEASE OF HEALTH INFORMATION PURSUANT TO HIPAA
[This form has been approved by the New York State Department of Health]
PatientName ThaliaAga‡sdwüs Date ofBirth: SocialSecurityNumber:
PatientAddress 110-2955th Avenue NY
, Flushing, 11368
I,or my authorized represeñtative,request thathealth infarmation regardiñg my care and treatmentbe released as set forthon thisform:
In accordance with New York State Law and the Privacy Rule of the Health Insurance Portabilityand Accountability Act of 1996
(HIPAA), I understand that:
1. This authorization may include disclosure of iñfermatiün relatingto ALCOHOL and DRUG ABUSE, MENTAL HEALTH
except and CONFIDENTIAL HIV* RELATED INFORMATION ifI place initials
on
TREATMENT, psychotherapy notes, only my
the apprepriate linein Item 9(a). Inthe event the health info=etion described below includesany ofthese types of information, and I
initial
the lineon thebox inItem 9(a), I specifically
authorize release ofsuch information tothe persons(s) indicated inItem 8.
2. If I am authoriziñgthe release ofHIV related, alcoholor drug treatment, or mental health treatment information therecipient is
prohibited from redisclosing such information without my authorizationunless permitted to do so under federal orstate law. Iunderstand
that I havea rightto requesta listof people who may receive oruse my HIV relatedinfe=2tien without authorization. IfI experience
discriminatioñ because of therelease or disclosureof HIV-related information, I may contact theNew York State Division of Human
Rights at (212)480-2493 or theNew York City Commission of human rightsat (212)306-7450. These agencies are responsible for
protecting my rights.
3. I havethe rightto revoke thisauthorization at anytime by writingto the healthcare provider listedbelow. I understandthat I may
revoke thisauthorization except to theextent thataction has already been taken based on thisauthorization.
4. I understandthatsigning thisauthorization is voluntary.My treatment, pay·nent, enrollment in a healthplan, orcligibilityforbenefits
willnot be conditioned upon my authorization ofthis disclosure.
5. Information disclosed under thisauthorizaticñ might be redisclosed the racipient(except as noted above inItem 2),and this
by
redisclosure may no longer be protected by federalor statelaw.
6.THIS AUTHORIZATION DOES NOT AUTHORIZE YOU TO DISCUSS MY HEALTH INFORMATION OR MEDICAL
CARE WITH ANYONE OTHER THAN THE ATTORNEY OR GOVERNMENTAL AGENCY SPECIFIED IN ITEM 9 (b).
7. Name and address of healthprovidct or entityto releasethisinfa=ation:
SBK Asseeistes Inc.,3 East 63 Street # IC, New York, NY 10065
8. Name and address of person(s) or categ0ry of person to whom thisinformation willbe sent:
McMehen, Martine & Gallagher, LLP, 55 Washing;n Street,7th Floor, Brooklyn, NY 11201
9(a). Specific information to be released.
O Medical Record from
Entire Medical Record, incim!ing patienthistories,office notes (except psychothempy notes),testresults,radislugy studies,
films,referrals,cêñssh, billingrecords, insumace records, and records sent toyou by otherhealth care providers.
Other: Employment records, W-2's, Payroll Records Iñcinde.(Indicatebyinitialing)
AlcGho!/Drug Treatment
Mental Health Information
HIV-Related Information
Authorization to Discuss Health Information
(b) O By initialinghere I authorize
Initials Name ofindividual healthcare provider
to discussmy health inf=aticñ with my attorney, or a g-menta! agency, listedhere:
(Attorney/Firm Name or Govemmêñul Agency Name)
10. Reason for releaseof information: 11. Date orevent on which thisautherizãtion will expire:
O At request of individual
Other: Legal Matter UPON CONCLUSION OF THIS MATTER
12. Ifnot the patient,name of person signing form: 13. Authority to signon behalf of patient:
SACCO & FILLAS, LLP BY: Regina Szmuc ATTORNEY-IN-FACT
All items o is formhave been ccrp!:t d and my qüestiüñs about thisform have been answered. In addinan, I have been provided a
copy of th
Date:_May 13,2021
Signature of patient r repicscntativ authorized by law
*Human !rs:::deficiency Virus thatcauses AIDS. The New York State Public Health Law protects information which
reasonably could identify:::::ne as having HIV syr;±ers or iniccticñ and informatiGñ regarding a person's cêñtacts.
Preview
FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS INDEX NO.: 703721/2018 THALIA AGATHOCLEOUS, REPLY Plaintiff(s), AFFIRMATION TO -against- CROSS-MOTION 795 FIFTH AVENUE CORPORATION d/b/a THE Honorable Pam B. PIERRE, Jackman Brown Defendant(s). Returnable: May 24, 2021 Albert R. Matuza, Jr., Esq., an attorney admitted to practice in the State of New York, affirms the following under penalty of perjury: 1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for the plaintiff, and as such am thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this reply affirmation in response to the opposition papers filed by the defendant and in support of the imtant cross-motion for an Order pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Rule, 3025 (b), and 3025(c), granting leave to amend a pleading and granting such other and further relief as the court deems just and proper. 3. Defendant argues that a copy of the proposed Amended Bill of Particulars is not "G" annexed to the cross-motion. The proposed is annexed as Exhibit of defendant's Particulars' motion. That document is titled"Supplemental Verified Bill of because itis plaintiff's contention that the pleading is a supplement and not amendmêõt As plaintiff "1" noted in paragraph of the affirmation in support of cross-motion, if this Court were to find that this Supplemental Verified Bill of Particulars is an amendment, then this Court should order the document be titled an Amended Verified Bill of Particulars or plaintiff should be granted leave to serve an Amended Verified Bill of Particulars. The SACCO& FILLAS,LLP 1 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 "G" document annexed as Exhibit of the motion is the proposed amended document. "A" However, annexed hereto as Exhibit is that same document was annexed as Exhibit "G" to defendant's motion with the only change being the date and title of the document now reflecting that itis the proposed amendment. 4. Defense counsel argues that they were not provided with an authorization for the 2018 W2's since the employment authorization included in Plaintiff's Responses to Combined "D" Demands, dated June 8, 2018 (annexed to Exhibit of the cross-motion) was dated "K" prior to the end of the tax year. This authorization is annexed to Exhibit of defendant's opposition. This authorization is valid until the conclusion of litigation so the authorization has remained valid and there is no reason why the defendant cannot use this authorization to obtain the 2018 W2's. Defendant also argues the employment "B" authorization did not include the payroll records. Annexed hereto as Exhibit is an additional employment authorization. 5. Defense counsel also argues that since at the time of plaintiff's deposition the plaintiff was not claiming lost wages, the defendant did not ask plaintiff questions pertaining to inissed time from work or lost wages at the deposition. As noted in the cross-motion, if the defendant wanted a further deposition limited to plaintiff's lost wages claim, the defendant's counsel could have served a notice of deposition or contacted this office to schedule it,both of which have not been done. Therefore, itis the continuing position of this office that defendant has waived their right to a further deposition since they have not sought this limited further deposition which should be held prior to a date certain. 6. Defendant also argues that the plaintiff has failed to show any causal relationship between the rib fracture and accident. However, that is not accurate, Dr. Guy's report "4" noted that he reviewed the X-Ray report of the ribs (See paragraph of page "1") and healed." his diagnoses included "Status post fracture of the eight rib,now (he number "4" "Diagnosis" of the Section titled on page 2) of Dr. Guy's report annexed to the cross-motion as Exhibit "F". Plaintiff also testified that after her fall she felt pain to her SACCO& FILLAS,LLP 2 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 ribs, which was mostly on her right side. S_ee the deposition transcript annexed to the "G" cross motion as Exhibit at p. 42, line 12 to p. 44, line 7. 7. Lastly, defendant argues plaintiff's relief sought in the cross-motion should be denied since plaintiff has not shown any valid excuse for the delay in serving the subject supplemental or amended document. However, the defendant does not provide any examples of prejudice by service the aforesaid Supplemental Verified Bill of Particulars after the filing of the Note of Issue and Certificate of Readiness and cannot claim any prejudice. WHEREFORE, in view of the foregoing, it is hereby respectfully requested that the plaintiff's cross-motion be granted, together with any such other and further relief as to this Honorable Court may deem just and proper. Dated: Astoria, New York May 11, 2021 ALBERT R. MATUZA, JR. 3 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No.: 703721/2018 THALIA AGATHOCLEOUS, Plaintiff(s), -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, Defendant(s). REPLY AFFIRMATION TO CROSS-MOTION Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: New York - Astoria, May 11, 2021 Signature: Alifert R. satuza, Jr.,Esq. SACCO & FILLAS, LLP Attorneys for Plaintiff 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 (718) 746-3440 SACCO& FILLAS,LLP 4 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 72 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK Index #: 703721/2018 COUNTY OF QUEENS SUPPLEMENTAL THALIA AGATHOCLEOUS VERIFIED BILL OF PARTICULARS Plaintiff(s), -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE Defendant(s). Plaintiff Thalia Agathocleous, by her attorneys, Sacco & Fillas LLP, as and for her Supplemental Verified Bill of Particulars, respectfully submits as follows: 1. As a result of the accident herein, plaintiff, Thalia Agathocleous, will claim the following additional serious, severe and permanent personal injuries: • Fracture of right posterior eighth rib; • Blunted right costophrenic angle; • Pleural fluid. In order to negate needless duplication, the plaintiff incorporates by reference the hospital physicians' records and reports to be served in conjunction with the medical exchange rules insofar as the conteñts thereof are admissible in evidence at the trial of this action, and to the extent itis consistent with the injuries alleged in the Bill of Particulars. All of the foregoing injuries are with involvement of the surro'mmns muscles, bones, ligaments, tendons, nerves, both venous and arterial,fascia and other soft parts in said regions, and with pain, deformity and disability. Said injuries, upon information and belief, are permanent and protracted in nature. 2. Plaintiff will claim the following special damages: SACCO& FILLAS,LL FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 72 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 a. Loss of Earñiñgs: Approximately $244,417.73 Plaintiff(s) reserves the right to amend and/or supplement this res se up to d including the time of trial. Dated: Astoria, New York February 3, 2021 By: Toni o Sacco, Esq. SACC & FILLAS, L Atto eys for Plainti s) 31-1 Newtown enue Sev nth Flo Asto , ew York 11102 (718) 746-3440 Our File # 20173-18 TO: McMahon, Martine & Gallagher, LLP Attorney for Defendant(s) 795 FIFTH AVENUE CORPORATION 55 Washington Street, 7th Floor Brooklyn, NY 11201 (212) 747-1230 SACCO& FILLAS,LL * FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 72 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS INDEX NO.: 703721/2018 THALIA AGATHOCLEOUS Plaintiff(s), ATTORNEY'S VERIFICATION -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE Defendant(s). Tonino Sacco, Esq., an attorney duly admitted to practice law in the State of New York, makes the following affirmation under the penalty of perjury: I am of the firm of SACCO & FILLAS, LLP, the attorneys of record for the plaintiff. I have read the foregoing Supplemental Bill of Particulars and know the contents thereof; the same is true to my own knowledge except as to the matters therein stated to be alleged on information and belief and that as to those matters, I believe them to be true. This verification is made by affirmant and not by plaintiff because she is not in the County of Queens, which is the County where your affirmant maintains offices. The grounds of affirmant's belief as to all ers not sta ed upon affirmant's knowledge are correspondence had with the said plaintiff, i a 10 contain in the said plaintiffs file, which is in affirmant's possession, and other pe e data re ing ther 0. Dated: Queens, New York February 3, 2021 Ton o Sacco, Esq SACCO&FILLAS, LL * FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 72 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS INDEX NO.: 703721/2018 THALIA AGATHOCLEOUS Plaintiff(s), AFFIDAVIT OF MAIL SERVICE -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE Defendant(s). STATE OF NEW YORK COUNTY OF QUEENS Regina M. Szmuc, being duly sworn, says: I am not a party to the action; I reside at Queens, New York and I am over 18 years of age. On 3 day of February, 2021, I served the within P1nintifFs Supplemental Verified Bill of Particulars by depositing a true copy thereof, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to the following at the last known address set forth below: McMahon, Martine & Gallagher, LLP 55 Washington Street, 7th Floor Brooklyn, NY 11201 Regina M. Szmuc Sworn to befor m 3 day of Febru 021 TONINO SACCO Notary Public, State of New York No.02SA4979498 Qualified in Queens County NOTARY PU IC mmission Expires April 01, 2023 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 72 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No.: 703721/2018 THALIA AGATHOCLEOUS Plaintiff(s), -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE Defendant(s). PLAINTIFF'S SUPPLEMENTAL VERIFIED BILL OF PARTICULARS Pursuant to 22 NYCRR 130-1.1, the undersigned, an atto New York State, certifies that, upon information and bel contained in the annexed documents are not frivolous. Dated: Queens, NY February 3, 2021 Signa By: T SACCO 4 FILLA, Attorneys for Plainti ff(s) Thalia Agathocleous 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 (718) 746-3440 Our File 8 20173-18 SACCO5 FILLAS,LL FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 73 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 Sacco & Fillas, II P Attorneys at Law 31-19 Newtown Avenue Seventh Floor Astoria, NY 11102 May 13, 2021 Tel: 718 746-3440 Direct: 718 269-2231 Direct Fax: 718 425-9931 McMahon, Martine & Gallagher, LLP 55 Washington Street, 7th Floor rszmuc@saccofillas.com Brooklyn, NY 11201 www.saccofillas.com Re: Agathocleous v. 795 Fifth Avenue Corporation Sacco* Tonino Index #: 703721/2018 EliasN. Fillas Brandimarte* D/A: 01/06/2018 Luigi Our File No.: 20173-18 Elizabeth A. Athenas Your File Number: 553.0215 Baez* James R. Alexander Berger Boris Bernstein Dear Counselor: Eric S. Cantor la°ªn"al G on n In furtherance of the plaintiff's ongoing response to the defendant's demands, Zachary S. Kaplan enclosed herein please find a duly executed and acknowledged authorization to obtain plaintiff's employment records from SBK Associates Inc., 3 East 63 Street 1-Î haran Krishnaraj ElliotL. Lewis # 1C, New York, NY 10065. PatriciaR. Lynch If you have any further questions or need any further documentation, please 4 bertR. Matuz Jr. PatrickJ. McGrath contact the undersigned. Thank you for your attention in this matter. Lamont K.Rodgers Richard E Schirmer Morris J. Schlaf Very Truly Yours, Jared Scotto SACCO & FILLAS, LLP David E. Silverman Cindy S. Simms U. William Sung Michael S. Warycha By: Regina M. Szm Paralegal c, Dana M. Whitfield James A. Wolff Alsoadmitted in New,Jersey Bayside Office: 42-40 BellBoulevard Suite 300 Bayside, NY 11361 New Office: Jersey 2160 North Central Road Suite 100-3 Fort Lee, NJ 07624 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 73 85 RECEIVED NYSCEF: 05/13/2021 08/19/2021 Power of Attorney To Execute HIPAA Medical Record Authorization Forms Pursuant to NY Public Health Law § 18(1)(G) As Amended 10/26/04. (insert your name and address) do hereby appoint: SACCO & FILLAS, LLP, their attorneys, employees and agents with offices at31-19 NEWTOWN AVENUE, SEVENTH FLOOR, ASTORIA, NEW YORK 11102, my attorneys-in-fact to act (each agent may act separately) in my name, place, and stead in any way which I myself could do, ifI were personally present to execute HIPAA medical records authorization forms pursuañ‡ to NY Public Health Law § 18(1)(G) as a:nended 10/26/04. This power of attorney may be revoked by me at any time. This Power of Attorney shall not be affected by my subsequent disability or incompetence. To induce any third party to act hereunder, I hereby agree that any third party receiving a duly executed copy or facsimile of thisinstrument may act hereunder, and that revocation or termination hereof shall be ineffective as to such third party unless and until actual notice or knowledge of such revocatica or termination shall have been received by such third party, and I for myself and for my heirs, executors, legal representatives and assigns, hereby agree to indemnify and hold harmless any such third party from and against any and all claims that may arise against such third party by reason of such third party having relied on the provisions of thisinstrument. In Witness Whereof I have hereunto signed my name this Óday of , 20Ó (IslGNATURE) Acknowledgement STATE OF NEW YORK COUNTY OF QUEENS On this day of , 20 efore me theundersigned, personally appeared , personallyknown to be orproved to me on thebasis of satisfactoryevidence tobe the individü-1 whose name is subscribedto the within instrument and acknowledged to me that he executed the same inhis capacity,and thatby his sigñarare on the instrument, the individual,or theperson who acted on behalf ofthe iñdividual,---ested the instrument and thatsuch individual made such appearance before the undersigned atQueens, w York. No - REGINA M S2MUC 0 Notary Public • State of New York NO. 015Z6342939 Qualified in 0ueens County My Commission Expires May 31, 2020 FILED: QUEENS COUNTY CLERK 05/13/2021 08/19/2021 09:30 03:51 AM PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 73 85 OCA RECEIVED NYSCEF: Official Form 05/13/2021 08/19/2021 No.: 960 AUTHORIZATION FOR RELEASE OF HEALTH INFORMATION PURSUANT TO HIPAA [This form has been approved by the New York State Department of Health] PatientName ThaliaAga‡sdwüs Date ofBirth: SocialSecurityNumber: PatientAddress 110-2955th Avenue NY , Flushing, 11368 I,or my authorized represeñtative,request thathealth infarmation regardiñg my care and treatmentbe released as set forthon thisform: In accordance with New York State Law and the Privacy Rule of the Health Insurance Portabilityand Accountability Act of 1996 (HIPAA), I understand that: 1. This authorization may include disclosure of iñfermatiün relatingto ALCOHOL and DRUG ABUSE, MENTAL HEALTH except and CONFIDENTIAL HIV* RELATED INFORMATION ifI place initials on TREATMENT, psychotherapy notes, only my the apprepriate linein Item 9(a). Inthe event the health info=etion described below includesany ofthese types of information, and I initial the lineon thebox inItem 9(a), I specifically authorize release ofsuch information tothe persons(s) indicated inItem 8. 2. If I am authoriziñgthe release ofHIV related, alcoholor drug treatment, or mental health treatment information therecipient is prohibited from redisclosing such information without my authorizationunless permitted to do so under federal orstate law. Iunderstand that I havea rightto requesta listof people who may receive oruse my HIV relatedinfe=2tien without authorization. IfI experience discriminatioñ because of therelease or disclosureof HIV-related information, I may contact theNew York State Division of Human Rights at (212)480-2493 or theNew York City Commission of human rightsat (212)306-7450. These agencies are responsible for protecting my rights. 3. I havethe rightto revoke thisauthorization at anytime by writingto the healthcare provider listedbelow. I understandthat I may revoke thisauthorization except to theextent thataction has already been taken based on thisauthorization. 4. I understandthatsigning thisauthorization is voluntary.My treatment, pay·nent, enrollment in a healthplan, orcligibilityforbenefits willnot be conditioned upon my authorization ofthis disclosure. 5. Information disclosed under thisauthorizaticñ might be redisclosed the racipient(except as noted above inItem 2),and this by redisclosure may no longer be protected by federalor statelaw. 6.THIS AUTHORIZATION DOES NOT AUTHORIZE YOU TO DISCUSS MY HEALTH INFORMATION OR MEDICAL CARE WITH ANYONE OTHER THAN THE ATTORNEY OR GOVERNMENTAL AGENCY SPECIFIED IN ITEM 9 (b). 7. Name and address of healthprovidct or entityto releasethisinfa=ation: SBK Asseeistes Inc.,3 East 63 Street # IC, New York, NY 10065 8. Name and address of person(s) or categ0ry of person to whom thisinformation willbe sent: McMehen, Martine & Gallagher, LLP, 55 Washing;n Street,7th Floor, Brooklyn, NY 11201 9(a). Specific information to be released. O Medical Record from Entire Medical Record, incim!ing patienthistories,office notes (except psychothempy notes),testresults,radislugy studies, films,referrals,cêñssh, billingrecords, insumace records, and records sent toyou by otherhealth care providers. Other: Employment records, W-2's, Payroll Records Iñcinde.(Indicatebyinitialing) AlcGho!/Drug Treatment Mental Health Information HIV-Related Information Authorization to Discuss Health Information (b) O By initialinghere I authorize Initials Name ofindividual healthcare provider to discussmy health inf=aticñ with my attorney, or a g-menta! agency, listedhere: (Attorney/Firm Name or Govemmêñul Agency Name) 10. Reason for releaseof information: 11. Date orevent on which thisautherizãtion will expire: O At request of individual Other: Legal Matter UPON CONCLUSION OF THIS MATTER 12. Ifnot the patient,name of person signing form: 13. Authority to signon behalf of patient: SACCO & FILLAS, LLP BY: Regina Szmuc ATTORNEY-IN-FACT All items o is formhave been ccrp!:t d and my qüestiüñs about thisform have been answered. In addinan, I have been provided a copy of th Date:_May 13,2021 Signature of patient r repicscntativ authorized by law *Human !rs:::deficiency Virus thatcauses AIDS. The New York State Public Health Law protects information which reasonably could identify:::::ne as having HIV syr;±ers or iniccticñ and informatiGñ regarding a person's cêñtacts.