Motion to Withdraw Exhibits in Shonique Cason v. Cornerstone Manor, Lp| Trellis.Law

On October 04, 2017 a Exhibit,Appendix was filed involving a dispute between Shonique Cason, and Cornerstone Manor, Lp, for Torts - Other Negligence (Slip and Fall) in the District Court of Erie County.

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FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

EXHIBITD
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

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STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE

SHONIQUE CASON,
VERIFIED
Plaintiff; BILL OF PARTICULARS
v.

CORNERSTONE MANOR, L.P.,
Index No.: 814033/2017
Defendant.

PLEASE TAKE NOTICE that the Plaintiff; SHONIQUE CASON, by and through

her attorneys, the Law Offices of Robert D. Berkun, responds to the demand of the Defendant,

CORNERSTONE MANOR, L.P., as follows:

1. Objection. This is not a proper question for a Bill of Particulars pursuant to

CPLR Rule 3043. Notwithstanding said objection, Plaintiffs date of birth is • • • and
her SSN is _ _. _

2. Objection. This is not a proper question for a Bill of Particulars pursuant to

CPLR Rule 3043.

3. The incident occurred on December 18, 2016 at approximately 10:30-

1I:00AM.

4. Plaintiff was caused to slip and fall to the ground due to an unreasonable

accumulation of ice and/or snow on a walkway of the property located at 150 E. North Street in

the City of Buffalo, New York.

5. Plaintiffs injuries were due to the negligence of the Defendant and consist

of the following: neck pain; numbness and tingling in her upper extremities; C4-5 disc herniation

indenting the anterior aspect of the thecal sac; C5-6 disc herniation indenting the anterior aspect
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

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of the thecal sac;, C6-7, disc herniation indenting the anterior aspect of the thecal sac; small disc

herniations at C2-3 and C3-4; bilateral rotator cuff tendonitis and impingement; internal

derangement of the right shoulder; right C6 radiculopathy; right median sensory neuropathy;

cervicalgia; C4-7 disc herniation without myelopathy and with radiculopathy; Plaintiff required a

surgical procedure on her neck that consisted of, among other things, (1) anterior discectomy CS-

6 and C6-7, (2) anterior disceclomy and fusion without carpectomy at C4-S, (3) partial corpectomy

inferior portion of the CS vertebral body and superior portion ofthe C6 vertebral body and superior

portion of the C7 vertebral body, decompression of the spinal cord C5-6; (4) anterior interbody

fuSion utilizing ,intervertebral PEEK cages at C4-C7 with application of intravertebral

biomechanicaJ device X 3; (5) anterior cervical fusion utilizing demineralized bone matrix and

local bone; and (6) anterior cervical instrumentation utilizing an anterior cervical plate; scar as,a

result of the aforementioned surgery; pain, swelling, tenderness, bruising and loss of range of

motion to the bones, muscles, ligaments, tendons and soft tissues surrounding the aforementioned

body parts.

Each of the above injuries is considered to be permanent and progress except for

those of a superficial nature.

6. Upon infonnation and belief:

a. Three (3) days;

b. None; and

c. Plaintiff was generally confined to her home, with some exceptions,

for a period of one (I) month following her surgery.

7. At the time of the incident, Plaintiff was employed by the Buffalo City

Mission 100 E Tupper St, Buffalo, NY 14203 as a Residential Coordinator. At the time of her

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FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

· . )'

injuries, she was earning $13.00 per hour and working forty (40) hours per week. She was unable

to return to work until she was terminated from her position in September 2017 due to her inability

to work. She lost approximately $16,640.00 in wages due to her injuries.

8. Upon infonnation and belief, the Plaintiff was charged the following

amounts:

a. $20,000.00

b. $27,500.00

c, None

d. $1,500.00

e. $750.00

f. None at this time.

Note that the above figures are estimates. Upon ascertaining more definite

amounts, those figures will be provided to the Defendant.

Plaintiff reserves the right to supplement the above response.

9. Upon infonnation and belief, the acts andlor omissions of the Defendant,

CORNERSTONE MANOR, L.P., its agents, servants, employees and/or contractors, that

constituted negligence, carelessness andlor reckless are as follows: the Defendant failed to salt,

sand or apply other ice melter to the walkway outside the entrance of its building; Defendant failed

to timely remove ice andlor snow from the walkway leading to its building; Defendant failed to

wam Plaintiff of the dangerous condition of the walkway when the Defendant knew, or should

have known in the exercise of reasonable care, that people lawfully on the premises would use this

point of ingress and egress which was then hazardous due to the accumulation of ice andlor snow

thereon; Defendant failed to correct the condition of the walkway which was in existence for hours

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FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

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andlor days prior to Plaintiff's fall; Defendant knew, or should have known in the exercise of

reasonable care, of the excessive buildup of ice andlor snow on the walkway and failed to take any

measures to block access to the dangerous area to prevent injury to those lawfully thereon; Plaintiff

was il\iured as a result of the dangerous condition which was allowed to occur and continue on the

premises due to the action and/or inaction of the Defendant; Defendant had a duty to properly

inspect and maintain the premises, and keep same in a reasonably safe condition to prevent

foreseeable injury to other persons on the premises; Defendant knew, or should have known in the

exercise of reasonable care, of the existence of the dangerous and hazardous condition consisting

of an unreasonable accumulation of ice andlor snow on the walkway at the main point of ingress

and egress to a building owned by the Defendant; Defendant failed to exercise ordinary and

reasonable care in that the Defendant was generally careless and negligent, causing injury to the

Plaintiff, who was lawfully on the premises.

Plaintiff reserves the right to supplement the above response.

10. Upon information and belief, the Defendant was in violation ofvarious local

laws, rules, ordinances andlor regUlations pertaining to the removal of ice and snow from one's

property. A more definite answer will be provided prior to trial.

II. Objection. This is not a proper question for a Bill of Particulars pursuant to

CPLR Rule 3043. Notwithstanding said objection, the dangerous condition complained of was an

unreasonable accumulation of ice and/or snow on the walkway of the subject premises.

12. Plaintiff is not alleging that Defendant created the condition, but rather that

its negligence resulted in the dangerous condition existing and persisting on the premises whei1 the

Defendant knew, or should have known in the exercise of reasonable care, that said dangerous

condition so existed.

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FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

13. Upon information and belief, the Defendant did have actual notice of the

dangerous condition prior to Plaintiff's fall. However, Wltil the completion of further discovery,

Plaintiff is Wlable to provide specifics thereof.

Plaintiff reserves the right to supplement the above response.

14. Upon information and belief, the Defendant did have constructive notice of

the dangerous condition prior to Plaintiff's fall. The dangerous condition existed for a period of

time consisting of hours and/or days prior to the Plaintiff's fall. It would be improbable that any

person, in the exercise of ordinary caution and using ordinary skills of observation, would not

observe the icy/snowy condition of the aforementioned walkway prior to the incident and

appreciate the danger presented to any persons lawfully using said area.

PLEASE TAKE NOTICE that the Plaintiff reserves the right to supplement the

above responses prior to trial.

DATED: Buffalo, New York
November t(,. , 2017

rian Webb, Esq.
LAW OFFICES OF ROBERT D. BERKUN
Attorneysfor Plaintiff
Office and Post Office Address
930 Convention Tower
43 Court Street
Buffalo, New York 14202
(716) 856-4080
TO: Joseph G. Goergen II, Esq.
GOERGEN, MANSON & McCARTHY
Attorneysfor Defendant
Office and Post Office Address
726 Exchange Street - Suite 1021
Buffalo, New York 14210
(716) 857-2080

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FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

STATE OF NEW YORK
SUPREME COURT :COUNTY OF ERIE

___ .

SHONIQUE CASON, SUPPLEMENTAL VERIFIED
BILL OF PARTICULARS
Plaintiff,

v. Index No.: 814033/2017

CORNERSTONE MANOR, L.P.,

Defendant.

PLEASE TAKE NOTICE that Plaintiff. SHONIQUE CASON, and through her
by

attorneys, Dolce Panepinto, P.C., as and for her response to Defendant's, Cornerstone

Manor, L.P., Demand for Verified Bill of Particulars states the following:

1. Objection. This isnot a proper question for a Bill of Particulars pursuant to CPLR

Rule 3043. Notwithstanding said objection, Plaintiffs date of birth is July 13, 1977 and her SSN

2. Objection. This is not a proper question for a Bill of Particulars pursuant to CPLR

Rule 3043.

3. The incident occurred on December 18, 2016 at approximately 10:30-11:00 AM.

4. Plaintiff was caused to slip and fall to the ground due to an unreasonable

accumulation of ice and/or snow on a walkway of the property located at 150 E. North Street in

the City of Buffalo, New York.

5. Plaintiff s injuries were due to the negligence of the Defendant and consist of

the following: neck pain; numbness and tingling in her upper extremities; C4-5 disc herniation

of the thecal sac; C6-7 disc herniation indenting the anterior aspect of the thecal sac; small disc

herniations at C2-3 and C3-4; bilateral rotator cufftendonitis and impingement; internal

derangement of the right shoulder; right C6 radiculopathy; right median sensory neuropathy;

cervicalgia; C4-7 disc herniation without myelopathy and with radiculopathy; Plaintiff required a

surgical procedure on her neck that consisted of, among other things: (l) anterior discectomy

C5-6 and C6-7, (2) anterior discectomy and fusion without corpectomy at C4-5, (3) partial

corpectomy inferior portion of the CS vertebral body and superior portion of the C6 vertebral

body and superior portion of the C7 vertebral body, decompression of the spinal cord C5-6; (4)

anterior interbody fusion utilizing intervertebral PEEK cages at C4-C7 with application of

intravertebral biomechanical device X 3; (5) anterior cervical fusion utilizing demineralized bone

matrix and local bone; and (6) anterior cervical instrumentation utilizing an anterior cervical

plate; scar as a result of the aforementioned surgery; head pain; bilateral wrist pain, injury,

weakness, numbness, tingling and swelling; bilateral carpal tunnel syndrome; right carpal

tunnel release surgery performed by Dr. Raymond Schultz on August 16, 2019; need for

prescription and over the counter medications; need for durable medical equipment; need

for chiropractic care; need for physical therapy; need for injection therapy; sleep

disturbance; pain, swelling, tenderness, bruising and loss of range of motion to the bones,

muscles, ligaments, tendons and soft tissues surrounding the aforementioned body parts.

Each of the above injuries is considered to be permanent and progress except for those of

a superficial nature.

6. Upon information belief:

a. Three (3) days.

b. None; and
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

c. Plaintiff was generally confined to her home, with some exceptions, for a

period of one (1) month following her surgery.

7. At the time of the incident, Plaintiff was employed by the Buffalo City Mission

100 E Tupper St, Buffalo, NY 14203 as a Residential Coordinator. At the time of her injuries,

she was earning $13.00 per hour and working forty (40) hours per week. She was unable to

return to work until she was terminated from her position in September 2017 due to her inability

to work. To date, the Workers' Compensation Carrier, New York State Insurance Fund,

has paid approximately $118,761.42 in lost wages.

8. Upon information and belief, the Plaintiff was charged the following amounts:

a. $20,000.00

b. $27,500.00

c. None

d. $1,500.00

e. $750.00

f. To date, the Workers' Compensation Carrier, New York State

Insurance Fund, has paid approximately $41,234.02 in medical

payments.

Note that the above figures are estimates. Upon ascertaining more definite

amounts, those figures will be provided to the Defendant.

9. Upon information and belief, the acts and/or omissions of the Defendant,

CORNERSTONE MANOR, L.P., its agents, servants, employees and/or contractors, that

constituted negligence, carelessness and/or reckless are as follows: the Defendant failed to salt,

sand or apply other ice melter to the walkway outside the entrance of its building; Defendant
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

failed to timely remove ice and/or snow from the walkway leading to its building; Defendant

failed to warn Plaintiff of the dangerous condition of the walkway when the Defendant knew, or

should have known in the exercise of reasonable care, that people lawfully on the premises

would use this point of ingress and egress which was then hazardous due to the accumulation of

ice and/or snow thereon; Defendant failed to correct the condition of the walkway which was in

existence for hours and/or days prior to Plaintiff's fall; Defendant knew, or should have known in

the exercise of reasonable care, of the excessive buildup of ice and/or snow on the walkway and

failed to take any measures to block access to the dangerous area to prevent injury to those

lawfully thereon; Plaintiff was injured as a result of the dangerous condition which was allowed

to occur and continue on the premises due to the action and/or inaction of the Defendant;

Defendant had a duty to properly inspect and maintain the premises, and keep same in a

reasonably safe condition to prevent foreseeable injury to other persons on the premises;

Defendant knew, or should have known in the exercise of reasonable care, of the existence of the

dangerous and hazardous condition consisting of an unreasonable accumulation of ice and/or

snow on the walkway at the main point of ingress and egress to a building owned by the

Defendant; Defendant failed to exercise ordinary and reasonable care in that the Defendant was

generally careless and negligent, causing injury to the Plaintiff, who was lawfully on the

premises.

Plaintiff reserves the right to supplement the above response.

10. Upon information and belief, the Defendant was in violation of various local laws,

rules, ordinances and/or regulations pertaining to the removal of ice and snow from one's

property. A more definite answer will be provided prior to trial.

Upon information and belief, the Defendant, its servants, agents, and/or
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

employees, violated the following sections of the New York State Property Maintenance

Code:

• Section 301.2 Responsibility. The owner of the premises shall
maintain the structures and exterior property in compliance with
these requirements, except as otherwise provided for in this code. A
person shall not occupy as owner-occupant or permit another person
to occupy premises which are not in a sanitary and safe condition and
which do not comply with the requirements of this chapter.
Occupants of a dwelling unit, rooming unit or housekeeping unit are
responsible for keeping in a clean, sanitary and safe condition that
part of the dwelling unit, rooming unit, housekeeping unit or premises
which they occupy and control;

• Section 302.1 Sanitation. All exterior property and premises shall be
maintained in a clean, safe and sanitary condition. The occupant
shall keep that part of the exterior property which such occupant
occupies or controls in a clean and sanitary condition;

• Section 302.2 Grading and drainage. All premises shall be graded and
maintained to prevent the erosion of soil and to prevent the
accumulation of stagnant water thereon, or within any structure
located thereon;

• Section 302.3 Sidewalks and driveways. All sidewalks, walkways,
stairs, driveways, parking spaces and similar areas shall be kept in a
proper state of repair, and maintained free from hazardous condition;

• Section 304.1 General. The exterior of a structure shall be maintained
in good repair, structurally sound and sanitary so as not to pose a
threat to the public health, safety or welfare;

• Section 507.1 General. Drainage of roof and paved areas, yards and
courts, and other open areas on the premises shall not be discharged
in a manner that creates a public nuisance.

Upon information and belief, the Defendant its servants, agents, and/or

employees violated New York State Labor Law § 200.

11. Objection. This is not a proper question for a Bill of Particulars pursuant to

CPLR Rule 3043. Notwithstanding said objection, the dangerous condition complained of was

an unreasonable accumulation of ice and/or snow on the walkway of the subject premises.
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

12. Plaintiff is not alleging that Defendant created the condition, but rather that its

negligence resulted in the dangerous condition existing and persisting on the premises when the

Defendant knew, or should have known in the exercise of reasonable care, that said dangerous

condition so existed.

13. Upon information and belief, the Defendant did have actual notice of the

dangerous condition prior to Plaintiffs fall. However, until the completion of further discovery,

Plaintiff is unable to provide specifics thereof.

Plaintiff reserves the right to supplement the above response.

14. Upon information and belief, the Defendant did have constructive notice of the

dangerous condition prior to Plaintiff s fall. The dangerous condition existed for a period oftime

consisting of hours and/or days prior to the Plaintiffs fall. It would be improvable that any

person, in the exercise of ordinary caution and using ordinary skills of observation, would not

observe the icy/snowy condition ofthe aforementioned walkway prior to the incident and

appreciate the danger presented to any persons lawfully using said area.

PLEASE TAKE NOTICE that the Plaintiff reserves the right to supplement the above

responses prior to trial.

DATED: Buffalo, New York
July 14, 2020
f
'!

ar . Gors ,Esq.
DOLCE PANEPINT ,P.C.
Attorneys for Plaintiff
1260 Delaware Avenue
Buffalo, New York 14209
(716) 852-1888
FILED: ERIE COUNTY CLERK 04/20/2021 05:19 PM INDEX NO. 814033/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/20/2021

TO: Kelly J. Phillips, Esq.
Manson & McCarthy
Attorneys for Defendant
726 Exchange Street
Suite #1021
Buffalo, New York 14210

Case Info

Judge

Donna Siwek Track Judge’s New Case

Case No.

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Document Filed Date

April 20, 2021

Case Filing Date

October 04, 2017

County

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Exhibit,Appendix: Shonique Cason v. Cornerstone Manor, Lp

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