Preview
FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------- ¬----- ------X
LUIS ALBERTO HERRERA, Index No.: 512147/2020
Plaintiff,
-against- RESPONSE TO DEMAND FOR
BILL OF PARTICULARS AS TO
THE CITY OF NEW YORK, BELMONT RE, AFFIRMATIVE DEFENSES
LLC and SUTTER AVENUE REALTY CO. LLC,
Defendants.
_____________________________________ .----- X
SUTTER AVENUE REALTY CO., LLC,
Third-Party Plaintiff,
-against-
TRINCHESE IRON WORKS & CONSTRUCTION
INC.,
Third-Party Defendant.
------------------------------------------------------ X
Defendant and Third-Party Defendant, BELMONT RE. LLC and TR1NCHESE IRON
WORKS & CONSTRUCTION INC., by their attorneys, NEWMAN LAW ASSOCIATES
PLLC, hereby respond to Plaintiff's February 16, 2021 Demand for a Bill of Particulars as to
Affirmative Defenses contained in BELMONT RE. LLC'S Answer, as follows:
GENERAL OBJECTIONS
A. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of
Particulars as to Affirmative Defenses as vague and ambiguous to the extent it contains
undefined terms and phrases.
B. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of
Particulars as to Affirmative Defenses as vague, ambiguous, overly broad, incomprehensible,
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irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, and neither
material nor necessary in the prosecution or defense of this litigation.
C. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of
Particulars as to Affirmative Defenses to the extent it seeks information relating to proprietary,
privileged, or other confidential information.
D. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of
Particulars as to Affirmative Defenses to the extent it seeks the disclosure of information
protected by the attorney-client privilege, work-product doctrine, material prepared in
anticipation of or other privilege or rule of confidentiality. Defendant and Third-
litigation, any
Party Defendant further object to the Demand insofar as it seeks information related to the
mental impressions, legal conclusions, opinions, or theories of any attorney or other
representative of Defendant or Third-Party Defendant.
E. Defendant and Third-Party Defendant object to Plaintiff's Demand for a Bill of
Particulars as to Affirmative Defenses as premature.
F. Defendant's and Third-Party Defendant's investigation of the facts concerning
this action is ongoing. Defendant's and Third-Party Defendant's responses and objections are
based upon information available at present, and they reserve the right to supplement, amend,
and/or correct any of their responses and objections at any time during the course of this
litigation, including at trial.
G. Defendant's and Third-Party Defendant's general objections are incorporated into
each and every response set forth below, even if not expressly stated.
RESPONSE TO DEMAND FOR A BILL OF PARTICULARS AS TO AFFIRMATIVE
DEFENSES
1. As to the First Affirmative Defense, Defendant and Third-Party Defendant object
to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
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conclusion of law. Defendant and Third-Party Defendant further object because the demand is
premature insofar as discovery is ongoing and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations. Subject to and
without waiving these objections and further subject to and without waiving the General
Objections stated above, Plaintiff s incident and his alleged causally-related injuries were caused
in whole or in part by Plaintiffs own culpable conduct. Plaintiffs culpable conduct includes, but
is not limited to: Plaintiffs negligence, carelessness, and/or recklessness in failing to avoid the
happêñing of the incident; in failing to see what there was to be seen; in failing to act reasonably
under the circumstances then and there prevailing; in not paying attention to the conditions and
circumstances then and there prevailing; in assuming the risks of the condition Plaintiff now
complains of by proceeding in a negligent fashion; in failing to seek assistance; in failing to take
all necessary precautions to avoid injury; and in otherwise being generally negligent, careless,
and/or reckless.
2. As to the Second Affirmative Defense, Defendant and Third-Party Defendant
object to this demañd as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Third-Party Defendant further object because the demand is
premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations.
3. As to the Third Affirmative Defense, Defendant and Third-Party Defendant object
to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Defendant further object because the demand is
Third-Party
premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations. Subject to and
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without waiving these objections and further subject to and without waiving the General
Objections stated above, Plaintiff's incident and his alleged causally-related injuries were caused
in whole or in part by Plaintiff s own culpable conduct. Plaintiffs culpable conduct includes, but
is not limited to: Plaintiffs negligence, carelessness, and/or recklessness in failing to avoid the
happening of the incident; in failing to see what there was to be seen; in failing to act reasonably
under the circunistances then and there prevailing; in not paying attention to the conditions and
circumstances then and there prevailing; in assuming the risks of the condition Plaintiff now
complains of by proceeding in a negligent fashion; in failing to seek assistance; in failing to take
all necessary precautions to avoid injury; and in otherwise being generally negligent, careless,
and/or reckless.
4. As to the Fourth Affirmative Defense, Defendant and Third-Party Defendant
object to this deniand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Third-Party Defendant further object because the demand is
premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations.
5. As to the Fifth Affirmative Defense, Defendant and Third-Party Defendant object
to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Third-Party Defendant further object because the demand is
prematwe insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstañces surrounding Plaintiff's allegations
6. As to the Sixth Affirmative Defense, Defendant and Third-Party Defendant object
to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Third-Party Defendant further object because the demand is
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premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations.
7. As to the Seventh Affirmative Defense, Defendant and Third-Party Defendant
object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law.
8. As to the Eighth Affirmative Defense, Defendant and Third-Party Defendant
object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Third-Party Defendant further object because the demand is
premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations.
9. As to the Ninth Affirmative Defense, Defendant and Third-Party Defendant
object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law.
10. As to the Tenth Affirmative Defense, Defendant and Third-Party Defendant
object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law.
11. As to the Eleventh Affirmative Defense, Defendant and Third-Party Defendant
object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a
conclusion of law. Defendant and Third-Party Defendant further object because the demand is
premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not
yet learned all of the facts and circumstances surrounding Plaintiff's allegations.
12. As to the Twelfth Affirmative Defense, Defendant and Third-Party Defendant
withdraw their Affirmative Defense based upon the statute of limitations.
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Defendant and Third-Party Defendant reserve their right to amend and/or supplement this
response at any time, including up to or at the time of trial.
Dated: New York, New York
December 1, 2021
NEWMAN LAW ASSOCIATES PLLC
By:
Jaso . Warshaw, Es
orneys for Defendant and Third-Party
Defendant
BELMONT RE. LLC and TRINCHESE IRON
WORKS & CONSTRUCTION INC.
111 John Street, Suite 1500
New York, New York 10038
(212) 945-1010
TO:
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff
LUIS ALBERTO HERRERA
23"1
150 Broadway, Floor
New York, New York 10038
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant/Third-Party
Plaintiff
SUTTER AVENUE REALTY CO. LLC
28th
55 Water Street, FlOOr
New York, New York 10041
CORPORATION COUNSEL
Attorneys for Defendant
THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
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NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021
Index No.: 5 12147/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_____________-.- ---------------- --------X
LUIS ALBERTO HERRERA,
Plaintiff,
-against-
THE CITY OF NEW YORK, BELMONT RE LLC and
SUTTER AVENUE REALTY CO., LLC,
Defendants.
-__-_-.-________..--X
SUTTER AVENUE REALTY CO., LLC,
Third-Party Plaintiff,
-against-
TRINCHESE IRON WORKS & CONSTRUCTION INC.,
Third-Party Defendant.
----------------------------------------------------------X
RESPONSE TO DEMAND FOR BILL OF PARTICULARS AS TO AFFIRMATIVE DEFENSES
NEWMAN LAW ASSOCIATES PLLC
Attorneys for Defendant
BELMONT RE LLC and
TRINCHESE IRON WORKS
And CONSTRUCTION INC.
1 11 JohnStreet - Suite1500
New York, New York 10038
Phone: 212.945.1010
Facsimile:212.627.2077
PURSUANT TO 22 NYCRR 130.1.,THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE IN THE COURTS
OF THE STATE OF NEW YORK, CERTIFIES THAT, UPON INFORMATION AND BELIEF AND REASONABLE
INQUIRY, THAT CONTENTIONS CONTAINED IN THE ANNEXED DOCUMENT ARE NOT FRIVOLOUS
Dated: New York, New York
December 1,2021
clarenG CihParshaw
By: Jason D. Warshaw, Esq.
Please take Notice:
Notice ofEntry Notice of Settlement
That the within is a true[certified]
copy PLEASE TAKE NOTICE thatthe within proposed
of a duly enteredin the willbe presented for settlement&
officeof theclerk of thewithin named signatureto theHon one of the Judges of theComtheüse
within named Courthouse on
on _ at _at
Dated:
Yours etc,
NEWMAN LAW ASSOCIATES PLLC
Attorneys for Defendants
111 John Street,Suite 1500, New York, NY 10038
Phone: 212.945.1010; Facsimile: 212.627.2077
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Preview
FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------- ¬----- ------X LUIS ALBERTO HERRERA, Index No.: 512147/2020 Plaintiff, -against- RESPONSE TO DEMAND FOR BILL OF PARTICULARS AS TO THE CITY OF NEW YORK, BELMONT RE, AFFIRMATIVE DEFENSES LLC and SUTTER AVENUE REALTY CO. LLC, Defendants. _____________________________________ .----- X SUTTER AVENUE REALTY CO., LLC, Third-Party Plaintiff, -against- TRINCHESE IRON WORKS & CONSTRUCTION INC., Third-Party Defendant. ------------------------------------------------------ X Defendant and Third-Party Defendant, BELMONT RE. LLC and TR1NCHESE IRON WORKS & CONSTRUCTION INC., by their attorneys, NEWMAN LAW ASSOCIATES PLLC, hereby respond to Plaintiff's February 16, 2021 Demand for a Bill of Particulars as to Affirmative Defenses contained in BELMONT RE. LLC'S Answer, as follows: GENERAL OBJECTIONS A. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of Particulars as to Affirmative Defenses as vague and ambiguous to the extent it contains undefined terms and phrases. B. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of Particulars as to Affirmative Defenses as vague, ambiguous, overly broad, incomprehensible, 1 of 7 FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, and neither material nor necessary in the prosecution or defense of this litigation. C. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of Particulars as to Affirmative Defenses to the extent it seeks information relating to proprietary, privileged, or other confidential information. D. Defendant and Third-Party Defendant object to Plaintiffs Demand for a Bill of Particulars as to Affirmative Defenses to the extent it seeks the disclosure of information protected by the attorney-client privilege, work-product doctrine, material prepared in anticipation of or other privilege or rule of confidentiality. Defendant and Third- litigation, any Party Defendant further object to the Demand insofar as it seeks information related to the mental impressions, legal conclusions, opinions, or theories of any attorney or other representative of Defendant or Third-Party Defendant. E. Defendant and Third-Party Defendant object to Plaintiff's Demand for a Bill of Particulars as to Affirmative Defenses as premature. F. Defendant's and Third-Party Defendant's investigation of the facts concerning this action is ongoing. Defendant's and Third-Party Defendant's responses and objections are based upon information available at present, and they reserve the right to supplement, amend, and/or correct any of their responses and objections at any time during the course of this litigation, including at trial. G. Defendant's and Third-Party Defendant's general objections are incorporated into each and every response set forth below, even if not expressly stated. RESPONSE TO DEMAND FOR A BILL OF PARTICULARS AS TO AFFIRMATIVE DEFENSES 1. As to the First Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a 2 2 of 7 FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 conclusion of law. Defendant and Third-Party Defendant further object because the demand is premature insofar as discovery is ongoing and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. Subject to and without waiving these objections and further subject to and without waiving the General Objections stated above, Plaintiff s incident and his alleged causally-related injuries were caused in whole or in part by Plaintiffs own culpable conduct. Plaintiffs culpable conduct includes, but is not limited to: Plaintiffs negligence, carelessness, and/or recklessness in failing to avoid the happêñing of the incident; in failing to see what there was to be seen; in failing to act reasonably under the circumstances then and there prevailing; in not paying attention to the conditions and circumstances then and there prevailing; in assuming the risks of the condition Plaintiff now complains of by proceeding in a negligent fashion; in failing to seek assistance; in failing to take all necessary precautions to avoid injury; and in otherwise being generally negligent, careless, and/or reckless. 2. As to the Second Affirmative Defense, Defendant and Third-Party Defendant object to this demañd as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Third-Party Defendant further object because the demand is premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. 3. As to the Third Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Defendant further object because the demand is Third-Party premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. Subject to and 3 3 of 7 FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 without waiving these objections and further subject to and without waiving the General Objections stated above, Plaintiff's incident and his alleged causally-related injuries were caused in whole or in part by Plaintiff s own culpable conduct. Plaintiffs culpable conduct includes, but is not limited to: Plaintiffs negligence, carelessness, and/or recklessness in failing to avoid the happening of the incident; in failing to see what there was to be seen; in failing to act reasonably under the circunistances then and there prevailing; in not paying attention to the conditions and circumstances then and there prevailing; in assuming the risks of the condition Plaintiff now complains of by proceeding in a negligent fashion; in failing to seek assistance; in failing to take all necessary precautions to avoid injury; and in otherwise being generally negligent, careless, and/or reckless. 4. As to the Fourth Affirmative Defense, Defendant and Third-Party Defendant object to this deniand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Third-Party Defendant further object because the demand is premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. 5. As to the Fifth Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Third-Party Defendant further object because the demand is prematwe insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstañces surrounding Plaintiff's allegations 6. As to the Sixth Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Third-Party Defendant further object because the demand is 4 4 of 7 FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. 7. As to the Seventh Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. 8. As to the Eighth Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Third-Party Defendant further object because the demand is premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. 9. As to the Ninth Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. 10. As to the Tenth Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. 11. As to the Eleventh Affirmative Defense, Defendant and Third-Party Defendant object to this demand as it seeks material evidentiary in nature and/or is improper as it calls for a conclusion of law. Defendant and Third-Party Defendant further object because the demand is premature insofar as discovery is ongoing, and Defendant and Third-Party Defendant have not yet learned all of the facts and circumstances surrounding Plaintiff's allegations. 12. As to the Twelfth Affirmative Defense, Defendant and Third-Party Defendant withdraw their Affirmative Defense based upon the statute of limitations. 5 5 of 7 FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 Defendant and Third-Party Defendant reserve their right to amend and/or supplement this response at any time, including up to or at the time of trial. Dated: New York, New York December 1, 2021 NEWMAN LAW ASSOCIATES PLLC By: Jaso . Warshaw, Es orneys for Defendant and Third-Party Defendant BELMONT RE. LLC and TRINCHESE IRON WORKS & CONSTRUCTION INC. 111 John Street, Suite 1500 New York, New York 10038 (212) 945-1010 TO: SUBIN ASSOCIATES, LLP Attorneys for Plaintiff LUIS ALBERTO HERRERA 23"1 150 Broadway, Floor New York, New York 10038 EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant/Third-Party Plaintiff SUTTER AVENUE REALTY CO. LLC 28th 55 Water Street, FlOOr New York, New York 10041 CORPORATION COUNSEL Attorneys for Defendant THE CITY OF NEW YORK 100 Church Street New York, New York 10007 6 6 of 7 FILED: KINGS COUNTY CLERK 12/02/2021 12:38 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/02/2021 Index No.: 5 12147/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________-.- ---------------- --------X LUIS ALBERTO HERRERA, Plaintiff, -against- THE CITY OF NEW YORK, BELMONT RE LLC and SUTTER AVENUE REALTY CO., LLC, Defendants. -__-_-.-________..--X SUTTER AVENUE REALTY CO., LLC, Third-Party Plaintiff, -against- TRINCHESE IRON WORKS & CONSTRUCTION INC., Third-Party Defendant. ----------------------------------------------------------X RESPONSE TO DEMAND FOR BILL OF PARTICULARS AS TO AFFIRMATIVE DEFENSES NEWMAN LAW ASSOCIATES PLLC Attorneys for Defendant BELMONT RE LLC and TRINCHESE IRON WORKS And CONSTRUCTION INC. 1 11 JohnStreet - Suite1500 New York, New York 10038 Phone: 212.945.1010 Facsimile:212.627.2077 PURSUANT TO 22 NYCRR 130.1.,THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE IN THE COURTS OF THE STATE OF NEW YORK, CERTIFIES THAT, UPON INFORMATION AND BELIEF AND REASONABLE INQUIRY, THAT CONTENTIONS CONTAINED IN THE ANNEXED DOCUMENT ARE NOT FRIVOLOUS Dated: New York, New York December 1,2021 clarenG CihParshaw By: Jason D. Warshaw, Esq. Please take Notice: Notice ofEntry Notice of Settlement That the within is a true[certified] copy PLEASE TAKE NOTICE thatthe within proposed of a duly enteredin the willbe presented for settlement& officeof theclerk of thewithin named signatureto theHon one of the Judges of theComtheüse within named Courthouse on on _ at _at Dated: Yours etc, NEWMAN LAW ASSOCIATES PLLC Attorneys for Defendants 111 John Street,Suite 1500, New York, NY 10038 Phone: 212.945.1010; Facsimile: 212.627.2077 7 of 7