Preview
(FILED: KINGS COUNTY CLERK 1270272022 12:46 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 12/02/2022
EXHIBIT “B”NYSCEF DOC. NO. 15
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
LUIS ALBERTO HERRERA,
Plaintiff,
-against-
THE CITY OF NEW YORK, BELMONT RE, LLC
and SUTTER AVENUE REALTY CO. LLC,
Defendants.
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VERIFIED ANSWER TO
PLAINTIFE’S VERIFIED
COMPLAINT
Defendant, BELMONT RE. LLC, by its attorneys, NEWMAN LAW ASSOCIATES
PLLC, answers Plaintiff's Verified Complaint dated June 8, 2020 as follows:
AS AND FOR A RESPONSE TO FIRST CAUSE OF ACTION
1. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "1" of tl
he Complaint;
2. Denies knowledge or sufficient information to form a belief as to the trutl
allegations as set forth in paragraph "2" of tl
he Complaint;
3. Denies knowledge or sufficient information to form a belief as to the trut!
allegations as set forth in paragraph "3" of t
Complaint;
4. Denies knowledge or sufficient information to form a belief as to the trutl
allegations as set forth in paragraph "4" of tl
he Complaint;
h of the
h of the
h of the
5. Denies knowledge or sufficient information to form a belief as to the trutl
allegations as set forth in paragraph "5" of tl
he Complaint;
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6. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "6" of the Complaint;
7. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "7" of the Complaint;
8. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "8" of the Complaint;
9. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "9" of the Complaint;
0. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "10" of the Complaint;
1. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "11" of the Complaint;
2. Denies knowledge or sufficient information to form a belief as to the truth of the
allegations as set forth in paragraph "12" of the Complaint;
3. Denies each and every allegation as set forth in paragraph "13" of the Complaint
as it applies to Answering Defendant;
14. Denies each and every allegation as set forth in paragraph "14" of the Complaint;
15. Denies each and every allegation as set forth in paragraph "15" of the Complaint;
16. Denies each and every allegation as set forth in paragraph "16" of the Complaint;
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17. Denies each and every allegation as set forth in paragraph "17" of the Complaint;
18. Denies each and every allegation as set forth in paragraph "18" of the Complaint.
AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
19. In response to the allegations contained in paragraph "19" of the Complaint,
Answering Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "1" through "18" of this Verified Answer to the Complaint with the same force and
effect as if more fully set forth at length herein;
20. Denies in the form alleged each and every allegation as set forth in paragraph
"20" of the Complaint except admits that Belmont Re. LLC was a domestic entity authorized to
do business in the State of New York;
21. Denies in the form alleged each and every allegation as set forth in paragraph
"21" of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
22. Denies each and every allegation as set forth in paragraph "22" of the Complaint;
23. Denies in the form alleged each and every allegation as set forth in paragraph
"23" of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
24. Denies in the form alleged each and every allegation as set forth in paragraph
"24" of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
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25.
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Denies in the form alleged each and every allegation as set forth in paragraph
"25" of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
26.
Denies in the form alleged each and every allegation as set forth in paragraph
"26" of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
27.
28.
29.
30.
31.
32.
33.
34.
Denies each and every al
Denies each and every al
Denies each and every al
Denies each and every al
Denies each and every al
Denies each and every al
Denies each and every al
legation as set forth in paragraph "27" of the Complaint;
legation as set forth in paragraph "28" of the Complaint;
legation as set forth in paragraph "29" of the Complaint;
legation as set forth in paragraph "30" of the Complaint;
legation as set forth in paragraph "31" of the Complaint;
legation as set forth in paragraph "32" of the Complaint;
legation as set forth in paragraph "33" of the Complaint;
Denies each and every allegation as set forth in paragraph "34" of the Complaint
as it applies to Answering Defendant;
35.
Denies each and every allegation as set forth in paragraph "35" of the Complaint;
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36. Denies each and every allegation as set forth in paragraph "36" of the Complaint;
37. Denies each and every allegation as set forth in paragraph "37" of the Complaint;
38. Denies each and every allegation as set forth in paragraph "38" of the Complaint;
FIRST AFFIRMATIVE DEFENSE
The injuries and damages, if any, alleged to have been sustained by Plaintiff were caused
in whole or in part by the culpable conduct and/or contributory negligence of the Plaintiff, and
Plaintiff's damages, if any, should be barred or diminished in the proportion which such conduct
bears to the culpable conduct that caused said injuries and damages.
SECOND AFFIRMATIVE DEFENSE
Upon information and belief, the injuries and damages, if any, alleged to have been
sustained by Plaintiff were caused in whole or in part by the acts, omissions, or other conduct of
individuals or entities over which the Answering Defendant had no control and had no duty to
control.
THIRD AFFIRMATIVE DEFENSE
The injured Plaintiff assumed a known or an open or obvious risk for which Plaintiff may
not recover any damages, or Plaintiff's damages must be reduced accordingly.
FOURTH AFFIRMATIVE DEFENSE
The injuries and damages allegedly sustained by Plaintiff were not reasonably
foreseeable.
FIFTH AFFIRMATIVE DEFENSE
The Answering Defendant owes no legal duty to Plaintiff.
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SIXTH AFFIRMATIVE DEFENSE
Plaintiff's injuries, if any, were caused by intervening and/or superseding factors which
relieves the Answering Defendant from any liability in this action.
SEVENTH AFFIRMATIVE DEFENSE
In accordance with CPLR §1601 ef seq., the liability of Answering Defendant, if any, to
Plaintiff for non-economic loss is limited to each defendant's equitable share, determined in
accordance with relative culpability of ail persons and/or entities contributing to the total liability
for non-economic loss, including parties and others over whom Plaintiff could have obtained
personal jurisdiction with due diligence.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff has failed to join necessary and essential parties to this litigation.
NINTH AFFIRMATIVE DEFENSE
Upon information and belief, any costs, loss or expenses incurred or to be incurred by the
Plaintiff for medical care, custodial care or rehabilitative services, loss of earnings or other
economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or
in part from a collateral source as defined in CPLR 4545 (c).
TENTH AFFIRMATIVE DEFENSE
Plaintiff's damages must be diminished in proportion to culpable conduct in accordance
with CPLR 1411 and 1412.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff's Complaint fails to state a cause of action upon which relief can be granted as a
matter of law.
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TWELFTH AFFIRMATIVE DEFENSE
This action is barred by the applicable statute of limitations.
AS AND FOR A FIRST CROSS-CLAIM AGAINST
CO-DEFENDANTS
If Plaintiff was caused to sustain injuries and/or damages at the time and place and in the
manner set forth in this action through any carelessness, recklessness, or negligence, other than
Plaintiff's own carelessness, recklessness, or negligence, then the injuries and damages were
caused and sustained by reason of the sole active and primary carelessness, recklessness,
negligence, and/or acts or omissions of CO-DEFENDANTS, and ANSWERING DEFENDANT
is entitled to indemnification, and thereby CO-DEFENDANTS are primarily liable.
AS AND FOR A SECOND CROSS-CLAIM AGAINST
CO-DEFENDANTS
If Plaintiff sustained the injuries and/or damages in the manner and at the time and place
alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is
specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of
responsibility and/or contractual responsibility for the alleged occurrence, is entitled to
contractual indemnification from and judgment over and against CO-DEFENDANTS.
By reason of the foregoing, ANSWERING DEFENDANT is entitled to have judgment
over and against CO-DEFENDANTS as to any sum awarded against ANSWERING
DEFENDANT, including costs, expenses, and attorneys’ fees.
AS AND FOR A THIRD CROSS-CLAIM AGAINST
CO-DEFENDANTS
If Plaintiff sustained the injuries and damages in the manner and at the time and place
alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is
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specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of
responsibility and/or contractual responsibility for the alleged occurrence, is entitled to
contribution from and judgment over and against CO-DEFENDANTS.
By reason of the foregoing, ANSWERING DEFENDANT is entitled to contribution and
judgment over and against CO-DEFENDANTS.
Dated: New York, New York
September 30, 2020
NEWMAN LAW ASSOCIATES PLLC
By:
JasopeS. War: .
ormneys for Defendant
BELMONT RE. LLC
111 John Street, Suite 1500
New York, New York 10038
(212) 945-1010
TO:
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff
LUIS ALBERTO HERRERA
150 Broadway, 23 Floor
New York, New York 10038
EUSTACE, PREZIOSO & YAPCHANYK.
Attorneys for Defendant
SUTTER AVENUE REALTY CO. LLC
55 Water Street, 28" 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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ATTORNEY VERIFICATION
Jason Warshaw, Esq. affirms the following under the penalties of perjury:
I am an attorney duly admitted to practice in the courts of the State of New York, and T
am an attorney with the firm of NEWMAN LAW ASSOCIATES PLLC, the attorneys of record
for Defendant, BELMONT RE. LLC, in the within action. I have read the foregoing Verified
Answer to the Complaint and know the contents thereof. The same is true to my own
knowledge, except as to the matters therein stated to be alleged upon information and belief, and
as to those matters, I believe them to be true. The basis for my belief is: review of files,
investigations and conversations with clients.
Dated: New York, New York
September 30, 2020
Jason D. Warshaw, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
LUIS ALBERTO HERRERA,
Plaintiff,
Vv.
THE CITY OF NEW YORK, BELMONT RE, LLC AND
SUTTER AVENUE REALTY CO., LLC.,
Defendants.
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ANSWER TO COMPLAINT
Defendant, Sutter Avenue Realty Co. LLC, by its attorneys, EUSTACE, PREZIOSO &
Y APCHANY K, answers the Complaint of the Plaintiffs by
stating as follows:
1. Denies, upon information and belief, the allegations of paragraph 13, 14, 15, 16, 17, 18,
28, 30, 31, 32, 33, 34, 35, 36, 37 and 38 and respectfully re
Court.
2. Denies having knowledge or information sui
allegations of paragraph 3, 5, 8, 9, 10, 11, 12, 20, 21, 22, 23, 24, 25, 26, 27 and
3. Denies having knowledge or information sui
allegations of paragraph 1, 2, 4, 6 and 7 and respectfully re:
Court.
4, Responds to paragraph 19 of the Complaint
responses given to the paragraphs referred to therein with the same force and ef!
at length.
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ers all questions of law to this Honorable
ficient to form a bel
ficient to form a bel
ers all questions of
repeating, reiteral
ief as to the truth of the
29.
ief as to the truth of the
law to this Honorable
ing, and realleging all
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
5. The injuries alleged to have been suffered by the Plaintiffs were caused, in whole or part,
by the conduct of Plaintiffs. Plaintiffs' claims therefore are barred or diminished in the proportion that
such culpable conduct of Plaintiffs bears to the total culpable conduct causing the damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
6. Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiffs for non-
economic loss shall not exceed the equitable share of this Defendant determined in accordance with the
relative culpability of each person/party causing or contributing to the total liability for non-economic
loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
7. Upon information and belief the causes of action alleged in the Complaint of the
Plaintiffs fail to properly state, specify or allege a cause of action on which relief can be granted as a
matter of law.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
8. That recovery, if any, on the Complaint of the Plaintiffs shall be reduced by the amounts
paid or reimbursed by collateral sources in accordance with CPLR 4545(c).
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
9. That the actions taken by the answering Defendant were subject to privilege.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
10. Prior to the institution of this action, pursuant to an agreement between the Plaintiffs and
this answering Defendant, this answering Defendant paid to the Plaintiffs a sum certain which was paid
by this answering Defendant and accepted by the Plaintiffs in full accord and satisfaction for the claim
stated in the Complaint.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
11. The injuries and damages alleged in the Complaint of the Plaintiffs were caused or
contributed to by Plaintiffs's culpable conduct in assuming the risk under the conditions and
circumstances existing.
AS AND FOR A CROSS-CLAIM FOR CONTRIBUTION AGAINST: THE CITY OF NEW
YORK and BELMONT RE, LLC
12. If any plaintiff recovers against this Defendant, then this Defendant will be entitled to an
apportionment of responsibility for damages between and amongst the parties of this action and will be
entitled to recover from each other party for its proportional share commensurate with any judgment
which may be awarded to the plaintiff.
AS AND FOR A CROSS-CLAIM FOR COMMON LAW INDEMNITY AGAINST: THE CITY
OF NEW YORK and BELMONT RE, LLC
13. If any plaintiff recovers against this Defendant, then this Defendant will be entitled to be
indemnified and to recover the full amount of any judgment from The City of New Y ork and Belmont
RE, LLC.
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AS AND FOR A CROSS-CLAIM FOR CONTRACTUAL INDEMNITY AGAINST: THE CITY
OF NEW YORK and BELMONT RE, LLC
14. At the time of the accident alleged in the complaint a contract was in effect between this
Defendant and The City of New Y ork and Belmont RE, LLC.
15. The contract required The City of New Y ork and Belmont RE, LLC to indemnify and, or
hold harmless this Defendant for all claims, losses, liability and damages for any injury to any person.
16. The City of New Y ork and Belmont RE, LLC. breached the contract and is obligated to
indemnify this Defendant for any judgement or settlement obtained by any plaintiff in this action
including defense costs and attomeys' fees.
AS AND FOR A CROSS-CLAIM FOR BREACH OF CONTRACT FOR FAILURE TO NAME
ON INSURANCE POLICY AGAINST: THE CITY OF NEW YORK and BELMONT RE, LLC
17. At the time of the accident alleged in the complaint a contract was in effect between this
Defendant and The City of New Y ork and Belmont RE, LLC.
18. The contract required The City of New Y ork and Belmont RE, LLC. to purchase liability
insurance for the benefit of this Defendant.
19. The City of New Y ork and Belmont RE, LLC., failed to purchase the insurance required
and thereby breached the contract.
20. By reason of the foregoing, The City of New York and Belmont RE, LLC., are liable to
this answering Defendant for all damages resulting from the breach including defense costs and
attorneys’ fees.
WHEREFORE, this Defendant demands judgment dismissing the Complaint, together
with costs and disbursements, and in the event any judgment or settlement is recovered herein
against this Defendant, then this Defendant further demands that such judgment be reduced by
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the amount which is proportionate to the degree of culpability of any plaintiff, and this
Defendant further demands judgment against each other party on the respective crossclaims
and/or counterclaims.
DATED: September 14, 2020
New Y ork, New York
Y ours, etc.
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
SUTTER AVENUE REALTY CO. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New Y ork, New York 10041
(212) 612-4200
By:
Daniel P. Rocco
To:
Subin Associates, LLP
Attorneys for Plaintiff, Luis Alberto Herrera
150 Broadway, 23rd Floor
New Y ork, New Y ork 10038
The City of New Y ork
100 Church Street
New Y ork, NY 10007
Newman Law Associates, PLLC.
Attomeys for Defendant,, Belmont RE LLC
111 John Street, Suite 1500
New Y ork, New Y ork 10038
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SUPREME COURT OF THE STATE OF NEW Y ORK
COUNTY OF KINGS
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LUIS ALBERTO HERRERA,
Plaintiff, NOTICE PURSUANT
TO CPLR 2103
v.
THE CITY OF NEW YORK, BELMONT RE, LLC AND
SUTTER AVENUE REALTY CO., LLC.,
Defendants.
PLEASE TAKE NOTICE that Defendant Sutter Avenue Realty Co. LLC, by its
attorneys, EUSTACE, PREZIOSO & Y APCHANY K, hereby serves Notice upon you pursuant
to Rule 2103 of the Civil Practice Law and Rules that it expressly rejects service of papers in
this matter upon them by electronic means.
PLEASE TAKE FURTHER NOTICE that waiver of the foregoing may only be
affected by express prior written consent to such service by EUSTACE, PREZIOSO &
YAPCHANYK and by placement thereby of EUSTACE, PREZIOSO & YAPCHANYK
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electronic communication number in the address block of papers filed with the Court.
DATED: September 14, 2020
New Y ork, New York
Y ours, etc.
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
SUTTER AVENUE REALTY CO. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New Y ork, New York 10041
(212) 612-4200
By:
Daniel P. Rocco
To:
Subin Associates, LLP
Attorneys for Plaintiff, Luis Alberto Herrera
150 Broadway, 23rd Floor
New Y ork, New Y ork 10038
The City of New Y ork
100 Church Street
New Y ork, NY 10007
Newman Law Associates, PLLC.
Attomeys for Defendant,, Belmont RE LLC
111 John Street, Suite 1500
New Y ork, New Y ork 10038
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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LUIS ALBERTO HERRERA,
Plaintiff, COMBINED DISCOVERY
DEMANDS AND NOTICE
v. OF DEPOSITION
THE CITY OF NEW YORK, BELMONT RE, LLC AND
SUTTER AVENUE REALTY CO., LLC.,
Defendants.
PLEASE TAKE NOTICE, that Defendant Sutter Avenue Realty Co. LLC, by its attorneys,
EUSTACE, PREZIOSO & YAPCHANYK, demands that each adverse party afford us the disclosure
which this notice and demand specifies:
DEPOSITIONS OF ADVERSE PARTIES UPON ORAL EXAMINATION
A. Each adverse party is to appear for deposition upon oral examination pursuant to
CPLR 3107:
(1) At this date and time: October 25, 2020 at 10:00 am
(2) At this place: EUSTACE, PREZIOSO & YAPCHANYK
55 Water Street, 28th Floor
New Y ork, New Y ork 10041
B. Pursuant to CPLR 3106(d) we designate the following as the identity, description or
title of the particular officer, director, member, or employee of the adverse party specified whose
deposition we desire to take: ALL PARTIES
C. Each deposition witness thus examined is to produce at such time and place, pursuant
to CPLR 3111, all books, papers, and other things which are relevant to the issues in the action
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and within that adverse party's possession, custody, or control to be marked as exhibits, and used
on the examination.
PARTY STATEMENTS
Each adverse party is to serve on us, pursuant to CPLR 3101(e) and CPLR 3120, within
thirty (30) days from the service of this Demand, a complete and legible copy of any statement
made by or taken from any individual party or any officer, agent, or employee of said party.
INSURANCE POLICIES
Each adverse party is to serve, pursuant to CPLR 3101(f) and CPLR 3120, within thirty
(30) days from the service of this Demand, a complete and legible copy of each primary or
excess insurance agreement under which any person carrying on an insurance business may be
liable to satisfy part or all of any judgment which may be entered in this action or to indemnify
or reimburse for payments made to satisfy any such judgment.
ACCIDENT REPORTS
Each adverse party is to serve, pursuant to CPLR 3101(g) and CPLR 3120, within thirty
(30) days from service of this Demand, a complete and legible copy of every written report of the
accident or other event alleged in the complaint prepared in the regular course of that adverse
party's business operations or practices.
PHOTOGRAPHS AND VIDEOTAPES
Each adverse party is to serve within thirty (30) days from the service of this Demand,
complete and legible photographic or videotape reproductions of any and all photographs,
motion pictures, maps, drawings, diagrams, measurements, surveys of the scene of the accident
or equipment or instrumentality involved in the action or photographs of persons or vehicles
involved (if applicable) made either before, after or at the time of the events in question,
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including any photographs or videotapes made of the plaintiff at any time since the incident
referred to in the Complaint.
WITNESSES
Each adverse party is to serve within thirty (30) days from the service of this Demand,
the name and address of each witness to any of the following:
1. The accident, occurrence or any other event set forth in the complaint.
2. Any fact tending to prove actual or constructive notice of any condition which may
give rise to the liability of any person, whether or not a party, for any damages alleged in this
action.
3. Any admission, statement, writing or act of our client.
EXPERT WITNESS MATERIAL
Each adverse party is to serve, pursuant to CPLR 3101(d)(1), within thirty (30) days from
the service of this request, a statement specifying all of the following data as to each person
whom that adverse party expects to call as an expert witness at trial:
A. The identity of each expert;
B. The subject matter on which each expert is expected to testify, disclosed in reasonable
detail;
C. The substance of the facts and opinions on which each expert is expected to testify;
D. The qualifications of each expert; and
E. A summary of the grounds for each expert's opinion.
PLEASE TAKE FURTHER NOTICE that we will object at trial to the offer of any
proof of an expert's qualifications which are different from or additional to those which the
adverse party calling the expert had disclosed in reference to sub-paragraph D.
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COLLATERAL SOU
Each plaintiff seeking to recover for the cos
or rehabilitation services, loss of earnings or other e
4545(c), within thirty (30) days from the service of
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RCE INFORMATION
of medical care, dental care, custodial care
conomic loss is to serve, pursuant to CPLR
this Demand, a statement of all past and
future cost and expense which has been or will, with reasonable certainty, be replaced or
indemnified, in whole or in part, from any collateral
source such as insurance (except life
insurance), social security, workers' compensation, or employee benefit programs. Each such
statement is to set forth the name, address, and insurance policy (or other account) number of
each collateral source payor; and, separately stated for each payor, a list specifying the date and
amount of each payment and the name, address, and social security number or other taxpayer
identification number of each payee.
PRODUCTION OF MEDICAL REPORTS AND AUTHORIZATIONS
Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of
this Demand:
Medical Reports and Bills: Copies of the medical reports and bills of those health
professionals who have previously treated or examined the plaintiff. Those reports shall include a
detailed recital of the injuries and conditions as to which testimony will be offered at the trial,
referring to and identifying those diagnostic tests and technicians' reports which will be offered
at the trial.
B. Medical Authorizations: Duly executed and acknowledged written medical
authorizations, complying with the Health Insurance Portability and Accountability Act
(“HIPPA”), 45 C.F.R. §164.508(a), (using attached
make copies of the records and notes including any
form) permitting all parties to obtain and
intake sheets, diagnostic tests, X-Rays,
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MRI's and cat scan films, of all treating and examining hospitals, physicians and other medical
professionals.
MEDICARE DOCUMENTS
Plaintiff is to serve, pursuant to CPLR 3120(1)(i), within thirty (30) days from the service of this
demand, a complete and legible copy of:
1. Plaintiff’ s Medicare Insurance Card
2. All Medicare statements of conditional payments for medical treatment arising out of the
incident which is the subject of this lawsuit.
3. Plaintiff's Social Security card.
4. All documents pertaining to Medicare benefits received for treatment provided to
plaintiff for injuries and illness arising out of the incident which is the subject of this
lawsuit.
PRODUCTION OF RECORDS AND AUTHORIZATIONS
Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of
this demand duly executed, fully addressed and acknowledged written authorizations permitting
all parties to obtain and make copies of each of the following:
A. All workers' compensation records and reports of hearings pertaining to the incident
alleged to have occurred in plaintiff's complaint maintained by the workers' compensation Board
and workers' compensation carrier.
B. All records of present and past employment of plaintiff.
C. All records in the no-fault file of any carrier issuing benefits to the plaintiff arising out
of the incident alleged to have occurred in the complaint.
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D. All records of the Internal Revenue Service filed by the plaintiff for the calendar year
prior to the date of the incident alleged in the complaint and for the two subsequent years. Please
use IRS form 4506 and attach 2 copies of identification of the plaintiff, with photo and signature
as required by the IRS.
E. All records of schools attended by plaintiff.
All records of each collateral source that has provided and/or in the future will be
providing any payment or reimbursement for expenses incurred because of this incident.
MUNICIPAL - NOTICE OF CLAIM AND HEARING
A. Each plaintiff is to serve on us, within thirty (30) days from the service of this
Demand:
1) A copy of any General Municipal Law, section 50(e) Notice of Claim which that
plaintiff served with respect to the accident alleged in this action; and
2) A copy of the transcript of any hearing on any such claim held (by any municipality)
pursuant to General Municipal Law, Section 50(h) (with a copy of any exhibit marked at any
such hearing); and
B. Each municipal-defendant adverse party is to serve on us, within thirty (30) days from
the service of this Demand:
1) A copy of any General Municipal Law, Section 50(e) Notice of Claim which that
municipal defendant held on any such claim pursuant to General Municipal Law, Section 50(h)
(with a copy of any exhibit marked at any such hearing).
PHYSICAL OR MENTAL EXAMINATION
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Defendant hereby demands, pursuant to CPLR §3121, that plaintiff appear for and submit
to physical, mental and blood examination(s), for all claimed injuries, by a doctor(s) of
defendant's designation-specialties to be determined. This examination(s) shall to be conducted
in said doctor (s’) office(s) and at a reasonable time following plaintiff’ s deposition, but in no
event less than 20 days after the service of this Notice.
NAMES AND ADDRESSES OF ATTORNEYS
Each adverse party is to serve on us, within thirty (30) days from service of this Demand,
the names and addresses of all attorneys having appeared in this action on behalf of any adverse
party.
PLEASE TAKE FURTHER NOTICE THAT THESE ARE CONTINUING
DEMANDS, and that each demand requires that an adverse party who acquires more than thirty
(30) days from the service of this demand any document, information, or thing (including the
opinion of any person whom the adverse party expects to call as an expert witness at trial) which
is responsive to any of the above demands, is to give us prompt written advice to that effect; and,
within thirty (30) days (but no less than sixty (60) days before trial), is to serve all such
information on us and allow us to inspect, copy, test, and photograph each such document or
thing.
PLEASE TAKE FURTHER NOTICE that we will object at trial, and move to preclude
as to any adverse party who does not timely identify any witness, serve any report, or produce
any document, information, or thing which is responsive to a discovery demand set forth in any
of the ensuing paragraphs:
A. From calling any event or notice witness not identified to us or medical expert whose
reports have not been served on us;
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B. From calling any other expert witness whose identity, qualifications, and expected
fact and opinion testimony (together with a summary of the grounds for each such opinion) have
not been served on us;
C. From putting in evidence any exhibit not served on us or produced for us to discover,
inspect, copy, and photograph in accordance with any of the ensuing paragraphs; and
D. From offering any other proof not timely disclosed pursuant to a court order in this
action.
DATED: September 14, 2020
New Y ork, New York
To:
Subin Associates, LLP
Y ours, etc.
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
SUTTER AVENUE REALTY CO. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New Y ork, New York 10041
(212) 612-4200
By:
Daniel P. Rocco
Attorneys for Plaintiff, Luis Alberto Herrera
150 Broadway, 23rd Floor
New Y ork, New Y ork 10038
The City of New Y ork
Attomeys for Defendant, The City of New Y ork
100 Church Street
New Y ork, NY 10007
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Newman Law Associates, PLLC.
Attomeys for Defendant,, Belmont RE LLC
111 John Street, Suite 1500
New Y ork, New Y ork 10038
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
wo cen enn neneneenee nee nenn cence eenenece nce eeenennneentee xX Index No.: 512147/2020(ECF)
LUIS ALBERTO HERRERA,
Plaintiff, DEMAND FOR VERIFIED
BILL OF PARTICULARS
v.
THE CITY OF NEW YORK, BELMONT RE, LLC AND
SUTTER AVENUE REALTY CO., LLC.,
Defendants.
PLEASE TAKE NOTICE, Defendant, Sutter A venue Realty Co. LLC, by its attorneys,
EUSTACE, PREZIOSO & YAPCHANY K, demands pursuant to CPLR 3041-3044, that each
Plaintiff furnish, within thirty (30) days of the date of this demand a Verified Bill of the
following particulars:
A.
1.
Liability Issues:
The legal name, address, date of birth and social security number of each plaintiff,
The date and approximate time of day of the alleged accident.
The location of the alleged accident.
(a) A statement of the acts or omissions constituting any negligence or other
culpable conduct claimed against this defendant.
(b) If breach of warranty is alleged, state whether said warranty was:
i. expressed or implied;
ii. oral or written;
iii. if written, set forth a copy thereof; and
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iv. if oral, state by whom and to whom the alleged warranty was
made, specifying the time, place and persons in sufficient detail to
permit identification.
5. If actual notice is claimed, a statement of when, by whom and to whom actual
notice was given and whether such notice was in writing; also, if such notice was in writing, the
statement is to include the name and address of anyone who has any copy of it.
6. If constructive notice is claimed, a statement of how long any allegedly dangerous
or defective condition existed before the occurrence and who has first-hand knowledge of any
such facts.
7.
any violation is claimed, a citation to each statute, ordinance, regulation, and
other federal, state, or local rule which it is claimed that any defendant we represent has violated.
8. If any prior similar occurrence is claimed, a statement of its date, approximate
time of day and approximate location.
9.
any subsequent repair or other remedial action is claimed, a statement of its
date, approximate time of day, approximate location, who made such repair or took such other
action and who has first-hand knowledge of either.
B. Damage Issues: Personal Injury:
10. A statement of the injuries claimed to have been sustained by plaintiff as a result
of the accident and a description of any injuries claimed to be permanent.
11. Inany action under Ins. Law, §5104(a), for personal injuries arising out of
negligence in the use or operation of a motor vehicle in this state, in what respect and to what
extent any plaintiff has sustained:
(a) serious injury, as defined by Insurance Law,5102(b);
18 of 30NYSCEF DOC. NO. 12
12.
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b) economic loss greater than basic economic loss, as defined by Insurance
Law, 5102 (a).
f plaintiff was treated at a hospital or hospitals, the name and address of each
hospital and the exact dates of admission or treatment at each.
13.
The name and address of all medical professionals that treated or examined
plaintiffs with regard to the injuries claimed, and the exact dates of treatment received from each.
14.
f loss of earnings is claimed, the name and address of plaintiff's employer, the
nature of plaintiff's employment, and the exact dates that the plaintiff was incapacitated from
employment.
15.
16.
A statement of the exact dates that each plaintiff was:
a) hospitalized;
b) confined to bed;
c) confined to house;
otal amounts each plaintiff claims as special damages for:
a) hysicians' services;
b) — medical supplies
Cc) loss of earnings to date, with the name(s) and address(es) of plaintiff's
employer(s);
d) loss of earnings in the future, stating how the figure was calculated;
e) ospital expenses;
f) nurses' services;
g) any other special damages claimed.
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17.
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any plaintiff claims loss of services, a statement of all such losses claimed,
including the nature and extent of the lost services and all special damages claimed.
18. The name, address and amounts received from each collateral source that has paid
or reimbursed p!
aintiff for any of the expenses incurred as a result of this accident.
DAMAGE ISSUES: MEDICARE
19. Set
orth plaintiff’ s Medicare Health Insurance number.
20. State whether plaintiff is receiving Medicare benefits.
21. In the event that plaintiff is not receiving any Medicare benefits, state whether
plaintiff has received Medicare benefits in the past.
22. State when plaintiff first received any Medicare benefits.
23. In the event that plaintiff received Medicare benefits in the past, state when the
Medicare benefits ceased.
24. State whether plaintiff received any Medicare benefits due to the injuries or illness
arising out of the incident which is the subject matter of this lawsuit.
25. In
e event that plaintiff has received Medicare benefits, due to treatment provided
for injuries or illness arising out of the incident, which is the subject matter of this lawsuit, please
state the amount
received to date.
26. Identify any documents received pertaining to any Medicare benefits received for
the treatment provided for the injuries or illness arising out of the incident, which is the subject
matter of this lawsuit.
27. State the name, address and policy number of any additional medical insurance.
20 of 30NYSCEF DOC. NO. 12
28. State all names that plaintiff has been known by or has used.
DATED: September 14, 2020
New Y ork, New York
To:
Subin Associates, LLP
Y ours, etc.
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
SUTTER AVENUE REALTY CO. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New Y ork, New York 10041
(212) 612-4200
By:
Daniel P. Rocco
Attorneys for Plaintiff, Luis Alberto Herrera
150 Broadway, 23rd Floor
New Y ork, New Y ork 10038
The City of New Y ork
Attomeys for Defendant, The City of New Y ork
100 Church Street
New Y ork, NY 10007
Newman Law Associates, PLLC.
Attomeys for Defendant,, Belmont RE LLC
111 John Street, Suite 1500
New Y ork, New Y ork 10038
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Index No.: 512147/2020(ECF)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
LUIS ALBERTO HERRERA,
Plaintiff,
-against-
THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER
AVENUE REALTY CO., LLC.,
Defendants.
ANSWER TO COMPLAINT, NOTICE PURSUANT TO CPLR 2103, DEMAND FOR
VERIFIED BILL OF PARTICULARS AND COMBINED DISCOVERY DEMANDS AND
NOTICE OF DEPOSITION
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
Sutter Avenue Realty Co. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New Y ork, New York 10041
(212) 612-4200
22 of 30INDEX NO. 512147/2020
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EUSTACE, PREZIOSO & yapchanyk
ATTORNEYS AT LAW
55Water Street e238" FI.
EDWARD M. EUSTACE MILES A. LINEFSKY
RICHARD C. PREZIOSO New York, NY 10041 DANIEL P. ROCCO
CHRISTOPHER M. YAPCHANYK TEL (212) 612-4200 Michael s.munger
LAUREN S. YANG FAX (212) 612-4284 Hillary A.fraenkel
ee Bhavl een k.sabhar wal
PAUL A. TUMBLESON Not a Partnershipor Professional PETER T.mensching
REGINE DELY-LAZARD Cor poration Justin v. buscher
MAUREEN E. PEK NIC Vach vivachar awongse
ANTHONY J}. TOMARI
THOMAS B. FERRIS OF COUNSEL
TERENCE H. DeMARZO anj.harris
ROBERT M. MAZZEI Brendan Hennessy
Robert M. Michell Jonathan E.hill
MICHELLE GRAMLICH
Mitchell a.greene
September 14, 2020
Subin Associates, LLP
150 Broadway, 23rd Floor
New Y ork, New Y ork 10038
Re: Herrera v. The City of New York, Belmont RE, LLC
Our File Number: 36005973
Date of Loss: 08/06/2019
Dear Counsel:
Please be advised that effective April 14, 2003 the Health Insurance Portability and
Accountability Act went into effect. As such, an appropriate authorization complying with the
HIPAA regulations must be properly completed and signed by the Plaintiff in this action. For
your reference, enclosed please find a sample HIPAA Authorization. The new HIPAA
authorization requires the following items:
1. A description of the information to be used or disclosed.
2. The name of the Requestor or the covered entity or person whom the medical
facility can make the disclosure to.
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3. The name of the medical facility or individual authorized to make the disclosure.
4, An expiration date.
5. A statement of the patients right to revoke the authorization in writing.
6. A statement that informs the patient that the information used or disclosed
pursuant to the authorization may be subject to redisclosure by the requestor and
may no longer be protected by Federal or State Law.
7. Signature of the patient.
8. If the authorization is signed by a person other than the patient, a description of
the patient’ s representative’ s authority (and verification of authority) to act on
behalf of the patient.
9. The Date.
10. A statement that the medical facility will not withhold treatment or services based
on whether or not the patient authorizes this request.
We are requesting your compliance pursuant to the new HIPAA Authorization
Requirements. Thank you for your cooperation and if you have any questions please contact our
office.
Very truly yours,
Daniel P. Rocco
DPR:JLR
Enc.
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AUTHORIZATION FOR RELEASE OF INFORMATION MCS File
Name: SSN: DOB:
Address: City: State: Zip Code:
|, General Release.
Ihereby authorize to disclose the information set forth in Section IV
of
this Authorization for the period from . The released information is required for
litigation. | further authorize The MCS Group, Inc., a private record reproduction company, upon presentation of this authorization or a copy
thereof, to photocopy such records as are reasonably necessary for the above-state purposes.
Il. Health Information Release. | hereby authorize the disclosure of my health information, as described in this authorization:
Person(s) authorized to disclose the information:
[Name of the Provider: Hospital, Doctor, Insurance Co.)
Information to be disclosed: The Information set forth in Section V of this Authorization. | understand that the health information may include
information pertaining to treatment of drug and alcohol abuse, mental health including without limitation psychiatric information, acquired
immunodeficiency syndrome (AIDS), or human immunodeficiency virus (HIV), sexually transmitted diseases, sick cell anemia treatment,
tuberculosis information or genetic information. THIS INFORMATION WILL BE RELEASED UNLESS | INDICATE OTHERWISE BY CHECKING
HERE:
Person(s) authorized to receive the disclosed information: The MCS Group, Inc. on behalf of:
[Name of MCS Client]
| further authorize The MCS Group, Inc., a private record reproduction company, upon presentation of this authorization or a copy thereof, to
photocopy such records as are reasonably necessary for the above-state purposes.
Purpose of this request: At my request.
Expiration Date: Unless otherwise revoked, this authorization will expire one year after the date of this authorization or later as indicated here
Right to revoke: | understand that | have the right to revoke this authorization at any time by notifying in writing each Person identified in Section
(a). | understand that the revocation is only effective after it is received and logged by such Person. | understand that any disclosure made prior to
the revocation under this authorization will not be affected by the revocation.
Subsequent Disclosure: | understand that any disclosure of information may be subject to re-disclosure by the recipient and may no longer be
protected by federal or state law.
Impact on Medical Treatment: | understand that | do not need to sign this authorization to assure any medical treatment. | understand that! may
inspect and/or copy the information to be disclosed. | understand that authorizing this disclosure is voluntary. | understand that if | have any
questions about disclosure of my health information, | may contact the privacy officer for each Person identified in Section (a).
Ill. Signature/Certification.
Signature of Person Identified Above or his or her Authorized Representative / Guardian Date
By signing this authorization, the Authorized Representative and/or Guardian warrants that he or she has the authority to act on behalf of the
person identified above on the basis of:
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AUTHORIZATION FOR RELEASE OF INFORMATION MCS File
IV. Information Subject to the General Release.
Provider
n Employment
Copies of any and all records including but not limited to all applications for employment, all prior employment verification information, all pre-
employment background or health documentation, applications for insurance, insurance forms, all physician or medical reports or records of
any kind pertaining to physical examination required for employment, continued employment, or health or disability insurance, all reports or
records of job or other injury, attendance records, sick time records, vacation records, payroll records, W-2 forms, salary history, progress
records, letters of complaint, layoffs or termination for any and all times, occasions or reasons, pertaining to the Person identified on the front
of this Authorization Form
Car Insurance
Copies of any and all claims files concerning claims including but not limited to PIP pay out sheets, medical records, bills and reports of
treating an examining physician's statements of claims, correspondence, notes and documents concerning of any and all property damage
claims files including but not limited to photographs, estimates, appraisals, payouts for property damage, and any documentation regarding
property damage. Insured: Person identified on the front of this Authorization F orm.
U Social Security Benefits
Any and all records showing all payments and benefits received, and all benefits still available and not used by the Person identified on the
front of this Authorization Form, including but not limited to any and all disability benefits, application for benefits, approval or denial of
benefits and other social security benefits records regarding the above mentioned individual.
School
Copies of any and all school records, transcripts, attendance records, disciplinary reports, extracurricular activities, and cumulative records
regarding the Person identified on the front of this Authorization Form.
Other
V. Information Subject to the Health Information Release.
Provider
n Employment
— Copies of any and all records including but not limited to all applications for employment, all prior employment verification information, all pre-
employment background or health documentation, applications for insurance, insurance forms, all physician or medical reports or records of
any kind pertaining to physical examination required for employment, continued employment, or health or disability insurance, all reports or
records of job or other injury, attendance records, sick time records, vacation records, payroll records, W-2 forms, salary history, progress
records, letters of complaint, layoffs or termination for any and all times, occasions or reasons, pertaining to the Person identified on the front
of this Authorization Form
U Pharmacy
Any and all prescription records kept in the regular course of business including but not limited to prescription prescribed, physicians
prescribing medications, medication description, medication side effect print out, frequency medication being taken, billing, insurance and
payment records, etc., and any and all records kept in your file regarding the below listed party; from the first date of treatment to the present
(pertaining to the Person identified on the front of this Authorization Form).
Medical Insurance
Copies of any and all claim files concerning claims made by the below listed part
Preview
(FILED: KINGS COUNTY CLERK 1270272022 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 12/02/2022 EXHIBIT “B”NYSCEF DOC. NO. 15 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LUIS ALBERTO HERRERA, Plaintiff, -against- THE CITY OF NEW YORK, BELMONT RE, LLC and SUTTER AVENUE REALTY CO. LLC, Defendants. x INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/88/2028 Index No.: 512147/2020 VERIFIED ANSWER TO PLAINTIFE’S VERIFIED COMPLAINT Defendant, BELMONT RE. LLC, by its attorneys, NEWMAN LAW ASSOCIATES PLLC, answers Plaintiff's Verified Complaint dated June 8, 2020 as follows: AS AND FOR A RESPONSE TO FIRST CAUSE OF ACTION 1. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "1" of tl he Complaint; 2. Denies knowledge or sufficient information to form a belief as to the trutl allegations as set forth in paragraph "2" of tl he Complaint; 3. Denies knowledge or sufficient information to form a belief as to the trut! allegations as set forth in paragraph "3" of t Complaint; 4. Denies knowledge or sufficient information to form a belief as to the trutl allegations as set forth in paragraph "4" of tl he Complaint; h of the h of the h of the 5. Denies knowledge or sufficient information to form a belief as to the trutl allegations as set forth in paragraph "5" of tl he Complaint; lof 9 of theINDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2028 6. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "6" of the Complaint; 7. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "7" of the Complaint; 8. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "8" of the Complaint; 9. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "9" of the Complaint; 0. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "10" of the Complaint; 1. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "11" of the Complaint; 2. Denies knowledge or sufficient information to form a belief as to the truth of the allegations as set forth in paragraph "12" of the Complaint; 3. Denies each and every allegation as set forth in paragraph "13" of the Complaint as it applies to Answering Defendant; 14. Denies each and every allegation as set forth in paragraph "14" of the Complaint; 15. Denies each and every allegation as set forth in paragraph "15" of the Complaint; 16. Denies each and every allegation as set forth in paragraph "16" of the Complaint; 2 0f 9INDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2028 17. Denies each and every allegation as set forth in paragraph "17" of the Complaint; 18. Denies each and every allegation as set forth in paragraph "18" of the Complaint. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION 19. In response to the allegations contained in paragraph "19" of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response contained in paragraphs "1" through "18" of this Verified Answer to the Complaint with the same force and effect as if more fully set forth at length herein; 20. Denies in the form alleged each and every allegation as set forth in paragraph "20" of the Complaint except admits that Belmont Re. LLC was a domestic entity authorized to do business in the State of New York; 21. Denies in the form alleged each and every allegation as set forth in paragraph "21" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 22. Denies each and every allegation as set forth in paragraph "22" of the Complaint; 23. Denies in the form alleged each and every allegation as set forth in paragraph "23" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 24. Denies in the form alleged each and every allegation as set forth in paragraph "24" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 3 0f 9NYSCEF DOC. NO. 15 25. INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/88/2028 Denies in the form alleged each and every allegation as set forth in paragraph "25" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 26. Denies in the form alleged each and every allegation as set forth in paragraph "26" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 27. 28. 29. 30. 31. 32. 33. 34. Denies each and every al Denies each and every al Denies each and every al Denies each and every al Denies each and every al Denies each and every al Denies each and every al legation as set forth in paragraph "27" of the Complaint; legation as set forth in paragraph "28" of the Complaint; legation as set forth in paragraph "29" of the Complaint; legation as set forth in paragraph "30" of the Complaint; legation as set forth in paragraph "31" of the Complaint; legation as set forth in paragraph "32" of the Complaint; legation as set forth in paragraph "33" of the Complaint; Denies each and every allegation as set forth in paragraph "34" of the Complaint as it applies to Answering Defendant; 35. Denies each and every allegation as set forth in paragraph "35" of the Complaint; 40f 9INDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2028 36. Denies each and every allegation as set forth in paragraph "36" of the Complaint; 37. Denies each and every allegation as set forth in paragraph "37" of the Complaint; 38. Denies each and every allegation as set forth in paragraph "38" of the Complaint; FIRST AFFIRMATIVE DEFENSE The injuries and damages, if any, alleged to have been sustained by Plaintiff were caused in whole or in part by the culpable conduct and/or contributory negligence of the Plaintiff, and Plaintiff's damages, if any, should be barred or diminished in the proportion which such conduct bears to the culpable conduct that caused said injuries and damages. SECOND AFFIRMATIVE DEFENSE Upon information and belief, the injuries and damages, if any, alleged to have been sustained by Plaintiff were caused in whole or in part by the acts, omissions, or other conduct of individuals or entities over which the Answering Defendant had no control and had no duty to control. THIRD AFFIRMATIVE DEFENSE The injured Plaintiff assumed a known or an open or obvious risk for which Plaintiff may not recover any damages, or Plaintiff's damages must be reduced accordingly. FOURTH AFFIRMATIVE DEFENSE The injuries and damages allegedly sustained by Plaintiff were not reasonably foreseeable. FIFTH AFFIRMATIVE DEFENSE The Answering Defendant owes no legal duty to Plaintiff. 5 of 9 :INDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2028 SIXTH AFFIRMATIVE DEFENSE Plaintiff's injuries, if any, were caused by intervening and/or superseding factors which relieves the Answering Defendant from any liability in this action. SEVENTH AFFIRMATIVE DEFENSE In accordance with CPLR §1601 ef seq., the liability of Answering Defendant, if any, to Plaintiff for non-economic loss is limited to each defendant's equitable share, determined in accordance with relative culpability of ail persons and/or entities contributing to the total liability for non-economic loss, including parties and others over whom Plaintiff could have obtained personal jurisdiction with due diligence. EIGHTH AFFIRMATIVE DEFENSE Plaintiff has failed to join necessary and essential parties to this litigation. NINTH AFFIRMATIVE DEFENSE Upon information and belief, any costs, loss or expenses incurred or to be incurred by the Plaintiff for medical care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in CPLR 4545 (c). TENTH AFFIRMATIVE DEFENSE Plaintiff's damages must be diminished in proportion to culpable conduct in accordance with CPLR 1411 and 1412. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's Complaint fails to state a cause of action upon which relief can be granted as a matter of law. 6 of 9INDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2028 TWELFTH AFFIRMATIVE DEFENSE This action is barred by the applicable statute of limitations. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiff was caused to sustain injuries and/or damages at the time and place and in the manner set forth in this action through any carelessness, recklessness, or negligence, other than Plaintiff's own carelessness, recklessness, or negligence, then the injuries and damages were caused and sustained by reason of the sole active and primary carelessness, recklessness, negligence, and/or acts or omissions of CO-DEFENDANTS, and ANSWERING DEFENDANT is entitled to indemnification, and thereby CO-DEFENDANTS are primarily liable. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiff sustained the injuries and/or damages in the manner and at the time and place alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of responsibility and/or contractual responsibility for the alleged occurrence, is entitled to contractual indemnification from and judgment over and against CO-DEFENDANTS. By reason of the foregoing, ANSWERING DEFENDANT is entitled to have judgment over and against CO-DEFENDANTS as to any sum awarded against ANSWERING DEFENDANT, including costs, expenses, and attorneys’ fees. AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is 7 of 9INDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2028 specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of responsibility and/or contractual responsibility for the alleged occurrence, is entitled to contribution from and judgment over and against CO-DEFENDANTS. By reason of the foregoing, ANSWERING DEFENDANT is entitled to contribution and judgment over and against CO-DEFENDANTS. Dated: New York, New York September 30, 2020 NEWMAN LAW ASSOCIATES PLLC By: JasopeS. War: . ormneys for Defendant BELMONT RE. LLC 111 John Street, Suite 1500 New York, New York 10038 (212) 945-1010 TO: SUBIN ASSOCIATES, LLP Attorneys for Plaintiff LUIS ALBERTO HERRERA 150 Broadway, 23 Floor New York, New York 10038 EUSTACE, PREZIOSO & YAPCHANYK. Attorneys for Defendant SUTTER AVENUE REALTY CO. LLC 55 Water Street, 28" Floor New York, New York 10041 CORPORATION COUNSEL Attorneys for Defendant THE CITY OF NEW YORK 100 Church Street New York, New York 10007 8 of 9INDEX NO. 512147/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: @9/88/2020 ATTORNEY VERIFICATION Jason Warshaw, Esq. affirms the following under the penalties of perjury: I am an attorney duly admitted to practice in the courts of the State of New York, and T am an attorney with the firm of NEWMAN LAW ASSOCIATES PLLC, the attorneys of record for Defendant, BELMONT RE. LLC, in the within action. I have read the foregoing Verified Answer to the Complaint and know the contents thereof. The same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. The basis for my belief is: review of files, investigations and conversations with clients. Dated: New York, New York September 30, 2020 Jason D. Warshaw, Esq. 9 of 9NYSCEF DOC. NO. 12 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LUIS ALBERTO HERRERA, Plaintiff, Vv. THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. X INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/08/2020 Index No.: 512147/2020(ECF) ANSWER TO COMPLAINT Defendant, Sutter Avenue Realty Co. LLC, by its attorneys, EUSTACE, PREZIOSO & Y APCHANY K, answers the Complaint of the Plaintiffs by stating as follows: 1. Denies, upon information and belief, the allegations of paragraph 13, 14, 15, 16, 17, 18, 28, 30, 31, 32, 33, 34, 35, 36, 37 and 38 and respectfully re Court. 2. Denies having knowledge or information sui allegations of paragraph 3, 5, 8, 9, 10, 11, 12, 20, 21, 22, 23, 24, 25, 26, 27 and 3. Denies having knowledge or information sui allegations of paragraph 1, 2, 4, 6 and 7 and respectfully re: Court. 4, Responds to paragraph 19 of the Complaint responses given to the paragraphs referred to therein with the same force and ef! at length. 1 of 30 ers all questions of law to this Honorable ficient to form a bel ficient to form a bel ers all questions of repeating, reiteral ief as to the truth of the 29. ief as to the truth of the law to this Honorable ing, and realleging all ‘ect as if herein set forthINDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 5. The injuries alleged to have been suffered by the Plaintiffs were caused, in whole or part, by the conduct of Plaintiffs. Plaintiffs' claims therefore are barred or diminished in the proportion that such culpable conduct of Plaintiffs bears to the total culpable conduct causing the damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 6. Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiffs for non- economic loss shall not exceed the equitable share of this Defendant determined in accordance with the relative culpability of each person/party causing or contributing to the total liability for non-economic loss. AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 7. Upon information and belief the causes of action alleged in the Complaint of the Plaintiffs fail to properly state, specify or allege a cause of action on which relief can be granted as a matter of law. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 8. That recovery, if any, on the Complaint of the Plaintiffs shall be reduced by the amounts paid or reimbursed by collateral sources in accordance with CPLR 4545(c). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 9. That the actions taken by the answering Defendant were subject to privilege. 2 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 10. Prior to the institution of this action, pursuant to an agreement between the Plaintiffs and this answering Defendant, this answering Defendant paid to the Plaintiffs a sum certain which was paid by this answering Defendant and accepted by the Plaintiffs in full accord and satisfaction for the claim stated in the Complaint. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 11. The injuries and damages alleged in the Complaint of the Plaintiffs were caused or contributed to by Plaintiffs's culpable conduct in assuming the risk under the conditions and circumstances existing. AS AND FOR A CROSS-CLAIM FOR CONTRIBUTION AGAINST: THE CITY OF NEW YORK and BELMONT RE, LLC 12. If any plaintiff recovers against this Defendant, then this Defendant will be entitled to an apportionment of responsibility for damages between and amongst the parties of this action and will be entitled to recover from each other party for its proportional share commensurate with any judgment which may be awarded to the plaintiff. AS AND FOR A CROSS-CLAIM FOR COMMON LAW INDEMNITY AGAINST: THE CITY OF NEW YORK and BELMONT RE, LLC 13. If any plaintiff recovers against this Defendant, then this Defendant will be entitled to be indemnified and to recover the full amount of any judgment from The City of New Y ork and Belmont RE, LLC. 3 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 AS AND FOR A CROSS-CLAIM FOR CONTRACTUAL INDEMNITY AGAINST: THE CITY OF NEW YORK and BELMONT RE, LLC 14. At the time of the accident alleged in the complaint a contract was in effect between this Defendant and The City of New Y ork and Belmont RE, LLC. 15. The contract required The City of New Y ork and Belmont RE, LLC to indemnify and, or hold harmless this Defendant for all claims, losses, liability and damages for any injury to any person. 16. The City of New Y ork and Belmont RE, LLC. breached the contract and is obligated to indemnify this Defendant for any judgement or settlement obtained by any plaintiff in this action including defense costs and attomeys' fees. AS AND FOR A CROSS-CLAIM FOR BREACH OF CONTRACT FOR FAILURE TO NAME ON INSURANCE POLICY AGAINST: THE CITY OF NEW YORK and BELMONT RE, LLC 17. At the time of the accident alleged in the complaint a contract was in effect between this Defendant and The City of New Y ork and Belmont RE, LLC. 18. The contract required The City of New Y ork and Belmont RE, LLC. to purchase liability insurance for the benefit of this Defendant. 19. The City of New Y ork and Belmont RE, LLC., failed to purchase the insurance required and thereby breached the contract. 20. By reason of the foregoing, The City of New York and Belmont RE, LLC., are liable to this answering Defendant for all damages resulting from the breach including defense costs and attorneys’ fees. WHEREFORE, this Defendant demands judgment dismissing the Complaint, together with costs and disbursements, and in the event any judgment or settlement is recovered herein against this Defendant, then this Defendant further demands that such judgment be reduced by 4 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 the amount which is proportionate to the degree of culpability of any plaintiff, and this Defendant further demands judgment against each other party on the respective crossclaims and/or counterclaims. DATED: September 14, 2020 New Y ork, New York Y ours, etc. EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant SUTTER AVENUE REALTY CO. LLC Office and Post Office Address 55 Water Street, 28th Floor New Y ork, New York 10041 (212) 612-4200 By: Daniel P. Rocco To: Subin Associates, LLP Attorneys for Plaintiff, Luis Alberto Herrera 150 Broadway, 23rd Floor New Y ork, New Y ork 10038 The City of New Y ork 100 Church Street New Y ork, NY 10007 Newman Law Associates, PLLC. Attomeys for Defendant,, Belmont RE LLC 111 John Street, Suite 1500 New Y ork, New Y ork 10038 5 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 SUPREME COURT OF THE STATE OF NEW Y ORK COUNTY OF KINGS wot ec cee nee nee ne nnn enn nn tenn enc ee nce c cece neeneeneeneennennenaeeeees xX Index No.: 512147/2020(ECF) LUIS ALBERTO HERRERA, Plaintiff, NOTICE PURSUANT TO CPLR 2103 v. THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. PLEASE TAKE NOTICE that Defendant Sutter Avenue Realty Co. LLC, by its attorneys, EUSTACE, PREZIOSO & Y APCHANY K, hereby serves Notice upon you pursuant to Rule 2103 of the Civil Practice Law and Rules that it expressly rejects service of papers in this matter upon them by electronic means. PLEASE TAKE FURTHER NOTICE that waiver of the foregoing may only be affected by express prior written consent to such service by EUSTACE, PREZIOSO & YAPCHANYK and by placement thereby of EUSTACE, PREZIOSO & YAPCHANYK 6 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 electronic communication number in the address block of papers filed with the Court. DATED: September 14, 2020 New Y ork, New York Y ours, etc. EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant SUTTER AVENUE REALTY CO. LLC Office and Post Office Address 55 Water Street, 28th Floor New Y ork, New York 10041 (212) 612-4200 By: Daniel P. Rocco To: Subin Associates, LLP Attorneys for Plaintiff, Luis Alberto Herrera 150 Broadway, 23rd Floor New Y ork, New Y ork 10038 The City of New Y ork 100 Church Street New Y ork, NY 10007 Newman Law Associates, PLLC. Attomeys for Defendant,, Belmont RE LLC 111 John Street, Suite 1500 New Y ork, New Y ork 10038 7 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS wen ee ene c ence n cence cence nnn nn enn nnn nnn nn ennannnnnnnnannannannnnnnnan xX Index No.: 512147/2020(ECF) LUIS ALBERTO HERRERA, Plaintiff, COMBINED DISCOVERY DEMANDS AND NOTICE v. OF DEPOSITION THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. PLEASE TAKE NOTICE, that Defendant Sutter Avenue Realty Co. LLC, by its attorneys, EUSTACE, PREZIOSO & YAPCHANYK, demands that each adverse party afford us the disclosure which this notice and demand specifies: DEPOSITIONS OF ADVERSE PARTIES UPON ORAL EXAMINATION A. Each adverse party is to appear for deposition upon oral examination pursuant to CPLR 3107: (1) At this date and time: October 25, 2020 at 10:00 am (2) At this place: EUSTACE, PREZIOSO & YAPCHANYK 55 Water Street, 28th Floor New Y ork, New Y ork 10041 B. Pursuant to CPLR 3106(d) we designate the following as the identity, description or title of the particular officer, director, member, or employee of the adverse party specified whose deposition we desire to take: ALL PARTIES C. Each deposition witness thus examined is to produce at such time and place, pursuant to CPLR 3111, all books, papers, and other things which are relevant to the issues in the action 8 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 and within that adverse party's possession, custody, or control to be marked as exhibits, and used on the examination. PARTY STATEMENTS Each adverse party is to serve on us, pursuant to CPLR 3101(e) and CPLR 3120, within thirty (30) days from the service of this Demand, a complete and legible copy of any statement made by or taken from any individual party or any officer, agent, or employee of said party. INSURANCE POLICIES Each adverse party is to serve, pursuant to CPLR 3101(f) and CPLR 3120, within thirty (30) days from the service of this Demand, a complete and legible copy of each primary or excess insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of any judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy any such judgment. ACCIDENT REPORTS Each adverse party is to serve, pursuant to CPLR 3101(g) and CPLR 3120, within thirty (30) days from service of this Demand, a complete and legible copy of every written report of the accident or other event alleged in the complaint prepared in the regular course of that adverse party's business operations or practices. PHOTOGRAPHS AND VIDEOTAPES Each adverse party is to serve within thirty (30) days from the service of this Demand, complete and legible photographic or videotape reproductions of any and all photographs, motion pictures, maps, drawings, diagrams, measurements, surveys of the scene of the accident or equipment or instrumentality involved in the action or photographs of persons or vehicles involved (if applicable) made either before, after or at the time of the events in question, 9 of 30INDEX NO. 5 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: including any photographs or videotapes made of the plaintiff at any time since the incident referred to in the Complaint. WITNESSES Each adverse party is to serve within thirty (30) days from the service of this Demand, the name and address of each witness to any of the following: 1. The accident, occurrence or any other event set forth in the complaint. 2. Any fact tending to prove actual or constructive notice of any condition which may give rise to the liability of any person, whether or not a party, for any damages alleged in this action. 3. Any admission, statement, writing or act of our client. EXPERT WITNESS MATERIAL Each adverse party is to serve, pursuant to CPLR 3101(d)(1), within thirty (30) days from the service of this request, a statement specifying all of the following data as to each person whom that adverse party expects to call as an expert witness at trial: A. The identity of each expert; B. The subject matter on which each expert is expected to testify, disclosed in reasonable detail; C. The substance of the facts and opinions on which each expert is expected to testify; D. The qualifications of each expert; and E. A summary of the grounds for each expert's opinion. PLEASE TAKE FURTHER NOTICE that we will object at trial to the offer of any proof of an expert's qualifications which are different from or additional to those which the adverse party calling the expert had disclosed in reference to sub-paragraph D. 10 of 30 12147/2020 9/08/2028NYSCEF DOC. NO. 12 COLLATERAL SOU Each plaintiff seeking to recover for the cos or rehabilitation services, loss of earnings or other e 4545(c), within thirty (30) days from the service of INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/08/2020 RCE INFORMATION of medical care, dental care, custodial care conomic loss is to serve, pursuant to CPLR this Demand, a statement of all past and future cost and expense which has been or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance (except life insurance), social security, workers' compensation, or employee benefit programs. Each such statement is to set forth the name, address, and insurance policy (or other account) number of each collateral source payor; and, separately stated for each payor, a list specifying the date and amount of each payment and the name, address, and social security number or other taxpayer identification number of each payee. PRODUCTION OF MEDICAL REPORTS AND AUTHORIZATIONS Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of this Demand: Medical Reports and Bills: Copies of the medical reports and bills of those health professionals who have previously treated or examined the plaintiff. Those reports shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those diagnostic tests and technicians' reports which will be offered at the trial. B. Medical Authorizations: Duly executed and acknowledged written medical authorizations, complying with the Health Insurance Portability and Accountability Act (“HIPPA”), 45 C.F.R. §164.508(a), (using attached make copies of the records and notes including any form) permitting all parties to obtain and intake sheets, diagnostic tests, X-Rays, 11 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 MRI's and cat scan films, of all treating and examining hospitals, physicians and other medical professionals. MEDICARE DOCUMENTS Plaintiff is to serve, pursuant to CPLR 3120(1)(i), within thirty (30) days from the service of this demand, a complete and legible copy of: 1. Plaintiff’ s Medicare Insurance Card 2. All Medicare statements of conditional payments for medical treatment arising out of the incident which is the subject of this lawsuit. 3. Plaintiff's Social Security card. 4. All documents pertaining to Medicare benefits received for treatment provided to plaintiff for injuries and illness arising out of the incident which is the subject of this lawsuit. PRODUCTION OF RECORDS AND AUTHORIZATIONS Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of this demand duly executed, fully addressed and acknowledged written authorizations permitting all parties to obtain and make copies of each of the following: A. All workers' compensation records and reports of hearings pertaining to the incident alleged to have occurred in plaintiff's complaint maintained by the workers' compensation Board and workers' compensation carrier. B. All records of present and past employment of plaintiff. C. All records in the no-fault file of any carrier issuing benefits to the plaintiff arising out of the incident alleged to have occurred in the complaint. 12 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 D. All records of the Internal Revenue Service filed by the plaintiff for the calendar year prior to the date of the incident alleged in the complaint and for the two subsequent years. Please use IRS form 4506 and attach 2 copies of identification of the plaintiff, with photo and signature as required by the IRS. E. All records of schools attended by plaintiff. All records of each collateral source that has provided and/or in the future will be providing any payment or reimbursement for expenses incurred because of this incident. MUNICIPAL - NOTICE OF CLAIM AND HEARING A. Each plaintiff is to serve on us, within thirty (30) days from the service of this Demand: 1) A copy of any General Municipal Law, section 50(e) Notice of Claim which that plaintiff served with respect to the accident alleged in this action; and 2) A copy of the transcript of any hearing on any such claim held (by any municipality) pursuant to General Municipal Law, Section 50(h) (with a copy of any exhibit marked at any such hearing); and B. Each municipal-defendant adverse party is to serve on us, within thirty (30) days from the service of this Demand: 1) A copy of any General Municipal Law, Section 50(e) Notice of Claim which that municipal defendant held on any such claim pursuant to General Municipal Law, Section 50(h) (with a copy of any exhibit marked at any such hearing). PHYSICAL OR MENTAL EXAMINATION 13 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 Defendant hereby demands, pursuant to CPLR §3121, that plaintiff appear for and submit to physical, mental and blood examination(s), for all claimed injuries, by a doctor(s) of defendant's designation-specialties to be determined. This examination(s) shall to be conducted in said doctor (s’) office(s) and at a reasonable time following plaintiff’ s deposition, but in no event less than 20 days after the service of this Notice. NAMES AND ADDRESSES OF ATTORNEYS Each adverse party is to serve on us, within thirty (30) days from service of this Demand, the names and addresses of all attorneys having appeared in this action on behalf of any adverse party. PLEASE TAKE FURTHER NOTICE THAT THESE ARE CONTINUING DEMANDS, and that each demand requires that an adverse party who acquires more than thirty (30) days from the service of this demand any document, information, or thing (including the opinion of any person whom the adverse party expects to call as an expert witness at trial) which is responsive to any of the above demands, is to give us prompt written advice to that effect; and, within thirty (30) days (but no less than sixty (60) days before trial), is to serve all such information on us and allow us to inspect, copy, test, and photograph each such document or thing. PLEASE TAKE FURTHER NOTICE that we will object at trial, and move to preclude as to any adverse party who does not timely identify any witness, serve any report, or produce any document, information, or thing which is responsive to a discovery demand set forth in any of the ensuing paragraphs: A. From calling any event or notice witness not identified to us or medical expert whose reports have not been served on us; 14 of 30NYSCEF DOC. NO. 12 INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/08/2020 B. From calling any other expert witness whose identity, qualifications, and expected fact and opinion testimony (together with a summary of the grounds for each such opinion) have not been served on us; C. From putting in evidence any exhibit not served on us or produced for us to discover, inspect, copy, and photograph in accordance with any of the ensuing paragraphs; and D. From offering any other proof not timely disclosed pursuant to a court order in this action. DATED: September 14, 2020 New Y ork, New York To: Subin Associates, LLP Y ours, etc. EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant SUTTER AVENUE REALTY CO. LLC Office and Post Office Address 55 Water Street, 28th Floor New Y ork, New York 10041 (212) 612-4200 By: Daniel P. Rocco Attorneys for Plaintiff, Luis Alberto Herrera 150 Broadway, 23rd Floor New Y ork, New Y ork 10038 The City of New Y ork Attomeys for Defendant, The City of New Y ork 100 Church Street New Y ork, NY 10007 15 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 Newman Law Associates, PLLC. Attomeys for Defendant,, Belmont RE LLC 111 John Street, Suite 1500 New Y ork, New Y ork 10038 16 of 30NYSCEF DOC. NO. 12 INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS wo cen enn neneneenee nee nenn cence eenenece nce eeenennneentee xX Index No.: 512147/2020(ECF) LUIS ALBERTO HERRERA, Plaintiff, DEMAND FOR VERIFIED BILL OF PARTICULARS v. THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. PLEASE TAKE NOTICE, Defendant, Sutter A venue Realty Co. LLC, by its attorneys, EUSTACE, PREZIOSO & YAPCHANY K, demands pursuant to CPLR 3041-3044, that each Plaintiff furnish, within thirty (30) days of the date of this demand a Verified Bill of the following particulars: A. 1. Liability Issues: The legal name, address, date of birth and social security number of each plaintiff, The date and approximate time of day of the alleged accident. The location of the alleged accident. (a) A statement of the acts or omissions constituting any negligence or other culpable conduct claimed against this defendant. (b) If breach of warranty is alleged, state whether said warranty was: i. expressed or implied; ii. oral or written; iii. if written, set forth a copy thereof; and 17 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 iv. if oral, state by whom and to whom the alleged warranty was made, specifying the time, place and persons in sufficient detail to permit identification. 5. If actual notice is claimed, a statement of when, by whom and to whom actual notice was given and whether such notice was in writing; also, if such notice was in writing, the statement is to include the name and address of anyone who has any copy of it. 6. If constructive notice is claimed, a statement of how long any allegedly dangerous or defective condition existed before the occurrence and who has first-hand knowledge of any such facts. 7. any violation is claimed, a citation to each statute, ordinance, regulation, and other federal, state, or local rule which it is claimed that any defendant we represent has violated. 8. If any prior similar occurrence is claimed, a statement of its date, approximate time of day and approximate location. 9. any subsequent repair or other remedial action is claimed, a statement of its date, approximate time of day, approximate location, who made such repair or took such other action and who has first-hand knowledge of either. B. Damage Issues: Personal Injury: 10. A statement of the injuries claimed to have been sustained by plaintiff as a result of the accident and a description of any injuries claimed to be permanent. 11. Inany action under Ins. Law, §5104(a), for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, in what respect and to what extent any plaintiff has sustained: (a) serious injury, as defined by Insurance Law,5102(b); 18 of 30NYSCEF DOC. NO. 12 12. INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/08/2020 b) economic loss greater than basic economic loss, as defined by Insurance Law, 5102 (a). f plaintiff was treated at a hospital or hospitals, the name and address of each hospital and the exact dates of admission or treatment at each. 13. The name and address of all medical professionals that treated or examined plaintiffs with regard to the injuries claimed, and the exact dates of treatment received from each. 14. f loss of earnings is claimed, the name and address of plaintiff's employer, the nature of plaintiff's employment, and the exact dates that the plaintiff was incapacitated from employment. 15. 16. A statement of the exact dates that each plaintiff was: a) hospitalized; b) confined to bed; c) confined to house; otal amounts each plaintiff claims as special damages for: a) hysicians' services; b) — medical supplies Cc) loss of earnings to date, with the name(s) and address(es) of plaintiff's employer(s); d) loss of earnings in the future, stating how the figure was calculated; e) ospital expenses; f) nurses' services; g) any other special damages claimed. 19 of 30NYSCEF DOC. NO. 12 17. INDEX NO. 512147/2020 RECEIVED NYSCEF: @9/08/2020 any plaintiff claims loss of services, a statement of all such losses claimed, including the nature and extent of the lost services and all special damages claimed. 18. The name, address and amounts received from each collateral source that has paid or reimbursed p! aintiff for any of the expenses incurred as a result of this accident. DAMAGE ISSUES: MEDICARE 19. Set orth plaintiff’ s Medicare Health Insurance number. 20. State whether plaintiff is receiving Medicare benefits. 21. In the event that plaintiff is not receiving any Medicare benefits, state whether plaintiff has received Medicare benefits in the past. 22. State when plaintiff first received any Medicare benefits. 23. In the event that plaintiff received Medicare benefits in the past, state when the Medicare benefits ceased. 24. State whether plaintiff received any Medicare benefits due to the injuries or illness arising out of the incident which is the subject matter of this lawsuit. 25. In e event that plaintiff has received Medicare benefits, due to treatment provided for injuries or illness arising out of the incident, which is the subject matter of this lawsuit, please state the amount received to date. 26. Identify any documents received pertaining to any Medicare benefits received for the treatment provided for the injuries or illness arising out of the incident, which is the subject matter of this lawsuit. 27. State the name, address and policy number of any additional medical insurance. 20 of 30NYSCEF DOC. NO. 12 28. State all names that plaintiff has been known by or has used. DATED: September 14, 2020 New Y ork, New York To: Subin Associates, LLP Y ours, etc. EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant SUTTER AVENUE REALTY CO. LLC Office and Post Office Address 55 Water Street, 28th Floor New Y ork, New York 10041 (212) 612-4200 By: Daniel P. Rocco Attorneys for Plaintiff, Luis Alberto Herrera 150 Broadway, 23rd Floor New Y ork, New Y ork 10038 The City of New Y ork Attomeys for Defendant, The City of New Y ork 100 Church Street New Y ork, NY 10007 Newman Law Associates, PLLC. Attomeys for Defendant,, Belmont RE LLC 111 John Street, Suite 1500 New Y ork, New Y ork 10038 21 of 30 INDEX NO. 512147/2020 RECEIVED NYSCEF: 9/08/2028INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 Index No.: 512147/2020(ECF) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LUIS ALBERTO HERRERA, Plaintiff, -against- THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. ANSWER TO COMPLAINT, NOTICE PURSUANT TO CPLR 2103, DEMAND FOR VERIFIED BILL OF PARTICULARS AND COMBINED DISCOVERY DEMANDS AND NOTICE OF DEPOSITION EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant Sutter Avenue Realty Co. LLC Office and Post Office Address 55 Water Street, 28th Floor New Y ork, New York 10041 (212) 612-4200 22 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 EUSTACE, PREZIOSO & yapchanyk ATTORNEYS AT LAW 55Water Street e238" FI. EDWARD M. EUSTACE MILES A. LINEFSKY RICHARD C. PREZIOSO New York, NY 10041 DANIEL P. ROCCO CHRISTOPHER M. YAPCHANYK TEL (212) 612-4200 Michael s.munger LAUREN S. YANG FAX (212) 612-4284 Hillary A.fraenkel ee Bhavl een k.sabhar wal PAUL A. TUMBLESON Not a Partnershipor Professional PETER T.mensching REGINE DELY-LAZARD Cor poration Justin v. buscher MAUREEN E. PEK NIC Vach vivachar awongse ANTHONY J}. TOMARI THOMAS B. FERRIS OF COUNSEL TERENCE H. DeMARZO anj.harris ROBERT M. MAZZEI Brendan Hennessy Robert M. Michell Jonathan E.hill MICHELLE GRAMLICH Mitchell a.greene September 14, 2020 Subin Associates, LLP 150 Broadway, 23rd Floor New Y ork, New Y ork 10038 Re: Herrera v. The City of New York, Belmont RE, LLC Our File Number: 36005973 Date of Loss: 08/06/2019 Dear Counsel: Please be advised that effective April 14, 2003 the Health Insurance Portability and Accountability Act went into effect. As such, an appropriate authorization complying with the HIPAA regulations must be properly completed and signed by the Plaintiff in this action. For your reference, enclosed please find a sample HIPAA Authorization. The new HIPAA authorization requires the following items: 1. A description of the information to be used or disclosed. 2. The name of the Requestor or the covered entity or person whom the medical facility can make the disclosure to. 23 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 3. The name of the medical facility or individual authorized to make the disclosure. 4, An expiration date. 5. A statement of the patients right to revoke the authorization in writing. 6. A statement that informs the patient that the information used or disclosed pursuant to the authorization may be subject to redisclosure by the requestor and may no longer be protected by Federal or State Law. 7. Signature of the patient. 8. If the authorization is signed by a person other than the patient, a description of the patient’ s representative’ s authority (and verification of authority) to act on behalf of the patient. 9. The Date. 10. A statement that the medical facility will not withhold treatment or services based on whether or not the patient authorizes this request. We are requesting your compliance pursuant to the new HIPAA Authorization Requirements. Thank you for your cooperation and if you have any questions please contact our office. Very truly yours, Daniel P. Rocco DPR:JLR Enc. 24 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 AUTHORIZATION FOR RELEASE OF INFORMATION MCS File Name: SSN: DOB: Address: City: State: Zip Code: |, General Release. Ihereby authorize to disclose the information set forth in Section IV of this Authorization for the period from . The released information is required for litigation. | further authorize The MCS Group, Inc., a private record reproduction company, upon presentation of this authorization or a copy thereof, to photocopy such records as are reasonably necessary for the above-state purposes. Il. Health Information Release. | hereby authorize the disclosure of my health information, as described in this authorization: Person(s) authorized to disclose the information: [Name of the Provider: Hospital, Doctor, Insurance Co.) Information to be disclosed: The Information set forth in Section V of this Authorization. | understand that the health information may include information pertaining to treatment of drug and alcohol abuse, mental health including without limitation psychiatric information, acquired immunodeficiency syndrome (AIDS), or human immunodeficiency virus (HIV), sexually transmitted diseases, sick cell anemia treatment, tuberculosis information or genetic information. THIS INFORMATION WILL BE RELEASED UNLESS | INDICATE OTHERWISE BY CHECKING HERE: Person(s) authorized to receive the disclosed information: The MCS Group, Inc. on behalf of: [Name of MCS Client] | further authorize The MCS Group, Inc., a private record reproduction company, upon presentation of this authorization or a copy thereof, to photocopy such records as are reasonably necessary for the above-state purposes. Purpose of this request: At my request. Expiration Date: Unless otherwise revoked, this authorization will expire one year after the date of this authorization or later as indicated here Right to revoke: | understand that | have the right to revoke this authorization at any time by notifying in writing each Person identified in Section (a). | understand that the revocation is only effective after it is received and logged by such Person. | understand that any disclosure made prior to the revocation under this authorization will not be affected by the revocation. Subsequent Disclosure: | understand that any disclosure of information may be subject to re-disclosure by the recipient and may no longer be protected by federal or state law. Impact on Medical Treatment: | understand that | do not need to sign this authorization to assure any medical treatment. | understand that! may inspect and/or copy the information to be disclosed. | understand that authorizing this disclosure is voluntary. | understand that if | have any questions about disclosure of my health information, | may contact the privacy officer for each Person identified in Section (a). Ill. Signature/Certification. Signature of Person Identified Above or his or her Authorized Representative / Guardian Date By signing this authorization, the Authorized Representative and/or Guardian warrants that he or she has the authority to act on behalf of the person identified above on the basis of: 25 of 30INDEX NO. 512147/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: @9/08/2020 AUTHORIZATION FOR RELEASE OF INFORMATION MCS File IV. Information Subject to the General Release. Provider n Employment Copies of any and all records including but not limited to all applications for employment, all prior employment verification information, all pre- employment background or health documentation, applications for insurance, insurance forms, all physician or medical reports or records of any kind pertaining to physical examination required for employment, continued employment, or health or disability insurance, all reports or records of job or other injury, attendance records, sick time records, vacation records, payroll records, W-2 forms, salary history, progress records, letters of complaint, layoffs or termination for any and all times, occasions or reasons, pertaining to the Person identified on the front of this Authorization Form Car Insurance Copies of any and all claims files concerning claims including but not limited to PIP pay out sheets, medical records, bills and reports of treating an examining physician's statements of claims, correspondence, notes and documents concerning of any and all property damage claims files including but not limited to photographs, estimates, appraisals, payouts for property damage, and any documentation regarding property damage. Insured: Person identified on the front of this Authorization F orm. U Social Security Benefits Any and all records showing all payments and benefits received, and all benefits still available and not used by the Person identified on the front of this Authorization Form, including but not limited to any and all disability benefits, application for benefits, approval or denial of benefits and other social security benefits records regarding the above mentioned individual. School Copies of any and all school records, transcripts, attendance records, disciplinary reports, extracurricular activities, and cumulative records regarding the Person identified on the front of this Authorization Form. Other V. Information Subject to the Health Information Release. Provider n Employment — Copies of any and all records including but not limited to all applications for employment, all prior employment verification information, all pre- employment background or health documentation, applications for insurance, insurance forms, all physician or medical reports or records of any kind pertaining to physical examination required for employment, continued employment, or health or disability insurance, all reports or records of job or other injury, attendance records, sick time records, vacation records, payroll records, W-2 forms, salary history, progress records, letters of complaint, layoffs or termination for any and all times, occasions or reasons, pertaining to the Person identified on the front of this Authorization Form U Pharmacy Any and all prescription records kept in the regular course of business including but not limited to prescription prescribed, physicians prescribing medications, medication description, medication side effect print out, frequency medication being taken, billing, insurance and payment records, etc., and any and all records kept in your file regarding the below listed party; from the first date of treatment to the present (pertaining to the Person identified on the front of this Authorization Form). Medical Insurance Copies of any and all claim files concerning claims made by the below listed part