Preview
FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021
. LAW OFFICES OF
ROBERT E BROWN, RC. www.RobertBrownlaw.com
44 Wall Street, 12thFloor New York NY 10005 Tel 212.766.9779
465 Belfield Avenue, Suite F Staten Island, NY 10312 Tel 718.979.9779
RBrown@RobertBrownlaw.com
March 16, 2017
AUTO/GENERAL LIABILITY DEFENSE ATTORNEY REPORT
CONFIDENTIAL ATTORNEY-CLIENT PR1VILEGED COMMUNICATION
CLAIM No.: 188238922 INSURED/CLIENT: Serota Roosevelt, LLC.,
Western Beef Retail, Inc., and Western Beef
Properties, Inc.
DATE OF LOSS: 8/14/2015 PLAINTIFF: Desmond Garrett
REPORT: MEDIATION INDEX NO.: 702978/16E
SECTION 1 - FACTS & BACKGROUND
Description of Loss
Date of loss: 8/14/2015
Time: 5:45 pm
Location: 322 Nassau Rd
Nassau, New York
Description:
According to the Complaint, plaintiff fell on the sidewalk outside the Western
Beef.
Defendants
Defendant(s) named in lawsuit: Serota Roosevelt, LLC .
Western Beef Retail, Inc. d/b/a
Western Beef Properties, Inc.
Jurisdiction/Venue/Opposing Counsel
Jurisdiction: Queens - Proper jurisdiction
County
Venue: Queens - Proper venue
County
Issues regarding venue: None at this time
1
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Plaintiff's attorney: Harry I. Katz, P.C.
61-25 Utopia Parkway
Fresh Meadows, New York 11365
718-463-3700
Allegations
Allegations: Defendants eãüsed and created a dangerous, defective and unsafe
condition. Plaintiff was caused to suffer severe and serious personal
injuries to mind and body and was subjected to great physical pain and
. mental anguish due to the negligence of the Defendants without any
culpable conduct on the part of the Plaintiff.
Injuries/Damages
According to the BOP,
- to right patellar medial femoral condyle osteochondral
Injury knee, tendonosis,
lesion, cartilage loss, fraying and fibrillation, patellar tilt, patellar tracking
abnormality, joint effusion, patellar plica. Weakness to the right knee, leg.
- tenderness to the right knee, painful and limited range of motion
Pain, swellitig,
of the right knee
- Right ankle sprain and and tenderness to the right painful
strain, swelling ankle,
and limited range of motion of the right ankle, weakness to the right ankle, foot.
- to the lumbar L5-S1 disc bulge. and
Injury spine, Pain, swelling tenderness,
· painful and limited range of motion of the lumbar spine. Weakness and radiating
pain.
According to the Supp BOP,
- On March plaintiff underwent medial femoral condyle arthroscopic
1, 2016,
chondroplasty.
SURGERY
SURGEY- March 1, 2016, plaintiff underwent medial femoral condyle
arthroscopic chondroplasty. Post operative diagnosis- meniscal chondral
tear, injury
to the right knee. Surgery held at Orthopedic Surgeon of L.I. Associates, by Dr. Neil
Watnick.
PRIOR INJURIES/SURGERY
- In plaintiff was involved in a motorcycle accident where he broke his tibia
2003,
and had a rod placed in his leg. He had also fractured his femur bone in the same
accident.
- Prior knee 2011
surgery
- In 2011 plaintiff had to remove the rod that was place d in his due to
surgery leg
the 2003 accident.
- Prior right knee arthroscopic 2,012
surgery
MEDICAL RECORDS REVIEWS
Nassau Medical Center- Plaintiff arrived he fell on a sidewalk and
University stating
complaining of right ankle pain and back pain. X-rays showed no fractures in either.
2
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NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021
He said he twisted his ankle and fell onto someone else. He was given an icepack
and discharged.
North Shore LIJ Rehab- Plaintiff had his initial visit on October 2015. He was a
6,
30 year old who was disabled from a two year prior incident. He stated he fell and
"busted"
his ankle and hurt his lower back. Was going to Physical therapy three
times a week at this point. On October 26, 2015 plaintiff was reevaluated. On
January 18, 2016 plaintiff was discharged from PT (non-complaint, had not been in
since 11/17/15). Plaintiff attended PT.on 10/8/15, 10/13/15, 10/15/15, 10/20/15,
10/22/15, 10/26/15, 11/3/15, 11/5/15, 11/11/15, 11/12/15, and 11/17/15.
Premier Physical Therapy- Plaintiff has his initial visit on March 2016 post right
29,
knee arthroscopic surgery. Plaintiff attended PT on 4/4/16, 4/7/16, 4/9/16, 4/14/16,
4/19/1.6, 4/26/16, 4/27/16, 4/27/16, 4/28/16, 5/2/16, 5/12/16 and 5/13/16.
SURGERY- Orthopedic Surgeon of L.I. Associates. Dr Watnick- 3/1/16 Plaintiff
underwent surgery to his knee. The procedure was medial femoral condyle
arthroscopic chondroplasty. The post operative diagnosis- meniscal chondral
tear,
injury to the right knee.
On 3/14/16 plaintiff was seen for a follow-up visit for his right knee
arthroscopic debridement. Plaintiff stated his pan was mild and there was no calf
pain or chest pain. On the right knee, wounds were healed, no effusion, no signs of
infection and reported that patient was healing well. The doctor recommended
activities as tolerated and physical therapy.
On 4/6/16 plaintiff had another follow-up visit. Patient presented with
increasing left knee pain with swelling and locking. An exam of the left knee
showed medial and lateral joint line tenderness, small effusion and positive apley
compressions rotation rest. And x-ray of the left knee showed unremarkable. The
doctor's impression was nossible meniscal tear in left knee and an MRI was
ordered.
Dr. Eisenberg- On September 2016 plaintiff was seen Dr. for his
28, by Eisenberg
initial visit. He complained of lower back pain since his WB fall in August 2015. He
complained of his mid-lumbar region with radiation towards his right buttock and
posterior thigh. He had tried physical therapy and epidural steroid injections with
mild relief. An MRI by Jericho Specialty Imaging from September 2015 was
reviewed which did not show any significant disc herniation, canal stenosis,
forminal stenosis or nerve root impgingment. No neurosurgical interventions were
suggested. .
On November 9, 2016, Dr. Eisenberg saw plaintiff for a neurosurgical follow-up.
Plaintiff complained of pain in his lower back from his mid-lumbar region towards
his right buttock and posterior thigh. He was sent for an updated MRI. A prior MRI
from 10/7/16 was reviewed which showed no significant disk herniation, canal
stenosis or forminal stenosis. He had a mild disc desiccation at L5-S1. He spoke
with plaintiff and did not recommend any neurosurgical intervention.
- MRI of lumbar spine taken 10/7/16- showed mild disc desiccation at L5-SI
3
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NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021
Dr. Shestack- Plaintiff seen on April 2016. Chief complaint pain in lower back
14,
which began in August 2015. He described the pain as sharp and 8/10 worsens to
9/10 with activity. Pain is minimally improved with rest and medications. Epidural
injection was performed as a therapeutic adjunct to a conservative therapy program,
to provide temporary relief in order to facilitate a more aggressive rehabilitative
program
Plaintiff seen on September 12, 2016 with chief complaint of back pain.
Back pain began in August of 2015. Epidural injection was performed as a
. therapeutic adjunct to a conservative therapy program, to provide temporary
On October 11, 2016 patient was seen for his lower back pain. He is
s/Lumbar ESI which provide good improvement of pain for about 6 weeks and
continues to return. He described pain to be sharp and 8/10. Diagnosis attached to
this encounter was radiculopathy, lumbar region.
Plaintiff was seen on November 9, 2016. Plaintiff was seen for chronic
back pain, pain in lower back and right lower extremity to the buttocks with
associated paresthesia and intermittent pain and tingling in right foot. Pain was
described to be sharp, 8/10, worsened with activity, prolonged standing, sitting and
walking. A lumbar spine MRI revealed L5-S1 disc bulge with mild disc desiccation.
Epidural injection was performed as a therapeutic adjunct to a conservative therapy
program, to provide temporary relief in order to facilitate a more aggressive
rehabilitation program. He should continue physical therapy. Medications for pain
management were refilled.
HIPAA compliant authorizations for all applicable medical records have been demanded and
will be processed upon receipt.
Trial
Discovery Cut-Off Dates: 4/21/17
Pre-Trial Conference Date: 11/15/16
Anticipated Trial Date: 4/27/17
. . .
SECTION II - STRATEGY & ACTION PLAN
SIR$450,000.00
According to the BOP-
- Plaintiff's medical expenses are about $14,500.00 and contiriuing.
Within the Response to Combined Demands, plaintiff made a demand of $5,000,000.00.
**On December 22, 2016, plaintiff's attorney made a demand of $1,300,000.00 but indicated
$500,000.00
SECTION IH - ADDITIONAL REMARKS
Note: Debra Dillon of Broadspire had called plaintiff's attorney Harry Katz. Katz told Ms.
. 4
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NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021
Dillon that the plaintiff sustained injuries to his right knee, right ankle and lower back. He is
scheduled at some point to have some sort of surgery to his right knee. He also informed Ms.
Dillon that his client was told by a security guard after the accident and also told the police
officer, that three or four other people had fallen on the defective sidewalk prior to this loss and
that the owner was requested to repair the sidewalk, but he never did.
Note: Plaintiff had a prior surgery of right knee in November 2011 and currently takes Xanax
and Percocet.
DEPOSITIONS
Depositions of plaintiff was held on August 3, 2016
Plaintiff is currently not employed and lives with his wife (although not legally
married), 3 children and his parents in Roosevelt, New York. Plaintiff's incident occurred
on August 14, 2015 at the 322 Nassau Rd WB location. Plaintiff testified that he was
right in front of the store when his incident occurred. He was going to WB to purchase
ice. The store is located about 7 blocks from his home. He drove to the WB after coming
from a sushi restaurant. Plaintiff parked in the parkirtg lot of the store and walked across
the parking lot to get to the store. When the parking lot ends, there was a sidewalk which
is where plaintiff's incident occurred. On the day of the accident plaintiff as told by a
security guard that WB did not own the sidewalk where the plaintiff fell. Two days after
the accident, plaintiff went back to the store location to take pictures of the crack in the
concrete. These pictures were reviewed by the plaintiff at the deposition. A couple weeks
after the incident, plaintiff received pictures of the same sidewalk and it had been paved
On the day of the incident, plaintiff was walking towards the store when he
approached the crack in the ground from a side approach and part of his foot was on the
concrete part of it was hanging over the depression. His right foot went in the depression
and he fell as his foot turned inwards towards the right. As plaintiff was falling forward, a
security guard caught him and plaintiff only fell on his knee. As he scrapped his knee
plaintiff continued to the ice machine and then decided to fill out an accident report. He
"spasming."
immediately felt pain in his ankle and described his back to be When
plaintiff went to the customer service to file out an accident report, he alleges a manger
approached him and told him thht WB does not own the property outside and the landlord
of the property does. He then used the managers phone to call the police. He waited for
the police outside sitting on a type of stool to relieve pressure of his ankle. Plaintiff then
claimed that a man was saying that the crack had been there for over a year and he was
4*
person to have fallen in a year.
The person who had caught plaintiff before he could completely fall to the ground
was Keith, a man plaintiff knew from his neighborhood. Keith was a security guard at the
WB. After Keith caught plaintiff, plaintiff only falling onto his right knee, Keith helped
him back up on his feet. Plaintiff alleges the manap did not let him fill out an incident
report due to the fact WB is just a tenant. He also stated that the manger stated he had put
in a work order to have the crack fixed with the landlord over a year ago. An ambulance
was called and the police. The police arrived first. At this time plaintiff was experiencing
pain in his right ankle, right knee and lower back. Plaintiff filled out a report with the
police. Plaintiff was. taken in the ambul ans stretcher. Plaintiff was taken to the ER at
by
Nassau University medical Center. X-rays were taken and he was told he had a bad sprain
5
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FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021
in his ankle. Plaintiff was told to follow up with an orthopedic surgeon. After the trip to
ER, plaintiff sought medical attention from Dr. Watnik, an orthopedist surgeon from
Long Island Jewish Hospital. Plaintiff had been treated by Dr. Watnik for his prior right
knee surgery. Plaintiff had undergone knee surgery in 2011 and 2012. In 2003 was in a
motorcycle accident where he broke his tibia and had a rod placed into his. His femur
bone was also fractured. Plaintiff did have a suit for this incident which was settled for
$25,000 at what the deposing attorneys thought to be mediation or arbitration. Plaintiff
has not worked since 2012 due to his leg surgery. In November 2011 plaintiff had another
"refracture"
surgery where the rod was taken out and it. In 2014 plaintiff received about
"sythis"
2-3 (cartilage) injections from Dr. Watnik. In 2012 plaintiff underwent right
knee arthroscopic surgery to drain his swelling knee.
After the subject incident, plaintiff underwent surgery in March 2016 to his knee.
Plaintiff also underwent physical therapy after this surgery. As of the date of the
deposition, plaintiff was still going to PT twice a week. About 2-3 months prior to the
deposition, plaintiff began having arthritic problems in his left hip and left knee. He has
experienced some improvement since attending PT after the subject incident. The
epidurals that he was given by a Dr. Chestek were very helpful until they wear off.
Things plaintiff could do from 2012-2015 and can no longer do or has problems
with is going up and down stairs, getting dressed in the morning, cannot drive for long
periods of time, and now wears loose clothing. His days are now spent going to doctor's
appointments and hanging out with his kids.
Plaintiff explained that the day before the accident, his knee was great, he felt in
shape, and from a scale from 1-100 he was about a 90 and after the accident he feels
"helpless."
about a 40-50 and that he feels
Deposition of Defendant witness Clifford Winston was held on the same day.
o Summary
Clifford Winston is currently employed by Western Beef and has been for the last
14 years. He has worked at the 322 Nassau Rd location for more than 2 years. His current
position is assistant store manager. The witness did not know who was present at the
store on August 14, 2015 and he did not remember whether or not he was present on that
Preview
FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021 . LAW OFFICES OF ROBERT E BROWN, RC. www.RobertBrownlaw.com 44 Wall Street, 12thFloor New York NY 10005 Tel 212.766.9779 465 Belfield Avenue, Suite F Staten Island, NY 10312 Tel 718.979.9779 RBrown@RobertBrownlaw.com March 16, 2017 AUTO/GENERAL LIABILITY DEFENSE ATTORNEY REPORT CONFIDENTIAL ATTORNEY-CLIENT PR1VILEGED COMMUNICATION CLAIM No.: 188238922 INSURED/CLIENT: Serota Roosevelt, LLC., Western Beef Retail, Inc., and Western Beef Properties, Inc. DATE OF LOSS: 8/14/2015 PLAINTIFF: Desmond Garrett REPORT: MEDIATION INDEX NO.: 702978/16E SECTION 1 - FACTS & BACKGROUND Description of Loss Date of loss: 8/14/2015 Time: 5:45 pm Location: 322 Nassau Rd Nassau, New York Description: According to the Complaint, plaintiff fell on the sidewalk outside the Western Beef. Defendants Defendant(s) named in lawsuit: Serota Roosevelt, LLC . Western Beef Retail, Inc. d/b/a Western Beef Properties, Inc. Jurisdiction/Venue/Opposing Counsel Jurisdiction: Queens - Proper jurisdiction County Venue: Queens - Proper venue County Issues regarding venue: None at this time 1 FS000003 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021 Plaintiff's attorney: Harry I. Katz, P.C. 61-25 Utopia Parkway Fresh Meadows, New York 11365 718-463-3700 Allegations Allegations: Defendants eãüsed and created a dangerous, defective and unsafe condition. Plaintiff was caused to suffer severe and serious personal injuries to mind and body and was subjected to great physical pain and . mental anguish due to the negligence of the Defendants without any culpable conduct on the part of the Plaintiff. Injuries/Damages According to the BOP, - to right patellar medial femoral condyle osteochondral Injury knee, tendonosis, lesion, cartilage loss, fraying and fibrillation, patellar tilt, patellar tracking abnormality, joint effusion, patellar plica. Weakness to the right knee, leg. - tenderness to the right knee, painful and limited range of motion Pain, swellitig, of the right knee - Right ankle sprain and and tenderness to the right painful strain, swelling ankle, and limited range of motion of the right ankle, weakness to the right ankle, foot. - to the lumbar L5-S1 disc bulge. and Injury spine, Pain, swelling tenderness, · painful and limited range of motion of the lumbar spine. Weakness and radiating pain. According to the Supp BOP, - On March plaintiff underwent medial femoral condyle arthroscopic 1, 2016, chondroplasty. SURGERY SURGEY- March 1, 2016, plaintiff underwent medial femoral condyle arthroscopic chondroplasty. Post operative diagnosis- meniscal chondral tear, injury to the right knee. Surgery held at Orthopedic Surgeon of L.I. Associates, by Dr. Neil Watnick. PRIOR INJURIES/SURGERY - In plaintiff was involved in a motorcycle accident where he broke his tibia 2003, and had a rod placed in his leg. He had also fractured his femur bone in the same accident. - Prior knee 2011 surgery - In 2011 plaintiff had to remove the rod that was place d in his due to surgery leg the 2003 accident. - Prior right knee arthroscopic 2,012 surgery MEDICAL RECORDS REVIEWS Nassau Medical Center- Plaintiff arrived he fell on a sidewalk and University stating complaining of right ankle pain and back pain. X-rays showed no fractures in either. 2 FS000002 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021 He said he twisted his ankle and fell onto someone else. He was given an icepack and discharged. North Shore LIJ Rehab- Plaintiff had his initial visit on October 2015. He was a 6, 30 year old who was disabled from a two year prior incident. He stated he fell and "busted" his ankle and hurt his lower back. Was going to Physical therapy three times a week at this point. On October 26, 2015 plaintiff was reevaluated. On January 18, 2016 plaintiff was discharged from PT (non-complaint, had not been in since 11/17/15). Plaintiff attended PT.on 10/8/15, 10/13/15, 10/15/15, 10/20/15, 10/22/15, 10/26/15, 11/3/15, 11/5/15, 11/11/15, 11/12/15, and 11/17/15. Premier Physical Therapy- Plaintiff has his initial visit on March 2016 post right 29, knee arthroscopic surgery. Plaintiff attended PT on 4/4/16, 4/7/16, 4/9/16, 4/14/16, 4/19/1.6, 4/26/16, 4/27/16, 4/27/16, 4/28/16, 5/2/16, 5/12/16 and 5/13/16. SURGERY- Orthopedic Surgeon of L.I. Associates. Dr Watnick- 3/1/16 Plaintiff underwent surgery to his knee. The procedure was medial femoral condyle arthroscopic chondroplasty. The post operative diagnosis- meniscal chondral tear, injury to the right knee. On 3/14/16 plaintiff was seen for a follow-up visit for his right knee arthroscopic debridement. Plaintiff stated his pan was mild and there was no calf pain or chest pain. On the right knee, wounds were healed, no effusion, no signs of infection and reported that patient was healing well. The doctor recommended activities as tolerated and physical therapy. On 4/6/16 plaintiff had another follow-up visit. Patient presented with increasing left knee pain with swelling and locking. An exam of the left knee showed medial and lateral joint line tenderness, small effusion and positive apley compressions rotation rest. And x-ray of the left knee showed unremarkable. The doctor's impression was nossible meniscal tear in left knee and an MRI was ordered. Dr. Eisenberg- On September 2016 plaintiff was seen Dr. for his 28, by Eisenberg initial visit. He complained of lower back pain since his WB fall in August 2015. He complained of his mid-lumbar region with radiation towards his right buttock and posterior thigh. He had tried physical therapy and epidural steroid injections with mild relief. An MRI by Jericho Specialty Imaging from September 2015 was reviewed which did not show any significant disc herniation, canal stenosis, forminal stenosis or nerve root impgingment. No neurosurgical interventions were suggested. . On November 9, 2016, Dr. Eisenberg saw plaintiff for a neurosurgical follow-up. Plaintiff complained of pain in his lower back from his mid-lumbar region towards his right buttock and posterior thigh. He was sent for an updated MRI. A prior MRI from 10/7/16 was reviewed which showed no significant disk herniation, canal stenosis or forminal stenosis. He had a mild disc desiccation at L5-S1. He spoke with plaintiff and did not recommend any neurosurgical intervention. - MRI of lumbar spine taken 10/7/16- showed mild disc desiccation at L5-SI 3 FS00000f FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021 Dr. Shestack- Plaintiff seen on April 2016. Chief complaint pain in lower back 14, which began in August 2015. He described the pain as sharp and 8/10 worsens to 9/10 with activity. Pain is minimally improved with rest and medications. Epidural injection was performed as a therapeutic adjunct to a conservative therapy program, to provide temporary relief in order to facilitate a more aggressive rehabilitative program Plaintiff seen on September 12, 2016 with chief complaint of back pain. Back pain began in August of 2015. Epidural injection was performed as a . therapeutic adjunct to a conservative therapy program, to provide temporary On October 11, 2016 patient was seen for his lower back pain. He is s/Lumbar ESI which provide good improvement of pain for about 6 weeks and continues to return. He described pain to be sharp and 8/10. Diagnosis attached to this encounter was radiculopathy, lumbar region. Plaintiff was seen on November 9, 2016. Plaintiff was seen for chronic back pain, pain in lower back and right lower extremity to the buttocks with associated paresthesia and intermittent pain and tingling in right foot. Pain was described to be sharp, 8/10, worsened with activity, prolonged standing, sitting and walking. A lumbar spine MRI revealed L5-S1 disc bulge with mild disc desiccation. Epidural injection was performed as a therapeutic adjunct to a conservative therapy program, to provide temporary relief in order to facilitate a more aggressive rehabilitation program. He should continue physical therapy. Medications for pain management were refilled. HIPAA compliant authorizations for all applicable medical records have been demanded and will be processed upon receipt. Trial Discovery Cut-Off Dates: 4/21/17 Pre-Trial Conference Date: 11/15/16 Anticipated Trial Date: 4/27/17 . . . SECTION II - STRATEGY & ACTION PLAN SIR$450,000.00 According to the BOP- - Plaintiff's medical expenses are about $14,500.00 and contiriuing. Within the Response to Combined Demands, plaintiff made a demand of $5,000,000.00. **On December 22, 2016, plaintiff's attorney made a demand of $1,300,000.00 but indicated $500,000.00 SECTION IH - ADDITIONAL REMARKS Note: Debra Dillon of Broadspire had called plaintiff's attorney Harry Katz. Katz told Ms. . 4 FS000006 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021 Dillon that the plaintiff sustained injuries to his right knee, right ankle and lower back. He is scheduled at some point to have some sort of surgery to his right knee. He also informed Ms. Dillon that his client was told by a security guard after the accident and also told the police officer, that three or four other people had fallen on the defective sidewalk prior to this loss and that the owner was requested to repair the sidewalk, but he never did. Note: Plaintiff had a prior surgery of right knee in November 2011 and currently takes Xanax and Percocet. DEPOSITIONS Depositions of plaintiff was held on August 3, 2016 Plaintiff is currently not employed and lives with his wife (although not legally married), 3 children and his parents in Roosevelt, New York. Plaintiff's incident occurred on August 14, 2015 at the 322 Nassau Rd WB location. Plaintiff testified that he was right in front of the store when his incident occurred. He was going to WB to purchase ice. The store is located about 7 blocks from his home. He drove to the WB after coming from a sushi restaurant. Plaintiff parked in the parkirtg lot of the store and walked across the parking lot to get to the store. When the parking lot ends, there was a sidewalk which is where plaintiff's incident occurred. On the day of the accident plaintiff as told by a security guard that WB did not own the sidewalk where the plaintiff fell. Two days after the accident, plaintiff went back to the store location to take pictures of the crack in the concrete. These pictures were reviewed by the plaintiff at the deposition. A couple weeks after the incident, plaintiff received pictures of the same sidewalk and it had been paved On the day of the incident, plaintiff was walking towards the store when he approached the crack in the ground from a side approach and part of his foot was on the concrete part of it was hanging over the depression. His right foot went in the depression and he fell as his foot turned inwards towards the right. As plaintiff was falling forward, a security guard caught him and plaintiff only fell on his knee. As he scrapped his knee plaintiff continued to the ice machine and then decided to fill out an accident report. He "spasming." immediately felt pain in his ankle and described his back to be When plaintiff went to the customer service to file out an accident report, he alleges a manger approached him and told him thht WB does not own the property outside and the landlord of the property does. He then used the managers phone to call the police. He waited for the police outside sitting on a type of stool to relieve pressure of his ankle. Plaintiff then claimed that a man was saying that the crack had been there for over a year and he was 4* person to have fallen in a year. The person who had caught plaintiff before he could completely fall to the ground was Keith, a man plaintiff knew from his neighborhood. Keith was a security guard at the WB. After Keith caught plaintiff, plaintiff only falling onto his right knee, Keith helped him back up on his feet. Plaintiff alleges the manap did not let him fill out an incident report due to the fact WB is just a tenant. He also stated that the manger stated he had put in a work order to have the crack fixed with the landlord over a year ago. An ambulance was called and the police. The police arrived first. At this time plaintiff was experiencing pain in his right ankle, right knee and lower back. Plaintiff filled out a report with the police. Plaintiff was. taken in the ambul ans stretcher. Plaintiff was taken to the ER at by Nassau University medical Center. X-rays were taken and he was told he had a bad sprain 5 FS00000 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 04/06/2021 in his ankle. Plaintiff was told to follow up with an orthopedic surgeon. After the trip to ER, plaintiff sought medical attention from Dr. Watnik, an orthopedist surgeon from Long Island Jewish Hospital. Plaintiff had been treated by Dr. Watnik for his prior right knee surgery. Plaintiff had undergone knee surgery in 2011 and 2012. In 2003 was in a motorcycle accident where he broke his tibia and had a rod placed into his. His femur bone was also fractured. Plaintiff did have a suit for this incident which was settled for $25,000 at what the deposing attorneys thought to be mediation or arbitration. Plaintiff has not worked since 2012 due to his leg surgery. In November 2011 plaintiff had another "refracture" surgery where the rod was taken out and it. In 2014 plaintiff received about "sythis" 2-3 (cartilage) injections from Dr. Watnik. In 2012 plaintiff underwent right knee arthroscopic surgery to drain his swelling knee. After the subject incident, plaintiff underwent surgery in March 2016 to his knee. Plaintiff also underwent physical therapy after this surgery. As of the date of the deposition, plaintiff was still going to PT twice a week. About 2-3 months prior to the deposition, plaintiff began having arthritic problems in his left hip and left knee. He has experienced some improvement since attending PT after the subject incident. The epidurals that he was given by a Dr. Chestek were very helpful until they wear off. Things plaintiff could do from 2012-2015 and can no longer do or has problems with is going up and down stairs, getting dressed in the morning, cannot drive for long periods of time, and now wears loose clothing. His days are now spent going to doctor's appointments and hanging out with his kids. Plaintiff explained that the day before the accident, his knee was great, he felt in shape, and from a scale from 1-100 he was about a 90 and after the accident he feels "helpless." about a 40-50 and that he feels Deposition of Defendant witness Clifford Winston was held on the same day. o Summary Clifford Winston is currently employed by Western Beef and has been for the last 14 years. He has worked at the 322 Nassau Rd location for more than 2 years. His current position is assistant store manager. The witness did not know who was present at the store on August 14, 2015 and he did not remember whether or not he was present on that