Preview
(FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023
B-102535
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
patente naan ane ee nn nnn en ene nana ne nnnenmeneneneneen
TYLER RICHARDSON, INDEX NO.: 516922/2023
Plaintiff,
CERTIFICATION
PURSUANT
TO PART 130
-against-
RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
Defendants.
- aes X
The accompanying papers are served/filed/submitted pursuant to 22NYCRR Section
130-1.1-a:
Verified Answer to Complaint
Affirmative Defenses
Demand for Verified Bill of Particulars
Demand for Medical Reports, Records, Bills and Authorizations
Demand Pursuant to Medicare/Medicaid Statute
Notice for Discovery and Inspection
Notice for Discovery and Inspection
3101(d) Demand for Expert Witness Information
Demand for Collateral Sources
Demand for Production of Insurance Agreement
Notice Pursuant to CPLR 2103(E)
Notice to Take Deposition upon Oral Examination
Notice for Physical Examination
Demand for Statement of Damages
Demand for Production of Cellular/Portable Telephone Records
Statutory Insurance Disclosure
Dated: Long Island City, New York
July 12, 2023
Yours, etc.
BY: <2
Francis M. BHriclia, Es iq.
LAW OFFICES OF NANCY L. ISSERLIS
Attorneys for Defendants
Office and P.O. Address
36-01 43° Avenue
Long Island City, New York 11101
718-361-1514
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B-102535
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
war nenen anne. ~X
TYLER RICHARDSON, INDEX NO.: 516922/2023
Plaintiff,
VERIFIED ANSWER TO
COMPLAINT,
-against- DEMAND FOR VERIFIED
BILL OF PARTICULARS
AND VARIOUS DEMANDS
RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
Defendants.
ween ne neem nent enn nnn nnn nme een en ennnnmenenenenenmenen XK
The defendants RAMIN DAUSHVILL and P&P AUTO GROUP LLC by their
attorneys, LAW OFFICES OF NANCY L. ISSERLIS, answering the complaint herein, allege
upon information and belief as follows:
1 Denies any knowledge or information sufficient to form a belief as to the
allegations contained in the paragraph marked 1, 18, 19, 20, 21 and 22 of the complaint herein.
2. Denies each and every allegation set forth in paragraphs marked 3, 11, 23, 24,
25, 27, 28, 29, 30 and 31 of the complaint herein.
3 Denies any knowledge or information sufficient to form a belief as to the
allegations contained in the paragraphs marked 12, 13, 14, 15, 16, 17, 26 of the complaint
herein and leaves all questions of law and fact to the court.
AS FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE
UPON INFORMATION AND BELIEF:
If the Plaintiff sustained any injuries and/or damages at the time and place alleged in
the complaint, the Plaintiff assumed the risk inherent in the activity in which Plaintiff was then
engaged and further such injuries and/or damages were caused by reason of the culpable
conduct and/or negligence of the Plaintiff without any negligence on the part of the Defendants
contributing thereto,
AS FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE
UPON INFORMATION AND BELIEF:
That the said action is barred and precluded by virtue of Article 51, Sections 5101,
5102, 5103 and 5104 of the New York State Insurance Law.
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AS FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE
UPON INFORMATION AND BELIEF:
Upon information and belief, any past or future costs or expenses incurred or to be
incurred by the Plaintiff for medical care, dental 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 the collateral source as defined in Section 4545(c) of
the New York Civil Practice Law and Rules. If any damages are recoverable against the said
answering Defendants, the amount of such damages shall be diminished by the amount of the
funds which Plaintiff has or shall receive from such collateral source.
AS FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY
ALLEGE UPON INFORMATION AND BELIEF:
Plaintiff failed to take all reasonable measures to reduce, mitigate and/or minimize
the damages alleged.
AS FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE
UPON INFORMATION AND BELIEF:
Defendants cannot be held liable as Defendants were faced with a sudden emergency
situation, not of their own doing and/or creation, and therefore, not chargeable with negligence
and accordingly, the summons and complaint should be dismissed.
AS FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
That Plaintiff is guilty of negligence as a matter of law in that he violated the Vehicle
and Traffic Law in riding a bicycle without the proper seating capacity.
AS FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
The Plaintiff is guilty of negligence as a matter of law in that he has violated the
Vehicle and Traffic Law in riding on a bicycle without wearing a protective helmet.
AS FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
The Plaintiff assumed the risk inherent in riding on a bicycle.
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AS FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
The Plaintiff failed to use a protective helmet and, as a result his injuries were
aggravated thereby.
WHEREFORE, the Defendant RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
demands judgment against the plaintiff herein, dismissing the Amended Complaint together
with the costs and disbursements of this action.
Dated: Long Island City, New York
July 12, 2023
Yours, etc.
LAW OFFICES OF
NANCY L. ISSERLIS
Attormeys for Defendants
Office and P.O. Address
36-01 43° Avenue
Long Island City, New York 11101
718-361-1514
TO Law Offices of Darren T. Moore
Attorneys for Plaintiff
171 Madison Avenue, Suite 305
New York, NY 10016
917-809-7014
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ATTORNEY’S VERIFICATION
The undersigned, an attorney admitted to practice in the Courts of New York State,
hereby affirms as true under all the penalties of perjury that affirmant is associated with the
firm of LAW OFFICES OF NANCY L. ISSERLIS, the attorneys of record for the Defendants
in the within action; that affirmant has read the foregoing ANSWER TO THE COMPLAINT
and knows the contents thereof; that the same is true to affirmant’s own knowledge, except as
to the matter therein stated to be alleged upon information and belief, and that as to those
matters affirmant believes them to be true. Affirmant further states that the reason this
verification is made by affirmant and not by Defendants, is because Defendants reside outside
the County of affirmant’s office.
The grounds of affirmant’s belief as to all matters not stated upon affirmant’s
knowledge are as follows: Investigations and information received by affirmant in the course
of representing Defendants.
Dated: Long Island City, New York
July 12, 2023
Francis Cerniglia, Esq.
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B-102535
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ten nan en en nen nner encenenecnennene
TYLER RICHARDSON, INDEX NO.: 516922/2023
Plaintiff, DEMAND FOR VERIFIED
BILL OF PARTICULARS
-against-
RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
Defendants.
sean nae en er enmennemen een
PLEASE TAKE NOTICE that the Defendants hereby demand that Plaintiff serve
upon the undersigned within thirty (30) days from the date of service of this demand, a
verified bill of particulars, pursuant to Sections 3042, 3043, 3044 of the Civil Practice Law
and Rules, the following matters:
1. State the date and time of day of the occurrence.
2. State the exact location of the occurrence.
3. If the occurrence took place on premises, set forth location therein giving floor
number and location thereon, so as to be readily identified: if upon a sidewalk or exterior of
premises, the distance from the curb and building line and other fixed object.
4. If an automobile accident, state the street or streets including reference to
intersections, crosswalks, comers, or curbs, where necessary to accurately locate the place;
and the direction and speed in which each vehicle involved was traveling, immediately
before and at the time thereof.
5. State the parts of each vehicle which allegedly came into contact and collision.
6. An itemized statement stating separately the cost and materials and labor to repair
or replace and a description of Plaintiff(s)’ automobile stating the make, model, year of
manufacture and license number. Please attach copies of any repair bills.
7. If loss of use of a vehicle is claimed, state:
a) length of time of such loss of use;
b) whether a replacement vehicle was hired, and if so;
c) dates of such hiring;
d) amounts paid therefore and
e) amounts reimbursed from replacement vehicle by any entity.
8. State all the acts and/or omissions constituting the negligence claimed.
9. State any and all laws, rules, regulations and ordinances that are claimed to be
either applicable to the occurrence or to have been violated by the Defendant(s).
10. State the nature, extent, location and duration of each and every alleged injury
claimed.
11. Specify those injuries claimed to be permanent.
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12. Accurately state the length of time confined to bed and the dates thereof.
13, Accurately state the length of time confined to the house and the dates thereof.
14. Accurately state the length of time Plaintiff(s) was/were incapacitated from
household duties or school and the dates thereof.
15. State name of each and every hospital, clinic and/or other health care facility
where any medical treatment, consultation and/or examination was rendered and the length
of time, if any confined there and the dates thereof. If not confined to any hospital, etc. so
state.
16. State the name and address of each and every physician, chiropractor and/or other
health care provider who treated the Plaintiff(s) and the dates thereof.
17. State the name and address of the supplier of any medical supplies and/or
medicines, including a description of each item.
18. If loss of services is claimed, set forth the particulars of such claim in detail,
including the length of time and the dates thereof.
19, State the age of each Plaintiff and date of birth.
20. State the following:
a) Plaintiff(s)’ social security number;
b) name and address of Plaintiff(s)’ employer at the time of the alleged
occurrence and at the present time;
¢) Plaintiff(s)’ occupation;
d) average daily or monthly earnings;
¢) length of time Plaintiff(s) was/were incapacitated from employment, and
the specific dates thereof, identifying any part-time employment;
f) if self-employed, state the nature of the self-employment and business
address and
g) state the total amount claimed as loss of earnings, both past and future,
including a detailed statement as to how such lost earnings were computed.
21. Ifthe Plaintiff(s) was/were a student, give the name and address of the school
attended at the time of the subject accident, and accurately state the length of time
incapacitated from attending said school.
22. State the total amount claimed as special damages for:
a) physician, chiropractor, physical therapist and/or any other health care
providers’ services;
b) x-rays, MRIs or other radiological expenses;
c) medical supplies;
d) medicines;
e) hospital expenses;
f) nurses’ services and home health care attendants’ services and
g) amount and nature of any other special damages claimed.
23. In reference to the total amounts of special damages set forth in item 21 (a)
through (g):
a) state whether any of said amounts were reimbursed by “no fault” to date
and/or from any other collateral source such as employers’ insurance, social security,
workers compensation or employee benefit programs;
b) if the answer to 23 (a) is in the affirmative, specifically set forth separately
as to each item, the amount of the reimbursement received and the name and address of the
insurance company, organization, entity and/or program from whom such reimbursement
was received. Also state the identifying policy and/or file numbers of each insurance
company, organization, entity and/or program and its effective dates.
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c) state separately whether or not Plaintiff(s) has/have made claim for
reimbursement of lost earnings and/or economic loss to any collateral source which has not
as yet been paid;
d) if the answer is in the affirmative, state the name and address of the
insurance company, organization and/or entity to whom such claim was presented, the date
of the presentation, the amount claimed and the identifying number of the policy or program;
e) state whether or not Plaintiff(s) reasonably anticipates making a claim in
the future for reimbursement of future economic loss;
f) if the answer is in the affirmative, state the name and address of the
insurance company, organization and/or entity to whom such claim will be presented, the
identifying number of the policy or program and the extent of total coverage or benefits
available to the Plaintiff(s).
24. State the residence address of the Plaintiffis).
25. State in what respect has/have Plaintiff(s) sustained a serious injury as defined in
the Insurance Law or economic loss greater than basic economic loss as defined in the
Insurance Law.
26. State the name and address of any insurance carrier providing first party benefits
to the Plaintiff(s) and the policy number of said policy under which said coverage is being
provided.
27, State the date of each accident that Plaintiff(s) allegedly sustained during the past
ten (10) years, together with a statement explaining the nature of the accident, the alleged
injuries, whether Plaintifi(s) received compensation or medical payments from Workers’
Compensation, No Fault, an employer, an insurer or any other party with respect to same,
whether Plaintiff(s) initiated litigation with respect to said accident(s) and if so, the name and
address of the attorneys for the Plaintiff(s) who represented them in said lawsuits.
PLEASE TAKE FURTHER NOTICE that if you fail to furnish the requested bill of
particulars within the statutory period of THIRTY (30) DAYS, a motion will be made for an
order dismissing the Complaint, or, in the alternative, precluding the Plaintiff from giving an
evidence of items for which particulars, though demanded, have not been furnished.
Dated: Long Island City, New York
July 12, 2023
Yours, etc.
LAW OFFICES OF
NANCY L. ISSERLIS
Attorneys for Defendants
Office and P.O. Address
36-01 43 Avenue
Long Island City, New York 11101
718-361-1514
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B-102535
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
meee nnn n cam neeneeenenens. mee eaten nnnn nanan nnn nanan nen X
TYLER RICHARDSO) INDEX NO.: 516922/2023
Plaintiff, DEMAND FOR COPIES
OF PLAINTIFF'S
-against- MEDICAL REPORTS,
RECORDS, BILLS AND
AUTHORIZATIONS
RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
Defendants.
nen eeee meen enn nn nnn e nn nnn een enn nnn neem
PLEASE TAKE NOTICE, that pursuant to the Uniform Rules for Trial Courts, demand
is made upon the Plaintiff(s) or their attorney(s) to:
1. Serve upon the attorney(s) for the Defendant(s) copies of all the medical reports of
those physicians or other health care providers of every description who have consulted, treated
or examined the Plaintiff(s) for each of the conditions allegedly caused by, or exacerbated by,
the occurrence described in the complaint. These 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 x-rays and technician’s reports which will be offered at the trial.
2. Serve upon the attorney for the Defendant(s) duly executed and acknowledged
written HIPAA compliant authorizations permitting all parties to obtain and make copies of all
hospital, clinic or other health care facilities in which the Plaintiff(s) is/are or was/were treated
or confined due to the occurrence set forth in the complaint so as to permit the securing of the
entire hospital record or records, including x-rays and technician’s reports as to be referred to
and identified in the statement of the Plaintiff(s)’ physicians.
3. Serve upon the attorney for the Defendant(s) duly executed and acknowledged
written HIPAA compliant authorizations permitting all parties to obtain and make copies of
the complete office medical records relating to Plaintiffs), of each and every physician and/or
other health care provider of every description who have consulted, treated or examined the
Plaintiff(s) for each of the conditions allegedly caused by, or exacerbated by, the occurrence
described in the complaint.
4. Serve upon the attorney for the Defendant(s) duly executed and acknowledged
written HIPAA compliant authorizations permitting all parties to obtain complete pharmacy or
drug store records of the Plaintiff(s) with respect to any drugs prescribed for Plaintiff(s) from
one (1) year prior to the occurrence described in the complaint to the present date.
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5. Serve upon the attorney for the Defendant(s) duly executed and acknowledged
written HIPAA compliant authorizations permitting all parties to obtain complete medical,
hospital and/or any other health care provider or facility records pertaining to any medical
treatment rendered to an injured body part and other injuries complained of in Plaintiff(s)’ bill
of particulars, either prior to or subsequent to the subject accident.
6. Serve upon the attorney for the Defendant(s) duly executed and acknowledged
written HIPAA compliant authorizations permitting all parties to obtain and make copies of
Plaintiff(s)’ collateral source records and bills.
7. Serve upon attorney for Defendant(s), pursuant to C.P.L.R. Sections 3101 and 4545,
all documents records, bills, invoices, receipts or canceled checks concerning indemnification,
payment or reimbursement, in whole or in part, which Plaintiff(s) has/have received from
collateral sources, including but not limited to benefit programs for the cost of medical,
custodial and rehabilitation services, loss of earnings and other economic loss which the
Plaintiff(s) will claim as special damages in this action.
8. Serve upon the attorney for Defendant(s) duly executed and acknowledged written
HIPAA compliant authorizations permitting all parties to obtain and make copies of
Plaintiff(s)’ no fault file for the appropriate no fault carrier.
9. Serve upon the attorney for Defendant(s) duly executed and acknowledged written
HIPAA compliant authorizations permitting all parties to obtain and make copies of
Plaintiffs)’ workers compensation file by the appropriate workers compensation benefits
providers.
10. Serve upon the attorney for Defendant(s) duly executed and acknowledged written
authorizations permitting all parties to obtain copies of Plaintiff(s)’ IRS tax returns including
the W2 and/or 1099 forms for 2 years prior to accident to the present date.
11. Serve upon the attorney for Defendant(s) duly executed and acknowledged written
authorizations permitting all parties to obtain and make copies of Piaintiff(s)’
employment/personnel file for Plaintiff(s)’ place of employment, said records to include
attendance, list of duties, job performance reviews and time off for leave, vacations and/or
ilinesses.
12. Serve upon the attorney for Defendant(s) duly executed and acknowledged written
authorizations permitting all parties to obtain and make copies of the Plaintiff(s)’ student file
for Plaintiff(s)’ educational facility/institution, said records to include attendance, student
reviews, course assignments and grades.
13. No later than sixty (60) days prior to trial of this action, serve upon the attorneys
for Defendant(s) newly signed duly executed and acknowledged written HIPAA compliant
authorizations for all hospital and medical records and such other records including x-rays and
technicians’ reports as to be referred to and identified in the statement(s) of the Plaintiff(s)’
physicians.
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PLEASE TAKE FURTHER NOTICE, that if you fail to furnish responses to these
demands within the statutory period for doing so, a motion will be made for sanctions pursuant
to C.P.L.R. 3124 and C.P.L.R. 3126,
Dated: Long Island City, New York
Fuly 12, 2023
Yours, etc.
LAW OFFICES OF
NANCY L. ISSERLIS
Attomeys for Defendants
Office and P.O. Address
36-01 43" Avenue
Long Island City, New York 11101
718-361-1514
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B-102535
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
wee nnn nnn nanan ees -X
TYLER RICHARDSON, INDEX NO.: 516922/2023
Plaintiff, DEMAND PURSUANT
TO MEDICARE/
MEDICAID STATUTE
-against-
RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
Defendants.
meee mene en nnn n ene “Xx
PLEASE TAKE NOTICE, that defendants demand the following:
1 Pursuant to CPLR §3120(a).and the requirements of Section 111 of the
Medicare, Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. §§1395(y)(b)(7) and
(b)(8), provide:
a. The plaintiff's date of birth;
b. The plaintiff's Social Security No.;
c. The plaintiff's Medicare Health Insurance Claim Numbers (HICNs),
Medicaid file number, New York State Department of Social Services (DSS) file number,
and/or Secondary Payor (MSP) file number, if applicable
d. Ifthe plaintiff has applied for or been awarded Medicare and/or Medicaid
and/or DDS and/or MSP benefits, all information/documentation related to the application
and/or award of said benefits;
e. Ifthe plaintiff has applied for or been awarded Supplemental Security
Income (SSI) or Social Security Disability Insurance (SSDI), all information/documentation
related to the application and/or award of said benefits;
f. A statement as to whether plaintiff is eligible for Medicare or Medicaid;
g. Ifthe plaintiff has been denied Medicare, Medicaid, SSI and/or SSDI
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benefits, provide all information/ documentation concerning any such denial of Medicare,
Medicaid, SSI and/or SSDI benefits, provide all information/documentation of any such
appeal or intent to appeal of the denial of such benefits;
h. Ifthe plaintiff has appealed or intends to appeal the denial of Medicare,
Medicaid, SSI and/or SSDI benefits, provide all information/documentation of any such
appeal or intent to appeal of the denial of such benefits;
1 State whether Medicare, Medicaid and/or the Social Security
Administration has a lien on any potential award, judgment or settlement in this lawsuit and,
if so, state the amount of such liens and provide all information/documentation relative to
these liens.
2 Pursuant to CPLR §3101 (a), provide executed and acknowledged written
authorizations permitting defendants’ attorneys and defendants’ representatives to obtain and
make copies of all Medicare records, Parts A and B, specifying the correct address of said
Medicare office, along with the plaintiff's Social Security Number and file number.
3 Pursuant to CPLR §3101(a), provide duly executed and acknowledged
written authorizations permitting defendants’ attorneys and defendants’ representatives to
obtain and make copies of all Medicaid records, specifying the correct address of said Medicaid
office, along with plaintiff's Social Security Number and the file number.
4 If plaintiff received or applied for Social Security benefits, including but not
limited to SSI or SSDI benefits, provide a duly executed and acknowledge written
authorization setting forth the correct Social Security file number, allowing the defendants’
attorneys and defendants’ representatives to obtain and make copies of all files, records and
reports of the Social Security Administration regarding the plaintiff.
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PLEASE TAKE FURTHER NOTICE, that the provisions of CPLR §3122 govern
this demand and of the party to whom the notice is directed objects to the disclosure, inspection
or examinations or withholds any documents which appear to be within the category of the
documents required by the notice, compliance with CPLR §3122 is required.
PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to
comply with any of these demands, said defendant will apply to the Court for the appropriate
relief including, but not limited to, an Order compelling compliance pursuant to CPLR §3126
and 22 N.Y.C.R.R. Part 130.
PLEASE TAKE FURTHER NOTICE, that you are required to timely supplement
your responses to the foregoing demands with any additional or further information which
becomes known to you or your attorneys during this action.
PLEASE TAKE FURTHER NOTICE, that in the event you fail to comply with
the foregoing demands, appropriate motions will be made to compel disclosure or preclude
you from offering in evidence at trial any matter which is not disclosed by you in response to
this demand, in addition to other remedies available to this party.
Dated: Long Island City, New York
July 12, 2023
Yours, etc.
LAW OFFICES OF
NANCY L. ISSERLIS
Attorneys for Defendants
Office and P.O. Address
36-01 43" Avenue
Long Island City, New York 11101
718-361-1514
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B-102535
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ween een ne nee neem
TYLER RICHARDSON, INDEX NO.: 516922/2023
Plaintiff, NOTICE FOR
DISCOVERY AND
-against- INSPECTION
RAMIN DAUSHVILL and P&P AUTO GROUP LLC,
Defendants.
wn en ee et nnn nen enn en enn en enn
PLEASE TAKE NOTICE, that pursuant to Section 3120 of the Civil Practice Law and
Rules, the Defendants herein demand that all other parties produce and permit discovery of the
following articles, documents and things for inspection and copying:
1. All photographs under the control of all other parties or their attorney(s) or
representative(s) showing the automobiles involved in the accident, following the accident
herein alleged.
2. True copies of repair bills or estimates for any property damage claimed to have
been sustained as a result of the occurrence.
3. Copies of paid bills and/or vouchers for the purchase of parts and material for the
vehicle.
4. If Plaintiff's car is a livery vehicle for hire, copies of the trip sheets of the vehicle
for the day of the occurrence.
5. Copies of the registration and title of Plaintiff's vehicle
6. All photographs under the control of all other parties, or their attorney(s) or
representative(s) showing the condition of the place of the accident as it existed following the
accident alleged herein.
7. Copies of any statements either written or recorded, of the Defendant(s) taken by
or in the possession of any other party, or in the possession of the attorney(s),
representative(s) of any other party.
8. The name and address of each person claimed by any party you represent, to be a
witness to any of the following:
(a) The occurrence alleged in the complaint;
(b) Any acts, omissions or conditions which allegedly caused the occurrence alleged
in the complaint;
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(c) Any actual notice
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in Kings County
Case
H M an Infant by her Mother and Natural Guardian, LUCIA MUNOZ and LUCIA MUNOZ, Individually, v. Sco Family Of Services,, The City Of New York,, The New York City Administration For Children'S Services, New York City Board/Department Of Education,
Jul 18, 2024 |
Torts - Other Negligence (Business Premises) |
Torts - Other Negligence (Business Premises) |
519398/2024
Ruling
Tom Jong vs. John Muir Health
Jul 11, 2024 |
C22-00633
C22-00633
CASE NAME: TOM JONG VS. JOHN MUIR HEALTH
*HEARING ON MOTION IN RE: TO AMEND COMPLAINT
FILED BY: JONG, TOM
*TENTATIVE RULING:*
Plaintiffs move under Code of Civil Procedure § 425.13 for leave to amend their first amended
complaint to add prayers for punitive damages. The motion is denied.
This case arises from the tragic death of plaintiffs’ daughter during liver resection surgery. The case
started as a broadside attack alleging murder, manslaughter, wrongful death, medical malpractice,
fraud, and other such causes of action. After a number of demurrers and motions to strike, plaintiffs’
case now stands pared down to a single theory of liability – namely fraud, based on allegations that
defendants misrepresented the suitability of John Muir Hospital and the personnel involved for this
class of surgery, in general and more specifically in comparison to alternative facilities such as
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 12
JUDICIAL OFFICER: CHARLES S TREAT
HEARING DATE: 07/11/2024
Stanford.
Despite this severely constricted substantive scope of the lawsuit, plaintiffs’ several thousand pages
of supporting evidence are rife with the kinds of accusations and allegations one would expect if this
were still a broad-scope medical malpractice and wrongful death case.
Seeking to build on that, defendants renew their arguments that the fraud case is “really” just a
negligence/malpractice case in fraud dressing, and hence subject to dismissal on the basis of
limitations (as occurred with most of plaintiffs’ claims). That bridge has already been crossed,
however, when the Court overruled defendants’ demurrers to plaintiffs’ misrepresentation and fraud
claims, holding that the first amended complaint adequately alleged actionable fraud. If plaintiffs
should not now be trying to make more of this case than it is, neither should defendants be trying
now to make less of it than it is.
What there is of it, however, is unimpressive. Without going into fine detail, at base plaintiffs’ fraud
case comes down to a difference in judgment as to the suitability of John Muir and its involved
medical staff for this particular surgery on this particular patient, and the information that was or
wasn’t communicated to plaintiffs in that connection. Even if plaintiffs can end up showing significant
misrepresentations and their reliance on them, there is nothing in the case they are presenting that
could plausibly rise to the level of gross culpability that could suffice to support claims for punitive
damages here. (And plaintiffs also face the daunting, perhaps insuperable, challenge of proving that
the surgery would have had a successful outcome if performed at a different facility. Without proof of
that causation element, there won’t be any liability, and hence no consideration of punitive
damages.)
The Court finds it unnecessary to go through the numerous detailed objections to plaintiffs’ and
defendants’ very voluminous evidence. Even if all of plaintiffs’ proffered evidence is admitted and
considered, it cannot support the level of wrongdoing required for this proposed amendment.
Ruling
FRANKIE ANTHONY VILLAESCUSA VS CITY OF BELLFLOWER, A PUBLIC ENTITY, ET AL.
Jul 16, 2024 |
22STCV21184
Case Number:
22STCV21184
Hearing Date:
July 16, 2024
Dept:
C
Rankie Anthony Villaescusa vs City of Bellflower, et al.
Case No.: 22STCV21184
Hearing Date: July 16, 2024 @ 9:30 a.m.
#4
Tentative Ruling
Defendant County of Los Angeles Motion for Judgment on the Pleading is GRANTED with 30 days leave to amend.
Defendant to give notice.
Defendant County of Los Angeles moves for an order granting judgment on the pleadings as to the second cause of action for negligence and the third cause of action for negligent hiring, training, and supervision on the grounds that Plaintiff has failed to meet the heightened pleading standard in actions involving public entities under the Tort Claims Act.
Background
The operative Complaint by Plaintiff FRANKIE ANTHONY VILLAESCUSA (Plaintiff) was filed on June 29, 2022. Plaintiff alleges that [t]his Complaint concerns an officer and/or deputy-involved incident&. On or about May 25, 2021, Plaintiff& was approached, questioned, detained and escorted by Defendant JOHN DOE&. Defendant JOHN DOE negligently assessed the circumstances presented to him, and violently confronted and unjustifiably detained Plaintiff without probable cause or reasonable suspicion that Plaintiff had committed a crime or would commit a crime. Without warning, the Defendant JOHN DOE detained and escorted Plaintiff with such force that Plaintiff suffered severe injuries as a direct and proximate result of being detained and/or escorted. (Complaint, ¶ 11.)
Plaintiffs Complaint asserts the following causes of action: (1) Battery Civil Code §43; (2) Negligence Cal. Gov. Code §§850.2(a), 820(a); (3) Negligent Hiring, Training, and Supervision (Cal. Gov. Code §§815.2(a), 820(a); and (4) Intentional Infliction of Emotional Distress. On February 23, 2023, this Court SUSTAINED a demurrer as to the first and fourth causes of action with 30 days leave to amend. (See February 23, 2023 Minute Order.) Plaintiff did not amend the complaint within the time allowed and failed to provide an adequate explanation for the failure to do so; therefore, the first and fourth causes of action were dismissed on Defendants motion. (See November 9, 2023 Minute Order.)
Legal Standard
A defendant may bring a statutory motion for judgment on the pleadings where the court has no jurisdiction over the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against that defendant. (C.C.P. § 438(c)(1)(B).) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650.) Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (
Id
.)
In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (
Gami v. Mullikin Medical Ctr.
(1993) 18 Cal.App.4th 870, 876.)
Public entities cannot be liable for common law theories of general negligence. (
Miklosy v. Regents of University of California
(2008) 44 Cal.4th 876, 899 [section 815 abolishes common law tort liability for public entities].) Therefore, liability against a public entity must be authorized by statute. (
Eastburn v. Regional Fire Protection Authority
(2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [A public entity is not liable for an injury . . . except as otherwise provided by statute].) Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation]. However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (
Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 795.)
Government Code section 815.2, subdivision (a) provides that a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (Gov. Code, § 815.2, subd. (a).)
Meet and Confer
Plaintiff argues that the motion should be denied because Defendant failed to meet and confer before filing the motion as required by statute. (CCP § 439, subd. (a).)
The Court will exercise its discretion to adjudicate the motion on the merits.
Discussion
The second and third causes of action suffer from the same infirmities as the first and fourth causes of action which have been dismissed.
The conclusory allegations in the Complaint are insufficient to establish specific conduct by any County employees to meet the heightened pleading requirements that are required for claims against a public entity.
The Complaint fails to allege what Defendant John Doe did to cause Plaintiffs injuries.
The Complaint alleges Defendant JOHN DOE detained and escorted Plaintiff with such force that Plaintiff suffered severe injuries as a direct and proximate result of being detained and/or escorted. (Complaint, ¶ 11.) Police detain many people each day throughout Los Angeles County.
Plaintiff fails to allege why this particular detention should give rise to liability.
As pled, the allegations are insufficient to impose liability against the County pursuant to Gov. Code §815.2.
Accordingly, Defendants Motion for Judgment on the Pleadings as to the second and third causes of action is GRANTED with 30 days leave to amend.
Ruling
JENNIFER TU VS MICHELLE GAXIOLA, ET AL.
Jul 18, 2024 |
23NWCV02588
Case Number:
23NWCV02588
Hearing Date:
July 18, 2024
Dept:
C
TU v. GAXIOLA
CASE NO.:
23NWCV02588
HEARING:
07/18/24
#7
Plaintiff JENNIFER TUs unopposed Motion to Set Aside Dismissal under CCP §473(b) is
CONTINUED
to
Thursday, July 25, 2024 at 10:30 a.m. in Dept. SE-C
.
Moving Party to give notice.
No Opposition filed as of July 15, 2024.
This personal injury action was filed by Plaintiff on August 21, 2023. On May 30, 2024, Plaintiffs Complaint was dismissed without prejudice due to Plaintiffs Counsels second failure to appear without good cause for a Case Management Conference and OSC Re: Dismissal of the Entire Action for Plaintiffs Failure to Appear on 03/28/24. (See 05/30/24 M.O.)
Plaintiff moves to set aside the dismissal under CCP §473(b).
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted
&. (emphasis added.) (CCP §473(b).)
The Motion is DENIED without prejudice for failure to comply with the express terms of CCP §473(b).
There is no proposed pleading or proposed amended complaint attached to subject Motion.
The Motion is CONTINUED as indicated above due to Plaintiffs failure to attach a copy of a pleading proposed to be filed therein as required by CCP §473(b). The terms of the code are mandatory; compliance is not optional. Plaintiff is ORDERED to file and serve a Proposed First Amended Complaint by no later than July 19, 2024.
Ruling
STEPHANIE HUGHES VS CULVER SALAR FAMILY INVESTMENT, LLC
Jul 17, 2024 |
6/18/2022 |
23SMCV01089
Case Number:
23SMCV01089
Hearing Date:
July 17, 2024
Dept:
I The demurrer is OVERRULED.
While defendants statement of law is correct in that it is hard to see who the individual is that is alleged to be specifically responsible, there is enough here for pleading purposes.
The specifics can be fleshed out in discovery and for now there are allegations, albeit general, as to the defendants acting together.
In short, these issues are better raised by way of a summary judgment motion or at trial.
The court is also having trouble understanding how the demurrer is timely.
The court notes three discovery motions on file.
That does not bode well this early in the case.
The court has not worked up those motions, but for the parties aid, the court appends its guidelines on discovery responses, meet and confers, and IDCs.
The court encourages IDCs where both parties would like to resolve the matter informally and in good faith, and often the failure to participate in an IDC can have an impact on the recovery or propriety of any sanctions request.
DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I
The guidelines below are not rules and they are not universally applicable in all cases.
Rather, they are guidelines as to the courts general views.
Each case, of course, will be decided on its own facts and circumstances, and some of the guidelines below may not apply to particular circumstances.
That said, the court does take these views seriously.
Discovery Responses
The Court provides the following guidance concerning its general views on some common issues regarding responses to written objections.
The Court has noticed that many attorneys view objections and the manner of making them in a way different than does the Court.
To avoid these common pitfalls, the Court offers the following in addition to the provisions of the Litigation Guidelines appended to the Los Angeles County Superior Court Local Rules.
First
, General Objections are not permitted.
The Code of Civil Procedure does not provide for them, and therefore they are disregarded by the Court.
Any response that incorporates the General Objections is improper by definition.
Second
, the Court often views boilerplate objections as being in bad faith.
A bad faith response is no response at all in the Courts view.
Therefore, making boilerplate objections does not preserve those objections nor does it constitute a good faith response to written discovery.
A bad faith response is viewed by the Court for what it is: bad faith.
The objections will be stricken and deemed waived.
In the context of a Request for Admission, such objections may lead to a finding that the request is deemed admitted, although that will depend on the facts of the particular case and the specific discovery at hand.
Objections should be tailored to each specific request.
If a request truly is overbroad, then an objection to that effect is proper.
But such an objection is best accompanied by some reasonable limitation by the responding party that will narrow the request appropriately and (as narrowed) provide a substantive response rather than a mere statement that the request is overbroad.
The same is true as to an objection that a request is unduly burdensome.
The Court also notes that the party asserting that a request is unduly burdensome has the obligation at some point to provide an evidentiary basis for the objection, including evidence as to what the burden of compliance would be.
(
West Pico Furniture Co. v. Superior Court
(1961) 56 Cal.2d 407.)
Often such an objection will include a statement by the responding party as to a narrower request that would not be unduly burdensome and provide substantive responses as so limited.
Objections that a request is vague and ambiguous must set forth the vague and ambiguous term as well as the responding partys reasonable interpretation of that term as well as a statement that, so interpreted, the response will provide the discovery requested.
If there is no reasonable interpretation possible (which is a rare situation), then the responding party must so state.
Objections as to privilege must set forth the basis explaining why the information sought is in fact privileged.
Where a privilege is asserted in the context of a document request, a privilege log must accompany the answer or be provided within a short and reasonable time after the answer.
Where the objection is made in the context of an interrogatory, it must be clear from the objection the scope of the information being withheld.
If there is no log, there should be no privilege objection to a document request (meaning that a prophylactic privilege objection is the equivalent of no objection; it preserves nothing).
There are some rare exceptions, such as where the entire point of the discovery is to get allegedly privileged information or where compliance would require a log that is in essence an index of counsels file.
In that situation, the log is unnecessary, but the assertion should be made that the request is in that rare context.
Third
, if an objection is made to the discovery but a response is being given, it must be clear whether information or documents are in fact being withheld on the basis of the objections.
If the objections are clear and done in the manner set forth above, with statements in the objection as to a narrowing that will make the request proper, this is usually a simple task.
The objections themselves state the limit and the response will be full and complete as limited.
But where the objections are not so clear, the response must clearly state whether any information or document is being withheld on the basis of the objection and, if so, the extent of the withholding.
Accordingly, in those situations, phrases like Notwithstanding and subject to the foregoing objections, responding party states as follows are improper.
Those sorts of phrases make the verification useless, as the verifier can always fall back on the objections as the reason why a document was not produced or information was not disclosed.
On the other hand, where the line of demarcation is clear, the verification will still serve its purpose.
Fourth
, for document requests, the substantive response must conform to the Code.
There are relatively tight rules as to what the response must say, and the response must say it.
For example, where a responding party is not producing documents because they are not in the partys possession, custody, or control, the responding party must verify that a diligent search has been made and must further provide the information set forth in the Code of Civil Procedure in such cases.
In the case of interrogatories, the responses must also conform to the Code of Civil Procedure and must be made after diligent inquiry.
It is not proper to refuse to respond because the responding party has no personal knowledge.
If the knowledge is hearsay, it must still be disclosed, although it can be qualified to make it clear that it is not based on the verifiers personal knowledge.
Fifth
, the Court frowns on responses that do not conform to the foregoing rules being served with the view that the responses will moot themselves out in the meet and confer process.
That is not how the process works.
A good faith response is required before the meet and confer process begins.
The meet and confer process will (hopefully) bridge the gaps between the parties respective positions.
Further, where a response to a request for documents is made and documents are to be produced subject to certain objections (with the documents withheld properly delineated), the documents should be turned over irrespective of the meet and confer.
The documents are to be produced with alacrity to the extent that there is no objection to them.
What this means is that the response to a discovery request is not a trivial undertaking.
Nabbing the response from the form file is a generally bad idea and can lead to all objections being waived.
The point is that the boilerplate often renders the remainder of the response useless.
The only exception is where it is clear that the substantive response is not in any way limited by the objections.
In that case, the objections do no harm, although they also do no good.
Meet and Confer
The Code of Civil Procedure requires that before a motion to compel further responses or a motion for a protective order is filed, the parties engage in a good faith attempt to resolve their differences.
They are to meet and confer for that purpose.
Only if that effort fails can a motion be brought.
Sadly, many litigants view the meet and confer process as just another procedural hoop through which they must jump in order to bring the motion, similar to the need to include an actual demurrer with the demurrer papers.
The Code requires it, so they do it, but no ones heart is really in it.
That is not sufficient.
Given that, the Court believes it appropriate to set forth how the Court views the meet and confer requirement.
Failure to abide by the guidelines below may well justify denial of the motion or a continuance of it to allow the process to take place.
If one party but not the other refuses to participate as set forth, more likely than not the party refusing to participate will find itself on the losing end of the motion.
The following quotation fairly sums up the Courts own view.
[W]e feel compelled to observe that resort to the courts easily could have been avoided here had
both
parties actually taken to heart Justice Stone's admonitions in
Townsend
that the statute requires that there be a serious effort at negotiation and informal resolution. (
Townsend, supra,
61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]
rgument
is not the same as informal negotiation (
id
at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways (
id.
at p. 1435); and that a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel....
Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (
Id.
at p. 1439.) (
Clement v. Alegre
(2009) 177 Cal.App.4th 1277, 1294, emphasis in original, parallel citations omitted.)
In practical terms, it means as follows.
It is entirely appropriate to begin the process with a letter or other correspondence.
The letter should not include a demand in the form of an ultimatum, but it can certainly include the relief that is being sought with an invitation to meet and confer.
It is also entirely appropriate for the other party to respond with a letter or other correspondence to set forth its position on the issues.
Such an initial exchange can often be helpful to narrow the dispute.
Whether further exchanges make sense will depend on each case and each dispute.
However, at some point, before impasse is reached the process must include an actual meet.
The letters might well suffice to confer, but an exchange of correspondence is not a meeting.
In the COVID-19 era, the meeting can be virtual or telephonic, but a meeting there must be.
The meeting must be attended by a person from each side with the authority to agree to the other sides position without getting further permission from anyone, including the client.
If only the client can give the needed authority, then the client must be available instantaneously at all times during the meeting.
This does not mean that one side or the other must concede, but it does mean that the people meeting have the ability in real and practical terms to strike a deal then and there.
The parties should approach the meet and confer process as a problem-solving exercise.
The purpose of the meet and confer is not to convince the other side of the bankruptcy of its position; rather the purpose is to reach an agreement by which the party seeking discovery is able to obtain the information that it reasonably needs and the party providing discovery is not put to an undue burden or forced to provide unnecessary information that might infringe on a privacy interest or disclose a competitive trade secret or the like.
At the conclusion of the meet and confer, the parties should have an agreed statement as to the outcome.
If the outcome is a total impasse, then they should agree on that.
If they have resolved some or all of their differences, then they should statein writingwhat that agreement is so that there will be no confusion later.
Often, an agreement will be without prejudice to a further request by the propounding party for more information after that party receives the responses.
If a motion is still required, the declaration in support should describe with some detail the meet and confer process.
While the Court is not interested in the back and forth, the court is interested in when the meeting took place, who was there, and how long it lasted.
All communicationsin writing or oralmust be civil, polite, and professional.
Name-calling and accusations are devices that undermine the process; they do not further it.
A party engaging in such activity generally is not acting in a good faith effort to reach an agreement.
Informal Discovery Conferences
The court generally will encourage an Informal Discovery Conference (IDC) before any party files a motion to compel further responses.
The goal of the IDC is to get to yes.
To achieve that goal, the court adopts the following.
Five Court days before the IDC, the parties will submit a JOINT statement no more than eight pages total (on pleading paper) setting forth their respective positions.
Where a similar issue is raised that will resolve many requests, it can be dealt with as a single issue.
The IDC follows the good faith meet and confer.
It is not a substitute for the meet and confer.
The courts time is to be spent only on issues after the parties have tried to narrow the dispute as much as possible.
As stated above, the goal is to get to yes.
This means a few things.
One is that each party must be represented by a person who has the authority to agree to the other sides position without getting further permission.
It need not be lead counsel and that authority need not be exercised.
But the people at the conference must have that authority.
If only the client has that authority, then the client will be present physically with counsel in an adjacent room without distraction after initial introductions are made.
All IDCs are off the record.
That means that whatever anyone says at the IDC will not be binding or quoted back at the party unless an agreement is struck.
It is very bad form to quote the courts comments at an IDC during a later hearing unless the comments were part of a stipulated order.
All parties have the right to change position if no deal is reached.
The court, for example, might strongly indicate that it believes one side or the other has the better position but rule in a completely different way if there is a formal motion.
Partial agreements that are contingent upon a full resolution are not binding unless a full resolution is reached.
Partial resolutions that are not contingent on a full resolution are binding.
Parties who are suggesting a resolution should make it clear whether their proposal depends upon other resolutions.
Parties should be especially willing to give up sanctions at an IDC if it will resolve the dispute.
That is not a requirement, but the courts experience is such that if a party is really going to insist on a sanction, the likelihood of a resolution is very low.
It is likely that no party will get everything that it wants.
The goal is to abide the Code, but at the same time make sure that the party seeking discovery is not creating busy-work or demanding a lot of work for no benefit (or virtually no benefit).
The responding party might well have the right (should it come to motion practice) to avoid some aspect of the discovery, but in order to get to a resolution it might be in the responding partys interest to be willing to offer something.
Conversely, the propounding party might have the right (should it come to motion practice) to get some aspect of discovery, but in order to get to a resolution it might be in the propounding partys interest to forego aspects of the discovery that are not really needed, perhaps reserving the right to seek that information at a later time should it prove necessary.
The point is not to have the Court simply hammer away at the opponent.
That might happen at a motion, but it is not the goal of the IDC.
No orders will be made except on stipulation.
However, if there is an agreement, the court may well want to make an appropriate order or ask the parties to confirm it in writing.
Parties should take careful notes on any agreements.
Because there are no Court Reporters, it is hard to put an agreement on the record.
However, unless the agreement is confirmed quickly, people have a tendency to forget or to have buyers remorse.
Therefore, it is best to have one party send an immediate confirming email to the other and obtain an agreement.
The court would prefer not to get into the specific wording of the agreement during the IDC unless absolutely necessary.
The IDC process does not work if people view it as just a necessary step to filing a motion.
The court does not see it that wayif it did, then the court would abandon the IDC as a waste of time.
Rather, this is an off-ramp to avoid motion practice and the attendant costs and time.
Hopefully, it is also a way to get discovery more quickly than through formal motion practice.
At the IDC, no matter how hot tempers have run in the past, the court expects all counsel to be polite and civil in tone to one another.
The court will not tolerate rudeness or unnecessary accusations.
They do not move the ball forward and they make it nigh impossible to reach an agreement.
Ruling
ROCKWELL ENTERTAINMENT ENTERPRISES, INC. VS ANITA THOMPSON
Jul 15, 2024 |
6/18/2022 |
23SMCV05352
Case Number:
23SMCV05352
Hearing Date:
July 15, 2024
Dept:
I The court already ruled on many of the issues presented herein.
The court incorporates by reference and reaffirms its prior rulings and adopts them (as reflected in tentative decisions recited in the minutes of the prior hearing) to the extent not inconsistent with the following.
The matter is here today because there was one open issue.
The demurring defendant contends that even if the continuing violation doctrine applies to Kennedy William Gordy (Kennedy) such that there is no statute of limitations issue as to him (and that is not conceded more generally), the doctrine does not apply to Berry Gordy (Gordy).
Gordy is Kennedys father.
He is not accused of actual sexual assault on plaintiff Anita Thompson (Thompson or plaintiff).
Instead, he is sued because he allegedly aided and abetted Kennedy in Kennedys conduct, including by making threats against plaintiff to stop her from reporting the violence.
Among other things, Gordy is alleged to have moved Kennedy and Thompson to his guesthouse to isolate Thompson and facilitate the assaults; prevent Thompson from speaking to the police by, among other things, taking from her the officers card after the police were called to the scene; and pressuring her into not being candid with the police.
Gordy also allegedly threatened Thompson regarding custody and child support issues concerning Thompson and Kennedys child.
Eventually, though, Thompson left the property and left Kennedy.
And, tragically, her son died.
Some years later she re-entered Kennedys life at Kennedys request.
Once she did that, Kennedys sexual assault and other physical assaults allegedly resumed or continued.
And, eventually, she sued.
Many of the allegations occurred before 2016, which is when Thompson left the property and her son passed.
She returned to Kennedys life in 2020, and the most recent act of alleged abuse is well within the statutory time frame.
Gordy, however, asserts that the last act alleged against
him
occurred in 2016, which is long before the complaint was filed in November 2023 or the cross-complaint (which is the operative pleading for this motion) was filed in April 2024.
According to plaintiff, though, even if Gordys liability is in the nature of aiding and abetting, the statute of limitations for him as an aider and abettor is the same as the statute of limitations for Kennedy, and therefore the action is timely.
That is true, Thompson asserts, even if Gordy personally did nothing after 2016.
(She does not concede that he took no improper actions after that date, but she agrees that none is listed in the cross-complaint).
Gordy, for his part, states that although Thompson correctly cites the general rule, it does not apply to this case.
Rather, Gordy asserts, an aider and abetters liability ends when the last act of aiding and abetting took place.
At the last hearing, the court noted that in the context of a conspiracy, a co-conspirators liability extends throughout the conspiracy until and unless the conspirator leaves the conspiracy, at which point the conspirator is not liable for things that come later.
The court ultimately allowed the parties to submit supplemental briefs on this issue.
All parties agree that the statute of limitations here is found in CCP section 340.15and that it is three years.
There is no separate statute of limitations for aiding and abetting.
Thus, at least to start, Gordys liability seems to be tied with the statute for the underlying tort, and that is well settled as a general matter.
(
American Master Lease LLC v. Idanta Partners, Ltd.
(2014) 225 Cal.App.4th 1451.)
It boils down, then, to the date of accrual.
For Kennedy, it would be the last act of violence unless the break between 2016 and 2020 is too great to allow the continuing wrong doctrine to applya question not before the court at this time.
That is because the statute expressly states that the date of accrual is three years from the last act of domestic violence by the defendant against the plaintiff.
Gordy claims that as applied to him, though, this does not mean the last act of violence, but rather the last act of violence that he aided or abetted.
In support of his view, Gordy cites to non-binding authority, including an unpublished Ninth Circuit case and out of state cases.
While the Ninth Circuit case purports to apply California law, the court puts little weight on it.
The Ninth Circuit very intentionally decides what cases to publish and what cases not to publish.
Not only that, but unlike our California Court of Appeal, the Ninth Circuits memo dispo process results in much thinner decisions for unpublished cases.
While the court will not ignore the unpublished authority due to the 2001 rule change allowing such cases to be looked to for persuasive value, the court does not believe it is or was meant to be a definitive recitation of California law.
The other cases might or might not reflect the common law view, but none of them purport to reflect California law, which has a special statute of limitations that supersedes the common law.
Of course, we presume that the Legislature did not mean to supersede common law principles when it enacts statutes.
(
Atempa v. Pedrazzani
(2018) 27 Cal.App.5th 809.)
But ultimately, the statute will prevail.
Because no one has cited any precedential case on point, and the court has found none, the court must assume that this is a matter of first impression.
Given that, the court views the common lawwhich might support Gordyand the statute and general rulewhich support Thompson.
The court also looks to conspiracy, where the law is at least plain.
Turning to conspiracy, the doctrine would support Thompson.
The law there is that once one is in a conspiracy, that party must take some sort of affirmative act to withdraw.
Merely not doing anything more is not enough; there must be some affirmative and objective conduct.
Thus, for example, if a conspiracy exists to defraud people of property, all members of the conspiracy will be liable for the fraud even if a particular conspirator did not participate with regard to a particular victim or stopped being active entirely.
To end the liability, the co-conspirator must take an affirmative action, such as telling the remaining members that the conspirator will no longer be a part of the group.
There is no allegation in the complaint that Gordy ever took such an action.
But a conspiracy is not the same as aiding and abetting.
The scope of liability is broader, but each co-conspirator must be able to commit the tort.
A person with no fiduciary duty cannot conspire to breach a fiduciary duty, for example.
Nor is aiding and abetting the same for purposes of public policy as conspiracy.
Notwithstanding the courts prior musings, the court does not believe that to stop the liability for aiding and abetting an affirmative act is needed.
But that hardly answers the question.
The statute of limitations for this tort was deliberately enacted with the recognition that it is often difficult for victims of this kind of abuse to come forward and sue.
The common law was abrogated by the statute for public policy reasons.
Thus, the court tends to look at the question through the lens of recognizing that the Legislature intended to make it easier for the victim of such abuse to bring suits against those responsible and recognizing that victims of abuse are often psychologically unable to come forward.
Moreover, the Legislature expressly recognized that issues of child custody and support often played into the psyche of a victim of abuse, making it harder to bring a suit.
(California Bill Analysis, S.B. 924 Assem., 7/18/1995.)
Those are precisely the mix of things at issue in this case.
True, plaintiffs child died and after that issues of child custody and support were no longer in play, but it is fair to say, at least in the courts view, that the mind of a person who has been abused does not work like a computer and does not have an on/off switch.
The coercion allegedif it occurreddoes not go away immediately upon the childs death.
In a nutshell, the rule Gordy proposes does not further the Legislatures goal; in fact, it thwarts it, for it forces the victim of abuse to come forward against an aider and abettor even when the victim cannotas a practical mattercome forward at all.
The courts view is that it might well be that in some cases an aider and abettors conduct was so particular and fleeting such that the statute accrues on the last date of aiding and abetting.
But not in all cases, or even most.
To illustrate, one can imagine a case where there is a ring of car thieves.
One day, a witness sees the theft.
Upon approaching the thieves, they offer to cut the witness in for $200 if the witness deletes the cell phone footage of them stealing the car.
The witness agrees and not only that, tells the police that the thieves went north when they really fled south.
Plainly aiding and abetting.
If the thieves go on to steal more cars in the coming months, it is far from clear to the court that the aider and abettor is liable for those other thefts.
On the other hand, if the aider and abettor gives the cyberthieves the a list of passwords on day 1 in return for $1000 and thereafter does nothing else, and the thieves keep the list for 4 years, during which time they slowly drain various victims bank accounts, it is not at all clear to the court that the aider and abettor gets to walk due to the statute of limitations.
Of course these analogies, like all analogies, break down.
But they illustrate the point that the court does not believe that there is a one-size-fits-all answer to the question.
The court believes that the better rule is to
presume
that the statute for aiding and abetting is co-extensive with the statute for the main tortfeasor.
The court will not rule out the possibility that, under a particular set of facts, the aiding and abetting conduct may be so specific and relatively minor that the accrual will be earlier.
But as a general rule, it runs with the regular statute and limits to the aider and abbettors liability are better dealt with when the jury apportions damages.
This also furthers the public policy reflecting the difficulty of bringing a suit that motivated the Legislature to change the law.
If one can presume that the psychological trauma of the conduct is such that the victim ought not be forced to sue until three years after the last act of abuse, it is somewhat of an anomaly to expect the victim to sue the aider and abettor earlier than that.
After all, it is hard to imagine the victim suing the aider and abettor at a time when the victim is still psychologically unable to sue to major tortfeasor.
While it might be that this tilts the pitch in favor of the victim and against the accused aider and abettor, that is a policy question for the Legislature to decide, and it has.
At least absent some significant factual showing that the aider and abettors influence had completely dissipated and that it would not be odd to assume that the victim would sue the aider and abettor but not the main tortfeasor, the court believes that the statutes of limitations are co-extensive.
While the court will not definitively rule out the possibility that such a showing can be made herealthough it would be difficultit certainly cannot be made on demurrer, which is a pleading motion.
Because the court must read the complaint liberally and draw all reasonable inferences in the cross-complainants favor, the court believes that the pleadings pass muster.
Of course, that is not to say that when evidence is considered, the gap in time will not be too large to bridge; indeed, the court knows that Kennedy will (at some point) so argue.
But for now, the demurrer is OVERRULED.
Because the demurrer is overruled on regular statute of limitations grounds, the court need not, and does not, address equitable estoppel.
Gordy has 30 days to answer.
Ruling
Darleen Patrick vs Frank James Palmer
Jul 16, 2024 |
STK-CV-UPI-2021-0000198
Parties to appear in person or remotely. Department 10C is open for in person appearances. Should counsel/parties prefer to appear remotely, follow the instructions below. There is a dedicated conference bridge lines for Dept 10C. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept 10C: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6937 and Pin # 6822.
Ruling
CURTIS POLLARD VS BARLOW RESPIRATORY HOSPITAL, A CALIFORNIA NON-PROFIT CORPORATION
Jul 18, 2024 |
22SMCV01360
Case Number:
22SMCV01360
Hearing Date:
July 18, 2024
Dept:
M
CASE NAME:
Pollard v. Barlow Respiratory Hospital
CASE NO.:
22SMCV01360
MOTION:
Motion for Summary Judgment/Adjudication
HEARING DATE:
07/18/2024
Legal Standard
A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (
Aguilar v. Atlantic Richfield Co
.
(2001) 25 Cal.4th 826, 843.)
A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (
Gonzales v. Superior Court
¿(1987) 189 Cal.App.3d 1542, 1544.)¿ [A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that
does not completely dispose
of a cause of action, affirmative defense, or issue of duty pursuant to subdivision (t). (CCP,¿§ 437c(t).)¿
To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (
Murillo v. Rite Stuff Food Inc
.
(1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, [a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment& (
Gold v. Weissman
(2004) 114 Cal.App.4th 1195, 1198-99.) In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true. (
Jackson v. County of Los Angeles
(1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion may not be denied on grounds of credibility, except when¿a material fact is the witnesss¿state of mind and that fact is sought to be established solely by the [witnesss] affirmation thereof. (CCP, § 437c(e).)¿
Once the moving party has met their burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP § 437c(p)(1).)
[T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.¿(
Consumer Cause, Inc. v.¿SmileCare
¿(2001) 91 Cal.App.4th 454, 468.)¿
¿
The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding. (
Hutton v. Fidelity National Title Co.
¿
(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿
as alleged in the complaint
; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (
Ibid
.)¿
Analysis
Defendant Barlow Respiratory Hospital moves for summary judgment, or in the alternative, summary adjudication of each cause of action. Defendant fails to meet its burden of production on any noticed issue.
As an initial matter, Defendant failed to file the principal evidence in the motion: the Medical Records (Exhibits A, B and C). The Medical Records were instead lodged with Department M via a flash-drive. The records on file, however, omit the Medical Records entirely. Defendant cannot meet their burden without presenting these exhibits
filed
with the Court and not simply lodged. Defendant contends that these records demonstrate that no abuse/neglect occurred, no breach of the standard of care occurred, and that no act or omission caused any injury to Plaintiff. Critically, Defendant proffers the declaration of expert nurse Lisa Gildred, BSN, RN-BC, CWCA, in support of such conclusions. (Exhibit D.) Gildred extensively (and almost exclusively) relies on the Medical Records to come to her conclusions on neglect, the standard of care and causation. Without the Medical Records being properly filed, the Court cannot consider the material evidence, and cannot conclude that Defendant has
submitted evidence showing that there is no triable issue of fact as to the noticed issues.
Second, Defendants memorandum and separate statement make impermissibly vague citations to the
entirety
of Plaintiffs medical records from a given facility, without directing the Court to the relevant pages of the exhibits. California Rules of Court, rule 3.1350(d)(3) requires that Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. The instant separate statement violates this rule with every citation to Exhibits A-C. For example, in support of UMF 1, Defendant cites the entirety of Exhibit A Medical records from Barlow Respiratory Hospital and Exhibit B Medical records from Providence St. Joseph Medical Center without even noting a page number. The same can be said of every other citation to Exhibits A-C. Exhibit A is a collection of over 27,000 pages. Exhibits B and C are likewise thousands of pages. Defendant cannot reasonably expect the Court or Plaintiff to sort through the voluminous exhibits to
guess
which documents support the motion.
Accordingly, the motion is DENIED.
Ruling
HERNANDEZ, KEIRA vs VALLEY HOME JOINT SCHOOL DISTRICT
Jul 18, 2024 |
CV-24-001951
CV-24-001951 – HERNANDEZ, KEIRA vs VALLEY HOME JOINT SCHOOL DISTRICT – Defendants Valley Home Joint School District and Sara Vivian Decavit’s Demurrer to Complaint - OVERRULED. Requests for judicial notice are DENIED as the Court can consider the complaint and law without such notice.
Defendant district’s primary argument is that there is a failure to meet statutory requirements. But as Defendant quotes Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809 for: “Every fact essential to the existence of statutory liability must be pleaded.”
Defendant cites to State of California v. Superior Court (1984) 150 Cal.App.3d 848 for the proposition that the statute which establishes a duty must be identified in the pleading. The Court read the entire opinion and searched for “statute” and “identified,” and was unable to find this proposition in this case. In any event, Plaintiff asserts a bus ran into a bridge and that various Government Codes permit pursuit of these claims against a government agency.
The facts of the bus crash are sufficient to avoid uncertainty. Defendant district has sufficient notice of the alleged facts.
Document
Janelle Mathias as the Administratrix of the Estate of Kevon Brian Mustafa, Deceased, and Janelle Matthias, Individually v. Errol Byer Jr M.D., Frederick Staton M.D., Alessia Perry M.D., Brooklyn Hospital Center, Brooklyn Plaza Medical Center, P.C.
Aug 15, 2016 |
Genine Edwards
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
514176/2016
Preview
(FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 B-102535 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS patente naan ane ee nn nnn en ene nana ne nnnenmeneneneneen TYLER RICHARDSON, INDEX NO.: 516922/2023 Plaintiff, CERTIFICATION PURSUANT TO PART 130 -against- RAMIN DAUSHVILL and P&P AUTO GROUP LLC, Defendants. - aes X The accompanying papers are served/filed/submitted pursuant to 22NYCRR Section 130-1.1-a: Verified Answer to Complaint Affirmative Defenses Demand for Verified Bill of Particulars Demand for Medical Reports, Records, Bills and Authorizations Demand Pursuant to Medicare/Medicaid Statute Notice for Discovery and Inspection Notice for Discovery and Inspection 3101(d) Demand for Expert Witness Information Demand for Collateral Sources Demand for Production of Insurance Agreement Notice Pursuant to CPLR 2103(E) Notice to Take Deposition upon Oral Examination Notice for Physical Examination Demand for Statement of Damages Demand for Production of Cellular/Portable Telephone Records Statutory Insurance Disclosure Dated: Long Island City, New York July 12, 2023 Yours, etc. BY: <2 Francis M. BHriclia, Es iq. LAW OFFICES OF NANCY L. ISSERLIS Attorneys for Defendants Office and P.O. Address 36-01 43° Avenue Long Island City, New York 11101 718-361-1514 1 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 B-102535 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS war nenen anne. ~X TYLER RICHARDSON, INDEX NO.: 516922/2023 Plaintiff, VERIFIED ANSWER TO COMPLAINT, -against- DEMAND FOR VERIFIED BILL OF PARTICULARS AND VARIOUS DEMANDS RAMIN DAUSHVILL and P&P AUTO GROUP LLC, Defendants. ween ne neem nent enn nnn nnn nme een en ennnnmenenenenenmenen XK The defendants RAMIN DAUSHVILL and P&P AUTO GROUP LLC by their attorneys, LAW OFFICES OF NANCY L. ISSERLIS, answering the complaint herein, allege upon information and belief as follows: 1 Denies any knowledge or information sufficient to form a belief as to the allegations contained in the paragraph marked 1, 18, 19, 20, 21 and 22 of the complaint herein. 2. Denies each and every allegation set forth in paragraphs marked 3, 11, 23, 24, 25, 27, 28, 29, 30 and 31 of the complaint herein. 3 Denies any knowledge or information sufficient to form a belief as to the allegations contained in the paragraphs marked 12, 13, 14, 15, 16, 17, 26 of the complaint herein and leaves all questions of law and fact to the court. AS FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE UPON INFORMATION AND BELIEF: If the Plaintiff sustained any injuries and/or damages at the time and place alleged in the complaint, the Plaintiff assumed the risk inherent in the activity in which Plaintiff was then engaged and further such injuries and/or damages were caused by reason of the culpable conduct and/or negligence of the Plaintiff without any negligence on the part of the Defendants contributing thereto, AS FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE UPON INFORMATION AND BELIEF: That the said action is barred and precluded by virtue of Article 51, Sections 5101, 5102, 5103 and 5104 of the New York State Insurance Law. 2 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 AS FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE UPON INFORMATION AND BELIEF: Upon information and belief, any past or future costs or expenses incurred or to be incurred by the Plaintiff for medical care, dental 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 the collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. If any damages are recoverable against the said answering Defendants, the amount of such damages shall be diminished by the amount of the funds which Plaintiff has or shall receive from such collateral source. AS FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE UPON INFORMATION AND BELIEF: Plaintiff failed to take all reasonable measures to reduce, mitigate and/or minimize the damages alleged. AS FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGE UPON INFORMATION AND BELIEF: Defendants cannot be held liable as Defendants were faced with a sudden emergency situation, not of their own doing and/or creation, and therefore, not chargeable with negligence and accordingly, the summons and complaint should be dismissed. AS FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: That Plaintiff is guilty of negligence as a matter of law in that he violated the Vehicle and Traffic Law in riding a bicycle without the proper seating capacity. AS FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: The Plaintiff is guilty of negligence as a matter of law in that he has violated the Vehicle and Traffic Law in riding on a bicycle without wearing a protective helmet. AS FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: The Plaintiff assumed the risk inherent in riding on a bicycle. 3 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF @1/02/2023 AS FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANTS RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: The Plaintiff failed to use a protective helmet and, as a result his injuries were aggravated thereby. WHEREFORE, the Defendant RAMIN DAUSHVILL and P&P AUTO GROUP LLC, demands judgment against the plaintiff herein, dismissing the Amended Complaint together with the costs and disbursements of this action. Dated: Long Island City, New York July 12, 2023 Yours, etc. LAW OFFICES OF NANCY L. ISSERLIS Attormeys for Defendants Office and P.O. Address 36-01 43° Avenue Long Island City, New York 11101 718-361-1514 TO Law Offices of Darren T. Moore Attorneys for Plaintiff 171 Madison Avenue, Suite 305 New York, NY 10016 917-809-7014 4 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 ATTORNEY’S VERIFICATION The undersigned, an attorney admitted to practice in the Courts of New York State, hereby affirms as true under all the penalties of perjury that affirmant is associated with the firm of LAW OFFICES OF NANCY L. ISSERLIS, the attorneys of record for the Defendants in the within action; that affirmant has read the foregoing ANSWER TO THE COMPLAINT and knows the contents thereof; that the same is true to affirmant’s own knowledge, except as to the matter therein stated to be alleged upon information and belief, and that as to those matters affirmant believes them to be true. Affirmant further states that the reason this verification is made by affirmant and not by Defendants, is because Defendants reside outside the County of affirmant’s office. The grounds of affirmant’s belief as to all matters not stated upon affirmant’s knowledge are as follows: Investigations and information received by affirmant in the course of representing Defendants. Dated: Long Island City, New York July 12, 2023 Francis Cerniglia, Esq. 5 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 B-102535 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ten nan en en nen nner encenenecnennene TYLER RICHARDSON, INDEX NO.: 516922/2023 Plaintiff, DEMAND FOR VERIFIED BILL OF PARTICULARS -against- RAMIN DAUSHVILL and P&P AUTO GROUP LLC, Defendants. sean nae en er enmennemen een PLEASE TAKE NOTICE that the Defendants hereby demand that Plaintiff serve upon the undersigned within thirty (30) days from the date of service of this demand, a verified bill of particulars, pursuant to Sections 3042, 3043, 3044 of the Civil Practice Law and Rules, the following matters: 1. State the date and time of day of the occurrence. 2. State the exact location of the occurrence. 3. If the occurrence took place on premises, set forth location therein giving floor number and location thereon, so as to be readily identified: if upon a sidewalk or exterior of premises, the distance from the curb and building line and other fixed object. 4. If an automobile accident, state the street or streets including reference to intersections, crosswalks, comers, or curbs, where necessary to accurately locate the place; and the direction and speed in which each vehicle involved was traveling, immediately before and at the time thereof. 5. State the parts of each vehicle which allegedly came into contact and collision. 6. An itemized statement stating separately the cost and materials and labor to repair or replace and a description of Plaintiff(s)’ automobile stating the make, model, year of manufacture and license number. Please attach copies of any repair bills. 7. If loss of use of a vehicle is claimed, state: a) length of time of such loss of use; b) whether a replacement vehicle was hired, and if so; c) dates of such hiring; d) amounts paid therefore and e) amounts reimbursed from replacement vehicle by any entity. 8. State all the acts and/or omissions constituting the negligence claimed. 9. State any and all laws, rules, regulations and ordinances that are claimed to be either applicable to the occurrence or to have been violated by the Defendant(s). 10. State the nature, extent, location and duration of each and every alleged injury claimed. 11. Specify those injuries claimed to be permanent. 6 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 12. Accurately state the length of time confined to bed and the dates thereof. 13, Accurately state the length of time confined to the house and the dates thereof. 14. Accurately state the length of time Plaintiff(s) was/were incapacitated from household duties or school and the dates thereof. 15. State name of each and every hospital, clinic and/or other health care facility where any medical treatment, consultation and/or examination was rendered and the length of time, if any confined there and the dates thereof. If not confined to any hospital, etc. so state. 16. State the name and address of each and every physician, chiropractor and/or other health care provider who treated the Plaintiff(s) and the dates thereof. 17. State the name and address of the supplier of any medical supplies and/or medicines, including a description of each item. 18. If loss of services is claimed, set forth the particulars of such claim in detail, including the length of time and the dates thereof. 19, State the age of each Plaintiff and date of birth. 20. State the following: a) Plaintiff(s)’ social security number; b) name and address of Plaintiff(s)’ employer at the time of the alleged occurrence and at the present time; ¢) Plaintiff(s)’ occupation; d) average daily or monthly earnings; ¢) length of time Plaintiff(s) was/were incapacitated from employment, and the specific dates thereof, identifying any part-time employment; f) if self-employed, state the nature of the self-employment and business address and g) state the total amount claimed as loss of earnings, both past and future, including a detailed statement as to how such lost earnings were computed. 21. Ifthe Plaintiff(s) was/were a student, give the name and address of the school attended at the time of the subject accident, and accurately state the length of time incapacitated from attending said school. 22. State the total amount claimed as special damages for: a) physician, chiropractor, physical therapist and/or any other health care providers’ services; b) x-rays, MRIs or other radiological expenses; c) medical supplies; d) medicines; e) hospital expenses; f) nurses’ services and home health care attendants’ services and g) amount and nature of any other special damages claimed. 23. In reference to the total amounts of special damages set forth in item 21 (a) through (g): a) state whether any of said amounts were reimbursed by “no fault” to date and/or from any other collateral source such as employers’ insurance, social security, workers compensation or employee benefit programs; b) if the answer to 23 (a) is in the affirmative, specifically set forth separately as to each item, the amount of the reimbursement received and the name and address of the insurance company, organization, entity and/or program from whom such reimbursement was received. Also state the identifying policy and/or file numbers of each insurance company, organization, entity and/or program and its effective dates. 7 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 c) state separately whether or not Plaintiff(s) has/have made claim for reimbursement of lost earnings and/or economic loss to any collateral source which has not as yet been paid; d) if the answer is in the affirmative, state the name and address of the insurance company, organization and/or entity to whom such claim was presented, the date of the presentation, the amount claimed and the identifying number of the policy or program; e) state whether or not Plaintiff(s) reasonably anticipates making a claim in the future for reimbursement of future economic loss; f) if the answer is in the affirmative, state the name and address of the insurance company, organization and/or entity to whom such claim will be presented, the identifying number of the policy or program and the extent of total coverage or benefits available to the Plaintiff(s). 24. State the residence address of the Plaintiffis). 25. State in what respect has/have Plaintiff(s) sustained a serious injury as defined in the Insurance Law or economic loss greater than basic economic loss as defined in the Insurance Law. 26. State the name and address of any insurance carrier providing first party benefits to the Plaintiff(s) and the policy number of said policy under which said coverage is being provided. 27, State the date of each accident that Plaintiff(s) allegedly sustained during the past ten (10) years, together with a statement explaining the nature of the accident, the alleged injuries, whether Plaintifi(s) received compensation or medical payments from Workers’ Compensation, No Fault, an employer, an insurer or any other party with respect to same, whether Plaintiff(s) initiated litigation with respect to said accident(s) and if so, the name and address of the attorneys for the Plaintiff(s) who represented them in said lawsuits. PLEASE TAKE FURTHER NOTICE that if you fail to furnish the requested bill of particulars within the statutory period of THIRTY (30) DAYS, a motion will be made for an order dismissing the Complaint, or, in the alternative, precluding the Plaintiff from giving an evidence of items for which particulars, though demanded, have not been furnished. Dated: Long Island City, New York July 12, 2023 Yours, etc. LAW OFFICES OF NANCY L. ISSERLIS Attorneys for Defendants Office and P.O. Address 36-01 43 Avenue Long Island City, New York 11101 718-361-1514 8 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 B-102535 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS meee nnn n cam neeneeenenens. mee eaten nnnn nanan nnn nanan nen X TYLER RICHARDSO) INDEX NO.: 516922/2023 Plaintiff, DEMAND FOR COPIES OF PLAINTIFF'S -against- MEDICAL REPORTS, RECORDS, BILLS AND AUTHORIZATIONS RAMIN DAUSHVILL and P&P AUTO GROUP LLC, Defendants. nen eeee meen enn nn nnn e nn nnn een enn nnn neem PLEASE TAKE NOTICE, that pursuant to the Uniform Rules for Trial Courts, demand is made upon the Plaintiff(s) or their attorney(s) to: 1. Serve upon the attorney(s) for the Defendant(s) copies of all the medical reports of those physicians or other health care providers of every description who have consulted, treated or examined the Plaintiff(s) for each of the conditions allegedly caused by, or exacerbated by, the occurrence described in the complaint. These 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 x-rays and technician’s reports which will be offered at the trial. 2. Serve upon the attorney for the Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain and make copies of all hospital, clinic or other health care facilities in which the Plaintiff(s) is/are or was/were treated or confined due to the occurrence set forth in the complaint so as to permit the securing of the entire hospital record or records, including x-rays and technician’s reports as to be referred to and identified in the statement of the Plaintiff(s)’ physicians. 3. Serve upon the attorney for the Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain and make copies of the complete office medical records relating to Plaintiffs), of each and every physician and/or other health care provider of every description who have consulted, treated or examined the Plaintiff(s) for each of the conditions allegedly caused by, or exacerbated by, the occurrence described in the complaint. 4. Serve upon the attorney for the Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain complete pharmacy or drug store records of the Plaintiff(s) with respect to any drugs prescribed for Plaintiff(s) from one (1) year prior to the occurrence described in the complaint to the present date. 9 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 5. Serve upon the attorney for the Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain complete medical, hospital and/or any other health care provider or facility records pertaining to any medical treatment rendered to an injured body part and other injuries complained of in Plaintiff(s)’ bill of particulars, either prior to or subsequent to the subject accident. 6. Serve upon the attorney for the Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain and make copies of Plaintiff(s)’ collateral source records and bills. 7. Serve upon attorney for Defendant(s), pursuant to C.P.L.R. Sections 3101 and 4545, all documents records, bills, invoices, receipts or canceled checks concerning indemnification, payment or reimbursement, in whole or in part, which Plaintiff(s) has/have received from collateral sources, including but not limited to benefit programs for the cost of medical, custodial and rehabilitation services, loss of earnings and other economic loss which the Plaintiff(s) will claim as special damages in this action. 8. Serve upon the attorney for Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain and make copies of Plaintiff(s)’ no fault file for the appropriate no fault carrier. 9. Serve upon the attorney for Defendant(s) duly executed and acknowledged written HIPAA compliant authorizations permitting all parties to obtain and make copies of Plaintiffs)’ workers compensation file by the appropriate workers compensation benefits providers. 10. Serve upon the attorney for Defendant(s) duly executed and acknowledged written authorizations permitting all parties to obtain copies of Plaintiff(s)’ IRS tax returns including the W2 and/or 1099 forms for 2 years prior to accident to the present date. 11. Serve upon the attorney for Defendant(s) duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of Piaintiff(s)’ employment/personnel file for Plaintiff(s)’ place of employment, said records to include attendance, list of duties, job performance reviews and time off for leave, vacations and/or ilinesses. 12. Serve upon the attorney for Defendant(s) duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of the Plaintiff(s)’ student file for Plaintiff(s)’ educational facility/institution, said records to include attendance, student reviews, course assignments and grades. 13. No later than sixty (60) days prior to trial of this action, serve upon the attorneys for Defendant(s) newly signed duly executed and acknowledged written HIPAA compliant authorizations for all hospital and medical records and such other records including x-rays and technicians’ reports as to be referred to and identified in the statement(s) of the Plaintiff(s)’ physicians. 10 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 PLEASE TAKE FURTHER NOTICE, that if you fail to furnish responses to these demands within the statutory period for doing so, a motion will be made for sanctions pursuant to C.P.L.R. 3124 and C.P.L.R. 3126, Dated: Long Island City, New York Fuly 12, 2023 Yours, etc. LAW OFFICES OF NANCY L. ISSERLIS Attomeys for Defendants Office and P.O. Address 36-01 43" Avenue Long Island City, New York 11101 718-361-1514 11 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 B-102535 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS wee nnn nnn nanan ees -X TYLER RICHARDSON, INDEX NO.: 516922/2023 Plaintiff, DEMAND PURSUANT TO MEDICARE/ MEDICAID STATUTE -against- RAMIN DAUSHVILL and P&P AUTO GROUP LLC, Defendants. meee mene en nnn n ene “Xx PLEASE TAKE NOTICE, that defendants demand the following: 1 Pursuant to CPLR §3120(a).and the requirements of Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. §§1395(y)(b)(7) and (b)(8), provide: a. The plaintiff's date of birth; b. The plaintiff's Social Security No.; c. The plaintiff's Medicare Health Insurance Claim Numbers (HICNs), Medicaid file number, New York State Department of Social Services (DSS) file number, and/or Secondary Payor (MSP) file number, if applicable d. Ifthe plaintiff has applied for or been awarded Medicare and/or Medicaid and/or DDS and/or MSP benefits, all information/documentation related to the application and/or award of said benefits; e. Ifthe plaintiff has applied for or been awarded Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI), all information/documentation related to the application and/or award of said benefits; f. A statement as to whether plaintiff is eligible for Medicare or Medicaid; g. Ifthe plaintiff has been denied Medicare, Medicaid, SSI and/or SSDI 12 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 benefits, provide all information/ documentation concerning any such denial of Medicare, Medicaid, SSI and/or SSDI benefits, provide all information/documentation of any such appeal or intent to appeal of the denial of such benefits; h. Ifthe plaintiff has appealed or intends to appeal the denial of Medicare, Medicaid, SSI and/or SSDI benefits, provide all information/documentation of any such appeal or intent to appeal of the denial of such benefits; 1 State whether Medicare, Medicaid and/or the Social Security Administration has a lien on any potential award, judgment or settlement in this lawsuit and, if so, state the amount of such liens and provide all information/documentation relative to these liens. 2 Pursuant to CPLR §3101 (a), provide executed and acknowledged written authorizations permitting defendants’ attorneys and defendants’ representatives to obtain and make copies of all Medicare records, Parts A and B, specifying the correct address of said Medicare office, along with the plaintiff's Social Security Number and file number. 3 Pursuant to CPLR §3101(a), provide duly executed and acknowledged written authorizations permitting defendants’ attorneys and defendants’ representatives to obtain and make copies of all Medicaid records, specifying the correct address of said Medicaid office, along with plaintiff's Social Security Number and the file number. 4 If plaintiff received or applied for Social Security benefits, including but not limited to SSI or SSDI benefits, provide a duly executed and acknowledge written authorization setting forth the correct Social Security file number, allowing the defendants’ attorneys and defendants’ representatives to obtain and make copies of all files, records and reports of the Social Security Administration regarding the plaintiff. 13 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 PLEASE TAKE FURTHER NOTICE, that the provisions of CPLR §3122 govern this demand and of the party to whom the notice is directed objects to the disclosure, inspection or examinations or withholds any documents which appear to be within the category of the documents required by the notice, compliance with CPLR §3122 is required. PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to comply with any of these demands, said defendant will apply to the Court for the appropriate relief including, but not limited to, an Order compelling compliance pursuant to CPLR §3126 and 22 N.Y.C.R.R. Part 130. PLEASE TAKE FURTHER NOTICE, that you are required to timely supplement your responses to the foregoing demands with any additional or further information which becomes known to you or your attorneys during this action. PLEASE TAKE FURTHER NOTICE, that in the event you fail to comply with the foregoing demands, appropriate motions will be made to compel disclosure or preclude you from offering in evidence at trial any matter which is not disclosed by you in response to this demand, in addition to other remedies available to this party. Dated: Long Island City, New York July 12, 2023 Yours, etc. LAW OFFICES OF NANCY L. ISSERLIS Attorneys for Defendants Office and P.O. Address 36-01 43" Avenue Long Island City, New York 11101 718-361-1514 14 of 82 INDEX NO. 516922/2023 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 B-102535 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ween een ne nee neem TYLER RICHARDSON, INDEX NO.: 516922/2023 Plaintiff, NOTICE FOR DISCOVERY AND -against- INSPECTION RAMIN DAUSHVILL and P&P AUTO GROUP LLC, Defendants. wn en ee et nnn nen enn en enn en enn PLEASE TAKE NOTICE, that pursuant to Section 3120 of the Civil Practice Law and Rules, the Defendants herein demand that all other parties produce and permit discovery of the following articles, documents and things for inspection and copying: 1. All photographs under the control of all other parties or their attorney(s) or representative(s) showing the automobiles involved in the accident, following the accident herein alleged. 2. True copies of repair bills or estimates for any property damage claimed to have been sustained as a result of the occurrence. 3. Copies of paid bills and/or vouchers for the purchase of parts and material for the vehicle. 4. If Plaintiff's car is a livery vehicle for hire, copies of the trip sheets of the vehicle for the day of the occurrence. 5. Copies of the registration and title of Plaintiff's vehicle 6. All photographs under the control of all other parties, or their attorney(s) or representative(s) showing the condition of the place of the accident as it existed following the accident alleged herein. 7. Copies of any statements either written or recorded, of the Defendant(s) taken by or in the possession of any other party, or in the possession of the attorney(s), representative(s) of any other party. 8. The name and address of each person claimed by any party you represent, to be a witness to any of the following: (a) The occurrence alleged in the complaint; (b) Any acts, omissions or conditions which allegedly caused the occurrence alleged in the complaint; 15 of 82 (FILED: KINGS COUNTY CLERK 1170972023 I1:55 AM INDEX NO. 516922/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: @1/09/2023 (c) Any actual notice