Preview
FILED: SUFFOLK COUNTY CLERK 10/08/2023 03:32 PM INDEX NO. 620036/2023
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/08/2023
SUPREME COURT OF THE STATE OF NEW YORK Index#: 620036/2023
COUNTY OF NASSAU
X DEMAND FOR
JOSEPH A. ORTIZ, VERIFIED BILL OF
PARTICULARS
Plaintiff,
RE: AFFIRMATIVE
-against- DEFENSES
JAMIE E. MULLIGAN,
Defendants.
X
PLEASE TAKE NOTICE, that in accordance with Section 3041, Rule 3042 of the CPLR,
Defendant(s) JAMIE E. MULLIGAN is hereby required to serve upon the undersigned a Verified
Bill of Particulars pursuant to the following demand within twenty (20) days.
1. With respect to the FIRST Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer dated 8/31/2023 state how it is claimed that the injuries and/or damages
sustained by Plaintiff(s) herein were caused in whole or in part by the “culpable conduct” or
carelessness of the Plaintiff(s). Identify any document, record, photograph or other recording, tangible
object or non-memorialized admission of the Plaintiff(s) claimed to be evidence of such, “culpable
conduct” or carelessness as alleged.
i. Set forth all the acts and/or omissions constituting the negligence or
carelessness of the Plaintiff(s) as alleged.
ii. State whether actual or constructive notice of any relevant condition or activity
is claimed to have been imparted upon the Plaintiff(s), and, if so, set forth the nature
and extent of such condition or activity.
iii. If actual notice is claimed, set forth the following:
(1) The date/dates of each said notice;
(2) The names of the agents and/or servants of the Plaintiff(s) to whom said
actual notice was allegedly given such dates;
(3) by whom said actual notice was allegedly given on each of such dates;
(4) The substance of each said notice;
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(5) Whether such notice was oral or in writing.
iv. If constructive notice any relevant condition or activity is claimed, the length
of time said condition or activity is alleged existed prior to the happening of the
occurrence. If the length of time is not known, so state.
2. With respect to the THIRD Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned state the manner in which it is claimed, if any such claim in
defense shall be asserted, that the Plaintiff(s) failed to effect a cure of, failed to prevent and/or reduce,
mitigate, or minimize injuries and/or damages associated with the occurrence relevant herein. Identify
any document, record, photograph or other recording, tangible object or non-memorialized admission
of the Plaintiff(s) which is claimed to be evidence of Plaintiff(s’) failure to effect a cure of, or failure
to prevent and/or reduce, mitigate, or minimize injuries and/or damages.
3. With respect to the THIRD Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned, identify all of the Plaintiff(s) injuries claimed, if any such
claim in defense shall be asserted, to have been enhanced, exacerbated, or which would otherwise have
been prevented, mitigated, abated, or diminished, but for any alleged culpable failure of the Plaintiff(s)
to reduce, mitigate or minimize, prevent and/or reduce, injuries and/or damages. Identify any
document, record, photograph or other recording, tangible object or non-memorialized admission of
the Plaintiff(s) which is claimed to be evidence of Plaintiff(s’) failure to prevent and/or reduce, or
mitigate or minimize injuries and/or damages.
4. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned, state how it is claimed and state the basis for your
contention(s) and claim(s) that Defendant was confronted with an “emergency”, or “emergency
situation” relevant to a liability determination arising out of the happening of the occurrence herein,
or, being in any way relevant to the happening of the occurrence herein. Identify any document, record,
photograph or other recording, tangible object or non-memorialized admission of the Plaintiff
evidencing, reflecting or referring to, or which is claimed to be evidence substantiating a contention
that the Defendant was confronted with an “emergency” or “emergency situation”; Identify and provide
all dates and times of conduct, events (and described with particularity), admissions, or relevant
occurrences, regarding each, every and any contention in defense that Defendant was confronted with
an “emergency” or “emergency situation”.
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5. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned, identify any document, record, photograph or other recording,
tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to,
or which is claimed to be evidence of, the presence of a ‘sudden condition’ relevant to the applicability
of the Emergency Doctrine herein; Identify and provide all dates and times of conduct, events (and
described with particularity), admissions, or relevant occurrences, regarding each, every and any
contention in defense of the presence of each and every ‘sudden condition’ relevant to the applicability
of the Emergency Doctrine herein.
6. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned, identify any document, record, photograph or other recording,
tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to,
or which is claimed to be evidence of a condition ‘not reasonably anticipated’ relevant to the
applicability of the Emergency Doctrine herein; Identify and provide all dates and times of conduct,
events (and described with particularity), admissions, or relevant occurrences, regarding each, every
and any contention in defense that as to each and every condition ‘not reasonably anticipated’ relevant
to the applicability of the Emergency Doctrine herein.
7. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned, identify any document, record, photograph or other recording,
tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to,
or which is claimed to be evidence of a condition “not created by Defendant’s own [negligence]”
relevant to the applicability of the Emergency Doctrine herein; Identify and provide all dates and times
of conduct, events (and described with particularity), admissions, or relevant occurrences, regarding
each, every and any contention in defense as teach and every condition “not created by Defendant’s
own [negligence]” relevant to the applicability of the Emergency Doctrine herein.
8. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN, Answer aforementioned, state the manner in which it is claimed and state the basis for
your contention(s) and claim(s) that Defendant was confronted with any ‘spontaneous,’ or
‘unavoidable occurrence’ relevant to a liability determination arising out of the happening of the
occurrence herein, or, being in any way relevant to the happening of the occurrence herein. Identify
any document, record, photograph or other recording, tangible object or non-memorialized admission
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of the Plaintiff evidencing, reflecting or referring to, or which is claimed to be evidence substantiating
a contention that the Defendant was confronted with ‘spontaneous,’ or ‘unavoidable occurrence;’
Identify and provide all dates and times of conduct, events (and described with particularity),
admissions, or relevant occurrences, regarding each, every and any contention in defense that the
Defendant was confronted with a ‘spontaneous,’ or ‘unavoidable occurrence.’
9. With respect to the SIXTH Affirmative Defense of Defendant(s’) JAMIE E.
MULLIGAN Answer aforementioned, identify any document, record, photograph or other recording,
tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of
non-utilization of seat belt or other safety devices and set forth the basis of any claim of any causal
relationship between scope or degree of injury and the claimed failure to “utiliz[e] available seat belts”
or to utilize any such other safety device(s).
10. With respect to the SIXTH Affirmative Defense of Defendant(s) JAMIE E.
MULLIGAN, Answer aforementioned, identify all of the Plaintiff(s)’ injuries claimed to have been
enhanced, exacerbated, or which would otherwise have been prevented, mitigated, abated, or
diminished, but for the alleged culpable failure of the Plaintiff(s) to “utilize available seat belts” or to
utilize any other safety device(s). Identify any document, record, photograph or other recording,
tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of
Plaintiff(s)' failure to “utiliz[e] available seat belts” and/or any such other safety device(s).
11. Relative to any Affirmative Defense asserted herein, if any violation of any statute, law,
ordinance, rule, regulation or code is claimed to have been committed by the Plaintiff(s), identify same
by article section and paragraph numbers.
12. If it is claimed that construction, fabrication or mechanical defect or insufficiency
relative to any chattel associated with the occurrence but not under the control of Defendant(s) is
causally related to the occurrence, state the manner in which it is so claimed and describe any and all
such defect(s) and/or insufficienc(ies) with particularity. Identify any document, record, photograph
or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed
to be evidence of any such claimed construction, fabrication or mechanical defect or insufficiency.
Identify any document, record, photograph or other recording, tangible object or non-memorialized
admission of the Plaintiff(s) which is claimed to be evidence of a causal relationship between any
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claimed construction, fabrication or mechanical defect or insufficiency and the happening of the
occurrence or the causation of any injury or damage.
PLEASE TAKE FURTHER NOTICE, that in the event of your failure to furnish such a Bill of
Particulars within the said period of twenty (20) days, a motion will be made for an Order precluding
you from giving any evidence at the trial of the above items, of which particulars have not been
delivered in accordance with this demand.
Dated: Bethpage, New York
October 8, 2023
TO:
MUSCARELLA & DIRAIMO, LLP
229 Main Street, Suite 200
Huntington, NY 11743
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Preview
FILED: SUFFOLK COUNTY CLERK 10/08/2023 03:32 PM INDEX NO. 620036/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/08/2023 SUPREME COURT OF THE STATE OF NEW YORK Index#: 620036/2023 COUNTY OF NASSAU X DEMAND FOR JOSEPH A. ORTIZ, VERIFIED BILL OF PARTICULARS Plaintiff, RE: AFFIRMATIVE -against- DEFENSES JAMIE E. MULLIGAN, Defendants. X PLEASE TAKE NOTICE, that in accordance with Section 3041, Rule 3042 of the CPLR, Defendant(s) JAMIE E. MULLIGAN is hereby required to serve upon the undersigned a Verified Bill of Particulars pursuant to the following demand within twenty (20) days. 1. With respect to the FIRST Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer dated 8/31/2023 state how it is claimed that the injuries and/or damages sustained by Plaintiff(s) herein were caused in whole or in part by the “culpable conduct” or carelessness of the Plaintiff(s). Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) claimed to be evidence of such, “culpable conduct” or carelessness as alleged. i. Set forth all the acts and/or omissions constituting the negligence or carelessness of the Plaintiff(s) as alleged. ii. State whether actual or constructive notice of any relevant condition or activity is claimed to have been imparted upon the Plaintiff(s), and, if so, set forth the nature and extent of such condition or activity. iii. If actual notice is claimed, set forth the following: (1) The date/dates of each said notice; (2) The names of the agents and/or servants of the Plaintiff(s) to whom said actual notice was allegedly given such dates; (3) by whom said actual notice was allegedly given on each of such dates; (4) The substance of each said notice; 1 of 5 FILED: SUFFOLK COUNTY CLERK 10/08/2023 03:32 PM INDEX NO. 620036/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/08/2023 (5) Whether such notice was oral or in writing. iv. If constructive notice any relevant condition or activity is claimed, the length of time said condition or activity is alleged existed prior to the happening of the occurrence. If the length of time is not known, so state. 2. With respect to the THIRD Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned state the manner in which it is claimed, if any such claim in defense shall be asserted, that the Plaintiff(s) failed to effect a cure of, failed to prevent and/or reduce, mitigate, or minimize injuries and/or damages associated with the occurrence relevant herein. Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of Plaintiff(s’) failure to effect a cure of, or failure to prevent and/or reduce, mitigate, or minimize injuries and/or damages. 3. With respect to the THIRD Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned, identify all of the Plaintiff(s) injuries claimed, if any such claim in defense shall be asserted, to have been enhanced, exacerbated, or which would otherwise have been prevented, mitigated, abated, or diminished, but for any alleged culpable failure of the Plaintiff(s) to reduce, mitigate or minimize, prevent and/or reduce, injuries and/or damages. Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of Plaintiff(s’) failure to prevent and/or reduce, or mitigate or minimize injuries and/or damages. 4. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned, state how it is claimed and state the basis for your contention(s) and claim(s) that Defendant was confronted with an “emergency”, or “emergency situation” relevant to a liability determination arising out of the happening of the occurrence herein, or, being in any way relevant to the happening of the occurrence herein. Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to, or which is claimed to be evidence substantiating a contention that the Defendant was confronted with an “emergency” or “emergency situation”; Identify and provide all dates and times of conduct, events (and described with particularity), admissions, or relevant occurrences, regarding each, every and any contention in defense that Defendant was confronted with an “emergency” or “emergency situation”. 2 of 5 FILED: SUFFOLK COUNTY CLERK 10/08/2023 03:32 PM INDEX NO. 620036/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/08/2023 5. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned, identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to, or which is claimed to be evidence of, the presence of a ‘sudden condition’ relevant to the applicability of the Emergency Doctrine herein; Identify and provide all dates and times of conduct, events (and described with particularity), admissions, or relevant occurrences, regarding each, every and any contention in defense of the presence of each and every ‘sudden condition’ relevant to the applicability of the Emergency Doctrine herein. 6. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned, identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to, or which is claimed to be evidence of a condition ‘not reasonably anticipated’ relevant to the applicability of the Emergency Doctrine herein; Identify and provide all dates and times of conduct, events (and described with particularity), admissions, or relevant occurrences, regarding each, every and any contention in defense that as to each and every condition ‘not reasonably anticipated’ relevant to the applicability of the Emergency Doctrine herein. 7. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned, identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff evidencing, reflecting or referring to, or which is claimed to be evidence of a condition “not created by Defendant’s own [negligence]” relevant to the applicability of the Emergency Doctrine herein; Identify and provide all dates and times of conduct, events (and described with particularity), admissions, or relevant occurrences, regarding each, every and any contention in defense as teach and every condition “not created by Defendant’s own [negligence]” relevant to the applicability of the Emergency Doctrine herein. 8. With respect to the FIFTH Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN, Answer aforementioned, state the manner in which it is claimed and state the basis for your contention(s) and claim(s) that Defendant was confronted with any ‘spontaneous,’ or ‘unavoidable occurrence’ relevant to a liability determination arising out of the happening of the occurrence herein, or, being in any way relevant to the happening of the occurrence herein. Identify any document, record, photograph or other recording, tangible object or non-memorialized admission 3 of 5 FILED: SUFFOLK COUNTY CLERK 10/08/2023 03:32 PM INDEX NO. 620036/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/08/2023 of the Plaintiff evidencing, reflecting or referring to, or which is claimed to be evidence substantiating a contention that the Defendant was confronted with ‘spontaneous,’ or ‘unavoidable occurrence;’ Identify and provide all dates and times of conduct, events (and described with particularity), admissions, or relevant occurrences, regarding each, every and any contention in defense that the Defendant was confronted with a ‘spontaneous,’ or ‘unavoidable occurrence.’ 9. With respect to the SIXTH Affirmative Defense of Defendant(s’) JAMIE E. MULLIGAN Answer aforementioned, identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of non-utilization of seat belt or other safety devices and set forth the basis of any claim of any causal relationship between scope or degree of injury and the claimed failure to “utiliz[e] available seat belts” or to utilize any such other safety device(s). 10. With respect to the SIXTH Affirmative Defense of Defendant(s) JAMIE E. MULLIGAN, Answer aforementioned, identify all of the Plaintiff(s)’ injuries claimed to have been enhanced, exacerbated, or which would otherwise have been prevented, mitigated, abated, or diminished, but for the alleged culpable failure of the Plaintiff(s) to “utilize available seat belts” or to utilize any other safety device(s). Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of Plaintiff(s)' failure to “utiliz[e] available seat belts” and/or any such other safety device(s). 11. Relative to any Affirmative Defense asserted herein, if any violation of any statute, law, ordinance, rule, regulation or code is claimed to have been committed by the Plaintiff(s), identify same by article section and paragraph numbers. 12. If it is claimed that construction, fabrication or mechanical defect or insufficiency relative to any chattel associated with the occurrence but not under the control of Defendant(s) is causally related to the occurrence, state the manner in which it is so claimed and describe any and all such defect(s) and/or insufficienc(ies) with particularity. Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of any such claimed construction, fabrication or mechanical defect or insufficiency. Identify any document, record, photograph or other recording, tangible object or non-memorialized admission of the Plaintiff(s) which is claimed to be evidence of a causal relationship between any 4 of 5 FILED: SUFFOLK COUNTY CLERK 10/08/2023 03:32 PM INDEX NO. 620036/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/08/2023 claimed construction, fabrication or mechanical defect or insufficiency and the happening of the occurrence or the causation of any injury or damage. PLEASE TAKE FURTHER NOTICE, that in the event of your failure to furnish such a Bill of Particulars within the said period of twenty (20) days, a motion will be made for an Order precluding you from giving any evidence at the trial of the above items, of which particulars have not been delivered in accordance with this demand. Dated: Bethpage, New York October 8, 2023 TO: MUSCARELLA & DIRAIMO, LLP 229 Main Street, Suite 200 Huntington, NY 11743 5 of 5