Preview
FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
X
ROBIN ELLIS Index No.: 607676/2023
Plaintiff,
VERIFIED BILL
OF PARTICULARS
-against-
THE VILLAGE OF ROCKVILLE CENTRE
and MICHAEL E. OSWALD.
Defendants.
X
The defendants. THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E.
OSWALD, by their attorneys HAMMILL, CROUTIER, PENDER, KOEHLER, LAWLESS &
MOULTON, P.C., as and for their response to the plaintiffs Demand dated September 1
2023, states as follows upon information and belief:
1. The defendants are not presently in a position to state in detail the manner in
which the plaintiff is barred by the Insurance Law of the State of New York from pursuing
this action at law. The defendant will put the plaintiff to the proof that he comes within the
provisions of Insurance Law§5102 (a) and (d) as alleged in paragraph "25" of the
complaint. The burden of pleading and proving that the plaintiff comes within the
provisions of Insurance Law §5102 rests with the plaintiff.
2. It is alleged that the vehicle operated by the plaintiff was equipped with
seatbelts. The type, materia! and style are best known to the plaintiff who was operating
the vehicle containing such seatbelts. It is alleged that the plaintiff was either not wearing
or was improperly wearing a seatbelt and/or restraining device at the time of the
occurrence. Had the available seatbelt and/or restraining device been utilized in a proper,
prudent, and reasonable manner, the alleged injuries of the plaintiff would have been
substantially reduced or not have occurred. Any/all of the injuries and damages which the
plaintiff alleges to have sustained as a result of the happening of the occurrence herein
1 of 5
FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023
were either caused and/or exacerbated by his failure to wear and/or his improper wearing
of available restraining devices. In the alternative, if it is determined that the
seatbelt/restraining device in the plaintiffs vehicle was not in good working order at or
about the time of the alleged accident then the plaintiffs failure to properly equip his
vehicle with such seatbelt/restraining device constitutes culpable conduct and assumption
of risk.
3. It will be claimed that the plaintiffs culpable conduct, carelessness
recklessness, and negligence caused, contributed to and/or exacerbated all of the injuries
and/or damages claimed by the plaintiff.
4. To the extent that this action seeks to recover for the costs of medical care
dental care, custodial care, or rehabilitation services, loss of earning or other basic
economic loss, evidence shall be admissible for consideration by the Court to establish
that any such past or future costs or expense was or will, with reasonable certainly, be
replaced or indemnified, in whole or in part, from any collateral source as specified in
CPLR §4545. At the present time, it is the defendants’ contention that the plaintiff did
recover such collateral source payments from the Nationwide General Insurance
Company pursuant to Insurance Law Article 51. At the present time it is not known if the
plaintiff recovered collateral source benefits from any other source.
5. It will be claimed that any injuries claimed to have been sustained by the
plaintiff were caused, aggravated, or contributed to by the plaintiffs failure to take
reasonable efforts to mitigate damages and any award made to the plaintiff must be
reduced in such proportion and to the extent that the injuries complained of were
caused, aggravated, or contributed to by the plaintiff’s failure to mitigate damages.
Dated: Syosset, New York
December 18, 2023
2 of 5
FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023
Yours, etc.
HAMMILL, CROUTIER, PENDER,
KOEHLER. LAWLESS & MOULTON. P.C.
WiUUun CHCutiefc, Jk.
WILLIAM J. CROUTIER. JR., ESQ.
Attorneys for Defendant
VILLAGE OF ROCKVILLE CENTRE
6851 Jericho Turnpike, Suite 250
Syosset, New York 11791
(516) 746-0707
Our File; 45-0184N
TO: LAWOFFICE OF COHEN & JAFFE, LLP
Attorneys for Plaintiff, Suite W295
2001 Marcus Avenue
Lake Success, NY 11042
(516) 358-6900
3 of 5
FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023
ATTORNEY'S VERIFICATION BY AFFIRMATION
I, the undersigned, am an attorney duly admitted to practice in the Courts of New
York State and say that: I am the attorney of record for defendants, THE VILLAGE OF
ROCKVILLE CENTRE and MICHAEL E. OSWALD, I have read the annexed Bill of
Particulars, know the contents thereof and the same are true to my knowledge, except
those matters therein which are stated to be alleged upon information and belief, and as
to those matters, I believe them to be true. My belief, as to those matters therein not
stated upon knowledge, is based upon the following; The files maintained by the offices
of HAMMILL, CROUTIER, PENDER, KOEHLER, LAWLESS & MOULTON, P.C.
I affirm that the foregoing statements are true under penalties of perjury.
Dated; Syosset, New York
December 18, 2023
Wiitiam Ji. Qmutim. Jx.
WILLIAM J. CROUTIER, JR.
4 of 5
FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the day of December, 2023 a copy of the
foregoing BILL OF PARTICULARS was filed electronically this day and is available for
viewing from the NYS CEF system. Notice of this filing will be sent to all counsel of
record via the Court’s CEF system.
Witiiam .J. &coutiefc,
WILLIAM J. CROUTIER, JR.. ESQ.
5 of 5
Preview
FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X ROBIN ELLIS Index No.: 607676/2023 Plaintiff, VERIFIED BILL OF PARTICULARS -against- THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD. Defendants. X The defendants. THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD, by their attorneys HAMMILL, CROUTIER, PENDER, KOEHLER, LAWLESS & MOULTON, P.C., as and for their response to the plaintiffs Demand dated September 1 2023, states as follows upon information and belief: 1. The defendants are not presently in a position to state in detail the manner in which the plaintiff is barred by the Insurance Law of the State of New York from pursuing this action at law. The defendant will put the plaintiff to the proof that he comes within the provisions of Insurance Law§5102 (a) and (d) as alleged in paragraph "25" of the complaint. The burden of pleading and proving that the plaintiff comes within the provisions of Insurance Law §5102 rests with the plaintiff. 2. It is alleged that the vehicle operated by the plaintiff was equipped with seatbelts. The type, materia! and style are best known to the plaintiff who was operating the vehicle containing such seatbelts. It is alleged that the plaintiff was either not wearing or was improperly wearing a seatbelt and/or restraining device at the time of the occurrence. Had the available seatbelt and/or restraining device been utilized in a proper, prudent, and reasonable manner, the alleged injuries of the plaintiff would have been substantially reduced or not have occurred. Any/all of the injuries and damages which the plaintiff alleges to have sustained as a result of the happening of the occurrence herein 1 of 5 FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023 were either caused and/or exacerbated by his failure to wear and/or his improper wearing of available restraining devices. In the alternative, if it is determined that the seatbelt/restraining device in the plaintiffs vehicle was not in good working order at or about the time of the alleged accident then the plaintiffs failure to properly equip his vehicle with such seatbelt/restraining device constitutes culpable conduct and assumption of risk. 3. It will be claimed that the plaintiffs culpable conduct, carelessness recklessness, and negligence caused, contributed to and/or exacerbated all of the injuries and/or damages claimed by the plaintiff. 4. To the extent that this action seeks to recover for the costs of medical care dental care, custodial care, or rehabilitation services, loss of earning or other basic economic loss, evidence shall be admissible for consideration by the Court to establish that any such past or future costs or expense was or will, with reasonable certainly, be replaced or indemnified, in whole or in part, from any collateral source as specified in CPLR §4545. At the present time, it is the defendants’ contention that the plaintiff did recover such collateral source payments from the Nationwide General Insurance Company pursuant to Insurance Law Article 51. At the present time it is not known if the plaintiff recovered collateral source benefits from any other source. 5. It will be claimed that any injuries claimed to have been sustained by the plaintiff were caused, aggravated, or contributed to by the plaintiffs failure to take reasonable efforts to mitigate damages and any award made to the plaintiff must be reduced in such proportion and to the extent that the injuries complained of were caused, aggravated, or contributed to by the plaintiff’s failure to mitigate damages. Dated: Syosset, New York December 18, 2023 2 of 5 FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023 Yours, etc. HAMMILL, CROUTIER, PENDER, KOEHLER. LAWLESS & MOULTON. P.C. WiUUun CHCutiefc, Jk. WILLIAM J. CROUTIER. JR., ESQ. Attorneys for Defendant VILLAGE OF ROCKVILLE CENTRE 6851 Jericho Turnpike, Suite 250 Syosset, New York 11791 (516) 746-0707 Our File; 45-0184N TO: LAWOFFICE OF COHEN & JAFFE, LLP Attorneys for Plaintiff, Suite W295 2001 Marcus Avenue Lake Success, NY 11042 (516) 358-6900 3 of 5 FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023 ATTORNEY'S VERIFICATION BY AFFIRMATION I, the undersigned, am an attorney duly admitted to practice in the Courts of New York State and say that: I am the attorney of record for defendants, THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD, I have read the annexed Bill of Particulars, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters, I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following; The files maintained by the offices of HAMMILL, CROUTIER, PENDER, KOEHLER, LAWLESS & MOULTON, P.C. I affirm that the foregoing statements are true under penalties of perjury. Dated; Syosset, New York December 18, 2023 Wiitiam Ji. Qmutim. Jx. WILLIAM J. CROUTIER, JR. 4 of 5 FILED: NASSAU COUNTY CLERK 12/18/2023 10:14 AM INDEX NO. 607676/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 12/18/2023 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the day of December, 2023 a copy of the foregoing BILL OF PARTICULARS was filed electronically this day and is available for viewing from the NYS CEF system. Notice of this filing will be sent to all counsel of record via the Court’s CEF system. Witiiam .J. &coutiefc, WILLIAM J. CROUTIER, JR.. ESQ. 5 of 5