Preview
FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024
LAW OFFICES OF
KEVIN P. WESTERMAN
EMPLOYEES OF NATIONWIDE® MUTUAL INSURANCE COMPANY
NOT A LEGAL PARTNERSHIP OR PROFESSIONAL CORPORATION
KEVIN P. WESTERMAN 990 STEWART AVENUE, SUITE 400 NIKOLAOS DIAMANTIS
MANAGING TRIAL ATTORNEY GARDEN CITY, NY 11530 STEPHEN J DONNELLY
CHRISTOPHER M. HART TELEPHONE: 516-493-4500 BRIAN GORDON
MANAGING TRIAL ATTORNEY FACSIMILE: 866-909-6658 ARLENE E. LEWIS
MICHAEL C. O’MALLEY SCOTT MATHIAS
MANAGING TRIAL ATTORNEY ARTHUR R. MCQUILLAN
GEORGIA S. ALIKAKOS AUSTIN P. MURPHY
ANNA-LISA BONVENTRE GREGORY PERROTTA
MICHAEL CALLARI III DANIELLE R. SCHILLING
MICHAEL J. COLLEARY ANDREA E. WAISMAN
March 26, 2024
Adilya Gambone, Esq.
Gambone Law Group, PLLC
8652 Woodhaven Blvd.
Queens, New York 11421
Re: Alexis D. Correa Paulino v. David & Yonathan LLC and Jamaica Hoapital
Claims No.: 455874-GP
Date of Accident: 0-4/14/2023
Our File No.: 24-002128
Dear Counselors:
Enclosed herewith, and being served upon you, is our client's answer to your verified
complaint in the above-entitled action. Also enclosed are our demand for a verified bill of
particulars and other discovery demands.
We respectfully request that you serve upon this office, within thirty (30) days from the date
of this letter, the material demanded. In this way, we hope to avoid costly delays, thereby best
serving the needs of our respective clients. Permit me to thank you in advance for your
cooperation, time, and consideration regarding this request.
Very truly yours,
Michael J. Colleary, Esq.
m.colleary@nationwide.com
Direct Dial: 516-493-4509
MJC/sd
Enclosures
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ALEXIS D CORREA PAULINO,
Plaintiff,
VERIFIED ANSWER
-against-
DAVID & YONATHAN LLC and JAMAICA OPTICAL,
Defendants.
-------------------------------------------------------------------------X
The defendant, DAVID & YONATHAN LLC, by its attorney, LAW OFFICES OF KEVIN
P. WESTERMAN, answering the complaint of the plaintiff herein:
FIRST: Denies any knowledge or information sufficient to form a belief as to the
truth of the allegations contained in the paragraphs of the complaint designated 1, 2, 13, 14, 15, 16
and 17.
SECOND: Denies each and every allegation contained in paragraphs 4, 5, 6 and 7 of the
complaint and refers all questions of law to this Honorable Court.
THIRD: Denies each and every allegation in the paragraphs of the complaint
designated 12, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
FOURTH: If any injuries and damages were sustained by the plaintiff at the time and
place and in the manner alleged in the Complaint, such injuries and damages are attributable in
whole or in part to the culpable conduct and/or contributory and/or comparative negligence of the
plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
FIFTH: The Court should not proceed in the absence or a person who should be a
party, or in the absence of an indispensable party, and the action should be dismissed for failure to
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join such party; or
SIXTH: The Court should not proceed in the absence of a person who should be a
party, or a municipality that should be a party, and the action should be dismissed for failure to
join such party.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
SEVENTH: The injuries and damages allegedly suffered by the plaintiff, if any (which
injuries and damages are specifically denied by the answering defendant), were the result of
culpable conduct or fault of third persons for whose conduct the answering defendant is not legally
responsible, and the damages recovered by the plaintiff if any should be diminished or reduced in
the proportion to which said culpable conduct bears upon the culpable conduct which caused the
damages. Any liability on the part of the answering defendant (which liability is denied) is fifty
percent or less of the liability of all persons which are the cause of the alleged injuries, if any, and
the liability of the answering defendant for non-economic loss does not exceed the answering
defendant's equitable share determined in accordance with the relative culpability of each person
causing or contributing to the total liability for non-economic loss pursuant to CPLR Sections 1601
through 1603.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
EIGHTH: Defendant claims all of the benefits set forth in §4545 of the CPLR, for
replacement, or indemnification of costs, medical care, rehabilitation services or loss of income
from any collateral sources. Any recovery on the complaint of the plaintiff shall be reduced by
the amount paid or reimbursed by collateral sources in accordance with CPLR §4545(c).
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
NINTH: Plaintiff failed to exercise ordinary and reasonable care to effect a cure and
to prevent aggravation of the alleged injury and damages, and so failed to use available means to
mitigate her alleged damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
TENTH: Plaintiff’s complaint fails to state a cause of action upon which relief may
be granted as against this answering defendant.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
ELEVENTH: Upon information and belief, all of the hazards and risks incident to
the circumstances set forth in the pleading were open, obvious and apparent and were assumed by
the plaintiff.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
TWELFTH: Pursuant to CPLR Article 16, the liability of this defendant to the plaintiff
for non-economic loss shall not exceed the share of this defendant determined in accordance with
the relative culpability of each person or party causing or contributing to the total liability for non-
economic loss.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
THIRTEENTH: The damages sustained by the plaintiff, if any, were caused in whole
or in part by the culpable conduct of third parties not under the control of this answering defendant.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE:
FOURTEENTH: If any damages are recovered against this answering defendant, the
amount of such damages shall be diminished in the proportion which the culpable conduct and/or
negligence attributable to the plaintiff bears to the culpable conduct causing the damages.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:
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FIFTEENH: The provisions of CPLR Article 50(b) apply to any verdict which may be
obtained by the plaintiff in this action.
AS AND FOR A TWELTH AFFIRMATIVE DEFENSE:
SIXTEENTH: The liability of the defendants, if any, does not exceed fifty percent
(50%) of the liability assigned to all persons, if any.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE:
SEVENTEENTH: The summons filed and/or served by the plaintiff does not comply
with § 305(a) of the CPLR, and accordingly, this action is a nullity, and must be dismissed.
AS AND FOR A FIRST CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA
OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE
ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
EIGHTEENTH: Upon information and belief, that if and in the event Plaintiff
sustained any injuries or damages as alleged in Plaintiff's Verified Complaint, through negligence,
carelessness or recklessness other than Plaintiff's own, and in the event damages are assessed to
the Answering defendant, said damages were caused solely by the primary, active and affirmative
negligence, recklessness, culpable conduct, breach of contract and/or breach of warranties of
Defendant, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL,
being vicarious, secondary, passive and/or derivative only.
NINTEENTH: By reason of the foregoing, DAVID & YONATHAN LLC, is
entitled to full and complete indemnity from, and to judgment over and against Defendants,
JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, for full
indemnification.
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AS AND FOR A SECOND CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA
OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE
ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
TWENTIETH: Upon information and belief, that if and in the event Plaintiffs
sustained any injuries or damages as alleged in Plaintiffs' Verified Complaint, through
negligence, carelessness or recklessness other than Plaintiffs' own, and if complete indemnity
is not granted as demanded under DAVID & YONATHAN LLC, as set forth above, DAVID &
YONATHAN LLC, is nevertheless entitled to contribution from Defendants, JAMAICA OPTICAL
AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, over and above its equitable share of
any judgment, verdict and/or recovery obtained by Plaintiffs, as determined in accordance with
the relative culpability of each party liable for contribution.
AS AND FOR A THIRD CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA
OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE
ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
TWENTY-FIRST: Pursuant to the contracts between Defendants, JAMAICA
OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, and all riders and/or
amendments thereto, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED
OPTICAL, were required to carry general liability insurance in favor. DAVID & YONATHAN
LLC, said insurance was to be in a type and amount sufficient to cover DAVID & YONATHAN
LLC, for the claims made by Plaintiff herein. David & Yonathan LLC is entitled to contractual
indemnification from Jamaica Optical and Jamaica Optical D/b/a Preferred Optical. Jamaica Optical
and Jamaica Optical d/b/a Preferred Optical breached its contract with David & Yonathan LLC by not
defending, indemnifying and holding that defendant harmless in this action.
TWENTY-SECOND: Pursuant to the contract between Defendants JAMAICA
OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, and DAVID & YONATHAN
LLC, and all riders and/or amendments thereto, JAMAICA OPTICAL AND JAMAICA
OPTICAL D/B/A PREFERRED OPTICAL , were required to defend and indemnify DAVID &
YONATHAN LLC for all claims arising from its performance of its duties under the contract. As
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a breach of contract, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED
OPTICAL, failed to obtain the proper general liability insurance on behalf of DAVID &
YONATHAN LLC.
TWENTY-THIRD: By reason of said contract/agreement, JAMAICA OPTICAL
AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL is contractually obligated to
provide DAVID & YONATHAN LLC, with a defense to the subject action and to indemnify
DAVID & YONATHAN LLC for amounts recovered by Plaintiffs, if any, as well as such costs,
attorney's fees and disbursements as may be incurred by DAVID & YONATHAN LLC in the
defense of this action. The defendant, DAVID & YONATHAN LLC is entitled to common law
indemnification, contractual indemnification, to be defended in this lawsuit and to be completely
held harmless by the defendants, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A
PREFERRED OPTICAL, regarding all of the claims being asserted by plaintiff.
AS AND FOR A FOURTH CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA
OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE
ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
TWENTY-FOURTH: JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A
PREFERRED OPTICAL have breached those duties and requirements. JAMAICA OPTICAL
AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, have also breached its duty to
procure insurance on behalf of the three other answering defendants.
WHEREFORE, the defendant, David & Yonathan LLC, demands judgment dismissing
the complaint herein on the merits, and if the plaintiff is found to have contributed to the accident
that any damages be reduced in proportion to which the plaintiff is found to have contributed to
the accident and damages, or in the alternative that the answering defendant herein have judgment
over and against the co-defendant, Jamaica Optical and Jamaica Optical d/b/a Preferred Optical,
to the degree and proportionate share of plaintiff's recovery herein as is his respective degree of
negligence as determined herein, with the costs and disbursements of this action.
DATED: GARDEN CITY, NEW YORK
March 26, 2024
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Yours, etc.,
LAW OFFICES OF KEVIN P. WESTERMAN
By:
MICHAEL J. COLLEARY, ESQ.
Attorneys for Defendant – David & Yonathan LLC
990 Stewart Avenue, Suite 400
Garden City, New York 11530
Direct Dial: (516)493-4509
m.colleary@nationwide.com
File no.: 24-002128
TO: GAMBONE LAW GROUP, PLLC
Attorneys for Plaintiff
8652 Woodhaven Blvd.
Queens, New York 11421
(718)650-5111
JAMAICA OPTICAL
JAMAICA OPITICAL D/B/A
PREFERRED OPITICAL
Defendant Pro Se
9216a Jamaica Avenue
Queens, New York 11421
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STATE OF NEW YORK
COUNTY OF NASSAU
MICHAEL J. COLLEARY, an attorney associated with LAW OFFICES OF KEVIN P.
WESTERMAN, attorneys for the defendants herein, make the following affirmation pursuant to
CPLR 2106.
That he has read the foregoing ANSWER and knows the contents thereof; that the same is
true to his own knowledge, except as to the matters therein stated to be alleged on information and
belief, and as to those matters he believes it to be true. This verification is made by affirmant and not
by said Defendant because said Defendant does not reside in the county where affirmant maintains
his offices.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are
as follows: reports, memoranda and investigation materials contained in affirmant's file.
The undersigned affirms that the foregoing statements are true, under the penalties of perjury.
DATED: GARDEN CITY, NEW YORK
March 26, 2024
______________________________
MICHAEL J. COLLEARY
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ALEXIS D CORREA PAULINO,
NOTICE TO TAKE
Plaintiff, DEPOSITION UPON
ORAL EXAMINATION
-against-
DAVID & YONATHAN LLC and JAMAICA OPTICAL,
Defendants.
-------------------------------------------------------------------------X
PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules
the testimony, upon oral examination of Plaintiff and Defendant Jamaica Optical as adverse parties
will be taken before a Notary Public who is not an attorney, or employee of an attorney, for any
party or prospective party herein and is not a person who would be disqualified to act as a juror
because of interest or because of consanguinity or affinity to any party herein, with respect to
evidence material and necessary in the defense of this action at:
Date: July 24, 2024
Time: 10:00 a.m. forenoon
Place: LOCATION TO BE DETERMINED
That said to be examined upon the following matters.
All of the relevant facts and circumstances in connection with the accident which occurred
on April 14, 2023, including negligence, contributory negligence, liability or damages.
That for the purpose of refreshing their recollection, the said parties are to have and produce
upon such examination such records, books, papers, documents, correspondence and copies
thereof, and other writings and papers kept by or in custody or control as relate to the matters in
controversy in said action and to the dealings or transactions between the parties to said action, as
alleged and set forth in the complaint in said action.
DATED: GARDEN CITY, NEW YORK
March 26, 2024
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Yours, etc.,
LAW OFFICES OF KEVIN P. WESTERMAN
By:
MICHAEL J. COLLEARY, ESQ.
Attorneys for Defendant – David & Yonathan LLC
990 Stewart Avenue, Suite 400
Garden City, New York 11530
Direct Dial: (516)493-4509
m.colleary@nationwide.com
File no.: 24-002128
TO: GAMBONE LAW GROUP, PLLC
Attorneys for Plaintiff
8652 Woodhaven Blvd.
Queens, New York 11421
(718)650-5111
JAMAICA OPTICAL
JAMAICA OPITICAL D/B/A
PREFERRED OPITICAL
Defendant Pro Se
9216a Jamaica Avenue
Queens, New York 11421
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ALEXIS D CORREA PAULINO,
Plaintiff, DEMAND FOR VERIFIED
BILL OF PARTICULARS
-against-
DAVID & YONATHAN LLC and JAMAICA OPTICAL,
Defendants.
-------------------------------------------------------------------------X
S I R S :
PLEASE TAKE NOTICE, that you are required to serve upon the undersigned a Verified
Bill of Particulars of the plaintiff's claim herein, within thirty (30) days from the date of service
hereof, setting forth in detail the following:
1. The residence address of each plaintiff at the time of the alleged occurrence and at present.
2. The date of birth of each plaintiff.
3. The social security number of each plaintiff.
4. The date and time of day of the alleged occurrence.
5. The location of the alleged occurrence in sufficient detail to permit identification.
6. The specific acts and/or omissions constituting the negligence claimed.
7. Identify each and every ordinance, regulation, and statute that the defendant is
claimed to have violated.
8. Describe the injuries sustained by the plaintiff(s), indicating the exact location,
nature, extent and duration of each injury, their sequalae, and a description of those
claimed to be permanent.
9. State whether said plaintiff(s) claims any limitation of motion, loss of use, or loss
of function as a result of the injuries alleged, and if so state the nature, extent and
degree of permanency thereof.
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10. Set forth the names and addresses of:
(a) All hospitals where said plaintiff was treated
and/or confined as a result of the alleged
occurrence, and state the length of time
plaintiff was treated or confined in said
hospital or hospitals including the dates of
admission and discharge.
(b) All physicians or other medical providers who
treated the plaintiff as a result of the
alleged occurrence.
11. State the length of time said plaintiff was confined to (a) bed, and (b) home,
following the alleged occurrence, and state the dates of the confinement.
12. State the length of time plaintiff claims to have been:
(a) totally disabled;
(b) partially disabled;
(c) unable to pursue his/her usual occupation.
13. Set forth the amounts claimed to have been sustained as special damages for:
(a) physician's services;
(b) medical supplies;
(c) hospital expenses;
(d) nurse's services;
(e) X-ray expenses;
(f) property damage.
14. State said plaintiff's occupation, and the name and address of plaintiff's employer:
(a) at the time of the accident;
(b) and at the present time.
(c) If plaintiff was self-employed or engaged in
some other pursuit, so state and give the
address.
15. State (a) the length of time, giving specific dates, said plaintiff was incapacitated from
employment or from attending to his/her usual duties and vocation as a result of the alleged
occurrence; (b) the amount of earnings or wages claimed to have been lost and (c) the rate of wages
or basis of remuneration received by the plaintiff.
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16. If plaintiff was a student at the time of the alleged occurrence, set forth the name and address
of plaintiff's school, the plaintiff's grade level at said school, and the length of time plaintiff was
unable to attend school.
17. If loss services, society and consortium is claimed, set forth:
(a) the length of time claimed for said loss;
(b) the relationship of the plaintiff to the
injured party;
(c) the particular services claimed to have been
lost or otherwise impaired.
18. State the part or portion of the premises where the accident allegedly occurred, giving the floor
number and the location thereon if applicable.
19. For an alleged occurrence upon a stairway, state:
(a) the location of the stairway relating to the ground of floors within the building;
(b) the particular step, counting from the top or the bottom of the stairway;
(c) the location on the particular step, measuring from the right side as one
descends;
(d) the condition and/or substance claimed to have caused the alleged occurrence.
20. For an alleged occurrence upon a sidewalk, state:
(a) the distance from the situs to the nearest corner of the nearest intersection,
identifying same;
(b) the distance and compass direction from the situs to the nearest curb;
(c) the distance and compass direction from the situs to the building line;
(d) the address of the building closest to the situs;
(e) the condition and/or substance claimed to have caused the alleged occurrence.
21. For an alleged occurrence not upon a stairway or sidewalk; set forth the condition and/or
substance claimed to have caused the alleged occurrence.
22. Where notice of a condition is claimed, state whether the notice claimed is actual or
constructive, and:
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(a) If actual notice is claimed, state the date, time, place manner, by whom and to
whom such notice was given;
(b) If constructive notice is claimed, state for how long a time the condition existed
prior to the alleged occurrence.
23. If it is claimed that negligent repairs were made, state:
(a) when, where, and by whom said repairs were made;
(b) the respects in which said repairs were negligently made.
PLEASE TAKE NOTICE, that in the event you fail to furnish said bill of particulars within
the said period of thirty (30) days, a motion will be made for an order precluding the plaintiff from
offering any evidence at the trial of the above action for which particulars have not been furnished.
DATED: GARDEN CITY, NEW YORK
March 26, 2024
Yours, etc.,
LAW OFFICES OF KEVIN P. WESTERMAN
By:
MICHAEL J. COLLEARY, ESQ.
Attorneys for Defendant – David & Yonathan LLC
990 Stewart Avenue, Suite 400
Garden City, New York 11530
Direct Dial: (516)493-4509
m.colleary@nationwide.com
File no.: 24-002128
TO: GAMBONE LAW GROUP, PLLC
Attorneys for Plaintiff
8652 Woodhaven Blvd.
Queens, New York 11421
(718)650-5111
JAMAICA OPTICAL
JAMAICA OPITICAL D/B/A
PREFERRED OPITICAL
Defendant Pro Se
9216a Jamaica Avenue
Queens, New York 11421
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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ALEXIS D CORREA PAULINO,
Plaintiff, COMBINED DISCOVERY
DEMANDS
-against-
DAVID & YONATHAN LLC and JAMAICA OPTICAL,
Defendants.
-------------------------------------------------------------------------X
COUNSEL:
PLEASE TAKE NOTICE that defendant, DAVID & YONATHAN LLC, by its attorney,
LAW OFFICES OF KEVIN P. WESTERMAN, hereby demands, pursuant to CPLR Article 31,
The Uniform Rules for New York State Trial Courts the applicable case law, and the Health
Insurance Portability and Accountability Act of 1996 (HIPAA) the production to said attorneys at
990 Stewart Avenue, Suite 400, Garden City, New York 11530, within thirty (30) days of the date
of service hereof, of the following:
1. DEMAND FOR EMPLOYMENT RECORDS/AUTHORIZATIONS
1.1 The names and addresses of all of plaintiff's employers for the three (3) year
period prior to the date of the accident and up to the present date, including the
dates of employment for each such employer.
1.2 Duly executed and acknowledged original written authorizations which permit
this defendant to obtain a complete copy of the employment records for the
plaintiff from each of the employers identified in paragraph numbered A1" above.
2. DEMAND FOR MEDICAL INFORMATION, REPORTS AND AUTHORIZATIONS
2.1 The names and addresses of all physicians, therapists or other health-care
providers who have consulted, examined or treated plaintiff for each of the
conditions allegedly caused by, or exacerbated by, the occurrence described in the
complaint, including the dates of such consultations, examinations or treatments.
2.2 Duly executed and acknowledged original written authorizations separately
directed to any hospital, clinic or health care facility, including, but not limited to
Emergency Medical Service (EMS) or any ambulance service, in which plaintiff
herein was or continues to be treated or confined due to the occurrence set forth in
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the complaints so as to permit the securing of a copy of the entire hospital record
or records, including x-rays, EKGs, EMGs, CAT scans, MRIs and other
diagnostic tests, and reports regarding x-rays, EKGs, EMGs, CAT scans, MRIs,
intraoperative films/photos/video/diagnostics and other diagnostic tests and all
technicians' reports.
2.3 Duly executed and acknowledged original written authorizations which allow this
defendant to obtain the complete office medical records, including x-rays, EKGs,
CAT scans, MRIs and other diagnostic and any reports regarding x-rays, EKGs,
EMGs, CAT scans, MRIs and other diagnostic tests, relating to plaintiff, of each
physician or health care provider identified in response to A1" above.
2.4 Copies of all medical reports, records, narrative records and statements received
from physicians or health care providers identified in response to A1" above.
These shall include a detailed recital of the injuries and conditions as to which
testimony will be offered at the Trial of this action, referring to and identifying
those x-rays, EKGs, EMGs, CAT scans, MRIs and other diagnostic tests and
reports regarding the x-rays, EKGs, EMGs, CAT scans, MRIs and other
diagnostic tests which will be offered at the Trial of this action.
2.5 Duly executed and acknowledged original written authorizations which allow this
defendant to obtain complete pharmacy, drug store and/or surgical supply records
with respect to any drugs, surgical supplies and/or prostheses prescribed for
plaintiff from one (1) year prior to the occurrence described in the complaint to
the present date.
2.6 Within the time period of the date of the occurrence to the present, true and
accurate copies of all bills, invoices and statements for medical treatment of every
description, or any bills, invoices and statements incidental to medical treatment
of every description, including, but not limited to, bills, invoices and statements
for drugs, medication or pharmaceuticals of every description, relating to the
injuries allegedly caused or exacerbated by the occurrence described in the
complaint.
2.7 In the case of death, duly executed and acknowledged written authorizations
which allow this defendant to obtain the complete Medical Examiner's records
and reports, including the autopsy report, with respect to the Decedent.
3. DEMAND FOR COLLATERAL SOURCE INFORMATION PURSUANT TO CPLR
3101, 3120 AND 4545
3.1 A verified statement as to whether all or any part of the past or future cost or
expense of medical care, dental care, custodial care, rehabilitation services, loss of
earnings, economic loss, or other loss sought to be recovered in this action was or
will, with reasonable certainty, be replaced or indemnified, in whole or in part,
from any collateral source such as, but no limited to, insurance (except life
insurance), social security (except those benefits provided under Title XVIII of
the social security act), workers' compensation, or employee benefit programs
(except such collateral sources entitled by law to liens against any recovery of the
Plaintiffs and, if so, the full name and address of each organization or program
providing such replacement or indemnification, together with an itemized
statement of the amount in which each such claimed item of economic loss was or
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will, with reasonable certainty, be replaced or indemnified by each such
organization or program.
3.2 Duly executed and acknowledged written authorizations required to permit this
defendant to obtain all records reflecting any collateral sources or payments, past
or future, identified in response to the foregoing demand.
4. DEMAND FOR WORKERS' COMPENSATION RECORDS
4.1 Duly executed and acknowledged original written authorizations which permit
this defendant to obtain plaintiff's Workers' Compensation records which pertain
to:
a. The occurrence alleged in the complaint.
b. The injuries, damages and/or losses alleged in the complaint.
c. Prior and subsequent injuries to the parts of plaintiff's body injured in the
accident which is the subject of plaintiff's complaint.
d. For other injuries and accident that limited plaintiff's ability to work,
which occurred prior to, or subsequent to the accident, which is the subject
of this action.
4.2 With respect to any insurance company which provides or will provide to plaintiff
benefits for any disability relative to the occurrence alleged in the complaint, duly
executed and acknowledged original written authorizations required to permit this
defendant to obtain the file, relative to plaintiff with regard to such benefits,
maintained by said insurance companies. Said authorizations should include,
without limitation, the pertinent file/claim number maintained by said insurance
companies.
5. DEMAND FOR DISABILITY CLAIM RECORDS
5.1 Duly executed and acknowledged original written authorizations which permit
this defendant to obtain plaintiff's disability records with pertain to:
a. The occurrence alleged in the complaint.
b. The injuries, damages and/or losses alleged in the complaint.
c. Prior and subsequent injuries to the parts of plaintiff's body injured in the
accident which is the subject of plaintiff's complaint.
d. For other injuries and accidents that limited plaintiff's ability to work,
which occurred prior to, or subsequent to the accident, which is the subject
of this action.
5.2 With respect to any insurance company which provides or will provide to plaintiff
benefits for any disability relative to the occurrence alleged in the complaint, duly
executed and acknowledged original written authorizations required to permit this
defendant to obtain the file, relative to plaintiff with regard to such benefits,
maintained by said insurance companies. Said authorizations should include,
without limitation, the pertinent file/claim number maintained by said insurance
companies.
6. DEMAND FOR SOCIAL SECURITY RECORDS
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6.1 Duly executed and acknowledged original written authorizations which permit
this defendant to obtain plaintiff's Social Security records, including but not
limited to SSI and SSDI, with pertain to:
a. The occurrence alleged in the complaint.
b. The injuries, damages and/or losses alleged in the complaint.
c. Prior and subsequent injuries to the parts of plaintiff's body injured in the
accident which is the subject of plaintiff's complaint.
d. For other injuries and accidents that limited plaintiff's ability to work that
occurred prior to or subsequent to the accident that is the subject of this
action.
7. DEMAND FOR THE RECORDS OF MEDICAID, MEDICARE AND OTHER
SIMILAR PROGRAMS
7.1. Duly executed and acknowledged original authorizations that permit this
defendant to obtain the records maintained by Medicaid, Medicare and other
similar programs, which pertain to:
a. The occurrence alleged in the complaint.
b. The injuries, damages and/or losses alleged in the complaint.
c. Prior and subsequent injuries to the same parts of plaintiff's body injured
in the accident which is the subject of plaintiff's complaint.
d. For other injuries and accidents that limited plaintiff's ability to work prior
to or subsequent to the accident that is the subject of this action.
8. DEMAND FOR NO-FAULT RECORDS
8.1 Duly executed and acknowledged original written authorizations which permit
this defendant to obtain plaintiff's no-fault records with pertain to:
a. The occurrence alleged in the complaint.
b. The injuries, damages and/or losses alleged in the complaint.
c. Prior and subsequent injuries to the parts of plaintiff's body injured in the
Preview
FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 LAW OFFICES OF KEVIN P. WESTERMAN EMPLOYEES OF NATIONWIDE® MUTUAL INSURANCE COMPANY NOT A LEGAL PARTNERSHIP OR PROFESSIONAL CORPORATION KEVIN P. WESTERMAN 990 STEWART AVENUE, SUITE 400 NIKOLAOS DIAMANTIS MANAGING TRIAL ATTORNEY GARDEN CITY, NY 11530 STEPHEN J DONNELLY CHRISTOPHER M. HART TELEPHONE: 516-493-4500 BRIAN GORDON MANAGING TRIAL ATTORNEY FACSIMILE: 866-909-6658 ARLENE E. LEWIS MICHAEL C. O’MALLEY SCOTT MATHIAS MANAGING TRIAL ATTORNEY ARTHUR R. MCQUILLAN GEORGIA S. ALIKAKOS AUSTIN P. MURPHY ANNA-LISA BONVENTRE GREGORY PERROTTA MICHAEL CALLARI III DANIELLE R. SCHILLING MICHAEL J. COLLEARY ANDREA E. WAISMAN March 26, 2024 Adilya Gambone, Esq. Gambone Law Group, PLLC 8652 Woodhaven Blvd. Queens, New York 11421 Re: Alexis D. Correa Paulino v. David & Yonathan LLC and Jamaica Hoapital Claims No.: 455874-GP Date of Accident: 0-4/14/2023 Our File No.: 24-002128 Dear Counselors: Enclosed herewith, and being served upon you, is our client's answer to your verified complaint in the above-entitled action. Also enclosed are our demand for a verified bill of particulars and other discovery demands. We respectfully request that you serve upon this office, within thirty (30) days from the date of this letter, the material demanded. In this way, we hope to avoid costly delays, thereby best serving the needs of our respective clients. Permit me to thank you in advance for your cooperation, time, and consideration regarding this request. Very truly yours, Michael J. Colleary, Esq. m.colleary@nationwide.com Direct Dial: 516-493-4509 MJC/sd Enclosures 1 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------------X Index No.: 702616/2024 ALEXIS D CORREA PAULINO, Plaintiff, VERIFIED ANSWER -against- DAVID & YONATHAN LLC and JAMAICA OPTICAL, Defendants. -------------------------------------------------------------------------X The defendant, DAVID & YONATHAN LLC, by its attorney, LAW OFFICES OF KEVIN P. WESTERMAN, answering the complaint of the plaintiff herein: FIRST: Denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the complaint designated 1, 2, 13, 14, 15, 16 and 17. SECOND: Denies each and every allegation contained in paragraphs 4, 5, 6 and 7 of the complaint and refers all questions of law to this Honorable Court. THIRD: Denies each and every allegation in the paragraphs of the complaint designated 12, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37. AS AND FOR A FIRST AFFIRMATIVE DEFENSE: FOURTH: If any injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the Complaint, such injuries and damages are attributable in whole or in part to the culpable conduct and/or contributory and/or comparative negligence of the plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: FIFTH: The Court should not proceed in the absence or a person who should be a party, or in the absence of an indispensable party, and the action should be dismissed for failure to 2 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 join such party; or SIXTH: The Court should not proceed in the absence of a person who should be a party, or a municipality that should be a party, and the action should be dismissed for failure to join such party. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: SEVENTH: The injuries and damages allegedly suffered by the plaintiff, if any (which injuries and damages are specifically denied by the answering defendant), were the result of culpable conduct or fault of third persons for whose conduct the answering defendant is not legally responsible, and the damages recovered by the plaintiff if any should be diminished or reduced in the proportion to which said culpable conduct bears upon the culpable conduct which caused the damages. Any liability on the part of the answering defendant (which liability is denied) is fifty percent or less of the liability of all persons which are the cause of the alleged injuries, if any, and the liability of the answering defendant for non-economic loss does not exceed the answering defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR Sections 1601 through 1603. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: EIGHTH: Defendant claims all of the benefits set forth in §4545 of the CPLR, for replacement, or indemnification of costs, medical care, rehabilitation services or loss of income from any collateral sources. Any recovery on the complaint of the plaintiff shall be reduced by the amount paid or reimbursed by collateral sources in accordance with CPLR §4545(c). 3 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: NINTH: Plaintiff failed to exercise ordinary and reasonable care to effect a cure and to prevent aggravation of the alleged injury and damages, and so failed to use available means to mitigate her alleged damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: TENTH: Plaintiff’s complaint fails to state a cause of action upon which relief may be granted as against this answering defendant. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE ELEVENTH: Upon information and belief, all of the hazards and risks incident to the circumstances set forth in the pleading were open, obvious and apparent and were assumed by the plaintiff. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE TWELFTH: Pursuant to CPLR Article 16, the liability of this defendant to the plaintiff for non-economic loss shall not exceed the share of this defendant determined in accordance with the relative culpability of each person or party causing or contributing to the total liability for non- economic loss. AS AND FOR A NINTH AFFIRMATIVE DEFENSE: THIRTEENTH: The damages sustained by the plaintiff, if any, were caused in whole or in part by the culpable conduct of third parties not under the control of this answering defendant. AS AND FOR A TENTH AFFIRMATIVE DEFENSE: FOURTEENTH: If any damages are recovered against this answering defendant, the amount of such damages shall be diminished in the proportion which the culpable conduct and/or negligence attributable to the plaintiff bears to the culpable conduct causing the damages. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE: 4 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 FIFTEENH: The provisions of CPLR Article 50(b) apply to any verdict which may be obtained by the plaintiff in this action. AS AND FOR A TWELTH AFFIRMATIVE DEFENSE: SIXTEENTH: The liability of the defendants, if any, does not exceed fifty percent (50%) of the liability assigned to all persons, if any. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE: SEVENTEENTH: The summons filed and/or served by the plaintiff does not comply with § 305(a) of the CPLR, and accordingly, this action is a nullity, and must be dismissed. AS AND FOR A FIRST CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: EIGHTEENTH: Upon information and belief, that if and in the event Plaintiff sustained any injuries or damages as alleged in Plaintiff's Verified Complaint, through negligence, carelessness or recklessness other than Plaintiff's own, and in the event damages are assessed to the Answering defendant, said damages were caused solely by the primary, active and affirmative negligence, recklessness, culpable conduct, breach of contract and/or breach of warranties of Defendant, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, being vicarious, secondary, passive and/or derivative only. NINTEENTH: By reason of the foregoing, DAVID & YONATHAN LLC, is entitled to full and complete indemnity from, and to judgment over and against Defendants, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, for full indemnification. 5 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 AS AND FOR A SECOND CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: TWENTIETH: Upon information and belief, that if and in the event Plaintiffs sustained any injuries or damages as alleged in Plaintiffs' Verified Complaint, through negligence, carelessness or recklessness other than Plaintiffs' own, and if complete indemnity is not granted as demanded under DAVID & YONATHAN LLC, as set forth above, DAVID & YONATHAN LLC, is nevertheless entitled to contribution from Defendants, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, over and above its equitable share of any judgment, verdict and/or recovery obtained by Plaintiffs, as determined in accordance with the relative culpability of each party liable for contribution. AS AND FOR A THIRD CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: TWENTY-FIRST: Pursuant to the contracts between Defendants, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, and all riders and/or amendments thereto, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, were required to carry general liability insurance in favor. DAVID & YONATHAN LLC, said insurance was to be in a type and amount sufficient to cover DAVID & YONATHAN LLC, for the claims made by Plaintiff herein. David & Yonathan LLC is entitled to contractual indemnification from Jamaica Optical and Jamaica Optical D/b/a Preferred Optical. Jamaica Optical and Jamaica Optical d/b/a Preferred Optical breached its contract with David & Yonathan LLC by not defending, indemnifying and holding that defendant harmless in this action. TWENTY-SECOND: Pursuant to the contract between Defendants JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, and DAVID & YONATHAN LLC, and all riders and/or amendments thereto, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL , were required to defend and indemnify DAVID & YONATHAN LLC for all claims arising from its performance of its duties under the contract. As 6 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 a breach of contract, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, failed to obtain the proper general liability insurance on behalf of DAVID & YONATHAN LLC. TWENTY-THIRD: By reason of said contract/agreement, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL is contractually obligated to provide DAVID & YONATHAN LLC, with a defense to the subject action and to indemnify DAVID & YONATHAN LLC for amounts recovered by Plaintiffs, if any, as well as such costs, attorney's fees and disbursements as may be incurred by DAVID & YONATHAN LLC in the defense of this action. The defendant, DAVID & YONATHAN LLC is entitled to common law indemnification, contractual indemnification, to be defended in this lawsuit and to be completely held harmless by the defendants, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, regarding all of the claims being asserted by plaintiff. AS AND FOR A FOURTH CROSSCLAIM AGAINST THE DEFENDANT, JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL THE ANSWERING DEFENDANT, DAVID & YONATHAN LLC, RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: TWENTY-FOURTH: JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL have breached those duties and requirements. JAMAICA OPTICAL AND JAMAICA OPTICAL D/B/A PREFERRED OPTICAL, have also breached its duty to procure insurance on behalf of the three other answering defendants. WHEREFORE, the defendant, David & Yonathan LLC, demands judgment dismissing the complaint herein on the merits, and if the plaintiff is found to have contributed to the accident that any damages be reduced in proportion to which the plaintiff is found to have contributed to the accident and damages, or in the alternative that the answering defendant herein have judgment over and against the co-defendant, Jamaica Optical and Jamaica Optical d/b/a Preferred Optical, to the degree and proportionate share of plaintiff's recovery herein as is his respective degree of negligence as determined herein, with the costs and disbursements of this action. DATED: GARDEN CITY, NEW YORK March 26, 2024 7 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 Yours, etc., LAW OFFICES OF KEVIN P. WESTERMAN By: MICHAEL J. COLLEARY, ESQ. Attorneys for Defendant – David & Yonathan LLC 990 Stewart Avenue, Suite 400 Garden City, New York 11530 Direct Dial: (516)493-4509 m.colleary@nationwide.com File no.: 24-002128 TO: GAMBONE LAW GROUP, PLLC Attorneys for Plaintiff 8652 Woodhaven Blvd. Queens, New York 11421 (718)650-5111 JAMAICA OPTICAL JAMAICA OPITICAL D/B/A PREFERRED OPITICAL Defendant Pro Se 9216a Jamaica Avenue Queens, New York 11421 8 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 STATE OF NEW YORK COUNTY OF NASSAU MICHAEL J. COLLEARY, an attorney associated with LAW OFFICES OF KEVIN P. WESTERMAN, attorneys for the defendants herein, make the following affirmation pursuant to CPLR 2106. That he has read the foregoing ANSWER and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. This verification is made by affirmant and not by said Defendant because said Defendant does not reside in the county where affirmant maintains his offices. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: reports, memoranda and investigation materials contained in affirmant's file. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. DATED: GARDEN CITY, NEW YORK March 26, 2024 ______________________________ MICHAEL J. COLLEARY 9 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------------X Index No.: 702616/2024 ALEXIS D CORREA PAULINO, NOTICE TO TAKE Plaintiff, DEPOSITION UPON ORAL EXAMINATION -against- DAVID & YONATHAN LLC and JAMAICA OPTICAL, Defendants. -------------------------------------------------------------------------X PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony, upon oral examination of Plaintiff and Defendant Jamaica Optical as adverse parties will be taken before a Notary Public who is not an attorney, or employee of an attorney, for any party or prospective party herein and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity or affinity to any party herein, with respect to evidence material and necessary in the defense of this action at: Date: July 24, 2024 Time: 10:00 a.m. forenoon Place: LOCATION TO BE DETERMINED That said to be examined upon the following matters. All of the relevant facts and circumstances in connection with the accident which occurred on April 14, 2023, including negligence, contributory negligence, liability or damages. That for the purpose of refreshing their recollection, the said parties are to have and produce upon such examination such records, books, papers, documents, correspondence and copies thereof, and other writings and papers kept by or in custody or control as relate to the matters in controversy in said action and to the dealings or transactions between the parties to said action, as alleged and set forth in the complaint in said action. DATED: GARDEN CITY, NEW YORK March 26, 2024 10 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 Yours, etc., LAW OFFICES OF KEVIN P. WESTERMAN By: MICHAEL J. COLLEARY, ESQ. Attorneys for Defendant – David & Yonathan LLC 990 Stewart Avenue, Suite 400 Garden City, New York 11530 Direct Dial: (516)493-4509 m.colleary@nationwide.com File no.: 24-002128 TO: GAMBONE LAW GROUP, PLLC Attorneys for Plaintiff 8652 Woodhaven Blvd. Queens, New York 11421 (718)650-5111 JAMAICA OPTICAL JAMAICA OPITICAL D/B/A PREFERRED OPITICAL Defendant Pro Se 9216a Jamaica Avenue Queens, New York 11421 11 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------------X Index No.: 702616/2024 ALEXIS D CORREA PAULINO, Plaintiff, DEMAND FOR VERIFIED BILL OF PARTICULARS -against- DAVID & YONATHAN LLC and JAMAICA OPTICAL, Defendants. -------------------------------------------------------------------------X S I R S : PLEASE TAKE NOTICE, that you are required to serve upon the undersigned a Verified Bill of Particulars of the plaintiff's claim herein, within thirty (30) days from the date of service hereof, setting forth in detail the following: 1. The residence address of each plaintiff at the time of the alleged occurrence and at present. 2. The date of birth of each plaintiff. 3. The social security number of each plaintiff. 4. The date and time of day of the alleged occurrence. 5. The location of the alleged occurrence in sufficient detail to permit identification. 6. The specific acts and/or omissions constituting the negligence claimed. 7. Identify each and every ordinance, regulation, and statute that the defendant is claimed to have violated. 8. Describe the injuries sustained by the plaintiff(s), indicating the exact location, nature, extent and duration of each injury, their sequalae, and a description of those claimed to be permanent. 9. State whether said plaintiff(s) claims any limitation of motion, loss of use, or loss of function as a result of the injuries alleged, and if so state the nature, extent and degree of permanency thereof. 12 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 10. Set forth the names and addresses of: (a) All hospitals where said plaintiff was treated and/or confined as a result of the alleged occurrence, and state the length of time plaintiff was treated or confined in said hospital or hospitals including the dates of admission and discharge. (b) All physicians or other medical providers who treated the plaintiff as a result of the alleged occurrence. 11. State the length of time said plaintiff was confined to (a) bed, and (b) home, following the alleged occurrence, and state the dates of the confinement. 12. State the length of time plaintiff claims to have been: (a) totally disabled; (b) partially disabled; (c) unable to pursue his/her usual occupation. 13. Set forth the amounts claimed to have been sustained as special damages for: (a) physician's services; (b) medical supplies; (c) hospital expenses; (d) nurse's services; (e) X-ray expenses; (f) property damage. 14. State said plaintiff's occupation, and the name and address of plaintiff's employer: (a) at the time of the accident; (b) and at the present time. (c) If plaintiff was self-employed or engaged in some other pursuit, so state and give the address. 15. State (a) the length of time, giving specific dates, said plaintiff was incapacitated from employment or from attending to his/her usual duties and vocation as a result of the alleged occurrence; (b) the amount of earnings or wages claimed to have been lost and (c) the rate of wages or basis of remuneration received by the plaintiff. 13 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 16. If plaintiff was a student at the time of the alleged occurrence, set forth the name and address of plaintiff's school, the plaintiff's grade level at said school, and the length of time plaintiff was unable to attend school. 17. If loss services, society and consortium is claimed, set forth: (a) the length of time claimed for said loss; (b) the relationship of the plaintiff to the injured party; (c) the particular services claimed to have been lost or otherwise impaired. 18. State the part or portion of the premises where the accident allegedly occurred, giving the floor number and the location thereon if applicable. 19. For an alleged occurrence upon a stairway, state: (a) the location of the stairway relating to the ground of floors within the building; (b) the particular step, counting from the top or the bottom of the stairway; (c) the location on the particular step, measuring from the right side as one descends; (d) the condition and/or substance claimed to have caused the alleged occurrence. 20. For an alleged occurrence upon a sidewalk, state: (a) the distance from the situs to the nearest corner of the nearest intersection, identifying same; (b) the distance and compass direction from the situs to the nearest curb; (c) the distance and compass direction from the situs to the building line; (d) the address of the building closest to the situs; (e) the condition and/or substance claimed to have caused the alleged occurrence. 21. For an alleged occurrence not upon a stairway or sidewalk; set forth the condition and/or substance claimed to have caused the alleged occurrence. 22. Where notice of a condition is claimed, state whether the notice claimed is actual or constructive, and: 14 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 (a) If actual notice is claimed, state the date, time, place manner, by whom and to whom such notice was given; (b) If constructive notice is claimed, state for how long a time the condition existed prior to the alleged occurrence. 23. If it is claimed that negligent repairs were made, state: (a) when, where, and by whom said repairs were made; (b) the respects in which said repairs were negligently made. PLEASE TAKE NOTICE, that in the event you fail to furnish said bill of particulars within the said period of thirty (30) days, a motion will be made for an order precluding the plaintiff from offering any evidence at the trial of the above action for which particulars have not been furnished. DATED: GARDEN CITY, NEW YORK March 26, 2024 Yours, etc., LAW OFFICES OF KEVIN P. WESTERMAN By: MICHAEL J. COLLEARY, ESQ. Attorneys for Defendant – David & Yonathan LLC 990 Stewart Avenue, Suite 400 Garden City, New York 11530 Direct Dial: (516)493-4509 m.colleary@nationwide.com File no.: 24-002128 TO: GAMBONE LAW GROUP, PLLC Attorneys for Plaintiff 8652 Woodhaven Blvd. Queens, New York 11421 (718)650-5111 JAMAICA OPTICAL JAMAICA OPITICAL D/B/A PREFERRED OPITICAL Defendant Pro Se 9216a Jamaica Avenue Queens, New York 11421 15 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------------X Index No.: 702616/2024 ALEXIS D CORREA PAULINO, Plaintiff, COMBINED DISCOVERY DEMANDS -against- DAVID & YONATHAN LLC and JAMAICA OPTICAL, Defendants. -------------------------------------------------------------------------X COUNSEL: PLEASE TAKE NOTICE that defendant, DAVID & YONATHAN LLC, by its attorney, LAW OFFICES OF KEVIN P. WESTERMAN, hereby demands, pursuant to CPLR Article 31, The Uniform Rules for New York State Trial Courts the applicable case law, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) the production to said attorneys at 990 Stewart Avenue, Suite 400, Garden City, New York 11530, within thirty (30) days of the date of service hereof, of the following: 1. DEMAND FOR EMPLOYMENT RECORDS/AUTHORIZATIONS 1.1 The names and addresses of all of plaintiff's employers for the three (3) year period prior to the date of the accident and up to the present date, including the dates of employment for each such employer. 1.2 Duly executed and acknowledged original written authorizations which permit this defendant to obtain a complete copy of the employment records for the plaintiff from each of the employers identified in paragraph numbered A1" above. 2. DEMAND FOR MEDICAL INFORMATION, REPORTS AND AUTHORIZATIONS 2.1 The names and addresses of all physicians, therapists or other health-care providers who have consulted, examined or treated plaintiff for each of the conditions allegedly caused by, or exacerbated by, the occurrence described in the complaint, including the dates of such consultations, examinations or treatments. 2.2 Duly executed and acknowledged original written authorizations separately directed to any hospital, clinic or health care facility, including, but not limited to Emergency Medical Service (EMS) or any ambulance service, in which plaintiff herein was or continues to be treated or confined due to the occurrence set forth in 16 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 the complaints so as to permit the securing of a copy of the entire hospital record or records, including x-rays, EKGs, EMGs, CAT scans, MRIs and other diagnostic tests, and reports regarding x-rays, EKGs, EMGs, CAT scans, MRIs, intraoperative films/photos/video/diagnostics and other diagnostic tests and all technicians' reports. 2.3 Duly executed and acknowledged original written authorizations which allow this defendant to obtain the complete office medical records, including x-rays, EKGs, CAT scans, MRIs and other diagnostic and any reports regarding x-rays, EKGs, EMGs, CAT scans, MRIs and other diagnostic tests, relating to plaintiff, of each physician or health care provider identified in response to A1" above. 2.4 Copies of all medical reports, records, narrative records and statements received from physicians or health care providers identified in response to A1" above. These shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the Trial of this action, referring to and identifying those x-rays, EKGs, EMGs, CAT scans, MRIs and other diagnostic tests and reports regarding the x-rays, EKGs, EMGs, CAT scans, MRIs and other diagnostic tests which will be offered at the Trial of this action. 2.5 Duly executed and acknowledged original written authorizations which allow this defendant to obtain complete pharmacy, drug store and/or surgical supply records with respect to any drugs, surgical supplies and/or prostheses prescribed for plaintiff from one (1) year prior to the occurrence described in the complaint to the present date. 2.6 Within the time period of the date of the occurrence to the present, true and accurate copies of all bills, invoices and statements for medical treatment of every description, or any bills, invoices and statements incidental to medical treatment of every description, including, but not limited to, bills, invoices and statements for drugs, medication or pharmaceuticals of every description, relating to the injuries allegedly caused or exacerbated by the occurrence described in the complaint. 2.7 In the case of death, duly executed and acknowledged written authorizations which allow this defendant to obtain the complete Medical Examiner's records and reports, including the autopsy report, with respect to the Decedent. 3. DEMAND FOR COLLATERAL SOURCE INFORMATION PURSUANT TO CPLR 3101, 3120 AND 4545 3.1 A verified statement as to whether all or any part of the past or future cost or expense of medical care, dental care, custodial care, rehabilitation services, loss of earnings, economic loss, or other loss sought to be recovered in this action was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as, but no limited to, insurance (except life insurance), social security (except those benefits provided under Title XVIII of the social security act), workers' compensation, or employee benefit programs (except such collateral sources entitled by law to liens against any recovery of the Plaintiffs and, if so, the full name and address of each organization or program providing such replacement or indemnification, together with an itemized statement of the amount in which each such claimed item of economic loss was or 17 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 will, with reasonable certainty, be replaced or indemnified by each such organization or program. 3.2 Duly executed and acknowledged written authorizations required to permit this defendant to obtain all records reflecting any collateral sources or payments, past or future, identified in response to the foregoing demand. 4. DEMAND FOR WORKERS' COMPENSATION RECORDS 4.1 Duly executed and acknowledged original written authorizations which permit this defendant to obtain plaintiff's Workers' Compensation records which pertain to: a. The occurrence alleged in the complaint. b. The injuries, damages and/or losses alleged in the complaint. c. Prior and subsequent injuries to the parts of plaintiff's body injured in the accident which is the subject of plaintiff's complaint. d. For other injuries and accident that limited plaintiff's ability to work, which occurred prior to, or subsequent to the accident, which is the subject of this action. 4.2 With respect to any insurance company which provides or will provide to plaintiff benefits for any disability relative to the occurrence alleged in the complaint, duly executed and acknowledged original written authorizations required to permit this defendant to obtain the file, relative to plaintiff with regard to such benefits, maintained by said insurance companies. Said authorizations should include, without limitation, the pertinent file/claim number maintained by said insurance companies. 5. DEMAND FOR DISABILITY CLAIM RECORDS 5.1 Duly executed and acknowledged original written authorizations which permit this defendant to obtain plaintiff's disability records with pertain to: a. The occurrence alleged in the complaint. b. The injuries, damages and/or losses alleged in the complaint. c. Prior and subsequent injuries to the parts of plaintiff's body injured in the accident which is the subject of plaintiff's complaint. d. For other injuries and accidents that limited plaintiff's ability to work, which occurred prior to, or subsequent to the accident, which is the subject of this action. 5.2 With respect to any insurance company which provides or will provide to plaintiff benefits for any disability relative to the occurrence alleged in the complaint, duly executed and acknowledged original written authorizations required to permit this defendant to obtain the file, relative to plaintiff with regard to such benefits, maintained by said insurance companies. Said authorizations should include, without limitation, the pertinent file/claim number maintained by said insurance companies. 6. DEMAND FOR SOCIAL SECURITY RECORDS 18 of 38 FILED: QUEENS COUNTY CLERK 03/26/2024 01:57 PM INDEX NO. 702616/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/26/2024 6.1 Duly executed and acknowledged original written authorizations which permit this defendant to obtain plaintiff's Social Security records, including but not limited to SSI and SSDI, with pertain to: a. The occurrence alleged in the complaint. b. The injuries, damages and/or losses alleged in the complaint. c. Prior and subsequent injuries to the parts of plaintiff's body injured in the accident which is the subject of plaintiff's complaint. d. For other injuries and accidents that limited plaintiff's ability to work that occurred prior to or subsequent to the accident that is the subject of this action. 7. DEMAND FOR THE RECORDS OF MEDICAID, MEDICARE AND OTHER SIMILAR PROGRAMS 7.1. Duly executed and acknowledged original authorizations that permit this defendant to obtain the records maintained by Medicaid, Medicare and other similar programs, which pertain to: a. The occurrence alleged in the complaint. b. The injuries, damages and/or losses alleged in the complaint. c. Prior and subsequent injuries to the same parts of plaintiff's body injured in the accident which is the subject of plaintiff's complaint. d. For other injuries and accidents that limited plaintiff's ability to work prior to or subsequent to the accident that is the subject of this action. 8. DEMAND FOR NO-FAULT RECORDS 8.1 Duly executed and acknowledged original written authorizations which permit this defendant to obtain plaintiff's no-fault records with pertain to: a. The occurrence alleged in the complaint. b. The injuries, damages and/or losses alleged in the complaint. c. Prior and subsequent injuries to the parts of plaintiff's body injured in the