Preview
FILED: NASSAU COUNTY CLERK 05/13/2020 01:32 PM INDEX NO. 617072/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2020
SUPREME COURT OF THE STATE OF NEW YORK Index# 617072/2019
COUNTY OF NASSAU
X DEMAND FOR
PATRICIA WITTHOEFT, VERIFIED BILL OF
PARTICULARS
Plaintiffs,
-against- RE: AFFIRMATIVE
DEFENSES
SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE,
P.C. and JEFFREY N. ELFENBEIN, M.D.
Defendants.
X
PLEASE TAKE NOTICE, that in accordance with Section 3041, Rule 3042 of the CPLR,
Defendants SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and
JEFFREY N. ELFENBEIN, M.D. are 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 FOURTH Affirmative Defense of Defendant(s) SEAFORD
FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN,
M.D. Answer dated 2/20/2020 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 “contributory negligence and/or
culpable conduct” of the Plaintiff herself. 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” as alleged,
i. Set forth all the acts and/or omissions constituting the negligence,
culpable conduct 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;
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(3) by whom said actual notice was allegedly given on each of such dates;
(4) The substance of each said notice;
(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 FOURTH Affirmative Defense of Defendant(s) SEAFORD
FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN,
M.D. Answer aforementioned state how it is claimed in any and every manner that Plaintiff(s)
had injuries which “were pre-existing” prior to the occurrence relevant to the liability of the
answering Defendant(s) or in diminishment of the damages due and owing 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 Plaintiff(s’) “injuries
which were pre-existing” prior to the occurrence in any way relevant to such Affirmative Defense
as claimed.
3. If it is claimed with respect to any Affirmative Defense of Defendant(s) Answer(s)
aforementioned state the manner in which it is claimed, if any such claim in defense shall be
asserted, that 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.
4. If it is claimed with respect to any Affirmative Defense of Defendant(s) Answer(s)
aforementioned state the manner in which it is claimed, if any such claim in defense shall be
asserted, that Plaintiff(s) failed to effect a cure of, failed to prevent and/or reduce, mitigate, or
minimize injuries, 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
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NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2020
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.
5. If it is claimed that chemical, substance, drug, construction, fabrication or
mechanical defect or insufficiency relative to any chattel, chemical, substance or drug associated
with the occurrence but not under the control or responsibility of Defendant(s) SEAFORD
FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN,
M.D. 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), or any other party herein, 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) or third-parties which is claimed to be evidence of a causal
relationship between any claimed construction, fabrication or mechanical defect or insufficiency
and the happening of the occurrence or the causation of any injury or damage.
6. Relative to any Affirmative Defense asserted herein, if a violation of any statute,
law, ordinance, rule, regulation or code is claimed to have been committed by the Plaintiff,
identify same by article section and paragraph numbers.
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
May 13, 2020
TO:
PERRY, VAN ETTEN, ROZANSKI & KUTNER, LLP
225 Broadhollow Road, Suite 430
Melville, New York 11747
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Preview
FILED: NASSAU COUNTY CLERK 05/13/2020 01:32 PM INDEX NO. 617072/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2020 SUPREME COURT OF THE STATE OF NEW YORK Index# 617072/2019 COUNTY OF NASSAU X DEMAND FOR PATRICIA WITTHOEFT, VERIFIED BILL OF PARTICULARS Plaintiffs, -against- RE: AFFIRMATIVE DEFENSES SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN, M.D. Defendants. X PLEASE TAKE NOTICE, that in accordance with Section 3041, Rule 3042 of the CPLR, Defendants SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN, M.D. are 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 FOURTH Affirmative Defense of Defendant(s) SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN, M.D. Answer dated 2/20/2020 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 “contributory negligence and/or culpable conduct” of the Plaintiff herself. 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” as alleged, i. Set forth all the acts and/or omissions constituting the negligence, culpable conduct 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; 1 of 3 FILED: NASSAU COUNTY CLERK 05/13/2020 01:32 PM INDEX NO. 617072/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2020 (3) by whom said actual notice was allegedly given on each of such dates; (4) The substance of each said notice; (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 FOURTH Affirmative Defense of Defendant(s) SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN, M.D. Answer aforementioned state how it is claimed in any and every manner that Plaintiff(s) had injuries which “were pre-existing” prior to the occurrence relevant to the liability of the answering Defendant(s) or in diminishment of the damages due and owing 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 Plaintiff(s’) “injuries which were pre-existing” prior to the occurrence in any way relevant to such Affirmative Defense as claimed. 3. If it is claimed with respect to any Affirmative Defense of Defendant(s) Answer(s) aforementioned state the manner in which it is claimed, if any such claim in defense shall be asserted, that 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. 4. If it is claimed with respect to any Affirmative Defense of Defendant(s) Answer(s) aforementioned state the manner in which it is claimed, if any such claim in defense shall be asserted, that Plaintiff(s) failed to effect a cure of, failed to prevent and/or reduce, mitigate, or minimize injuries, 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 2 of 3 FILED: NASSAU COUNTY CLERK 05/13/2020 01:32 PM INDEX NO. 617072/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2020 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. 5. If it is claimed that chemical, substance, drug, construction, fabrication or mechanical defect or insufficiency relative to any chattel, chemical, substance or drug associated with the occurrence but not under the control or responsibility of Defendant(s) SEAFORD FAMILY PRACTICE/INTERNAL MEDICINE, P.C. and JEFFREY N. ELFENBEIN, M.D. 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), or any other party herein, 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) or third-parties which is claimed to be evidence of a causal relationship between any claimed construction, fabrication or mechanical defect or insufficiency and the happening of the occurrence or the causation of any injury or damage. 6. Relative to any Affirmative Defense asserted herein, if a violation of any statute, law, ordinance, rule, regulation or code is claimed to have been committed by the Plaintiff, identify same by article section and paragraph numbers. 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 May 13, 2020 TO: PERRY, VAN ETTEN, ROZANSKI & KUTNER, LLP 225 Broadhollow Road, Suite 430 Melville, New York 11747 3 of 3