Preview
(FILED: NEW YORK COUNTY CLERK 10/06/2015 10:39 AM “INDEX NO. 157939/2015
NYSCEF DOC. NO. 4 RECEIVED NYSCEF 10/06/2015
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
meee enn ne ne eee een enn nnn K
MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF
Plaintiff(s),
-against- CERTIFICATION
MARION GREGG, GILBERT MORALES and THE
CITY OF NEW YORK,
Defendant(s).
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COUNSEL:
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the
Courts of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed document are not frivolous.
Demand Pursuant to CPLR 3017(c)
Verified Answer
Demand for a Verified Bill of Particulars
Combined Demands
Demand for Medical Bills/Billing Authorizations
Demand for 50-h Hearing Transcript
Notice of Deposition
Notice of Revocation of Service by Fax
Dated: New York, New York
October 2, 2015 Yours, etc.
LAW. OFFICE OF
M SJ Q0
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BY.
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Attorneys for D nd
MARION GREGG
485 Lexington Avenue, 7" Floor
New York, New York 10017
T: (917) 778-6600
F: (877) 890-1328
Matter No.: 2015048595
TO:
LOUIS C. FIABANE, ESQ.
Attorney(s) for Plaintiff
947 Second Avenue
New York, NY 10022
(212) 888-8922
GILBERT MORALES
c/o 26™ PRECINCT
520 West 126" Street
New York, NY 10027
ZACHARY W. CARTER
Corporation Counsel
THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MICHELLE BOWMAN and TREAVA BOWMAN, Index No,: 157939/15 ECF
a
Plaintiff(s), ;
DEMAND PURSUANT
-against- TO CPLR 3017(c)
MARION GREGG, GILBERT MORALES and THE
CITY OF NEW YORK,
Defendant(s).
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COUNSELORS:
Pursuant to CPLR §3017(c) within fifteen (15) days from the date of service of this
request, you are hereby required to set forth the total damages to which plaintiffs deem
themselves entitled and list same separately for each cause of action.
Dated: New York, New York
October 2, 2015
Yours, etc.
LAW OFFICE OF
JAMES J. TOOMEY
By: WENDY JEAN-BART
Attorneys for Defendant(s)
MARION GREGG
485 Lexington Avenue, 7" Floor
New York, New York 10017
T: (917) 778-6600
F: (877) 890-1328
Matter No.: 2015048595
TO:
LOUIS C. FIABANE, ESQ
Attorney(s) for Plaintiff
947 Second Avenue
New York, NY 10022
(212) 888-8922
GILBERT MORALES
c/o 26"! PRECINCT
520 West 126" Street
New York, NY 10027
ZACHARY W. CARTER
Corporation Counsel
THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ween nena eee eee een en ene neem ee een een nenen nen nnnnnn nnn K
MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF
Plaintiff(s),
ANSWER
-against-
MARION GREGG, GILBERT MORALES and THE
CITY OF NEW YORK,
Defendant(s).
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COUNSELOR:
The defendant, MARION GREGG, by his attorneys, THE LAW OFFICE OF JAMES
J. TOOMEY, answering the Complaint of the plaintiff(s), allege upon information and belief, the
following:
ANSWERING A FIRST CAUSE OF ACTION
1 Denies any knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs of the Complaint designated “1”, “5”, “6”, “7”,
sgn gy 10") 11, “12”, 14”, $19", “20”, “21”, and “22”,
2. Upon information and belief denies each and every allegation contained in the
paragraph of the Complaint designated “3”, “4”, and “15”.
3 Denies each and every allegation contained in the paragraph of the Complaint
designated “16”, “17”, “18”, “23”, “24”, “25”, “26” and “27”.
ANSWERING A SECOND CAUSE OF ACTION
4 Responding to the paragraph of the Complaint designated “28”, repeats and
reiterates each and every admission, denial and other response heretofore made to the preceding
paragraphs with the same force and effect as if set forth at length herein.
5 Upon information and belief denies each and every allegation contained in the
paragraph of the Complaint designated “30”.
6 Denies each and every allegation contained in the paragraph of the Complaint
designated “31”, “32”, “33”, “38”, “39”, «40”, “41”, and “42”,
7
Denies any knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs of the Complaint designated “34”, “35”, “36”,
and “37”,
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8 That the plaintiff's alleged damages representing the cost of medical care, dental
care, custodial care or rehabilitation services, loss of earnings or other economic loss were or
will, with reasonable certainty, be replaced or indemnified, in whole or in part, by or from a
collateral source and this Court shall, pursuant to CPLR Section 4545(c), reduce the amount of
such alleged damages by the amount such damages were or will be replaced or indemnified by
such collateral source.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9 Upon information and belief, plaintiff failed to comply with a condition precedent
as required pursuant to the terms and conditions of the agreement.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10. This party's responsibility for non-economic loss, if any, which is expressly
denied herein, is less than 50% of any responsibility attributed to any tortfeasor, whether or not a
party hereto, who is or may be responsible for the happening of plaintiff's alleged accident and,
thus, this party is entitled to a limitation of damages as set forth in CPLR Article 16.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
ll. The injuries and damages allegedly sustained by plaintiff were caused in whole or
in part by the culpable conduct of plaintiff, including negligence and assumption of risk, as a
result of which the claim of plaintiff is therefore barred or diminished in the proportion that such
culpable conduct of plaintiff bears to the total culpable conduct causing the alleged injuries and
damages.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. That at all times hereinafter mentioned, the answering defendant was confronted
with an emergency and, thus, his actions are governed by the common law standard of care in an
emergency situation.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. That in the event plaintiff has or should in the future, settle any portion of the
claims arising from the allegations contained in plaintiff's Complaint with any currently named
or still to be named defendant(s), the respective rights of the remaining parties should be
determined pursuant to Section 15-108 of the General Obligations Law.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
14, Upon information and belief plaintiff(s) failed to mitigate damages.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
15. That if it is determined that plaintiff failed to use available seatbelts, defendant
hereby pleads such fact in mitigation of damages.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
16. That plaintiff's own actions were the sole proximate cause of any claimed injuries
sustained by plaintiff.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
17. That this action is barred by reason of the fact that plaintiff did not sustained a
“serious injury” as defined in Section 5102 of the Insurance Law and, thus, has no right of
recovery under Sec. 5104 of the Insurance Law.
AS AND FOR A FIRST CROSS-CLAIM FOR COMMON LAW INDEMNIFICATION
AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK,
THIS DEFENDANT ALLEGES THE FOLLOWING:
18. That if plaintiffs were caused to sustain injuries and/or damages at the time and
place set forth in the Complaint through any carelessness, recklessness and/or negligence other
than the plaintiffs own, such damages were sustained in whole or in part due to the primary and
active carelessness, recklessness and negligence and/or negligent acts of omission or commission
of the co-defendant, its agent(s), servant(s) and/or employee(s) with the negligence of this
answering defendant(s), if any, being secondary, derivative and created solely by operation of
law.
If plaintiff(s) should recover judgment against the answering defendant(s), then co-
defendant(s) shall be liable to fully indemnify this answering defendant(s) for the amount of any
recovery obtained herein by plaintiff(s) against this answering defendant(s) as the Court or jury
may direct.
That by reason of this action, answering defendant(s) has (have) been and will be put to
costs and expenses, including attorneys’ fees, and, this defendant(s) demands judgment
dismissing the Complaint herein as to this defendant(s) and, further, demands judgment over and
against co-defendant(s) for the amount of any judgment which may be obtained herein by the
plaintiff(s) against this answering defendant(s) or in such amount as a Court or jury may
determine, together with the costs and disbursements of the action.
AS AND FOR A SECOND CROSS-CLAIM FOR COMMON LAW NEGLIGENCE
AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK,
THIS DEFENDANT ALLEGES THE FOLLOWING:
19. That if plaintiffs were caused to sustain injuries and/or damages at the time and
place set forth in the Complaint through any carelessness, recklessness and/or negligence other
than the plaintiff's own, such damages were sustained in whole or in part by any reason of the
carelessness, recklessness and negligence and/or negligent acts of omission or commission of co-
defendant(s), its agent(s), servant(s) and/or employee(s).
Further, if plaintiff(s) should recover judgment against this answering defendant(s), the
co-defendant(s) shall be liable to this defendant on the basis of apportionment of responsibility
for the alleged occurrence and this defendant is entitled to contribution from and judgment over
and against co-defendant(s) for all or part of any verdict or judgment which plaintiff(s) may
recover in such amounts as a jury or Court may direct.
This defendant(s) demands judgment dismissing the Complaint herein as to the
answering defendant(s), and further demands judgment over and against co-defendant(s) for the
amount of any judgment which may be obtained herein by plaintiff(s) against this answering
defendant(s) or in such amount as the Court or jury may determine, together with the costs and
disbursements of the action.
AS AND FOR A THIRD CROSS-CLAIM FOR CONTRACTUAL INDEMNIFICATION
AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK,
THIS DEFENDANT ALLEGES THE FOLLOWING:
20. That if plaintiffs were caused to sustain injuries and/or damages at the time and
place set forth in the Complaint through any carelessness, recklessness and/or negligence other
than the plaintiffs own, such damages were sustained in whole or in part by any reason of the
carelessness, recklessness and negligence and/or negligent acts of omission or commission of co-
defendant(s), its agent(s), servant(s) and/or employee(s).
That co-defendant(s) and this answering defendant(s) duly entered into a
contract/agreement/lease wherein co-defendant(s) agreed to hold harmless, fully indemnify and
assume the defense of this defendant(s) and that such contract/agreement/lease was in full force
and effect on the date of the incident made the subject of this litigation. The relevant terms of
such contract are hereby incorporated by reference as if same were more fully set forth herein.
That by reason of the foregoing, co-defendant(s) will be liable to fully indemnify this
defendant(s) for the amount of any recovery which may be obtained herein by plaintiff(s) against
this answering defendant(s) or, in such amount as a Court or jury may determine, together with
the costs and disbursements of the action.
That by reason of this section, this defendant(s) has/have been and will be put to costs
and expenses, including attorneys’ fees.
That demand has been made upon co-defendant to assume all responsibilities under such
agreement and said demand has been wrongfully refused.
AS AND FOR A FOURTH CROSS-CLAIM FOR INSURANCE COVERAGE
AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK,
THIS DEFENDANT ALLEGES THE FOLLOWING:
21. That if plaintiffs are entitled to recovery from this answering defendant(s), then
0-defendant(s) will be obliged to fully indemnify this answering defendant pursuant to the terms
of a contract/agreement/lease which provided that this answering defendant(s) shall be named as
an Additional Insured on the policy or policies of liability insurance obtained by co-defendant;
that in the event said co-defendant(s) failed to procure such insurance coverage for this
answering defendant then, pursuant to Kinney v. G.W. Lisk Co., 76 N.Y.2d 215 (1990) said co-
defendant(s) shall be liable for and shall indemnify and hold this defendant(s) harmless for any
and all amounts awarded to said plaintiff(s), as well as all costs, disbursements and other
damages associated with this litigation.
Further, if plaintiffs) or any other party should recover judgment against this answering
defendant(s), then co-defendant(s) shall be liable to this defendant(s) for the alleged occurrence
and this defendant(s) is/are entitled to full indemnification from and judgment over against said
co-defendant(s) for all or part of any verdict or judgment which any party may recover against
the ariswering defendant(s) in such amounts as a jury or the Court may determine.
Answering defendant(s) demands judgment dismissing the Complaint herein as to this
defendant(s) and, further, demands judgment over and against co-defendant(s) for the amount of
any judgment which may be obtained herein by the plaintiff against this answering defendant(s)
or, in such amount as the Court or jury may determine, together with the costs and disbursements
of the action and the costs of prosecuting this cross-claim.
WHEREFORE, the answering defendant demands judgment
(1) Dismissing the verified complaint.
(2) For common law indemnification, contribution and contractual
indemnification on the claim over against the defendants as named above.
(3) For costs and disbursements against adverse parties.
Dated: New York, New York
October 2, 2015
Yours, etc.
LAW OFFICE OF
JAMES J. TOOMEY
By: WENDY JEAN-BART
Attorneys for Defendant(s)
MARION GREGG
485 Lexington Avenue, 7" Floor
New York, New York 10017
T: (917) 778-6600
F: (877) 890-1328
Matter No.: 2015048595
TO:
LOUIS C. FIABANE, ESQ.
Attorney(s) for Plaintiff
947 Second Avenue
New York, NY 10022
(212) 888-8922
GILBERT MORALES
c/o 26" PRECINCT
520 West 126" Street
New York, NY 10027
ZACHARY W. CARTER
Corporation Counsel
THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
STATE OF NEW YORK )
)ss: ATTORNEY’S VERIFICATION
COUNTY OF NEW YORK )
The undersigned, an attorney duly admitted to practice law in the Courts of the State of
New York, states as follows:
Affirmant is associated with the LAW OFFICE OF JAMES J. TOOMEY, the attorneys
for the defendant, MARION GREGG, and has read the foregoing ANSWER, and knows the
contents thereof and that the same is true to the best of affirmant’s knowledge, except as to those
matters therein stated to be alleged upon information and belief and as to those matters affirmant
believes to be true.
That the reason this verification is made by affirmant and not by the defendant is because
the defendant is not within New York County where the attorney maintains her office; and that
the source of affirmant’s knowledge and the grounds of belief as to those matters therein stated
to be alleged upon information and belief are correspondence and investigations which have
been made concerning the subject matter in this action and which are in the possession of the
said attorneys.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
DATED: New York, New York
October 2, 2015
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF
Plaintiff(s),
DEMAND FOR A
-against- VERIFIED BILL
OF PARTICULARS
MARION GREGG, GILBERT MORALES and THE
.
CITY OF NEW YORK,
Defendant(s).
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COUNSELORS:
PLEASE TAKE NOTICE that this answering party, represented by the Law Office of
JAMES J. TOOMEY, the undersigned attorneys, requires that you serve upon said attorneys
within thirty (30) days after service upon you of a copy of this demand, a Verified Bill of
Particulars, setting forth the following:
1 State the date, time of day, and weather and road conditions of the occurrence
alleged in the Complaint.
2 The location of the alleged occurrence in sufficient detail to permit ready
identification, including but not limited to:
(a) The name of the street or road upon which the
alleged accident occurred;
(b) Indicate the nearest intersecting road and the
distance therefrom; and
() Specifying the exact place of the occurrence
with respect to the center of the road, the
center of the intersection, or other clear
reference point.
3 Set forth the name and address of the owner and operator of each vehicle involved
in the occurrence.
4 Set forth the year, make, model and license plate number (indicating state and
year) of each vehicle allegedly involved in the occurrence.
5 State the direction each vehicle allegedly involved in this occurrence was heading
just before the occurrence; state the location where each vehicle allegedly involved in this
occurrence came to rest immediately after the occurrence.
6 State all traffic controls plaintiff will claim existed at the scene of the occurrence;
state what traffic controls it will be claimed defendant violated.
7, Set forth factually and specifically in what way it is claimed this party was
negligent, indicating each and every particular act or omission constituting this party's alleged
negligence.
8 Set forth each and every injury and/or condition allegedly sustained by each
plaintiff as a result of the said occurrence indicating:
(a), its nature, extent, location and duration;
(b) a complete description of any injury
and/or condition claimed to be residual or
permanent; and
(©) the name and address of each physician
or other medical practitioner treating or
examining plaintiff; the date of each visit;
and whether treatment has ceased or is
continuing.
9 Give the length of time and specific dates it is claimed that each plaintiff was
confined, by reason of the alleged injuries:
(a) to bed; (b) to house; and (c) if treated at
or confined to a hospital or other medical
facility, state the name and address thereof,
and the dates of admission and discharge.
10 State with respect to each plaintiff:
@ Plaintiff's place and date of birth, all other
names by which each plaintiff has ever been
known, and social security number. If plaintiff
is a married woman, state maiden name.
(b) Plaintiff's occupation at the time of the
occurrence, with a description of
plaintiff's duties;
() The name and address of plaintiff's
employer at the time of the alleged
occurrence.
(@) The daily or weekly earnings (gross and
net) at the time of the occurrence.
(©) If plaintiff was self-employed, set forth
the business name and address of plaintiff and
the annual income (gross and net) of plaintiff
from said business.
© Whether plaintiff was incapacitated from said
employment; if so, the length of time including
the specific dates that plaintiff was allegedly
incapacitated from attending to said employment.
(g) If plaintiff was a student, the name
and address of the school attended and the
dates, if any when plaintiff was absent
from school.
11. Set forth the total amounts claimed to have been spent or incurred by or on behalf
of each plaintiff (setting forth the name of each provider of services along with the amount of the
bill and dates of treatment or consultation) for:
(a) hospital, clinic or other medical
institutions expenses;
(b) x-rays;
(©) physician and other health provider services;
@ nurses' services;
() medical supplies;
@ loss of earnings and the basis of
computation thereof; and
(g) amount and nature (describing in detail of
any other special damages claimed).
12. State in what respect each plaintiff has sustained a serious injury as defined in
Article 51 of the Insurance Law of the State of New York and/or economic loss greater than
basic economic loss as defined in Section 5102 of the Insurance Law of the State of New York.
13, Pursuant to CPLR 3118 demand is hereby made that you furnish the undersigned
with a verified statement setting forth-the office address and residence of each plaintiff indicating
the street and number, City and State.
14, Set forth the title, chapter and section of every statute, ordinance, regulation and
rule which plaintiff claims to be either applicable to the occurrence or to have been violated by
defendant.
PLEASE TAKE FURTHER NOTICE, that in the event you have no knowledge of any
or all of the above, same shall be so stated.
PLEASE TAKE FURTHER NOTICE, that these are continuing demands and
supplemental responses up to the time the case is placed on the trial calendar are required.
PLEASE TAKE FURTHER NOTICE, that in the event of your failure to furnish such a
Bill of Particulars within the said period of thirty (30) days, a motion will be made for an order
precluding you from giving any evidence at the trial of the above items for which particulars
have not been delivered in accordance with said demand.
Dated: New York, New York
October 2, 2015
Yours, etc.
LAW OFFICE OF
JAMES J. TOOMEY
By: WENDY JEAN-BART
Attorneys for Defendant(s)
MARION GREGG
485 Lexington Avenue, 7" Floor
New York, New York 10017
T: (917) 778-6600
F: (877) 890-1328
Matter No.: 2015048595
TO:
LOUIS C. FIABANE, ESQ.
Attorney(s) for Plaintiff
947 Second Avenue
New York, NY 10022
(212) 888-8922
GILBERT MORALES
c/o 26™ PRECINCT
520 West 126" Street
New York, NY 10027
ZACHARY W. CARTER
Corporation Counsel
THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
meee neem meen ene ene mee en en enn neem ener ene nen nen
MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF
Plaintiff(s),
COMBINED DEMANDS
-against-
MARION GREGG, GILBERT MORALES and THE
CITY OF NEW YORK,
Defendant(s).
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COUNSELORS:
PLEASE TAKE NOTICE, that the undersigned hereby makes the following demands
upon you, returnable at the office of the undersigned on November 6, 2015.
1 Demand for the Names and Addresses of all Witnesses;
2 Demand for Expert Information;
Demand for the Discovery and Inspection of any Statement by or on
behalf of a Party Represented by the Undersigned;
Notice of Discovery and Inspection for Medical Information and
Authorizations;
Notice of Discovery and Inspection of Photographs;
Notices of any liens and listings of all bills for medical providers
submitted to Medicare/Medicaid; and
7 Demand for Income Tax Returns.
8 Demand for Collateral Source.
That, in lieu of the foregoing, you may submit readable photocopies of the aforesaid
documents by mailing them to the Law Office of James J. Toomey, 485 Lexington Avenue, 7
Floor, New York, N.Y. 10017, on or before the date the documents are to be produced.
DEMAND FOR THE NAMES AND ADDRESS OF WITNESSES
PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant
to CPLR 3101(a), that you set forth in writing and under oath, the name and address of each
person claimed by any party you represent, to be a witness to any of the following;
(a) The occurrence alleged in the Complaint; or
(b) Any acts, omissions or conditions which allegedly caused the occurrence
alleged in the Complaint; or
(©) Any actual notice allegedly given to defendant or
any servant, agent or employee of defendant of any
condition which allegedly caused the occurrence
alleged in the Complaint; or
@) The nature and duration of any alleged condition which allegedly caused
the occurrence alleged in the Complaint.
If no such witnesses are known to you, so state in the sworn reply to this Demand. The
undersigned will object upon trial to the testimony of any witnesses not so identified.
DEMAND FOR EXPERT INFORMATION
PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant
to CPLR Section 3101(d), that you set forth, in writing and under oath, the following information
for each party you represent, after each expert is retained and prior to filing a Note of Issue:
(a) The name and business affiliation of each expert witness each party will
call to testify at trial or whose opinion will be relied upon by any witness
testifying at trial and the qualifications of each such expert in the field in
which he will be offered to testify.
(b) The substance of the facts and opinions on which each expert is expected
to testify.
© Each factual basis for said expert's opinion.
@ The dates of all oral and written reports provided by each expert.
If no such witnesses are known to you, so state in the sworn reply to this Demand. The
undersigned will object upon trial to the testimony of any witness not so identified.
DEMAND FOR THE DISCOVERY AND INSPECTION
OF ANY STATEMENTBY OR ON BEHALF OF A
PARTY REPRESENTED BY THE UNDERSIGNED
PLEASE TAKE FURTHER NOTICE, that the undersigned demands, on behalf of the
party it represents in this action, that pursuant to CPLR 3101(e) and 3120, you produce at the
time and place herein specified, and permit the undersigned to discover, inspect and copy each
and every statement made by or taken from such party and its agents, servants or employees now
in your possession, custody or control or in the possession, custody or control of any party you
represent in this action, if such statement in any manner bears on the issues in this action.
NOTICE FOR DISCOVERY AND INSPECTION
FOR MEDICAL INFORMATION, ETC.
PLEASE TAKE FURTHER NOTICE, that pursuant Section 164.508 of the Federally
mandated Health Insurance Portability and Accountability Act of 1996, (HIPAA), which became
effective on April 14, 2003, all authorizations must be HIPAA compliant.
We hereby demand that you produce any and all HIPAA compliant authorizations (form
provided) in addition to the authorizations demanded below.
PLEASE TAKE FURTHER NOTICE, that pursuant to Section 3101, et seq. (including
Rule 3120) of the Civil Practice Law and Rules, you are required to produce and allow discovery
to be made by this answering party of the following:
(a) Copies of the medical reports of those physicians or other health providers
who have previously treated, consulted or examined the party seeking
recovery and who will testify in its behalf for any condition caused by or
exacerbated by the occurrence alleged in the complaint. These shall
include but not be limited to 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-ray and technicians' reports which
shall be offered at the trial of this action and the date of each such
treatment, consultation and examination.
(b) Duly executed and acknowledged written authorizations permitting this
party to obtain and make copies of all hospital or other health care facility
records including x-rays and technicians’ reports as may be referred to and
identified in the reports of that party's physicians and other health care
providers, along with the complete billing records of such provider(s) that
pertain to the diagnosis, care, evaluation and treatment of the plaintiff.
(c) Any and all other medical data (including CAT scans, MRI's, EEG's,
EKG's, and other diagnostic tests) not hereinabove specifically referred to
upon which you will rely upon or offer for consideration in the
proceeding, along with the complete billing records of such provider(s) that
pertain to the diagnosis, care, evaluation and treatment of the plaintiff.
(d) Any and all bills, invoices or receipts for treatment, medicines or
appliances given for injuries or other physical conditions resulting from
the occurrence referred to in the Complaint.
(e) Fully executed and acknowledged written authorizations to obtain and
copy No-Fault medical and wage records of each plaintiff from the date of
the occurrence alleged in the Complaint to present setting forth the name,
address, claim number and policy number for each company to which
a claim has been made.
® Fully executed and acknowledged written authorizations to obtain and
copy Worker's Compensation records of each plaintiff from the date of the
occurrence alleged in the complaint to present setting forth the name,
address, claim number and policy number for each company to which
a claim has been made.
() Fully executed and acknowledged written authorizations to obtain records
of disability benefits pursuant to Social Security Laws of each plaintiff
from the date of the occurrence alleged in the Complaint to present setting
forth the name, address, claim number and policy number for each
company to which a claim has been made.
DEMAND FOR DISCOVERY AND INSPECTION OF PHOTOGRAPHS
PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of the
i
party it represents in this action, that pursuant to Section 3101 et seq., you produce at the time
and place herein specified and permit the undersigned to discover, inspect and copy any and all
photographs taken of the alleged scene or place of the occurrence and/or vehicles involved and
complained of which are now in your possession, custody and control, or in the possession,
custody and control of any party you represent in this action, if such photograph in any manner
bears upon the issues in this action.
DEMAND FOR NOTICES OF ANY LIENS AND LISTINGS OF ALL
BILLS FOR MEDICAL PROVIDERS SUBMITTED TO MEDICARE/MEDICAID
PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant
to CPLR Section 3101(a), that you set forth in writing and under oath, the following information
for each party you represent, and prior to filing a Note of Issue, the following collateral source
providers/potential lien holders:
@ Medicare/Medicaid;
(b) Workers Compensation;
(©) Health Insurance;
@ Disability; and
©) Health Care Provider.
DEMAND FOR INCOME TAX RETURNS
PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of the
party it represents in this action that you produce at the time and place herein specified and
permit the undersigned to discover, inspect and copy the complete Income Tax returns for each
party who is claiming or has claimed reimbursement for lost income due to the occurrence
alleged in the Complaint for a three (3) year period preceding the date of the occurrence as
alleged in the complaint. If said complete returns are not available, the undersigned is to be
furnished with full and complete authorizations to obtain same in a form accepted by the United
States Department of Internal Revenue.
PLEASE TAKE FURTHER NOTICE, that all of the foregoing are continuing demands
and that if any of the above items are obtained after the date of this Demand, they are to be
furnished to the attorney for this party, pursuant to these demands.
DEMAND FOR COLLATERAL SOURCE
PLEASE TAKE NOTICE, that defendant requires that plaintiff produce for discovery,
inspection and copying to undersigned counsel the following:
(a) Any and all books, records, bills, insurance applications, insurance
receipts, cancelled checks, copies of checks and any and all other
records pertaining to collateral source reimbursement received by
plaintiff or on behalf of plaintiff for the special damages alleged in the
instant claim including, but not limited to, records of any person,
institution, facility or government agency which has provided or will
provide any reimbursement.
DEMAND FOR MEDICARE/MEDICAID ELIGIBILITY INFORMATION
1. Pursuant to CPLR §3120(a) and the requirements of Section 111 of the Medicare,
Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. 1395(y)(b)(7) and (b)(8) provide:
a.) The plaintiff's date of birth;
b.) The plaintiff's Social Security Number;
c.) the plaintiff(s) Medicare Health Insurance Claim Numbers (HICNs), Medicaid
file number, New York State Department of Social Services (DDS) file
number, and/or Medicare Secondary Payor (MSP) file number, if applicable;
d.) If the plaintiff has applied for or been awarded Medicare and/or Medicaid
and/or DDS and/or MSP benefits- all information/documentation related to
the application and/or award of said benefits;
e.) If the plaintiff has applied for or been awarded Supplemental Security Income
(SSI) or Social Security Disability Insurance (SSDI), all information and
documentation related to the application and/or award of said benefits;
f.) If the plaintiff has been diagnosed with or treated for end-stage renal failure:
(1) Copies of all written reports and medical reports of all attending
physicians and health care providers related to said treatment; and
(2) Duly executed unrestricted HIPAA- compliant authorizations
enabling the defendant(s) attorneys to inspect, examine and copy the
medical reports, x-rays, films and/or diagnostic studies, note and
reports of all attending and/or examining physicians and health care
providers relating to the diagnosis with or treatment for end-stage
renal failure. Said fourth third-party defendant further demands that a
copy of the attached authorization for use and disclosure of health
information and/or a specific authorization required by each provider
be executed and provided to the undersigned for use in conjunction
with this demand.
®) If the plaintiff has been denied Medicare, Medicaid, SSI and/or SSDI benefits,
provide all information/documentation concerning any such denial; and
h.) If the plaintiff has appealed or intends to appeal the denial of Medicare,
Medicaid, SSI and/or SSDI _ benefits, provide all information and
documentation of any such appeal or intent to appeal of the denial of such
benefits.
i) State whether Medicare, Medicaid and/or the Social Security Administration
has a lien on any potential award, judgment or settlement in this lawsuit and,
if so, state the amount of such liens and provide all information and
documentation relative to these liens.
2. Pursuant to CPLR §3101(a), provide executed and acknowledged written HIPAA-
compliant authorizations permitting the demanding defendant(s)’ attorneys to obtain and make
copies of all Medicare records, Parts A and B, specifying the correct address of said Medicare
office, along with the plaintiff's Social Security Number and file number. Said defendant(s)
further demand that the plaintiff(s) complete and return the annexed Consent to Release Form
provided by the Centers for Medicare & Medicaid Services to the undersigned for use in
conjunction with this demand.
3. Pursuant to CPLR §3101€@), provide duly executed and acknowledged written
HIPAA- compliant authorizations permitting the demanding defendants' attorneys to obtain and
make copies of all Medicaid records, specifying the correct address of said Medicaid office,
along with the plaintiffs Social Security Number and the file number. The demanding
defendant(s) further demand that a signed original HIPAA- compliant Authorization for Release
of Medicaid Protected Information, and/or any other specific authorization required by Medicaid
be executed and provided for use in conjunction with this demand as it pertains to health :
information.
:
4. If the plaintiff received or applied for Social Security benefits, including but not
limited to SSI or SSDI benefits, provide a duly executed and acknowledged written authorization
setting forth the correct Social Security file number, allowing the demanding defendants!
attorneys to obtain and make copies of all files, records, and reports of the Social Security
Administration regarding the plaintiff. The demanding defendant(s) further demands that a
signed original Social Security Administration Consent for Release of Information and/or any
other specific authorization required by the Social Security Administration be executed and
provided for use in conjunction with this demand as it pertains to health information.
DEMAND FOR LITIGATION FUNDING CO. INFORMATION AND DOCUMENTS
PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant
to CPLR §§3101, et seq., whether plaintiff, or plaintiffs)’ attorney(s), or anyone on the behalf of
plaintiff or plaintiff(s) attorney(s) has entered into an agreement, contract, contingency or loan
k
with a lender, litigation funding company, litigation lending company, medical funding company
or other similar entity, company, corporation, partnership or person that is engaged in loaning
money, advancing money or financially assisting you or your attorney in any aspect of this case,
whether it be for payment of medical bills, litigation expenses, witness expenses, lost wages or
an advancement against a portion or all of any potential recovery you may receive and if so,
produce
(a) The complete name and address of the lender, litigation funding company, litigation
lending company, medical funding company or similar entity as described above.
(b) The date on which agreement, advance or loan was made.
(c) The amount of such agreement, advance or loan.
(d) legible copies of including all information, including documents of any kind provided to
the lender, litigation funding company, litigation lending company, either pursuant to the
request of the litigation funding company, litigation lending company, or voluntarily all
brochures, applications, contracts, agreements, liens, correspondence or other similar
documents received by plaintiff, completed by plaintiff, anyone on behalf of plaintiff(s)
or plaintiff's attorney(s) as part of the process of entering into all agreements,
negotiations and contracts with a lender, litigation funding company, litigation lending
company, medical funding company, or similar entity.
PLEASE TAKE FURTHER NOTICE, that the provisions of CPLR §3122 govern this
demand and if the party to whom the notice is directed objects to the disclosure, inspection or
examination or withholds any documents which appear to be within the category of the documents
required by the notice, that in the event any of the requested documents and/or items do not exist,
a verified statement to that effect is to be served on the undersigned on or before the aforesaid
return date.
PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to
comply with any of these demands, the demanding defendants will apply to the Court for the
appropriate relief including, but not limited to, and Order compelling compliance pursuant to
CPLR §3124 and/or appropriate relief pursuant to CPLR §3126 and 22 N.Y.C.R.R. Part 130.
PLEASE TAKE FURTHER NOTICE, that all demands herein shall be deemed to
continue during the pendency of this action through and including the trial thereof and must be
amended or supplemented properly in compliance with CPLR §3101(h). In the event any of the
requested documents and/or items are obtained after the aforesa
Preview
(FILED: NEW YORK COUNTY CLERK 10/06/2015 10:39 AM “INDEX NO. 157939/2015 NYSCEF DOC. NO. 4 RECEIVED NYSCEF 10/06/2015 || SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK meee enn ne ne eee een enn nnn K MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF Plaintiff(s), -against- CERTIFICATION MARION GREGG, GILBERT MORALES and THE CITY OF NEW YORK, Defendant(s). ene een enna eee nn eee ene ene nnn, COUNSEL: Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the Courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Demand Pursuant to CPLR 3017(c) Verified Answer Demand for a Verified Bill of Particulars Combined Demands Demand for Medical Bills/Billing Authorizations Demand for 50-h Hearing Transcript Notice of Deposition Notice of Revocation of Service by Fax Dated: New York, New York October 2, 2015 Yours, etc. LAW. OFFICE OF M SJ Q0 ZL BY. ZZ Po {WENDY tb Attorneys for D nd MARION GREGG 485 Lexington Avenue, 7" Floor New York, New York 10017 T: (917) 778-6600 F: (877) 890-1328 Matter No.: 2015048595 TO: LOUIS C. FIABANE, ESQ. Attorney(s) for Plaintiff 947 Second Avenue New York, NY 10022 (212) 888-8922 GILBERT MORALES c/o 26™ PRECINCT 520 West 126" Street New York, NY 10027 ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK 100 Church Street New York, NY 10007 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ween eee en nen eee eee ene ene eee neem K MICHELLE BOWMAN and TREAVA BOWMAN, Index No,: 157939/15 ECF a Plaintiff(s), ; DEMAND PURSUANT -against- TO CPLR 3017(c) MARION GREGG, GILBERT MORALES and THE CITY OF NEW YORK, Defendant(s). = - pone nnnnnne=-----X COUNSELORS: Pursuant to CPLR §3017(c) within fifteen (15) days from the date of service of this request, you are hereby required to set forth the total damages to which plaintiffs deem themselves entitled and list same separately for each cause of action. Dated: New York, New York October 2, 2015 Yours, etc. LAW OFFICE OF JAMES J. TOOMEY By: WENDY JEAN-BART Attorneys for Defendant(s) MARION GREGG 485 Lexington Avenue, 7" Floor New York, New York 10017 T: (917) 778-6600 F: (877) 890-1328 Matter No.: 2015048595 TO: LOUIS C. FIABANE, ESQ Attorney(s) for Plaintiff 947 Second Avenue New York, NY 10022 (212) 888-8922 GILBERT MORALES c/o 26"! PRECINCT 520 West 126" Street New York, NY 10027 ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK 100 Church Street New York, NY 10007 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ween nena eee eee een en ene neem ee een een nenen nen nnnnnn nnn K MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF Plaintiff(s), ANSWER -against- MARION GREGG, GILBERT MORALES and THE CITY OF NEW YORK, Defendant(s). wane eee eee en cee eee nen cece nm em ene ne ene ance meen enn ennenen nn nnnnunn & COUNSELOR: The defendant, MARION GREGG, by his attorneys, THE LAW OFFICE OF JAMES J. TOOMEY, answering the Complaint of the plaintiff(s), allege upon information and belief, the following: ANSWERING A FIRST CAUSE OF ACTION 1 Denies any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs of the Complaint designated “1”, “5”, “6”, “7”, sgn gy 10") 11, “12”, 14”, $19", “20”, “21”, and “22”, 2. Upon information and belief denies each and every allegation contained in the paragraph of the Complaint designated “3”, “4”, and “15”. 3 Denies each and every allegation contained in the paragraph of the Complaint designated “16”, “17”, “18”, “23”, “24”, “25”, “26” and “27”. ANSWERING A SECOND CAUSE OF ACTION 4 Responding to the paragraph of the Complaint designated “28”, repeats and reiterates each and every admission, denial and other response heretofore made to the preceding paragraphs with the same force and effect as if set forth at length herein. 5 Upon information and belief denies each and every allegation contained in the paragraph of the Complaint designated “30”. 6 Denies each and every allegation contained in the paragraph of the Complaint designated “31”, “32”, “33”, “38”, “39”, «40”, “41”, and “42”, 7 Denies any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs of the Complaint designated “34”, “35”, “36”, and “37”, AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8 That the plaintiff's alleged damages representing the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss were or will, with reasonable certainty, be replaced or indemnified, in whole or in part, by or from a collateral source and this Court shall, pursuant to CPLR Section 4545(c), reduce the amount of such alleged damages by the amount such damages were or will be replaced or indemnified by such collateral source. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9 Upon information and belief, plaintiff failed to comply with a condition precedent as required pursuant to the terms and conditions of the agreement. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. This party's responsibility for non-economic loss, if any, which is expressly denied herein, is less than 50% of any responsibility attributed to any tortfeasor, whether or not a party hereto, who is or may be responsible for the happening of plaintiff's alleged accident and, thus, this party is entitled to a limitation of damages as set forth in CPLR Article 16. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE ll. The injuries and damages allegedly sustained by plaintiff were caused in whole or in part by the culpable conduct of plaintiff, including negligence and assumption of risk, as a result of which the claim of plaintiff is therefore barred or diminished in the proportion that such culpable conduct of plaintiff bears to the total culpable conduct causing the alleged injuries and damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. That at all times hereinafter mentioned, the answering defendant was confronted with an emergency and, thus, his actions are governed by the common law standard of care in an emergency situation. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. That in the event plaintiff has or should in the future, settle any portion of the claims arising from the allegations contained in plaintiff's Complaint with any currently named or still to be named defendant(s), the respective rights of the remaining parties should be determined pursuant to Section 15-108 of the General Obligations Law. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 14, Upon information and belief plaintiff(s) failed to mitigate damages. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 15. That if it is determined that plaintiff failed to use available seatbelts, defendant hereby pleads such fact in mitigation of damages. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 16. That plaintiff's own actions were the sole proximate cause of any claimed injuries sustained by plaintiff. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 17. That this action is barred by reason of the fact that plaintiff did not sustained a “serious injury” as defined in Section 5102 of the Insurance Law and, thus, has no right of recovery under Sec. 5104 of the Insurance Law. AS AND FOR A FIRST CROSS-CLAIM FOR COMMON LAW INDEMNIFICATION AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK, THIS DEFENDANT ALLEGES THE FOLLOWING: 18. That if plaintiffs were caused to sustain injuries and/or damages at the time and place set forth in the Complaint through any carelessness, recklessness and/or negligence other than the plaintiffs own, such damages were sustained in whole or in part due to the primary and active carelessness, recklessness and negligence and/or negligent acts of omission or commission of the co-defendant, its agent(s), servant(s) and/or employee(s) with the negligence of this answering defendant(s), if any, being secondary, derivative and created solely by operation of law. If plaintiff(s) should recover judgment against the answering defendant(s), then co- defendant(s) shall be liable to fully indemnify this answering defendant(s) for the amount of any recovery obtained herein by plaintiff(s) against this answering defendant(s) as the Court or jury may direct. That by reason of this action, answering defendant(s) has (have) been and will be put to costs and expenses, including attorneys’ fees, and, this defendant(s) demands judgment dismissing the Complaint herein as to this defendant(s) and, further, demands judgment over and against co-defendant(s) for the amount of any judgment which may be obtained herein by the plaintiff(s) against this answering defendant(s) or in such amount as a Court or jury may determine, together with the costs and disbursements of the action. AS AND FOR A SECOND CROSS-CLAIM FOR COMMON LAW NEGLIGENCE AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK, THIS DEFENDANT ALLEGES THE FOLLOWING: 19. That if plaintiffs were caused to sustain injuries and/or damages at the time and place set forth in the Complaint through any carelessness, recklessness and/or negligence other than the plaintiff's own, such damages were sustained in whole or in part by any reason of the carelessness, recklessness and negligence and/or negligent acts of omission or commission of co- defendant(s), its agent(s), servant(s) and/or employee(s). Further, if plaintiff(s) should recover judgment against this answering defendant(s), the co-defendant(s) shall be liable to this defendant on the basis of apportionment of responsibility for the alleged occurrence and this defendant is entitled to contribution from and judgment over and against co-defendant(s) for all or part of any verdict or judgment which plaintiff(s) may recover in such amounts as a jury or Court may direct. This defendant(s) demands judgment dismissing the Complaint herein as to the answering defendant(s), and further demands judgment over and against co-defendant(s) for the amount of any judgment which may be obtained herein by plaintiff(s) against this answering defendant(s) or in such amount as the Court or jury may determine, together with the costs and disbursements of the action. AS AND FOR A THIRD CROSS-CLAIM FOR CONTRACTUAL INDEMNIFICATION AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK, THIS DEFENDANT ALLEGES THE FOLLOWING: 20. That if plaintiffs were caused to sustain injuries and/or damages at the time and place set forth in the Complaint through any carelessness, recklessness and/or negligence other than the plaintiffs own, such damages were sustained in whole or in part by any reason of the carelessness, recklessness and negligence and/or negligent acts of omission or commission of co- defendant(s), its agent(s), servant(s) and/or employee(s). That co-defendant(s) and this answering defendant(s) duly entered into a contract/agreement/lease wherein co-defendant(s) agreed to hold harmless, fully indemnify and assume the defense of this defendant(s) and that such contract/agreement/lease was in full force and effect on the date of the incident made the subject of this litigation. The relevant terms of such contract are hereby incorporated by reference as if same were more fully set forth herein. That by reason of the foregoing, co-defendant(s) will be liable to fully indemnify this defendant(s) for the amount of any recovery which may be obtained herein by plaintiff(s) against this answering defendant(s) or, in such amount as a Court or jury may determine, together with the costs and disbursements of the action. That by reason of this section, this defendant(s) has/have been and will be put to costs and expenses, including attorneys’ fees. That demand has been made upon co-defendant to assume all responsibilities under such agreement and said demand has been wrongfully refused. AS AND FOR A FOURTH CROSS-CLAIM FOR INSURANCE COVERAGE AGAINST CO-DEFENDANTS, GILBERT MORALES AND THE CITY OF NEW YORK, THIS DEFENDANT ALLEGES THE FOLLOWING: 21. That if plaintiffs are entitled to recovery from this answering defendant(s), then 0-defendant(s) will be obliged to fully indemnify this answering defendant pursuant to the terms of a contract/agreement/lease which provided that this answering defendant(s) shall be named as an Additional Insured on the policy or policies of liability insurance obtained by co-defendant; that in the event said co-defendant(s) failed to procure such insurance coverage for this answering defendant then, pursuant to Kinney v. G.W. Lisk Co., 76 N.Y.2d 215 (1990) said co- defendant(s) shall be liable for and shall indemnify and hold this defendant(s) harmless for any and all amounts awarded to said plaintiff(s), as well as all costs, disbursements and other damages associated with this litigation. Further, if plaintiffs) or any other party should recover judgment against this answering defendant(s), then co-defendant(s) shall be liable to this defendant(s) for the alleged occurrence and this defendant(s) is/are entitled to full indemnification from and judgment over against said co-defendant(s) for all or part of any verdict or judgment which any party may recover against the ariswering defendant(s) in such amounts as a jury or the Court may determine. Answering defendant(s) demands judgment dismissing the Complaint herein as to this defendant(s) and, further, demands judgment over and against co-defendant(s) for the amount of any judgment which may be obtained herein by the plaintiff against this answering defendant(s) or, in such amount as the Court or jury may determine, together with the costs and disbursements of the action and the costs of prosecuting this cross-claim. WHEREFORE, the answering defendant demands judgment (1) Dismissing the verified complaint. (2) For common law indemnification, contribution and contractual indemnification on the claim over against the defendants as named above. (3) For costs and disbursements against adverse parties. Dated: New York, New York October 2, 2015 Yours, etc. LAW OFFICE OF JAMES J. TOOMEY By: WENDY JEAN-BART Attorneys for Defendant(s) MARION GREGG 485 Lexington Avenue, 7" Floor New York, New York 10017 T: (917) 778-6600 F: (877) 890-1328 Matter No.: 2015048595 TO: LOUIS C. FIABANE, ESQ. Attorney(s) for Plaintiff 947 Second Avenue New York, NY 10022 (212) 888-8922 GILBERT MORALES c/o 26" PRECINCT 520 West 126" Street New York, NY 10027 ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK 100 Church Street New York, NY 10007 STATE OF NEW YORK ) )ss: ATTORNEY’S VERIFICATION COUNTY OF NEW YORK ) The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, states as follows: Affirmant is associated with the LAW OFFICE OF JAMES J. TOOMEY, the attorneys for the defendant, MARION GREGG, and has read the foregoing ANSWER, and knows the contents thereof and that the same is true to the best of affirmant’s knowledge, except as to those matters therein stated to be alleged upon information and belief and as to those matters affirmant believes to be true. That the reason this verification is made by affirmant and not by the defendant is because the defendant is not within New York County where the attorney maintains her office; and that the source of affirmant’s knowledge and the grounds of belief as to those matters therein stated to be alleged upon information and belief are correspondence and investigations which have been made concerning the subject matter in this action and which are in the possession of the said attorneys. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. DATED: New York, New York October 2, 2015 ye -1_\ <\ VU IR WEND) AN- SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wenn n nnn eee eee ce en ene neem K MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF Plaintiff(s), DEMAND FOR A -against- VERIFIED BILL OF PARTICULARS MARION GREGG, GILBERT MORALES and THE . CITY OF NEW YORK, Defendant(s). wenn nee eee eee eee een ene neem enn COUNSELORS: PLEASE TAKE NOTICE that this answering party, represented by the Law Office of JAMES J. TOOMEY, the undersigned attorneys, requires that you serve upon said attorneys within thirty (30) days after service upon you of a copy of this demand, a Verified Bill of Particulars, setting forth the following: 1 State the date, time of day, and weather and road conditions of the occurrence alleged in the Complaint. 2 The location of the alleged occurrence in sufficient detail to permit ready identification, including but not limited to: (a) The name of the street or road upon which the alleged accident occurred; (b) Indicate the nearest intersecting road and the distance therefrom; and () Specifying the exact place of the occurrence with respect to the center of the road, the center of the intersection, or other clear reference point. 3 Set forth the name and address of the owner and operator of each vehicle involved in the occurrence. 4 Set forth the year, make, model and license plate number (indicating state and year) of each vehicle allegedly involved in the occurrence. 5 State the direction each vehicle allegedly involved in this occurrence was heading just before the occurrence; state the location where each vehicle allegedly involved in this occurrence came to rest immediately after the occurrence. 6 State all traffic controls plaintiff will claim existed at the scene of the occurrence; state what traffic controls it will be claimed defendant violated. 7, Set forth factually and specifically in what way it is claimed this party was negligent, indicating each and every particular act or omission constituting this party's alleged negligence. 8 Set forth each and every injury and/or condition allegedly sustained by each plaintiff as a result of the said occurrence indicating: (a), its nature, extent, location and duration; (b) a complete description of any injury and/or condition claimed to be residual or permanent; and (©) the name and address of each physician or other medical practitioner treating or examining plaintiff; the date of each visit; and whether treatment has ceased or is continuing. 9 Give the length of time and specific dates it is claimed that each plaintiff was confined, by reason of the alleged injuries: (a) to bed; (b) to house; and (c) if treated at or confined to a hospital or other medical facility, state the name and address thereof, and the dates of admission and discharge. 10 State with respect to each plaintiff: @ Plaintiff's place and date of birth, all other names by which each plaintiff has ever been known, and social security number. If plaintiff is a married woman, state maiden name. (b) Plaintiff's occupation at the time of the occurrence, with a description of plaintiff's duties; () The name and address of plaintiff's employer at the time of the alleged occurrence. (@) The daily or weekly earnings (gross and net) at the time of the occurrence. (©) If plaintiff was self-employed, set forth the business name and address of plaintiff and the annual income (gross and net) of plaintiff from said business. © Whether plaintiff was incapacitated from said employment; if so, the length of time including the specific dates that plaintiff was allegedly incapacitated from attending to said employment. (g) If plaintiff was a student, the name and address of the school attended and the dates, if any when plaintiff was absent from school. 11. Set forth the total amounts claimed to have been spent or incurred by or on behalf of each plaintiff (setting forth the name of each provider of services along with the amount of the bill and dates of treatment or consultation) for: (a) hospital, clinic or other medical institutions expenses; (b) x-rays; (©) physician and other health provider services; @ nurses' services; () medical supplies; @ loss of earnings and the basis of computation thereof; and (g) amount and nature (describing in detail of any other special damages claimed). 12. State in what respect each plaintiff has sustained a serious injury as defined in Article 51 of the Insurance Law of the State of New York and/or economic loss greater than basic economic loss as defined in Section 5102 of the Insurance Law of the State of New York. 13, Pursuant to CPLR 3118 demand is hereby made that you furnish the undersigned with a verified statement setting forth-the office address and residence of each plaintiff indicating the street and number, City and State. 14, Set forth the title, chapter and section of every statute, ordinance, regulation and rule which plaintiff claims to be either applicable to the occurrence or to have been violated by defendant. PLEASE TAKE FURTHER NOTICE, that in the event you have no knowledge of any or all of the above, same shall be so stated. PLEASE TAKE FURTHER NOTICE, that these are continuing demands and supplemental responses up to the time the case is placed on the trial calendar are required. PLEASE TAKE FURTHER NOTICE, that in the event of your failure to furnish such a Bill of Particulars within the said period of thirty (30) days, a motion will be made for an order precluding you from giving any evidence at the trial of the above items for which particulars have not been delivered in accordance with said demand. Dated: New York, New York October 2, 2015 Yours, etc. LAW OFFICE OF JAMES J. TOOMEY By: WENDY JEAN-BART Attorneys for Defendant(s) MARION GREGG 485 Lexington Avenue, 7" Floor New York, New York 10017 T: (917) 778-6600 F: (877) 890-1328 Matter No.: 2015048595 TO: LOUIS C. FIABANE, ESQ. Attorney(s) for Plaintiff 947 Second Avenue New York, NY 10022 (212) 888-8922 GILBERT MORALES c/o 26™ PRECINCT 520 West 126" Street New York, NY 10027 ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK 100 Church Street New York, NY 10007 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK meee neem meen ene ene mee en en enn neem ener ene nen nen MICHELLE BOWMAN and TREAVA BOWMAN, Index No.: 157939/15 ECF Plaintiff(s), COMBINED DEMANDS -against- MARION GREGG, GILBERT MORALES and THE CITY OF NEW YORK, Defendant(s). meee nnn n nen eee eee nen nn neem en en renee en nenn ne nene, COUNSELORS: PLEASE TAKE NOTICE, that the undersigned hereby makes the following demands upon you, returnable at the office of the undersigned on November 6, 2015. 1 Demand for the Names and Addresses of all Witnesses; 2 Demand for Expert Information; Demand for the Discovery and Inspection of any Statement by or on behalf of a Party Represented by the Undersigned; Notice of Discovery and Inspection for Medical Information and Authorizations; Notice of Discovery and Inspection of Photographs; Notices of any liens and listings of all bills for medical providers submitted to Medicare/Medicaid; and 7 Demand for Income Tax Returns. 8 Demand for Collateral Source. That, in lieu of the foregoing, you may submit readable photocopies of the aforesaid documents by mailing them to the Law Office of James J. Toomey, 485 Lexington Avenue, 7 Floor, New York, N.Y. 10017, on or before the date the documents are to be produced. DEMAND FOR THE NAMES AND ADDRESS OF WITNESSES PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant to CPLR 3101(a), that you set forth in writing and under oath, the name and address of each person claimed by any party you represent, to be a witness to any of the following; (a) The occurrence alleged in the Complaint; or (b) Any acts, omissions or conditions which allegedly caused the occurrence alleged in the Complaint; or (©) Any actual notice allegedly given to defendant or any servant, agent or employee of defendant of any condition which allegedly caused the occurrence alleged in the Complaint; or @) The nature and duration of any alleged condition which allegedly caused the occurrence alleged in the Complaint. If no such witnesses are known to you, so state in the sworn reply to this Demand. The undersigned will object upon trial to the testimony of any witnesses not so identified. DEMAND FOR EXPERT INFORMATION PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant to CPLR Section 3101(d), that you set forth, in writing and under oath, the following information for each party you represent, after each expert is retained and prior to filing a Note of Issue: (a) The name and business affiliation of each expert witness each party will call to testify at trial or whose opinion will be relied upon by any witness testifying at trial and the qualifications of each such expert in the field in which he will be offered to testify. (b) The substance of the facts and opinions on which each expert is expected to testify. © Each factual basis for said expert's opinion. @ The dates of all oral and written reports provided by each expert. If no such witnesses are known to you, so state in the sworn reply to this Demand. The undersigned will object upon trial to the testimony of any witness not so identified. DEMAND FOR THE DISCOVERY AND INSPECTION OF ANY STATEMENTBY OR ON BEHALF OF A PARTY REPRESENTED BY THE UNDERSIGNED PLEASE TAKE FURTHER NOTICE, that the undersigned demands, on behalf of the party it represents in this action, that pursuant to CPLR 3101(e) and 3120, you produce at the time and place herein specified, and permit the undersigned to discover, inspect and copy each and every statement made by or taken from such party and its agents, servants or employees now in your possession, custody or control or in the possession, custody or control of any party you represent in this action, if such statement in any manner bears on the issues in this action. NOTICE FOR DISCOVERY AND INSPECTION FOR MEDICAL INFORMATION, ETC. PLEASE TAKE FURTHER NOTICE, that pursuant Section 164.508 of the Federally mandated Health Insurance Portability and Accountability Act of 1996, (HIPAA), which became effective on April 14, 2003, all authorizations must be HIPAA compliant. We hereby demand that you produce any and all HIPAA compliant authorizations (form provided) in addition to the authorizations demanded below. PLEASE TAKE FURTHER NOTICE, that pursuant to Section 3101, et seq. (including Rule 3120) of the Civil Practice Law and Rules, you are required to produce and allow discovery to be made by this answering party of the following: (a) Copies of the medical reports of those physicians or other health providers who have previously treated, consulted or examined the party seeking recovery and who will testify in its behalf for any condition caused by or exacerbated by the occurrence alleged in the complaint. These shall include but not be limited to 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-ray and technicians' reports which shall be offered at the trial of this action and the date of each such treatment, consultation and examination. (b) Duly executed and acknowledged written authorizations permitting this party to obtain and make copies of all hospital or other health care facility records including x-rays and technicians’ reports as may be referred to and identified in the reports of that party's physicians and other health care providers, along with the complete billing records of such provider(s) that pertain to the diagnosis, care, evaluation and treatment of the plaintiff. (c) Any and all other medical data (including CAT scans, MRI's, EEG's, EKG's, and other diagnostic tests) not hereinabove specifically referred to upon which you will rely upon or offer for consideration in the proceeding, along with the complete billing records of such provider(s) that pertain to the diagnosis, care, evaluation and treatment of the plaintiff. (d) Any and all bills, invoices or receipts for treatment, medicines or appliances given for injuries or other physical conditions resulting from the occurrence referred to in the Complaint. (e) Fully executed and acknowledged written authorizations to obtain and copy No-Fault medical and wage records of each plaintiff from the date of the occurrence alleged in the Complaint to present setting forth the name, address, claim number and policy number for each company to which a claim has been made. ® Fully executed and acknowledged written authorizations to obtain and copy Worker's Compensation records of each plaintiff from the date of the occurrence alleged in the complaint to present setting forth the name, address, claim number and policy number for each company to which a claim has been made. () Fully executed and acknowledged written authorizations to obtain records of disability benefits pursuant to Social Security Laws of each plaintiff from the date of the occurrence alleged in the Complaint to present setting forth the name, address, claim number and policy number for each company to which a claim has been made. DEMAND FOR DISCOVERY AND INSPECTION OF PHOTOGRAPHS PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of the i party it represents in this action, that pursuant to Section 3101 et seq., you produce at the time and place herein specified and permit the undersigned to discover, inspect and copy any and all photographs taken of the alleged scene or place of the occurrence and/or vehicles involved and complained of which are now in your possession, custody and control, or in the possession, custody and control of any party you represent in this action, if such photograph in any manner bears upon the issues in this action. DEMAND FOR NOTICES OF ANY LIENS AND LISTINGS OF ALL BILLS FOR MEDICAL PROVIDERS SUBMITTED TO MEDICARE/MEDICAID PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant to CPLR Section 3101(a), that you set forth in writing and under oath, the following information for each party you represent, and prior to filing a Note of Issue, the following collateral source providers/potential lien holders: @ Medicare/Medicaid; (b) Workers Compensation; (©) Health Insurance; @ Disability; and ©) Health Care Provider. DEMAND FOR INCOME TAX RETURNS PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of the party it represents in this action that you produce at the time and place herein specified and permit the undersigned to discover, inspect and copy the complete Income Tax returns for each party who is claiming or has claimed reimbursement for lost income due to the occurrence alleged in the Complaint for a three (3) year period preceding the date of the occurrence as alleged in the complaint. If said complete returns are not available, the undersigned is to be furnished with full and complete authorizations to obtain same in a form accepted by the United States Department of Internal Revenue. PLEASE TAKE FURTHER NOTICE, that all of the foregoing are continuing demands and that if any of the above items are obtained after the date of this Demand, they are to be furnished to the attorney for this party, pursuant to these demands. DEMAND FOR COLLATERAL SOURCE PLEASE TAKE NOTICE, that defendant requires that plaintiff produce for discovery, inspection and copying to undersigned counsel the following: (a) Any and all books, records, bills, insurance applications, insurance receipts, cancelled checks, copies of checks and any and all other records pertaining to collateral source reimbursement received by plaintiff or on behalf of plaintiff for the special damages alleged in the instant claim including, but not limited to, records of any person, institution, facility or government agency which has provided or will provide any reimbursement. DEMAND FOR MEDICARE/MEDICAID ELIGIBILITY INFORMATION 1. Pursuant to CPLR §3120(a) and the requirements of Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. 1395(y)(b)(7) and (b)(8) provide: a.) The plaintiff's date of birth; b.) The plaintiff's Social Security Number; c.) the plaintiff(s) Medicare Health Insurance Claim Numbers (HICNs), Medicaid file number, New York State Department of Social Services (DDS) file number, and/or Medicare Secondary Payor (MSP) file number, if applicable; d.) If the plaintiff has applied for or been awarded Medicare and/or Medicaid and/or DDS and/or MSP benefits- all information/documentation related to the application and/or award of said benefits; e.) If the plaintiff has applied for or been awarded Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI), all information and documentation related to the application and/or award of said benefits; f.) If the plaintiff has been diagnosed with or treated for end-stage renal failure: (1) Copies of all written reports and medical reports of all attending physicians and health care providers related to said treatment; and (2) Duly executed unrestricted HIPAA- compliant authorizations enabling the defendant(s) attorneys to inspect, examine and copy the medical reports, x-rays, films and/or diagnostic studies, note and reports of all attending and/or examining physicians and health care providers relating to the diagnosis with or treatment for end-stage renal failure. Said fourth third-party defendant further demands that a copy of the attached authorization for use and disclosure of health information and/or a specific authorization required by each provider be executed and provided to the undersigned for use in conjunction with this demand. ®) If the plaintiff has been denied Medicare, Medicaid, SSI and/or SSDI benefits, provide all information/documentation concerning any such denial; and h.) If the plaintiff has appealed or intends to appeal the denial of Medicare, Medicaid, SSI and/or SSDI _ benefits, provide all information and documentation of any such appeal or intent to appeal of the denial of such benefits. i) State whether Medicare, Medicaid and/or the Social Security Administration has a lien on any potential award, judgment or settlement in this lawsuit and, if so, state the amount of such liens and provide all information and documentation relative to these liens. 2. Pursuant to CPLR §3101(a), provide executed and acknowledged written HIPAA- compliant authorizations permitting the demanding defendant(s)’ attorneys to obtain and make copies of all Medicare records, Parts A and B, specifying the correct address of said Medicare office, along with the plaintiff's Social Security Number and file number. Said defendant(s) further demand that the plaintiff(s) complete and return the annexed Consent to Release Form provided by the Centers for Medicare & Medicaid Services to the undersigned for use in conjunction with this demand. 3. Pursuant to CPLR §3101€@), provide duly executed and acknowledged written HIPAA- compliant authorizations permitting the demanding defendants' attorneys to obtain and make copies of all Medicaid records, specifying the correct address of said Medicaid office, along with the plaintiffs Social Security Number and the file number. The demanding defendant(s) further demand that a signed original HIPAA- compliant Authorization for Release of Medicaid Protected Information, and/or any other specific authorization required by Medicaid be executed and provided for use in conjunction with this demand as it pertains to health : information. : 4. If the plaintiff received or applied for Social Security benefits, including but not limited to SSI or SSDI benefits, provide a duly executed and acknowledged written authorization setting forth the correct Social Security file number, allowing the demanding defendants! attorneys to obtain and make copies of all files, records, and reports of the Social Security Administration regarding the plaintiff. The demanding defendant(s) further demands that a signed original Social Security Administration Consent for Release of Information and/or any other specific authorization required by the Social Security Administration be executed and provided for use in conjunction with this demand as it pertains to health information. DEMAND FOR LITIGATION FUNDING CO. INFORMATION AND DOCUMENTS PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands, pursuant to CPLR §§3101, et seq., whether plaintiff, or plaintiffs)’ attorney(s), or anyone on the behalf of plaintiff or plaintiff(s) attorney(s) has entered into an agreement, contract, contingency or loan k with a lender, litigation funding company, litigation lending company, medical funding company or other similar entity, company, corporation, partnership or person that is engaged in loaning money, advancing money or financially assisting you or your attorney in any aspect of this case, whether it be for payment of medical bills, litigation expenses, witness expenses, lost wages or an advancement against a portion or all of any potential recovery you may receive and if so, produce (a) The complete name and address of the lender, litigation funding company, litigation lending company, medical funding company or similar entity as described above. (b) The date on which agreement, advance or loan was made. (c) The amount of such agreement, advance or loan. (d) legible copies of including all information, including documents of any kind provided to the lender, litigation funding company, litigation lending company, either pursuant to the request of the litigation funding company, litigation lending company, or voluntarily all brochures, applications, contracts, agreements, liens, correspondence or other similar documents received by plaintiff, completed by plaintiff, anyone on behalf of plaintiff(s) or plaintiff's attorney(s) as part of the process of entering into all agreements, negotiations and contracts with a lender, litigation funding company, litigation lending company, medical funding company, or similar entity. PLEASE TAKE FURTHER NOTICE, that the provisions of CPLR §3122 govern this demand and if the party to whom the notice is directed objects to the disclosure, inspection or examination or withholds any documents which appear to be within the category of the documents required by the notice, that in the event any of the requested documents and/or items do not exist, a verified statement to that effect is to be served on the undersigned on or before the aforesaid return date. PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to comply with any of these demands, the demanding defendants will apply to the Court for the appropriate relief including, but not limited to, and Order compelling compliance pursuant to CPLR §3124 and/or appropriate relief pursuant to CPLR §3126 and 22 N.Y.C.R.R. Part 130. PLEASE TAKE FURTHER NOTICE, that all demands herein shall be deemed to continue during the pendency of this action through and including the trial thereof and must be amended or supplemented properly in compliance with CPLR §3101(h). In the event any of the requested documents and/or items are obtained after the aforesa