Preview
FILED: NEW YORK COUNTY CLERK 03/13/2019 12:07 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----··------------------ ---------------------------X
YVETTE MCCLAMB,
Index No.: 154374/2018
Plaintiff,
- against - RESPONSE TO DEMAND
FOR BILL OF
PARTICULARS ON
AFFIRMATIVE DEFENSES
HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT CO.,
INC., RNC INDUSTRIES, LLC and WEST NEW YORK
RESTORATION OF CT, INC.,
Defendants.
-------------------------------- ----------------X
The defendant, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, by
their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for its response to Plaintiff's
Demand for a Verified Bill of Particulars, dated October 24, 2018, hereby sets forth, upon
information and belief, as follows:
1. It will be claimed that defendant will be afforded the protection of Article 16
regarding limited liability of persons jointly liable. As such, ifplaintiff obtains a verdict in her
favor against two or more tortfeasors, and the liability of these defendants are found to be 50% or
less of the total liability, the liability of defendants to the plaintiff for non-economic loss shall
not exceed this defendant's equitable share determined in accordance with the relative culpability
of each party causing or contributing to the total liability for non-economic loss.
2. Plaintiff's culpable conduct, carelessness and/or negligence caused and/or
contributed to her injuries in that she failed to see what was to be seen; failed to keep a proper
lookout; was inattentive; failed to properly observe her surroundings; failed to act reasonable and
in a non-negligent manner; failed to properly mind her surroundings; failed to act in the same
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mâñner as would a reasonably prudent person under the circumstances then and there existing;
failed to take the proper means and precautions to avoid and guard against the happening of this
accident; failed to give the Defendant herein an opportunity to avoid the happening of this
accident by notifying them of any alleged dangers; and failed to use the degree of care necessary
for the position the plaintiff put herself into. Defendant reserves the right to supplement same, as
discovery has not yet been conducted.
3. The plaintiff fails to state a cause of action in that the plaintiff's culpable conduct
was the sole proximate cause of the occurrence complained of and the injuries that resulted. In
addition, the defendant did not create any alleged defective condition, nor did the defendant have
actual or constructive notice of same.
4, Plaintiff's culpable conduct, carelessness and/or negligence caused and/or
contributed to her injuries in that she failed to see what was to be seen; failed to keep a proper
lookout; was inattentive; failed to properly observe her surroundings; failed to act reasonable and
in a non-negligent manner; failed to properly mind her surroundings; failed to act in the same
manner as would a reasonably prudent person under the circumstances then and there existing;
failed to take the proper means and precautions to avoid and guard against the happening of this
accident; failed to give the Defendant herein an opportunity to avoid the happening of this
accident by notifying them of any alleged dangers; and failed to use the degree of care necessary
for the position the plaintiff put herself into. Defendant reserves the right to supplement same, as
discovery has not yet been conducted.
5. To the extent that plaintiff seeks to recover for the cost of medical care, dental
care, custodial care or rehabilitation services, loss of earnings or other economic loss, defendant,
pursuant to CPLR §4545, will seek a reduction in the amount of such an award, ifany such past
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or future cost or expense was or will, with reâsonable be replaced or indemnified, in
certainty
whole or in part, from any collateral source such as insurance, social security, worker's
compensation or employee benefit programs.
6. The defendant is not currently in the position to state how and to what extent that
the plaintiff failed to mitigate her damages in this action. The defendant will provide further
particulars as to this item upon completion of discovery in this matter,
7, The Housing Partnership Development Corporation exercised no control over
other persons not parties to the action, including but not limited to the City of New York, and to
the extent that the sidewalk and/or area in question was defective as designed/maintained, the
Housing Partnership Development Corporation did not design or maintain same,
8. Plaintiff's culpable conduct, carelessness and/or negligence caused and/or
contributed to her injuries in that she failed to see what was to be seen; failed to keep a proper
lookout; was inattentive; failed to properly observe her surroundings; failed to act reasonable and
in a non-negligent manner; failed to properly mind her surroundings; failed to act in the same
manner as would a reasonably prudent person under the circumstances then and there existing;
failed to take the proper means and precautions to avoid and guard egainst the of this
happening
accident; failed to give the Defendant herein an opportunity to avoid the happening of this
accident by notifying them of any alleged dangers; and failed to use the degree of care necessary
for the position the plaintiff put herself into. Defendant reserves the right to supplement same, as
discovery has not yet been conducted.
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Defendant reserves the right to amend and/or supplement this response up to and
includingthe time of trial.
Dated: Smithtown, New York
March 11, 2019 Yours, etc.,
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendant
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
O File N ,: HC8645W9C (I .W/mm)
y: KELL WRIG
TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP
Attorneys for Plaintiff
29th
551 Fifth Avenue, Floor
New York, New York 10176
(212) 684-1880
MARGARET G. KLEIN & ASSOCIATES
Attorneys for Defendants
KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM and
WALLACK MANAGEMENT CO., INC.
2nd
200 Madison Avenue, FlOOr
New York, New York 10016
(646) 392-9250
STRADLEY RONON STEVENS & YOUNG, LLP
Attorneys for Defendant
WEST NEW YORK RESTOR.ATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, New York 10017
(212) 812-4124
PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP
Attorneys for Defendant
RNC INDUSTRIES, LLC
538 Broadhollow Road, Suite 200
Melville, New York 11747
(631) 414-7930
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Preview
FILED: NEW YORK COUNTY CLERK 03/13/2019 12:07 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----··------------------ ---------------------------X YVETTE MCCLAMB, Index No.: 154374/2018 Plaintiff, - against - RESPONSE TO DEMAND FOR BILL OF PARTICULARS ON AFFIRMATIVE DEFENSES HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Defendants. -------------------------------- ----------------X The defendant, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, by their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for its response to Plaintiff's Demand for a Verified Bill of Particulars, dated October 24, 2018, hereby sets forth, upon information and belief, as follows: 1. It will be claimed that defendant will be afforded the protection of Article 16 regarding limited liability of persons jointly liable. As such, ifplaintiff obtains a verdict in her favor against two or more tortfeasors, and the liability of these defendants are found to be 50% or less of the total liability, the liability of defendants to the plaintiff for non-economic loss shall not exceed this defendant's equitable share determined in accordance with the relative culpability of each party causing or contributing to the total liability for non-economic loss. 2. Plaintiff's culpable conduct, carelessness and/or negligence caused and/or contributed to her injuries in that she failed to see what was to be seen; failed to keep a proper lookout; was inattentive; failed to properly observe her surroundings; failed to act reasonable and in a non-negligent manner; failed to properly mind her surroundings; failed to act in the same 1 of 4 FILED: NEW YORK COUNTY CLERK 03/13/2019 12:07 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2019 mâñner as would a reasonably prudent person under the circumstances then and there existing; failed to take the proper means and precautions to avoid and guard against the happening of this accident; failed to give the Defendant herein an opportunity to avoid the happening of this accident by notifying them of any alleged dangers; and failed to use the degree of care necessary for the position the plaintiff put herself into. Defendant reserves the right to supplement same, as discovery has not yet been conducted. 3. The plaintiff fails to state a cause of action in that the plaintiff's culpable conduct was the sole proximate cause of the occurrence complained of and the injuries that resulted. In addition, the defendant did not create any alleged defective condition, nor did the defendant have actual or constructive notice of same. 4, Plaintiff's culpable conduct, carelessness and/or negligence caused and/or contributed to her injuries in that she failed to see what was to be seen; failed to keep a proper lookout; was inattentive; failed to properly observe her surroundings; failed to act reasonable and in a non-negligent manner; failed to properly mind her surroundings; failed to act in the same manner as would a reasonably prudent person under the circumstances then and there existing; failed to take the proper means and precautions to avoid and guard against the happening of this accident; failed to give the Defendant herein an opportunity to avoid the happening of this accident by notifying them of any alleged dangers; and failed to use the degree of care necessary for the position the plaintiff put herself into. Defendant reserves the right to supplement same, as discovery has not yet been conducted. 5. To the extent that plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, defendant, pursuant to CPLR §4545, will seek a reduction in the amount of such an award, ifany such past 2 of 4 FILED: NEW YORK COUNTY CLERK 03/13/2019 12:07 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2019 or future cost or expense was or will, with reâsonable be replaced or indemnified, in certainty whole or in part, from any collateral source such as insurance, social security, worker's compensation or employee benefit programs. 6. The defendant is not currently in the position to state how and to what extent that the plaintiff failed to mitigate her damages in this action. The defendant will provide further particulars as to this item upon completion of discovery in this matter, 7, The Housing Partnership Development Corporation exercised no control over other persons not parties to the action, including but not limited to the City of New York, and to the extent that the sidewalk and/or area in question was defective as designed/maintained, the Housing Partnership Development Corporation did not design or maintain same, 8. Plaintiff's culpable conduct, carelessness and/or negligence caused and/or contributed to her injuries in that she failed to see what was to be seen; failed to keep a proper lookout; was inattentive; failed to properly observe her surroundings; failed to act reasonable and in a non-negligent manner; failed to properly mind her surroundings; failed to act in the same manner as would a reasonably prudent person under the circumstances then and there existing; failed to take the proper means and precautions to avoid and guard egainst the of this happening accident; failed to give the Defendant herein an opportunity to avoid the happening of this accident by notifying them of any alleged dangers; and failed to use the degree of care necessary for the position the plaintiff put herself into. Defendant reserves the right to supplement same, as discovery has not yet been conducted. 3 of 4 FILED: NEW YORK COUNTY CLERK 03/13/2019 12:07 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 03/13/2019 Defendant reserves the right to amend and/or supplement this response up to and includingthe time of trial. Dated: Smithtown, New York March 11, 2019 Yours, etc., DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 O File N ,: HC8645W9C (I .W/mm) y: KELL WRIG TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP Attorneys for Plaintiff 29th 551 Fifth Avenue, Floor New York, New York 10176 (212) 684-1880 MARGARET G. KLEIN & ASSOCIATES Attorneys for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC. 2nd 200 Madison Avenue, FlOOr New York, New York 10016 (646) 392-9250 STRADLEY RONON STEVENS & YOUNG, LLP Attorneys for Defendant WEST NEW YORK RESTOR.ATION OF CT, INC. 100 Park Avenue, Suite 2000 New York, New York 10017 (212) 812-4124 PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP Attorneys for Defendant RNC INDUSTRIES, LLC 538 Broadhollow Road, Suite 200 Melville, New York 11747 (631) 414-7930 4 of 4