Preview
FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK ECF
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MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021
Plaintiff, VERIFIED ANSWER
-against-
NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON
SUNOCO and SUNOCO GAS STATION,
Defendants.
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Defendant, NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO, by its
attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the
plaintiffs, upon information and belief, respectfully shows to this Court and alleges as follows:
ANSWERING THE FIRST CAUSE OF ACTION
1. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of the allegations contained in paragraphs numbered "1", "2", "3", "5", "7", "9",
"11", "13", "14", "15", "16", "17", "18", "19", "20", "21", "23", "24", "25", "26", "29", "31",
"33", "35", "36", "37", "38", "40" and "42" of the plaintiffs' Verified Complaint.
2. Defendant admits each and every allegation contained in paragraphs numbered
"4", "8" and "12" of the Plaintiffs' Verified Complaint.
3. Defendant denies each and every allegation contained in paragraphs numbered
"6", "10", "22", "27", "28", "30", "32", "34", "39", "41", "43" and "44" of the plaintiffs' Verified
Complaint.
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ANSWERING THE SECOND CAUSE OF ACTION
4. Answering paragraph numbered "45" of the plaintiffs' Verified Complaint herein,
defendant repeats reiterates and realleges each and every denial and denial of knowledge or
information sufficient to form a belief heretofore made in regard to each and every paragraph of
plaintiffs' Verified Complaint, designated as paragraphs "1" through "44" inclusive, with the
same force and effect as though more fully set forth at length herein.
5. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of the allegations contained in paragraphs numbered "46" and "47" of the
plaintiffs' Verified Complaint.
6. Defendant denies each and every allegation contained in paragraph "48" of the
plaintiffs' Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
7. Whatever injuries and/or damages were sustained by the plaintiffs at the time and
place alleged in the Verified Complaint were in whole or in part the result of the plaintiffs' own
culpable conduct.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
8. That whatever injuries and/or damages were sustained by the plaintiffs at the time
and place alleged in the Verified Complaint were the result of the plaintiffs' assumption of risk,
in realizing and knowing the hazards and dangers thereof, and that plaintiffs assumed all the risks
necessarily incidental to such an undertaking.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
9. The plaintiffs' Verified Complaint fails to state a cause of action as against this
answering defendant.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
10. That whatever injuries and/or damages were sustained by the plaintiffs at the time
and place alleged in the Verified Complaint were in whole or in part a result of the plaintiffs'
misuse of the product at issue.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
11. Upon information and belief, any past or future costs and/or expenses incurred or
to be incurred by the plaintiffs for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a)
of the CPLR.
12. If any damages are recoverable against the answering defendant, the amount of
such damages shall be diminished by the amount of the funds which plaintiffs have received or
shall receive from such collateral source.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. If plaintiffs settle, discontinue and/or end this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against one or more of the defendants herein and/or any other alleged tortfeasor, this
answering defendant asserts its right to any and all set-offs in accordance with General
Obligations Law Section 15-108.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
14. Plaintiffs failed to mitigate damages, if any.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
15. Failure to name an indispensable party.
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WHEREFORE, defendant demands judgment dismissing the plaintiffs' Verified
Complaint herein, together with the costs and disbursements of this action.
Dated: Islandia, New York
May 6, 2021
Yours, etc.
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant
NEXUS ENTERPRISES, INC. d/b/a
SOUTHAMPTON SUNOCO
One CA Plaza, Suite 225
Islandia, New York 11749
631.755.0101
By: ________________________________
JOSEPH A. MATERAZO
LJAA File No.: 0339.1011.0000
TO: GRUENBERG KELLY DELLA
Attorneys for Plaintiffs
700 Koehler Avenue
Ronkonkoma, New York 11779
631.737.4110
File No.: 210122
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STATE OF NEW YORK)
COLINTY OF SUFFOLK) ss.:
EROL BAYRAKTAR, being duly sworn, deposes and says:
Deponent is the President of Nexus Enterprises, Inc. d/b/a Southampton Sunoco, a
domestic corporation in the within action, and has read the foregoing Verified Answer and knows
the contents thereof. That the same is true to deponent's own knowledge, except as to those matters
therein stated to be alleged upon information and belief, and as to those matters deponent believes
it to be true. This verification is made by deponent because Nexus Enterprises, lnc. dlbla
Southampton Sunoco is a corporation, and deponent is an officer thereof.
The grounds of deponent's belief as to all matters not stated upon deponent's general
knowledge are upon information and belief.
By
EROL BAYRAK
Sworn to before me this
( day of May,202l.
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK ECF
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MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021
Plaintiff, DEMAND FOR A
VERIFIED BILL
-against- OF PARTICULARS
NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON
SUNOCO and SUNOCO GAS STATION,
Defendants.
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C O U N S E L:
PLEASE TAKE NOTICE, that pursuant to Rules 3041 and 3044 of the Civil Practice
Law and Rules, you are hereby required to serve a Verified Bill of Particulars upon the
undersigned within twenty (20) days after the receipt of this demand, setting forth the following:
(1) State address and residence of plaintiff pursuant to Rule 3118 of the Civil
Practice Law and Rules;
(2) The date and approximate time of day of the occurrence;
(3) The approximate location of the happening of the occurrence in sufficient
detail so as to permit accurate identification;
(4) General statement of the acts of negligence that plaintiffs claim were
committed by the defendant;
(5) A statement of alleged injuries and a description of those claimed to be
permanent;
(6) (a) The length of time confined to a hospital or other
health care facility with name of such health care
facility and the dates of admission and discharge.
(b) The length of time under the care of physicians with
the names and addresses of said physicians and the
dates of treatment.
(7) The length of time confined to bed and house, with dates of confinement;
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(8) The occupation of plaintiffs at the time of the alleged incident and their
respective average daily, weekly or monthly earnings;
(9) The name and address of plaintiff's employer(s) at the time of the incident
and the length of time incapacitated from such employment;
(10) The length of time plaintiff claims to have been totally disabled; the length
of time plaintiff claim to have been partially disabled;
(11) State date of birth and social security number of plaintiffs;
(12) If any plaintiff was a student at the time of the accident herein, set
forth the name and address of each school, and the dates that
student failed to attend school as a result of the accident;
(13) Total amounts claimed as special damages for:
(a) Physicians' services;
(b) Medical supplies;
(c) Loss of earnings;
(d) X-rays;
(e) Hospital expenses;
(f) Nurses' services; and
(g) All other items of special damages;
(14) If loss of services is alleged, state how long and between what dates such
loss of services will be claimed;
(15) Set forth by Chapter, Article, Section and Paragraph each and every
statute or ordinance, if any, which it is claimed defendant violated;
(16) In what respects did defendant contribute to or cause plaintiff's damages
and/or injuries;
(17) State whether there will be a claim that a defective or dangerous condition
caused or contributed to the accident;
(18) If the answer to item "17" is in the affirmative:
(a) Describe in detail the location of any such condition claimed;
(b) For each such condition claimed, describe in detail the nature of
each defect or danger;
(19) For each defective or dangerous condition, described in the response to
item "18," state whether it will be claimed that the defendant actively
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caused or created said condition, specifying the manner in which it will be
claimed that defendant actively caused or created the condition;
(20) State whether it will be claimed that the answering defendant had
constructive or actual notice of the alleged defects or dangerous condition;
(21) If the answer to item "20" is in the affirmative:
(a) State whether actual or constructive notice will be claimed;
(b) If actual notice is alleged, then state when such
notice was given, to whom it was given, and the
date of that notice;
(c) If constructive notice is alleged, then state how long
it will be alleged that the defect was in existence;
(22) State whether there will be a claim that dangerous and/or defective
equipment caused or contributed to the alleged occurrence;
(23) If the answer to item "22" is in the affirmative:
(a) Describe in detail the allegedly dangerous or
defective equipment.
(b) Describe in detail the nature of each defect.
(24) For each allegedly defective or dangerous piece of equipment described in
the response to item number 23, state whether it will be claimed that
defendant actively caused or created said defect, specifying the manner in
which it will be claimed that defendant actively caused or created the
defect.
(25) State whether it will be claimed that the answering defendant had
constructive or actual notice of the alleged defective or dangerous
equipment; and
(26) If the answer to item "25" is in the affirmative:
(a) State whether actual or constructive notice will be
claimed.
(b) If actual notice is claimed, then state when such
notice was given, to whom it was given, and the
date of said notice.
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(c) The duration of condition with date of inception to
date constructive notice will be claimed to have
been given defendant.
All authorizations for the release of medical records must be in the proper format and
be in full compliance with the requirements of the Health Insurance Portability and
Accountability Act (HIPAA).
PLEASE TAKE FURTHER NOTICE, that in the event of plaintiff's failure to comply
with the foregoing demand within twenty (20) days, defendant will move to preclude the offering
of any evidence as to the matters herein demanded, together with the costs of such application.
Dated: Islandia, New York
May 6, 2021
Yours, etc.
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant
NEXUS ENTERPRISES, INC. d/b/a
SOUTHAMPTON SUNOCO
One CA Plaza, Suite 225
Islandia, New York 11749
631.755.0101
By: ________________________________
JOSEPH A. MATERAZO
LJAA File No.: 0339.1011.0000
TO: GRUENBERG KELLY DELLA
Attorneys for Plaintiffs
700 Koehler Avenue
Ronkonkoma, New York 11779
631.737.4110
File No.: 210122
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK ECF
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MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021
Plaintiff, NOTICE OF
EXAMINATION
-against- BEFORE TRIAL
NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON
SUNOCO and SUNOCO GAS STATION,
Defendants.
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C O U N S E L:
PLEASE TAKE NOTICE, that pursuant to sections 3101 and 3107 of the Civil Practice
Law and Rules, answering defendant will cause to be taken testimony of the plaintiffs, their
agents, servants or employees of said parties having knowledge of the subject matter concerning
all of the relevant facts and circumstances in connection with the issues alleged in plaintiffs'
complaint, including negligence, contributory negligence, liability and damages, and said
persons to be examined are required to produce all books, records and papers in their custody
and possession that may be relevant to the issues herein.
PLEASE TAKE FURTHER NOTICE, that such examination and deposition will be
taken at Lewis Johs Avallone Aviles, LLP, One CA Plaza, Suite 225, Islandia, New York 11749,
on the 6th day of July, 2021, at 10 o'clock in the forenoon of that day, or at such time and place to
which the parties or their attorneys may stipulate.
Dated: Islandia, New York
May 6, 2021 Yours, etc.
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendants
NEXUS ENTERPRISES, INC. d/b/a
SOUTHAMPTON SUNOCO
One CA Plaza, Suite 225
Islandia, New York 11749
631.755.0101
By: ________________________________
JOSEPH A. MATERAZO
LJAA File No.: 0339.1011.0000
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TO: GRUENBERG KELLY DELLA
Attorneys for Plaintiffs
700 Koehler Avenue
Ronkonkoma, New York 11779
631.737.4110
File No.: 210122
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK ECF
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MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021
Plaintiff, COMBINED DEMANDS
-against-
NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON
SUNOCO and SUNOCO GAS STATION,
Defendants.
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C O U N S E L:
PLEASE TAKE NOTICE, that defendant, NEXUS ENTERPRISES, INC. d/b/a
SOUTHAMPTON SUNOCO, by and through its attorneys, LEWIS JOHS AVALLONE
AVILES, LLP, pursuant to New York Civil Practice Law and Rules ("CPLR"), hereby demands
that plaintiff serve upon the office of the undersigned, the following:
COMBINED DEMANDS
PLEASE TAKE NOTICE, that the undersigned attorneys demand that you furnish the
following items within twenty (20) days of receipt of this notice:
1. Pursuant to the applicable Rules of the Appellate Division of the Supreme Court
concerning the exchange of medical information, copies of all medical records,
reports, diagnoses, prognoses, as well as hospital records, x-rays, charts and duly
executed authorizations to examine any and all of the aforementioned.
2. Pursuant to Section 3101(e) of the CPLR, a copy of any statement by or on behalf
of defendant.
3. The names and addresses of each person known or claimed by you or any party
you represent in this action to be a witness to:
a. the occurrence alleged in the complaint in this action; or
b. any acts, omissions, or conditions which allegedly caused the occurrence
alleged in the complaint; or
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c. any actual notice allegedly given to defendants herein of any condition
which allegedly caused the occurrence alleged in the complaint; or
d. the nature and duration of any alleged condition which allegedly caused
the occurrence alleged in the complaint.
4. Pursuant to Rule 3120 of the CPLR, a complete copy of the plaintiff's
employment and/or school records for the two years prior and subsequent to the
alleged occurrence, and a duly executed authorization allowing the obtaining of
the aforementioned.
5. Pursuant to Rule 3120 of the CPLR, photographs of the scene of the alleged
occurrence and/or any defective and/or dangerous condition claimed to have
existed thereat, and photographs of plaintiff's injuries.
6. Pursuant to Rule 2103(e) of the CPLR, the names and addresses of each party and
attorney appearing in this action.
All authorizations for the release of medical records must be in the proper format and
be in full compliance with the requirements of the Health Insurance Portability and
Accountability Act (HIPAA).
PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the
event any of the above items is obtained after service hereof, it is to be immediately furnished to
this office.
PLEASE TAKE FURTHER NOTICE, that upon your failure to produce, identify, state
and/or provide the aforesaid items at the time and place required in this request, a motion will be
made for the appropriate relief to this Court.
DEMAND FOR DISCLOSURE AS TO MEDICARE, SDI/SSI AND/OR
MEDICAID INFORMATION
PLEASE TAKE NOTICE, that pursuant to the requirements of Section 111 of the
Medicare, Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. 1395y(b)(7) and (b)(8)),
defendant, NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO, demands that
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plaintiffs provide the following information within twenty (20) days of the date hereof:
a) The plaintiff’s date of birth and gender;
b) The plaintiff’s social security number;
c) Whether plaintiff has applied for or is receiving Medicare or
Medicaid benefits and the address of the office handling the
plaintiff’s Medicare or Medicaid file;
(1) If plaintiff is receiving Medicare benefits through a
Medicare Advantage Plan, state the name of the entity issuing
the Plan an and the address of the office handling the plaintiff’s
Medicare Advantage Plan benefits;
d) Whether plaintiff has applied for or is receiving SSI or SSDI
benefits in connection with any accident or illness which is the
subject of this litigation, and include the address of the office
handling the plaintiff's SSI and/or SSDI file;
e) Whether plaintiff has been diagnosed with or is being treated for
end-stage renal failure attributable or related to any accident or
illness which is the subject of this litigation;
f) Whether any application for said Medicare, Medicaid, SSI, SSDI
and/or Medicare Advantage Plan benefits has been denied;
g) Whether plaintiff has appealed or intends to appeal from any denial
of said Medicare, Medicaid, SSI, SSDI or Medicare Advantage
Plan benefits;
h) The identification number or beneficiary number (HICN) issued to
the plaintiff for Medicare or other federal governmental benefits;
(1) If plaintiff has a Medicare Advantage Plan, state the
identification number or beneficiary number issued to the
plaintiff for benefits;
i) State whether Medicare and/or Medicaid and/or a Medicare
Advantage Plan has a lien and if so, state the amount;
j) Provide copies of documents, records, memoranda, notes, etc. in
plaintiff’s possession pertaining to receipt of Medicare, Social
Security Disability, Medicaid and/or Medicare Advantage Plan
benefits, including copies of all documents provided to or received
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from Medicare, Social Security Disability, Medicaid and/or
Medicare Advantage Plan administrators;
k) Provide copies of any claim summary documents from CMS,
Medicare, Medicaid and/or a Medicare Advantage Plan;
l) If plaintiff has not received Medicare, Social Security Disability
and/or Medicaid benefits in the past or is not receiving Medicare,
Social Security Disability and/or Medicaid benefits now, state
whether plaintiff is eligible to receive said benefits;
m) If plaintiff was receiving Medicare, Social Security Disability
Medicaid and/or Medicare Advantage Plan benefits and is now
deceased, please provide the following:
1. Relationship of the administrator of the estate to the
decedent;
2. Name and address of administrator;
3. Telephone number and address of administrator;
4. Social Security number of Administrator;
5. An authorization to examine and copy deceased’s
Medicare, Social Security Disability, Medicaid and/or
Medicare Advantage Plan records.
PLEASE TAKE FURTHER NOTICE, that defendants, NEXUS ENTERPRISES, INC.
d/b/a SOUTHAMPTON SUNOCO, demands that plaintiff furnish the following within twenty
(20) days of the date hereof:
1. HIPAA compliant authorizations bearing the date of birth and Social Security or
HICN number permitting the undersigned to obtain copies of all documents contained in the files
and records of the United States Department of Health and Human Services, or any attorney or
agent acting on behalf of plaintiff relating, to plaintiff’s application for and receipt of: Medicare
or Medicare benefits, and/or Supplemental Security Income (SSI) or Social Security Disability
Income (SSDI) benefits, including documents relating to the denial of any of said benefits and
any appeal taken from the denial of any of said benefits.
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2. If plaintiff has a Medicare Advantage Plan, HIPAA compliant authorizations
bearing the date of birth and Social Security and Identification numbers permitting the
undersigned to obtain copies of all documents contained in the files and records of the Medicare
Advantage Plan, or any attorney or agent acting on behalf of plaintiff relating, to plaintiff’s
application for and receipt of Medicare Advantage Plan benefits, including documents relating to
the denial of any of said benefits and any appeal taken from the denial of any of said benefits.
All authorizations for the release of medical records must be in the proper format, in
full compliance with the requirements of the Health Insurance Portability and Accountability
Act (HIPAA) and contain the following statement: "this authorization will remain in effect up
to the conclusion of my court case."
PLEASE TAKE FURTHER NOTICE, that the foregoing are continuing demands. In
the event that any of the above items are obtained or received after service of these demands,
supplemental responses and/or authorizations should be furnished to the undersigned.
PLEASE TAKE FURTHER NOTICE, that upon your failure to comply with the
foregoing demands an application will be made to the court for appropriate relief.
DEMAND FOR EMPLOYMENT and TAX INFORMATION
PLEASE TAKE NOTICE, that pursuant to the applicable Rules, you are required to
serve the following within thirty (30) days after receipt of this demand:
(1) Duly acknowledged and written authorizations directed to the appropriate
party/business/employer of the plaintiff to allow the defendant to obtain
the employment records compiled on the plaintiff, for the time period from
one year prior to the date of the occurrence in question, through the
present;
(2) Duly acknowledged and written authorizations directed to all previous
employer(s) of plaintiff to allow defendant to obtain plaintiff’s
employment record(s) for the past three years;
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(3) Duly executed and acknowledged written authorizations to allow the
defendant to obtain from the appropriate agencies the complete file
compiled in connection with any Workers'/ Workmen's Compensation
claim filed by the plaintiff based on injuries allegedly caused by, or
exacerbated by, the occurrence described in the complaint;
(4) Dates of any prior applications for Workers'/Workmen's Compensation
filed by plaintiff along with the applicable Workers'/Workmen's
Compensation claim or file numbers and the names and addresses of
plaintiff’s employer(s) against whom such claims were filed. If no such
claims have been made by plaintiff, so state in a sworn reply; and
(5) Federal income tax returns and a duly executed Department of the
Treasury, Internal Revenue Service Form 4506, including the plaintiff’s
social security number, permitting the undersigned attorneys to obtain the
plaintiff’s federal income tax returns for the years 2015 to present.
PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the
event any of the above items is obtained after service hereof, it is to be immediately furnished to
this office.
PLEASE TAKE FURTHER NOTICE, that upon your failure to produce, identify, state
and/or provide the aforesaid items at the time and place required in this request, a motion will be
made for the appropriate relief to this Court.
DEMAND FOR NAMES AND ADDRESSES OF ALL WITNESSES
PLEASE TAKE NOTICE, that each defendant we represent in this action demands that
you set forth in writing, under oath, and serve upon us within ten (10) days of this date:
1. The names and addresses of each person known or claimed by you
or any party you represent in this action to be witnesses to:
(a) The occurrence alleged in the complaint in this action; or,
(b) Any acts, omissions, or conditions which allegedly caused
the occurrence alleged in the complaint; or,
(c) Any actual notice allegedly given to defendants herein of
any condition which allegedly caused the occurrence
alleged in the complaint; or
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(d) The nature and duration of any alleged condition which
allegedly caused the occurrence alleged in the complaint.
PLEASE TAKE FURTHER NOTICE, that appropriate motions will be made at the
trial of this action to preclude the testimony of any witness to the above-described facts and
circumstances who is not identified by you in response to this notice.
DEMAND TO PRESERVE AND MAINTAIN
PLEASE TAKE NOTICE, that you are hereby directed to preserve and maintain,
during the pendency of this action, without alterations:
Clothing worn at time of occurrence.
PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the
event any of the above items are obtained after service hereof, they are to be immediately
furnished to this office.
PLEASE TAKE FURTHER NOTICE, that upon your failure to comply with the
requests of this notice, a motion will be made for the appropriate relief to this Court.
DEMAND FOR MEDICAL INFORMATION
PLEASE TAKE NOTICE, that pursuant to the applicable Rules you are required to
serve within twenty (20) days after receipt of this demand the following:
1. The names and addresses of all physicians or other health-care providers
of every description who have consulted, examined or treated the plaintiff
for each of the conditions allegedly caused by, or exacerbated by, the
occurrence described in the complaint, including the date of such
treatment or examination.
2. Duly executed and acknowledged written authorizations directed to any
hospital, clinic or other health-care facility in which the injured plaintiff
herein was treated at or confined to due to the occurrence set forth in the
complaint so as to permit the securing of a copy of the entire hospital
record or records including x-rays and technicians' reports.
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3. Duly executed and acknowledged written authorizations to allow
defendants to obtain the complete office medical records relating to
plaintiff, of each health-care provider identified in item "1." above.
4. Copies of all medical reports received from health-care providers
identified in item "1." above. These shall include a detailed recital of the
injuries and conditions as to which testimony will be offered at the trial,
referring to and identifying those x-rays and technicians' reports which
will be offered.
5. Duly executed and acknowledged written authorizations to allow
defendants to obtain complete pharmacy or drug store records with respect
to any drugs prescribed for plaintiff from one (1) year prior to the
occurrence described in the complaint to the present.
All authorizations for the release of medical records must be in the proper format, in
full compliance with the requirements of the Health Insurance Portability and Accountability
Act (HIPAA) and contain the following statement: "this authorization will remain in effect up
to the conclusion of my court case."
PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the
event any of the above items are obtained after service hereof, they are to be immediately
furnished to this office.
PLEASE TAKE FURTHER NOTICE, that upon your failure to comply herewith, the
plaintiff herein will be precluded at the trial of this action from offering any evidence of the
conditions described in the reports or records demanded or offering in evidence any part of the
hospital records, medical records, x-ray reports or reports of other technicians not made available
pursuant to this Rule, nor will the Court hear the testimony of any physicians whose medical
reports have not been served pursuant to the aforesaid demand.
REQUEST FOR EXPERT DISCOVERY
PLEASE TAKE NOTICE, that pursuant to CPLR section 3101(d), you are hereby
directed to identify, state and provide, at the offices of LEWIS JOHS AVALLONE AVILES,
19 of 27
FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021
LLP, One CA Plaza, Suite 225, Islandia, New York 11749 within twenty days of receipt of this
notice:
(1) the name and address of each person whom you will call as an expert
witness at trial;
(2) the qualifications of each person whom you intend to call as an expert
witness at trial;
(3) the subject matter in reasonable detail upon which the expert is expected
to testify;
(4) a statement of the facts and opinions upon which the expert is expected to
testify;
(5) a detailed summary of those facts and opinions; and
(6) the resume and curriculum vitae of each expert upon whose testimony you
will rely at trial.
PLEASE TAKE FURTHER NOTICE, that the within is a continuing demand. In the
event any of the above items is obtained after service hereof, it is to be immediately furnished to
this office.
PLEASE TAKE FURTHER NOTICE, that upon your failure to produce, identify, state
and/or provide the aforesaid items at the time and place required in this request, a motion will be
made for the appropriate relief to this Court.
NOTICE TO PRODUCE PURSUANT TO CPLR 3101(e)
PLEASE TAKE NOTICE, that the answering defendant represented by the undersigned
demand that you produce, pursuant to CPLR 3101(e) and 3120, at the offices of LEWIS JOHS
AVALLONE AVILES, LLP, One CA Plaza, Suite 225, Islandia, New York 11749 within twenty
(20) days of receipt of this notice:
1. Any statement, signed or unsigned, or copy of any recorded statement or
Preview
FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ECF ---------------------------------------------------------------------X MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021 Plaintiff, VERIFIED ANSWER -against- NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON SUNOCO and SUNOCO GAS STATION, Defendants. ---------------------------------------------------------------------X Defendant, NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO, by its attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiffs, upon information and belief, respectfully shows to this Court and alleges as follows: ANSWERING THE FIRST CAUSE OF ACTION 1. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered "1", "2", "3", "5", "7", "9", "11", "13", "14", "15", "16", "17", "18", "19", "20", "21", "23", "24", "25", "26", "29", "31", "33", "35", "36", "37", "38", "40" and "42" of the plaintiffs' Verified Complaint. 2. Defendant admits each and every allegation contained in paragraphs numbered "4", "8" and "12" of the Plaintiffs' Verified Complaint. 3. Defendant denies each and every allegation contained in paragraphs numbered "6", "10", "22", "27", "28", "30", "32", "34", "39", "41", "43" and "44" of the plaintiffs' Verified Complaint. 1 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 ANSWERING THE SECOND CAUSE OF ACTION 4. Answering paragraph numbered "45" of the plaintiffs' Verified Complaint herein, defendant repeats reiterates and realleges each and every denial and denial of knowledge or information sufficient to form a belief heretofore made in regard to each and every paragraph of plaintiffs' Verified Complaint, designated as paragraphs "1" through "44" inclusive, with the same force and effect as though more fully set forth at length herein. 5. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered "46" and "47" of the plaintiffs' Verified Complaint. 6. Defendant denies each and every allegation contained in paragraph "48" of the plaintiffs' Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 7. Whatever injuries and/or damages were sustained by the plaintiffs at the time and place alleged in the Verified Complaint were in whole or in part the result of the plaintiffs' own culpable conduct. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 8. That whatever injuries and/or damages were sustained by the plaintiffs at the time and place alleged in the Verified Complaint were the result of the plaintiffs' assumption of risk, in realizing and knowing the hazards and dangers thereof, and that plaintiffs assumed all the risks necessarily incidental to such an undertaking. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 9. The plaintiffs' Verified Complaint fails to state a cause of action as against this answering defendant. 2 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 10. That whatever injuries and/or damages were sustained by the plaintiffs at the time and place alleged in the Verified Complaint were in whole or in part a result of the plaintiffs' misuse of the product at issue. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 11. Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiffs for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a) of the CPLR. 12. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiffs have received or shall receive from such collateral source. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. If plaintiffs settle, discontinue and/or end this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-108. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 14. Plaintiffs failed to mitigate damages, if any. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 15. Failure to name an indispensable party. 3 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 WHEREFORE, defendant demands judgment dismissing the plaintiffs' Verified Complaint herein, together with the costs and disbursements of this action. Dated: Islandia, New York May 6, 2021 Yours, etc. LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO One CA Plaza, Suite 225 Islandia, New York 11749 631.755.0101 By: ________________________________ JOSEPH A. MATERAZO LJAA File No.: 0339.1011.0000 TO: GRUENBERG KELLY DELLA Attorneys for Plaintiffs 700 Koehler Avenue Ronkonkoma, New York 11779 631.737.4110 File No.: 210122 4 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 STATE OF NEW YORK) COLINTY OF SUFFOLK) ss.: EROL BAYRAKTAR, being duly sworn, deposes and says: Deponent is the President of Nexus Enterprises, Inc. d/b/a Southampton Sunoco, a domestic corporation in the within action, and has read the foregoing Verified Answer and knows the contents thereof. That the same is true to deponent's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters deponent believes it to be true. This verification is made by deponent because Nexus Enterprises, lnc. dlbla Southampton Sunoco is a corporation, and deponent is an officer thereof. The grounds of deponent's belief as to all matters not stated upon deponent's general knowledge are upon information and belief. By EROL BAYRAK Sworn to before me this ( day of May,202l. c t.l-tr',1,n,I'n i'il^ ^. Not':l-.t,'.', -l ; .) 13,,ork orr',i, '. ,' 'r:'tY^ C,r,i'i1,,;,j,',': :; r v '1'1",''t'::' 2O'- 5 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ECF ---------------------------------------------------------------------X MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021 Plaintiff, DEMAND FOR A VERIFIED BILL -against- OF PARTICULARS NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON SUNOCO and SUNOCO GAS STATION, Defendants. ---------------------------------------------------------------------X C O U N S E L: PLEASE TAKE NOTICE, that pursuant to Rules 3041 and 3044 of the Civil Practice Law and Rules, you are hereby required to serve a Verified Bill of Particulars upon the undersigned within twenty (20) days after the receipt of this demand, setting forth the following: (1) State address and residence of plaintiff pursuant to Rule 3118 of the Civil Practice Law and Rules; (2) The date and approximate time of day of the occurrence; (3) The approximate location of the happening of the occurrence in sufficient detail so as to permit accurate identification; (4) General statement of the acts of negligence that plaintiffs claim were committed by the defendant; (5) A statement of alleged injuries and a description of those claimed to be permanent; (6) (a) The length of time confined to a hospital or other health care facility with name of such health care facility and the dates of admission and discharge. (b) The length of time under the care of physicians with the names and addresses of said physicians and the dates of treatment. (7) The length of time confined to bed and house, with dates of confinement; 6 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 (8) The occupation of plaintiffs at the time of the alleged incident and their respective average daily, weekly or monthly earnings; (9) The name and address of plaintiff's employer(s) at the time of the incident and the length of time incapacitated from such employment; (10) The length of time plaintiff claims to have been totally disabled; the length of time plaintiff claim to have been partially disabled; (11) State date of birth and social security number of plaintiffs; (12) If any plaintiff was a student at the time of the accident herein, set forth the name and address of each school, and the dates that student failed to attend school as a result of the accident; (13) Total amounts claimed as special damages for: (a) Physicians' services; (b) Medical supplies; (c) Loss of earnings; (d) X-rays; (e) Hospital expenses; (f) Nurses' services; and (g) All other items of special damages; (14) If loss of services is alleged, state how long and between what dates such loss of services will be claimed; (15) Set forth by Chapter, Article, Section and Paragraph each and every statute or ordinance, if any, which it is claimed defendant violated; (16) In what respects did defendant contribute to or cause plaintiff's damages and/or injuries; (17) State whether there will be a claim that a defective or dangerous condition caused or contributed to the accident; (18) If the answer to item "17" is in the affirmative: (a) Describe in detail the location of any such condition claimed; (b) For each such condition claimed, describe in detail the nature of each defect or danger; (19) For each defective or dangerous condition, described in the response to item "18," state whether it will be claimed that the defendant actively 7 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 caused or created said condition, specifying the manner in which it will be claimed that defendant actively caused or created the condition; (20) State whether it will be claimed that the answering defendant had constructive or actual notice of the alleged defects or dangerous condition; (21) If the answer to item "20" is in the affirmative: (a) State whether actual or constructive notice will be claimed; (b) If actual notice is alleged, then state when such notice was given, to whom it was given, and the date of that notice; (c) If constructive notice is alleged, then state how long it will be alleged that the defect was in existence; (22) State whether there will be a claim that dangerous and/or defective equipment caused or contributed to the alleged occurrence; (23) If the answer to item "22" is in the affirmative: (a) Describe in detail the allegedly dangerous or defective equipment. (b) Describe in detail the nature of each defect. (24) For each allegedly defective or dangerous piece of equipment described in the response to item number 23, state whether it will be claimed that defendant actively caused or created said defect, specifying the manner in which it will be claimed that defendant actively caused or created the defect. (25) State whether it will be claimed that the answering defendant had constructive or actual notice of the alleged defective or dangerous equipment; and (26) If the answer to item "25" is in the affirmative: (a) State whether actual or constructive notice will be claimed. (b) If actual notice is claimed, then state when such notice was given, to whom it was given, and the date of said notice. 8 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 (c) The duration of condition with date of inception to date constructive notice will be claimed to have been given defendant. All authorizations for the release of medical records must be in the proper format and be in full compliance with the requirements of the Health Insurance Portability and Accountability Act (HIPAA). PLEASE TAKE FURTHER NOTICE, that in the event of plaintiff's failure to comply with the foregoing demand within twenty (20) days, defendant will move to preclude the offering of any evidence as to the matters herein demanded, together with the costs of such application. Dated: Islandia, New York May 6, 2021 Yours, etc. LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO One CA Plaza, Suite 225 Islandia, New York 11749 631.755.0101 By: ________________________________ JOSEPH A. MATERAZO LJAA File No.: 0339.1011.0000 TO: GRUENBERG KELLY DELLA Attorneys for Plaintiffs 700 Koehler Avenue Ronkonkoma, New York 11779 631.737.4110 File No.: 210122 9 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ECF ---------------------------------------------------------------------X MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021 Plaintiff, NOTICE OF EXAMINATION -against- BEFORE TRIAL NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON SUNOCO and SUNOCO GAS STATION, Defendants. ---------------------------------------------------------------------X C O U N S E L: PLEASE TAKE NOTICE, that pursuant to sections 3101 and 3107 of the Civil Practice Law and Rules, answering defendant will cause to be taken testimony of the plaintiffs, their agents, servants or employees of said parties having knowledge of the subject matter concerning all of the relevant facts and circumstances in connection with the issues alleged in plaintiffs' complaint, including negligence, contributory negligence, liability and damages, and said persons to be examined are required to produce all books, records and papers in their custody and possession that may be relevant to the issues herein. PLEASE TAKE FURTHER NOTICE, that such examination and deposition will be taken at Lewis Johs Avallone Aviles, LLP, One CA Plaza, Suite 225, Islandia, New York 11749, on the 6th day of July, 2021, at 10 o'clock in the forenoon of that day, or at such time and place to which the parties or their attorneys may stipulate. Dated: Islandia, New York May 6, 2021 Yours, etc. LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendants NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO One CA Plaza, Suite 225 Islandia, New York 11749 631.755.0101 By: ________________________________ JOSEPH A. MATERAZO LJAA File No.: 0339.1011.0000 10 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 TO: GRUENBERG KELLY DELLA Attorneys for Plaintiffs 700 Koehler Avenue Ronkonkoma, New York 11779 631.737.4110 File No.: 210122 11 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ECF ---------------------------------------------------------------------X MARY LOUISE BALSAMO and ROBERT GEST, Index No.: 606267/2021 Plaintiff, COMBINED DEMANDS -against- NEXUS ENTERPRISES, INC. DBA SOUTHAMPTON SUNOCO and SUNOCO GAS STATION, Defendants. ---------------------------------------------------------------------X C O U N S E L: PLEASE TAKE NOTICE, that defendant, NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO, by and through its attorneys, LEWIS JOHS AVALLONE AVILES, LLP, pursuant to New York Civil Practice Law and Rules ("CPLR"), hereby demands that plaintiff serve upon the office of the undersigned, the following: COMBINED DEMANDS PLEASE TAKE NOTICE, that the undersigned attorneys demand that you furnish the following items within twenty (20) days of receipt of this notice: 1. Pursuant to the applicable Rules of the Appellate Division of the Supreme Court concerning the exchange of medical information, copies of all medical records, reports, diagnoses, prognoses, as well as hospital records, x-rays, charts and duly executed authorizations to examine any and all of the aforementioned. 2. Pursuant to Section 3101(e) of the CPLR, a copy of any statement by or on behalf of defendant. 3. The names and addresses of each person known or claimed by you or any party you represent in this action to be a witness to: a. the occurrence alleged in the complaint in this action; or b. any acts, omissions, or conditions which allegedly caused the occurrence alleged in the complaint; or 12 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 c. any actual notice allegedly given to defendants herein of any condition which allegedly caused the occurrence alleged in the complaint; or d. the nature and duration of any alleged condition which allegedly caused the occurrence alleged in the complaint. 4. Pursuant to Rule 3120 of the CPLR, a complete copy of the plaintiff's employment and/or school records for the two years prior and subsequent to the alleged occurrence, and a duly executed authorization allowing the obtaining of the aforementioned. 5. Pursuant to Rule 3120 of the CPLR, photographs of the scene of the alleged occurrence and/or any defective and/or dangerous condition claimed to have existed thereat, and photographs of plaintiff's injuries. 6. Pursuant to Rule 2103(e) of the CPLR, the names and addresses of each party and attorney appearing in this action. All authorizations for the release of medical records must be in the proper format and be in full compliance with the requirements of the Health Insurance Portability and Accountability Act (HIPAA). PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the event any of the above items is obtained after service hereof, it is to be immediately furnished to this office. PLEASE TAKE FURTHER NOTICE, that upon your failure to produce, identify, state and/or provide the aforesaid items at the time and place required in this request, a motion will be made for the appropriate relief to this Court. DEMAND FOR DISCLOSURE AS TO MEDICARE, SDI/SSI AND/OR MEDICAID INFORMATION PLEASE TAKE NOTICE, that pursuant to the requirements of Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (42 U.S.C. 1395y(b)(7) and (b)(8)), defendant, NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO, demands that 13 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 plaintiffs provide the following information within twenty (20) days of the date hereof: a) The plaintiff’s date of birth and gender; b) The plaintiff’s social security number; c) Whether plaintiff has applied for or is receiving Medicare or Medicaid benefits and the address of the office handling the plaintiff’s Medicare or Medicaid file; (1) If plaintiff is receiving Medicare benefits through a Medicare Advantage Plan, state the name of the entity issuing the Plan an and the address of the office handling the plaintiff’s Medicare Advantage Plan benefits; d) Whether plaintiff has applied for or is receiving SSI or SSDI benefits in connection with any accident or illness which is the subject of this litigation, and include the address of the office handling the plaintiff's SSI and/or SSDI file; e) Whether plaintiff has been diagnosed with or is being treated for end-stage renal failure attributable or related to any accident or illness which is the subject of this litigation; f) Whether any application for said Medicare, Medicaid, SSI, SSDI and/or Medicare Advantage Plan benefits has been denied; g) Whether plaintiff has appealed or intends to appeal from any denial of said Medicare, Medicaid, SSI, SSDI or Medicare Advantage Plan benefits; h) The identification number or beneficiary number (HICN) issued to the plaintiff for Medicare or other federal governmental benefits; (1) If plaintiff has a Medicare Advantage Plan, state the identification number or beneficiary number issued to the plaintiff for benefits; i) State whether Medicare and/or Medicaid and/or a Medicare Advantage Plan has a lien and if so, state the amount; j) Provide copies of documents, records, memoranda, notes, etc. in plaintiff’s possession pertaining to receipt of Medicare, Social Security Disability, Medicaid and/or Medicare Advantage Plan benefits, including copies of all documents provided to or received 14 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 from Medicare, Social Security Disability, Medicaid and/or Medicare Advantage Plan administrators; k) Provide copies of any claim summary documents from CMS, Medicare, Medicaid and/or a Medicare Advantage Plan; l) If plaintiff has not received Medicare, Social Security Disability and/or Medicaid benefits in the past or is not receiving Medicare, Social Security Disability and/or Medicaid benefits now, state whether plaintiff is eligible to receive said benefits; m) If plaintiff was receiving Medicare, Social Security Disability Medicaid and/or Medicare Advantage Plan benefits and is now deceased, please provide the following: 1. Relationship of the administrator of the estate to the decedent; 2. Name and address of administrator; 3. Telephone number and address of administrator; 4. Social Security number of Administrator; 5. An authorization to examine and copy deceased’s Medicare, Social Security Disability, Medicaid and/or Medicare Advantage Plan records. PLEASE TAKE FURTHER NOTICE, that defendants, NEXUS ENTERPRISES, INC. d/b/a SOUTHAMPTON SUNOCO, demands that plaintiff furnish the following within twenty (20) days of the date hereof: 1. HIPAA compliant authorizations bearing the date of birth and Social Security or HICN number permitting the undersigned to obtain copies of all documents contained in the files and records of the United States Department of Health and Human Services, or any attorney or agent acting on behalf of plaintiff relating, to plaintiff’s application for and receipt of: Medicare or Medicare benefits, and/or Supplemental Security Income (SSI) or Social Security Disability Income (SSDI) benefits, including documents relating to the denial of any of said benefits and any appeal taken from the denial of any of said benefits. 15 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 2. If plaintiff has a Medicare Advantage Plan, HIPAA compliant authorizations bearing the date of birth and Social Security and Identification numbers permitting the undersigned to obtain copies of all documents contained in the files and records of the Medicare Advantage Plan, or any attorney or agent acting on behalf of plaintiff relating, to plaintiff’s application for and receipt of Medicare Advantage Plan benefits, including documents relating to the denial of any of said benefits and any appeal taken from the denial of any of said benefits. All authorizations for the release of medical records must be in the proper format, in full compliance with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) and contain the following statement: "this authorization will remain in effect up to the conclusion of my court case." PLEASE TAKE FURTHER NOTICE, that the foregoing are continuing demands. In the event that any of the above items are obtained or received after service of these demands, supplemental responses and/or authorizations should be furnished to the undersigned. PLEASE TAKE FURTHER NOTICE, that upon your failure to comply with the foregoing demands an application will be made to the court for appropriate relief. DEMAND FOR EMPLOYMENT and TAX INFORMATION PLEASE TAKE NOTICE, that pursuant to the applicable Rules, you are required to serve the following within thirty (30) days after receipt of this demand: (1) Duly acknowledged and written authorizations directed to the appropriate party/business/employer of the plaintiff to allow the defendant to obtain the employment records compiled on the plaintiff, for the time period from one year prior to the date of the occurrence in question, through the present; (2) Duly acknowledged and written authorizations directed to all previous employer(s) of plaintiff to allow defendant to obtain plaintiff’s employment record(s) for the past three years; 16 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 (3) Duly executed and acknowledged written authorizations to allow the defendant to obtain from the appropriate agencies the complete file compiled in connection with any Workers'/ Workmen's Compensation claim filed by the plaintiff based on injuries allegedly caused by, or exacerbated by, the occurrence described in the complaint; (4) Dates of any prior applications for Workers'/Workmen's Compensation filed by plaintiff along with the applicable Workers'/Workmen's Compensation claim or file numbers and the names and addresses of plaintiff’s employer(s) against whom such claims were filed. If no such claims have been made by plaintiff, so state in a sworn reply; and (5) Federal income tax returns and a duly executed Department of the Treasury, Internal Revenue Service Form 4506, including the plaintiff’s social security number, permitting the undersigned attorneys to obtain the plaintiff’s federal income tax returns for the years 2015 to present. PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the event any of the above items is obtained after service hereof, it is to be immediately furnished to this office. PLEASE TAKE FURTHER NOTICE, that upon your failure to produce, identify, state and/or provide the aforesaid items at the time and place required in this request, a motion will be made for the appropriate relief to this Court. DEMAND FOR NAMES AND ADDRESSES OF ALL WITNESSES PLEASE TAKE NOTICE, that each defendant we represent in this action demands that you set forth in writing, under oath, and serve upon us within ten (10) days of this date: 1. The names and addresses of each person known or claimed by you or any party you represent in this action to be witnesses to: (a) The occurrence alleged in the complaint in this action; or, (b) Any acts, omissions, or conditions which allegedly caused the occurrence alleged in the complaint; or, (c) Any actual notice allegedly given to defendants herein of any condition which allegedly caused the occurrence alleged in the complaint; or 17 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 (d) The nature and duration of any alleged condition which allegedly caused the occurrence alleged in the complaint. PLEASE TAKE FURTHER NOTICE, that appropriate motions will be made at the trial of this action to preclude the testimony of any witness to the above-described facts and circumstances who is not identified by you in response to this notice. DEMAND TO PRESERVE AND MAINTAIN PLEASE TAKE NOTICE, that you are hereby directed to preserve and maintain, during the pendency of this action, without alterations: Clothing worn at time of occurrence. PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the event any of the above items are obtained after service hereof, they are to be immediately furnished to this office. PLEASE TAKE FURTHER NOTICE, that upon your failure to comply with the requests of this notice, a motion will be made for the appropriate relief to this Court. DEMAND FOR MEDICAL INFORMATION PLEASE TAKE NOTICE, that pursuant to the applicable Rules you are required to serve within twenty (20) days after receipt of this demand the following: 1. The names and addresses of all physicians or other health-care providers of every description who have consulted, examined or treated the plaintiff for each of the conditions allegedly caused by, or exacerbated by, the occurrence described in the complaint, including the date of such treatment or examination. 2. Duly executed and acknowledged written authorizations directed to any hospital, clinic or other health-care facility in which the injured plaintiff herein was treated at or confined to due to the occurrence set forth in the complaint so as to permit the securing of a copy of the entire hospital record or records including x-rays and technicians' reports. 18 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 3. Duly executed and acknowledged written authorizations to allow defendants to obtain the complete office medical records relating to plaintiff, of each health-care provider identified in item "1." above. 4. Copies of all medical reports received from health-care providers identified in item "1." above. These shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those x-rays and technicians' reports which will be offered. 5. Duly executed and acknowledged written authorizations to allow defendants to obtain complete pharmacy or drug store records with respect to any drugs prescribed for plaintiff from one (1) year prior to the occurrence described in the complaint to the present. All authorizations for the release of medical records must be in the proper format, in full compliance with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) and contain the following statement: "this authorization will remain in effect up to the conclusion of my court case." PLEASE TAKE FURTHER NOTICE, that the within is a continuing request. In the event any of the above items are obtained after service hereof, they are to be immediately furnished to this office. PLEASE TAKE FURTHER NOTICE, that upon your failure to comply herewith, the plaintiff herein will be precluded at the trial of this action from offering any evidence of the conditions described in the reports or records demanded or offering in evidence any part of the hospital records, medical records, x-ray reports or reports of other technicians not made available pursuant to this Rule, nor will the Court hear the testimony of any physicians whose medical reports have not been served pursuant to the aforesaid demand. REQUEST FOR EXPERT DISCOVERY PLEASE TAKE NOTICE, that pursuant to CPLR section 3101(d), you are hereby directed to identify, state and provide, at the offices of LEWIS JOHS AVALLONE AVILES, 19 of 27 FILED: SUFFOLK COUNTY CLERK 05/11/2021 02:55 PM INDEX NO. 606267/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/11/2021 LLP, One CA Plaza, Suite 225, Islandia, New York 11749 within twenty days of receipt of this notice: (1) the name and address of each person whom you will call as an expert witness at trial; (2) the qualifications of each person whom you intend to call as an expert witness at trial; (3) the subject matter in reasonable detail upon which the expert is expected to testify; (4) a statement of the facts and opinions upon which the expert is expected to testify; (5) a detailed summary of those facts and opinions; and (6) the resume and curriculum vitae of each expert upon whose testimony you will rely at trial. PLEASE TAKE FURTHER NOTICE, that the within is a continuing demand. In the event any of the above items is obtained after service hereof, it is to be immediately furnished to this office. PLEASE TAKE FURTHER NOTICE, that upon your failure to produce, identify, state and/or provide the aforesaid items at the time and place required in this request, a motion will be made for the appropriate relief to this Court. NOTICE TO PRODUCE PURSUANT TO CPLR 3101(e) PLEASE TAKE NOTICE, that the answering defendant represented by the undersigned demand that you produce, pursuant to CPLR 3101(e) and 3120, at the offices of LEWIS JOHS AVALLONE AVILES, LLP, One CA Plaza, Suite 225, Islandia, New York 11749 within twenty (20) days of receipt of this notice: 1. Any statement, signed or unsigned, or copy of any recorded statement or