Defendant, Imperial Woodpecker, LLC, by its attorneys, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK, answers the

Transcription

1 FILED: NEW YORK COUNTY CLERK 10/26/ :33 AM INDEX NO /2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/26/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA BROOKS, Index No.: /2016 (ECF) Plaintiff, v. TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC, Defendants. TRILOKA INC., VERIFIED AMENDED ANSWER TO AMENDED COMPLAINT Index No.: Third-Party Plaintiff, v. IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC AND ELIZABETH BEER, Third-Party Defendants. 2 BIS NYC LLC Index No.: C'H'C'M' LLC, Second Third-Party Plaintiff, v. Second Third-Party Defendant, Defendant, Imperial Woodpecker, LLC, by its attorneys, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK, answers the Amended Complaint of the Plaintiffs by stating as follows: 1. Denies, upon information and belief, the allegations of paragraphs 43, 44, 44, 45, 46, 47, 48, 49, 50 and of 39

2 2. Denies, upon information and belief, the allegations of paragraphs 18 and 42 and respectfully refers all questions of law to this Honorable Court. 3. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 11, 12, 14, 15, 16, 17 and 30 and respectfully refers all questions of law to this Honorable Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 5. The injuries alleged to have been suffered by the Plaintiff were caused, in whole or part, by the conduct of Plaintiff. Plaintiff claims therefore are barred or diminished in the proportion that such culpable conduct of Plaintiffs bears to the total culpable conduct causing the damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 6. The injuries and damages alleged in the Amended Complaint were caused or contributed to by the culpable conduct including contributory negligence, assumption of the risk and/or product misuse of persons over whom this Defendant had no authority or control. 2 of 39

3 AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 7. Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiffs for non-economic loss shall not exceed the equitable share of this Defendant determined in accordance with the relative culpability of each person/party causing or contributing to the total liability for non-economic loss. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 8. Upon information and belief the causes of action alleged in the Amended Complaint of the Plaintiff fail to properly state, specify or allege a cause of action on which relief can be granted as a matter of law. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 9. The injuries and damages alleged in the Amended Complaint of the Plaintiff were caused or contributed to by Plaintiff culpable conduct in assuming the risk under the conditions and circumstances existing. AS AND FOR A CROSS-CLAIM FOR CONTRIBUTION AGAINST: TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC 10. If any plaintiff recovers against this Defendant, then this Defendant will be entitled to an apportionment of responsibility for damages between and amongst the parties of this action and will be 3 of 39

4 entitled to recover from each other party for its proportional share commensurate with any judgment which may be awarded to the plaintiff. AS AND FOR A CROSS-CLAIM FOR COMMON LAW INDEMNITY AGAINST: TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC 11. If any plaintiff recovers against this Defendant, then this Defendant will be entitled to be indemnified and to recover the full amount of any judgment from the Triloka Inc., Imperial Woodpecker, LLC, 2 BIS NYC LLC, Elizabeth Beer, and C'H'C'M' LLC. AS AND FOR A CROSS-CLAIM FOR CONTRACTUAL INDEMNITY AGAINST: TRILOKA INC. 12. At the time of the accident alleged in the complaint a contract was in effect between this Defendant and Triloka Inc. 13. The contract required Triloka Inc. to indemnify and, or hold harmless this Defendant for all claims, losses, liability and damages for any injury to any person. 14. Triloka Inc. breached the contract and is obligated to indemnify this Defendant for any judgment or settlement obtained by any plaintiff in this action including defense costs and attorneys' fees. WHEREFORE, this Defendant demands judgment dismissing the Complaint, together with costs and disbursements, and in the event any judgment or settlement is recovered herein against this Defendant, then this Defendant further demands that such 4 of 39

5 judgment be reduced by the amount which is proportionate to the degree of culpability of any plaintiff, and this Defendant further demands judgment against each other party on the respective cross-claims and/or counterclaims. DATED: October 24, 2016 New York, New York Yours, etc. EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for Defendant IMPERIAL WOODPECKER, LLC Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) By: Christopher Yapchanyk 5 of 39

6 To: Bader & Yakaitis, LLP. Attorneys for Plaintiff Christina Brooks 1430 Broadway, Suite 1802 New York, New York Law Office of James J. Toomey Attorneys for Defendant and Third-Party Plaintiff Triloka Inc. 485 Lexington Avenue, 7th Floor New York, New York Vaslas, Lepowsky, Hauss & Danke, LLP. Attorneys for Def./3rd pty def./2nd-3rd pty TT 2 BIS NYC LLC 1430 Broadway, Suite 1802 New York, New York Burns & Nallan Attorneys for Defendant/Third-Party Defendant Elizabeth Beer 1133 Westchester Avenue, Suite N228 White Plains, New York C'H'C'M' LLC C/O United States Corporation Agents, Inc th Avenue, Suite 202 Brooklyn, New York of 39

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA BROOKS, Index No.: /2016 (ECF) v. Plaintiff, VERIFICATION TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC, Defendants. TRILOKA INC., Index No.: Third-Party Plaintiff, v. IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC AND ELIZABETH BEER, Third-Party Defendants. 2 BIS NYC LLC Index No.: Second Third-Party Plaintiff, v. C'H'C'M' LLC, Second Third-Party Defendant, Christopher M. Yapchanyk, an attorney duly admitted to practice law before the Courts of New York State, hereby affirms under the penalties of perjury pursuant to CPLR 2106: 7 of 39

8 I am a member of the firm of EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK, attorneys for the Defendant, Imperial Woodpecker, LLC. I submit the following statement upon information and belief, based upon an inspection of the records maintained by this office, which records I believe to be true. That I have read the contents of the attached VERIFIED AMENDED ANSWER TO AMENDED COMPLAINT for Defendant Imperial Woodpecker, LLC and believe it to be true based on information available or maintained by this firm. I make this verification because this Defendant is either a foreign corporation or is not located in New York County. DATED: October 24, 2016 New York, New York Christopher Yapchanyk 8 of 39

9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA BROOKS, Index No.: /2016 (ECF) v. Plaintiff, NOTICE PURSUANT TO CPLR 2103 TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC, Defendants. TRILOKA INC., Index No.: Third-Party Plaintiff, v. IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC AND ELIZABETH BEER, Third-Party Defendants. 2 BIS NYC LLC Index No.: Second Third-Party Plaintiff, v. C'H'C'M' LLC, Second Third-Party Defendant, PLEASE TAKE NOTICE that Defendant Imperial Woodpecker, LLC, by its attorneys, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK, hereby serve(s) Notice upon you pursuant to Rule 2103 of the Civil Practice Law and Rules that it expressly rejects service of papers in this matter upon them by electronic means. 9 of 39

10 PLEASE TAKE FURTHER NOTICE that waiver of the foregoing may only be affected by express prior written consent to such service by EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK and by placement thereby of EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK electronic communication number in the address block of papers filed with the Court. DATED: October 24, 2016 New York, New York Yours, etc. EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for Defendant IMPERIAL WOODPECKER, LLC Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) By: Christopher Yapchanyk 10 of 39

11 To: Bader & Yakaitis, LLP. Attorneys for Plaintiff Christina Brooks 1430 Broadway, Suite 1802 New York, New York Law Office of James J. Toomey Attorneys for Defendant and Third-Party Plaintiff Triloka Inc. 485 Lexington Avenue, 7th Floor New York, New York Vaslas, Lepowsky, Hauss & Danke, LLP. Attorneys for Def./3rd pty def./2nd-3rd pty TT 2 BIS NYC LLC 1430 Broadway, Suite 1802 New York, New York Burns & Nallan Attorneys for Defendant/Third-Party Defendant Elizabeth Beer 1133 Westchester Avenue, Suite N228 White Plains, New York C'H'C'M' LLC C/O United States Corporation Agents, Inc th Avenue, Suite 202 Brooklyn, New York of 39

12 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA BROOKS, v. Plaintiff, TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC, Defendants. TRILOKA INC., Index No.: /2016 (ECF) COMBINED DISCOVERY DEMANDS AND NOTICE OF DEPOSITION Index No.: Third-Party Plaintiff, v. IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC AND ELIZABETH BEER, Third-Party Defendants. 2 BIS NYC LLC Index No.: Second Third-Party Plaintiff, v. C'H'C'M' LLC, Second Third-Party Defendant, PLEASE TAKE NOTICE, that Defendant Imperial Woodpecker, LLC, by its attorneys, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK, demands that each adverse party afford us the disclosure which this notice and demand specifies: 12 of 39

13 DEPOSITIONS OF ADVERSE PARTIES UPON ORAL EXAMINATION A. Each adverse party is to appear for deposition upon oral examination pursuant to CPLR 3107: (1) At this date and time: November 28, 2016 at 10:00 am (2) At this place: Eustace, Marquez, Epstein, Prezioso & Yapchanyk 55 Water Street, 29th Floor New York, New York B. Pursuant to CPLR 3106(d) we designate the following as the identity, description or title of the particular officer, director, member, or employee of the adverse party specified whose deposition we desire to take: ALL PARTIES C. Each deposition witness thus examined is to produce at such time and place, pursuant to CPLR 3111, all books, papers, and other things which are relevant to the issues in the action and within that adverse party's possession, custody, or control to be marked as exhibits, and used on the examination. PARTY STATEMENTS Each adverse party is to serve on us, pursuant to CPLR 3101(e) and CPLR 3120, within thirty (30) days from the service of this Demand, a complete and legible copy of any statement made by or taken from any individual party or any officer, agent, or employee of said party. 13 of 39

14 INSURANCE POLICIES Each adverse party is to serve, pursuant to CPLR 3101(f) and CPLR 3120, within thirty (30) days from the service of this Demand, a complete and legible copy of each primary or excess insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of any judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy any such judgment. ACCIDENT REPORTS Each adverse party is to serve, pursuant to CPLR 3101(g) and CPLR 3120, within thirty (30) days from service of this Demand, a complete and legible copy of every written report of the accident or other event alleged in the complaint prepared in the regular course of that adverse party's business operations or practices. PHOTOGRAPHS AND VIDEOTAPES Each adverse party is to serve within thirty (30) days from the service of this Demand, complete and legible photographic or videotape reproductions of any and all photographs, motion pictures, maps, drawings, diagrams, measurements, surveys of the scene of the accident or equipment or instrumentality involved in the action or photographs of persons or vehicles involved (if applicable) made either before, after or at the time of the events in question, including any photographs or videotapes made 14 of 39

15 of the plaintiff at any time since the incident referred to in the Complaint. WITNESSES Each adverse party is to serve within thirty (30) days from the service of this Demand, the name and address of each witness to any of the following: 1. The accident, occurrence or any other event set forth in the complaint. 2. Any fact tending to prove actual or constructive notice of any condition which may give rise to the liability of any person, whether or not a party, for any damages alleged in this action. 3. Any admission, statement, writing or act of our client. EXPERT WITNESS MATERIAL Each adverse party is to serve, pursuant to CPLR 3101(d)(1), within thirty (30) days from the service of this request, a statement specifying all of the following data as to each person whom that adverse party expects to call as an expert witness at trial: A. The identity of each expert; B. The subject matter on which each expert is expected to testify, disclosed in reasonable detail; C. The substance of the facts and opinions on which each expert is expected to testify; 15 of 39

16 D. The qualifications of each expert; and E. A summary of the grounds for each expert's opinion. PLEASE TAKE FURTHER NOTICE that we will object at trial to the offer of any proof of an expert's qualifications which are different from or additional to those which the adverse party calling the expert had disclosed in reference to sub-paragraph D. COLLATERAL SOURCE INFORMATION Each plaintiff seeking to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss is to serve, pursuant to CPLR 4545(c), within thirty (30) days from the service of this Demand, a statement of all past and future cost and expense which has been or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance (except life insurance), social security, workers' compensation, or employee benefit programs. Each such statement is to set forth the name, address, and insurance policy (or other account) number of each collateral source payor; and, separately stated for each payor, a list specifying the date and amount of each payment and the name, address, and social security number or other taxpayer identification number of each payee. 16 of 39

17 PRODUCTION OF MEDICAL REPORTS AND AUTHORIZATIONS Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of this Demand: Medical Reports and Bills: Copies of the medical reports and bills of those health professionals who have previously treated or examined the plaintiff. Those reports 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 diagnostic tests and technicians' reports which will be offered at the trial. B. Medical Authorizations: Duly executed and acknowledged written medical authorizations, complying with the Health Insurance Portability and Accountability Act ( HIPAA ), 45 C.F.R (a), (using attached form) permitting all parties to obtain and make copies of the records and notes including any intake sheets, diagnostic tests, X-Rays, MRI's and cat scan films, of all treating and examining hospitals, physicians and other medical professionals. MEDICARE DOCUMENTS Plaintiff is to serve, pursuant to CPLR 3120(1)(i), within thirty (30) days from the service of this demand, a complete and legible copy of: 1. Plaintiff s Medicare Insurance Card 17 of 39

18 2. All Medicare statements of conditional payments for medical treatment arising out of the incident which is the subject of this lawsuit. 3. Plaintiff s Social Security card. 4. All documents pertaining to Medicare benefits received for treatment provided to plaintiff for injuries and illness arising out of the incident which is the subject of this lawsuit. PRODUCTION OF RECORDS AND AUTHORIZATIONS Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of this demand duly executed, fully addressed and acknowledged written authorizations permitting all parties to obtain and make copies of each of the following: A. All workers' compensation records and reports of hearings pertaining to the incident alleged to have occurred in plaintiff's complaint maintained by the workers' compensation Board and workers' compensation carrier. B. All records of present and past employment of plaintiff. C. All records in the no-fault file of any carrier issuing benefits to the plaintiff arising out of the incident alleged to have occurred in the complaint. 18 of 39

19 D. All records of the Internal Revenue Service filed by the plaintiff for the calendar year prior to the date of the incident alleged in the complaint and for the two subsequent years. Please use IRS form 4506 and attach 2 copies of identification of the plaintiff, with photo and signature as required by the IRS. E. All records of schools attended by plaintiff. F. All records of each collateral source that has provided and/or in the future will be providing any payment or reimbursement for expenses incurred because of this incident. PHYSICAL OR MENTAL EXAMINATION Defendant hereby demands, pursuant to CPLR 3121, that plaintiff appear for and submit to physical, mental and blood examination(s), for all claimed injuries, by a doctor(s) of defendant's designation-specialties to be determined. This examination(s) shall to be conducted in said doctor (s ) office(s) and at a reasonable time following plaintiff s deposition, but in no event less than 20 days after the service of this Notice. NAMES AND ADDRESSES OF ATTORNEYS Each adverse party is to serve on us, within thirty (30) days from service of this Demand, the names and addresses of all 19 of 39

20 attorneys having appeared in this action on behalf of any adverse party. PLEASE TAKE FURTHER NOTICE THAT THESE ARE CONTINUING DEMANDS, and that each demand requires that an adverse party who acquires more than thirty (30) days from the service of this demand any document, information, or thing (including the opinion of any person whom the adverse party expects to call as an expert witness at trial) which is responsive to any of the above demands, is to give us prompt written advice to that effect; and, within thirty (30) days (but no less than sixty (60) days before trial), is to serve all such information on us and allow us to inspect, copy, test, and photograph each such document or thing. PLEASE TAKE FURTHER NOTICE that we will object at trial, and move to preclude as to any adverse party who does not timely identify any witness, serve any report, or produce any document, information, or thing which is responsive to a discovery demand set forth in any of the ensuing paragraphs: A. From calling any event or notice witness not identified to us or medical expert whose reports have not been served on us; B. From calling any other expert witness whose identity, qualifications, and expected fact and opinion testimony 20 of 39

21 (together with a summary of the grounds for each such opinion) have not been served on us; C. From putting in evidence any exhibit not served on us or produced for us to discover, inspect, copy, and photograph in accordance with any of the ensuing paragraphs; and D. From offering any other proof not timely disclosed pursuant to a court order in this action. DATED: October 24, 2016 New York, New York Yours, etc. EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for Defendant IMPERIAL WOODPECKER, LLC Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) By: Christopher Yapchanyk 21 of 39

22 To: Bader & Yakaitis, LLP. Attorneys for Plaintiff Christina Brooks 1430 Broadway, Suite 1802 New York, New York Law Office of James J. Toomey Attorneys for Defendant and Third-Party Plaintiff Triloka Inc. 485 Lexington Avenue, 7th Floor New York, New York Vaslas, Lepowsky, Hauss & Danke, LLP. Attorneys for Def./3rd pty def./2nd-3rd pty TT 2 BIS NYC LLC 1430 Broadway, Suite 1802 New York, New York Burns & Nallan Attorneys for Defendant/Third-Party Defendant Elizabeth Beer 1133 Westchester Avenue, Suite N228 White Plains, New York C'H'C'M' LLC C/O United States Corporation Agents, Inc th Avenue, Suite 202 Brooklyn, New York of 39

23 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA BROOKS, Index No.: /2016 (ECF) v. Plaintiff, DEMAND FOR VERIFIED BILL OF PARTICULARS TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC, Defendants. TRILOKA INC., Index No.: Third-Party Plaintiff, v. IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC AND ELIZABETH BEER, Third-Party Defendants. 2 BIS NYC LLC Index No.: Second Third-Party Plaintiff, v. C'H'C'M' LLC, Second Third-Party Defendant, PLEASE TAKE NOTICE, Defendant, Imperial Woodpecker, LLC, by its attorneys, Eustace, Marquez, Epstein, Prezioso & Yapchanyk, demands pursuant to CPLR , that each Plaintiff furnish, within thirty (30) days of the date of this demand a Verified Bill of the following particulars: 23 of 39

24 A. Liability Issues: 1. The legal name, address, date of birth and social security number of each plaintiff, 2. The date and approximate time of day of the alleged accident. 3. The location of the alleged accident. 4. (a) A statement of the acts or omissions constituting any negligence or other culpable conduct claimed against this defendant. (b) If breach of warranty is alleged, state whether said warranty was: i. expressed or implied; ii. oral or written; iii. if written, set forth a copy thereof; and iv. if oral, state by whom and to whom the alleged warranty was made, specifying the time, place and persons in sufficient detail to permit identification. 5. If actual notice is claimed, a statement of when, by whom and to whom actual notice was given and whether such notice was in writing; also, if such notice was in writing, the statement is to include the name and address of anyone who has any copy of it. 24 of 39

25 6. If constructive notice is claimed, a statement of how long any allegedly dangerous or defective condition existed before the occurrence and who has first-hand knowledge of any such facts. 7. If any violation is claimed, a citation to each statute, ordinance, regulation, and other federal, state, or local rule which it is claimed that any defendant we represent has violated. 8. If any prior similar occurrence is claimed, a statement of its date, approximate time of day and approximate location. 9. If any subsequent repair or other remedial action is claimed, a statement of its date, approximate time of day, approximate location, who made such repair or took such other action and who has first-hand knowledge of either. B. Damage Issues: Personal Injury: 10. A statement of the injuries claimed to have been sustained by plaintiff as a result of the accident and a description of any injuries claimed to be permanent. 11. In any action under Ins. Law, 5104(a), for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, in what respect and to what extent any plaintiff has sustained: 25 of 39

26 (a) serious injury, as defined by Insurance Law,5102(b); (b) economic loss greater than basic economic loss, as defined by Insurance Law, 5102 (a). 12. If plaintiff was treated at a hospital or hospitals, the name and address of each hospital and the exact dates of admission or treatment at each. 13. The name and address of all medical professionals that treated or examined plaintiffs with regard to the injuries claimed, and the exact dates of treatment received from each. 14. If loss of earnings is claimed, the name and address of plaintiff's employer, the nature of plaintiff's employment, and the exact dates that the plaintiff was incapacitated from employment. 15. A statement of the exact dates that each plaintiff was: (a) hospitalized; (b) confined to bed; (c) confined to house; 16. Total amounts each plaintiff claims as special damages for: (a) physicians' services; (b) medical supplies 26 of 39

27 (c) loss of earnings to date, with the name(s) and address(es) of plaintiff's employer(s); (d) loss of earnings in the future, stating how the figure was calculated; (e) hospital expenses; (f) nurses' services; (g) any other special damages claimed. 17. If any plaintiff claims loss of services, a statement of all such losses claimed, including the nature and extent of the lost services and all special damages claimed. 18. The name, address and amounts received from each collateral source that has paid or reimbursed plaintiff for any of the expenses incurred as a result of this accident. DAMAGE ISSUES: MEDICARE 19. Set forth plaintiff s Medicare Health Insurance number. 20. State whether plaintiff is receiving Medicare benefits. 21. In the event that plaintiff is not receiving any Medicare benefits, state whether plaintiff has received Medicare benefits in the past. 22. State when plaintiff first received any Medicare benefits. 27 of 39

28 23. In the event that plaintiff received Medicare benefits in the past, state when the Medicare benefits ceased. 24. State whether plaintiff received any Medicare benefits due to the injuries or illness arising out of the incident which is the subject matter of this lawsuit. 25. In the event that plaintiff has received Medicare benefits, due to treatment provided for injuries or illness arising out of the incident, which is the subject matter of this lawsuit, please state the amount received to date. 26. Identify any documents received pertaining to any Medicare benefits received for the treatment provided for the injuries or illness arising out of the incident, which is the subject matter of this lawsuit. 27. State the name, address and policy number of any additional medical insurance. 28 of 39

29 has used. 28. State all names that plaintiff has been known by or DATED: October 24, 2016 New York, New York Yours, etc. EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for Defendant IMPERIAL WOODPECKER, LLC Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) By: Christopher Yapchanyk 29 of 39

30 To: Bader & Yakaitis, LLP. Attorneys for Plaintiff Christina Brooks 1430 Broadway, Suite 1802 New York, New York Law Office of James J. Toomey Attorneys for Defendant and Third-Party Plaintiff Triloka Inc. 485 Lexington Avenue, 7th Floor New York, New York Vaslas, Lepowsky, Hauss & Danke, LLP. Attorneys for Def./3rd pty def./2nd-3rd pty TT 2 BIS NYC LLC 1430 Broadway, Suite 1802 New York, New York Burns & Nallan Attorneys for Defendant/Third-Party Defendant Elizabeth Beer 1133 Westchester Avenue, Suite N228 White Plains, New York C'H'C'M' LLC C/O United States Corporation Agents, Inc th Avenue, Suite 202 Brooklyn, New York of 39

31 Index No.: /2016 (ECF) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA BROOKS, -against- Plaintiff, TRILOKA INC., IMPERIAL WOODPECKER, LLC, 2 BIS NYC LLC, ELIZABETH BEER, AND C'H'C'M' LLC, Defendants. VERIFIED AMENDED ANSWER TO AMENDED COMPLAINT, NOTICE PURSUANT TO CPLR 2103, DEMAND FOR VERIFIED BILL OF PARTICULARS AND COMBINED DISCOVERY DEMANDS AND NOTICE OF DEPOSITION EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for Defendant/Third-Party Defendant Imperial Woodpecker, LLC Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212) of 39

32 EDWARD M. EUSTACE JOHN R. MARQUEZ RHONDA L. EPSTEIN RICHARD C. PREZIOSO DAVID S. KASDAN CHRISTOPHER M. YAPCHNAYK GREGORY WALTHALL JEFFREY D. GREENBERG PAUL A. TUMBLESON EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK ATTORNEYS AT LAW 55 Water Street 29 th Floor New York, New York (212) FAX (212) Not a Partnership or Professional Corporation REGINE DELY-LAZARD LAUREN S. YANG RICHARD J. FREIRE MAUREEN E. PEKNIC JOHN A. SERIO KIMBERLY K. BROWN GREGORY BENNETT TIMOTHY S. CARR October 24, 2016 Bader & Yakaitis, LLP Broadway, Suite 1802 New York, New York Re: Brooks v. Triloka Inc., Imperial Woodpecker, LLC Our File Number: Date of Loss: 03/02/2015 Dear Counsel: Please be advised that effective April 14, 2003 the Health Insurance Portability and Accountability Act went into effect. As such, an appropriate authorization complying with the HIPAA regulations must be properly completed and signed by the Plaintiff in this action. For your reference, enclosed please find a sample HIPAA Authorization. The new HIPAA authorization requires the following items: 1. A description of the information to be used or disclosed. 2. The name of the Requestor or the covered entity or person whom the medical facility can make the disclosure to. 3. The name of the medical facility or individual authorized to make the disclosure. 32 of 39

33 4. An expiration date. 5. A statement of the patients right to revoke the authorization in writing. 6. A statement that informs the patient that the information used or disclosed pursuant to the authorization may be subject to redisclosure by the requestor and may no longer be protected by Federal or State Law. 7. Signature of the patient. 8. If the authorization is signed by a person other than the patient, a description of the patient s representative s authority (and verification of authority) to act on behalf of the patient. 9. The Date. 10. A statement that the medical facility will not withhold treatment or services based on whether or not the patient authorizes this request. We are requesting your compliance pursuant to the new HIPAA Authorization Requirements. Thank you for your cooperation and if you have any questions please contact our office. Very truly yours, CMY:aa Enc. Christopher Yapchanyk 33 of 39

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36 EDWARD M. EUSTACE JOHN R. MARQUEZ RHONDA L. EPSTEIN RICHARD C. PREZIOSO DAVID S. KASDAN CHRISTOPHER M. YAPCHANYK GREGORY WALTHALL JEFFREY D. GREENBERG PAUL A. TUMBLESON EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK ATTORNEYS AT LAW 55 Water Street 29 th Floor New York, New York (212) FAX (212) Not a Partnership or Professional Corporation REGINE DELY-LAZARD LAUREN S. YANG RICHARD J. FREIRE MAUREEN E. PEKNIC JOHN A. SERIO KIMBERLY K. BROWN GREGORY BENNETT TIMOTHY S. CARR October 24, 2016 Bader & Yakaitis, LLP Broadway, Suite 1802 New York, New York Re: Brooks v. Triloka Inc., Imperial Woodpecker, LLC Our File Number: Dear Counsel: Enclosed please find a copy of our responsive pleading to the above referenced complaint. Please ensure that Plaintiff places his/her initials in section 9A (all 3 choices) on all Medical authorizations & in section 6 for all IRS authorizations. Additionally, with the enforcement of the Medicare, Medicaid and SCHIP Extension Act of 2007, counsel is required to notify Medicare if the Plaintiff, is a beneficiary of any Medicare benefits. Therefore we have attached the Medicare Proof of Representation and the Medicare Consent to Release which we have completed in part. If your client is a Medicare beneficiary, please execute and have your client execute both documents and immediately submit them to: 36 of 39

37 Medicare Secondary Payer Recovery Contractor MSPRC Auto/Liability P.O. Box Oklahoma City, OK Fax: (406) We also request that you return a copy of the signed forms for our records. We are submitting these documents to you based upon the representation from Medicare that it will take 180 days for these documents to be processed. By submitting the Notice of Claim to Medicare now, we will be able to obtain the amount of the Medicare benefits received by the plaintiff(s). Without this information, a potential resolution of the case could be delayed. Thank you for your attention. Very truly yours, EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Christopher Yapchanyk CMY:aa Enc. 37 of 39

38 Proof of Representation The language below should be used when you, the Medicare beneficiary, want to inform the Centers for Medicare & Medicaid Services (CMS) that you have given another individual the authority to represent you and act on your behalf with respect to your claim for liability insurance, no-fault insurance or workers' compensation, including releasing identifiable health information or resolving any potential recovery claim that Medicare may have if there is a settlement, judgment, award or other payment. You are not required to use this model language, but proof of representation must include the information provided in this model language. Your representative must also sign that he/she has agreed to represent you. This model language also makes provisions for the information your representative must provide. Type of Medicare Beneficiary Representative (Check one below and then print the requested information): ( ) Individual other than an Attorney: Name: ( ) Attorney * Relationship to the Medicare Beneficiary: ( ) Guardian * Firm or Company Name: ( ) Conservator * Address: ( ) Power of Attorney * Telephone: * Note -- If you have an attorney, your attorney may be able to use his/her retainer agreement instead of this language. (If the beneficiary is incapacitated, his/her guardian, conservator, power of attorney etc. will need to submit documentation other than this model language.) Please visit for further instructions. Medicare Beneficiary Information and Signature/Date: Beneficiary's Name (please print exactly as shown on your Medicare card): Beneficiary's Health Insurance Claim Number (number on your Medicare card): Date of Illness/Injury for which the beneficiary has filed a liability insurance, no-fault insurance or workers' compensation claim: Beneficiary Signature: Date signed: Representative Signature/Date: Representative's Signature: Date signed: 38 of 39

39 Consent to Release The language below should be used when you, a Medicare beneficiary, want to authorize someone other than your attorney or other representative to receive information, including identifiable health information, from the Centers for Medicare & Medicaid Services (CMS) related to your liability insurance (including self-insurance), no-fault insurance or workers' compensation claim. I, (print your name exactly as shown on your Medicare card) hereby authorize the CMS, its agents and/or contractors to release, upon request, information related to my injury/illness and/or settlement for the specified date of injury/illness to the individual and/or entity listed below: CHECK ONLY ONE OF THE FOLLOWING TO INDICATE WHO MAY RECEIVE INFORMATION AND THEN PRINT THE REQUESTED INFORMATION: (If you intend to have your information released to more than one individual or entity, you must complete a separate release for each one.) ( ) Insurance Company ( ) Workers' Compensation Carrier ( X ) Attorney for Defendant Name of entity: Contact for above entity: Address: Eustace, Marquez, Epstein, Prezioso & Yapchanyk Christopher Yapchanyk 55 Water Street New York, New York Telephone: CHECK ONE OF THE FOLLOWING TO INDICATE HOW LONG CMS MAY RELEASE YOUR INFORMATION (The period you check will run from when you sign and date below.): ( ) One Year ( ) Two Years ( ) Other (Provide a specific period of time) I understand that I may revoke this "consent to release information" at any time, in writing. MEDICARE BENEFICIARY INFORMATION AND SIGNATURE: Beneficiary Signature: Date signed: Note: If the beneficiary is incapacitated, the submitter of this document will need to include documentation establishing the authority of the individual signing on the beneficiary's behalf. Please visit for further instructions. Medicare Health Insurance claim number (the number on your Medicare card): Date of Injury/Illness: 03/02/ of 39