FILED: BRONX COUNTY CLERK 05/01/ :50 PM INDEX NO /2015E NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/01/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, VERIFIED ANSWER TO SECOND AMENDED COMPLAINT THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. Defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., by its attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Second Amended Complaint of the plaintiff, EMMA VAIRO, upon information and belief, respectfully shows to this Court and alleges: 1. Defendant denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered "1," "2," "4," "5," "7," "10" and "13" of the plaintiff's second amended complaint. 2. Defendant denies each and every allegation contained in paragraphs numbered "6" and "8" of the plaintiff's second amended complaint and refers all questions of law and fact to this Honorable Court and the triers of fact at the trial of this action. 3. Defendant denies each and every allegation contained in paragraphs numbered "9," "11," "12," "14," "15," "16" and "17" of the plaintiff s second amended complaint. 1 of 54

2 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. If the plaintiff has been injured and damaged as alleged in plaintiff's second amended complaint, upon information and belief, such injuries and damages were caused, in whole or in part, or were contributed to by reason of the carelessness, negligence or want of care on the part of the plaintiff and not by any carelessness, negligence or want of care, on the part of the defendant, and if any carelessness, negligence or want of care other than that of the plaintiff caused or contributed to said alleged injuries and damages, it was the carelessness, negligence or want of care on the part of some other party or persons, firm or corporation, his, its or their agents, servants or employees over whom defendant had no control and for whose, carelessness, negligence or want of care defendant is not and was not responsible or liable. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 5. Whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the second amended complaint were in whole or in part the result of the plaintiff's own culpable conduct. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 6. That whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the second amended complaint were the result of the plaintiff's assumption of risk, in realizing and knowing the hazards and dangers thereof, and that plaintiff assumed all the risks necessarily incidental to such an undertaking. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 7. The plaintiffs second amended complaint fails to state a cause of action as against this answering defendant, 2 of 54

3 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 8. That plaintiffs second amended complaint fails to state a claim against this answering defendant upon which relief can be granted. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 9. If the liability of the answering defendant is found to be fifty (50%) percent or less of the total liability assigned to all persons liable, the liability of such defendant to the plaintiff for non-economic loss shall not exceed the defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss, pursuant to Article 16 of the C.P.L.R. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 10. If the liability of this answering defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed the defendant's equitable share, determined in accordance with the relative culpability of each person causing or contributing to the total liability for noneconomic loss. AS AND FOR AN EIGHT AFFIRMATIVE DEFENSE 11. Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiff 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 4545(a) of the CPLR. 3 of 54

4 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 plaintiff has received or shall receive from such collateral source. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 13. If plaintiff settles, discontinues and/or ends 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 AS AND FOR A TENTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to mitigate its damages, if any. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 15. Plaintiff assumed a known or an open or obvious risk for which plaintiff may not recover any damages, or plaintiffs damages must be reduced accordingly. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 16. Plaintiff is barred from recovering any damages, restitution or other monetary relief in connection with the second amended complaint because there is no causal connection between the alleged wrongdoing on the one hand, and any harm to plaintiff on the other hand. To the extent plaintiff suffered any alleged damages, losses, or injuries, such damages, losses or injuries were proximately caused by reasons beyond the control of defendant. 4 of 54

5 AS AND FOR A CROSS-CLAIM AGAINST THE CO- DEFENDANTS, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, ANTONETTE BELCORE, CATHERINE BELCORE, VINCENT DELLA CERRA, CATHERINE DELLA CERRA and VALI INDUSTRIES, INC., DEFENDANT, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., ALLEGES UPON INFORMATION AND BELIEF: 17. If the plaintiff recovers herein, it will be by virtue of the recklessness, carelessness and negligence of the co-defendants above-named, and not of the defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., for which this answering defendant demand judgment for contribution and/or indemnification according to the respective degrees of negligence to be ascertained, determined and adjudicated at trial. WHEREFORE, defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., demands judgment dismissing the plaintiffs second amended complaint herein, and further demands judgment over and against the co-defendants, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, ANTONETTE BELCORE, CATHERINE BELCORE, VINCENT DELLA CERRA, CATHERINE DELLA CERRA and VALI INDUSTRIES, INC., for the amount of any judgment obtained against this answering defendant on the basis of apportionment of responsibility in such amounts as a jury or Court may direct, together with the costs and disbursements of this action. Dated: Islandia, New York May 1, of 54

6 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York s malones a len isions.nun Bi. Stephen.. 3. Malones, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, Floor New York, New York crsabellau amnail.comil ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman@devittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey.yong@libertvmutual.corn Jeffrey.vonp@libertvmutual.com 6 of 54

7 KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

8 STATE OF NEW YORK ) COUNTY OF SUFFOLK ) : SS: STEPHEN J. MALONEY, JR., an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant is the attorney of record for the answering defendant in the within action. Affirmant has read the foregoing Verified Answer to Second Amended Complaint, knows the contents thereof, and that the same is true to affirmant's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and that those matters affirmant believes it to be true. This verification is made by affirmant and not by the answering defendant, because the answering defendant is not located in the county wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Statements of said answering defendant, office records, and affirmant's general investigation into the facts of this case. Dated: Islandia, New York May 1, 2018 Ste hen J. Malone, Jr. 8 of 54

9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, DEMAND FOR VERIFIED BILL OF PARTICULARS THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. X COUNSELLORS: 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 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 plaintiff claims 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, 9 of 54

10 (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; (8) The occupation of plaintiff at the time of the alleged incident and her respective average daily, weekly or monthly earnings; (9) The name and address of plaintiff's employer 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 claims to have been partially disabled; (11) State date of birth and social security number of plaintiff; (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: Physicians' (a) 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; 10 of 54

11 (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 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, 11 of 54

12 (c) The duration of condition with date of inception to date constructive notice will be claimed to have been given defendant. PLEASE TAKE FURTHER NOTICE that, in the event of plaintiff's failure to comply with the foregoing demand within twenty (20) days, the answering 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 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York psÿnaloney(iklewisichs.cpm By: /. Stephen1.. Maloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th Floor New York, New York of 54

13 DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman '.! devittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York JetTrey.yong.1cffre.von libertymutual.com KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E Plaintiff, COMBINED DEMANDS -against- THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., Defendants X â â â â â - â -- â â â â X COUNSELLORS: 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 second amended complaint in this action; or b. any acts, omissions, or conditions which allegedly caused the occurrence alleged in the second amended complaint; or c. any actual notice allegedly given to defendant herein of any condition which allegedly complaint; or caused the occurrence alleged in the second amended 14 of 54

15 d. the nature and duration of any alleged condition which allegedly caused the occurrence alleged in the second amended 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, 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 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. Dated: Islandia, New York May 1, of 54

16 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York sjmalone3 a len isjohs.com By: ~~ ~ Wc~(~~ Stephen J. Maloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York crsabellawnguail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellnmn a des inspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey.yongQlibertvmutual.corn.von Qlibertvmutual.com 16 of 54

17 KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

18 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, DEMAND FOR NAMES AND ADDRESSES OF ATTORNEYS THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. COUNSELLORS: PLEASE TAKE NOTICE that, pursuant to 2103(4)(e) of the Civil Practice Law and Rules, you are hereby required to provide the following within twenty (20) days of receipt of this demand: 1. A list of those attorneys who have appeared in this action, together with their addresses and the name of the party or parties for whom such attorney has appeared; and 2. Copies of any and all pleadings by such attorney(s). 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. 18 of 54

19 Dated: Islandia, New York May 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York Simaloney lewisjohs.com By: Stephen J. Maloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, Floor New York, New York crsabellaw gmail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th Floor New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellmanraldevittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey.vongQlibertvmutual.com 19 of 54

20 KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

21 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, NOTICE OF EXAMINATION BEFORE TRIAL THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. X COUNSELLORS : PLEASE TAKE NOTICE that, pursuant to 3101 and 3107 of the Civil Practice Law and Rules, the defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., will cause to be taken testimony of the plaintiff, EMMA VAIRO, and co-defendants, THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, ANTONETTE BELCORE, CATHERINE BELCORE, V1NCENT DELLA CERRA, CATHERINE DELLA CERRA and VALI INDUSTRIES, INC., 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 second amended 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. 21 of 54

22 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 on the 1st o' day of August, 2018, at 10:00 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 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York s maloney(allewisjohs.com 1 By: tephen J. Maloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York crsabellaw(alamail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.s selllllan~a'devi its «I llllalllaw.colll 22 of 54

23 LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York JefTrey.yong(allibertymutual.com. KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

24 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, DEMAND FOR NAMES AND ADDRESSES OF ALL WITNESSES THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. COUNSELLORS: 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 second amended complaint in this action; or, (b) Any acts, omissions, or conditions which allegedly caused the occurrence alleged in the second amended complaint; or, (c) Any actual notice allegedly given to defendant herein of any condition which allegedly caused the occurrence alleged in the second amended complaint; or (d) The nature and duration of any alleged condition which allegedly caused the occurrence alleged in the second amended 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. 24 of 54

25 Dated: Islandia, New York May 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York ' '' By: Stephen J.Wloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York crsabellaw gmail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th Floor New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman(dtdevittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York lel'l're.von ~'a>libcrtvmutual.com 25 of 54

26 KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

27 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, DEMAND FOR MEDICAL INFORMATION THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. X COUNSELLORS: 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 second amended 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 second amended complaint so as to permit the securing of a copy of the entire hospital record or records technicians' including x-rays and reports. 3. Duly executed and acknowledged written authorizations to allow defendant to obtain the complete office medical records relating to plaintiff, of each health-care "1." provider identified in item above. 4. Copies of all medical reports received from health-care providers identified in "1." item 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 technicians' identifying those x-rays and reports which will be offered. 27 of 54

28 5. Duly executed and acknowledged written authorizations to allow defendant 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 second amended complaint to the present. must' 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. Dated: Islandia, New York May 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York Ema. simploney( 2lewisjohs.cpqi By: 'tephen J laloney, Jr. LJAA File No of 54

29 TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York crsabellaw(?ll .com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman(aldevittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey.yong libertymutual.com KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

30 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E Plaintiff, DEMAND FOR DISCLOSURE AS TO MEDICARE, SSDI/SSI -against- AND/OR MEDICAID THE CITY OF NEW YORK, and THE NEW YORK INFORMATION CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., Defendants X COUNSELLORS: 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, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., demands that plaintiff 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 30 of 54

31 subject of this litigation, and include the address of the office handling the plaintiffs 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 ofthis 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 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; 1) 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; and address of 2. Name administrator; 31 of 54

32 3. Telephone number and address of administrator; 4. Social Security number of Administrator; 5. An authorization to examine and copy deceased' deceased's Medicare, Social Security Disability, Medicaid and/or Medicare Advantage Plan records. PLEASE TAKE FURTHER NOTICE that, defendant, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., 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. 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 plaintiffs 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 should 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. Dated: Islandia, New York May 1, of 54

33 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York ' By; Stephen J. NT loney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, Floor New York, New York crsabellaw(blgmail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman(ifldevittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York J~effrey. nn 'ii'liberlvnrutuat com. 33 of 54

34 KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

35 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX â â â X â â â â â â â â X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, REQUEST FOR EXPERT DISCOVERY THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. X COUNSELLORS: PLEASE TAKE NOTICE that, pursuant to CPLR 3101(d), you are hereby directed to identify, state and provide, at the offices of LEWIS JOHS AVALLONE AVILES, LLP, One CA Plaza, Suite 225, Islandia, New York within twenty (20) 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. 35 of 54

36 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. Dated: Islandia, New York May 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York Emai : s maloneyratlewisjobs.com By: Stephen J. Maloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York crsabellawrammail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th Floor New York, New York of 54

37 DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman(aldevittspellmanlaw.com LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey.yong(dllibertymutual.com.Ieffre KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

38 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E Plaintiff, NOTICE TO PRODUCE -against- PURSUANT TO CPLR 3101(e) THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. COUNSELLORS: PLEASE TAKE NOTICE that, the answering defendant, represented by the undersigned, demands 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 within twenty (20) days of receipt of this notice: 1. Any statement, signed or unsigned, or copy of any recorded statement or document issued by or secured from any party represented by the undersigned in this action, or from any agent, servant, or employee of any defendant represented by this office. 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 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. 38 of 54

39 Dated: Islandia, New York May 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York I nutil: sjuniloneva len isjoh:±.colu By:. Stephen J J.' Maloney, Jr. ' LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York ersabellau a gmail.com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New YOrk DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.spellman a de inspell_munlau.com..igni LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey,vong@libertvmutual,corn Jeffrey.yond libert mutual.com 39 of 54

40 KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

41 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X - â â â â â â X ECF EMMA VAIRO, Index No /2015E -against- Plaintiff, NOTICE TO PRODUCE WORKERS' COMPENSATION RECORDS THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. X COUNSELLORS: PLEASE TAKE NOTICE that, pursuant to Article 31 of the CPLR, you are hereby required to produce the following at the offices of the undersigned, within twenty (20) days after service of this demand: 1. If a claim has or will be made pursuant to the terms of the Compensation Law, with respect to each and every application: Workers' (a) Set forth the name, address, policy and claim number to which a claim has been or will be made, together with the Workers' Compensation Board file number. (b) Set forth duly executed and acknowledged written authorizations enabling the undersigned to obtain the records relating to the plaintiff from each company identified in the response to 1(a) above. 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. 41 of 54

42 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. Dated: Islandia, New York May 1, 2018 LEWIS JOHS AVALLONE AVILES, LLP Consolidated Edison Company of New York, Inc. One CA Plaza, Suite 225 Islandia, New York yjnialoney plen isjohs.com By: Stephen J.'Maloney, Jr. LJAA File No TO: CHARLES R. SABEL, ESQ. Attorney for Plaintiff 18th 444 Madison Avenue, FlOOr New York, New York ersabehaw a .com ZACHARY W. CARTER, ESQ. Corporation Counsel s The City of New York and New York City Department of Transportation 100 Church Street, 4th FlOOr New York, New York DEVITT SPELLMAN BARRETT, LLP s Antonette Belcore and Catherine Belcore 50 Route 111, Suite 314 Smithtown, New York File No. SF7916N2 (NMB/lm) K.s li.. ~>c'llul,'iti;«i.. el lntanri(idcvit i ii t» t.~~i 1cl lllll;llll; 1 nlan law.coul I%X.<'i > of 54

43 LAW OFFICES OF MARTYN and MARTYN s Vincent Della Cerra and Catherine Della Cerra 330 Old Country Road, Suite 211 Mineola, New York Jeffrey.yong@libertymutual.com.IcArc. KOWALSKI & DeVITO Vali Industries, Inc. 80 Pine Street, /suite 300 New York, New York File No. NYNY PEDUTO CONSTRUCTION CORP. 7 Fourth Street New Rochelle, New York of 54

44 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X X ECF EMMA VAIRO, Index No /2015E Plaintiff, NOTICE TO PRODUCE COLLATERAL SOURCE -against- PURSUANT TO CPLR 4545(A) THE CITY OF NEW YORK, and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, CONSOLIDATED EDISON CO. OF NY, ANTONETTE BELCORE and CATHERINE BELCORE, VINCENT DELLA CERRA and CATHERINE DELLA CERRA, PEDUTO CONSTRUCTION CORP. and VALI INDUSTRIES, INC., X Defendants. COUNSELLORS: PLEASE TAKE NOTICE that, if any claim is made by plaintiff to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, defendant demands that plaintiff produce the following within twenty (20) days from receipt of this notice: (1) Identify any collateral source that reimbursed, replaced or indemnified or will reimburse, replace or indemnify in whole or in part the cost of the items set forth above; (2) Furnish copies of any contracts, agreements or policies or other documents which provide for reimbursement, replacement or indemnification in whole or in part for the costs of the items set forth above by a collateral source; and (3) Furnish authorizations directing the release of all records pertaining to the reimbursement, replacement or indemnification of the costs of the items set forth above by collateral sources. 44 of 54