FILED: NEW YORK COUNTY CLERK 11/07/ :06 PM INDEX NO /2016 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2016

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1 FILED: NEW YORK COUNTY CLERK 11/07/ :06 PM INDEX NO /2016 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, Index No.: /2016 VERIFIED ANSWER McDONALD'S CORPORATION and 2044 REALTY, LLC, Defendants. Defendant, 2044 REALTY, LLC, by its attorneys, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, as and for its Answer to the plaintiff's Verified Complaint, states upon information and belief: AS AND FOR DEFENDANT'S ANSWER TO THE FIRST CAUSE OF ACTION 1. Deny knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs "1", "2", "8", "9", "10", "11", "12", "13" and "14" of the plaintiff's Verified Complaint. 2. Deny each and every allegation contained in paragraphs "4", "5", "6", "7", "22", "23", "24", "25" and "27" of the plaintiff's Verified Complaint, insofar as these allegations pertain to the answering defendant. 3. Deny each and every allegation contained in paragraph "15" of the plaintiff's Verified Complaint, except admit that 2044 REALTY, LLC is and was on September 11, 2015 the owner of the building located at 1871 Second Avenue, New York, New York. 1 of 25

2 4. Deny each and every allegation contained in paragraphs "16", "17", "18", "19", "20" and "21" of the plaintiffs Verified Complaint. 5. Deny knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph "26" of the plaintiffs Verified Complaint and respectfully refer all question of law, fact or conclusion raised therein to be determined by the Court. AS AND FOR DEFENDANT'S ANSWER TO THE SECOND CAUSE OF ACTION 6. In response to paragraph "28" of the plaintiffs Verified Complaint, the answering defendant repeats, reiterates and realleges each and every response as previously set forth to paragraphs "1" through "27" with the same force and effect as if fully set forth at length. 7. Deny each and every allegation contained in paragraphs "29", "29(a)", "29(b)", "29(c)", "29(d)" and "30" of the plaintiffs Verified Complaint, insofar as these allegations pertain to the answering defendant. AS AND FOR A FIRST SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 8. The answering defendant, pursuant to 1412 of the CPLR, alleges upon information and belief that if plaintiff sustained any injuries or damages at the time and place alleged in the Verified Complaint, such injuries or damages were the result of the culpable conduct of plaintiff because of plaintiffs negligence or assumption of risk. Should it be found, however, that the answering defendant is liable to plaintiff herein, any liability being specifically denied, then the answering defendant demands that any damages that are round be apportioned among the respective parties according to the degree of responsibility each is found to be in the occurrence, in proportion to the entire measure of responsibility for the occurrence. 2 2 of 25

3 AS AND FOR A SECOND SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 9. Any past or future costs or expenses incurred, or to be incurred, by the claimant for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss that has been or may be replaced or indemnified, in whole or in part, from a collateral source as defined in Section 4545(c) of the Civil Practice Law and Rules shall not be recoverable from the answering defendant, and the amount of such damages will be diminished by the amount of the funds which claimant has or may receive from such collateral source. AS AND FOR A THIRD SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 10. Any injuries or damages claimed were caused, in whole or in part, by the negligence or other culpable conduct of third parties over which the answering defendant had no control or right to exercise such control. AS AND FOR A FOURTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 11. The answering defendant's liability (if any) is limited and governed by the provisions set forth in Article 16 of the CPLR. AS AND FOR A FIFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 12. The Verified Complaint herein or a part thereof fails to state a cause of action upon which relief may be granted. AS AND FOR A SIXTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 13. Upon information and belief, all risks and danger of loss or danger connected with the situation alleged in the Verified Complaint were at all time and place mentioned obvious and apparent and were known by the plaintiff and voluntarily assumed by plaintiff 3 3 of 25

4 AS AND FOR A SEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 14. Upon information and belief, the alleged defective condition constituted a trivial defect and therefore there can be no cause of action maintained as a matter of law. AS AND FOR AN EIGHTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 15. Pursuant to the provisions of section of the General Obligations Law, answering defendant is entitled to a reduction of any adverse judgment by either the total settlement amount paid by any other tortfeasors or in the amount of the released tortfeasors' equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest. AS AND FOR A CROSS CLAIM AGAINST CO-DEFENDANT McDONALD'S CORPORATION and DEMAND FOR ANSWER 16. That if the plaintiff recovers herein against the answering defendant, such recovery will have been caused and brought about by reason of the negligence or culpable conduct or actions encompassed by contractual obligations of said co-defendant, McDONALD'S CORPORATION, and the answering defendant will be entitled to judgment against said codefendant in the amount of any recovery herein against the answering defendant and for all damages flowing from co-defendant's breach of contract, together with attorneys fees, or in the alternative, to a determination of the comparative degrees of negligence of all parties and to a judgment over in accordance with such determination by virtue of either common law or contractual indemnity or through contribution. 17. Demand is hereby made for co-defendant to serve an Answer to the above crossclaim pursuant to CPLR of 25

5 WHEREFORE, the answering defendant demands judgment dismissing the plaintiffs Verified Complaint, together with the costs and disbursements of this action, and judgment against any co-defendant in the amount of any recovery herein against the answering defendant, or in the alternative, to a determination of the comparative degrees of negligence of all parties and to a judgment over in accordance with such determination by virtue of either common law or contractual indemnity or through contribution, and for all damages flowing from co-defendant's breach of contract, together with attorneys fees. Dated: New York, New York November 7, 2016 Yours, etc. WILSON, ELSER, MOSKOWI ELMAN & DICKER LLP B : y J. Dell eys for Defendant 2044 REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

6 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) ATTORNEY'S VERIFICATION The undersigned, being an attorney duly admitted to practice before the Courts of the State of New York and fully aware of the penalties of perjury, hereby affirms as follows: 1. Affirmant is a member of the law firm of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, attorneys for Defendant, 2044 REALTY, LLC, in the within action and is fully familiar with the facts and circumstances involved in this matter from reviewing the file regarding the same maintained in the offices of the said law firm. 2. Affirmant has read the foregoing Answer, knows the contents thereof, and the same are true to affirmant's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters affirmant believes them to be true. 3. Affirmant further states that the reason this affirmation is made by the undersigned and not by defendants is because the averments contained therein are based solely on the knowledge of the affirmant. 4. The grounds of affirmant's belief as to all matters not stated to be affirmant's knowledge are investigative and other information contained in the file of the said law firm. Dated: New York, New York November 7, of 25

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, McDONALD'S CORPORATION and 2044 REALTY, LLC, Index No.: /2016 NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION Defendants. SIRS: PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony, upon oral examination of all adverse parties, as parties, will be taken before a Notary Public who is not an attorney, or employee of an attorney, for any party or prospective party herein and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity or affinity to any party herein, at the office of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, located at 150 E. 42nd Street, New York, New York, on February 7, 2017 at 10:00 o'clock in the forenoon of that day with respect to evidence material and necessary in the defense of this action. That said persons to be examined are required to produce at such examination any and all documents relative to the claims in the plaintiff's Verified Complaint. Dated: New York, New York November 7, of 25

8 Yours, etc. WILSON, ELSER, MOSKOWITA MAN & DICKER LLP By: Gr gory. Dell At orne v for Defendant 20 EALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, Index No.: / against - Plaintiff, DEMAND FOR A VERIFIED BILL OF PARTICULARS McDONALD'S CORPORATION and 2044 REALTY, LLC, Defendants. S IRS: PLEASE TAKE NOTICE, that pursuant to Sections 3041 to 3044 of the C.P.L.R., you are hereby required to serve upon the undersigned a Verified Bill of Particulars pursuant to the following demand: Each item and subdivision of this demand must be answered separately and categorically under its own number, without reference to the Verified Complaint or to other portions of the Bill of Particulars. Whirl Knits v. Adler Business Machines, Inc., 54 A.D.2d State the date and time of day of the occurrence. 2. State plaintiffs full name, age, date and place of birth and social security number. 3. State the exact location of the occurrence. 4. If the accident occurred within the premises, identify the room or specific location therein with sufficient particularity to permit defendant to distinguish it from other rooms on the premises. 9 of 25

10 5. If a defective, deficient or unsafe condition is alleged, describe such condition in detail, including the type of material, or other substance allegedly present. 6. If actual notice of a defective, deficient or unsafe condition is alleged, state: (a) (b) (c) person or persons to whom given; place(s) where given; date(s) when given. 7. If constructive notice of a defective, deficient or unsafe condition is claimed, state the duration of condition with date of inception and date constructive notice will be claimed to be given to the defendant. 8. State how it is claimed the accident occurred. 9. State all the acts of commission and/or omission constituting the alleged negligence, carelessness and wrongdoing on the part of the defendants, their agents, servants and/or employees. 10. State any and all laws, rules, regulations and ordinances that are claimed to be either applicable to the occurrence or to have been violated by the defendant. 11. State nature and extent of all injuries claimed. 12. Specify those claimed to be permanent. 13. Accurately state length of time confined to bed, specifying dates. 14. Accurately state length of time confined to home, specifying dates. 10 of 25

11 15. State name of each and every hospital, clinic, or institution where any treatment or examination was rendered and length of time, if any, confined there. If not confined to any hospital, etc., so state. 16. If it is claimed the plaintiff was treated by a physician other than one at the hospital and/or clinic, give the name of said physician and his/her address. Accurately state the number of visits it is claimed the plaintiff made to each of the physicians, if any, specified above. 17. Does the plaintiff claim that there were any witnesses to the accident? 18. State nature of employment. 19. State name and address of employer. 20. State length of time incapacitated from employment. 21. State the nature and/or type of work customarily performed by the plaintiff 22. If self-employed, state nature of self-employment and business address. 23. State total amount claimed as loss of earnings, including detailed statement as to how such lost earnings were computed. 24. If the plaintiff was a student, give the name and address of the school attended, at or about the time of the accident, and accurately state the length of time incapacitated from attending said school. 25. State the total amounts claimed as special damages for: (a) Physicians' expenses; 11 of 25

12 (b) (c) (d) (e) Medical expenses; Nurses' expenses; Hospital expenses; Any other expenses which it is claimed resulted from this occurrence. 26. If loss of service is claimed, set forth the exact nature of the service, stating what was done or not done as a result of the alleged occurrence. PLEASE TAKE FURTHER NOTICE, that if the above demand is not complied with within the next twenty (20) days, an application will be made to preclude the plaintiff from giving any evidence thereof upon the trial of this action, pursuant to the aforementioned rules. Dated: New York, New York November 7, 2016 Yours, etc WILSON, ELSER, MOSKO ELMAN & DICKER LLP 13 ory J. Dell mieys for Defendant 2044 REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, McDONALD'S CORPORATION and 2044 REALTY, LLC, Index No.: /2016 DEMAND FOR COLLATERAL SOURCE INFORMATION Defendants. SIRS: PLEASE TAKE NOTICE, that demand is hereby made upon the plaintiff or plaintiff s attorney that they serve upon the undersigned a statement as to whether any part of the cost of medical care, custodial care, rehabilitation services, loss of earnings, or other economic loss sought to be recovered herein was replaced or indemnified, in whole or in part, from any collateral source such as insurance, social security, Workmen's Compensation, Medicaid, public assistance or employee benefit programs, and, if so, the full name and address of each organization, agency or program providing such replacement or indemnification together with an itemized statement of the amount in which each such claimed item of economic loss was replaced or indemnified by each such organization or program. A demand is additionally made for duly executed and properly addressed original authorizations permitting the undersigned to inspect and copy any records reflecting any collateral source or payment identified in response to the foregoing demand, 13 of 25

14 PLEASE TAKE FURTHER NOTICE, that your failure to comply with the foregoing within twenty (20) days will serve as the basis of a motion for appropriate relief pursuant to the CPLR. PLEASE TAKE FURTHER NOTICE that the foregoing is to be considered a continuing demand. Dated: New York, New York November 7, 2016 Yours, etc. WILSON, ELSER, MOSKOWI. ELMAN & DICKER LLP B : J. Dell eys for Defendant REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

15 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, McDONALD'S CORPORATION and 2044 REALTY, LLC, Index No.: /2016 NOTICE OF DISCOVERY AND INSPECTION FOR WITNESS INFORMATION Defendants. SIRS: PLEASE TAKE NOTICE, pursuant to CPLR 3120 the plaintiff or plaintiff's attorneys are required to produce for discovery and inspection within twenty (20) days of the receipt of this notice, at the offices of the undersigned, the following: 1. True copies of any written reports of the alleged occurrence which have been prepared in the regular course of business, operation or practice of any person, firm, corporation, association, or other public or private entity. 2. The names and addresses of all actual witnesses to the events giving rise to this lawsuit, including but not limited to those individuals who witnessed any physical examination, test, consultation or treatment. 3. The names and addresses of all persons claimed by the plaintiff to have witnessed the occurrence of, cause of, or inception of the injuries and damages alleged in the Verified Complaint. 4. Written statements of the defendant in your possession. 15 of 25

16 5. Records, memoranda, notes, tape recordings or other recorded communications of or by the defendant in your possession. 6. The identity of each and every individual who spoke, discussed or otherwise communicated with the defendants about the occurrence of the alleged injuries herein, together with the business and residence address of each named individual, and any notes or memoranda made by such individuals, or by any one on behalf of plaintiff's attorney with respect to each such conversation, discussion or review. 7. Photographs of the scene of the accident which is the subject of this litigation. 8. Photographs of the instrumentalities involved in such accident. 9. Photographs of the plaintiff which demonstrate the injuries allegedly sustained. 10. All x-rays, CAT-scans and other diagnostic films in the possession or control of the plaintiff or plaintiff's counsel. 11. Each and every bill, statement of account or itemized charge received by the plaintiff or anyone on their behalf pertaining to the special damages claimed in this lawsuit. This demand shall be deemed to continue during the pendency of this action if any of the above requested information or documents are subsequently obtained. 12. A copy of any and all movies, videos, digital images, etc. that the plaintiff plan to introduce at trial. 16 of 25

17 13. A statement indicating the name and address of: (a) all persons who may and/or appear in the movies, videos, digital images, etc.; (b) all persons who edited the movies, videos, digital images, etc. PLEASE TAKE FURTHER NOTICE that upon plaintiff's failure to produce the aforesaid documents at the time and place required in this Demand and Notice, a motion will be made for appropriate relief to the Court. PLEASE TAKE FURTHER NOTICE that the foregoing is to be considered a continuing demand. Dated: New York, New York November 7, 2016 Yours, etc. WILSON, ELSER, MOSKOW ELMAN & DICKER LLP By: Gre y J. Dell A it treys for Defendant 44 REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

18 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, Index No.: /2016 DEMAND FOR EXPERT INFORMATION McDONALD'S CORPORATION and 2044 REALTY, LLC, Defendants. SIRS: PLEASE TAKE NOTICE, that pursuant to CPLR 3101(d)(1) of the Civil Practice Law and Rules, you are hereby required to serve upon the undersigned, within twenty (20) days after service of this Demand, the following: 1. The name of each person who plaintiff expects to call as an expert witness at trial; 2. A detailed statement of the subject matters on which each expert witness is expected to testify; to testify; 3. The substance of the facts and opinions on which each expert witness is expected 4. The qualifications of each expert witness; and 5. A summary of the grounds for each expert's opinion. PLEASE TAKE FURTHER NOTICE that the foregoing is to be considered a continuing demand. 18 of 25

19 Dated: New York, New York November 7, 2016 Yours, etc. WILSON, ELSER, MOSKOWITZ DELMAN & DICKER LLP By. Dell vs for Defendant REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

20 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, Index No.: /2016 DEMAND FOR AUTHORIZATIONS AND RECORDS McDONALD'S CORPORATION and 2044 REALTY, LLC, Defendants. SIRS: attorneys to: PLEASE TAKE NOTICE that demand is hereby made upon the plaintiff or plaintiffs 1. Serve upon and deliver to the attorneys for the defendant copies of the medical reports, and bills of those physicians who have previously treated or examined the plaintiff. 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 technician's reports which will be offered at the trial. 2. Serve upon and deliver to the attorneys for the defendant duly executed and acknowledged, HIPAA compliant written authorizations permitting all parties to obtain and make copies of all hospital records, and such other records including x-rays and technician's reports as referred to and identified in the statement of plaintiffs physicians. 3. Serve upon and deliver to the attorneys for the defendant duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of any and 20 of 25

21 all Workman's Compensation and No-Fault benefit records, reports or files relative to this incident. 4. Serve upon and deliver to the attorneys for the defendant duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of any and all records of plaintiff's present employer and employer at the time of the incident relative to his employment period and salary. 5. Serve upon and deliver to the attorneys for the defendant duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of any and all records of plaintiff's W-2 forms and complete tax returns for the two-year period prior to the accident up until the present calendar year. PLEASE TAKE NOTICE THAT that upon plaintiff's failure to comply with this demand, the plaintiff will be precluded upon the trial of the within action from offering the evidence or testifying as to any of the reports, records, x-rays or examinations demanded herein. PLEASE TAKE FURTHER NOTICE that the foregoing is to be considered a continuing demand. Dated: New York, New York November 7, 2016 Yours, etc. WILSON, ELSER, MOSKO 7.LMAN & DICKER LLP By: ory J. Dell torneys for Defendant 2044 REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: of 25

22 TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25

23 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARGARET MORRIS, - against - Plaintiff, McDONALD'S CORPORATION and 2044 REALTY, LLC, Index No.: /2016 DEMAND FOR MEDICARE/MEDICAID AND SCHIP EXTENSION ACT INFORMATION Defendants. COUNSELORS: PLEASE TAKE NOTICE that pursuant to CPLR 3120(a) and the requirements of Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (42 U.S.C. 1395(y)(b)(7) and (b)(8)), the undersigned requests that plaintiff provide the following information within twenty (20) days: 1. The plaintiff's full legal name. 2. The plaintiff's address. 3. The plaintiff's date of birth. 4. The plaintiff's social security number. 5. The plaintiff's date of death, if applicable. 6. The plaintiff's gender. 7. The plaintiff's Beneficiary Medical Health Insurance Claim (HICN) number. 8. The plaintiff's Medicaid/Medicare file number, if applicable. 9. The plaintiff's New York State Department of Social Services (DSS) file number, if applicable. 10. The plaintiff's Medicare Secondary Payor (MSP) file number, if applicable. 23 of 25

24 11. The full name of any additional or primary insurance provider. 12. Type of insurance issued by additional or primary insurance provider. 13. The Tax Identification Number (TIN) of the additional or primary insurance provider. 14. The complete policy number of the applicable policy issued by the additional or primary insurance provider. 15. The claim number for the claim filed with the additional or primary insurance provider. 16. The complete policy limit for the other available additional or primary insurance providers. PLEASE TAKE FURTHER NOTICE, that the provisions of CPLR 3122 govern this demand and if the party to whom the notice is directed objects to the disclosure, inspection or examination or withholds any documents which appear to be within the category of the documents required by the notice, compliance with CPLR 3122 is required. PLEASE TAKE FURTHER NOTICE, that in the event of failure or refusal to comply with any of these demands, said defendant will apply to the Court for the appropriate relief including, but not limited to, an Order compelling compliance pursuant to CPLR 3124 and/or appropriate relief pursuant to CPLR 3126 and 22 N.Y.C.R.R. Part 130. PLEASE TAKE FURTHER NOTICE, that all demands herein shall be deemed to continue during the pendency of this action through and including the trial thereof and plaintiff's responses must be amended or supplemented properly in compliance with CPLR 3101(h). Dated: New York, New York November 7, of 25

25 Yours, etc. WILSON, ELSER, MOSKOWIT, ELMAN & DICKER LLP B AgEhi rego J. Dell Attor evs for Defendant 2* REALTY, LLC 150 East 42nd Street New York, New York Tel.: (212) File No.: TO: HARMON, LINDER & ROGOWSKY Attorneys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York (212) of 25