FILED: NEW YORK COUNTY CLERK 04/27/ :46 PM INDEX NO /2015 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/27/2016

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1 FILED: NEW YORK COUNTY CLERK 04/27/ :46 PM INDEX NO /2015 NYSCEF DOC NO 90 RECEIVED NYSCEF: 04/27/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL RUTIGLIANO, Index No: /2015 -against- Plaintiff(s), VERIFIED BILL OF PARTICULARS TOYOTA MOTOR NORTH AMERICA, INC, GEORGE P JOHNSON COMPANY, FREEMAN DECORATING CO, FREEMAN EXPOSITIONS, INC and TOYOTA MOTOR SALES USA, INC, Defendant(s) PLEASE TAKE NOTICE, that the plaintiff, pursuant to Rule 3043 of the Civil Practice Law and Rules, and pursuant to the demands of defendant, GEORGE P JOHNSON COMPANY, sets forth the following particulars with respect to the allegations of the complaint herein: 1 MICHAEL RUTIGLIANO 2, 1964 Pursuant to CPLR 3042(a), plaintiff objects to that portion of the demand requesting plaintiff s place of birth as palpably improper and not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) Pursuant to CPLR 3042(a), plaintiff objects to that portion to the demand requesting 1 of 15

2 plaintiff s social security number as palpably improper and is not properly included in a bill of particulars See Seelig v Sielaf, 201 AD2d 298, 607 NYS2d 300 (1st Dept 1994) 3 At the time of the subject occurrence and at the present time, plaintiff resided and continues to reside at 4062 Reardon Place, Seaford, New York 4 Plaintiff is a member of Local Union 2287 since 1999 On the date of the subject occurrence, plaintiff was working as a Show Carpenter by Jacob Javits Center (aka New York Convention Center), 655 West 34th Street, New York, NY Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 6 At the time of the subject occurrence, plaintiff s average gross weekly wages were $2, Plaintiff was not self-employed at the time of the subject occurrence 8 Plaintiff was not a student at the time of the subject occurrence 9 DATE AND TIME OF OCCURRENCE: March 27, 2015 at approximately 3:09 AM 10 LOCATION OF ACCIDENT: Within the premises known and designated as Jacob Javits Center, 655 West 34th Street, in the County of New York, City and State of New York, and more particularly within Hall 3A of the aforementioned premises 11 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, of 15

3 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 12 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 13 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 14 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 15 The subject accident did not occur on a sidewalk or roadway 16 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 3 of 15

4 17 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 18 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 19 To be provided following the completion of examinations before trial 20 As a result of the subject occurrence, the plaintiff sustained the following injuries, all of which are believed to be permanent, except those of a superficial nature: ROTATOR CUFF TEAR, LEFT SHOULDER SUPRASPINATUS TEAR, SUBSCAPULARIS TENDON PARTIAL TEAR, BICEPS TENDON Date: 5/22/2015 PRELIMINARY DIAGNOSIS: ROTATOR CUFF TEAR, LEFT SHOULDER SUPRASPINATUS TEAR, SUBSCAPULARIS TENDON PARTIAL TEAR, BICEPS TENDON NAME OF OPERATION: ARTHROSCOPY, LEFT SHOULDER DEBRIDEMENT OF TYPE II LABRAL TEAR BICEPS TENOTOMY AND REPAIR OF LEFT ROTATOR CUFF ANESTHESIA: REGIONAL ANESTHESIOLOGIST: WM URMEY, MD PROCEDURE: The patient was taken to the Operating Room, placed in a beach chair position The left shoulder was prepped and draped in the usual manner 1 % Lidocaine was injected into the posterior portal An arthroscope was placed into the 4 of 15

5 glenohumeral joint It was noted that there was tearing of the inferior labrum, appeared acute There was, however, no separation There was a Type II superior labral tear into the biceps anchor and along the biceps tendon It was felt that there was at least 50% of the biceps tendon was tom As a result, a biceps tenotomy was performed It was noted that there was a partial tear of the subscapularis tendon, midsubstance It was noted that there was an undersurface tear of the rotator cuff close to the biceps tendon anteriorly A suture was placed through the rent and the arthroscope was placed in the subacromial space The area where the articular-sided tear was apparent was probed and noted to be more than 50% of the tear of the full thickness of the intraarticular sided tear With a metal probe, the tear was completed A 45 corkscrew anchor was placed into position Two simple sutures were placed in position and tied down This was reinforced with a tie-down to a Swivel-Lock anchor There was noted to be excellent repair of the tendon The tension on the suture was evaluated and noted to be taut The arthroscope was removed, the wound was closed with 4-0 nylon A clean dry dressing was applied Active elevation is severely limited He cannot put his arm up overhead actively He has weakness of particularly abduction with internal rotation He also has some fullness in his left elbow over the olecranon bursa MRI scan of the left shoulder shows a tearing of the distal supraspinatus tendon, 16 by 15 cm Rotator cuff tear left shoulder and olecranon bursitis Postoperative scarring, restricted range of motion of the left shoulder It is anticipated that the plaintiff will be required to undergo future surgery(ies) as a result of the aforesaid injuries Further, all of the aforesaid injuries extend to the surrounding nerves, tendons, tissues, ligaments musculature and bony structure, including but not limited to the cortex and blood circulatory system and include pain, swelling, tenderness, impairment of function involving the skin, bone, muscle cartilage, lymphatic and nervous system and other tissues of the affected and surrounding areas As a result of the injuries sustained on March 27, 2015, any and all pre-existing injuries and/or conditions suffered by the plaintiff have been precipitated, aggravated and exacerbated 5 of 15

6 In addition, the plaintiff will claim psychic and emotional injuries which have been, are being, or will be suffered in the future as a direct result of the aforementioned injuries consisting, more particularly, of the following: Extreme emotional distress, nervousness, tension, anxiety, fear, embarrassment, humiliation and frustration as a result of his constant severe pain and discomfort, and from the inability to do all things associated with normal physical activities, especially those things associated with normal household, recreational and work activities and other daily and usual activities, duties and responsibilities required to be performed by the plaintiff, both now and in the future In addition, the plaintiff will claim each and every injury contained in the medical reports which have been or which will be forwarded to the defendant(s), pursuant to the rules governing the exchange of medical information In addition to the foregoing, the plaintiff reserves the right to prove upon the trial of this action any and all sequela resulting from the aforesaid injuries In addition, the plaintiff reserves the right to serve a Supplemental Bill of Particulars upon receipt of further information 21 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 22 Plaintiff was confined to Bellevue Hospital Center, 462 First Avenue, New York, New York on 3/27/15 Plaintiff was further confined to The Hospital for Special Surgery, 535 East 70th Street, New York, New York on 5/22/15 for surgery 6 of 15

7 23 Plaintiff objects to the demand for names and addresses of all providers and dates of treatment, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627,516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556,526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 N YS2d 511 (2Dd Dept 1970) Executed authorizations to obtain all relevant medical records will be provided under separate cover 24 Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 25 As a result of the subject occurrence, plaintiff was incapacitated from his employment from the date of the subject occurrence through 1/08/16 Plaintiff s average gross weekly wages were $2,20800 As such, plaintiff will claim lost wages in the sum of $90, Plaintiff has been partially and totally disabled from the date of accident to present and continuing 27 As a result of the subject occurrence, plaintiff has sustained the following special damages: Physicians Services: Hospital Expenses: Approximately $15,00000 and continuing Approximately $6,00000 and continuing Ambulance Services: Approximately $ of 15

8 Radiology Expenses: Approximately $90000 and continuing Medical Supplies/Expenses: Approximately $30000 and continuing Nurses Services: Included in hospital expenses Additionally, plaintiff s family and friends provided nursing services at no charge to plaintiff Loss of Earnings: Approximately $90,52800 Plaintiff reserves the right to update special damages prior to the trial of this action 28 That the aforesaid occurrence was caused by the negligence, carelessness, recklessness and culpable conduct of the defendants, their agents, servants, and/or employees in the ownership, operation, maintenance, management and control of the location and work area, in that they caused, permitted and allowed the work area aforementioned to be, become and remain in an unsafe hazardous and dangerous condition; in failing to provide plaintiff with a safe place to work; in failing to institute any safety procedures; in failing to adhere to standard safety procedures and deviating from said procedures; in failing to warn the plaintiff and others of the attendant dangers and perils; in failing to properly plan, direct, inspect and supervise the work/construction and equipment at the aforesaid work/construction site; in failing to provide proper lighting at the work area and site; in permitting and/or allowing a dangerous, hazardous and traplike condition to exist and remain; in failing to take the necessary precaution and safeguards to prevent the occurrence aforementioned; in carelessly, recklessly, and negligently creating a hazardous, dangerous, traplike condition; in failing to employ, train and supervise competent individuals for the purposes of preventing this foreseeable occurrence; in failing to take the necessary precautions and safeguards to prevent the occurrence aforementioned; in carelessly, recklessly and negligently creating a hazardous, dangerous, traplike condition; in failing to properly inspect and/or provide suitable 8 of 15

9 means of protecting and safeguarding persons at the work area and site; in failing to keep the work area in a safe condition; in failing to furnish and/or erect and/or failing to cause others to furnish or erect scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices, including but not limited to bakers scaffolds in such a manner as to give proper protection to persons there employed, including but not limited to this plaintiff; in failing to provide plaintiff with a safe place to work in light of the significant risks associated and inherent in the construction work, as well as, the structural alterations being performed at the subject premises; defendants as the property owner failed to take all proper steps necessary to prevent the happening of this incident; defendants as the General Contractor failed to take all proper steps necessary to prevent the happening of this incident; defendants as jobsite Contractors failed to take all proper steps necessary to prevent the happening of this incident; defendants failed to properly and safely maintain the scaffolding upon which plaintiff was working; defendants failed to provide adequate protection and/or equipment to the plaintiff; defendants failed to properly install and secure the scaffold upon which plaintiff was working; defendants negligently erected the scaffold that was unstable and not properly secured; defendants, in violation of Labor Law 200, permitted the jobsite to be furnished with unsafe materials and the scaffolding existing thereat to be unsafely constructed, installed and secured; defendants, in violation of Labor Law 240(1), permitted the jobsite to be furnished with unsafe equipment; defendants used and permitted use of improperly installed and inadequately secured scaffolding components such that the protection to persons employed, and more particularly the plaintiff, was dangerously compromised leading to plaintiff falling through and off the scaffolding; defendants failed to replace, discard and/or remove from the jobsite defective braces, blocks, stays, and further failed to repair such defective equipment or properly place devices to secure the subject scaffold 9 of 15

10 components which proximately caused this incident and severely injured the plaintiff; defendants failed to provide adequate safety devices in light of and in response to the gravity-related hazards prevalent in the performance of the subject construction work; the premises were not so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the life, health, and safety of plaintiff; in failing to take all proper steps necessary to prevent the happening of this incident; in failing to install, place and construct guardrails, safety netting, matting, flooring, personal arrest devices and fall equipment to protect the plaintiff from serious personal injuries; in failing to secure the scaffold from which the plaintiff had been working, to prevent it from moving, giving way, tipping and collapsing; defendants improperly fastened scaffold system which plaintiff relied upon, defendants did not properly fasten the scaffold system as to prevent it from swaying from the building or structure; the unfastened scaffolding was a substantial factor in bringing about this incident; that the unfastened scaffolding was a substantial factor in bringing about this incident as it was not proper, adequate and safe for the work required; that the scaffolding and more particularly, the improperly and inadequately fastened scaffold components, were not secured; that the materials used failed to meet the jobsite safety requirements in accordance with the New York State Labor Law; in permitting plaintiff to utilize an elevated work platform which was not designed or supervised by a registered professional engineer nor constructed by persons who were competent, knowledgeable, skilled and familiar with the requirements of the State Industrial Code, the Federal Industrial Code, and/or OSHA Regulations regarding such assembly; in negligently and carelessly permitting plaintiff to utilize unfastened elevated scaffolding of insufficient quality as required; that said scaffolding was incapable of supporting, without failure, its own weight and at least four times the maximum load applied or transmitted to it; in violating the Statutes of the 10 of 15

11 State of New York and the Rules as Promulgated by the Board of Standards and Appeals, including Sections 200, 240 and 241 of the Labor Law, and the Industrial Code; and were otherwise negligent, careless and reckless under the circumstances 29(a) Plaintiff objects to this demand, pursuant to CPLR 3042(a), as palpably improper and is not properly included in a bill of particulars See DiMarco v Consolidated Rail Corp, 131 AD2d 627, 516 NYS2d 712 (2nd Dept 1987); Coleman v Richards, 138 AD2d 556, 526 NYS2d 138 (2nd Dept 1988); State of New York v Horsemen's Benevolent Protective Assoc, 34 AD2d 769, 311 NYS2d 511 (2nd Dept 1970) 29(b) The condition complained of was caused by the positive acts of the negligence of the defendants by acts of commission and omission on the part of the defendants, and the plaintiffs need not allege notice However, the defendant, by their agents, servants and/or employees created, caused and/or knowingly permitted and allowed the defective, dangerous and hazardous conditions and activities to exist and continue for a long period of time prior to the occurrence complained of Constructive notice is also claimed in that said defective, dangerous and hazardous conditions and activities existed and continued for a reasonably sufficient period of time prior to the date of the occurrence to enable knowledge and warrant correction on the part of the answering defendant herein 29(c) (d) Information responsive to this demand is currently within the exclusive possession of the answering defendant Plaintiff reserves the right to supplement this demand upon the completion of examinations before trial 29(e) Length of time the condition existed prior to the accident: to be provided following the completion of examinations before trial 11 of 15

12 30 COLLATERAL SOURCE INFORMATION: See Reply to Combined Demands PLEASE TAKE FURTHER NOTICE, that plaintiff expressly reserves the right to supplement and/or amend the within Bill of Particulars as to injuries and/or damages claimed herein up to and including the time of trial of this action DATED: FOREST HILLS, NEW YORK April 25, 2016 BERGMAN, BERGMAN, GOLDBERG, FIELDS & LAMONSOFF, LLP By: Allen Goldberg Attorney for Plaintiff Queens Boulevard, Suite 400 Forest Hills, New York (718) To: LONDON FISCHER LLP Attorney for Defendants Toyota Motor North America, Inc and Toyota Motor Sales USA, Inc 59 Maiden Lane New York, NY FORCHELLI, CURTO, DEEGAN, SCHWARTZ, MINEO & TERRANA, LLP Attorneys for Defendant Freeman Expositions, Inc 333 Earle Ovington Blvd - Suite 1010 Uniondale, NY of 15

13 LAW OFFICES OF TOBIAS & KUHN Attorneys for Defendant George P Johnson Company 100 William Street - Suite 920 New York, NY of 15

14 STATE OF NEW YORK ) ) ss: COUNTY OF QUEENS ) ATTORNEY'S AFFIRMATION I, the undersigned, an attorney admitted to practice in the courts of New York State, state that: 1 I am a member of the law firm of Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP, the attorneys of record for MICHAEL RUTIGLIANO in the within action 2 I have read the foregoing BILL OF PARTICULARS and know the contents thereof The same is true to my own knowledge, except as to those matters therein alleged to be on information and belief, and as to those matters I believe it to be true 3 The reason this verification is made by me and not by the Plaintiff herein is because the Plaintiff does not reside in the County of Queens in which said law firm is located 4 The grounds of my belief as to all matters not stated upon my own knowledge are as follows: based on records and documents in deponents possession and conversations had with plaintiff I affirm that the foregoing statements are true, under the penalties of perjury Dated: April 25, 2016 ALLEN GOLDBERG 14 of 15

15 Index No /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL RUTIGLIANO, Plaintiff(s), -against- TOYOTA MOTOR NORTH AMERICA, INC, GEORGE P JOHNSON COMPANY, FREEMAN DECORATING CO, FREEMAN EXPOSITIONS, INC and TOYOTA MOTOR SALES USA, INC, Defendant(s) VERIFIED BILL OF PARTICULARS BERGMAN, BERGMAN, GOLDBERG, FIELDS & LAMONSOFF, LLP Attorneys for Plaintiff(s) Queens Blvd, Suite 400 Forest Hills, New York (718) of 15