FILED: NEW YORK COUNTY CLERK 02/06/ :11 PM INDEX NO /2015 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 02/06/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RAYMOND RATHGABER, Plaintiff, SECONDSUPPLEMENTAL v. VERIFIED BILL OF PARTICULARS PORT AUTHORITY OF NEW YORK AND NEW JERSEY, FIVE STAR ELECTRIC CORP., THE DURST Index No.: /2015 ORGANIZATION INC., THE DURST ORGANIZATION L.P., JRM CONSTRUCTION MANAGEMENT, J.R.M. CONSTRUCTION CORP. LLC, 1WTC, LLC, 1WTC HOLDINGS LLC, TISHMAN CONSTRUCTION CORPORATION and BP MECHANICAL CORP., Defendants. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THE DURST ORGANIZATION INC., THE DURST ORGANIZATION L.P. AND JRM CONSTRUCTION MANAGEMENT, LLC Third-Party Plaintiffs v. BP MECHANICAL CORP, AND BLUE DIAMOND SHEET METAL, INC. Third-Party Defendants Plaintiff above-named, by his attorneys, CELLINO & BARNES, P.C., in response to the demand for a bill of particulars of the defendants, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THE DURST ORGANIZATION INC, THE DURST ORGANIZATION, L.P and JRM CONSTRUCTION MANAGEMENT, LLC states upon information and belief: 1 of 12

2 4. (a) Set forth the nature and extent of the injuries claimed to have been sustained. (b) Specify any pre-existing injury or condition that it is claimed to have been exacerbated as a result of the negligence alleged in this lawsuit. RESPONSE: (a) The injuries sustained by the plaintiff in the subject incident include, but are not limited to, the following: SURGICAL PROCEDURES: On July 12, 2016: plaintiff underwent an anterior cervical discectomy, C6-C7, anterior cervical decompression with discectomy and bilateral foraminotomies, application of intervertebral body device, anterior cervical fusion, anterior cervical instrumentation, application of autograft for spine fusion, and application of allograft for spine fusion with Dr. Andrew Tarleton; and On February 13, 2015, right shoulder arthroscopic subscapularis repair, biceps tendesis, glenohumeral debridement, and subacromial decompression to the right shoulder. INJECTIONS On October 30, 2017: interlaminar cervical epidural steroid injection (C7-T1) under fluoroscopic guidance; On August 17, 2017: interlaminar epidural steroid injection (L4-L5) under fluoroscopic guidance; On June 28, 2017: interlaminar cervical epidural steroid injection (C7- T1) under fluoroscopic guidance; On February 4, 2016: large joint injection/aspiration to left shoulder; On December 2, 2015: interlaminar cervical epidural steroid injection (C7-T1) under fluoroscopic guidance; On December 11, 2014: a large joint injection/aspiration to left shoulder; 2 2 of 12

3 On November 24, 2014; injection to hip; and On October 16, 2014: a large joint injection/aspiration to left shoulder. INJURIES RIGHT SHOULDER: Right shoulder superior labral anterior-posterior (SLAP) tear. Altered signal superior labrum consistent with a slap tear. Anterior laberal tear. Biceps tendinosis with partial tear and tenosynovitis. Rotator Cuff Rupture. Subacromial and subdeltoid bursitis. Small glenohumeral joint effusion. Narrowing of the supraspinatus outlet associated with supraspinatus tendinosis suspicious for impingement. Subscapularis tendinosis. Sprain/strain; and Painful and restricted range of motion. LEFT SHOULDER: Narrowing of the supraspinatus outlet associated with supraspinatus tendinosis suspicious for impingement. Subcortical signal changes humeral head probably degenerative or traction custs with adjacent edema. Need for future surgery: as a result of the foregoing the plaintiff suffers from severe pain, swelling and tenderness of the left shoulder resulting in loss of strength, loss of function, loss of motion, restriction of movement, all with involvement of the surrounding soft tissue, nerve endings, blood vessels, muscles, tendons and ligaments with resulting pain, deformity and disability. CERVICAL SPINE: C2-3, C3-4 and C4-5 central posterior herniations with encroachment upon the subarachnoid space. At CS-6 disc bulging. 3 3 of 12

4 At C6-7, there is a posterior disc herniation with encroachment upon cord and the left neural foramen and encroachment upon the nerve rooth with neural foramen. Need for future surgery: as a result of the foregoing the plaintiff suffers from severe pain, swelling and tenderness of the thoracic spine resulting in loss of strength, loss of function, loss of motion, restriction of movement, all with involvement of the surrounding soft tissue, nerve endings, blood vessels, muscles, tendons and ligaments with resulting pain, deformity and disability. RIGHT HIP: Sprain/strain; and Painful and restricted range of motion. LEFT HIP: Sprain/strain; and Painful and restricted range of motion. LUMBAR SPINE Disc bulges at L3-4, L4-5 and L5-S1; Broad based right paracentral disc herniation and annular tear at L5- S1; and Need for future surgery: as a result of the foregoing the plaintiff suffers from severe pain, swelling and tenderness of the lumbar spine resulting in loss of strength, loss of function, loss of motion, restriction of movement, all with involvement of the surrounding soft tissue, nerve endings, blood vessels, muscles, tendons and ligaments with resulting pain, deformity and disability. OTHER: Severe anxiety, concern about possible further complications, depression, humiliation, self-consciousness, feelings of helplessness, frustration, feelings of hopelessness, feelings of victimization and vulnerability, flashbacks, fear, anger, 4 4 of 12

5 desperation, distraction, decreased concentration, exasperation, sadness, melancholy, feelings of invalidism, social inhibition, erectile dysfunction and psychic trauma. All of the injuries mentioned herein, manifestations, resulting disabilities and involvements, may, if they progress or fail to heal, require surgery, and are associated with further soft tissue injury to the areas traumatically affected, including tearing, derangement, involvement of and damage to the surrounding muscles and muscle groups, ligaments, tendons, blood vessels, and blood supply, nerves and nerve tissue, epithelial tissue, body tissues and bone structure, all concomitant to the specific injuries and related to the various portions mentioned herein, with resultant pain, deformity, disability, stiffness, weakness, swelling, tenderness, edema, atrophy, ecchymosis, impairment of use, restriction and limitation of motion, pain on motion, possible loss of use, atrophy, disfigurement and have all prevented and will continue to prevent enjoyment of the normal fruits of life and its daily activities (including but not limited to physical, social, educational, recreational, and economic) and the enjoyment of life has been permanently and substantially impaired, impeded, diminished, and reduced. Surgery may be required in the future. Upon information and belief, these injuries aggravated, activated, exacerbated and/or precipitated any underlying hypertrophic, degenerative, arthritic, circulatory, arterial, venous, and/or systemic condition or conditions which was or were asymptomatic prior to the accident complained of. Upon information and belief, all of the above injuries, together with their residuals and sequelae, except those of a superficial nature, are permanent, progressive and 5 5 of 12

6 continuing in nature. The plaintiff reserves the right to supplement this Bill of Particulars when further medical information becomes available, and relies also on any and all injuries that are mentioned in the medical reports and/or hospital records submitted herewith, or that will be submitted in the future or if and when counsel for plaintiff is provided with further medical records indicating further injuries not included in this bill of particulars. In addition, it is claimed that said injuries have directly adversely affected the nerves, tissues, blood vessels, muscles, ligaments, cartilages, tendons, bones, and soft parts in and about the sites of the above mentioned areas of the injury, including the central nervous system, muscular system and skeletal system. Also, with advancing years there will be naturally and medically related complications and exacerbations. The aforesaid have and will continue in the future to affect every facet of the plaintiff's pre-accident way of life with resultant damages. The plaintiff will introduce upon the trial herein testimony and proof in conjunction with all of the injuries, conditions, manifestations, and sequelae which will be permanent, and reserves the right to adduce proof with respect thereto at the time of the trial. (b) The plaintiff is claiming exacerbated injuries to his right hip. PLEASE TAKE FURTHER NOTICE, that the plaintiff herein reserves the right to supplement and/or amend this Verified Bill of Particulars now or at any time prior to the time of trial. 6 6 of 12

7 DATED: New York, New York February 6, 2018 CELLINO & BARNES, P.C. By: Alef ouganim, Esq. Attorneys for Plaintiff 420 Lexington Avenue, Suite 2140 New York, New York (212) TO: KENNEDYS CMK, LLP Attorneys for Defendants/Third-Party Plaintiffs JRM CONSTRUCTION MANAGEMENT, LLC PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THE DURST ORGANIZATION INC., and THE DURST ORGANIZATION, L.P 8th 570 Lexington Avenue, FlOOr New York, New York (646) CC SEGAL MCCAMBRIDGE SINGER & MAHONEY Nisha S. Lakhani, Esq. Attorneys for Defendant FIVE STAR ELECTRIC CORP., 1 WTC HOLDINGS, LLC and TISHMAN CONSTRUCTION CORPORATION 850 Third Avenue, Suite 1100 New York, New York (212) O' O' O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLP Attorneys for Third-Party Defendant BP MECHANICAL CORP. One Huntington Quadrangle, Suite 1010 Melville, NY (631) of 12

8 MILBER MAKRIS PLOUSADIS & SElDEN, LL Attorneys for Third-Party Defendant BLUE DIAMOND SHEET METAL, INC Woodbury Road, Suite 402 Woodbury, NY (516) of 12

9 VERIFICATION The undersigned, an attorney admitted to practice in the Courts of New York State, shows: that deponent is a partner with CELLINO 8 BARNES, P.C., the attorney of record for Plaintiff in the within action; that deponent has read the foregoing Second Supplemental Verified Bill of Particulars and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. Deponent further says that the reason this verification is made by deponent and not by Plaintiff is that Plaintiff resides in a County other than the County in which deponent's office is located. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge is a review of the file, including accident reports, witness statements, medical records and conversations and conferences with Plaintiff. the penalties of perjury. The undersigned affirms that the foregoing statements are true, under Dated: February 6, 2018 New York, New York Alex Bouganirn 9 of 12

10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RAYMOND RATHGABER, Plaintiff, v. AFFIDAVIT OF SERVICE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, FIVE STAR ELECTRIC CORP., THE DURST ORGANIZATION INC., THE DURST ORGANIZATION L.P., JRM CONSTRUCTION MANAGEMENT, LLC, J.R.M. CONSTRUCTION CORP. 1WTC, LLC, 1WTC HOLDINGS LLC, TISHMAN CONSTRUCTION CORPORATION and BP MECHANICAL CORP., Index No.: /2015 Defendants. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THE DURST ORGANIZATION INC., THE DURST ORGANIZATION L.P. AND JRM CONSTRUCTION MANAGEMENT, LLC, Third-Party Plaintiffs v. BP MECHANICAL CORP and BLUE DIAMOND SHEET METAL, INC., Third-Party Defendants STATE OF NEW YORK ) COUNTY OF NEW YORK ) SS.: CITY OF NEW YORK ) Wendy Wong, being duly sworn, deposes and says that I am over 18 years of age, am not a party to the action, and reside in Bergen County, NJ. On the 6th day of February, 2018, I served, pursuant to the Uniform Rules for the Trial Courts, upon the parties of record listed below in this electronically filed action, a true and correct copy of the within SECOND SUPPLEMENTAL VERIFIED BILL OF PARTICULARS. By operation of the Court's electronic filing system, parties may access this filing posted on the electronic filing system for this case. 10 of 12

11 KENNEDYS CMK, LLP Attorneys for Defendants/Third-Party Plaintiffs PORT AUTHORITY OF NEW YORK AND NEW JERSEY, THE DURST ORGANIZATION INC., THE DURST ORGANIZATION, L.P. and JRM CONSTRUCTION MANAGEMENT, LLC, 8* 570 Lexington Avenue, Floor New York, New York (646) SEGAL McCAMBRIDGE SINGER 8 MAHONEY, LTD. Attorneys for Defendants FIVE STAR ELECTRIC CORP., 1WTC HOLDINGS LLC and TISHMAN CONSTRUCTION CORPORATION 850 Third Avenue, Suite 1100 New York, New York (212) O' O'CONNOR, O' O'CONNOR, Attorneys for Third-Party Defendant BP MECHANICAL CORP One Huntington Quadrangle, Suite 1C10 Melville, New York (631) HINTZ & DEVENEY, LLP MILBER MAKRIS PLOUSADIS 5 SElDEN, LLP Attorneys for Third-Party Defendant BLUE DIAMOND SHEET METAL, INC Woodbury Road, Suite 402 Woodbury, New York (516) Sworn to before me this 6* day of February, 2018 otaly Public SILVIAV.CASTILLO NoTARY PUBLIC, STATE O NEW YORK Registration No. 01CA Qualified in Queens Courny Commission E 'res Deceñ w 24. W 2 11 of 12

12 Index No: /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RAYMONDRATHGABER, Plaintiff, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, FIVE STAR ELECTRIC CORP., THE DURST ORGANIZATION INC., THE DURST ORGANIZATION L.P., JRM CONSTRUCTION MANAGEMENT, LLC, J.R.M. CONSTRUCTION CORP. 1WTC, LLC, 1WTC HOLDINGS LLC, TISHMAN CONSTRUCTION CORPORATION and BP MECHANICAL CORP., Defendants. AND THIRD-PARTY ACTION. SECOND SUPPLEMENTAL VERIFIED BILL OF PARTICULARS CELLINO & BARNES, P.C. Attorneys for Plaintiff Office 8 Post Office Address, Telephone 420 Lexington Avenue, Suite 2140 New York, New York (212) PLEASE TAKE NOTICE: NOTICE OF ENTRY that the within is a (certified) true copy of an Order duly entered in the office of the clerk of the within named court NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court Yours, etc. CELLINO & BARNES, P.C. Attorneys for Plaintiff 420 Lexington Avenue, Suite 2140 New York, New York (2'I 2) of 12