FILED: RICHMOND COUNTY CLERK 02/14/ :14 AM INDEX NO /2015 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 02/14/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X â â â â â â X KENNETH EARLand DONNAEARL, VERIFIED BILL Plaintiffs, OF PARTICULARS -against- Index No.: /2015 THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and NEHAL CONTRACTING, INC., Defendants X Plaintiffs, KENNETH EARL and DONNA EARL by their attorneys, ROSENBERG MINC FALKOFF 8 WOLFF, responding to defendant THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and NEHAL CONTRACTING, INC.'s demand for a bill of particulars, alleges, upon information and belief, as follows: 1. Plaintiff Kenneth Earl's date of birth is December 29, Plaintiffs reside at 13 Piedmont Drive, Old Bridge, NJ With regard to the demand for social security information, said demand is palpably improper and "the release of social security numbers constitutes an unwarranted invasion of privacy." 5 U.S.C. 552[b] [6]; General Business Law 399-dd(6); Norwood v. FAA, 993 F.2d 570 (USCA 6"' Cir. 1993) (USCA 3d Cir. 1988); International Brotherhood of Electric Workers v. U.S. Dept. of Housing and Urban Development, 852 F. 2d 87; Bibeau v. Cantiaque Fiqure Skating Club. Inc.,., 294 A.D. 2d 525, 742 NYS2d 864 (2nd Dept., i I I6t 201 AD2d 298, 607 NYS2d 300 (1st Dept. 1994); Sullivan v. 40/40 Club, 34 Misc3d 138 (App. Term 2011). Thus, absent a showing that the number is required for the location and/or release of records, disclosure of a party's social security number is unwarranted. 1 of 17

2 Without waiving said objection, the last four numbers are The occurrence took place on May 7, The time of the occurrence was at approximately 7:00 PM. 4. The occurrence took at PS R373, 91 Henderson Avenue, County of Richmond, City of New York, State of New York. 5. The request is objected to as this demand seeks information which is evidentiary in nature and calls for expert and legal conclusions, and thus inappropriate for a Bill of Particulars. State v. Horsemen's Benevolent and Protective Association. 34 AD2d 769, 311 NYS. 511, 512 (2d Dept. 1970), See also 3 Weinstein-Korn-Miller. N.Y. Civ. Prac. par ; Siegel Practice Commentaries, McKinney's Cons. Laws of N_1, Book 7B, CPLR , pg Without waiving said objection, the accident happened when a scaffold stair gave way. 6. The accident happened in the rear of the school where pointing was occurring. 7. See 6 above. 8. See 5 above. 9. Plaintiff was employed as a laborer. The remainder of the request is objected to as this demand seeks information which is evidentiary in nature and thus inappropriate for a Bill of Particulars. State v. Horsemen's Benevolent and Protective Association, 34 AD2d 769, 311 NYS. 511, 512 (2d Dept. 1970), See also 3 Weinstein- Korn-Miller. N.Y. Civ. Prac. par ; Siegel Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR , pg Not applicable. 11. Not applicable. 2 of 17

3 12. That the defendants, their agents, servants and/or employees were careless, reckless and negligent in.that the aforesaid occurrence was caused solely and wholly through and by reason of the negligence, carelessness and recklessness of the City of New York, NYC Department of Education, the New York City School Construction Authority, and Nehal Contracting, Inc., by their agents, servants and/or employees in that the City of New York, NYC Department of Education, the New York City School Construction Authority, and Nehal Contracting, Inc., deprived the plaintiff of a safe place to work; in that they violated Section 240 of the Labor Laws; in that they violated Section 200 of the Labor Laws; in that they violated Section 241(6) of the Labor Laws; in that they violated the various Rules and Regulations of the Administrative Code of the City of New York; in that they violated the various Rules and Regulations of the Board of Standards and Appeals more commonly known as Rule 23; in that they permitted and allowed a dangerous, hazardous and defective condition to exist in the aforementioned area in which the plaintiff was working; in that the they directed, permitted and allowed the plaintiff to work in an area which was dangerous, hazardous and unsafe; in failing to provide proper safety and maintenance procedures so as to ensure the safety of the area in which the plaintiff was working; in failing to have sufficient and/or efficient personnel in and about the premises; in failing to properly and adequately supervise the progress of work at the aforementioned premises, and more particularly, the area of the premises in which the plaintiff was working; in failing to give warning or notice of the hazardous and dangerous conditions, although said conditions existed for a long enough period of time so that the City of New York, NYC Department of Education, the New York City School Construction Authority, and Nehal Contracting, Inc., by their agents, servants and/or employees should have had or did have actual 3 of 17

4 knowledge of the said hazardous and dangerous condition, and neglected and failed to remedy same; in that the they was further negligent in that they created and maintained an absolute nuisance under the circumstances; in failing to provide this plaintiff with a safe and unobstructed place to work; in failing to provide a proper and safe surface under this plaintiff for him to do his work; in that the defendants were further negligent in failing to properly guard the hazardous and dangerous condition; in permitting, allowing and maintaining the hazardous and dangerous condition to exist therein; in failing to provide protective barriers in or about the area where the plaintiff was caused to be injured; in failing to provide warnings, barricades or other protective devices in and about the area where the plaintiff was caused to be injured; in violation of Rule 23 including but not limited to , , , (b), (f) 8 (h); (b) 8 (g); in allowing and permitting the scaffold to move; in failing to furnish a stable scaffold; in failing to secure the staircase of the scaffolding to prevent movement of the stairs when walked upon; in allowing and permitting the stairs to tilt as plaintiff was walking upon same; in violation of the applicable OSHA sections which set industry customs, standards and practices. 13. Actual notice is not required in Labor Law cases of this type. 14. Constructive notice is not required in Labor Law cases of this type. 15. Plaintiff KENNETH EARL has sustained the following personal injuries: Displaced fracture of the 4"' metatarsal. Fracture of the 3d metatarsal. Left arm and elbow abrasions. Left knee abrasions with limitation of motion. Cam walker. 4 of 17

5 Left knee grade 2-3 MCL sprain. Possible meniscal capsular separation left knee. Hinged knee brace. Contusions of the medial and lateral femoral condyles and well as medial and lateral tibias left knee. Left knee joint effusion. The above injuries are accompanied by severe pain, tenderness, swelling, stiffness, discomfort, weakness, restriction of motion, damages, compromise and degeneration of the underlying soft tissues, blood vessels, bones, nerves, tendons, ligaments and musculature and all of the natural consequences following therefrom. As a result of the above injuries, plaintiff has suffered and continues to suffer severe pain loss of appetite and difficulty sleeping. Plaintiff has further suffered and continues to suffer severe pain and difficulty with prolonged standing, walking, bending, climbing, stairs, lifting or carrying heavy objects, performing strenuous activities, finding a comfortable position or sleeping. Any and all of the above injuries at or near any body joint will result in traumatic arthritis and/or onset of arthritis, osteoarthritic involvement, osteoporosis and/or necrosis at an earlier age, at an accelerated rate and with greater severity than would have otherwise occurred. All of the aforesaid injuries are claimed to be permanent. 16. No other injuries are claimed at this point. 17. Plaintiff was treated in the emergency room of Raritan Bay Medical Center. 18. Plaintiff was totally disabled until July 23, Plaintiff remains partially disabled to date. 20. Plaintiff was employed by PJP Installers, 31 South Street, Mt. Vernon, NY on the date of loss. Plaintiff was incapacitated from May 7, 2015 through July 23, of 17

6 Plaintiff was earning $36.47/hour or $1,458/week. Plaintiff claims lost wages in the sum of $16, Not applicable. 22. See 17 above. 23. Plaintiff was confined to bed and home from May 7, 2015 through July 23, 2015 except for necessary doctor visits. 24. Plaintiff claims the following special damages: a) Physicians - estimated at $7,000.00; b) Medical supplies - estimated at $100.00; c) X-rays - included in 'a' and 'd'; d) Hospital - estimated at $1,000.00; e) Nurses - not applicable. 25. The expenses were covered by the NYS Insurance Fund. 26. This questions cannot be answered with reasonable certainty at this time. 27. See 1 above. 28. See 12 above. 29. None at the present time. 30. Plaintiff has received partial lost wages from the NYS Insurance Fund. 31. No claim is made at the present time of reduced life expectancy. 32. No claim is made at the present time of reduced work life expectancy. 33. Not applicable. 34. Plaintiff reported the accident to Ali Sayed of Nehal orally. 35. See 12 above. The remainder of the request is objected to as this demand seeks information which is evidentiary in nature, and seeks legal and expert 6 of 17

7 conclusions, and thus inappropriate for a Bill of Particulars. State v. Horsemen's Benevolent and Protective Association, 34 AD2d 769, 311 NYS. 511, 512 (2d Dept. 1970), See also 3 Weinstein-Korn-Miller, N.Y. Civ. Prac. par ; Siegel Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR , pg Not applicable. 37. Plaintiff was on premises for purposes of his employment. 38. See 20 above. 39. Plaintiff does not receive Medicare. 40. See No claim for Medicare was made. 42. Plaintiff will not be a Medicare beneficiary within 5 years. 43. Plaintiff has not applied for SSD. 44. Not applicable. 45 Not applicable. 46. Not applicable. 47. Not applicable. Dated: New York, NY September 24, 2015 Very truly yours j ROSENBERG MINC FAL OF LFF LLP BY: O' TO: Cozen O'Connor 45 - Broadway 16th Floor New York, NY (212) Steven Falkoff 122 E. 42nd Street - Suite 3800 New York, NY Our File: E FILE 7 of 17

8 ATTORNEY VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.: Steven Falkoff, an attorney duly admitted to practice law in the Courts of the State of New York, and a member of the law firm of ROSENBERG, MINC, FALKOFF & WOLFF, LLP, attorneys for the Plaintiffs herein, makes the pursuant to CPLR 2106: following affirmation That deponent is the attorney for the plaintiffs in the action within; that deponent has read the foregoing 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 upon information and belief, and as to those matters deponent believes it to be true. The reason that this verification is not made by plaintiffs and is made by deponent is that plaintiffs is/are not presently in the county where the attorneys for the plaintiffs have their office. That the source of Affirmant's knowledge and the grounds of Affirmant's belief as to all matters not stated upon deponent's knowledge are from investigations made on behalf of said plaintiffs. Dated: NEW YORK, NEW YORK September 24, 2015 Steven Falk 8 of 17

9 UNIFORM COURT RULE a CERTIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.: I, the undersigned, an attorney at law duly admitted to practice in the Courts of New York State, Affirm that I am a member of the firm ROSENBERG, MINC, FALKOFF WOLFF, LLP, attorneys of record for Plaintiffs in the within action; I have read the foregoing VERIFIED BILL OF PARTICULARS and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. Dated: NEW YORK, NEW YORK September 24, of 17

10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND KENNETH EARL and DONNA EARL -against- Plaintiffs, SUPPLEMENTAL VERIFIED BILL OF PARTICULARS Index No.: /2015 CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and NEHAL CONTRACTING, INC., Defendants. Plaintiff, KENNETH EARL, by his attorneys, ROSENBERG MINC FALKOFF 8 WOLFF, LLP, as and for his Supplemental Verified Bill of Particulars regarding lost wages, respectfully sets forth as follows: There are a total of 56 days in the calculated period, inclusive from May 8th, 2015 through July 24th, Vacation fund: $2 per hour x 8 hours = $16 per day x 56 days = $896.00; Annuity fund: - May 8th to June 30th = 38 $6.75 per hour = $54 per day x 38 days = $ ; July 1st to July 24th = 18 $7.00 per hour = $56 per day x 18 days = $ ; Salary: Base rate wage for this period was $36.47 per hour plus a 5% night differential of $1.82 per hour, for a total of $38.29 per hour x 8 = $ per day x 56 days = $17, SUMMARY OF TOTAL INCOME LOSSES: $21, Dated: New York, New York July 31, 2017 Yours, etc. Steven Falkoff ROSENBERG MINC FALKOFF & WOLFF LLP Attorneys for Plaintiffs 122 East 42nd Street, Suite 3800 New York, NY (212) Our File No E FILE 10 of 17

11 TO: Cozen O' O'Connor Attorney For: The City of New York 45 Broadway 16th Floor New York, NY Phone: (212) of 17

12 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.. Steven Falkoff, an attorney duly admitted to practice law in the Courts of the State of New York, and a member of the law firm of ROSENBERG, MINC, FALKOFF 8 WOLFF, LLP, attorneys for the Plaintiffs herein, makes the pursuant to CPLR 2106: following affirmation That deponent is the attorney for the plaintiffs in the action within; that deponent has read the foregoing SUPPLEMENTAL 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 upon information and belief, and as to those matters deponent believes it to be true. The reason that this verification is not made by plaintiffs and is made by deponent is that plaintiffs is/are not presently in the county where the attorneys for the plaintiffs have their office. That the source of Affirmant's knowledge and the grounds of Affirmant's belief as to all matters not stated upon deponent's knowledge are from investigations made on behalf of said plaintiffs. Dated: NEW YORK, NEW YORK July 31, 2017 Steven Falkoff 12 of 17

13 UNIFORM COURT RULE a CERTIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.: I, the undersigned, an attorney at law duly admitted to practice in the Courts of New York State, Affirm that I am a member of the firm ROSENBERG, MINC, FALKOFF WOLFF, LLP, attorneys of record for Plaintiffs in the within action; I have read the foregoing SUPPLEMENTAL VERIFIED BILL OF PARTICULARS and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. Dated: NEW YORK, NEW YORK July 31, of 17

14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND KENNETH EARLand DONNAEARL AMENDED VERIFIED BILL Plaintiffs, OF PARTICULARS -against- Index No.: /2015 CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY and NEHAL CONTRACTING, INC., Defendants Plaintiff, KENNETH EARL, by his attorneys, ROSENBERG MINC FALKOFF 8 WOLFF, LLP, as and for his Amended Verified Bill of Particulars regarding lost wages, respectfully sets forth as follows: There are a total of 56 days in the calculated period, inclusive from May 8th, 2015 through July 24th, Vacation fund: $2 per hour x 8 hours = $16 per day x 56 days = $896.00; Annuity fund: - May 8th to June 30th days = $2,052.00; July 1st to July 24th = 38 $6.75 per hour = $54 per day x 38 = 18 $7.00 per hour = $56 per day x 18 days = $1,044.00; Salary: Base rate wage for this period was $36.47 per hour plus a 5% night differential of $1.82 per hour, for a total of $38.29 per hour x 8 = $ per day x 56 days = $17, Pension Credits: Plaintiff claims loss of 3 pension credits for the year He usually receives, 10 credits for the year, but only received 7 as the result of less hours worked from the time missed. Each credit is worth $12.50 toward his monthly pension payment upon retirement, and lost credits cannot be made up. Thus, plaintiff's loss of the 3 credits amounts to $37.50 per month or a total loss of $ SUMMARY OF TOTAL INCOME LOSSES: $21, of 17

15 Dated: New York, New York December 20, 2017 Yours, etc. TO: Cozen O' O'Connor Attorney For: The City of New York Steven Falkoff ROSENBERG MINC FALKO F & WOLFF LLP Attorneys for Plaintiffs 122 East 42nd Street, Suite 3800 New York, NY (212) Our File No E FILE 45 Broadway 16th Floor New York, NY Phone: (212) t 15 of 17

16 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.: Steven Falkoff, an attorney duly admitted to practice law in the Courts of the State of New York, and a member of the law firm of ROSENBERG, MINC, FALKOFF 8 WOLFF, LLP, attorneys for the Plaintiffs herein, makes the following affirmation pursuant to CPLR 2106: That deponent is the attorney for the plaintiffs in the action within; that deponent has read the foregoing AMENDED 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 upon information and belief, and as to those matters deponent believes it to be true. The reason that this verification is not made by plaintiffs and is made by deponent is that plaintiffs is/are not presently in the county where the attorneys for the plaintiffs have their office. That the source of Affirmant's knowledge and the grounds of Affirmant's belief as to all matters not stated upon deponent's knowledge are from investigations made on behalf of said plaintiffs. Dated: NEW YORK, NEW YORK i December 20, 2017 Steven Falkoff 16 of 17

17 UNIFORM COURT RULE a CERTIFICATION STATE OF NEW YORK ) ) ss.. COUNTY OF NEW YORK ) I, the undersigned, an attorney at law duly admitted to practice in the Courts of New York State, Affirm that I am a member of the firm ROSENBERG, MINC, FALKOFF WOLFF, LLP, attorneys of record for Plaintiffs in the within action; I have read the foregoing AMENDED VERIFIED BILL OF PARTICULARS and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. Dated: NEW YORK, NEW YORK December 20, of 17