SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------X DELORES BRANNIGAN and DALE BRANNIGAN, Index No.: 500562/13 Plaintiffs, RESPONSE TO PLAINTIFFS' DEMAND FOR A VERIFIED -against- BILL OF PARTICULARS NEW YORK CITY HOUSING AUTHORITY, --------------------------------------------------X Defendant. COUNSELORS: Defendant, NEW YORK CITY HOUSING AUTHORITY, by its attorneys, Herzfeld 8 Rubin, P.C., as and for its response to Plaintiffs' Demand for a Bill of Particulars as to Affirmative Defenses, responds as follows, upon information and belief: 1. The plaintiff engaged in culpable conduct in that the plaintiff failed to exercise reasonable care; failed to look where she was walking before she proceeded; failed to use that degree of care that a reasonably prudent person would have used under the same circumstances; voluntarily engaged in an activity involving a risk of harm and knew and fully understood, or should have known and fully understood the risk of harm; failed to use reasonable care to avoid the accident; failed to see that which under the facts and circumstances he should have seen by the proper use of senses; did not observe that which was there to be seen. 2. The risk assumed by the plaintiff includes proceeding without first
ascertaining if it was safe to do so, failing to look where she was walking; failing to use that degree of care that a reasonably prudent person would have used under the same circumstances; voluntarily engaged in an activity involving a risk of harm and knew and fully understood, or should have known and fully understood the risk of harm; failed to use reasonable care to avoid the accident; failed to see that which under the facts and circumstances he should have seen by the proper use of senses; did not observe that which was there to be seen. 3. Article 16 of the CPLR may apply since when a verdict or decision in an action or claim for personal injury is determined in favor of a plaintiff an action involving two or more tortfeasors jointly liable and the liability of a 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 plaintiff for non-economic loss shall not exceed that defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for noneconomic loss; provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the plaintiff proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action. 4. Defendant is entitled to an offset under CPLR 4545(c). CPLR 4545(c) allows for an offset in any action brought to recover damages for personal injury where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source 2
such as insurance (except for life insurance), social security (except those benefits provided under title XVIII of the social security act), workers' compensation or employee benefit programs (except such collateral sources entitled by law to liens against any recovery of the plaintiff). If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits. In order to find that any future cost or expense will, with reasonable certainty, be replaced or indemnified by the collateral source, the court must find that the plaintiff is legally entitled to the continued receipt of such collateral source, pursuant to a contract or otherwise enforceable agreement, subject only to the continued payment of a premium and such other financial obligations as may be required by such agreement. 5. To the extent that other parties may have caused or contributed to the accident or injuries alleged by their actions or inactions, those parties must be joined to this action. 6. Plaintiff has failed to properly plead a cause of action as against defendant NEW YORK CITY HOUSING AUTHORITY. In addition, plaintiff's complaint fails to state a cause of action against the defendant to the extent that the defendant did not breach a duty owed to plaintiffs. 6. The Intervening superceeding acts of others include the actions taken by third-parties which caused or contributed to the plaintiff's accident or injuries. 7. The intervening superceeding actions of the plaintiff include the culpable 3
conduct, assumption of the risk and negligence of the plaintiff as discussed above. 8. The culpable conduct of others include the actions or inactions taken by third-parties which caused or contributed to the plaintiff's accident or injuries. 9. General Obligations Law 15-108 is applicable since when a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest. 10. When a verdict or decision in an action or claim for personal injury is determined in favor of a plaintiff in an action involving two or more tortfeasors jointly liable or in a claim and the liability of a 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 plaintiff for non-economic loss shall not exceed that 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; provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the plaintiff proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action.
11. Plaintiff's failure to mitigate damages includes her failure to follow the recommendations of her treating physicians and other medical professionals following the alleged accident. Dated: New York, New York February 13, 2015 HERZFE)D @~PU N, P.C. in P wl Atto s for Defen an NEW YORK CITY HOUSING AUTHORITY 12th 125 Broad Street, Floor New York, New York 10004 (212) 471-8500 TO: NAPOLI BERN RIPKA SHKOLNIK, LLP Joseph P. Napoli, Esq. Attorneys for Plaintiffs 350 Fifth Avenue, Suite 7413 New York, NY, 10118 (212) 267-3700 5
V E R I F I C A T I 0 N WILLIAM P. PAWLOW, an attorney duly admitted to practice before the Courts of the State of New York hereby affirms the following to be true under penalty of perjury: I am a member of the law firm of Herzfeld 8 Rubin, P.C., attorneys for defendant, NEW YORK CITY HOUSING AUTHORITY, in the above action. I have read the annexed Response to Plaintiff Demand for a Verified Bill of Particulars and know the contents thereof. The same is true to my own knowledge except as to the matters stated therein to be alleged upon information and belief, and as to those matters I believe them to be true. The grounds of my belief as to all matters stated therein not upon my knowledge are based upon the office files, investigations which your affirmant caused to be made, the reports thereon and communications had with the defendant in this action. This verification is made pursuant to CPLR 3020(d)(2) in that defendant, NEW YORK CITY HOUSING AUTHORITY, is a governmental subdivision, board, commission or agency. Dated: New York, New York February 13, 2015 /..---'W li. Pa 6
AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss.: Kate Lartey, being duly sworn, deposes and says: That deponent is not a party to this action; is over 18 years of age and reside in New York County, New York. That on February 13, 2015, I served the within RESPONSE TO PLAINTIFFS' DEMAND FOR A VERIFIED BILL OF PARTICUALRS to the following attorney(s) for the parties listed below, by depositing a true copy thereof enclosed in a postpaid wrapper in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York, addressed to the following attorneys at the last known addresses set forth below: TO: NAPOLI BERN RIPKA SHKOLNIK, LLP Joseph P. Napoli, Esq. Attorneys for Plaintiffs 350 Fifth Avenue, Suite 7413 New York, NY, 10118 Kate Lartey Sworn to before me this "' 1 day of February 2015 NOTARY Kathleen Gyan PUBLIC Notary Public State of NewYork No. 01GY6291301 Qualified in Kings Commission County expires 10/15/2017