I SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LUIS RODRIGUEZ, against Plaintiff, VERIFIED BILL OF PARTICULARS Index No.: 515088/2016 ASTRALEASE ASSOCIATES INC., CITY TOWING & RECOVERY INC. and RICHARD KOENING, Defendants. Plaintiff, by the undersigned attorney, WILLIAM SCHWITZER & ASSOCIATES, P.C., responding to defendant ASTRALEASE ASSOCIATES INC., and CITY TOWING & RECOVERY INC.'s demand for a bill of particulars, alleges, upon information and belief, as follows: 1. Plaintiff's address is 10A Verona Street, Brooklyn, New York 11231. 2. The date of the occurrence is April 12, 2016. The time of the occurrence was approximately 6:00 P.M. 3. The location of the occurrence was at a BP Gas Station on 111 Street at or near its intersection of Atlantic Avenue, County of Queens, City and State of New York. 4. The defendants were careless, reckless, and/or negligent as follows: in improperly entering a gas station and striking plaintiff, in operating said motor vehicle at an unreasonable, unsafe, excessive and illegal rate of speed under the circumstances then and there prevailing; in failing to be alert, attentive and vigilant; in failing to observe the plaintiff;
in failing to yield the right of way to the plaintiff; in suddenly, unexpectedly and without any signal or warning, striking a pedestrian, and more particularly the plaintiff herein, with the motor vehicle being operated by the defendant; in failing to keep a proper lookout; in failing to have said motor vehicle under reasonable and proper control; in failing to timely see the plaintiff; in causing said motor vehicle to come in contact and collision with the plaintiff; in failing to timely and properly apply brakes; in failing to timely and properly turn steering mechanisms; in failing to timely and properly sound horn; in failing to give any signal, notice or warning of said motor vehicle's approach; in failing to observe the road and the presence of the plaintiff on the road; in failing to stop the vehicle that the defendant was operating in a safe manner or location; in failing to take steps and/or actions necessary to avoid the accident; in operating said motor vehicle in violation of applicable statutes, laws, rules, regulations and ordinances including but not limited to the Vehicle and Traffic Laws of the State of New York and in otherwise operating the vehicle of the Defendant(s) in a careless, reckless and negligent manner, under the circumstances prevailing at the time of the accident; The aforesaid accident was due solely and wholly as a result of the of the careless and negligent manner in which the defendants owned, operated, maintained and controlled the aforesaid location, without the plaintiff in any way contributing thereto. 5. The following injuries were caused, aggravated, accelerated, precipitated and /or 2
enhanced as a result of the defendants' negligence: LEFT SHOULDER Tear of the Supraspinatus Tendon; Tear of the Superior Labrum; Impingement Syndrome; As a result of the foregoing, on July 20"', 2016, plaintiff was required to undergo the following procedure performed by Robert Haar M.D. at Regency Healthcare Medical, P.L.L.C. Operative Procedure (1) Left Shoulder Operative Arthroscopy (2) Debridement of rotator cuff tear (3) Debridement of labrum (4) Subacromial Decompression (5) Major Synovectomy (6) Lysis of Adhesions Procedure Description: The patient was brought to the operating room and placed supine on operating table after interscalene block was placed in the left shoulder followed by administration of sedation. The patient was placed in the beach chair positioning device and securely fastened to the operating table. A thorough examination of the shoulder under anesthesia was performed. Examination revealed full range of motion. There was no instability noted. Arthroscopy: A standard posterior portal was made inferomedial to the posterior corner of the acromion. The incision was made only through the skin. The trocar was advanced through the soft tissue with a blunt tip obturator. This was inserted into the glenohumeral joint without difficulty. A Linvatec 4 mm arthroscope was placed through a cannular and attached to video monitoring system. Inflow was achieved using a Linvatec arthroscopic pump. The pressure was maintained at 40 to 45 mm of Mercury throughout the entire procedure. Once the arthroscope confirmed visualization within the shoulder joint, it was advanced anteriorly and a second wound incision was made. Anterosuperior portal was made at the level of the biceps tendon placed anteriorly and slightly superior at the biceps using outside in technique. A 5.5mm operating cannular was placed into the Anterosuperior portal. A routine arthroscopic survey was begun. Findings: Findings revealed a partial tear of the superior labrum which was debrided at this time, type II. Posterior labrum appeared to be in continuity and in good position. There was a high grade articular sided partial tear of the supraspinatus which was debrided at this time. After probing, it was revealed that the superior labrum did not lift off the glenoid. Therefore a decision was made to debride it. Debridement over mini soft tissue showed superior glenoid below the detached labral biceps ancho trimming the free edges of the labrum. The biceps tendon was unremarkable The subscapularis tendon was unremarkable. At this point in time, exuberant synovitis was noted in the rotator interval. A synovectomy was performed at this time. Bursoscopy: Bursoscopy was then performed. A lateral portal was established. The undersurface of 3
the coracoid ligament was debrided. However, it was not resected. The supraspinatus tendon appeared intact on the bursal side. Adhesions in the subacromial space were visualized and were then debrided and lysed. A subacromial decompression was then performed. After complete debridement of the bursal tissue, the arthroscopic equipment was removed and the arthroscopic portals were closed with 40 nylon in interrupted suture fashion. Injection was given using 20 ml of 0.25% Marcaine. Dry sterile dressing was applied followed by a neutral rotation sling. The patient was awakened from anesthesia and the patient appeared to tolerate the procedure well with no complications noted. Needle and sponge counts were correct at the end of the case. Sprain/Strain; Joint effusion; Marked restriction in range of motion; Posttraumatic arthritis; Severe pain, swelling, and tenderness; Need for future surgery; As result of the foregoing the plaintiff suffers from severe pain, swelling and tenderness ol' 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. LUMBAR SPINE Herniation at L4L5; Herniation at L5Sl; Sprain/Strain; Radiculopathy; Posttraumatic arthritis; Muscle spasms; Marked loss of range of motion; Severe pain, swelling, and tenderness; 4
Need for future surgery; As result of the foregoing the plaintiff suffers from severe pain, swelling, and tenderness of' 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. CERVICAL SPINE Herniation at C3C4; Herniation at C6C7; Bulge at C5C6; Sprain/Strain; Radiculopathy; Posttraumatic arthritis; Muscle spasms; Marked loss of range of motion; Severe pain, swelling, and tenderness; Need for future surgery; As result of the foregoing the plaintiff suffers from severe pain, swelling, and tenderness of the cervical 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. LEFT FO_O_T Fracture at Fourth Metatarsal; Posttraumatic arthritis; Marked restriction in range of motion Severe pain, swelling, and tenderness; Need for future swelling; 5
LEFT ANKLE Anterior Tabofibular Ligament Tear; Sprain/Strain Joint.loint Effusion Posttraumatic arthritis; Marked restriction in range of motion Severe pain, swelling, and tenderness; Need for future swelling; As result of the foregoing the plaintiff suffers from severe pain, swelling and tenderness of of the left foot 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. As result of the foregoing the plaintiff suffers from severe pain, swelling and tenderness ol' of the left ankle 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, The foregoing injuries directly affected the bones, tendons, tissues, muscles ligaments, nerves, blood vessels and soft tissue in and about the involved areas and sympathetic and radiating pains from all of which the plaintiff suffered, still suffers and may permanently suffer; As a result of the accident and the injuries herein sustained, the plaintiff suffered a severe shock his nervous system; is sick, sore, lame, permanently disabled and has been caused pain and suffering; The plaintiff verily believes that all of the injuries hereinabove sustained, with the exception of bruises and contusions, are permanent and progressive in nature; The plaintiff may permanently suffer from the aforesaid injuries and from its effects upon his nervous system and may limit his activities in his employment. Plaintiff may be restricted in his normal activities and may permanently require medical and neurological care and attention. 6. Plaintiff has been confined to bed and/or home from the date of the accident intermittently and upon information and belief continues to be confined to bed and home on an 6
.. intermittent basis. 7. Plaintiff refers defendants to plaintiffs discovery responses for authorizations to plaintiff's medical records. 8 9. This demand is not applicable as plaintiff was not employed at the time of accident. 10. Plaintiff's date of birth is June 20, 1982. The last four digits of plaintiff's social security number are 3224. 1 1. Plaintiff is currently unaware of the total billing amounts. However, refers defendants to plaintiffs discovery responses for authorizations for medical information. The following is an estimation of those bills currently known to plaintiff: (a) Physicians' Services: Estimated at $60,000 and continuing; (b) Medical Supplies: Included in (a) and (e) herein; (c) Loss of Earnings: Not applicable; (d) XRays; Included in (a) and (e) herein; (e) Hospital Expenses: Estimated at $30,000; (f) Nurses' Services: Included in (a) and (e) herein; (g) Other Special Items: The plaintiff is claiming past, present, and future medical bills and past, present, and future pain and suffering amounts which will be determined at trial by the trier of fact. 12. This demand is not applicable as there is no claim for loss of services in the complaint. 13. Defendants violated all applicable sections of the New York State Vehicle and Traffic Law and the New York City Traffic Rules and Regulation concerning the safe and proper 7
operation of a motor vehicle upon the public ways and streets of the State of New York including, but not limited to Sections 388, 1101, 1146, 1I80, 1212, 1226 of the Vehicle and Traffic Laws of the State of New York, and Sections 401, 402, 404, 406, 407, and 412 of the Traffic Regulations of the City of New York, along with all other applicable statutes, ordinances, rules and regulation that the Court will take Judicial Notice of at the time of trial. 14. This demand is not applicable as plaintiff was not a student at the time of occurrence. 15. This demand is not applicable as plaintiff did not make a claim for Worker's Compensation. 16. Plaintiff refers defendants to answer five (5) above. 17 19. This demand is not applicable as there is no claim for defective or dangerous condition in the complaint. 20 f' 21. This demand is not applicable as there is no claim for actual or constructive notice in the complaint. 22. Plaintiff refers defendants to plaintiff s discovery responses as to authorizations to plaintiff's collateral sources. 23. Plaintiff, clearly meets the requirements set forth in 5102(d) of the Insurance Law in that she sustained a "serious injury", which resulted in Pennanent loss of use of body organ, member, function or system; Permanent consequential limitation of use of a body organ or member; Significant limitation of use of a body function or system; A medically determined injury or impairment of a nonpennanent nature, which prevented her from performing substantially all of the material acts. which constitutes her usual and customary daily activities for 90 days during the 180 days following the occurrence or impairment. Upon information and belief plaintiff, has or will 8
meet the requirements set forth in 5102(a) of the Insurance Law in that she has or will sustain economic loss greater than basic economic loss of $50,000. PLEASE TAKE FURTHER NOTICE, that the plaintiff reserves the right to serve an amended and/or supplemental Bill of Particulars in connection with all claims including those of continuing special damages and disabilities. Dated: New York, New York April 7, 2017 Yours, etc. WILLIAM SCHWITZER & ASSOCIATES, P.C. (i Beth DiamondYsq. Attorneys for Plaintiff(s) 820 2nd Avenue New York, New York 10016 (212) 6833800 TO: LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendants ASTRALEASE ASSOCIATES INC. and CITY TOWING & RECOVERY INC. 61 Broadway, Suite 2000 New York, New York 10006 2122337195 9
ATTORNEY'S VERIFICATION STATE OF NEW YORK, COUNTY OF NEW YORK I, the undersigned, an attorney admitted to practice in the courts of New York State, state under f' penalty of perjury that I am one of the attomeys for the plaintiff in the within action; I have read the foregoing VERIFIED BILLOF PARTICULARS and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe to be true. The reason this verification is made by me and not by my client, is that my client is not presently in the County where I maintain my offices. The grounds of my belief as to all matters not stated upon my own knowledge are the materials in my file and the investigations conducted by my office. Dated: New York, New York April 7, 2017 r Beth Diamond, Esq. i',' 10
AFFIDAVIT OF SERVICE STATE OF NEW YORK, ) COUNTY OF QUEENS ) I, Lauren Pellegrino, being sworn, say; I am not a party to the action, and over 18 years of age and reside in Kings County, New York. On April 10, 2017, I served the within VERIFIED BILL OF PARTICULARS by depositing a true copy thereof enclosed in a postpaid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: TO: LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendants ASTRALEASE ASSOCIATES INC. and CITY TOWING & RECOVERY INC. 61 Broadway, Suite 2000 New York, New York 10006 2122337195 I S v rn t ore 1 n 0 /0 auren Pelle~rit / NO IRY PUBLIC 'l 11
Index No. 515088/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS... LUIS RODRIGUEZ, Plaintiff, against ASTRALEASE ASSOCIATES INC., CITY TOWING & RECOVERY INC. and JOHN DOE, Defendants. VERIFIED BILL OF PARTICULARS WILLIAM SCHWITZER 4 ASSOCIATES, P.C. Attorneys for Plaintiff 2"d 10"' 820 2 Ave, 10 Floor New York, N.Y. 10017 (212) 6833800 Fax: (212) 6852356 12