FILED: NEW YORK COUNTY CLERK 12/15/2016 09:09 AM INDEX NO. 154389/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/15/2016 Exhibit N
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SIMON SMITH and NADIRA SMITH, Plaintiffs, Index No: 154389/2015 -against- LEGACY YARDS TENANT, LLC, THE RELATED COMPANIES, OXFORD PROPERTIES, METROPOLITAN TRANSPORTATION AUTHORITY, LONG ISLAND RALL ROAD, CITY OF NEW YORK, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY and NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, VERIFIED BILL OF PARTICULARS Defendants. COUNSELORS: Plaintiff, by his attorneys, NAPOLI SHKOLNIK, PLLC, as and for Defendants, LEGACY YARDS TENANT, LLC, THE RELATED COMPANIES, OXFORD PROPERTIES, METROPOLITAN TRANSPORTATION AUThORITY, LONG ISLAND RAIL ROAD, CITY OF NEW YORK, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY and NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, Demand for a Verified Bill of Particulars, respecttlilly sets forth and alleges, upon information and belief: 1. Plaintiff was born in 1971 in Grenada. 2. Plaintiff resides at 370 East 96th Street Apt #1 -R, Brooklyn, NY 11212. 3. The social security number of plaintiff is XXX-XX-8732. 4. The accident occurred on Wednesday, February 5,2014. 5. The accident occurred at approximately 10: 30 p.m. 6. The location of the accident was at what is now The Highline, 38th Street and lo ~ Avenue, New York, NY 10022 on the southeast side of the building. 7. Plaintiff was assigned to work at this location when he slipped and fell due to snow and ice on the ground in his work area and/or walkways or pathways leading to his work area.
That the above mentioned occurrence and the results thereof was caused by the negligence of the defendants, its agents, servants, licensees, contractors, subcontractors, employees and other affiliates, agencies and departments, and those acting under its direction, behest, permission and control, in the operation, maintenance, control, possession, supervision, direction, construction, renovation and or alteration of said premises in that they failed to provide plaintiff with a safe place to work; in that they negligently, carelessly and recklessly failed and omitted to properly construct, erect, maintain, inspect, repair and operate the worksite at the aforesaid premises so as to provide reasonable and adequate protection and safety to the persons thereon, and more particularly to the plaintiff herein; negligently, carelessly and recklessly created and/or permitted and/or allowed to exist dangerous conditions and slipping/tripping hazards at the worksite at the aforesaid premises; failed and omitted to ensure that the walkways, pathways, work areas, material storage areas, public and common areas of the worksite on the aforesaid premises were kept free of debris, accumulations of snow and ice, and scattered tools and materials, obstructions and other such dangerous and hazardous conditions despite receiving actual and/or constructive notice of the same; in allowing the site to become icy and slippery; in failing to inspect and/or improperly inspecting said site and area; in causing, permitting and allowing a slippery, dangerous, hazardous, icy and/or snowy condition and nuisance to be and exist for an excessive and unreasonable period of time, despite actual notice and/or constructive notice of same; in causing, permitting and/or allowing the formation and accumulation of ice and/or snow and an obstruction to lawlkil persons traveling along said site, including plaintiff herein; in causing, permitting and allowing the formation and accumulation of ice and/or snow to be and remain on and about the aforesaid location
despite having knowledge of same; in failing to clean, remove, cover, shovel and/or otherwise remedy the accumulation of ice and/or snow which was caused to be and accumulate at and upon the aforesaid location, which presented a slipping and other hazard to those persons lawfully traveling on the aforesaid construction site; in negligently cleaning, removing, shoveling and/or otherwise utilizing inadequate or in appropriate methods to remedy the accumulations of ice and/or snow which existed at and upon the aforesaid location, which presented a slipping and other hazards to persons lawfully traversing and/or working at on the aforesaid location of the construction site; in causing, permitting and/or allowing the aforesaid location to be, become and remain in a slippery, dangerous and hazardous condition, thereby constituting a trap, nuisance and hazard; in failing to remove, cover and/or otherwise remedy the slippery and icy and/or snow condition and accumulation of ice and/or snow which presented a slipping and other hazard condition at the aforesaid location; in failing to mark off:, rope off:, cordon off; erect barricades, place warning placards or signs or otherwise warn persons and workers, particularly the plaintiff, of the unsafe conditions existing on the aforesaid location, or otherwise restrict the access to and/or use of the aforesaid areas to prevent injury to the workers, the general public and specifically the plaintiff; in failing to take adequate and proper safety measures and precautions for all those lawfully using said area and the plaintiff in particular; in failing to place sand, salt, calcium chloride and or other material needed to remedy the slippery and icy and/or snow condition and accumulation of ice and/or snow which presented a slipping and other hazard condition at the aforesaid location; in failing to have a site safety person tasked with the purpose of identifying dangerous conditions at the job site, including the conditions complained of herein; in
failing to enforce site safety rules and regulations as they relate to dangerous conditions, including snow and ice, at the job site; in negligently retaining contractors and subcontractors who failed to ensure and/or enforce site safety rules and regulations designed to address the dangerous conditions, including snow and ice at the job site and in work areas and walkways; in permitting and allowing the aforesaid condition to exist on the area thereat; negligently, carelessly and recklessly failed to safely and properly coordinate the removal of ice and snow at the aforesaid worksite; negligently, carelessly and recklessly failed to keep the jobsite, including walkways/ passageways/stairways and/or ramp ways and common working areas free from snow, ice, debris, construction materials, wires, cables and/or other tripping hazards; in negligently causing, allowing, and permitting dangerous conditions to interfere with the plaintiffs safe passage during the performance of his work at the aforesaid worksite; violated the applicable laws, rules, regulations, and codes of the City and State of New York, more specifically Labor Law 200 and 241(6), Section 23 of the Industrial Code of the State of New York, including but not limited to Sections 23-l.7(b)(1) and 23-l.7(e)(1) & (2) and 23-1.7(f) and 23-1.22(b) (1-4) and 23-2.1(a) and 23-9.8(e); and the Occupational Safety & Health Administration s rules and regulations as they pertain to construction and renovation work, specifically including 29 CFR 1910 and 29 CFR 1926. 8. -10 The defendants, their servants, agents and/or employees had actual and constructive notice of the said dangerous, defective and unsafe condition. Without in any way conceding that actual notice is a necessary prerequisite to suit herein, plaintiff claims that the defendants, their agents, servants and/or employees, the exact identities of whom are presently unknown or unavailable to the plaintiff, and subject to further discovery
proceedings, had actual notice of the said dangerous, unguarded, defective and unsafe conditions and did create said dangerous, unguarded and defective conditions, and were present upon said premises by their servants, agents and/or employees, and actual notice was given to the defendants, their servants, agents and/or employees prior to this accident. Further, upon information and belief, defendants, their servants, agents and/or employees negligently and improperly undertook to remedy the subject conditions but failed to do so thereby making the subject conditions worse and more dangerous. Plaintiff reserves the right to further respond to this demand upon completion of further discovery proceedings and depositions. Without in any way conceding that constructive notice is a necessary prerequisite to suit herein, plaintiff claims that the defendants, their servants, agents and/or employees had constructive notice of the said dangerous, unguarded and defective conditions and caused, allowed and permitted same to exist and remain for an unreasonably long period of time prior to this accident, when they knew or could and should have known of the existence of said dangerous, unguarded and defective conditions which existed for an unreasonably long period of time prior to this accident, the exact nature and/or duration of which is not presently known or available to the plaintiff and subject to further discovery proceedings, and a reasonable inspection of the said premises would have revealed the existence of said dangerous, unguarded and defective conditions. Plaintiff reserves the right to further respond to this demand upon completion of further discovery proceedings and depositions.
II. Plaintiff sustained the following personal injuries: TRAUMA TO LEFT KNEE SURGERY 4/9/2014: ARTHROSCOPY OF LEFT KNEE; SYNOVECTOMY; INJECTION OF LEFT KNEE; CHRONDROPLASTY OF LEFT PATELLA; MEDIAL MENISCETOMY; ABNORMAL MRT; TORN MEDIAL MENISCUS; SYNOVITIS OF LEFT KNEE; GRADE IV CI-JONDROMALACIA OF LEFT PATELLA; MILD EFFUSION; UNABLE TO RUN; DIFFICULTY KNEELING; DIFFICULTY SQUATTING; DIFFICULTY WALKING; WEAKLESS N LEFT KNEE; CLICKING OF LEFT KNEE; DIFFICULTY CLIMBING STAIRS; NEED FOR FUTURE MEDICAL TREATMENT As a result of the above, plaintiff suffers severe pain and tenderness of the left knee, restriction of motion, swelling, weakness, inability to bear weight, loss of function and the articulations, pain on motion, all with involvement of the surrounding soft tissues, nerve endings, blood vessels, muscles, tendons and ligaments, all with resultant pain, deformity and disability. TRAUMA TO LUMBAR SPINE POSTEROLCENTRAL DISC 1-IERNIATION L5-S I LEVEL; IMPINGEMENT ON INTERVERTEBRAL FORMINA; NARROWING OF ÀY DIAMETER SPINAL CANAL AT L5-S1 LEVEL; POSTERIOR BULGING DISCS L3-L4 AND L4-L5 LEVELS; IMPAIRED MOBILITY; LIMITED RANGE OF MOTION; DIFFICULTY SIlTING OR STANDING; NEED FOR FUTURE PHYSICAL THERAPY; NEED FOR FUTURE MEDICAL TREATMENT
As a result of the above injury, plaintiff suffers severe pain and tenderness of the lumbar spine, weakness, loss of function, loss of strength, restriction of motion, difficulty in ambulation, inability to sit for extended periods of time, difficulty in sleeping pain radiates to the lower extremities, all with involvement of the surrounding soft tissues, nerve endings, blood vessels, muscles, tendons and ligaments, all with resultant pain, deformity and disability. As a result of the above injuries, plaintiff experiences severe pain, suffering anxiety, nervousness, anxiety, temporary inability and diminished ability to attend to normal and customary daily activities. 12. Plaintiff is not alleging aggravation to pre existing injury/condition. 13. Loss of earnings plaintiff is claiming, to be provided at a later date, under separate cover. 14. Plaintiff visited following for medical treatment/evaluation: Kings County Hospital Center 451 Clarkson Avenue Brooklyn, NY 11203 Comprehensive Healthcare Medical PC 3226 Kings Highway Brooklyn, NY 11234 Dr. Paul Ackerman 3500 Nostrand Ave Brooklyn, NY 11229 Omega Diagnostic Imaging PC 1525 Voorhies Avenue Brooklyn, NY 11235 15. Plaintiff was not a student at time of the accident. 16. Plaintiff was confined home for one week and in bed for three days. 17. Objection, defendants demand for the specific conditions which constituted an obstruction which caused plaintiffs injuries on said premises, as an improper demand for a bill of particular. Plaintiff further objects to said demand as subject to further discovery procedures, specifically depositions of the defendants herein.
18. Defendants violated Labor Law ~ 200 and 241(6) as well as Section 23 of the Industrial Code of the State of New York, including but not limited to Sections 23-1.7(b)( 1) and 23-l.7(e)(1) & (2) and 23-1.7(f) and 23-1.22(b) (1-4) and 23-2.1(a) and 23-9.8(e); and the Occupational Safety & Health Administrations rules and regulations as they pertain to construction and renovation work, specifically including 29 CFR 1910 and 29 CFR 1926. 19. Objection, defendants demand for the specific conditions which constituted an obstruction which caused plaintiffs injuries on said premises, as an improper demand for a bill of particular. Plaintiff further objects to said demand as subject to further discovery procedures, specifically depositions of the defendants herein. 20. Employer directing plaintiff at time of accident was: Tutor Perini 200 Chambers St, New York, and NY 10007. 21. Plaintiff s job duty at time of accident was carpenter 22. Loss of consortium by Plaintiff Nadira Smith, if applicable, shall be provided at plaintiffs depositions. Dated: New York, New York February 19, 2016 Yours, etc., NAPOLI SHKOLNIK, PLLC A (torneyfor Plaint~[f By: rl LINDS~,t HARRIMAN, ESQ. 130 44enue of the Americas, Tenth Floor Nefr?ork,NY 10019 (212) 397-1000 See RIDER
LONDON FISHER, LLP Attorneys for Defendants: LEGACY YARDS TENANT, LLC, THE RELATED COMPANIES, OXFORD PROPERTIES, METROPOLITAN TRANSPORTATION AUTHORITY, LONG ISLAND RAIL ROAD, CITY OF NEW YORK, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY and NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, 59 Maiden Lane New York, NY 10038 RIDER
ATTORNEY S VERIFICATION LINDSEY HARRIMAN, ESQ, an attorney duly admitted to practice before the Courts of the State of New York affirms the following to be true under the penalties of perjury: I am an attorney at NAPOLI SHKOLNIK, PLLC, attorneys of record for Plaintiff in the action within. I have read the annexed VERIFIED BILL OF PARTICULARS and know the contents thereof; and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief; and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon facts, records, and other pertinent information contained in my files. The reason this verification is made by me and not Plaintiff is that Plaintiff is not presently in the county wherein the attorneys for the Plaintiff maintain their offices. DATED: New York, New York February 19, 2016 ~ HARRIMAN
AFFIRMATION OF SERVICE BY MAIL STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK Lindsey Harriman, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: York. I am not a party to this action; I am over the age of 18 years; and resides in Queens, New That on the 19th day of February 2016 deponent served the within VERIFIED BILL OF PARTICULARS upon the following attorneys for the defendant(s), as listed below, at the address designated by said attorneys for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper, in a post office official depository under the exclusive care and custody of the United States Postal Service within the State of New York. TO: LONDON FISHER, LLP Attorneys for Defendants LEGACY YARDS TENANT, LLC, THE RELATED COMPANIES, OXFORD PROPERTIES, METROPOLITAN TRANSPORTATION AUTHORITY, LONG ISLAND RAIL ROAD, CITY OF NEW YORK, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY and NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, 59 Maiden Lane New York, NY 10038 L~e~iman
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SIMON SMITH and NADIRA SMITH, PIainLiff Index No: 154389/2015 -against- LEGACY YARDS TENANT, LLC, THE RELATED COMPANIES, OXFORD PROPERTIES, METROPOLITAN TRANSPORTATION AUTHORITY, LONG ISLAND RAIL ROAD, CITY OF NEW YORK, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY and NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, Defendants. VERIFIED BILL OF PARTICULARS NAPOLI SHKOLNIK LAW, PLLC Attorneys for Plaintiffs 1301 Avenue of the Americas, Tenth Floor New York, NY 10019 212-397-1000 The undersigned attorney hereby certifies, pursuant to 22 NYCRR 130-1.1-a that he/she has read the within papers and that same are not frivolous as that term is defined in 22 NYCRR 130-1.1(c).,/,JANDSEY HARRIMAN ;z:;;;:~zr=~~;;z;z;~e= Dated, ATTORNEY(S) FOR PLEASE TAKE NOTICE: D NOTICE OF ENTRY that the within is a (certified) true copy of an duly entered in the office of the clerk of the within named court on 201. C NOTICE OF SETFLEMENT 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, at on 201 at O clock.m. Dated, NAPOLI SHKOLNIK LAW, PLLC Yours, etc.