NURY T. CONTRERAS VILLARRAGA v. KHELON DEY, 721528/2020, 5 (N.Y. Sup. Ct., Queens County Nov. 25, 2020) (2024)

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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`FOURTH AFFIRMATIVE DEFENSE
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`If it is determined that Plaintiff(s) or any party to this lawsuit has proceeded to arbitration
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`with respect to any issue related to this action that results in an adverse ruling to said Plaintiff(s)
`or party, then the answering Defendant(s) pleads said adverse ruling or award on the theory of
`collateral estoppel under the authority of Matter of American Insurance Co. (Messenger-Aetna
`Cas. & Sur. Co.), 43 N.Y.2d 184, 401 N.Y.S.2d 36; Altman v. Queens Tr. Corp., 94 Misc.2d
`549, 405 N.Y.S.2d 212; Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 501
`N.Y.S.2d 784; c.f. Baldwin v. Brooks, 83 A.D.2d 85, 443 N.Y.S.2d 906; Clemmens v. Apple, 65
`N.Y.2d 746 and Schultz v. Boyscouts of America, 65 N.Y.2d 189.
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`FIFTH AFFIRMATIVE DEFENSE
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`Upon information and belief, plaintiff(s) failed to mitigate damages.
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`SIXTH AFFIRMATIVE DEFENSE
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`Plaintiff(s) damages, if any, are limited by the offset provisions of Section 15-108 of the
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`General Obligations Law.
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`RESERVATION OF RIGHTS
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`the answer, defenses, and/or any
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`to amend
`the right
`Defendant(s) reserve(s)
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`counterclaims and cross claims at a later date.
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`WHEREFORE, Defendant(s) demand(s) judgment dismissing the Complaint in its
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`entirety or diminishing the damages recoverable by Plaintiff(s) in proportion to the culpable
`conduct attributable to Plaintiff(s), together with the costs, disbursem*nts, and attorney’s fees of
`this action.
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`Dated: November 23, 2020
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`Brooklyn, N.Y.
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` KHELON DEY
` One MetroTech Center, 8th Floor
` Brooklyn, New York 11201
` Tel: 212-857-8230
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`2 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`MICHAEL B. PALILLO, P.C.
`Attorney(s) for the Plaintiff(s)
`NURY CONTRERAS
`277 BROADWAY, SUITE 501
`NEW YORK, NY 10007
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`Tel: (212) 608-8959
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`3 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`KHELON DEY,
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` Defendant(s).
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`INDEX NO.: 721528/2020
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`ATTORNEY VERIFICATION
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`Our File No.: 1087050
`Case ID No.: 113573
`Your File No.:
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`I, RONIT Z. MOSKOVITS, an attorney admitted to the practice of law before the courts
`of the State of New York, and not a party to the above-referenced action, affirm the following to
`be true under the penalties of perjury:
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`1.
`Affirmant is a member of the law firm of Baker, McEvoy & Moskovits, P.C.,
`attorneys of record for answering Defendant(s) in the above-referenced action.
`2.
`Affirmant has read the VERIFIED ANSWER, BILL OF PARTICULARS, &
`COMBINED DEMANDS and knows the contents thereof; that same is true to Affirmant’s own
`knowledge, except as to the matters therein stated to be alleged on information and belief, and as
`to those matters Affirmant believes them to be true.
`3.
`This verification is made by Affirmant and not by answering Defendant(s),
`because said Defendant(s) were not within the County in which Baker, McEvoy & Moskovits,
`P.C. maintain their offices for the practice of law when this VERIFIED ANSWER, BILL OF
`PARTICULARS, & COMBINED DEMANDS was drafted.
`4.
`The grounds of Affirmant’s belief as to all matters not stated upon Affirmant’s
`knowledge is as follows: BOOKS AND RECORDS MAINTAINED BY THE FIRM OF
`BAKER, MCEVOY & MOSKOVITS, P.C. AND INFORMATION SUPPLIED BY
`AMERICAN TRANSIT INSURANCE COMPANY.
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`Dated: November 23, 2020
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`Brooklyn, NY
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`4 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`INDEX NO.: 721528/2020
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`DEMAND FOR BILL OF
`PARTICULARS &
`COMBINED DEMANDS
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`Our File No.: 1087050
`Case ID No.: 113573
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`KHELON DEY,
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` Defendant(s).
`-----------------------------------------------------------------X
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`PLEASE TAKE NOTICE that pursuant to Article 30 of the CPLR, you are hereby
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`required to file and serve upon the undersigned the following Verified Bill of Particulars of
`Plaintiff's alleged cause of action herein within thirty (30) days from the date of service hereof.
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`1. The name and address of the Plaintiff(s).
`2. The age and date of birth of the Plaintiff(s).
`3. The social security numbers of Plaintiff(s).
`4. The date and time of the occurrence.
`5. State the location of the accident/occurrence in sufficient detail to permit identification of
`the accident, providing in detail the direction in which each car was proceeding at the
`time of the accident.
`6. Separate statements setting forth all of the acts or omissions constituting the negligence
`of each Defendant(s).
`7. State what part(s) of each vehicle came in contact with each other, including contacts
`with each pedestrian, fixed object(s) or parked vehicle(s).
`8. State the statutes, rules, laws and/or ordinances that alleged Defendant(s) has/have
`violated. If property damage is being claimed, please set forth the applicable laws and
`circ*mstances in full detail.
`9. State the make, model and the year of manufacture of Plaintiff(s)' vehicle, the reasonable
`market value of same immediately prior to and immediately after the alleged accident.
`10. If personal injuries are being claimed, please set forth in full detail. Include the nature,
`extent, location and duration of each and every injury alleged to have been sustained by
`the Plaintiff(s) and if any are claimed to be permanent.
`11. If Plaintiff(s) admitted to any hospital or emergency room resulting from the
`accident/occurrence, state names and addresses of the facilities, treating physicians &
`date of admission and discharge each facility.
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`5 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`12. If applicable, the length of time, giving specific dates, that Plaintiff(s) was/were confined
`to bed and to home as a result of the alleged injuries.
`13. The length of time during which Plaintiff was incapacitated from employment and/or
`household duties as a result of the alleged injuries, giving specific dates. Set forth the
`amount of earnings or wages claimed to have been lost and the rate of wages or basis of
`remuneration received by the Plaintiff(s).
`14. If applicable, provide the amounts claimed for special damages for:
`a. Physicians' services,
`b. Medical supplies,
`c. Nurses' services,
`d. Hospital expenses,
`e. X-ray expenses,
`f. Chiropractors,
`g. Physiotherapists
`h. Drugs and medications,
`i. Loss of earnings, and
`j. Any other items of special damages claimed.
`15. The names and last known addresses of any witness to the occurrence herein, pursuant to
`Zayas V. Morales, 45 A.D.2d 610, 360 N.Y.S.2d 279.
`16. The name and last known address of any person who has information concerning the
`condition of the vehicle owned by the Plaintiff(s) and involved in the subject occurrence
`herein, as it was on the date of accident or at the time it was last in the custody and
`control of the Plaintiff(s).
`17. State Plaintiff's occupation; name & address of Plaintiff(s)' employer at the time of the
`accident. If Plaintiff(s) is/are self-employed, please state nature of business, business
`name and address, and Federal I.D. number.
`18. If Plaintiff(s) was a student at the time of the alleged occurrence, set forth the name and
`address of the school attended at time of accident and designated class or grade, and the
`length of time Plaintiff was unable to attend classes.
`19. Set forth any and all collateral sources under C.P.L.R. 4545(c), specifying date paid,
`amount of collateral source payment, by whom paid, specifying name, address, file or
`claim number and all particulars identifying the payer.
`20. State in what respect Plaintiff(s) has/have sustained a serious injury, as defined in
`subdivision (d) of Section 5102 of the Insurance Law or economic loss greater than basic
`economic loss, as defined in subdivision (a) of Section 5102 of the Insurance Law.
`21. If Plaintiff(s) claims aggravation or precipitation of pre-existing injury or condition, state
`the nature and extent of such. Provide the name and address of each hospital, clinic,
`institution, physician, and other health care provider that treated or examined Plaintiff(s)
`for such pre-existing injury.
`22. If loss of service is claimed, state or describe the nature of such service, the length of
`time each Plaintiff was deprived of such service, and the value of such service. If
`wrongful death and/or conscious pain and suffering is claimed, as defined by law, please
`set forth in reasonable detail.
`23. If applicable, set forth the place and date of the marriage of the decedent, if married, and
`to whom at the time of death. If the Plaintiff was not married to decedent, set forth the
`relationship at the time of death.
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`6 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`24. If applicable, set forth with specificity, the name(s) and address(es) of the decedent's next
`of kin, heirs at law and distributes.
`25. If applicable, state the manner in which the damages allegedly sustained by decedent’s
`next of kin and heirs at law and distributes were computed.
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`Dated: November 23, 2020
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`Brooklyn, N.Y.
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`7 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`
`INDEX NO.: 721528/2020
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`NOTICE FOR DISCOVERY
`& INSPECTION
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`Our File No.: 1087050
`Case ID No.: 113573
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`KHELON DEY,
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` Defendant(s).
`-----------------------------------------------------------------X
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`PLEASE TAKE NOTICE, that pursuant to Rule 3120 of the Civil Practice Law and
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`Rules, Defendant(s) demands that Plaintiff(s) produce and permit discovery by him, his
`attorneys, or another acting on his behalf of the following articles, documents, and things for
`inspection, copying, testing, and photographing within thirty (30) days after receipt hereof, at
`BAKER, MCEVOY & MOSKOVITS, P.C., ONE METROTECH CENTER, 8th FLOOR,
`BROOKLYN, NY 11201, at which time said articles, documents and things will be physically
`inspected, copied tested, photographed, and mechanically reproduced.
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`In lieu of strict compliance with the terms and conditions of this Notice, the undersigned
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`will accept clearly legible photocopies of the said items, if received by the undersigned at least
`five (5) days prior to the return date hereof, together with a letter from the Plaintiff(s)' attorneys
`advising as to the completeness of the items provided.
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`1. If applicable, provide a copy of Letters Testamentary or Limited Letters of
`Administration.
`2. Itemized statements of the alleged damages to Plaintiff's vehicle, together with the cost of
`repairs of each item, the garage or shop that performed the repairs, along with the shop
`license numbers.
`3. If claim is made for loss of earnings, please provide W-2 forms or certified copies of tax
`returns for one year prior to occurrence and the for the year at time of occurrence.
`4. True copy of any statement of Defendant(s) and Plaintiff(s) herein, pursuant to CPLR
`3101(e).
`5. Photographs of any vehicle involved in the accident, the accident scene or of any of the
`parties herein following the accident.
`6. Records of inspection, maintenance, and report of the vehicle owned by the Plaintiff(s)
`which was involved in this occurrence for a period of one year prior to the accident date
`herein.
`7. True copy of any accident report concerning this occurrence in the custody and control of
`Plaintiff(s) made in the ordinary course of business, pursuant to C.P.L.R. 3101(g).
`8. True copy of any MV 104 and police report filed by the operators of any motor vehicles
`involved in this accident.
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`8 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`9. Authorization
`to obtain no fault file, and/or worker’s compensation file. All
`authorizations must be HIPAA compliant pursuant to section 164.508 of the Federal
`Mandated Final Privacy Rule.
`10. Authorization to obtain employment record(s) and workers compensation record(s). All
`Authorizations must be HIPAA compliant pursuant to section 164.508 of the Federal
`Mandated Final Privacy Rule.
`11. Notice of Arbitration and Award in any Arbitration Proceeding arising from the accident,
`which is the subject of this action.
`12. Authorization to obtain all treating physician(s)' reports, bills, hospital records, surgical
`reports, pathology reports, toxicology reports, autopsy reports and bills of any medical
`condition(s) claimed to have been activated, precipitated or aggravated by the accident
`which is the subject of this action. Authorizations must be HIPAA compliant pursuant to
`Section 164.508 of the Federal Mandated Final Privacy Rule.
`13. Copy of primary and/or excess insurance policy limits of Co-Defendant(s).
`14. Produce authorization(s) to obtain any and all prior medical treatment records, reports
`and diagnostic films, pertaining to any medical treatment for a prior injury to the same
`body parts or systems, which Plaintiff(s) will allege were injured in the accident in issue.
`15. Produce authorization(s) to obtain Summons and Complaint, Bill of Particulars (or like
`pleading) and any and all Medical Record(s) and Report(s) exchanged in all prior
`personal injury lawsuits brought by Plaintiff(s).
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`PLEASE TAKE FURTHER NOTICE that upon failure to comply with this demand, a
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`Motion to Compel or Strike Plaintiff's pleading will be made pursuant to CPLR 3120 and 3124.
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`PLEASE TAKE FURTHER NOTICE that the request for items specified in this
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`document is a continuing demand and should any of the information requested become available
`or known in the future, you are required to furnish same at such time.
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`Dated: November 23, 2020
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`Brooklyn, N.Y.
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`9 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`-----------------------------------------------------------------X
`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`KHELON DEY,
`
` Defendant(s).
`-----------------------------------------------------------------X
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`INDEX NO.: 721528/2020
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`NOTICE PURSUANT
`TO CPLR 2103(e)
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`Our File No.: 1087050
`Case ID No.: 113573
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`PLEASE TAKE NOTICE that pursuant to CPLR 2103(e), demand hereby is made upon
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`you to supply the undersigned, in writing, with a list of those parties who have appeared in the
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`action and the names and addresses of their attorneys.
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`Dated: November 23, 2020
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`Brooklyn, NY
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`10 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`INDEX NO.: 721528/2020
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`COMBINED DEMANDS FOR:
`1. NAMES & ADDRESSES OF
`ALL WITNESSES
`2. EXPERT DISCLOSURE
`3. PRODUCTION OF ALL
`STATEMENTS TAKEN OF
`ANSWERING DEFENDANT(S)
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`Our File No.: 1087050
`Case ID No.: 113573
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`KHELON DEY,
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` Defendant(s).
`-----------------------------------------------------------------X
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`PLEASE TAKE NOTICE that Defendant(s) demand(s) that you set forth in writing,
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`under oath, and serve upon us within Thirty (30) days of this date, the names and addresses of
`each person known or claimed by you to be witness to the occurrence and as to notice of the
`condition, if any, alleged in the complaint in this action.
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`PLEASE TAKE FURTHER NOTICE, that pursuant to C.P.L.R. 3101 (d) (1), you are
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`hereby required to set forth the following:
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`1. The name and address of each and every person you expect to call as an expert witness at
`the trial of this action;
`2. In reasonable detail, the subject matter on which each expert is expected to testify;
`3. The substance of the facts and opinions on which each expert is expected to testify;
`4. The qualifications of each expert, and;
`5. A summary of the grounds for each expert's opinion.
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`PLEASE TAKE FURTHER NOTICE that the answering Defendant(s) demand(s) that
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`each and every party to this action produce legible copies of any and all statements, written or
`electronically recorded, taken of the answering Defendant(s) by any other party to this action
`within Thirty (30) days of this date. The above are on-going demands.
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`Dated: November 23, 2020
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`11 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`-----------------------------------------------------------------X
`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`KHELON DEY,
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` Defendant(s).
`-----------------------------------------------------------------X
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`INDEX NO.: 721528/2020
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`NOTICE OF DECLINING
`SERVICE BY
`FASCIMILE TRANSMITTAL
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`Our File No.: 1087050
`Case ID No.: 113573
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`PLEASE TAKE NOTICE that pursuant to CPLR 5, the office of BAKER, MCEVOY &
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`MOSKOVITS, P.C. will not accept service of papers, notices, motions, etc. by facsimile
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`transmittal or similar means.
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`Dated: November 23, 2020
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`Brooklyn, NY
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`12 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`KHELON DEY,
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` Defendant(s).
`-----------------------------------------------------------------X
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`INDEX NO.: 721528/2020
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`NOTICE FOR
`INSURANCE INFORMATION
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`Our File No.: 1087050
`Case ID No.: 113573
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`PLEASE TAKE NOTICE that pursuant to C.P.L.R. 3101(f), demand is hereby made
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`upon you for your policy limits including all excess insurance. Failure to disclose same will
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`necessitate the undersigned to procure a Court order and sanctions.
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`Dated: November 23, 2020
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`Brooklyn, NY
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`13 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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` Plaintiff(s),
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`- against -
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`INDEX NO.: 721528/2020
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`DEMAND FOR
`AUTHORIZATIONS FOR
`MEDICAL INFORMATION &
`PHYSICAL EXAMINATION
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`Our File No.: 1087050
`Case ID No.: 113573
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`KHELON DEY,
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` Defendant(s).
`-----------------------------------------------------------------X
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`PLEASE TAKE NOTICE that pursuant to CPLR 3101(a) and 3121, Defendant(s) hereby
`demand that Plaintiff(s) serve upon and deliver to Defendant(s), responses to the following
`demands, within Twenty (20) days as required per CPLR 3122(a)(1):
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`1. The name of all medical treatment providers, and the name and address of all medical
`treatment facilities, from whom and where plaintiff received treatment for any alleged
`injuries.
`2. Duly executed HIPAA compliant written authorizations for each medical provider and
`facility, permitting Defendant(s) attorneys to obtain full and complete copies of all
`reports, records, operative admission and nursing/anesthesia notes, photos, diagnostic
`images, and pathology reports, from any treatment provider(s). All such authorizations
`must be HIPAA compliant, and must specify the name of this firm as defendants’
`attorneys, to obtain the copies of the authorized information.
`3. All authorizations for facilities at which surgery was performed are demanded to overtly
`state and specify
`that
`the “ENTIRE OPERATIVE ADMISSION RECORDS,
`INCLUDING ALL NURSING, ANESTHESIA, AND PATHOLOGY RECORDS” be
`authorized to be furnished to said attorneys.
`4. Authorizations for Emergency Medical Service (Ambulance) records and reports
`maintained by the NYFD (New York Fire Dept.), MUST be furnished in the form
`required by that agency.
`5. The name and business address of Plaintiff’s primary care physicians for five years prior
`to the date of accident, and all times following the accident.
`6. Duly executed written authorizations, permitting defendants’ attorneys to obtain copies of
`all medical records of the plaintiff’s primary care physicians for any and all consults,
`diagnoses, or treatment of any complaints relative to the plaintiff’s physical condition, for
`a period of five years prior to the accident, and for all times following the accident.
`7. The name, address, and policy number(s) of each plaintiff’s primary medical insurance
`policy administrator(s) for the five years prior to the date of accident, and all times
`following the accident.
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`14 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`8. Duly executed written authorization(s), permitting defendants’ attorneys to obtain copies
`of all medical records of each plaintiff’s primary medical insurance administrator(s) for
`all medical, billing and payment for consultation or treatment of plaintiff, during the three
`years immediately preceding the date of accident, and all times following the accident.
`9. Copies of the medical reports of those physicians who have previously treated or
`examined the party seeking recovery and who will testify on his behalf. These shall
`include a detailed recital of the injuries and conditions as to which testimony will be
`offered at the trial, referring to and identifying those x-rays and technicians' reports
`which will be offered at the trial.
`10. Duly executed and acknowledged written authorization permitting all parties to obtain
`and make copies of all hospital records and such other records, including x-rays, MRI
`films, surgical reports, toxicology reports, pathology reports, reports of all treating
`physicians and technicians' reports, as may be referred to and identified in the statement
`of the examined party's physician. All authorizations must be HIPAA compliant pursuant
`to Sec. 164.508 of the federally mandated and Final Privacy Rule.
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`PLEASE TAKE FURTHER NOTICE that all demands are ongoing and that all
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`responses, including specific objections, are due within Twenty (20) days of the date of service,
`pursuant to CPLR 3122.
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`PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 3101(h), amendments and
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`supplements are owed upon a party’s obtaining information that the response made was incorrect
`or incomplete, no longer is correct and complete, and circ*mstances are such that a failure to
`amend or supplement the initial response would be materially misleading. Any failure to timely
`amend or supplement responses may result in motion practice.
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`Dated: November 23, 2020.
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`Brooklyn, NY
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`15 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 721528/2020
`
`RECEIVED NYSCEF: 11/25/2020
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`-----------------------------------------------------------------X
`NURY CONTRERAS,
`
`
` Plaintiff(s),
`
`
`
`- against -
`
`
`
`
`INDEX NO.: 721528/2020
`
`NOTICE FOR
`PHYSICAL EXAMINATON,
`RECORDS AND REPORTS
`
`Our File No.: 1087050
`Case ID No.: 113573
`
`
`KHELON DEY,
`
`
` Defendant(s).
`-----------------------------------------------------------------X
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`PLEASE TAKE NOTICE that pursuant to and CPLR 3121 and NYCRR 202.17,
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`Defendants hereby demand that Plaintiff(s) submit to physical examination(s) to be conducted by
`physician(s) designated by the Defendant(s), at time(s) and place(s) to be specified by
`Defendants. The physical examination(s) will be designated at a place within reasonable
`distance of the Courthouse.
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`PLEASE TAKE FURTHER NOTICE that Defendant(s) hereby demand that Plaintiff
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`serve copies of the medical reports and records of all those physicians and/or hospitals that have
`previously treated or examined the Plaintiff(s) for any injuries alleged. Failure to exchange
`copies of any treating physicians reports/records within the time set forth under the rule, will
`prevent the exam from going forward, and Plaintiff(s) will be responsible for any costs incurred
`due to a cancellation on such grounds.
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`PLEASE TAKE FURTHER NOTICE that Defendant(s) hereby demand that Plaintiff(s)
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`notify defense counsel in writing, at least 10 days prior to the examination, if Plaintiff(s) will
`require the use of an interpreter to translate into a language other than English, in order for the
`examining physician to communicate with the Plaintiff(s) during the exam.
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`PLEASE TAKE FURTHER NOTICE that no recording of any part of the examination -
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`in any media format – may be made during the exam unless prior application to the Court has
`resulted in a written decision/order of the Court authorizing such action. Additionally, in the
`event any such recording is improperly or secretly made in contravention of this demand and the
`case law, and with or without the knowledge of counsel, such recording must be disclosed and
`exchanged pursuant to CPLR and 3101(i) and 3101(a)(3).
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`PLEASE TAKE FURTHER NOTICE that any objection to the physician(s) designated to
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`conduct a physical examination, or the designated date and/or time of the examination, made
`pursuant to this notice, must be served in the proper manner and within the time set forth in
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`16 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
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`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`CPLR 3121 and NYCRR 202.17. Failure to do so will be deemed a waiver of any objection, and
`Plaintiff (s) will be responsible for any costs resulting from improper or untimely objections.
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`Dated: November 23, 2020
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`Brooklyn, NY
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`Baker, McEvoy & Moskovits, P.C.
`s/Ronit Z. Moskovits
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`Ronit Z. Moskovits, Esq.
`Attorney(s) for the Defendant
`KHELON DEY
`One Metrotech Center, 8h Fl
`Brooklyn, NY11201
`Tel: (212) 857-8230
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`17 of 18
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`FILED: QUEENS COUNTY CLERK 11/25/2020 09:49 AM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 721528/2020
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`RECEIVED NYSCEF: 11/25/2020
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`INDEX NO.: 721528/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
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`NURY CONTRERAS,
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`Plaintiff(s),
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`-against-
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`KHELON DEY,
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`Defendant(s).
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`VERIFIED ANSWER WITH DEMAND FOR BILL OF PARTICULARS,
`NOTICE FOR DISCOVERY AND INSPECTION ARTICLE 31 C.P.LR.,
`NOTICE PURS