FILED: NEW YORK COUNTY CLERK 11/05/ :46 PM

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Julie Golden
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2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X VERIFIED BILL OF CARLOS YAX, PARTICULARS -against- Plaintiff, Index No.: /2016 NEW YORK LIFE INSURANCE CO. INC., and LEND LEASE CONSTRUCTION, Defendant X Plaintiff by his attorneys, WILLIAM SCHWITZER & ASSOCIATES, P.C., as and for a Verified Bill of Particulars, in response to the demand of defendant, LEND LEASE CONSTRUCTION, alleges as follows: 1. Plaintiff objects to this demand as it is evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, the accident occurred when the Plaintiff was caused to fall from a scaffold. 2. The occurrence happened on July 9, 2015 at approximately 10:30 PM. 3. The occurrence happened at 51 Madison Avenue, 9th Floor, New York. NY Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, the Plaintiff was working as a laborer on a scaffold doing demolition. 5. The defendants violated New York State Labor Law 200, 240(1), 241(6); New York Industrial Code ; ; 23-5 et seq. The Defendant violated any and all applicable federal regulations concerning the safe and proper maintenance of a building used for public purposes.

3 6. The Defendant was negligent, careless, reckless and/or violated the New York State Labor Law as follows: in failing and neglecting to provide plaintiff with a properly secured scaffold; in failing to furnish, erect and/or construct a safe scaffold; in failing and omitting to properly and reasonably attach, bolt, brace, and otherwise secure the scaffold; in failing and neglecting to provide plaintiff with a secured scaffold, which was not chocked or wedged in place or tied off or secured in any way; in allowing plaintiff to perform work on an unsafe, dangerous, defective, improperly braced and unsecured scaffold; in failing to provide plaintiff with a safe scaffold; in causing, permitting and allowing a dangerous, hazardous, and defective scaffold to be used at the aforesaid site; in failing to inspect and/or repair said scaffold; in failing and omitting to adequately and properly maintain said scaffold; in failing and neglecting to provide scaffold to plaintiff to perform work; in failing and neglecting to provide harness, lanyards, hoists and other protective devices when using the scaffold; in failing and neglecting to provide fall-arrest equipment; in failing, neglecting and omitting to provide safety devices, safety belts, safety lines or equivalent devices for proper protection and to guard against and eliminate the hazard of falling; in failing to protect plaintiffs from height and/or gravity related risks; in the ownership, operation, management, maintenance, inspection, repair, control and supervision of the aforementioned worksite;

4 in failing and neglecting to provide a suitable and/or safe worksite for plaintiff to work; in being negligent, careless and reckless in failing to provide a suitable and/or safe place for plaintiff to work; in failing to exercise the care, caution and judgment required of the defendants under all the circumstances that existed at the time of the occurrence and prior thereto; in causing, permitting and allowing the work performed at the aforesaid worksite to be performed in a dangerous, negligent, careless, reckless and improper manner; in causing, permitting and allowing the worksite to be, become and remain in a dangerous ánd unsafe condition; in failing and neglecting to properly instruct and supervise workers, and more particularly plaintiff, upon the work site in the usual necessary, proper and required safety measures and procedures; in failing and omitting to properly train, instruct and supervise its agents, servants and/or employees; in failing and neglecting to engage and employ experienced, trained and required engineering design and safety officials; in failing and omitting to have adequate and necessary supervisory personnel present at the aforesaid site; in allowing incompetent and inept workers to perform labor and services at aforesaid premises; in suffering and permitting the premises to be in and remain for a period of time without adequate supervision and control; in failing and neglecting to supervise, inspect, evaluate and observe the materials, equipment and supplies workers use in the course of work in progress; in violating or neglecting the applicable laws, rules, regulations, ordinances and statutes, including but not limited to New York State Labor Law 200, 240(1), 241(6); New York Industrial Code ; ; 23-5 et seq, and in otherwise being careless, reckless and negligent in the ownership, operation, management, maintenance, inspection, repair, control and supervision of the aforesaid premises;

5 plaintiff will also rely on the doctrine of res ipsa loquitor; in that defendants knew or should have known that said condition existed for a long and unreasonable period of time, and in doing nothing to repair the same; in failing to remove said dangerous condition and take other steps necessary to remedy said dangerous condition; in negligently and carelessly suffering and permitting the aforesaid premises to be, become and remain in a dangerous and defective condition; in failing and omitting to warn plaintiffs of the dangerous and hazards existing at the aforesaid premises by sign, notice or otherwise; in failing to remove said dangerous condition and take other steps necessary to remedy said dangerous condition; in negligently and carelessly suffering and permitting the aforesaid dangerous and defective scaffold/ work platform to be, become and remain for an unreasonable period of time after the defendant had, or in the exercise of due and reasonable care, should have had, due notice thereof; in failing to take any and all necessary steps, actions and precautions to prevent the occurrence and plaintiff's subsequent injuries. 7. Plaintiff objects to this demand as duplicative. However, without waiving this objection, please refer to answer in paragraph "6." 8. Plaintiff objects to this demand as duplicative. However, without waiving this objection, please refer to answer in paragraph "5." 9. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. 10. Plaintiff objects to this demand as evidentiary in nature and improper for a bill of particulars.

6 11. As a result of the defendant's negligence and Labor Law violations, plaintiff suffered the following injuries: RIGHT SHOULDER - Rotator Cuff tear; - Tear of the supraspinatus tendon; - Bicep tear; - Impingement syndrome; - Sprain/Strain; As a result of the foregoing, plaintiff was required to undergo the following operative procedure on December 14, 2015 at SurgiCare of Manhattan by Dr. Faierman: OPERATION 1. Right shoulder diagnostic glenohumeral arthroscopy. 2. Arthroscopic subacromial decompression. 3. Arthroscopic lysis of adhesions with manipulation. 4. Arthroscopic biceps tenotomy. 5. Arthroscopic rotator cuff tear repair. 6. Arthroscopic rotator cuff debridement with major synovectomy/bursectomy. PREOPERATIVE DIAGNOSIS: 1. Right shoulder impingement syndrome. 2. Right shoulder partial rotator cuff tear. 3. Right shoulder possible adhesive capsulitis. POSTOPERATIVE DIAGNOSIS: 1. Right shoulder adhesive capsulitis. 2. Right shoulder full thickness rotator cuff tear. 3. Right shoulder subtotal biceps tear/tenosynovitis. 4. Impingement syndrome. DESCRIPTION OF PROCEDURE: The patient is a 47-year-old man who sustained a right shoulder injury. He failed conservative treatment. He wished surgical management. He understood the risks and benefits of the procedure and consented to the above. Specifically, risks including but not limited to infection, contracture, continued pain, nerve damage, cosmetic deformity, rare risk of limb loss and loss of life were all discussed with the patient. Furthermore, when the patient was seen in the office the patient explained that he may have adhesive capsulitis due to several loss of passive range of motion. I explained to the patient that

7 after capsular release he must maintain, his passive range of motion or he will develop a recurrent contracture. Risks of recurrent rotator cuff tear were explained to the patient. The patient understood all the risks and benefits and consented to the above. He was given the option of nonsurgical management. He understood all the risks and benefits and consented to the above. What was done, the patient was placed supine on the operating room table. Adequate general anesthesia was achieved. Interscalene block was achieved in the operating room. The patient was transferred to the beachchair position and the right upper extremity was prepped and draped in usual sterile fashion. The Tramano arm holder was used. The arm was placed through range of motion. There was a significant contracture with loss of external rotation, flexion, abduction, and internal rotation. Flexion is approximately 90 degrees and the manipulation was performed in order to release the contracture and allowed for full flexion. Because of the concern about fracture, external rotation was not attempted until after capsular release. A posterior portal was made through which the arthroscope was introduced into the joint. Diagnostic arthroscopy was begun. An anterior portal was made under direct visualization. Immediately notable, there was a subtotal.tear of the proximal biceps tendon. There was also significant partial tearing of the rotator cuff. The glenohumeral joint did not show any signs of chondral damage. The inferior sulcus did not show any signs of loose bodies. At this point, an interval was excised leaving the superior glenohumeral ligament. The anterior capsule was excised inferiorly. The arthroscope was placed in the anterior portal and a posterior thermal cautery was used to release the posterior capsule from the 11 o'clock position down to the 6 o'clock position. Manipulation was performed in external rotation first after releasing the external rotation; the contracture to allow for full external rotation the arm was abducted and flexed with the arm in full internal and external rotation. The arthroscope was then placed in subacromial space. Prior to the release the biceps sternotomy was performed, excising the biceps proximally. The rotator cuff was debrided using a shaver and thermal cautery. The arthroscope was then placed in the subacromial space after the capsular release. An anterolateral portal was made under direct visualization. The arthroscope was placed in the subacromial space and there was moderate hypertrophic bursitis. The acromion was flat and an acromioplasty was not required. The coracromial ligament was maintained. After excising the moderate hypertrophic bursitis, a small full thickness rotator cuff tear was noted, inside the joint and there was significant subtotal tearing of the anterior and posterior rotator cuff. Standard arthroscopic double row repair was performed after preparing the greater tuberosity using shaver and curette. This allowed for bleeding bone. Double row repair was performed and the rotator cuff was well fixed back to the greater tuberosity. The arm was placed through full range of motion and the rotator cuff repair held very nicely. Final pictures were obtained of the decompression and the rotator cuff repair. Pictures were obtained with pathology as well as final results. Interrupted sutures were removed. A clean dry dressing was applied to the wound. The patient was awakened and brought to the recovery room in satisfactory condition.

8 Loss of strength; Restricted range of motion; Soft tissue edema; Sprain/Strain; Severe pain, swelling and tenderness; Striking nerve pain; Marked restriction in range of motion; Post traumatic arthritis; Post-surgical scarring; Need for surgery; As a result of the foregoing the Plaintiff suffers from severe pain, swelling and tenderness 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. RIGHT HIP - Tear of the labrum; - Sprain/strain; - Muscle spasms; - Marked restriction in range of motion; - Post-traumatic arthritis; - Severe pain, swelling and tenderness; Need for future surgery. As a result of the foregoing, plaintiff was required to undergo the following operative procedure on January 11, 2016 at East River Medical Imaging, P.C by Dr. Faierman: DESCRIPTION OF PROCEDURE: Written informed consent was obtained from the patient after discussing the risks, including bleeding and infection, and benefits of the procedure. Under sterile conditions, using 1 percent lidocaine for local anesthesia, ultrasound guidance was used to direct a 22 gauge needle into the right hip joint. 5 cc of a mixture of 2cc 1 percent lidocaine, 2cc 0.25 percent bupivacaine and 1cc (40 mg per cc) was injected. The patient tolerated the procedure without or immediate complication. Kenelog difficulty As a result of the foregoing the Plaintiff suffers from severe pain, swelling and tenderness resulting in loss of strength, loss of function, loss of motion, restriction of

9 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 - Disc bulges at L3-L4, L4-5 and L5-S Sprain/strain; Radiculopathy; - Muscle spasms; - Marked restriction in range of motion; - Severe pain, swelling and tenderness; - Need for future surgery. As a result of the foregoing the Plaintiff suffers from severe pain, swelling and tenderness 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 and predispose Plaintiff to adjacent segment degeneration. 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 to his nervous system; the foregoing injuries have impaired the general health of the plaintiff; the plaintiff verily believes that all of the injuries hereinabove sustained 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 her activities in his life. Plaintiff may be restricted in his normal life and activities and may permanently require medical care and attention. 12. Plaintiff objects to this demand as duplicative. However, without waiving this objection, please refer to answer in paragraph "11." 13. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However without waiving this objection, plaintiff was employed by National Environmental Safety Company Inc., th Avenue, Long Island City, NY Plaintiff has been incapacitated and disabled since the time of the accident to

10 present and ongoing. Plaintiff s claim of lost wages is approximately $75,000 and continuing. 14. SPECIAL DAMAGES (a) Hospital Services: Estimated $50,000 and continuing; (b) X-rays: Included in (a); (c) Nursing Services: Included in (a); (d) Doctor Services: Estimated $50,000 and continuing; (e) Medical Supplies and Medicine: Included in (d); 15. Plaintiff has been intermittently confined to bed and home from the date of the accident to present time. 16. Plaintiff is claiming past, present and future medical bills, past pain and suffering and loss of enjoyment of life, amounts which will be determined at trial, by the tier of fact. 17. Plaintiff resides at Hampton Street, Apt. 619, Elmhurst, NY Plaintiff objects to this demand as duplicative. However, without waiving this objection, please see response number "13". 19. Plaintiff objects to this demand as improper for a bill of particulars. 20. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, please see plaintiffs Response to Combined Demands. 21. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, please see plaintiffs Response to Combined Demands.

11 22. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, please see plaintiffs Response to Combined Demands. 23. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, please see plaintiffs Response to Combined Demands. 24. Plaintiff objects to this demand as evidentiary in nature and improper for a Bill of Particulars. However, without waiving this objection, please see plaintiff's Response to Combined Demands. PLEASE TAKE FURTHER NOTICE, that 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 September 8, 2016 Yours, etc., WILLIAM SCHWI SSOCIATES, P.C. By: Dionisios Georga os, q. Attorneys for Plaintt f 820 Second 10th Avenue, Floor New York, New York (212) To: NEWMAN MYERS KREINES GROSS HARRIS, P.C. Attorneys for Defendant LEND LEASE (US) CONSTRUCTION LMB INC. 40 Wall Street - 26th Floor New York, New York (212)

12 ATTORNEY'S VERIFICATION Dionisios Georgatos, Esq, an attorney duly admitted to practice in the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: That I am associated with the firm of WILLIAM SCHWITZER & ASSOCIATES, P.C., the attorney for the plaintiffs in the within action and as such, I am fully familiar with the facts and circumstances surrounding this matter based upon my review of the contents of the file maintained by this office. That I have read the foregoing VERIFIED BILL OF PARTICULARS and know the contents thereof; that the same is true to my own knowledge except as to the matters therein stated to be alleged upon information and belief; and, as to those matters, I believe them to be true. That the reason this verification is made by your affirmant and not by the plaintiffs is that the plaintiffs do not reside within the county in which my office is maintained. That the grounds for your affirmant's belief as to all matters not stated upon my own knowledge are as follows: facts, investigations, reports, records, and documents contained in plaintiffs' file maintained by your affirmant's office. Dated: New York, New York September 8, 2016 Dionisios Geor tos q.

13 Index No: Index No.: /2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CARLOS YAX, -against- Plaintiff, NEW YORK LIFE INSURANCE CO. INC., and LEND LEASE CONSTRUCTION, Defendant. VERIFIED BILL OF PARTICULARS WILLIAM SCHWITZER & ASSOCIATES, P.C. Attorneys for Plaintiff(s) 820 SECOND 10TH AVENUE, NEW YORK, NY FLOOR To: Attorney(s) for Service Ãf a copy of the within is hereby admitted. Dated: Attorney(s) for PLEASE TAKE NOTICE NOTICE OF ENTRY that the within is a (certified) true copy of an Order entered in the office of the Clerk of the within named Court on the day of., 20. NOTICE OF SETTLEMENT That an Order of which the within is a true copy will be presented to the Honorable Justice,, one of the justices of the within named Court, on the day of, 20. Dated:

FILED: NEW YORK COUNTY CLERK 03/21/ :29 PM INDEX NO /2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/21/2016

FILED: NEW YORK COUNTY CLERK 03/21/2016 03:29 PM INDEX NO. 155449/2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 03/21/2016 SUPREME COURT STATE OF NEW YORK COUNTY OF KINGS PAULA YOUNG Plaintiff RESPONSIVE VERIFIED