FILED: KINGS COUNTY CLERK 10/27/2023 12:29 PM
`NYSCEF DOC. NO. 17
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`INDEX NO. 504555/2023
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`RECEIVED NYSCEF: 10/27/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`SEAN GERTY,
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`Plaintiff,
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`-against-
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`ELVA LIN and CHRISTINE PAOLOLLO,
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`Index No.: 504555/2023
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`RESPONSE TO DEMAND
`FOR VERIFIED BILL OF
`PARTICULARS AS TO
`DEFENDANT’S
`AFFIRMATIVE DFENSES
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`Defendants,
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`Defendant, CHRISTINE PAOLILLO i/s/g/a CHRISTINE PAOLOLLO, by her
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`attorneys, THE LAW OFFICE OF ERIC D. FELDMAN, as and for its response to plaintiff’s
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`Demand for Verified bill of Particulars as to Affirmative Defenses dated August 27, 2023, states
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`the following, upon information and belief:
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`1.
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`The acts and/or omissions which the defendant claims were the contributory
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`negligence, assumption of risk, culpable conduct, negligence, carelessness and recklessness of the
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`plaintiff, SEAN GERTY, consisted of one or some of the acts as hereinafter alleged: The plaintiff
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`acted negligently, reckless and carelessly in acting in a manner inconsistent with the actions of a
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`reasonable person; if in fact the incident occurred in the manner described by the plaintiff, said
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`plaintiff acted negligently, recklessly and carelessly in failing to pay adequate attention to the
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`roadway upon which he was traveling; the plaintiff acted negligently, recklessly and carelessly in
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`failing to see what was there to be seen; negligence, carelessness and recklessness: in the ownership,
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`operation, management and control of the motor vehicle; in following too closely; in failing to keep
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`the vehicle under proper, prudent and reasonable control; in operating the said motor vehicle at an
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`excessive and unlawful rate of speed under the conditions and circumstances prevailing at or prior
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`to the said occurrence; in failing to keep a proper lookout; in failing to see; in failing to observe the
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`FILED: KINGS COUNTY CLERK 10/27/2023 12:29 PM
`NYSCEF DOC. NO. 17
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`INDEX NO. 504555/2023
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`RECEIVED NYSCEF: 10/27/2023
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`roadway; in failing to observe the other motor vehicle; in failing to stop; in failing to apply the
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`brakes; in failing to give any sign, signal or warning of the approach of their motor vehicle
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`2. CPLR §4545 (c) specifically provides that in actions for personal
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`injury where the plaintiff seeks to recover for the cost of medical care, dental care, loss of
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`earnings or other economic loss, if the Court finds that any such cost or expense was or will, with
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`reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the
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`amount of award by such finding, minus an amount equal to the premiums paid by the plaintiff
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`for such benefits for the two year period immediately preceding the accrual of such action and
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`minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits.
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`3.
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`Answering defendant object to plaintiff’s demand for affirmative defense
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`with respect to CPLR Article 16 on the ground that it is plaintiff’s burden of proof to set forth the
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`exception applicable to said Section and calls for a legal conclusion. Without waiving said
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`objection, defendants allege that should either defendant be found less than 50% culpable, that
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`defendants will only be responsible for the amount of non-economic damages in proportion to
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`their determined negligence, if any. This defendant believes she has no culpability.
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`4.
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`Answering defendant objects to this demand as it goes beyond the scope
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`of CPLR 3043 and is in the form of an improper interrogatory request.
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`5.
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`Plaintiff failed to take all steps to mitigate damages by not receiving
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`proper and necessary medical care; in not doing everything that doctors and therapists told him
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`to do; in not seeing doctors and therapists with the frequency that they requested; in not doing
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`the exercises and follow the instructions given to him by his doctors and therapists; in not taking
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`all of the medication that he was told to take; in not resting and staying off his feet as directed by
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`his physicians and therapists; alternatively, by seeing his physicians and therapists an excessive
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`FILED: KINGS COUNTY CLERK 10/27/2023 12:29 PM
`NYSCEF DOC. NO. 17
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`INDEX NO. 504555/2023
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`RECEIVED NYSCEF: 10/27/2023
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`amount of time over an excessive period of time and by not doing everything that he could have
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`done to reduce any special damages or the continuing and permanency of any injuries claimed by
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`plaintiff.
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`6.
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`Information responsive to this demand cannot be determined until the
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`completion of further discovery.
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`7.
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`Information responsive to this demand cannot be determined until the
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`completion of further discovery.
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`8.
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`If it is contended the motor vehicle in which the plaintiff was an occupant
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`and was equipped with a seat belt and/or restraining device. The failure of the plaintiff to wear a
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`seatbelt was a direct and proximate cause of all injuries as alleged in the plaintiff’s Bill of
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`Particulars; the failure of said plaintiff to utilize the seatbelt in the vehicle in which the plaintiff
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`was riding let to plaintiff getting thrown forward and/or to the sides of the vehicle and sustaining
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`the alleged injuries. The utilization of the seat belts would have precluded and prevented the
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`plaintiff from sustaining said injuries; the plaintiff failed to use and/or misused available
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`seatbelts in that he was not utilized in accordance with the manufacturer’s recommended
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`procedure; had he been utilized in a proper, prudent and/or reasonable manner, the alleged
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`injuries of the plaintiff would have been substantially reduced or eliminated.
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`9.
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`Information responsive to this demand cannot be determined until the
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`completion of further discovery.
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`FILED: KINGS COUNTY CLERK 10/27/2023 12:29 PM
`NYSCEF DOC. NO. 17
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`INDEX NO. 504555/2023
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`RECEIVED NYSCEF: 10/27/2023
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`PLEASE TAKE NOTICE, that defendant, CHRISTINE PAOLILLO i/s/g/a
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`CHRISTINE PAOLOLLO reserves its rights to supplement or amend this response, up to and
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`including the date set for trial of the within action.
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`Yours, etc.
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`The Law Office Of
`ERIC D. FELDMAN
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`_____________________________________
`By: EMMA HICKS PEARCE
`Attorneys for Defendant
`CHRISTINE PAOLILLO i/s/g/a
`CHRISTINE PAOLOLLO
`Mailing Address1
`P.O. Box 2903
`Hartford, CT 06104-2903
`T: (917) 778-6600
`F: (877) 890-1328
`Matter No.: 2023039451
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`Dated: New York, New York
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`October 27, 2023
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`TO:
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`JAMES J. BROWN, ESQ.
`Attorney for Plaintiff
`177 Beach 116th Street – Suite 4
`Rockaway Park, New York 11694
`862-258-0844
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`1 Office Address: 485 Lexington Avenue, 7th Floor, New York, NY 10017
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`FILED: KINGS COUNTY CLERK 10/27/2023 12:29 PM
`NYSCEF DOC. NO. 17
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`INDEX NO. 504555/2023
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`RECEIVED NYSCEF: 10/27/2023
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`JAMES G. BILELLO & ASSOCIATES
`Attorneys for Defendant
`ELVA LIN
`1400 Old Country Road, Suite 201
`Westbury, New York 11590
`(516) 861-1781
`Stuthill@geico.com
`File No.: 23-0026860
`Claim No.: 0599279060101019
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