FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`
`
`
`
`
`Plaintiff(s),
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`--------------------------------------------------------------------x
`RACHIL NSIRI,
`
`
`
`-against-
`
`
`
`
`
`YESHIVAT DARCHE ERES, INC.,,
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`Defendant(s).
`
`
`
`
`-------------------------------------------------------------------x
`YESHIVAT DARCHE ERES, INC.,
`
` Third-Party Plaintiff,
`
` -against-
`
`NURTURING ANGELS HOME CARE, INC. and
`“JANE DOE” (fictitious name to represent plaintiff’s
`Aide at time of accident),
`
` Third-Party Defendants.
`--------------------------------------------------------------------x
`
`
`Index No.: 536190/2023
`
`VERIFIED ANSWER TO
`THIRD PARTY COMPLAINT
`
`
`
`
`
`
`The Third-Party Defendants, NURTURING ANGELS HOME CARE, INC. and
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`“JANE DOE”, by their attorneys, BARKER PATTERSON NICHOLS, LLP, answering the third
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`party complaint upon information and belief, respectfully shows to this Court and alleges:
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`1.
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`Deny any knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in paragraphs “1,” “8,” “9,” “10, ” and “16” of the third-party complaint and
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`refers all questions of fact to trier of fact and all questions of law to the Court..
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`2.
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`Deny each and every allegation contained in paragraphs “2” and “3” of the third
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`party complaint except admits NUTURING ANGELS HOME CARE, INC is a domestic
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`corporation authorized to do business in the State of New York and refers all questions of fact to
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`trier of fact and all questions of law to the Court.
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`1 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
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`INDEX NO. 536190/2023
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`RECEIVED NYSCEF: 04/26/2024
`
`3.
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`Deny each and every allegation in the form alleged contained in paragraphs “4”
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`and “5” of the third-party complaint except admits that NURTURING ANGELS HOME CARE,
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`INC., provided a home health aide to RACHIL NSIRI and refers all questions of fact to trier of
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`fact and all questions of law to the Court.
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`4.
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`Deny each and every allegation in the form alleged contained in paragraphs “6”
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`and “7” of the third party complaint except admit that JANE DOE was an employee of
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`NURTURING ANGLES HOME CARE INC, and at all times provided appropriate care to
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`RACHIL NSIRI and refers all questions of fact to trier of fact and all questions of law to the Court.
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`5.
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`Deny each and every allegation in the form alleged contained in paragraphs “11”
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`and “12” of the third-party complaint and refers all questions of fact to trier of fact and all
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`questions of law to the Court.
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`CAUSE OF ACTION: CONTRIBUTION
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`6.
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`Deny each and every allegation contained in paragraphs “13,” “14,” and “15,” and
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`of the third-party complaint.
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`
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`
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`AS AND FOR A FIRST DEFENSE,
` ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`7.
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`That any injuries sustained by first party plaintiff at the time and place mentioned
`
`in the complaint were caused solely and wholly by reason of the carelessness, negligence,
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`recklessness and acts or omissions on the part of the first party plaintiff and were not caused or
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`contributed to by reason of any carelessness, negligence, recklessness or acts or omissions on the
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`part of these answering defendants.
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`AS AND FOR A SECOND DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`8.
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`That the answering defendants reserve the right to claim the limitations of
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`2 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
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`INDEX NO. 536190/2023
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`RECEIVED NYSCEF: 04/26/2024
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`liability pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for non-
`
`economic loss.
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`AS AND FOR A THIRD DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`9.
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`In the event the plaintiffs recover a verdict or judgment against Third-Party
`
`
`
`Defendants, such verdict or judgment must be reduced pursuant to §4545 of the CPLR by those
`
`amounts which have been, or will, with reasonable certainty replace or indemnify plaintiffs in
`
`whole or in part, for any past or future claimed economic loss, from any collateral source.
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`AS AND FOR A FOURTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`If plaintiffs are entitled to recover damages for loss of earnings or impairment of
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`10.
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`earning ability as against Third-Party Defendants NURTURING ANGELS HOME CARE, INC.
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`and “JANE DOE” by reason of the matters alleged in the Complaint, liability for which is hereby
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`denied, then pursuant to CPLR §4546 the amount of damages recoverable against said defendant,
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`if any, shall be reduced by the amount of federal, state and local income taxes which the plaintiff
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`would have been obligated by law to pay.
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`AS AND FOR A FIFTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`The Third-Party Defendants assert the defense of set-off to reduce the plaintiffs
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`11.
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`claims under §15-108 of the General Obligations Law.
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`AS AND FOR A SIXTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`If the first party plaintiff was caused to sustain personal injuries and resulting
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`12.
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`damages at the time and place set forth in the complaint and in the manner alleged therein through
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`any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or warranty
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`3 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
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`INDEX NO. 536190/2023
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`RECEIVED NYSCEF: 04/26/2024
`
`and/or contract other than of the plaintiff then the said injuries and damages arose out of the several
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`and joint carelessness, recklessness, acts, omissions, negligence and breaches of duty and/or
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`obligation and/or statute, and/or warranty, and/or contract in fact or implied in law, upon the part
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`of non-parties subject to in-personam jurisdiction, and if this pleading defendant is found negligent
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`as to the plaintiff for the injuries and damages set forth in the plaintiff’s complaint, then and in that
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`event, the relative responsibilities of said pleading defendant must be apportioned by the
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`percentage of liability of said non-parties subject to in-personam jurisdiction.
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`
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`AS AND FOR A SEVENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
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`The Third-Party Defendants will offer proof regarding the Affordable Care Act
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`13.
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`including the cost of premiums and out-of-pocket limits that were made available to plaintiff under
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`the Affordable Care Act, and will offer proof of the medical costs which plaintiff will not incur
`
`under the Affordable Care Act.
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`AS AND FOR AN EIGHTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`The third party complaint fails to state a cause of action as against these answering
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`14.
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`defendants upon which relief can be granted.
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`AS AND FOR AN NINTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`Plaintiff failed to mitigate, diminish, or otherwise act to lessen or reduce the injuries
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`15.
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`and damages alleged in the Complaint.
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`4 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
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`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`AS AND FOR AN TENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`The damages allegedly suffered by Plaintiff, Rachel Nsiri were caused in whole or
`
`16.
`
`in part by the culpable conduct of Plaintiff. Plaintiff claims are therefore barred or diminished in
`
`the proportion that such culpable conduct bears to the total culpable conduct causing the damages.
`
`AS AND FOR A ELEVENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`That upon information and belief, that if any dangerous or hazardous condition
`
`17.
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`existed at the premises as alleged in the complaint, then same was open and obvious to the Plaintiff,
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`Rachel Nsiri, susceptible to being perceived by the Plaintiff utilizing her ordinary senses and, as
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`such, Third-Party Defendants bore no duty to warn the plaintiff of the existence of said dangerous
`
`or hazardous condition.
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`AS AND FOR A TWELFTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`That if the defect existed as alleged in Plaintiff’s Complaint, then same was de
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`18.
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`minimis, trivial and minuscule in nature and did not constitute a hazard, and therefore, non-
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`actionable as a matter of law.
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`AS AND FOR A THIRTEENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`The Third-Party Defendants had no actual or constructive notice of the alleged
`
`19.
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`defect(s) and did not create the alleged conditions.
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`AS AND FOR A FOURTEENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`The injuries allegedly sustained by Plaintiff, Rachel Nsiri, were the result of the
`
`20.
`
`acts or omissions third parties over whom Third-Party Defendants exercised no direction or
`
`control.
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`5 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`AS AND FOR A FIFTEENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`The injuries allegedly sustained by Plaintiff, Rachel Nsiri were the result of the
`
`21.
`
`superseding and/or intervening negligence of persons over whom Third-Party Defendants had no
`
`control or right of control.
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`AS AND FOR A SIXTEENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`That the negligence or culpable conduct of other parties constituted a separate,
`
`22.
`
`independent, superseding, intervening and sole proximate cause of the alleged accident or injuries.
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`AS AND FOR AN SEVENTEENTH DEFENSE,
`ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`Plaintiff failed to identify and bring suit against proper, indispensable, parties to
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`23.
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`the instant action.
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`
`
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`AS AND FOR A FIRST COUNTER-CLAIM AGAINST THE
`DEFENDANT/THIRD PARTY PLAINTIFF,
`YESHIVAT DARCHE ERES, INC.
`(Common Law Indemnification)
`
`Upon information and belief, that if and in the event First Plaintiff sustained any
`
`
`
`28.
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`injuries or damages as alleged in Plaintiff’s Verified Complaint, through negligence, carelessness
`
`or recklessness other than Plaintiff’s own, and in the event damages are assessed to the
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`Answering defendants, said damages were caused solely by the primary, active and affirmative
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`negligence, recklessness, culpable conduct, breach of contract and/or breach of warranties of
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`Defendant and Third Party Plaintiff YESHIVAT DARCHE ERES, INC. their agents, servants
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`and/or employees, with any negligence on the part of NURTURING ANGELS HOME CARE,
`
`INC. and “JANE DOE” being vicarious, secondary, passive and/or derivative only.
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`6 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
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`29.
`
`By reason of the foregoing, NURTURING ANGELS HOME CARE, INC. and
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`“JANE DOE” is entitled to full and complete indemnity from, and to judgment over and against
`
`Defendant and Third Party Plaintiff YESHIVAT DARCHE ERES, INC. for full indemnification.
`
`AS AND FOR A SECOND COUNTER CLAIM-CLAIM AGAINST THE
`DEFENDANT/THIRD PARTY PLAINTIFF,
`YESHIVAT DARCHE ERES, INC.
`
`(Contribution)
`
`
`
`30. Upon information and belief, that if and in the event Plaintiff sustained any injuries
`
`or damages as alleged in Plaintiff’s Verified Complaint, through negligence, carelessness or
`
`recklessness other than Plaintiff’s own, and if complete indemnity is not granted as demanded
`
`under NURTURING ANGELS HOME CARE, INC. and “JANE DOE” as set forth above,
`
`NURTURING ANGELS HOME CARE, INC. and “JANE DOE” is nevertheless entitled to
`
`contribution from Defendant YESHIVAT DARCHE ERES, INC. over and above its equitable
`
`share of any judgment, verdict and/or recovery obtained by Plaintiff, as determined in accordance
`
`with the relative culpability of each party liable for contribution.
`
`WHEREFORE, Third-Party Defendants NURTURING ANGELS HOME CARE, INC.
`
`and “JANE DOE”, demand judgment:
`
`the Plaintiff’s Verified Complaint against Third-Party
`(A) Dismissing
`Defendant NURTURING ANGELS HOME CARE, INC. and “JANE
`DOE” in its entirety;
`
`(B) Awarding judgment on its counter claims-claims for apportionment,
`contribution and common-law indemnification, including attorneys’ and
`investigative fees;
`
`
`(C) Awarding the costs and disbursements of this action; and
`
`(D) Awarding such other and further relief as this Court may deem just and
`proper.
`
`
`
`7 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`WHEREFORE, the Third-Party Defendant, NURTURING ANGELS HOME CARE,
`
`INC. and “JANE DOE”, demand judgment dismissing the plaintiff’s third party complaint with
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`the costs and disbursements of this action.
`
`Dated: Garden City, New York
`
`April 25, 2024
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`Yours, etc.,
`
`BARKER PATTERSON NICHOLS, LLP
`
`By: Gemma Kenney
`
`Gemma Kenney
`Attorneys for Third Party Defendants
`NURTURING ANGELS HOME CARE,
`INC. and “JANE DOE”
`300 Garden City Plaza, Suite 100
`Garden City, New York 11530
`(516) 282-3355
`
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`TO: McCARTHY & ASSOCIATES
`
`Attorneys for Defendant/Third Party Plaintiff
`
`YESHIVAT DARCHE ERES, INC.
`
`One Huntington Quadrangle, Suite 2C18
`Melville, New York 11747
`(631) 756-2024
`
`
`MOLOD, SPITZ & DESANTIS, P.C.
`Attorneys for Plaintiff
`1430 Broadway, 21st Floor
`New York, New York 10018
`(212) 869-3200
`
`
`
`
`
`
`8 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`ATTORNEY'S VERIFICATION
`
`Gemma Kenney an attorney duly admitted and licensed to practice in the courts of this
`
`
`
`
`
`State affirms the following pursuant to CPLR 2106:
`
`
`
`I am the attorney for the Third-Party Defendants, NURTURING ANGELS HOME
`
`CARE, INC. and “JANE DOE”, herein; and I have read the foregoing answer 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 that as to those matters, I believe them to be true.
`
`
`
`That the reason this verification is made by your affirmant and not by the defendant
`
`personally is, that the defendant is not within the county where your affirmant has an office.
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`That the sources of your affirmant's information and the grounds of his/her belief as to the matters
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`so alleged herein are investigations had by the defendant, his/her agents, servants and
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`representatives into the subject matter hereof and correspondence relating thereto, reports of which
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`investigations and copies of which correspondence are in the possession of your affirmant.
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`Dated: Garden City, New York
`
`April 25, 2024
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`Gemma Kenney
`Gemma Kenney
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`9 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`
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`
`
`
`
`
`Plaintiff(s),
`
`Index No.: 536190/2023
`
`DEMAND FOR
`AUTHORIZATIONS
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`--------------------------------------------------------------------x
`RACHIL NSIRI,
`
`
`
`-against-
`
`
`
`
`
`YESHIVAT DARCHE ERES, INC.,,
`
`Defendant(s).
`
`
`
`
`
`-------------------------------------------------------------------x
`YESHIVAT DARCHE ERES, INC.,
`
` Third-Party Plaintiff,
`
` -against-
`
`NURTURING ANGELS HOME CARE, INC. and
`“JANE DOE” (fictitious name to represent plaintiff’s
`Aide at time of accident),
`
` Third-Party Defendants.
`--------------------------------------------------------------------x
` S I R S:
`
`
`
`PLEASE TAKE NOTICE that, within twenty (20) days from the date hereof, you are
`
`required to serve the undersigned with duly executed authorizations, which include the address of
`
`the party to whom the authorizations apply, permitting BARKER PATTERSON NICHOLS, LLP,
`
`or their authorized representatives, to obtain copies of the records of RACHIL NSIRI:
`
`1.
`
`2.
`
`3.
`
`4.
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`5.
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`all collateral sources;
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`employment records;
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`pharmacy records;
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`physical therapy records;
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`all prior and subsequent treating physicians and facilities;
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`10 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`6.
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`7.
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`8.
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`9.
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`10.
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`11.
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`Internal Revenue Service Form 4506, 1099’s, W-2’s for the past 5 years with two
`forms of identification;
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`Medicare;
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`Medicaid;
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`Workers Compensation;
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`all health care insurers;
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`Primary care physician;
`
`
`
`PLEASE TAKE FURTHER NOTICE that, with respect to all authorizations for
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`medical/hospital/healthcare records, the authorizations must comply with Federal HIPAA
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`regulations.
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`Dated: Garden City, New York
`
`April 25, 2024
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`Yours, etc.,
`
`BARKER PATTERSON NICHOLS, LLP
`
`
`By: Gemma Kenney
`
`Gemma Kenney
`Attorneys for Third Party Defendant(s)
`NURTURING ANGELS HOME CARE,
`INC. and “JANE DOE”
`300 Garden City Plaza, Suite 100
`Garden City, New York 11530
`(516) 282-3355
`
`
`TO: McCARTHY & ASSOCIATES
`
`Attorneys for Defendant/Third Party Plaintiff
`
`YESHIVAT DARCHE ERES, INC.
`
`One Huntington Quadrangle, Suite 2C18
`Melville, New York 11747
`(631) 75602024
`
`
`
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`11 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`MOLOD, SPITZ & DESANTIS, P.C.
`Attorneys for Plaintiff
`1430 Broadway, 21st Floor
`New York, New York 10018
`(212) 869-3200
`
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`12 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
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`Plaintiff(s),
`
`Index No.: 536190/2023
`
`DEMAND FOR TRIAL
`AUTHORIZATIONS
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`--------------------------------------------------------------------x
`RACHIL NSIRI,
`
`
`
`-against-
`
`
`
`
`
`YESHIVAT DARCHE ERES, INC.,,
`
`Defendant(s).
`
`
`
`
`
`-------------------------------------------------------------------x
`YESHIVAT DARCHE ERES, INC.,
`
` Third-Party Plaintiff,
`
` -against-
`
`NURTURING ANGELS HOME CARE, INC. and
`“JANE DOE” (fictitious name to represent plaintiff’s
`Aide at time of accident),
`
` Third-Party Defendants.
`--------------------------------------------------------------------x
`C O U N S E L O R S:
`
`
`
`PLEASE TAKE NOTICE that, the below named attorney demands that the plaintiff furnish
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`the below named defendant(s) with the following, at the time the Note of Issue is filed:
`
`HIPAA COMPLIANT AUTHORIZATIONS FOR RACHIL NSIRI FOR ALL PROVIDERS
`
`IDENTIFIED DURING DISCOVERY ENABLING THE DEFENDANTS TO SERVE
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`SUBPOENAS FOR THE TRIAL OF THIS MATTER.
`
`
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`Said authorizations are to contain full and proper names and addresses, together with any
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`necessary identifying information, such as Social Security Number, and are to be HIPAA
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`compliant to obtain the requisite records, films and billing records.
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`13 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
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`PLEASE TAKE FURTHER NOTICE that, failure to comply with the above demand will
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`be the basis of a motion seeking appropriate relief, including, but not limited to dismissal of the
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`complaint.
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`Dated: Garden City, New York
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`April 25, 2024
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`Yours, etc.,
`
`BARKER PATTERSON NICHOLS, LLP
`
`
`By: Gemma Kenney
`
`Gemma Kenney
`Attorneys for Third Party Defendant(s)
`NURTURING ANGELS HOME CARE,
`INC. and “JANE DOE”
`300 Garden City Plaza, Suite 100
`Garden City, New York 11530
`(516) 282-3355
`
`
`TO: McCARTHY & ASSOCIATES
`
`Attorneys for Defendant/Third Party Plaintiff
`
`YESHIVAT DARCHE ERES, INC.
`
`One Huntington Quadrangle, Suite 2C18
`Melville, New York 11747
`(631) 75602024
`
`
`
`
`
`
`MOLOD, SPITZ & DESANTIS, P.C.
`Attorneys for Plaintiff
`1430 Broadway, 21st Floor
`New York, New York 10018
`(212) 869-3200
`
`
`
`
`14 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`
`
`
`
`
`
`
`Plaintiff(s),
`
`Index No.: 536190/2023
`
`DEMAND FOR
`VERIFIED BILL OF
`PARTICULARS
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`--------------------------------------------------------------------x
`RACHIL NSIRI,
`
`
`
`-against-
`
`
`
`
`
`YESHIVAT DARCHE ERES, INC.,,
`
`Defendant(s).
`
`
`
`
`
`-------------------------------------------------------------------x
`YESHIVAT DARCHE ERES, INC.,
`
` Third-Party Plaintiff,
`
` -against-
`
`NURTURING ANGELS HOME CARE, INC. and
`“JANE DOE” (fictitious name to represent plaintiff’s
`Aide at time of accident),
`
` Third-Party Defendants.
`--------------------------------------------------------------------x
`S I R S :
`
`
`
`PLEASE TAKE NOTICE that, pursuant to Rule 3042(a) of the Civil Practice Law and
`
`Rules, you are hereby required to serve upon the undersigned attorneys for the third party
`
`defendant(s), NURTURING ANGELS HOME CARE, INC. and “JANE DOE”, within thirty
`
`(30) days after the service of a copy of this demand, a verified bill of particulars setting forth in
`
`detail the following:
`
`
`
`
`
`
`
`
`
`1.
`
`2.
`
`3.
`
`4.
`
`First party and third party plaintiff’s residence address on the date of the accident.
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`The date of Birth and Social Security Number RACHIL NSIRI.
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`The exact date and approximate time of the accident.
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`The location of the happening of the accident in sufficient detail so as to permit
`
`accurate identification.
`
`15 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`
`5.
`
`Set forth separately a precise statement of each and every act and/or error of
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`omission or commission alleged constituting the negligence, recklessness and carelessness of this
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`answering defendant.
`
`
`
`
`
`6.
`
`7.
`
`State how it is claimed the accident happened.
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`If first party plaintiff RACHIL NSIRI is claiming she sustained injuries due to a
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`failure of a safety device or failure to provide a proper safety device, describe the safety device
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`which allegedly failed or was improper.
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`
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`8.
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`9.
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`
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`State whether actual or constructive notice is claimed.
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`If actual notice is claimed, set forth the following:
`
`(a)
`
`(b)
`
`(c)
`(d)
`
`The names and addresses of any person(s) by whom notice was
`given/supplied.
`By whom it will be claimed that said actual notice was given on each
`occasion aforesaid;
`The date or dates of each said notice aforesaid; and
`The place said actual notice was given.
`
`
`
`10.
`
`If constructive notice is claimed, set forth the length of time said condition is
`
`alleged to have existed prior to the happening of the alleged accident.
`
`
`
`11.
`
`Set forth a complete and detailed statement of each and every injury claimed to
`
`have been sustained by the first party plaintiff as a result of the alleged incident.
`
`
`
`12.
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`Set forth which injuries are claimed to be permanent and in what respect they are
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`claimed to be permanent.
`
`
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`13.
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`If it is claimed that the incident in question exacerbated and/or aggravated any
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`physical condition of the first party plaintiff, set forth specifically each and every physical
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`condition it is claimed was exacerbated and/or aggravated and set forth the names and addresses
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`of each and every physician who treated or examined the first party plaintiff for such condition
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`prior to the date of the alleged incident herein.
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`16 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`
`14.
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`State whether the first party plaintiff claims any limitations of motion, loss of use
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`or loss of function as a result of the injuries alleged and, if so sate the nature, extent and degree to
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`permanency thereof.
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`
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`
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`15.
`
`Set forth the length of time the first party plaintiff was confined to:
`
`
`
`
`
`
`16.
`
`
`
`
`17.
`
`(a)
`(b)
`(c)
`(d)
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`Hospitals;
`Bed;
`House;
`Rehabilitation facilities.
`
`State the length of time the first party plaintiff claims to have been:
`(a)
`Totally disabled;
`(b)
`Partially disabled;
`(c)
`Unable to pursue his usual occupation.
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`If loss of earnings will be claimed to have resulted from the alleged incident; set
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`forth the following:
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`
`
`
`
`
`
`
`
`
`
`
`(a)
`(b)
`(c)
`(d)
`
`(e)
`
`(f)
`
`(g)
`
`The loss of earnings that will be claimed;
`The name and address of the employer at the time of the alleged negligence;
`First party plaintiff’s occupation at the time of the alleged negligence;
`First party plaintiff’s gross earnings for the last calendar year prior to the
`alleged negligence;
`First party plaintiffs gross earnings for any calendar year during which it
`will be claimed that she was incapacitated from work.
`If first party plaintiff was self-employed at the time of the incident, identify
`by name and address the nature of her self-employment and the lost wages,
`further specifying the net earnings at the time of the accident and for the
`two years prior thereto.
`If loss of earnings are being claimed Tax Forms for the past 5 years are to
`be provided by first party plaintiff.
`
`18.
`
`Set forth the total amounts claimed for special damages as a result of the alleged
`
`incident, itemize said damages, including but not limited to the following:
`
`Physician services;
`(a)
`(b) Medical supplies;
`(c)
`Loss of earnings;
`(d)
`X-rays;
`(e)
`Hospital expenses;
`(f)
`Nurses services;
`
`17 of 57
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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`(g)
`
`All other special damages.
`
`19.
`
`Set forth by chapter, article, section and paragraph each and every statute or
`
`
`
`
`ordinance, if any, which it is claimed this answering defendant violated.
`
`
`
`20.
`
`Specifically set forth each and every regulation it will be claimed this answering
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`defendant violated.
`
`
`
`21.
`
`If it is claimed that a dangerous and/or defective condition existed, describe such
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`condition, giving the specific dimensions, including the length, depth, height and width thereof.
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`
`
`22.
`
`State in what manner it is alleged that each defendant negligently and/or carelessly
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`controlled, maintained and/or operated the premises so as to permit any alleged dangerous and/or
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`defective condition to exist.
`
`
`
`23.
`
`Describe any claimed nuisance, foreign substance, slippery substance and/or trap
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`that is claimed to have existed and state the length of time said condition is alleged to have existed.
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`
`
`
`PLEASE TAKE NOTICE, that in the event the plaintiffs have no knowledge of any of the
`
`above matters, plaintiffs shall so specifically state.
`
`
`
`PLEASE TAKE FURTHER NOTICE, that the foregoing are continuing demands and that
`
`if any of the above items are attained after the date of this demand, they are to be furnished to the
`
`undersigned pursuant to this demand. The undersigned will move to preclude said item not so
`
`provided and/or object upon a trial of this matter or the testimony and/or introduction of any item
`
`sought herein.
`
`Dated: Garden City, New York
`
`April 25, 2024
`
`
`
`
`
`
`
`
`
`
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`
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`
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`
`
`
`
`
`
`
`
`Yours, etc.,
`
`BARKER PATTERSON NICHOLS, LLP
`
`
`18 of 57
`
`

`

`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: McCARTHY & ASSOCIATES
`
`Attorneys for Defendant/Third Party Plaintiff
`
`YESHIVAT DARCHE ERES, INC.
`
`One Huntington Quadrangle, Suite 2C18
`Melville, New York 11747
`(631) 75602024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`
`
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`
`
`
`
`By: Gemma Kenney
`
`Gemma Kenney
`Attorneys for Third Party Defendant(s)
`NURTURING ANGELS HOME CARE,
`INC. and “JANE DOE”
`300 Garden City Plaza, Suite 100
`Garden City, New York 11530
`(516) 282-3355
`
`
`
`MOLOD, SPITZ & DESANTIS, P.C.
`Attorneys for Plaintiff
`1430 Broadway, 21st Floor
`New York, New York 10018
`(212) 869-3200
`
`
`
`
`19 of 57
`
`

`

`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`Index No.: 536190/2023
`
`DEMAND FOR A THIRD-
`PARTY VERIFIED BILL OF
`PARTICULARS
`
`
`
`
`Plaintiff(s),
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`---------------------------------------------------------------x
`RACHIL NSIRI,
`
`
`
`-against-
`
`
`
`
`
`YESHIVAT DARCHE ERES, INC.,,
`
`Defendant(s).
`
`
`
`
`-------------------------------------------------------------x
`YESHIVAT DARCHE ERES, INC.,
`
` Third-Party Plaintiff,
`
` -against-
`
`NURTURING ANGELS HOME CARE, INC. and
`“JANE DOE” (fictitious name to represent plaintiff’s
`Aide at time of accident),
`
` Third-Party Defendants.
`-------------------------------------------------------------x
`TO DEFENDANT/THIRD-PARTY PLAINTIFF:
`
`
`
`PLEASE TAKE NOTICE, that BARKER PATTERSON NICHOLS, LLP, attorneys for
`
`the third-party defendants, NURTURING ANGELS HOME CARE, INC. and “JANE DOE”
`
`demand that a Verified Bill of Particulars be served upon them with the following information
`
`within thirty (30) days:
`
`1.
`
`Whether it will be claimed that the Third-Party Plaintiff is entitled to total or partial
`
`indemnification.
`
`2.
`
`Is indemnity claimed by virtue or:
`
`a. Breach of contract; or
`
`b. Breach of warranty; or
`
`c. Negligence of this Third-Party Defendant; or
`
`20 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`d. Hold harmless agreement given the Third-Party Defendant.
`
`3.
`
`If it is claimed that this Answering Third-Party Defendant breached any agreement
`
`or contract or is liable pursuant to the terms of any agreement, contract or permit:
`
`a. States whether it will be claimed that such agreement, contract or permit was oral
`
`or written;
`
`b. If oral, state the date, time, place and parties to same as well as the terms and
`
`conditions thereof;
`
`c. If written, set forth a true copy thereof.
`
`4.
`
`State the acts or omissions which constituted the breach of contract or agreement
`
`of this Answering Third-Party Defendant.
`
`5.
`
`If it is claimed that this Answering Third-Party Defendant breached any warranties:
`
`a. States whether it will be claimed that such warranties were express or implied;
`
`b. If express, set forth a true copy thereof;
`
`c. If implied, state:
`
`I. The date(s) said warranties were made;
`
`II. The parties thereto;
`
`III. The sum and substance of such warranties. What manner will it be claimed
`
`that the Answering Third-Party Defendant breached its warranties.
`
`6.
`
`If notice is claimed, state the date(s), time(s), and place(s) of such notice and the
`
`parties hereto.
`
`7.
`
`State if the party or parties seeking indemnification claim any acts or omissions
`
`other than those claimed by the Plaintiff herein as a basis of indemnification.
`
`21 of 57
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`

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`FILED: KINGS COUNTY CLERK 04/26/2024 02:07 PM
`NYSCEF DOC. NO. 26
`
`INDEX NO. 536190/2023
`
`RECEIVED NYSCEF: 04/26/2024
`
`8.
`
`Set forth the acts and omissions constituting the negligence of the Answering Third-
`
`Party Defendant.
`
`9.
`
`If any dangerous or defective condition is alleged:
`
`a. State whether it will be claimed that this Answering Third-Party Defendant had an
`
`actual or constructive notice;
`
`b. If actual notice is claimed a statement of when and to whom given, stating names
`
`and dates;
`
`c. If it is alleged that the Answering Third-Party Defendant caused or created