Preview
FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020
EXHIBIT E
FILED: NEWD.[SDPerrott@MDWCG.com]
YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO.Sent
156731/2019
an: 4rzat20202 34
Stephen
Perrott,
NYSCEF
To: DOC. NO. 22
'jarniebrettlevy@Ievyjustice.corri RECEIVED NYSCEF: 08/12/2020
Ce: Robinson, Jennifer A.; Moroknek, Harold L; Sabini, Sheila M.
8 dessagi
Gi| irnage001.png 7 Contreras - Notice of Motion to Carnpel.pdf
Good Afternoon Mr. Levy,
Please find attached a Notice of Motion to Compel.
If you have any questions or concerns, kindly contact Ms. Robinson by telephone (914) 977-7334 or
email Jarobinson@mdwca.com
Thank you.
Stephen D. Perrott
Administmfive Assistant
287 Bowman Ave., Suite 404, Purchase, NY 10577
Direct: (914) 977-7333 | Main: (914) 977-7300 | Fax: (914) 977-7301
e-mail | website
This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected attorney-
by the
client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient,
you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to
this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding
this e-mail to SDPerrott(dtMDWCG.com, or by telephone at (914) 977-7333 and then delete the message and its attachments from your computer.
FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X Index No. 156731/2019
HECTOR CONTRERAS,
Plaintiff,
-against – NOTICE OF MOTION
TO COMPEL
THE CITY OF NEW YORK, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK,
BIENVENIDO R. PENA AND RELIANT Return Date: ___________
TRANSPORTATION,
Hon. Lyle E. Frank
Defendant(s).
--------------------------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed affirmation of JENNIFER A. ROBINSON,
ESQ., dated April 24, 2020, the Affirmation of Good Faith dated April 24, 2020, the exhibits annexed
thereto and upon all the prior pleadings and proceedings heretofore had herein, the undersigned will move
this Court in Motion Submission Part, Room 130 at the Supreme Court located at 60 Centre Street, New
York, New York on the 26th day of June, 2020, at 9:30 o'clock in the forenoon of that day, or as soon
thereafter as counsel can be heard, for:
1. An Order compelling the plaintiff to serve a Verified Bill of Particulars within thirty days in
response to the demands of the defendant pursuant to CPLR §3042(c);
2. An Order directing plaintiff to comply with all other outstanding discovery demands within
thirty days pursuant to CPLR §3124;
3. Or in the alternative, for an Order precluding plaintiff from offering evidence at trial as to which
discovery has been demanded but has not been provided pursuant to CPLR §3042(d);
4. For such other and further relief as to this Court may deem just and proper.
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering affirmations,
if any, must be served at least (7) days before the return date hereof.
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Dated: Purchase, New York
April 24, 2020
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
__________________________________
Jennifer A. Robinson, Esq.
Attorneys for Defendants
Bienvenido R. Pena and Reliant Transportation
287 Bowman Ave., Suite 404
Purchase, New York 10577
(914) 977-7334
Our File No.: 42039.00101
TO: THE LEVY LAW FIRM, P.C.
Jamie B. Levy, Esq.
Attorneys for Plaintiff
233 Broadway, Suite 2200
New York, New York 10279
(212) 227-1222
CORPORATION COUNSEL
Georgia M. Pestana, Esq.
Attorneys for Defendants
THE CITY OF NEW YORK
And THE DEPARTMENT OF EDUCATION OF
THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
LEGAL/123956142.v1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X Index No. 156731/2019
HECTOR CONTRERAS,
Plaintiff(s),
-against – AFFIRMATION OF
GOOD FAITH
THE CITY OF NEW YORK, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK,
BIENVENIDO R. PENA AND RELIANT
TRANSPORTATION,
Defendant(s).
---------------------------------------------------------------------------X
JENNIFER A. ROBINSON, an attorney duly admitted to practice law before the Courts of the
State of New York, aware of the penalties of perjury, hereby affirms as follows:
1. I am an Associate with the firm of MARSHALL DENNEHEY WARNER COLEMAN &
GOGGIN, attorneys for the defendants BIENVENIDO R. PENA and RELIANT TRANSPORTATION,
and as such I am fully familiar with the facts and circumstances of the within action as they pertain to this
motion.
2. Efforts have been made to obtain the relief sought herein without the need for Court
intervention, but such attempts have been to no avail.
3. Specifically, on January 7, 2020 your affirmant's office corresponded with plaintiff's
counsel, requesting compliance with our Verified Bill of Particulars and other outstanding discovery
demands. No response to these correspondence have been forthcoming. A copy of said correspondence is
annexed hereto as Exhibit "A".
4. Accordingly, it is respectfully requested that relief sought in this motion be ordered.
LEGAL/123956142.v1
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Dated: Purchase, New York
April 24, 2020
__________________________________
JENNIFER A. ROBINSON
LEGAL/123956142.v1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X Index No. 156731/2019
HECTOR CONTRERAS,
Plaintiff(s),
-against – AFFIRMATION IN
SUPPORT
THE CITY OF NEW YORK, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK,
BIENVENIDO R. PENA AND RELIANT
TRANSPORTATION,
Defendant(s).
---------------------------------------------------------------------------X
JENNIFER A. ROBINSON, an attorney duly admitted to practice law before the Courts of the
State of New York, aware of the penalties of perjury, hereby affirms as follows:
1. I am an Associate with the firm of MARSHALL DENNEHEY WARNER COLEMAN &
GOGGIN, attorneys for the defendants, BIENVENIDO R. PENA and RELIANT TRANSPORTATION,
and as such I am fully familiar with the facts and circumstances of the within action as they pertain to this
motion.
2. This action to recover damages for personal injuries allegedly sustained by the plaintiff was
commenced by the filing of a Summons and Complaint on July 10, 2019. Issue was joined by the filing of
the defendant's Answer on August 22, 2019. Copies of said pleadings are annexed hereto as Exhibit "B".
3. On August 22, 2019 following service of the defendant’s Answer, a Demand was made for
Plaintiff's Verified Bill of Particulars, in accordance with Rule 3042 of the CPLR. A copy of said Demand
for a Bill of Particulars is annexed as Exhibit "C".
4. The plaintiff has failed to comply with the Demand for a Bill of Particulars, by neglecting
to serve a response, although the time limit for the service of such Bill of Particulars has expired.
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5. The moving defendant has not granted any extensions of time for plaintiff to serve a response
to the defendant's Demand for Bill of Particulars, nor did the defendant modify or withdraw the annexed
demand.
6. Furthermore, the plaintiff was served with a Notice of Discovery of Witnesses, Notice of
Discovery of Photographs, Notice of Discovery of Expert Witnesses, a Demand for Statements and Demand
for Authorizations, as well as other demands pursuant to CPLR §3102. Copies of these demands are
annexed hereto as Exhibit "D”.
7. To date, plaintiff has still not served responses to these demands. Significantly, plaintiff’s
counsel has not provided any authorizations for the release of plaintiff’s medical, employment or collateral
source records. This is despite correspondence to plaintiff’s counsel requesting compliance with these
demands. (See correspondence annexed hereto as Exhibit “A” and Affirmation of Good Faith.)
8. Clearly, the defendant is entitled to the requested information as such is provided for in
Articles 30 and 31 of the CPLR.
9. Courts have repeatedly held that "litigation cannot be conducted efficiently if deadlines are
not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines
should not and will not be tolerated". Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 83 (2010) quoting Andrea
v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.],
5 NY3d 514, 521 (2005); see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 (2008);
Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 (2004); Brill, 2 NY3d at 652-653; Kihl, 94
NY2d at 123).
10. The defendant herein will be greatly prejudiced if they are not supplied with these
documents. It is well-established that one of the purposes of disclosure is to prevent surprise at trial.
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Waldman v A.H. Robins Co., 129 Misc 2d 331 (1985), Dworsky v. Bennett, 51 Misc.2d 383, 273 N.Y.S.2d
211 (N.Y. Supp. 1966).
11. The absence of an excuse for the delay in responding to discovery demands, and the delaying
party's failure to object to the demands, supports an inference that the failure to comply was willful. Ranfort
v. Peak Tours, Inc., 250 A.D. 2d 747 (2d Dept. 1998).
WHEREFORE, it is respectfully requested that this Court issue:
• An Order compelling the plaintiff to serve a Verified Bill of Particulars within thirty
days in response to the demands of the defendant pursuant to CPLR §3042(c);
• An Order directing plaintiff to comply with all other outstanding discovery demands
within thirty days pursuant to CPLR §3124;
• Or in the alternative, for an Order precluding plaintiff from offering evidence at trial
as to which discovery has been demanded but has not been provided pursuant to
CPLR §3042(d); and
• For such other and further relief as to this Court may deem just and proper. Efforts
have been made to obtain the relief sought herein without the need for Court
intervention, but such attempts have been to no avail.
Dated: Purchase, New York
April 24, 2020
__________________________________
JENNIFER A. ROBINSON
LEGAL/123956142.v1
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Index No.: 156731/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
______________________________________________________________________________
HECTOR CONTRERAS,
Plaintiff,
-against-
THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK,
BIENVENIDO R. PENA AND RELIANT TRANSPORTATION,
Defendants.
NOTICE OF MOTION TO COMPEL, AFFIRMATION
OF GOOD FAITH, AFFIRMATION IN SUPPORT and EXHIBITS
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
ATTORNEYS FOR DEFENDANTS
BIENVENIDO R. PENA and RELIANT TRANSPORTATION
287 BOWMAN AVE., SUITE 404
PURCHASE, NY 10577
(914) 977-7300
PURSUANT TO 22 NYCRR 130-1.1, THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE IN THE COURTS
OF NEW YORK STATE, CERTIFIES THAT, UPON INFORMATION AND BELIEF AND REASONABLE INQUIRY, THE
CONTENTIONS CONTAINED IN THE ANNEXED DOCUMENT ARE NOT FRIVOLOUS.
DATED: SIGNATURE ___________________________
PRINT SIGNER'S NAME:
SERVICE OF A COPY OF THE WITHIN IS HEREBY ADMITTED.
DATE:
__________________________________________
ATTORNEY(S) FOR
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EXHIBIT A
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800 Westchester Avenue, Suite C-700, Rye Brook, NY 10573
(914) 977-7300 Fax (914) 977-7301
Direct Dial: (914) 977-7334
Email: jarobinson@mdwcg.com
January 7, 2020
VIA US MAIL
James B. Levy, Esq.
The Levy Law Firm, P.C.
233 Broadway, Suite 2200
New York, NY 10279
42039.00101 [0L51]
RE: Contreras, Hector v. Reliant Transportation, et al.
Index No.: 156731/2019
Our File No.: 42039.00101
Dear Mr. Levy:
As you know, our firm represents Third Third-Party Defendant Bienvenido R. Pena and Reliant
Transportation, Inc., in the above-referenced matter.
We have served upon you our client's discovery demands including a Demand for Verified Bill of
Particulars, Notice to Take Deposition Upon Oral Examination, Demand for Accident Reports, Demand for
No-Fault Records, Demand for Records and Authorizations, Notice of Discovery of Notice Witnesses, Notice
of Discovery of Photographs, Demand for Employment Records and Employment Authorizations, Demand
for Tax Records, Notice of Discovery of Expert Witnesses Pursuant to CPLR Section 3101, Demand for
Statements, Demand for Insurance Coverage Information, Notice for Discovery and Inspection,
Supplemental Notice for Discovery and Inspection/MMSEA, Request for Supplemental Demand for Relief,
Notice to Produce Social Media Authorization and Preserve Social Media Information, Notice Pursuant to
Section 2103, Notice for Physical Examinations, and Notice to Preserve and Request for Inspection. A copy
of which is enclosed for reference.
To date, we have not received your response thereto and we ask that you kindly take this opportunity
to review your file and provide us with the requested documentation.
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James B. Levy, Esq.
January 7, 2020
Page 2
_____________________________________________________
It is hoped that we will be able to avoid the necessity of Court intervention in this matter.
Thank you for your attention to this matter.
Very truly yours,
Jennifer A. Robinson
JAR:ae
Enclosures
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EXHIBIT B
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null / ALL
Transmittal Number: 20119011
Notice of Service of Process Date Processed: 07/22/2019
Primary Contact: Ted Navitskas
MV Transportation, Inc
2711 N Haskell Ave
Ste 1500
Dallas, TX 75204-2911
Electronic copy provided to: Jennifer Fleming
Russell Mann
Dorina Hertner
Diana Rios
Sheila Hage
Rebecca Chartan
Jacob Lackore
Karen Carthen
Jan Piel
Tiffany Wiechman
Entity: Reliant Transportation, Inc.
Entity ID Number 3800815
Entity Served: Reliant Transportation, Inc.
Title of Action: Hector Contreras vs. The City of New York
Document(s) Type: Summons/Complaint
Nature of Action: Personal Injury
Court/Agency: New York County Supreme Court, NY
Case/Reference No: 15673/2019
Jurisdiction Served: New York
Date Served on CSC: 07/18/2019
Answer or Appearance Due: 20 Days
Originally Served On: CSC
How Served: Personal Service
Sender Information: Jamie B. Levy
212-227-1222
Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not
constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.
To avoid potential delay, please do not send your response to CSC
251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Filed:
HECTOR CONTRERAS, INDEX NO.
Plaintiff, Plaintiff designate
NEW YORK County
-against- as the place of trial.
THE CITY OF NEW YORK, THE DEPARTMENT OF SUMMONS
EDUCATION OF THE CITY OF NEW YORK,
RELIANrT
BIENVENIDO R. PENA and ~___ The basis of venue is
TRA RTATION INC. place of occurrence.
Defendants. Plaintiff s residence:
825 West 180th Street,
Apt. 24
New York, NY 10033
To the above-named Defendant:
YOU ARE HEREBY SUMMONED to answer the complaint in the action and to
serve a copy of your answer on the plaintiff attorneys within 20 days after the service of
the summons, exclusive of the day of service of the summons, or within 30 days after
service of the summons is complete if the summons is not personally delivered to you
within the State of New York.
In case of your failure to answer the summons, a judgment by default will be taken
against you for the relief demanded in the complaint, together with the costs of the action.
Dated: New York, New York
July 10, 2019
THE LEVj~Y~LAWf4RM, P.C.
By:
Jam' Le y
Attorney for Plaintiff
233 Bro way, Suite 2200
New York, New York 10279
(212) 227-1222
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THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK
52 Chambers Street
Brooklyn, New York 10007
BIENVENIDO R. PENA
209 Dyckman Street, Apt. 64
New York, New York 10040
RELIANT TRANSPORTATION, INC.
c/o Corporation Service Company
80 State Street
Albany, New York 12207
RELIANT TRANSPORTATION, INC.
7273 State Road 76
Neenah, WI 54956
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
INDEX NO.
HECTOR CONTRERAS,
VERIFIED
Plaintiff, COMPLAINT
-against-
THE CITY OF NEW YORK, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK,
BIENVENIDO R. PENA and RELIANT
TRANSPORTATION, INC.,
Defendant.
Plaintiff, by his attorneys, THE LEVY LAW FIRM, P.C., as and for his Verified
Complaint, respectfully allege, upon information and belief:
1. That the plaintiff, HECTOR CONTRERAS, is a resident of the County of New
York and the State of New York.
2. At all times hereinafter mentioned that on or about September 5, 2018,
plaintiff, HECTOR CONTRERAS was the owner and operator of a certain motor vehicle,
bearing New York State license plate number T749878C.
AS AND FOR A FIRST CAUSE OF ACTION
3. Upon information and belief, that at all times hereinafter mentioned, the defendant,
THE CITY OF NEW YORK, was and still is a municipal corporation organized under and
existing by virtue of the laws of the State of New York.
4. That within ninety days after the cause of action accrued herein, and more than thirty
3
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days prior to commencement of this action, plaintiff duly presented, served, and filed a notice of
intention to sue claim with the comptroller of the defendant, THE CITY OF NEW YORK, and
this action was so commenced within one year and ninety days after the happening of the event
upon which the claim is based.
5. That prior to commencement of this action, plaintiff duly complied with all the
conditions precedent to the bringing of this action, and has complied with provisions of the
statutes in such cases made and provided, and in particular, within ninety days after the cause of
action accrued herein, and more than thirty days prior to the commencement of their action,
plaintiff has duly presented, served and filed a Notice of Claim herein with the Corporation
Counsel for the defendant, THE CITY OF NEW YORK for adjustment of damages sustained by
the plaintiff herein, upon which this cause of action is based, and that after said defendant for
more than thirty days refused to and neglected to make an adjustment or payment on said claim,
said claim remains unpaid and unadjusted, although plaintiff has duly demanded that the same be
paid and adjusted.
6. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the
titled owner of a certain school bus bearing New York State license plate number 12000SH.
7. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the
registered owner of a certain school bus bearing New York State license plate number 12000SH.
8. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the
lessee of a certain school bus bearing New York State license plate number 12000SH.
9. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the
lessor of a certain school bus bearing New York State license plate number 12000SH.
0
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10. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by
defendant's servants, agents and/or employees maintained a certain school bus bearing New
York State license plate number 12000SH.
11. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by
defendant's servants, agents and/or employees controlled a certain school bus bearing New York
State license plate number 12000SH.
12. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by
defendant's servants, agents and/or employees inspected a certain school bus bearing New York
State license plate number 12000SH.
13. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by
defendant's servants, agents and/or employees repaired a certain school bus bearing New York
State license plate number 12000SH.
14. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by
defendant's servants, agents and/or employees operated a certain school bus bearing New York
State license plate number 12000SH.
15. That at all times hereinafter mentioned, the defendant, THE CITY OF NEW YORK,
operated a certain school bus at, near, around or about the intersection of West 125t" Street and
Old Broadway, in the County of New York, City and State of New York.
16. On or about September 5, 2018, the plaintiff, HECTOR CONTRERAS was lawfully
operating his motor vehicle at, near, around or about the intersection of West 125th Street and
Old Broadway, in the County of New York, City and State of New York.
5
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17. That on or about September 5, 2018, the school bus owned by the defendant
THE CITY OF NEW YORK and bearing New York State license plate number 12000SH
suddenly and violently came in contact with the vehicle owned and operated by the
plaintiff, HECTOR CONTRERAS, at, near, around or about West 125th Street at, near,
around or about Old Broadway, in the County of New York, State of New York.
18. Solely as a result of the defendant's negligence, carelessness and recklessness
the plaintiff were caused to suffer severe and serious physical injuries and injuries to mind
and body, and further, that the plaintiff was subjected to great physical pain and mental
anguish.
19. That the defendant was negligent, reckless and careless in: failing to keep the
aforementioned motor vehicle under reasonable control given the totality of the
circumstances; failing to keep a vigilant lookout ahead and about him; failing to properly
apply the motor vehicle's braking and steering mechanisms; operating said motor vehicle at
an improper rate of speed under the circumstances then and there prevailing; failing to
operate said motor vehicle with reasonable prudence and care; failing to slow down and
proceed with caution; operating said motor vehicle in a negligent, reckless and careless
manner in violation of the rules of the road in such cases made and provided; failing to
obey the posted stop signs and other traffic controls; failing to yield; failing to use caution
at an intersection; failing to observe road markings; defendant THE CITY OF NEW YORK
failing to instruct the driver in the proper operation, maintenance and control of the motor
vehicle; defendant THE CITY OF NEW YORK`s entrustment of said motor vehicle to the
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driver; failing to warn the plaintiff and other vehicles in and about the area so as to afford
the opportunity to avoid the collision; failing to safeguard the plaintiff from said accident;
and being otherwise negligent, reckless and careless in the ownership, operation,
maintenance, and control of said motor vehicle; and in that defendant, THE CITY OF NEW
YORK was otherwise negligent.
20. By reason of the foregoing, HECTOR CONTRERAS was severely injured and
damaged, sustained severe nervous shock and mental anguish, great physical pain and
emotional upset, some of which injuries are believed to be permanent in nature and
duration, and HECTOR CONTRERAS will be permanently caused to suffer pain,
inconvenience and other effects of such injuries; HECTOR CONTRERAS incurred and in
the future will necessarily incur further hospital and/or medical expenses in an effort to be
cured of said injuries; and HECTOR CONTRERAS will be unable to pursue HECTOR
CONTRERAS's usual duties with the same degree of efficiency as prior to this accident, all
to HECTOR CONTRERAS's great damage.
21. As a result of the foregoing, the plaintiff sustained serious personal injuries as
in Section 5102(d) of the Insurance Law of the State of New York, and/or economic loss greater
than basic economic loss as defined in Section 5102(a) of the Insurance Law of the State of New
York.
22. This action falls within one or more of the exceptions set forth in Section 1602 of the
Civil Practice Law and Rules.
23. Due to defendants' negligence, plaintiff is entitled to damages in a sum which
exceeds the jurisdictional limit of all lower Courts which would otherwise have jurisdiction.
7
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AS AND FOR A SECOND CAUSE OF ACTION
24. Plaintiff repeat, reiterate and reallege each and every allegation contained in
paragraphs " 1 " through "23", all inclusive, with the same force and effect as though fully
set forth at length herein.
25. Upon information and belief, that at all times hereinafter mentioned, the
defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, was and
still is a municipal corporation organized under and existing by virtue of the laws of the State of
New York.
26. That within ninety days after the cause of action accrued herein, and more than thirty
days prior to commencement of this action, plaintiff duly presented, served, and filed a notice of
intention to sue claim with the comptroller of the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, and this action was so commenced within one
year and ninety days after the happening of the event upon which the clairn is based.
27. That prior to commencement of this action, plaintiff duly complied with all the
conditions precedent to the bringing of this action, and has complied with provisions of the
statutes in such cases made and provided, and in particular, within ninety days after the cause of
action accrued herein, and more than thirty days prior to the commencement of their action,
plaintiff has duly presented, served and filed a Notice of Claim herein with the Corporation
Counsel for the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW
YORK for adjustment of damages sustained by the plaintiff herein, upon which this cause of
action is based, and that after said defendant for more than thirty days refused to and neglected to
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NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020
make an adjustment or payment on said claim, said claim remains unpaid and unadjusted,
although plaintiff has duly demanded that the same be paid and adjusted.
28. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK was the titled owner of a certain school bus
bearing New York State license plate number 12000SH.
29. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK was the registered owner of a certain school bus
bearing New York State license plate number 12000SH.
30. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK was the lessee of a certain school bus bearing
New York State license plate number 12000SH.
31. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK was the lessor of a certain school bus bearing
New York State license plate number 12000SH.
32. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or
employees maintained a certain school bus bearing New York State license plate number
12000SH.
33. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or
employees controlled a certain school bus bearing New York State license plate number
12000SH.
0
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NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020
34. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or
employees inspected a certain school bus bearing New York State license plate number
12000SH.
35. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or
employees repaired a certain school bus bearing New York State license plate number 12000SH.
36. On or about September 5, 2018, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or
employees operated a certain school bus bearing New York State license plate number 12000SH.
37. That at all times hereinafter mentioned, the defendant, THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, operated a certain school bus at, near, around or
about the intersection of West 125" Street and Old Broadway, in the County of NEW YORK,
City and State of New York.
38. On or about September 5, 2018, the plaintiff, HECTOR CONTRERAS was lawfully
operating his motor vehicle at, near, around or about the intersection of West 125th Street and
Old Broadway, in the County of NEW YORK, City and State of New York.
39. That on or about September 5, 2018, the school bus owned by the defendant
THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK and bearing
New York State license plate number 12000SH suddenly and violently came in contact
with the vehicle owned and operated by the plaintiff, HECTOR CONTRERAS, at, near,
10
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around or about West 125th Street at, near, around or about Old Broadway, in the County of
New York, State of New York.
40. Solely as a result of the defendant's negligence, carelessness and recklessness
the plaintiff were caused to suffer severe and serious physical injuries and injuries to mind
and body, and further, that the plaintiff was subjected to great physical pain and mental
anguish.
41. That the defendant was negligent, reckless and careless in: failing to keep the
aforementioned motor vehicle under reasonable control given the totality of the
circumstances; failing to keep a vigilant lookout ahead and about him; failing to properly
apply the motor vehicle's braking and steering mechanisms; operating said motor vehicle at
an improper rate of speed under the circumstances then and there prevailing; failing to
operate said motor vehicle with reasonable prudence and care; failing to slow down and
proceed with caution; operating said motor vehicle in a negligent, reckless and careless
manner in violation of the rules of the road in such cases made and provided; failing to
obey the posted stop signs and other traffic controls; failing to yield; failing to use caution
at an intersection; failing to observe road markings; defendant THE DEPARTMENT OF
EDUCATION OF THE CITY OF NEW
Preview
FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 EXHIBIT E FILED: NEWD.[SDPerrott@MDWCG.com] YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO.Sent 156731/2019 an: 4rzat20202 34 Stephen Perrott, NYSCEF To: DOC. NO. 22 'jarniebrettlevy@Ievyjustice.corri RECEIVED NYSCEF: 08/12/2020 Ce: Robinson, Jennifer A.; Moroknek, Harold L; Sabini, Sheila M. 8 dessagi Gi| irnage001.png 7 Contreras - Notice of Motion to Carnpel.pdf Good Afternoon Mr. Levy, Please find attached a Notice of Motion to Compel. If you have any questions or concerns, kindly contact Ms. Robinson by telephone (914) 977-7334 or email Jarobinson@mdwca.com Thank you. Stephen D. Perrott Administmfive Assistant 287 Bowman Ave., Suite 404, Purchase, NY 10577 Direct: (914) 977-7333 | Main: (914) 977-7300 | Fax: (914) 977-7301 e-mail | website This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected attorney- by the client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to SDPerrott(dtMDWCG.com, or by telephone at (914) 977-7333 and then delete the message and its attachments from your computer. FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X Index No. 156731/2019 HECTOR CONTRERAS, Plaintiff, -against – NOTICE OF MOTION TO COMPEL THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, BIENVENIDO R. PENA AND RELIANT Return Date: ___________ TRANSPORTATION, Hon. Lyle E. Frank Defendant(s). --------------------------------------------------------------------------X PLEASE TAKE NOTICE, that upon the annexed affirmation of JENNIFER A. ROBINSON, ESQ., dated April 24, 2020, the Affirmation of Good Faith dated April 24, 2020, the exhibits annexed thereto and upon all the prior pleadings and proceedings heretofore had herein, the undersigned will move this Court in Motion Submission Part, Room 130 at the Supreme Court located at 60 Centre Street, New York, New York on the 26th day of June, 2020, at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for: 1. An Order compelling the plaintiff to serve a Verified Bill of Particulars within thirty days in response to the demands of the defendant pursuant to CPLR §3042(c); 2. An Order directing plaintiff to comply with all other outstanding discovery demands within thirty days pursuant to CPLR §3124; 3. Or in the alternative, for an Order precluding plaintiff from offering evidence at trial as to which discovery has been demanded but has not been provided pursuant to CPLR §3042(d); 4. For such other and further relief as to this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering affirmations, if any, must be served at least (7) days before the return date hereof. FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 Dated: Purchase, New York April 24, 2020 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN __________________________________ Jennifer A. Robinson, Esq. Attorneys for Defendants Bienvenido R. Pena and Reliant Transportation 287 Bowman Ave., Suite 404 Purchase, New York 10577 (914) 977-7334 Our File No.: 42039.00101 TO: THE LEVY LAW FIRM, P.C. Jamie B. Levy, Esq. Attorneys for Plaintiff 233 Broadway, Suite 2200 New York, New York 10279 (212) 227-1222 CORPORATION COUNSEL Georgia M. Pestana, Esq. Attorneys for Defendants THE CITY OF NEW YORK And THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK 100 Church Street New York, New York 10007 LEGAL/123956142.v1 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X Index No. 156731/2019 HECTOR CONTRERAS, Plaintiff(s), -against – AFFIRMATION OF GOOD FAITH THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, BIENVENIDO R. PENA AND RELIANT TRANSPORTATION, Defendant(s). ---------------------------------------------------------------------------X JENNIFER A. ROBINSON, an attorney duly admitted to practice law before the Courts of the State of New York, aware of the penalties of perjury, hereby affirms as follows: 1. I am an Associate with the firm of MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, attorneys for the defendants BIENVENIDO R. PENA and RELIANT TRANSPORTATION, and as such I am fully familiar with the facts and circumstances of the within action as they pertain to this motion. 2. Efforts have been made to obtain the relief sought herein without the need for Court intervention, but such attempts have been to no avail. 3. Specifically, on January 7, 2020 your affirmant's office corresponded with plaintiff's counsel, requesting compliance with our Verified Bill of Particulars and other outstanding discovery demands. No response to these correspondence have been forthcoming. A copy of said correspondence is annexed hereto as Exhibit "A". 4. Accordingly, it is respectfully requested that relief sought in this motion be ordered. LEGAL/123956142.v1 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 Dated: Purchase, New York April 24, 2020 __________________________________ JENNIFER A. ROBINSON LEGAL/123956142.v1 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X Index No. 156731/2019 HECTOR CONTRERAS, Plaintiff(s), -against – AFFIRMATION IN SUPPORT THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, BIENVENIDO R. PENA AND RELIANT TRANSPORTATION, Defendant(s). ---------------------------------------------------------------------------X JENNIFER A. ROBINSON, an attorney duly admitted to practice law before the Courts of the State of New York, aware of the penalties of perjury, hereby affirms as follows: 1. I am an Associate with the firm of MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, attorneys for the defendants, BIENVENIDO R. PENA and RELIANT TRANSPORTATION, and as such I am fully familiar with the facts and circumstances of the within action as they pertain to this motion. 2. This action to recover damages for personal injuries allegedly sustained by the plaintiff was commenced by the filing of a Summons and Complaint on July 10, 2019. Issue was joined by the filing of the defendant's Answer on August 22, 2019. Copies of said pleadings are annexed hereto as Exhibit "B". 3. On August 22, 2019 following service of the defendant’s Answer, a Demand was made for Plaintiff's Verified Bill of Particulars, in accordance with Rule 3042 of the CPLR. A copy of said Demand for a Bill of Particulars is annexed as Exhibit "C". 4. The plaintiff has failed to comply with the Demand for a Bill of Particulars, by neglecting to serve a response, although the time limit for the service of such Bill of Particulars has expired. LEGAL/123956142.v1 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 5. The moving defendant has not granted any extensions of time for plaintiff to serve a response to the defendant's Demand for Bill of Particulars, nor did the defendant modify or withdraw the annexed demand. 6. Furthermore, the plaintiff was served with a Notice of Discovery of Witnesses, Notice of Discovery of Photographs, Notice of Discovery of Expert Witnesses, a Demand for Statements and Demand for Authorizations, as well as other demands pursuant to CPLR §3102. Copies of these demands are annexed hereto as Exhibit "D”. 7. To date, plaintiff has still not served responses to these demands. Significantly, plaintiff’s counsel has not provided any authorizations for the release of plaintiff’s medical, employment or collateral source records. This is despite correspondence to plaintiff’s counsel requesting compliance with these demands. (See correspondence annexed hereto as Exhibit “A” and Affirmation of Good Faith.) 8. Clearly, the defendant is entitled to the requested information as such is provided for in Articles 30 and 31 of the CPLR. 9. Courts have repeatedly held that "litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated". Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 83 (2010) quoting Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 (2005); see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 (2008); Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 (2004); Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123). 10. The defendant herein will be greatly prejudiced if they are not supplied with these documents. It is well-established that one of the purposes of disclosure is to prevent surprise at trial. LEGAL/123956142.v1 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 Waldman v A.H. Robins Co., 129 Misc 2d 331 (1985), Dworsky v. Bennett, 51 Misc.2d 383, 273 N.Y.S.2d 211 (N.Y. Supp. 1966). 11. The absence of an excuse for the delay in responding to discovery demands, and the delaying party's failure to object to the demands, supports an inference that the failure to comply was willful. Ranfort v. Peak Tours, Inc., 250 A.D. 2d 747 (2d Dept. 1998). WHEREFORE, it is respectfully requested that this Court issue: • An Order compelling the plaintiff to serve a Verified Bill of Particulars within thirty days in response to the demands of the defendant pursuant to CPLR §3042(c); • An Order directing plaintiff to comply with all other outstanding discovery demands within thirty days pursuant to CPLR §3124; • Or in the alternative, for an Order precluding plaintiff from offering evidence at trial as to which discovery has been demanded but has not been provided pursuant to CPLR §3042(d); and • For such other and further relief as to this Court may deem just and proper. Efforts have been made to obtain the relief sought herein without the need for Court intervention, but such attempts have been to no avail. Dated: Purchase, New York April 24, 2020 __________________________________ JENNIFER A. ROBINSON LEGAL/123956142.v1 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 Index No.: 156731/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______________________________________________________________________________ HECTOR CONTRERAS, Plaintiff, -against- THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, BIENVENIDO R. PENA AND RELIANT TRANSPORTATION, Defendants. NOTICE OF MOTION TO COMPEL, AFFIRMATION OF GOOD FAITH, AFFIRMATION IN SUPPORT and EXHIBITS MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN ATTORNEYS FOR DEFENDANTS BIENVENIDO R. PENA and RELIANT TRANSPORTATION 287 BOWMAN AVE., SUITE 404 PURCHASE, NY 10577 (914) 977-7300 PURSUANT TO 22 NYCRR 130-1.1, THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE IN THE COURTS OF NEW YORK STATE, CERTIFIES THAT, UPON INFORMATION AND BELIEF AND REASONABLE INQUIRY, THE CONTENTIONS CONTAINED IN THE ANNEXED DOCUMENT ARE NOT FRIVOLOUS. DATED: SIGNATURE ___________________________ PRINT SIGNER'S NAME: SERVICE OF A COPY OF THE WITHIN IS HEREBY ADMITTED. DATE: __________________________________________ ATTORNEY(S) FOR FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 EXHIBIT A FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 800 Westchester Avenue, Suite C-700, Rye Brook, NY 10573 (914) 977-7300 Fax (914) 977-7301 Direct Dial: (914) 977-7334 Email: jarobinson@mdwcg.com January 7, 2020 VIA US MAIL James B. Levy, Esq. The Levy Law Firm, P.C. 233 Broadway, Suite 2200 New York, NY 10279 42039.00101 [0L51] RE: Contreras, Hector v. Reliant Transportation, et al. Index No.: 156731/2019 Our File No.: 42039.00101 Dear Mr. Levy: As you know, our firm represents Third Third-Party Defendant Bienvenido R. Pena and Reliant Transportation, Inc., in the above-referenced matter. We have served upon you our client's discovery demands including a Demand for Verified Bill of Particulars, Notice to Take Deposition Upon Oral Examination, Demand for Accident Reports, Demand for No-Fault Records, Demand for Records and Authorizations, Notice of Discovery of Notice Witnesses, Notice of Discovery of Photographs, Demand for Employment Records and Employment Authorizations, Demand for Tax Records, Notice of Discovery of Expert Witnesses Pursuant to CPLR Section 3101, Demand for Statements, Demand for Insurance Coverage Information, Notice for Discovery and Inspection, Supplemental Notice for Discovery and Inspection/MMSEA, Request for Supplemental Demand for Relief, Notice to Produce Social Media Authorization and Preserve Social Media Information, Notice Pursuant to Section 2103, Notice for Physical Examinations, and Notice to Preserve and Request for Inspection. A copy of which is enclosed for reference. To date, we have not received your response thereto and we ask that you kindly take this opportunity to review your file and provide us with the requested documentation. FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 James B. Levy, Esq. January 7, 2020 Page 2 _____________________________________________________ It is hoped that we will be able to avoid the necessity of Court intervention in this matter. Thank you for your attention to this matter. Very truly yours, Jennifer A. Robinson JAR:ae Enclosures FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 EXHIBIT B FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 null / ALL Transmittal Number: 20119011 Notice of Service of Process Date Processed: 07/22/2019 Primary Contact: Ted Navitskas MV Transportation, Inc 2711 N Haskell Ave Ste 1500 Dallas, TX 75204-2911 Electronic copy provided to: Jennifer Fleming Russell Mann Dorina Hertner Diana Rios Sheila Hage Rebecca Chartan Jacob Lackore Karen Carthen Jan Piel Tiffany Wiechman Entity: Reliant Transportation, Inc. Entity ID Number 3800815 Entity Served: Reliant Transportation, Inc. Title of Action: Hector Contreras vs. The City of New York Document(s) Type: Summons/Complaint Nature of Action: Personal Injury Court/Agency: New York County Supreme Court, NY Case/Reference No: 15673/2019 Jurisdiction Served: New York Date Served on CSC: 07/18/2019 Answer or Appearance Due: 20 Days Originally Served On: CSC How Served: Personal Service Sender Information: Jamie B. Levy 212-227-1222 Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action. To avoid potential delay, please do not send your response to CSC 251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Filed: HECTOR CONTRERAS, INDEX NO. Plaintiff, Plaintiff designate NEW YORK County -against- as the place of trial. THE CITY OF NEW YORK, THE DEPARTMENT OF SUMMONS EDUCATION OF THE CITY OF NEW YORK, RELIANrT BIENVENIDO R. PENA and ~___ The basis of venue is TRA RTATION INC. place of occurrence. Defendants. Plaintiff s residence: 825 West 180th Street, Apt. 24 New York, NY 10033 To the above-named Defendant: YOU ARE HEREBY SUMMONED to answer the complaint in the action and to serve a copy of your answer on the plaintiff attorneys within 20 days after the service of the summons, exclusive of the day of service of the summons, or within 30 days after service of the summons is complete if the summons is not personally delivered to you within the State of New York. In case of your failure to answer the summons, a judgment by default will be taken against you for the relief demanded in the complaint, together with the costs of the action. Dated: New York, New York July 10, 2019 THE LEVj~Y~LAWf4RM, P.C. By: Jam' Le y Attorney for Plaintiff 233 Bro way, Suite 2200 New York, New York 10279 (212) 227-1222 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 THE CITY OF NEW YORK 100 Church Street New York, New York 10007 THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK 52 Chambers Street Brooklyn, New York 10007 BIENVENIDO R. PENA 209 Dyckman Street, Apt. 64 New York, New York 10040 RELIANT TRANSPORTATION, INC. c/o Corporation Service Company 80 State Street Albany, New York 12207 RELIANT TRANSPORTATION, INC. 7273 State Road 76 Neenah, WI 54956 2 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDEX NO. HECTOR CONTRERAS, VERIFIED Plaintiff, COMPLAINT -against- THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, BIENVENIDO R. PENA and RELIANT TRANSPORTATION, INC., Defendant. Plaintiff, by his attorneys, THE LEVY LAW FIRM, P.C., as and for his Verified Complaint, respectfully allege, upon information and belief: 1. That the plaintiff, HECTOR CONTRERAS, is a resident of the County of New York and the State of New York. 2. At all times hereinafter mentioned that on or about September 5, 2018, plaintiff, HECTOR CONTRERAS was the owner and operator of a certain motor vehicle, bearing New York State license plate number T749878C. AS AND FOR A FIRST CAUSE OF ACTION 3. Upon information and belief, that at all times hereinafter mentioned, the defendant, THE CITY OF NEW YORK, was and still is a municipal corporation organized under and existing by virtue of the laws of the State of New York. 4. That within ninety days after the cause of action accrued herein, and more than thirty 3 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 days prior to commencement of this action, plaintiff duly presented, served, and filed a notice of intention to sue claim with the comptroller of the defendant, THE CITY OF NEW YORK, and this action was so commenced within one year and ninety days after the happening of the event upon which the claim is based. 5. That prior to commencement of this action, plaintiff duly complied with all the conditions precedent to the bringing of this action, and has complied with provisions of the statutes in such cases made and provided, and in particular, within ninety days after the cause of action accrued herein, and more than thirty days prior to the commencement of their action, plaintiff has duly presented, served and filed a Notice of Claim herein with the Corporation Counsel for the defendant, THE CITY OF NEW YORK for adjustment of damages sustained by the plaintiff herein, upon which this cause of action is based, and that after said defendant for more than thirty days refused to and neglected to make an adjustment or payment on said claim, said claim remains unpaid and unadjusted, although plaintiff has duly demanded that the same be paid and adjusted. 6. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the titled owner of a certain school bus bearing New York State license plate number 12000SH. 7. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the registered owner of a certain school bus bearing New York State license plate number 12000SH. 8. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the lessee of a certain school bus bearing New York State license plate number 12000SH. 9. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK was the lessor of a certain school bus bearing New York State license plate number 12000SH. 0 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 10. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by defendant's servants, agents and/or employees maintained a certain school bus bearing New York State license plate number 12000SH. 11. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by defendant's servants, agents and/or employees controlled a certain school bus bearing New York State license plate number 12000SH. 12. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by defendant's servants, agents and/or employees inspected a certain school bus bearing New York State license plate number 12000SH. 13. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by defendant's servants, agents and/or employees repaired a certain school bus bearing New York State license plate number 12000SH. 14. On or about September 5, 2018, the defendant, THE CITY OF NEW YORK, by defendant's servants, agents and/or employees operated a certain school bus bearing New York State license plate number 12000SH. 15. That at all times hereinafter mentioned, the defendant, THE CITY OF NEW YORK, operated a certain school bus at, near, around or about the intersection of West 125t" Street and Old Broadway, in the County of New York, City and State of New York. 16. On or about September 5, 2018, the plaintiff, HECTOR CONTRERAS was lawfully operating his motor vehicle at, near, around or about the intersection of West 125th Street and Old Broadway, in the County of New York, City and State of New York. 5 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 17. That on or about September 5, 2018, the school bus owned by the defendant THE CITY OF NEW YORK and bearing New York State license plate number 12000SH suddenly and violently came in contact with the vehicle owned and operated by the plaintiff, HECTOR CONTRERAS, at, near, around or about West 125th Street at, near, around or about Old Broadway, in the County of New York, State of New York. 18. Solely as a result of the defendant's negligence, carelessness and recklessness the plaintiff were caused to suffer severe and serious physical injuries and injuries to mind and body, and further, that the plaintiff was subjected to great physical pain and mental anguish. 19. That the defendant was negligent, reckless and careless in: failing to keep the aforementioned motor vehicle under reasonable control given the totality of the circumstances; failing to keep a vigilant lookout ahead and about him; failing to properly apply the motor vehicle's braking and steering mechanisms; operating said motor vehicle at an improper rate of speed under the circumstances then and there prevailing; failing to operate said motor vehicle with reasonable prudence and care; failing to slow down and proceed with caution; operating said motor vehicle in a negligent, reckless and careless manner in violation of the rules of the road in such cases made and provided; failing to obey the posted stop signs and other traffic controls; failing to yield; failing to use caution at an intersection; failing to observe road markings; defendant THE CITY OF NEW YORK failing to instruct the driver in the proper operation, maintenance and control of the motor vehicle; defendant THE CITY OF NEW YORK`s entrustment of said motor vehicle to the FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 driver; failing to warn the plaintiff and other vehicles in and about the area so as to afford the opportunity to avoid the collision; failing to safeguard the plaintiff from said accident; and being otherwise negligent, reckless and careless in the ownership, operation, maintenance, and control of said motor vehicle; and in that defendant, THE CITY OF NEW YORK was otherwise negligent. 20. By reason of the foregoing, HECTOR CONTRERAS was severely injured and damaged, sustained severe nervous shock and mental anguish, great physical pain and emotional upset, some of which injuries are believed to be permanent in nature and duration, and HECTOR CONTRERAS will be permanently caused to suffer pain, inconvenience and other effects of such injuries; HECTOR CONTRERAS incurred and in the future will necessarily incur further hospital and/or medical expenses in an effort to be cured of said injuries; and HECTOR CONTRERAS will be unable to pursue HECTOR CONTRERAS's usual duties with the same degree of efficiency as prior to this accident, all to HECTOR CONTRERAS's great damage. 21. As a result of the foregoing, the plaintiff sustained serious personal injuries as in Section 5102(d) of the Insurance Law of the State of New York, and/or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law of the State of New York. 22. This action falls within one or more of the exceptions set forth in Section 1602 of the Civil Practice Law and Rules. 23. Due to defendants' negligence, plaintiff is entitled to damages in a sum which exceeds the jurisdictional limit of all lower Courts which would otherwise have jurisdiction. 7 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 AS AND FOR A SECOND CAUSE OF ACTION 24. Plaintiff repeat, reiterate and reallege each and every allegation contained in paragraphs " 1 " through "23", all inclusive, with the same force and effect as though fully set forth at length herein. 25. Upon information and belief, that at all times hereinafter mentioned, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, was and still is a municipal corporation organized under and existing by virtue of the laws of the State of New York. 26. That within ninety days after the cause of action accrued herein, and more than thirty days prior to commencement of this action, plaintiff duly presented, served, and filed a notice of intention to sue claim with the comptroller of the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and this action was so commenced within one year and ninety days after the happening of the event upon which the clairn is based. 27. That prior to commencement of this action, plaintiff duly complied with all the conditions precedent to the bringing of this action, and has complied with provisions of the statutes in such cases made and provided, and in particular, within ninety days after the cause of action accrued herein, and more than thirty days prior to the commencement of their action, plaintiff has duly presented, served and filed a Notice of Claim herein with the Corporation Counsel for the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK for adjustment of damages sustained by the plaintiff herein, upon which this cause of action is based, and that after said defendant for more than thirty days refused to and neglected to FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 make an adjustment or payment on said claim, said claim remains unpaid and unadjusted, although plaintiff has duly demanded that the same be paid and adjusted. 28. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK was the titled owner of a certain school bus bearing New York State license plate number 12000SH. 29. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK was the registered owner of a certain school bus bearing New York State license plate number 12000SH. 30. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK was the lessee of a certain school bus bearing New York State license plate number 12000SH. 31. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK was the lessor of a certain school bus bearing New York State license plate number 12000SH. 32. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or employees maintained a certain school bus bearing New York State license plate number 12000SH. 33. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or employees controlled a certain school bus bearing New York State license plate number 12000SH. 0 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 34. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or employees inspected a certain school bus bearing New York State license plate number 12000SH. 35. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or employees repaired a certain school bus bearing New York State license plate number 12000SH. 36. On or about September 5, 2018, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, by defendant's servants, agents and/or employees operated a certain school bus bearing New York State license plate number 12000SH. 37. That at all times hereinafter mentioned, the defendant, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, operated a certain school bus at, near, around or about the intersection of West 125" Street and Old Broadway, in the County of NEW YORK, City and State of New York. 38. On or about September 5, 2018, the plaintiff, HECTOR CONTRERAS was lawfully operating his motor vehicle at, near, around or about the intersection of West 125th Street and Old Broadway, in the County of NEW YORK, City and State of New York. 39. That on or about September 5, 2018, the school bus owned by the defendant THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK and bearing New York State license plate number 12000SH suddenly and violently came in contact with the vehicle owned and operated by the plaintiff, HECTOR CONTRERAS, at, near, 10 FILED: NEW YORK COUNTY CLERK 08/12/2020 03:09 PM INDEX NO. 156731/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/12/2020 around or about West 125th Street at, near, around or about Old Broadway, in the County of New York, State of New York. 40. Solely as a result of the defendant's negligence, carelessness and recklessness the plaintiff were caused to suffer severe and serious physical injuries and injuries to mind and body, and further, that the plaintiff was subjected to great physical pain and mental anguish. 41. That the defendant was negligent, reckless and careless in: failing to keep the aforementioned motor vehicle under reasonable control given the totality of the circumstances; failing to keep a vigilant lookout ahead and about him; failing to properly apply the motor vehicle's braking and steering mechanisms; operating said motor vehicle at an improper rate of speed under the circumstances then and there prevailing; failing to operate said motor vehicle with reasonable prudence and care; failing to slow down and proceed with caution; operating said motor vehicle in a negligent, reckless and careless manner in violation of the rules of the road in such cases made and provided; failing to obey the posted stop signs and other traffic controls; failing to yield; failing to use caution at an intersection; failing to observe road markings; defendant THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW