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YORK Kk 04 Dv INDEX NO. 162629/2015
NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 12/10/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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IN THE MATTER OF THE APPLICATION INDEX #:
OF ANDRES RODRIGUEZ, VII and
DAMARIZ RODRIGUEZ,
Petitioners, PETITION
-against —
METROPOLITAN TRANSPORTATION
AUTHORITY, METROPOLITAN TRANSPORTATION
AUTHORITY CAPITAL CONSTRUCTION
COMPANY, NEW YORK CITY TRANSIT
AUTHORITY, LONG ISLAND RAIL ROAD and
CITY OF NEW YORK,
Respondents.
nae
STATE OF NEW YORK )
SS.
COUNTY OF NEW YORK )
ANDRES RODRIGUEZ, VIL, being duly sworn deposes and says that I am the Petitioner in the
above entitled matter:
1 I currently reside at 91-11 98" Street, 2"! Floor, Woodhaven, NY 11421.
2 [am the Petitioner in the above-captioned matter, I submit this Petition insupport
of the within application which secks an Order permitting my attorneys to serve a Notice of
Claim for personal injuries, pain and suffering, expenses for medical attention and treatment, loss
of income and loss of services, society, companionship and consortium, nunc pro tunc on the
Respondents, METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN
TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK
CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK,
and for such other and further relief this Court deems just and proper.
3 On December 16, 2014 at approximately 11:20 p.m. I was lawfully employed by
Frontier-Kemper Constructors, Inc. At that time and place I was a passenger on a mantrip heading to
my designated work site inside the East Side Access Tunnel from the entrance located at 45" Street
and Madison Avenue, New York, NY. I was standing in the mantrip holding onto a pole.
4 While I standing on the mantrip holding onto the pole, the mantrip came to a complete
stop inside the tunnel at or about 55” Street, when it was struck from behind by a locomotive, causing
my body to be jolted from one side to the other resulting in injury to my left shoulder.
5 At the time immediately after the accident I was in a great deal of pain. 1 reported the
accident to my foreman, Andres Rodriguez, V and an MTA Supervisor. An investigation was
conducted and an accident and injury report was filled out.
6. Annexed as Exhibit “B” is a copy of the investigation and injury report filed by
Frontier-Kemper Constructors, Inc., on 12/17/2014, the day after the accident. The reports were
received, pursuant to a FOIA request, by my attorneys from respondent, METROPOLITAN
TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY. The reports are
also annexed to the proposed Notice of Claim (Exhibit “A”).
7 [have been advised by my attorneys, that subject to the Court’s permission to file a
notice of claim, | have a meritorious claim pursuant to the New York State Labor Law, based upon
the facts as stated more fully in the annexed proposed Notice of Claim, the facts as stated above and
respondents’ failure to provide me with a safe workplace, safe means of transportation and passage
to my work site and in violation of the Labor Law §§ 200, 241(6) and the Industrial Code of the
State of New York, including but not limited to sections §23-1.5(c)(3); §23-1.30; §23-9.1;
§23-9.2 (a)(b)(1)(c)Ch)(i); §23-9.7 (a)(e); §23-9.9 (a-e), et seq. and common law negligence.
8 My attorneys have also advised that pursuant and the facts and circumstances of my
accident as contained within the annexed accident investigation reports received by respondents, it
is respectfully submitted that a prima facie case has been made against respondents.
9 My accident and resulting injuries were caused by the negligence of the respondents
as owners or contractors, in carelessly, recklessly, and willfully and/or otherwise creating, causing
and/or permitting the aforesaid premises and construction site, locomotive, tracks and mantrip to be
and remain in a dangerous, hazardous, unsafe condition thereby resulting in a locomotive striking and
colliding with the rear of the stopped mantrip I was using to be transported to my designated work
area at the work site, causing my body to be jolted from one side to the other, resulting in injury to
my left shoulder, The accident occurred as a result of the respondents failure to provide me with a
safe means of performing work at the aforesaid work site, and in violation of the Labor Law §§ 200,
241(6) and the Industrial Code of the State of New York§23-1.5(c)(3); §23-1.30; §23-9.1;
§23-9.2 (a)(b)(1)(c)(h)D; §23-9.7 (a)(e); §23-9.9 (a-e), et seq. and common law negligence,
10. Limmediately reported the accident to Andres Rodriguez V, a Foreman with Frontier-
Kemper Constructors, Inc., my employer who was the General Contractor on the job.
Il. As indicated in the accident investigation reports provided by respondents,
(Exhibit “B”), the respondents received notice of the essential facts constituting this claim, the day
after the accident had occurred.
12, After the accident I was treated at Jamaica Hospital in the emergency room.
13. On January 5, 2015 I went to see orthopedic surgeon Dr, Joseph A. Bosco. Dr. Bosco
took down the history and recommended that I undergo an MRI of the left shoulder on January 7,
2015. I followed up with Dr. Bosco on January 26, 2015 to go over results of the MRI. The doctor
prescribed physical therapy, pain medications and arthroscopy of the left shoulder, I continued going
to physical therapy up until late March of 2015 when the workers’ compensation carrier stopped my
benefits.
14. From the time of my accident up until the halting of my workers’ compensation
benefits, my sole concern was for my injuries, the treatment I was undergoing and the pain and
discomfort I was experiencing.
15, Up until that time, my medical benefits were being paid andI was unaware that I had
any type of case to pursue.
16. Thave been unable to work per my doctor’s orders since the date of the accident to the
present time.
17. | first consulted with an attorneys’ office regarding a workers’ compensation claim
on April 8, 2015 as a result of my benefits being stopped. At that time, I was also advised that!
could have a potential third-party claim but that the 90 day Notice of Claim deadline for the
METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN
TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK
CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK had
expired and that a motion secking the court’s permission to file a claim would be required in order
to bring a claim against those entities.
18. I was also advised that should I wish to retain the firm, an investigation would first be
conducted in order to determine if there was any proof that the respondents had been notified of my
accident which would form the basis of the motion.
19. I thereafter retained the law firm of Pasternack Tilker Napoli Bern to represent me in
a potential third party negligence claim on April 8, 2015.
20. Pursuant to a FOIA search conducted by my attorneys, see (Exhibit “B”), records
were obtained from respondents confirming that my employer, the general contractor, Frontier-
Kemper, Inc., had placed them on notice of my accident with a detailed accident investigation
report and injury report, the day after my accident.
21. Based upon the information contained in the records provided by respondents, my
attorneys have advised me that a Notice of Claim should be filed with the METROPOLITAN
TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY
CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY,
LONG ISLAND RAIL ROAD and CITY OF NEW YORK.
22. Accordingly this motion is now brought for permission for my attorneys to file and
deem the annexed Notice of Claim (Exhibit “A”) served/filed nunc pro tunc.
23. It is respectfully requested that the within application be granted in all respects.
WHEREFORE, I respectfully request that my application for leave to file a Notice of Claim
against the METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN
TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK
CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK, be
granted in its entirety, together with such other and further relief as the Court deems just and proper.
Dated: New York, New York
December {C}, 2015 SE.
ANDRES RODRIGUEZ, VIL
Sworn to before me this
(O* day of December, 2015.
Ve —=
NOTARY PUBLIC
eee
LUIS MENDIZABAL York
Notary Pubiiic, State of
No, 01ME6322380
me ration
alified in Kings
Commission Expires | ¢ (2717)
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UD) YORK Kk 04 Dv INDEX NO. 162629/2015 NYSCEF BOC. NO. 1 RECEIVED NYSCEF: 12/10/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK weet teen eee ene ene nn nee een, IN THE MATTER OF THE APPLICATION INDEX #: OF ANDRES RODRIGUEZ, VII and DAMARIZ RODRIGUEZ, Petitioners, PETITION -against — METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK, Respondents. nae STATE OF NEW YORK ) SS. COUNTY OF NEW YORK ) ANDRES RODRIGUEZ, VIL, being duly sworn deposes and says that I am the Petitioner in the above entitled matter: 1 I currently reside at 91-11 98" Street, 2"! Floor, Woodhaven, NY 11421. 2 [am the Petitioner in the above-captioned matter, I submit this Petition insupport of the within application which secks an Order permitting my attorneys to serve a Notice of Claim for personal injuries, pain and suffering, expenses for medical attention and treatment, loss of income and loss of services, society, companionship and consortium, nunc pro tunc on the Respondents, METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK, and for such other and further relief this Court deems just and proper. 3 On December 16, 2014 at approximately 11:20 p.m. I was lawfully employed by Frontier-Kemper Constructors, Inc. At that time and place I was a passenger on a mantrip heading to my designated work site inside the East Side Access Tunnel from the entrance located at 45" Street and Madison Avenue, New York, NY. I was standing in the mantrip holding onto a pole. 4 While I standing on the mantrip holding onto the pole, the mantrip came to a complete stop inside the tunnel at or about 55” Street, when it was struck from behind by a locomotive, causing my body to be jolted from one side to the other resulting in injury to my left shoulder. 5 At the time immediately after the accident I was in a great deal of pain. 1 reported the accident to my foreman, Andres Rodriguez, V and an MTA Supervisor. An investigation was conducted and an accident and injury report was filled out. 6. Annexed as Exhibit “B” is a copy of the investigation and injury report filed by Frontier-Kemper Constructors, Inc., on 12/17/2014, the day after the accident. The reports were received, pursuant to a FOIA request, by my attorneys from respondent, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY. The reports are also annexed to the proposed Notice of Claim (Exhibit “A”). 7 [have been advised by my attorneys, that subject to the Court’s permission to file a notice of claim, | have a meritorious claim pursuant to the New York State Labor Law, based upon the facts as stated more fully in the annexed proposed Notice of Claim, the facts as stated above and respondents’ failure to provide me with a safe workplace, safe means of transportation and passage to my work site and in violation of the Labor Law §§ 200, 241(6) and the Industrial Code of the State of New York, including but not limited to sections §23-1.5(c)(3); §23-1.30; §23-9.1; §23-9.2 (a)(b)(1)(c)Ch)(i); §23-9.7 (a)(e); §23-9.9 (a-e), et seq. and common law negligence. 8 My attorneys have also advised that pursuant and the facts and circumstances of my accident as contained within the annexed accident investigation reports received by respondents, it is respectfully submitted that a prima facie case has been made against respondents. 9 My accident and resulting injuries were caused by the negligence of the respondents as owners or contractors, in carelessly, recklessly, and willfully and/or otherwise creating, causing and/or permitting the aforesaid premises and construction site, locomotive, tracks and mantrip to be and remain in a dangerous, hazardous, unsafe condition thereby resulting in a locomotive striking and colliding with the rear of the stopped mantrip I was using to be transported to my designated work area at the work site, causing my body to be jolted from one side to the other, resulting in injury to my left shoulder, The accident occurred as a result of the respondents failure to provide me with a safe means of performing work at the aforesaid work site, and in violation of the Labor Law §§ 200, 241(6) and the Industrial Code of the State of New York§23-1.5(c)(3); §23-1.30; §23-9.1; §23-9.2 (a)(b)(1)(c)(h)D; §23-9.7 (a)(e); §23-9.9 (a-e), et seq. and common law negligence, 10. Limmediately reported the accident to Andres Rodriguez V, a Foreman with Frontier- Kemper Constructors, Inc., my employer who was the General Contractor on the job. Il. As indicated in the accident investigation reports provided by respondents, (Exhibit “B”), the respondents received notice of the essential facts constituting this claim, the day after the accident had occurred. 12, After the accident I was treated at Jamaica Hospital in the emergency room. 13. On January 5, 2015 I went to see orthopedic surgeon Dr, Joseph A. Bosco. Dr. Bosco took down the history and recommended that I undergo an MRI of the left shoulder on January 7, 2015. I followed up with Dr. Bosco on January 26, 2015 to go over results of the MRI. The doctor prescribed physical therapy, pain medications and arthroscopy of the left shoulder, I continued going to physical therapy up until late March of 2015 when the workers’ compensation carrier stopped my benefits. 14. From the time of my accident up until the halting of my workers’ compensation benefits, my sole concern was for my injuries, the treatment I was undergoing and the pain and discomfort I was experiencing. 15, Up until that time, my medical benefits were being paid andI was unaware that I had any type of case to pursue. 16. Thave been unable to work per my doctor’s orders since the date of the accident to the present time. 17. | first consulted with an attorneys’ office regarding a workers’ compensation claim on April 8, 2015 as a result of my benefits being stopped. At that time, I was also advised that! could have a potential third-party claim but that the 90 day Notice of Claim deadline for the METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK had expired and that a motion secking the court’s permission to file a claim would be required in order to bring a claim against those entities. 18. I was also advised that should I wish to retain the firm, an investigation would first be conducted in order to determine if there was any proof that the respondents had been notified of my accident which would form the basis of the motion. 19. I thereafter retained the law firm of Pasternack Tilker Napoli Bern to represent me in a potential third party negligence claim on April 8, 2015. 20. Pursuant to a FOIA search conducted by my attorneys, see (Exhibit “B”), records were obtained from respondents confirming that my employer, the general contractor, Frontier- Kemper, Inc., had placed them on notice of my accident with a detailed accident investigation report and injury report, the day after my accident. 21. Based upon the information contained in the records provided by respondents, my attorneys have advised me that a Notice of Claim should be filed with the METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK. 22. Accordingly this motion is now brought for permission for my attorneys to file and deem the annexed Notice of Claim (Exhibit “A”) served/filed nunc pro tunc. 23. It is respectfully requested that the within application be granted in all respects. WHEREFORE, I respectfully request that my application for leave to file a Notice of Claim against the METROPOLITAN TRANSPORTATION AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY CAPITAL CONSTRUCTION COMPANY, NEW YORK CITY TRANSIT AUTHORITY, LONG ISLAND RAIL ROAD and CITY OF NEW YORK, be granted in its entirety, together with such other and further relief as the Court deems just and proper. Dated: New York, New York December {C}, 2015 SE. ANDRES RODRIGUEZ, VIL Sworn to before me this (O* day of December, 2015. Ve —= NOTARY PUBLIC eee LUIS MENDIZABAL York Notary Pubiiic, State of No, 01ME6322380 me ration alified in Kings Commission Expires | ¢ (2717)