Preview
FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------x ARTEMIO DE LA CRUZ, Index No. 503204/17 Plaintiff, THIRD-PARTY BILL OF PARTICULARS -against- V & C REALTY II CORP, KITA MANAGEMENT INC. and VCL CONSTRUCTION, INC., Defendants. -------------------------------------x V & C REALTY II CORP., Third-Party Plaintiff, -against- WSC GROUP LLC and WS CONSTRUCTION, INC., Third-Party Defendants. -------------------------------------x Defendant/third-party plaintiff, V & C REALTY II CORP., by its attorneys, O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLP, as and for its Third-Party Bill of Particulars responsive to the January 3, 2018 demand of third-party defendants, WSC GROUP LLC individually and d/b/a WS CONSTRUCTION, INC., sets forth as follows, upon information and belief: A copy of plaintiff's Bill of Particulars is annexed hereto as Exhibit "A" made part hereof for your and a convenience. 1 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 1. The acts or omissions that constituted negligence on the part of the third-party defendants, WSC GROUP LLC and WS CONSTRUCTION, INC. are as follows: Third-Party defendant, but its agents, servants and/or employees were careless, reckless and negligent in the ownership, operation, management, maintenance, supervision and control of the construction, renovation, demolition, painting and/or repair work being performed at the aforesaid premises; in causing the accident and the injuries to the plaintiff; in negligently and carelessly causing, permitting, suffering and allowing construction tools, equipment and construction materials, construction debris, concrete, masonry, rocks and dirt to be, become and remain inadequately and improperly hoisted, secured, loose, wobbly, and likely to fall; in causing, permitting and allowing said premises under construction to be, become and remain in a dangerous, defective, improper and unlawful condition; in causing, permitting and allowing plaintiff to be struck by failing objects; in failing to secure or brace, or adequately secure or brace, said objects; in using inadequate equipment to raise and lower construction tools, equipment and construction materials and debris; in failing to adequately secure construction tools, equipment and materials, construction debris, concrete, masonry, rocks and dirt which fell on . plaintiff; in failing to provide plaintiff with adequate, proper overhead protection; in causing, permitting and allowing 2 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 plaintiff to work in an area where he was not furnished with proper overhead protection; in causing, permitting and allowing objects to fall from a height and strike the plaintiff; in allowing construction tolls, equipment, materials, construction debris, concrete, masonry, rocks and dirt to fall onto plaintiff; in hiring and employing agents, servants and/or employees who are incompetent and unskillful and whose incompetence and unskillfulness was known to the defendant; in failing to adequately and properly supervise and inspect the work then and there being performed; in failing to provide plaintiff with any or adequate hard hat, head protection or other protection sufficient to prevent the injury alleged herein; in failing to hoist construction materials, construction debris, concrete, masonry, rocks and dirt in compliance with Rule 23 NYCRR; in allowing and permitting dirt and debris, concrete, stones and rocks to fall and strike plaintiff; in failing to hoist materials in a safe and proper manner; in failing to provide fencing or barricades around the area where the accident occurred; in failing to provide overhead planking which complied with 23-1.(a)(1) or NYCRR; in failing to provide plaintiff with a safe workplace; in failing to provide plaintiff with proper protection and warning; in failing to ensure that the premises, construction site and/or work site was operated in accordance with adequate and/or proper engineering safety standards prevailing and other similar construction/work sites 3 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 and premises; in failing to consult with a competent construction contractor and/or engineer regarding the aforesaid conditions/ in failing to warn laborers/workmen, those mentioned above, and more particularly the plaintiff herein, , that said premises and parts thereof as described above were in a dangerous and defective condition; in failing to post warning signs of said condition. In negligently allowing the plaintiff to work in an unshored, unprotected are; in allowing the excavator operator, and employee of third-party defendant, to break off parts of the sidewalk; in failing to supervise the excavator operator; in exposing plaintiff to elevation-related risk by falling debris that was not properly shored to provide protection; in violating Labor Law Section 240 to protect plaintiff from fall debris. 2. Although notice is not predicate to a finding of liability pursuant to the Labor Law, both actual and constructive notice are claimed. Third-party plaintiff does not defendants' possess the names of the agents, and/or servants who had actual notice of said dangerous conditions and who were upon the work site on or and prior to the accident therein. The defendants, however, through their agents, servants and/or employees actually knew and/or directed the creation of the dangerous and defective conditions that caused the accident herein. Third-party plaintiff does not possess information as to the dates of said actual notice. Constructive notice is 4 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 claimed herein in that the said dangerous and defective conditions existed for such an inordinate length of time that the defendants, their agents, servants and/or employees in the exercise of ordinary and reasonable care knew or should have become aware of the e3xistence of said dangerous and defective conditions. 3. Labor Law Sections 240 and 241(6). "1" 4. See paragraph above. 5. Third-party plaintiff is entitled to contractual indemnity pursuant to the contract between third-party plaintiff and third-party defendant as well as common law indemnity and partial contractual indemnity and contribution. 6. Yes. 7. No. 8. Yes, contract marked as exhibit at deposition of Anthony Ciaccio and previously exchanged. 9. Debris fell from a height as a result of WS CONSTRUCTION, INC. using an excavator and plaintiff, a WS CONSTRUCTION, INC. employee was working below in an area that was not properly shored (see paragraph 1, above). 10. It is alleged accident occurred as stated by plaintiff in the Complaint and at his deposition. 11, Labor Law Sections a) 240, 241(6); b) 240, 241(6) 5 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 Third-party plaintiff claims third-party defendant was responsible for accident, based on violations of all statutes referenced by plaintiff in the Complaint and Bill of Particulars. 12. a) written contract; "B" b) annexed hereto as Exhibit is a copy of the contract between V&C REALTY II CORP. and WSC GROUP LLC and WS CONSTRUCTION, INC. 13. This demand is more properly directed to plaintiff. Dated: Melville, New York March 4, 2019 Yours, etc. Bf: Eugen O. Mo enu O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLP Attorneys for Defendant, V & C REALTY II CORP. Huntington Quadrangle - Suite 1C10 One Melville, NY 11747 (631) 777-2330 TO: PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP Attorneys for Third-Party Defendants WSC GROUP LLC, individually and d/b/a WS CONSTRUCTION, INC. 60 Broad Street, Suite 3600A New York, New York 10004 212-406-9710 File No.: 302029 GORAYEB & ASSOCIATES, P.C. Attorneys for Plaintiff William Street - Suite 1900 100 New York, NY 10038 6 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 (212) 267-9222/9738 FLEISCHNER POTASH CARDALI CHERNOW COOGLER GREISMAN STARK STEWART, LLP Attorneys for Defendant, VCL CONSTRUCTION, INC. Street - 5C 14 Wall Suite New York, NY 10005 (646) 520-4200 7 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 k "A" Exhibit 8 of 77 FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS . ....-..-.-..--.-.....---..--..,--- ---..--- X. . ARTEMlO DE LA CRUZ, Plaintiff, OF PARTICULARS . -against- Index No :. 503 04/17 . V & C REALTY II CORP., KlTA MANAGEMENT . INC. AND VCL CONSTRUCTION lNC. . .. . Defendants, .,...-...-...---,.,---,..-;.,-.... ------..............--... -....,-----··-.X . . - V & C REALTY II CORP., . .Third-Party PlaIntiff, . WSC GROUP LLC AND WS CONSTRUCT ON INC., . Defendant. Third-Party .._....---..-.-----..-.-----..-.-..--.,--,--X TO: VCL CONSTRUCTfON INC. Plaintiff, ARTEMIO DE LA CRUZ by his attorney, GORAYEB & ASSOCIATES, P.C., as and for his Bill of Particulars in response to the dentabd of defendant, VCL CONSTRUCTION INC., alleges as follows: 1. Plaintiff is 28 years old. Plaintifi's date of birth is A demand for a social security number is an impicper demand and is declined. See General Business Law §§399 - dd and 399 - BIpeau v, ddd;. C.antiaclue Figure Skating Club, Inc., 294 A.D.2d 525, 742 N.Y.S 2d 864 t=won«= (2d Dept. 2002), GOl¾YEB&ASSOCIATES, P.C. 100WILLIAM STREET NEWYORK,NEWYORK100SB 2. The accident occurred on January 27, 2017. 9 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 3C The accident occurred at approx mately 2:00 p.m. The accÍdent occurred at 49··18 Vemon Blvd, Queens, NY 5. Refer to p.aragraph 9 · . 6.. Plaintiff was struck by inadequately secured constructiòn de bris, . masonry, concrete, dirt and excavated material whie in:the course of his . . . employment. . . . . . . . 7 Although notice not predicate to a findlrig of pursuant t the is liabilip Labor Law, both actualénd constructive notics are ciâ!msd. 8. . Plaintiff does not possess the names of the deferidants agents n or . ervants who had actual notice of said dangerous conditioris and whc were upon the work site on or and prior to the accident tierein. .The defendants, however, through their agents; .servants and/or smplpyees actually knew and/or directedthe creation éf the darigereas and de(ebtive . conditiong that caused the accident herelrt. Plaintiff does not pds ess . irrformation as to the dates of said actual notice. Constructi.ve n tibe is . cIalmed herein in that the said dangerous and defective corklltions existed for such an iñordinate length of time that the defendanta, their agents, servants and/or employees in the exercise of ordinary and reasonable care knew or should have become aware of the existence of said dangerous and defective conditions. 9. Defendant, by its agents, servants and/or employees was c eless, mom- reckless and negligent in its ownership, operation mana ement, GDBAYEB P.C. &A8800IATE,S, STREET Nd WILLIAM NEWYORK,NEWYDRK10038 fÛ8intenanC0, Supervision and control of the construction, rer opation, 10 of 77FILED: KINGS COUNTY CLERK 03/05/2019 02:51 PM INDEX NO. 503204/2017NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 03/05/2019 demolition, painting and/or repair work being performed at the afor s id premises; in causing the accident and the injuries to the plaintiff; in . . negligeritly and asirelessly causing permittirig, suffering, ands allowing construction tools, equipment and constrgction materials, construction debris, concrete, masonry, rocks and dirt to be, become and r main nadequately and improperly hoisted, secured;Ioose, wobt I and lik I o . . fall; in causing, perfnitting and allowing.said premises under c6nstruel o to be, become and remain in a dangerous, defective improper aral unfa ful condition; in causing, permitting and allowing plaintiff to be strudk by felling in- to secure or or secure or brace aid oujects; failing brace, adequately objects; in using Inadequate equipment to raise and tower construction tools, equipment and construction materials and debris; in fallin to adequately secure construction tools, equipment and math†lais, . . . .. corístruction debris, concrete masonry, rocks and dirt which fell on p alrniff; in failing to provide p.Iaintiff with adequate, proper overhead protecti In causing, permitting and allowing plaintiff to work in an area where e was not furnished with proper overhead protection; in causing, permitting and allowing objects to fail from a height and strike the plaintiff; in allowing construction tools, equipment, materials, construction debris, concrete,
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The Court orders Exhibits H, I, J, K, L, and M to the Declaration of Michael Killingsworth submitted in support of Plaintiffs motion for summary judgment or summary adjudication sealed. Discussion Pursuant to California Rules of Court Rule 2.550 the court may seal a record only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550(d).) In Hinshaw v. Superior Court (1996) 51 Cal.App.4th 233, 242, the court stated that private, non-governmental parties have a privacy interest in maintaining confidentiality of settlement agreements that contain personal financial information. The sealing of court documents is not permitted solely based on the agreement of the parties "without a specific showing of serious injury." (Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 106.) Regarding the serious injury, "[b]road allegations of harm, bereft of specific examples or articulated reasoning, are insufficient." (Huffy, supra, 112 Cal.App.4th at p. 106) (quoting In re Cendant Corp. (3d Cir. 2001) 260 F.3d 183, 194.) Here, Plaintiff moves to seal exhibits H, I, J, K, L, and M to the Declaration of Michael Killingsworth which he submitted in support of his motion for summary judgment or summary adjudication. These documents include: Exhibit 1: Copies of the subpoenas at issue. Exhibit H: Defendants testing results from May 13, 2022. Exhibit I: Defendants Communications to Plaintiff threatening to contact Plaintiffs workplace. Exhibit J: Medical testing results of one of Defendants other sexual partners. Exhibit K: Communications between Defendant and her doctor. Exhibit L: Communications between Defendant and Plaintiff. Exhibit M: Defendants medical records from May 25, 2022. Plaintiff argues that the documents include information marked for protection under the protective order in this action. Plaintiff seeks to seal these documents to protect Defendants rights under the protective order and to protect Plaintiffs true name and identifying characteristics. The records include medical records, sensitive communications and images, and Plaintiffs true name. It is reasonable to infer that these documents are confidential or highly confidential as defined in the protective order because the content of the documents could harm the parties reputations if they are made public. The Court finds that an overriding interest exists which overcomes the publics right to access these materials and supports sealing the records. Both parties in this action will be prejudiced if the records are not sealed. Finally, the sealing is narrowly tailored and there are no less restrictive means of achieving the overriding interest. Therefore, the motions to seal are granted. Conclusion Plaintiffs motion to seal the documents submitted in support of his motion for summary judgment or summary adjudication is GRANTED. The Court orders Exhibits H, I, J, K, L, and M to the Declaration of Michael Killingsworth submitted in support of Plaintiffs motion for summary judgment or summary adjudication sealed.
Ruling
KRYSTAL RENEE CASTRO, ET AL. VS THOMAZ PHILLIP COUSSEAU, ET AL.
Aug 27, 2024 |Renee C. Reyna |21STCV31342
Case Number: 21STCV31342 Hearing Date: August 27, 2024 Dept: 29 Castro v. Cousseau 21STCV31342 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Albert Abkarian & Associates. Background On August 24, 2021, Krystal Renee Castro, Victor Andres Avila, Brisstelle Avila, and Viktor Amias Avila filed a complaint against Thomaz Phillip Cousseau, Nissan North America Inc., and Rebecca Diane Mullin (collectively Defendants) for negligence cause of action arising out of an automobile collision on July 18, 2020. On October 26, 2021, Defendants filed an answer. In June 2023, the Court granted the petition for approval of minors compromises in this case. An OSC re proof of deposit was set and continued several times; in the interim, it appears that counsel has been unable to communicate with the client (guardian ad litem). On June 20, 2024, Albert Abkarian & Associates (Counsel) filed a motion to be relieved as counsel for Plaintiff Krystal Renee Castro (Plaintiff). No opposition has been filed. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel. However, Counsel fails to include all future hearings, including the OSC re Proof of Deposit set for September 25, 2024, on both the Declaration and Order. Moreover, the Court has the following additional concerns: (1) a guardian ad litem cannot represent a minor without counsel, and granting the motion could leave the case in an uncertain state; and (2) it is unclear to the Court whether the settlement funds have been paid and, if so, whether they have been deposited into a blocked account as ordered. Accordingly, the motion is DENIED without prejudice. Conclusion The motion to be relieved as counsel is DENIED without prejudice. Moving counsel to give notice.
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