FILED: ERIE COUNTY CLERK 08/16/ :27 AM INDEX NO /2019 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/16/2019

STATE OF NEW YORK

SUPREME COURT

:

COUNTY OF

ERIE

NICOLE LENNERT,

PLAINTIFF'S VERIFIED

Plaintiff, BILL

OF PARTICULARS

-vs-

Index No.: 806186/2019

GREGORY

J.

BALZANO

and

BENJAMIN BALZANO

Defendants.

Plaintiff,

NICOLE LENNERT,

by and through her attorneys,

SHAW & SHAW,

P.C., as and for her Verified Bill of Particulars in response to the

demand

of Defendants,

GREGORY

J.

BALZANO

and

BENJAMIN BALZANO,

^{states upon} information and belief as follows:

1. The incident occurred on November 7, 2017 at approximately 4:00 p.m.

2. The incident occurred on the ramp connecting Transit Road and Sheridan

Drive in Amherst,

New

York.

3. That the defendants were negligent, careless and reckless in the want of due

care and caution in the negligent ownership, permissive use, operation, maintenance,

management

and control of the motor vehicle; in failing to yield the right-of-way to other

vehicles on the highway; in failing to have competent and reasonable control over the

motor vehicle; in operating and driving the motor vehicle at a greater rate of speed than

prudence and caution would permit under the circumstances and conditions then and there

existing to the knowledge of the defendant; in operating the motor vehicle at a greater rate

of speed than

was

prudent and reasonable and sufficiently slow so as to stop the motor

SHAW ^S H AW, ^{P C}

ATTORNEY S AND COUNSELORSAT LAW

vehicle prior to the contact under the circumstañces and conditions then and there

prevailing to the knowledge of the defendant; in making an unsafe left turn into oncoming traffic on the highway; in failing to

make

_timely and careful use and application of brakes,

braking mechanisms, steering devices and other mechanisms of the motor vehicle; in

driving and operating the motor vehicle in an inattentive and unalert manner; in failing to

have said motor vehicle so equipped and in such a state of repair so as to prevent the

contingency which herein occurred; in that the defendant failed to keep his attention before

him and to his sides; in that the defendant failed to keep a proper lookout; in that the

defendant failed to take any precautions for the avoidance of said occurrence and

neglected to avoid colliding with the motor vehicle owned and operated by plaintiff which

was

then and there in plain view on the public highway; in failing to observe the roadway and traffic conditions prior to the occurrence; in failing to observe the weather conditions, road conditions and other hazards then and there existing; in speeding; in disregarding traffic control signals and lights; in failing to observe, and in disregarding, road markings;

in operating a motor vehicle in a negligent, careless and reckless manner; in failing to keep

the motor vehicle under proper control given the traffic conditions, road conditions and

weather conditions at the point and place of the occurrence; in following too closely; in that the defendant operator

was

heedless and inattentive and failed to avoid the occurrence,

although in the exercise of reasonable care and caution, he could have and should have

done so; in causing, permitting and allowing the motor vehicle to

come

into violent contact with the motor vehicle owned and operated by plaintiff; in that the defeñdañt failed to obey traffic signals; and that the defendant failed to keep proper, prudent and adequate control

SHA SHAW, ^PC

ATTORNEYS AND COU NSELORSAT LAW

over the motor vehicle he

was

operating.

4. As a result of the aforesaid occurrence, Plaintiff sustained the following

serious injuries:

A) Significant and substantial injuries to the neck, back, spine and

shoulders;

B) Concentric disc bulges at C3-4 and C5-6;

C) Central subligamentous disc herniation indenting the anterior aspect

of the thecal sac at C4-5;

D) C5-6 disc space narrowing, disc dessication, and concentric disc

bulge;

E) Anterolisthesis at C3-4 and C4-5;

F) Displacement of cervical IVD;

G) Myalgia;

H) Thoracic pain/thorcalgia;

I) Thoraco myofascitis;

J) Necessity of manipulation of cervical and thoracic spine requiring

anesthesia procedure performed on June 29, 2018, June 30, 2018

and July 1, 2018;

K) Cervicalgia;

L) Cervical radiculopathy;

M) Cervical spondylolisthesis;

N) Reversal of the normal cervical lordosis;

SH AW ^SWI AW, ^PC

ATTORNEYS AND UNSELORSAT LAW

O) Anterior subluxation of C3-C4;

P) Anterior subluxation and narrowing of the intervertebral. foramina

bilaterally at C5-C6 with endplate spurring;

Q) facet joint narrowing in the upper cervical spine at C7-T1;

R) Sensory pain fiber radiculopathy in the left

C3

posterior division of the

cervical spine;

S) Segmental and somatic dysfunction of cervical and thoracic regions;

T) Sprain of cervical and thoracic spine ligaments;

U) Post-traumatic headaches;

V) Contracture of muscles;

W)

^{Decreased range of motion} in cervical spine;

X) Rotary curve of lumbar spine;

Y) Retrolisthesis at L5-S1;

Z) Necessity of extensive pain

management

_including medication,

injections, physical therapy and chiropractic manipulation;

AA) Permanent pain, limitation and restriction of motion, weakness,

function and use of the injured areas;

BB) Injury including sprain and strain of the injured areas, with tenderness

and limitation of motion, together with involvement of the muscles,

bones, nerves, tendons, blood vessels, soft parts of these areas;

CC) Altered biomechanics of the injured areas;

DD) Adaptive changes in the injured area;

S H AW ^S H AW, ^{P C}

ATTORNEYN AND COLTNNFI ORS AT LAW

EE) Future, progressive, degenerative, erosive and arthritic changes;

FF) Injury to the nerves, blood vessels, ligaments and surrounding soft

tissues of the injured areas;

GG)

^{Loss of} body functions;

HH) Sleep disturbances;

II) Emotional reaction to the injuries;

JJ) Loss of enjoyment and quality of life;

KK) Aggravation, activation or precipitation of previously asymptomatic

and/or symptomatic degenerative disc disease of the spine.

The practicality and true benefits of surgery to one or more of the injured

areas

may

^{be considered in the future} and, upon information and belief, Plaintiff

may

require surgery to one or more of the injured areas.

Upon information and belief, Plaintiff's injuries are permanent, and

Plaintiff

now

has a permanent disability and is subject to future evaluation and treatment.

The foregoing injuries directly affected the skin, bones, tendons, ligaments,

nerves, and blood vessels, relating to injuries set forth herein, as well as the cartilage of

the injured sites with sympathetic radiating pains, organic functional disturbances and soft

tissue

damage

with resultant lesions, adhesions, arthritis/arthrosis, and scarriñÿ that

caused further pain. The above includes, but is not limited to, the sequelae of said injuries

and the resultant medical developments and complications.

SHAW SHAW, PC

ATTORNEYS AND COUNS£LORS AT LAW

Plaintiff caññot, at this time, state fully and totally all of the injuries sustained

by this Plaintiff inasmuch as Plaintiff is at present the recipient of ongoing medical and/or rehabilitative care and treatment, resulting in the practical impossibility of obtaining the

entire record. In order to negate need!ess duplication, Plaintiff incorporates, by reference,

all of the hospital and medical records for which authorizations have been, or will be,

furnished in conjunction with the medical exchange rules and/or indepeñdeñt physicians'

reports heretofore furnished and/or to be furnished.

Plaintiff claims all complications that

may

^{arise from treatment and} any future

treatment, including but not limited to, drug interactions, complication of anesthesia, and

all surgical procedures that

may

^{be applied and other} complications of any medical

procedures.

As

a result of the injuries, Plaintiff has suffered an inability or diminished

ability to function in normal day to day life. Plaintiff suffers an extreme susceptibility to

re-injury or further and future injury to her body as a result of being weakened by her

injuries. In addition, Plaintiff suffered severe and extreme mental and emotional conscious pain and suffering, stress, and anxiety from the incident with consequential psychological

overlay that would naturally result from such injuries.

Plaintiff claims all future injuries that will result from the loss of strength and

ability to

move

her extremities, any subsequent loss of circulation and/or atrophy,

consequential feeling of coldness or loss of temperature in parts of the body, and the

inability to use or

move

parts of the body.

SHAW SHAW, ^{P C}

ATTORNEYS AND COUNSÂ ORS AT LAW

Upon information and belief, all of the aforesaid injuries are permanent and

lasting.

The

aforesaid have, and will continue in the future, to affect every facet of the

Plaintiff's pre-accident status with resultant damages. In addition, Plaintiff will be unable to be gainfully employed and/or to obtain any or all of the goals and objectives of a fulfilling life and/or enjoyment of life.

5.

See

response to

Number

4.

6. Upon information and belief, Plaintiff sustained the following serious injuries:

• Fracture;

• Permanent loss of use of a body organ, member, function or system;

• Permanent consequential limitation of a body organ or member;

• Significant limitation of the use of a body function or system;

• medically-determined injury or impairment of a non-permanent nature

which prevented and prevents the injured Plaintiff from performing

substantially all of her material acts which constituted her usual and

customary daily activities for more than 90 days during 180 days

following the occurrence.

7. From the date of the accident and continuing , the Plaintiff, at times,

depending upon her day-to-day physical condition and activity level, has been confined to

bed as well as the house.

8. At the time of the accident, the Plaintiff

was

employed by National Fuel as

a Customer Service Representative. Plaintiff earned approximately $943.20 per week.

SHAN SMAW, ^{P C}

ATTORNEY S AN D CO UNS Ì^ORSAT LAW

9. Plaintiff's employer

was

National Fuel, 6363 Main Street, Buffalo,

New

York

14221.

10. Plaintiff has been incapacitated from employment to

some

degree from the

date of the accident and continuing to date depending upon her day-to-day physical

activities and condition.

11. Plaintiff is unable to respond to this

demand

at this time given the fact that

the claim for lost earñiñgs is continuing in nature and Plaintiff has not yet reached

maximum

medical improvement. Plaintiff reserves the right to supplement

same

upon

completion of discovery.

12. Plaintiff's date of birth i Her place of birth is Buffalo,

New

York.

The last four digits of her social security number are Plaintiff's address

was

and is

12148 Nice Road, Akron,

New

York 14001.

13. Plaintiff is unable to respond to this

demand

at this time but reserves the

right to supplement

same

upon completion of discovery herein.

14.

Upon

information and belief, and without limitation, the Defeñdañts violated

the following sections of the Vehicle and Traffic Law, hereiñafter referred to as the VTL:

VTL

_{§1180(a), 1180(e),} 1129. In additioñ, the Plaintiff will rely upon the proof adduced

during the course of discovery, and at the trial of this action, and upon the charge of this

Court, and will rely upon each and every statute and ordinance which such demonstrates

was

violated by the Defendants.

15. Not applicable.

16. The

damage

to Plaintiff's vehicle totaled $1,771.84.

SH AW ^S H AW, ^{P C}

ATTORNEYS AND COUNSELORSAT LAW

17. The Plaintiff

was

_driving a 2015 Nissan Altima. The reascñable market value

is unknown at this point in time.

DATED: July 18, 2019

Hamburg,

New

York

SHAW

&pFf , .

Leo? ard D. Zacca b

Attorneys for PI-intiff

Office and Post Office Address 4819 South Park Avenue

Hamburg,

New

York 14075

(716) 648-3020 Telephone (716) 648-3730 Fax lzaccagnino@shawlawpc.com

TO: Martyn and Martyn

Attorneys for Defendants

Office and Post Office Address 330 Old Country Road, Suite 211 Mineola,

New

York 11501

(516) 739-000 Telephone

SHAW S14AW, PC

ATTORNEYS AND COUNSELORS AT LAW

STATE

OF NEW YORK

₎ )ss.:

COUNTY OF

ERIE )

Nicole Lennert, being duly sworn, deposes and says that she is the Plaintiff in the

within action; that she has read the foregoing Bill of Particulars and knows the contents thereof;

that the same is true to her own knowledge, except as to the matters therein stated to be alleged

upon information and belief, and that as to those matters, depci e tSlieves it to ue.

c

M ^{d MIl}

Niedlelennert

Sworn to before

me

this

25

day of . 2019

otary Public

SHAWNM WEBER Notary Public - State of New York

NO.01WE6326753 Qualified in Erie County My Commission Expires Jun 22, 2023

SHAW SHAW, ^PC

ATTORNEYS AND COT'NSELORSAT 1AW