NEW YORK STATE SUPREME COURT
COUNTY OF QUEENS
__________________________________________
MATHEW SKELTON
Index Number 719489/2020
Plaintiff
REPLY TO DEMAND FOR
VERIFIED BILL OF PARTICULARS
vs.
DDT WILIAMSBURG CORP
BIA RESTAURANT
HOAN DUKE QUAN, DAVID CHUNG
AND JOHANNI MARTINEZ
Defendant
__________________________________________
SIRS:
Plaintiff MATHEW SKELTON, by his attorney Trujillo Firms P.C. , as and for theor
verified Bill of Particulars responsive to the deamdsof defendants BIA RESTAURANT, HOAN
DUKE QUAN, DAVID CHUNG respectfully set forth and allege the following, upon
information and belief:
1. The Occurance took place on September 11, 2019. The occurance took place at the
premesis loacted at 23-10 Jackson Ave, Long island City, NY 11101. The premesis is the place
of business known as BIA Restaurnt of Long Island City, while the Plaintiff was lawfully within
said premesis.
2-3. That Plaintiff MATHEW SKELTON sustained Level 1 trauma activation for stab
wounds and lacerations to the abdominal wall, left hand and right upper arm. The following
serious, severe, and permanent injuries form said occurance.
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NAME AND ADDRESS OF PROVIDER
New York Presbyterian
PO BOX 9305 GPO
NEW YORK, NY 10087-9304
DATES OF SERVICE
CHARGES
9/11/2019 – 9/16/2019
$104,817.20
A. CHEST AND ABDOMIN
•
Laceration without foreign body of abdominal wall, right lower quadrant with
penetration into peritoneal cavity, initial encounter
•
Findings suggestive of postoperative ileus.
•
Stable appearance of multiple dilated loops of small bowel
1. X-Ray Abdomen - Supine View of the Abdomen:
That on September 11, 2019, Plaintiff underwent an X-Ray of Abdomen under
the care of David L. Billing M.D. at New York Presbyterian – Cornell Hospital
“No abnormal gaseous distention of the small bowel is identified. Air and stool are
scattered throughout the non-dilated colon to the level of the rectum. There is no
evidence of intraperitoneal air, noting limitations of the supine technique. The
osseous structures are unremarkable.”
2. X-Ray Abdomen - AP Supine Radiographs of the Abdomen
That on September 13, 2019, Plaintiff underwent an X-Ray of Abdomen under
the care of Ahmed A. Abouarab M.D. at New York Presbyterian – Cornell Hospital
“Horizontal skin staples project over the lower abdomen and pelvis. Mildly dilated
air-filled loops of small bowls are noted throughout the abdomen and pelvis, there is
air within the nondialated colon and rectum. Limited evaluation for
pnuempperitoneum given lack of upright views. Possible small bilateral effusions.
Osseous structures are intact. Findings suggestive of postoperative ileus.”
3. AP Portable view of the Chest:
That on September 11, 2019, Plaintiff underwent an X-Ray of Chest under the
care of Alexander W Peters. at New York Presbyterian – Cornell Hospital
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“Endotracheal tube is placed with distal tip in satisfactory position in the mid
trachea. The Lungs are clear. The cardiac silhouette appears within normal limits.
There is no pleural effusion or pneumothorax. A right vascular sheath is present.”
4. X-Ray Abdomen - Supine View of the Abdomen:
That on September 14, 2019, Plaintiff underwent an X-Ray of Abdomen under
the care of Mollie Calzone M.D. at New York Presbyterian – Cornell Hospital
“Skin staples overlie the lower abdomen and pelvis. Multiple air dissented loops of
small bowel are again noted. Air is also present within the nondialated colon and
rectum. Evaluation of free air is limited on supine radiography. Left basilar
atelectasis. Stable appearance of multiple dilated loops of small bowel, likely
postoperative ileus.”
B. RIGHT FORARM
•
Laceration without foreign body of right forearm, initial encounter
5. X-Ray of the Elbow – AP, lateral, and oblique views of the Right Elbow:
That on September 11, 2019, Plaintiff underwent an a X-Ray of Right Elbow under the
care of David L. Billing M.D. at New York Presbyterian – Cornell Hospital
“The study is markedly limited due to patient positioning. Diffuse soft tissue
swelling noted. Repeat study advised if concern for fracture.’
6. CT of the Elbow Portable – Obtained without intravenous contrast:
That on September 11, 2019, Plaintiff underwent an a X-Ray of Right Elbow under the
care of Theresa Geraci PA. at New York Presbyterian – Cornell Hospital
“An IV catheter is present in the antecubital fossa. A few foci of air within the
ventral right forearm soft tissues is consistent with history of stab wound and
surgical exploration. No significant soft tissue hematoma or fluid collection is
present. No air is present within the elbow joint to suggest traumatic arthrotomy.
No acute fracture or dislocation is present.’
C. LEFT HAND
•
Laceration without foreign body of left hand, initial encounter
7. X-Ray of the Left Hand:
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That on September 11, 2019, Plaintiff underwent an X-ray of Left Hand under the care
of David L. Billing M.D. at New York Presbyterian – Cornell Hospital
“Pulse oximeter overlies the 4th distal phalanx. Intravenous catheter tubing noted
over the dorsum of the hand. There is no evidence for acute fracture or dislocation.
No radiopaque foreign body.’
D.
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ADMIT DAY SURGERY
•
Stab wounds to the abdomen, right forearm and left hand
•
Diagnostic laparotomy converted to exploratory laparotomy.
•
Repair of mesenteric laceration
•
Exploration of RUE wound
•
Suture ligation of superficial vein
•
Complex laceration closure
•
Transfusion - Packed red blood cells
•
Level 1 trauma activation
•
Exploratory Laparotomy
•
Right forearm wound exploration
•
Wound closure
•
Stitches
•
Staples
•
Estimated blood loss 25 cc
Surgery of Mathew Skeleton:
That on September 11, 2019, Plaintiff underwent surgery under the care of Surgeon Jian
Shou MD at New York Presbyterian – Cornell Hospital
“Patient was taken to taken emergently to the OR for diagnostic laparoscopy and
possible exploration.”
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“ I have reviewed the above documentation, along with labs and relevant studies,
and concur with the findings assessments and plans with the following comments.
Level one trauma activation, o arrived within 15 minutes. Seen with patient with
trauma team residents. Agree with above notes. The patient is critical. The patient
has a stab wound to the lower abdomen with hypotension. Also he has bleeding
wound at proximal right forearm. The bleeding was controlled with pressure
dressing, transfused pRBC in ED for hypotension. The patient is intoxicated but
alert and following orders, Chest clear. Abdomen soft and about 3 cm long deep
open wound at below the umbilicus midline. XR and abdominal x-ray negative of
FB. Transferred to patient to OR for exploration but has no capacity. Proceed the
operation without written consent. 35 minutes critical care provided by me.”
E. BODILY INJURY
F.
•
Severe Pain in Right Forearm
•
Severe Pain in Left Hand
•
Severe Pain in Stomach
•
Soreness in Left Hand
•
Soreness in Right Forearm
•
Swelling in Left Hand
•
Swelling in Right Forearm
•
Discomfort in Left Hand
•
Discomfort in Right Forearm
•
Discomfort in Stomach
•
Decrease in Range of Motion of Right Forearm
•
Decrease in Range of Motion of Left Hand
•
Decreased Physical strength Right Forearm
•
Decreased Physical strength of Left Hand
•
Decreased Tolerance to Walking
•
Stomach Pain when Running
•
Stomach Pain when Reaching Up
•
Stomach Pain when Bending Down
EMOTIONAL AND MENTAL DISTRESS
•
Difficulty Sleeping
5
•
Nightmares
•
Depression
•
Weight Loss
Plaintiff MATHEW SKELTON experienced difficulty in ambulation for two (2) months,
and now cannot run, pick up heavy items or stand for more than three (3) hours. He also
cannot run for long distance, and cannot exert himself or exercise, and has experiences
posttraumatic disorder when in large crowds, and nightmares.
That the above injuries to the abdomen, left and right forearm was accomplished by a
knife, and productive of pain and radiating pain; pulling sensation, tingling; tenderness;
rigidity; stiffness; swelling; inflammation, decrease in range of motion; weakness
denervation; paresthesia; synovitis, scaring, tightness, malfunction, restriction and limitation
of all movement, motion and bending; pain on change of weather; soreness; muscle spasms
induration; mal coordination; effusions, ecchymosis; edema; loss of strength; fatigue;
thickening; contracture; softening; fragmentation; myositis; atrophy; sensitivity; shrinking;
anesthesia, nerve damage, separation, calcification, osteoporosis; tearing; neuropathy;
adhesions; difficulty sleeping; narrowing; instability; restricted and painful active and
passive movements; movements with great difficulty; overstretching of ligaments and
muscles; irritation of nerves; sever pain to left had and right forearm; midlateral soft tissue
swelling; pain in abdominal, left hand and right forearm; right elbow tenderness; increase
stomach pain upon walking, and squatting maneuvers, mild tenderness, pain with flexion
and abduction, mild tenderness to on the right forearm, pain with right forearm flexion and
abduction, restricted range of motion, deformity and disability of the abdominal region.
4. All of the foregoing injuries involved damage to the nerves tendon, ligaments, cartilage,
blood vessels and soft tissue.
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5. Plaintiff has been advised that the aforementioned conditions are of a chronic and
protracted nature and will have permanent, residual effects and will manifest permanent sequelae
and plaintiff expressly claims and all sequelae and/or residuals, which may manifest themselves
prior to the time of trail;
6. The aforementioned injuries, if not caused by this occurrence, were aggravated,
activated, precipitated and or exacerbated by same.
7. Plaintiff further claims and an all damage or injury to the surrounding tissues, ligaments,
cartilage, muscles and supporting structures at the site of the injures;
8. Plaintiff requires comprehensive physical therapy and occupation therapy; the use of
home exercises, the use of medications and over the counter analgesics;
9. Upon information and belief the plaintiff will require future surgery.
10. Upon information and belief, the forgoing injures are permanent.
11. Plaintiff MATHEW SKELTON, was confined to the following hospital:
New York Presbyterian and Cornell Hospital
525 East 68th Street
New York, NY 10065
ADMISSION: September 11, 2019
DISCAHRGE: September 16, 2019
12. For further detail, please refer to Plaintiffs response to defendants combined discovery
demands. Plaintiff objects to any further demands seeking information as to the names and
address of treating hospitals or other medical facilities and dates of treatments as improper and
seeking information outside the scope of a bill of particulars. See New York Civil Law and Rules
Sec. 30439(a). Under the current state of our laws, a plaintiff in a personal injury action is not
required to furnish in connection with defendants demand for a bill of particulars, the names of
witness, hospitals or physicians, see Adair v, Young, 205 N.Y.S.2d 463 (1959) and Hanlon v
Geary, 190 N.Y.S. 2d 20 (1959).
13. Further, It is impossible to state with reasonble certainty and exact division of time
which plaintiff MTHEW SKELTON was disabled/partially disabled. Upon information and
belief, plaintiff was partially disabled.
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14. Moreover, it is impossible to state with reasonble certainty and exact division of time
which plaintiff MATHEW SKELTON was confined to bed, home, and hospital. Upon
information and belief, plaintiff was partially and intermittently confined to bed.
15. At the time of the occurrence, the Plaintiff MATHEW SKELTON was employed by the
Defendants, and was assaulted by a fellow employee, worker, agent, and servant of BIA
Restaurant, Defendant JOHANNI MARTINEZ.
16. As a direct result of the occurrence Plaintiff MATHEW SKELTON lost income and
wages, and still remains unable to work in the exact same manner.
17. Plaintiff MATHEW SKELTON claims the following special damages, to date and
continuing, approximately and estimated.
A.
B.
C.
D.
E.
Physician Services……………………………………………....………………..$
Medications, Supplies and X-Rays…………………..……………….…………..$
Nurse, Therapist and Chiropractic services ……………………………………...$
Hospital Expenses………………………………………………………………..$
(Additional medical expenses will be incurred and claimed in the future.)
18. At the time of the occurrence and for at least seven (7) year’s prior, Plaintiff resided
at 43-06 47th St. #G42, Sunnyside, NY 11104. Plaintiff MATHEW SKELTON was born on
March 30, 1970. Plaintiff object to provided social security number. This information is
irrelevant to the issues in this case. Further plaintiff is prevented from disclosing this information
pursuant to General Business law 399-dd and Public Officers Law 96-a, which prohibit the
disclosure of any document bearing personal social security numbers on a document that may
become subject to review the general public.
19. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant, willfully and intentionally, with callous and reckless indifference to the
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Plaintiff’s right to safe working conditions. Plaintiff endured and continues to endure the
physical, mental, emotional and psychological injury, pain and suffering inflicted by the assault
and battery – scars he must bear for life
20. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant, negligently and carelessly fostered a dangerous environment and
occurrence, which resulted in serious physical injury to plaintiff MATHEW SKELTON. Plaintiff
endured and continues to endure the physical, mental, emotional and psychological injury, pain
and suffering inflicted by the assault and battery – scars he must bear for life
21. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant had a duty to provide safe working conditions for its employees under
common law, OSHA and NY Labor laws. Saud breach of duty resulted in serious physical injury
to plaintiff MATHEW SKELTON. Plaintiff endured and continues to endure the physical,
mental, emotional and psychological injury, pain and suffering inflicted by the assault and
battery – scars he must bear for life.
22. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant; willfully and intentionally, with callous and reckless indifference to the
Plaintiff’s right to safe working conditions engaged in the practice of disregarding, ignoring,
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tolerating, condoning, fostering and facilitating unsafe working conditions for which punitive
damages are the appropriate remedy.
23. That as a direct and proximate result of BIA RESTAURANT, DDT
WILLIAMSBURG CORP, HOAN DUKE QUAN, DAVID CHUNG employment practices,
Plaintiff has suffered physical pain, humiliation, mental emotional and psychological stress,
anxiety and torment hat continues to this day for which punitive damage re the appropriate
remedy.
24. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG were reckless and careless in hiring Defendant JOHANNI MARTINEZ to
serve as cook because it knew or should have known of his violent past/or should have
determined his propensity for violence.
25. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG were reckless and negligent in supervising Defendant JOHANNI MARTINEZ
to serve as cook because it knew or should have known of his violent past/or should have
determined his propensity for violence and allowed him to drink on the job.
26. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG were reckless and negligent in retaining Defendant JOHANNI MARTINEZ to
serve as cook because it knew or should have known of his violent past/or should have
determined his propensity for violence and allowed him to drink on the job.
27. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG are liable for the injuries to Plaintiff cause by the violent assault, and attempted
murder against the plaintiff due to its reckless and negligent hiring, supervision and/or retention
of JOHANNI MARTINEZ. Plaintiff has suffered physical pain, humiliation, mental, emotional
and psychological stress, anxiety and torment, which continue to this day.
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28. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG willfully and intentionally, with callous ad reckless indifference to the
Plaintiff’s safety engaged in the systematic practice of disregarding, ignoring, tolerating,
condoning, fostering and facilitating a hostile work environment for which punitive damage re
the appropriate remedy.
29. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG systematic practice and pattern of ignoring, tolerating, condoning, fostering
and facilitating a hostile work environment for their workers resulted in the aggravated assault
and battery of the plaintiff, placing him in fear of imminent death, and allowing JOHANNI
MARTINEZ to make intentional and willful physical contact. Plaintiff never consented to such
contact and behavior by BIA.
30. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG systematic practice and pattern of ignoring, tolerating, condoning, fostering
and facilitating a hostile work environment for their workers resulted in the aggravated assault
and battery of the plaintiff, was reasonably foreseeable, and said conduct was committed within
the scope of both Plaintiff’s and defendant JOHANNI MARTINEZ’s employment wherein
JOHANNI MARTINEZ was allowed to drink alcohol on the job and encouraged to drink
discounted alcohol, or his own at the bar after work hours. Punitive damages are the appropriate
remedy.
31. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG are all joint and severably liable for injures to plaintiff caused by JOHANNI
MARTINEZ.
32. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG systematic practice and pattern of ignoring, tolerating, condoning, fostering
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and facilitating a hostile work environment for its workers resulted in the aggravated assault and
battery of the plaintiff, was reasonably foreseeable and the conduct committed within the scope
of both Plaintiff’s and defendant JOHANNI MARTINEZ’s employment was facilitated by the
lack of security and surveillance. Defendant JOHANNI MARTINEZ was aware of said failure in
security and surveillance, and as a result proceeded to stab the Plaintiff. Punitive damages are
the appropriate remedy
33. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG breached their duty provide a safe working conditions for its employee. The
vicious attack on the plaintiff was extreme and outrageous conduct, which so transcends the
bounds of decency as to be, regarded as atrocious an intolerable in a civilized society. The
conduct was undertaken with complete disregard of the severe emotional distress it was certain
to cause, and indeed which it did in fact cause the Plaintiff.
34. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG corporate practice and pattern of ignoring, tolerating, condoning, fostering a
hostile work environment resulted in the extreme and outrageous conduct – the nearly fatal
stabbing – by JOHANNI MARTINEZ’s whom BIA had delegated authority as the restaurant
cook . Punitive damages are appropriate.
35. As a direct and proximate result of BIA RESTAURANT, DDT WILLIAMSBURG
CORP, HOAN DUKE QUAN, DAVID CHUNG negligent infliction of emotional distress on
plaintiff, he has suffered physical pain, humiliation, mental, emotional and psychological stress,
anxiety and torment which continues to this day.
36. That said occurrence, which resulted in serious physical injury to plaintiff
MATHEW SKELTON, was caused and wholly by reason of the negligence and carelessness of
defendants BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
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DAVID willfully and intentionally, with callous ad reckless indifference to the Plaintiff’s right to
safe working conditions
37. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG corporate practice and pattern of disregarding, ignoring, tolerating, condoning,
fostering and facilitating an unsafe working condition caused by defendant JOHANNI
MARTINEZ and for failure to maintain sufficient, proper and appropriate security, supervision,
control, maintenance and surveillance within the premises and over the employees within the
premises. Plaintiff endured and continues to endure the physical, mental, emotional and
psychological injury, pain and suffering inflicted by the assault and battery – scars he must bear
for life
38. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant failed to provide adequate and reasonable protection for the safety of
plaintiff MATHEW SKELTON and in failing to warn plaintiff MATHEW SKELTON of
defendant JOHANNI MARTINEZ’s alcohol abuse, drug abuse, prior sales of illicit drugs,
propensity for violence, criminal background and prior criminal convictions and in allowing the
defendant JOHANNI MARTINEZ to drink alcohol during and after, thereby creating hostile
working conditions for its this plaintiff and all it’s employees under Common Law, OSHA and
NY Labor Laws.
39. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant failed to provide adequate and reasonable protection for the safety of
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plaintiff MATHEW SKELTON and in failing to outline, highlight, or otherwise demarcate said
dangerous and hostile working condition, so as to give warning to plaintiff MATHEW
SKELTON of said dangerous and hostile work environment and dangerous and existing threat,
in failing to properly hire, retain, supervise, employ, train and maintain agent, servant, and
employee defendant JOHANNI MARTINEZ although they had or should have had knowledge
of said dangerous threat.
40. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees in the ownership, maintenance,
management, operation and control of the premises and agents, servants and/or employees in all
areas of the restaurant failed to maintain the aforesaid are in a reasonably safe and proper
condition and work environment, in failing to take necessary steps and measures to prevent the
premises and plaintiff MATHEW SKELTON’s work environment from becoming dangerous; in
failing to take suitable and proper precautions for the safety of the Plaintiff; in failing to take all
reasonable precautions to safe guard against this occurrence; in failing to give plaintiff
MATHEW SKELTON an opportunity to avoid said dangerous and hostile work environment
and dangerous and existing threat; in failing to provide adequate, sufficient and /or competent
personnel to maintain said place of employment in a safe and proper manner.
41. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG their agents, servants and/or employees, had actual notice of said dangerous
and hostile work environment and dangerous and existing threat complained of herein. That
information is in the exclusive possession of defendant. Plaintiff does however believes and
asserts that defendants, by and through their agents, servants, and/or employees, employed such
individuals who frequented the premises on behalf of the owners and/or property management
company, observed the dangerous and hostile work environment and dangerous and existing
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threat complained of herein. Actual notice is further claimed in that the dangerous and hostile
work environment and dangerous and existing threat complained of herein was caused and/or
created by defendants, their agents, servants and/or employees.
42. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their owners, agents, servants and/or employees created and encouraged the
existence of the aforesaid dangerous and hostile work environment and dangerous and existing
threat complained of herein with notice, and in gross wonton, reckless and willful acts, the
Defendants, their agents, servants, and/or employees; in violating the applicable laws, rules,
ordinances, statutes and regulations in such as was made and provided; it was otherwise carless,
reckless, negligent in failing to exercise reasonable care and prudence.
43. That BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG, their agents, servants and/or employees, knew or should have known, in the
exercise of reasonable care and caution, and proper and timely inspection, of the aforesaid
conditions so as to effectuate adequate employment policy and shift changes in a timely manner.
The agents, servants and/or employees of the defendant did not warn, admonish or take other
steps to inform plaintiff of the hostile work environment and dangerous and existing threat at the
place of the occurrence for an unreasonably long period of time.
44. Plaintiff believes and asserts that the Defendant BIA RESTAURANT, DDT
WILLIAMSBURG CORP, HOAN DUKE QUAN, DAVID CHUNG by and through their
agents, servants and/or employees, had constructive notice of hostile work environment and
dangerous and existing threat complained of herein. Constructive notice is claimed in that said
conditions obviously existed for a sufficient length of time prior to the occurrence.
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45. Plaintiff will rely upon the Court taking judicial notice at the time of trial of the
applicable laws, rules, statue, codes, ordinances and regulations defendants violated including
but not limited to the Administrative Code of the City of New York.
46. That the plaintiff MATHEW SKELTON was injured solely and wholly as a result of
the negligence, carelessness and recklessness of the defendant of the defendants BIA
RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN, DAVID CHUNG and
JOHANNI MARTINEZ and/or each of them, without any negligence on the part of the plaintiff
contributing thereto.
47. That said occurrence and resulted injuries to plaintiff MATHEW SKELTON and was
caused solely and wholly by reason of the negligence and carelessness of Defendant BIA
RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN, DAVID CHUNG in
the ownership, operation, management, maintenance, control, security and supervision on
premises and employees within the premises.
48. The defendant employer, BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG, is vicariously liable for it's employee
JOHANNI MARTINEZ’s acts in employee's violent conduct and in contacting plaintiff
MATHEW SKELTON without cause, provocation or justification while in course of his
employment as those acts were committed within the scope of the JOHANNI MARTINEZ’s
employment.
49. The defendant employer, BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG, is vicariously liable for it's employee
JOHANNI MARTINEZ’s acts in employee's violent conduct and in contacting plaintiff
MATHEW SKELTON without cause, provocation or justification while in course of his
16
employment as those acts were generally foreseeable and a natural consequence of the
employment.
50. The defendant employer, BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG, is vicariously liable for it's employee
JOHANNI MARTINEZ’s acts in employee's violent conduct and in contacting plaintiff
MATHEW SKELTON without cause, provocation or justification while in course of his
employment as those acts could have been reasonably anticipated by BIA RESTAURANT, DDT
WILLIAMSBURG CORP, HOAN DUKE QUAN, DAVID CHUNG
51. The defendant employer BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG is vicariously liable for it's employee Defendant
JOHANNI MARTINEZ intentional act of violently contacting plaintiff MATHEW SKELTON
without cause, provocation or justification while in course of his employment as those acts by the
defendant employee as those acts by defendant employee JOHANNI MARTINEZ for the
purpose of respondeat superior.
52. The occurrence and the resulting injuries to MATHEW SKELTON were caused solely
and wholly by reason of the negligence and carelessness of Defendant BIA RESTAURANT,
DDT WILLIAMSBURG CORP, HOAN DUKE QUAN, DAVID CHUNG in
the ownership, operation, management, maintenance, control, security and supervision of the
premises and employees within the premises. BIA RESTAURANT, DDT WILLIAMSBURG
CORP, HOAN DUKE QUAN, DAVID CHUNG in the ownership,
operation, management, control, security and supervision of the premises and employees
within the premises
53. That as a result of forgoing, plaintiff MATHEW SKELTON was injured solely and
wholly as a result of the negligence, carelessness, and recklessness of defendant of the
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defendant's BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN DUKE QUAN,
DAVID CHUNG and JOHANNI MARTINEZ and/or each of them, without any negligence on
the part of the plaintiff contributing thereto
54. That the defendant, BIA RESTAURANT, DDT WILLIAMSBURG CORP, HOAN
DUKE QUAN, DAVID CHUNG negligently hired and/or retained Defendant employee
JOHANNI MARTINEZ with knowledge of defendant employee' propensity for the type of
behavior which resulted in the plaintiff's injuries in this action.
55. That the defendant employer BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG negligently placed the Defendant JOHANNI
MARTINEZ in a position to cause foreseeable harm, which most probably would not have
occurred, had the employers taken reasonable care in the hiring, retaining, supervising, managing
and overseeing of employees.
56. That the defendant employer BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG negligently hired and/or retained Defendant JOHANNI
MARTINEZ, negligently placed Plaintiff in a position to cause foreseeable harm, which plaintiff
would not have been subjected to had the defendant employer BIA RESTAURANT taken
reasonable care in supervising or retaining the Defendant JOHANNI MARTINEZ.
57. That the defendant employer BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG negligently failed to provide adequate security to
plaintiff while Plaintiff was lawfully within the premises.
58. That the defendant employer BIA RESTAURANT, DDT WILLIAMSBURG CORP,
HOAN DUKE QUAN, DAVID CHUNG negligently failed to provide adequate security to
plaintiff while Plaintiff was lawfully within the premises and while Defendant had knowledge
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of defendant employee JOHANNI MARTINEZ’s propensity for alcoholism and violent
behavior, which resulted in plaintiff's injuries in this action.
59. That the defendant BIA RESTAURANT negligently failed to safeguard plaintiff
MATHEW SKELTON from the resulting foreseeable harm, which most probably would not
have occurred, had the employer taken reasonable care in safeguarding the plaintiff.
60. That he defendant BIA RESTAURANT knew or should have known of the
defendant employee JOHANNI MARTINEZ’ s propensity for conduct that caused
plaintiff’s injuries and negligently failed to take reasonable measures to provide security to the
plaintiff.
61. Due to negligent retention, BIA failed to learn, or should have learned, about
JOHANNI MARTINEZ’S lack of suitability for the job.
62. BIA failed to take action against JOHANNI MARTINEZ, known and suspected of
posing a risk of harm to his co-workers, customers, thereby exposing BIA, as the employer, to
liability for actual injuries, pain, suffering, and punitive damages to the Plaintiff.
63. BIA is liable under the negligent retention theory when during the course of
employment, BIA became aware or should have become aware that the employee was unfit
for the job.
64. BIA’s negligent retention arose when BIA became aware of problems with
JOHANNI MARTINEZ but failed to take further action such as investigating, disciplining,
discharging, or reassigning JOHANNI MARTINEZ.
65. BIA had a duty to take appropriate action to protect other the Plaintiff, and other
employees and the public.
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66. BIA’s duty to protect the Plaintiff from actions occurring on the employer’s
premises.
67. BIA did not engage in the following:
•
•
•
•
Disciplining JOHANNI MARTINEZ.
Removing JOHANNI MARTINEZ from a position in which the person could
harm other employees, this Plaintiff and members of the public.
Exercising closer supervision over JOHANNI MARTINEZ.
Terminating JOHANNI MARTINEZ 63. BIA engaged in negligent supervision
over JOHANNI MARTINEZ.
68. BIA’s negligent supervision claims are based upon BIA’s failure to reasonably
control or monitor the actions of over JOHANNI MARTINEZ
69. BIA engaged in that poor supervision over JOHANNI MARTINEZ, an employee
known to engage in harassment and belligerent conduct, and allowed it to continue.
70. BIA engaged in negligent supervision when it knew or should have known about
JOHANNI MARTINEZ’s harassment of fellow employees, and patrons.
71. BIA failed to take prompt action to prevent further harassment.
72. BIA’s negligent supervision was the direct cause of injuries to Plaintiff through the
conduct of JOHANNI MARTINEZ.
73.
BIA is liable because the harmful conduct occurred on the BIA’s property and
while the Plaintiff was still on duty cleaning up the bar.
74. Defendant JOHANNI MARTINEZ’S conduct occurred while subject to the
supervision or control of BIA
75. BIA had reason to anticipate the harmful conduct by JOHANNI MARTINEZ
before they may and are liable for failing to prevent the harm through properly supervising
JOHANNI MARTINEZ.
76.
BIA failed to take proper care in supervising JOHANNI MARTINEZ
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77. BIA failed to pay close attention to the conduct of JOHANNI MARTINEZ after
they hired him, to take prompt action in observation of JOHANNI MARTINEZ.
78. BIA knew or should have known that JOHANNI MARTINEZ was behaving
inappropriately with patrons and fellow employees, and failed to clearly document such actions
and observations as they occurred.
79. BIA engaged in negligent training when they failed to train or incorrectly train
JOHANNI MARTINEZ, and BIA’s actions injured the Plaintiff.
80. BIA failed to properly train and/or educate JOHANNI MARTINEZ, and BIA was
responsible for securing an BIA’s facility and guarding the safety of fellow employees, patrons,
BIA property and allowing Plaintiff to perform his job safely and effectively.
81. BIA failed to provide the necessary knowledge and/or training to JOHANNI
MARTINEZ, in using instruments and equipment necessary to properly perform the job.
82. BIA failed to conduct an adequate pre-employment investigation — including, as
circumstances warrant, reference checks, post-employment verifications, credit checks, and
criminal record checks — that employer risks the potential for negligent hiring liability for
injuries caused by a disruptive or violent employee to third parties, such as customers, clients,
suppliers, visitors, or others for JOHANNI MARTINEZ.
83. BIA had a duty to use reasonable care when hiring JOHANNI MARTINEZ to
ensure that they do not hire an individual who may pose a threat of injury to fellow employees,
members of the public, or the workplace in general.
84. BIA failed to verify JOHANNI MARTINEZ’s work history.
85. BIA failed to be alert for long gaps in an applicant’s work history, which may have
been for periods of incarceration.
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86. BIA failed to attempt to obtain reference information from former employers of BIA
JOHANNI MARTINEZ.
87. BIA failed increase the scope of the pre-employment investigation for JOHANNI
MARTINEZ’s, and when hiring for the position disregarded the risk of harm to the public or to
fellow employees, and especially the Plaintiff.
88. BIA failed consider criminal record checks in compliance with all applicable state
and federal laws for JOHANNI MARTINEZ’s. Although some costs are involved, they are
insignificant when compared to the potential liability for negligent hiring, as is evident to the
Defendants now.
89. BIA failed document all pre-employment investigatory efforts, including
nonproductive contacts with former employers of JOHANNI MARTINEZ.
90. BIA failed use effective interviewing techniques in hiring JOHANNI MARTINEZ.
91. During the hiring process BIA failed to ask questions, such as:
a. “Do you use any illegal drugs?”
b. “What is the reason for the gaps in your employment history?”
c. “Have you ever been arrested?”
d. “Have you ever committed a violent act?”
92. The plaintiff MATHEW SKELTON was seriously and permanently injured due to
BIA’s negligence.
PLEASE TAKE NOTICE, that plaintiff reserves he right to serve supplemental and / or
amend response up to the time of trial.
Dated: Queens, NY
April 13, 2021
______________________________
TRUJILLO FIRMS PC
Attorneys for Plaintiff
MATHEW SKELTON
5014 65th Pl #2R
Woodside, NY 11377
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TO:
HOFFMAN ROTH & MATLIN, LLP.
Attorneys for Defendants
BIA RESTAURANT, HOAN DUKE QUAN and DAVID CHUNG
505 Eighth Avenue, Suite 1704
New York, NY 10018
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