FILED: KINGS COUNTY CLERK 12/28/ :55 PM INDEX NO /2016 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2017

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1 COVER PAGE Claim: 2015PI Name: ALEXANDER LY Time: 2/17/2016 3:09:41 PM Claimant: NATHANIEL TALA VERA

2 NATHANIEL TALAVERA LOURDES SANTANA BLA# 2015PI x In the Matter of the Claim of NATHANIEL TALAVERA, infant by mother natural guardian, LOURDES SANTANA, and LOURDES SANTANA, individually, Claimants, -against- THE CITY OF NEW YORK, Respondent x DATE: January 25, 2016 TIME: 3:52 p.m. 50-Hâ HEARING of NATHANIEL TALAVERA and LOURDES SANTANA, the Claimant(s) herein pursuant to Section 50-Hâ of the General Municipal Law, held at the offices of.billig Law, P.C., 61 Broadway, Suite 510, New York, New York 10006, before CHRISTINE SOCCI, a Notary Public of the State of New York. **REPORTER'S INK CORP 90 JOHN STREET ** **

3 s s 2 I~ 1 A P P E A R A N C E S: 2 3 LAW OFFICES OF JAY H. TANENBAUM Attorney for Claimants 4 NATHANIEL TALAVERA and LOURDES SANTANA 5 14 Wall Street, Suite 5F New York, New. York BY: ROBERT SHAW, ESQ., of Counsel 7 8 BILLIG LAW, P.C. Attorneys for Respondent 9 THE CITY OF NEW YORK 61 Broadway, Suite New York, New York BY: SUZANNE BILLIG, ESQ

4 3 1 N A T H A N I E L T A L A V E R A, the witness herein, 2 having been first duly sworn by a Notary Public of the 3 State of New York, was examined and testified as 4 follows: 5 EXAMINATION BY MS. BILLIG: 6 Q. State your name for the record, please. 7 A. Nathaniel Talavera. 8 Q. State your address for the record, please. 9 A. 526 Essex Street, Brooklyn, New York Q. My name is Suzanne Billig. I am an attorney. I 11 represent the City of New York. I am going to be asking 12 you a series of questions concerning your claim you 13 filed against the City. 14 Please answer every question with a verbal answer. 15 Wait until I finish the question completely before you 16 answer, and let me know if there is any question I ask 17 that you do not understand, okay? 18 ma' A. Yes, am. 19 Q. You have to answer every question in words so it can 20 be typewritten down, okay? 21 A. Okay. 22 Q. Have you ever been known by any other name? 23 A. No. 24 Q. For the questions you are asked today, you have just 25 been sworn to tell the truth. What does it mean to tell

5 , 4 1 the truth? 2 A. It means to be honest and not lie. 3 Q. Tell me in another way other than using the words 4 truth and lie to explain you know what it is to tell the 5 truth and what it is to tell a lie. 6 A. To say something that is not recorded or true. 7 Q. Recorded? 8 A. Recorded, meaning known or seen before or heard 9 before, like. 10 Q. I am not sure I understand your answer. Can you 11 give an example of something that could be a lie? 12 A. I am rich or I can bench press a thousand pounds. 13 Q. Why is that a lie? 14 A. That's a lie. I can only bench press Q. When you answer the question, do you promise you 16 only tell the story of what happened? You understand 17 that the answers you give today are just as important as 18 if you were in a courtroom in front of a judge? 19 A. Yes. 20 Q. Do you understand you must be truthful or honest in 21 all of your answers? 22 A. Yes. 23 Q. Who do you live with? 24 A. My mother, my stepfather, my brother and my sister. 25 Q. What are all their names, and for each person, tell

6 â FILED: KINGS COUNTY CLERK 12/28/ :55 PM INDEX NO / me their relationship to you? 2 A. My stepfather, John Cumia. 3 Q. Spell the names for the record. 4 A. C-U-M-I-A, he is my stepfather, my brother Jesus 5 Talavera, J-E-S-U-S, T-A-L-A-V-E-R-A, my little sister 6 Nicole Cumia, N-I-C-O-L-E, C-U-M-I-A and my mother 7 Lourdes Santana, L-O-U-R-D-E-S, S-A-N-T-A-N-A. 8 Q. How long have you lived at your current address on Street' 9 Essex Street? 10 A. Three years. 11 Q. Where did you live before that? 12 A. Norwood Avenue. 13 Q. Can you provide the full address with the city, 14 state and zip code, please? 15 A. 108 Norwood Avenue Brooklyn, New York Q. How long did you live there? 17 A. For about ten years. 18 Q. Are you a student? 19 A. Yes, I am. 20 Q. Where do you attend? 21 A. Spring Creek Community School. 22 Q. Is that public? 23 A. Yes. 24 Q. Where is it located? 25 A Elton Street.

7 , 6 1 Q. Is that Brooklyn? 2 A. Yes, that is in Brooklyn. 3 Q. What is your height and weight. 4 A. I am five-eleven, 260 pounds. 5 Q. Have you ever been left back in any grade? 6 A. Yes, I have. 7 Q. Which one? 8 A. Seventh and eighth -- no. Seventh and sixth. 9 Q. Are you in special classes? 10 A. No, I'm not. 11 Q. Do you have any medical conditions unrelated to the 12 accident? 13 A. Yes. Asthma and ADHD, which was outgrown when I was 14 seven or eight. 15 Q. Have you ever filed another claim against the City 16 of New York? 17 A. No, I have not. 18 Q. Have you ever filed a claim against the State of New 19 York? 20 A. No. 21 Q. Have you ever been known by any other name? 22 A. No, I have not. 23 Q. Have you ever been convicted of a crime? 24 A. No, I have not. 25 Q. Do you receive Medicaid?

8 7 1 A. Yes. 2 Q. Do you receive Medicare? 3 A. No, I don't. 4 Q. Did you miss any time from school because of the 5 accident or injury? 6 A. Yes. 7 Q. How much? 8 A. Three months. 9 Q. From when to when? 10 A. September to January 4th. 11 Q. September of 2015? 12 A. Yes. 13 Q. Do you know the actual date? 14 A. September 22nd. 15 Q. Until when? 16 A. January 4th. 17 Q. 2016? 18 A. Yes. 19 Q. Did that include time you would have been out of 20 school anyway because of having a vacation or break? 21 A. Yes. 22 Q. When was your vacation or break? 23 A. December 26, Q. Until? 25 A. January 4, 2016.

9 1 8 1 Q. You really only missed time from school from 2 September 22nd to December 24th, correct? 3 A. Yes. 4 Q. Have you ever held a job? 5 A. A side job, something I would do in my free time. 6 Q. That you got paid for? 7 A. Yes. 8 Q. Did you have that job at the time of the accident or 9 since the accident until now? 10 A. No. 11 Q. Did you have a tutor or anyone to assist you or 12 bring work home for you while you were out of school? 13 A. Yes. 14 Q. Did you complete the work you were supposed to do? 15 A. Yes, I did. 16 Q. Did you have to pay for the tutor or was it free? 17 A. It was free. 18 Q. It was provided by the school? 19 A. Yes. 20 Q. Did you take all the exams you were supposed to 21 take? 22 A. Yes. 23 Q. Are you enrolled in school right now? 24 A. Yes. 25 Q. Are you in gym classes or do you have any scheduled?

10 9 1 A. Yes, I do, but I just sit in the sidelines as of now 2 until further notice. 3 Q. You are in the class, but you are not participating? 4 A. Yes, in gym class, in particular. 5 Q. Do you participate in any gym class activities? 6 A. No, I don't. 7 Q. When do you plan on returning to gym class 8 activities? 9 A. I believe when I am done with physical therapy. 10 Q. When may that be? 11 A. I am not sure. 12 Q. What is your date of birth? 13 A. 14 Q. 15 A. Yes. 16 Q. Do you know your Social Security number? 17 A. No, I don't. 18 Q. Do you have one? 19 A. Yes, I do. 20 Q. What grade are you in? 21 A. Ninth grade. 22 Q. Have you taken the ninth grade more than once? 23 A. No, I have not. 24 Q. What was the date of the accident? 25 A. The date of the accident, it took place on September

11 'I , Q. What time did it occur? 3 A. 1:15 p.m. 4 Q. Were you using a scooter or bike or something like 5 that? 6 A. I was using a scooter. 7 Q. Did you own the scooter? 8 A. No, I didn't. 9 Q. Whose was it? sister' 10 A. My little sister's. 11 Q. Is it motorized? 12 A. No. It is a foot scooter, a Razor scooter. 13 Q. It was Razor brand? 14 A. Yes. 15 Q. Did you have your own scooter? 16 A. No, I didn't. 17 Q. Have you ever had your own scooter? 18 A. Yes. 19 Q. When is the last time you used a scooter prior to 20 the date of the accident? 21 A. Prio.r, meaning? 22 Q. Before. 23 A. Two years ago. 24 Q. Two years before the accident? 25 A. Yes.

12 11 1 Q. Did your little sister let you use the scooter? 2 A. Yes. 3 Q. What is her name. 4 A. Nicole Cumia. 5 Q. Spell the last name? 6 A. C-U-M-I-A. 7 Q. She lives with you? 8 A. Yes, she does. 9 Q. Where were you riding the scooter when the accident 10 happened? 11 A. I was riding between Essex and Belmont. 12 Q. Essex Street? 13 A. Yes. 14 Q. Belmont Street? 15 A. Yes. 16 Q. What city is that in? 17 A. Brooklyn, New York Q. Can you keep your voice up? 19 A. Brooklyn, New York Q. What were your doing in the area? 21 A. I was just coming home from a restaurant. 22 Q. From where? 23 A. From a restaurant. 24 Q. What restaurant? 25 A. That was a Spanish restaurant, I believe, between

13 12 1 Linwood and Essex. 2 Q. Midwood and Essex? 3 A. Linwood and Essex. 4 Q. Who were you with at the restaurant? 5 A. My brother and friend. 6 Q. What are their names? 7 A. Jesus Talavera and Grace and Justin Peterkin, 8 P-E-T-E-R-K-I-N. 9 Q. Did they witness the accident, both your brother and 10 friend? 11 A. Yes. 12 Q. How did you get to the restaurant? 13 A. I walked over there. 14 Q. What is Justin's address? 15 A. I believe it is Essex Street. 16 Q Essex Street? 17 A. 529 Essex Street, I believe. 18 Q. Brooklyn? 19 A. Yes, Brooklyn, New York Q. Your brother lives with you? 21 A. Yes. 22 Q. Were there any other witnesses? 23 A. No, there was not. 24 Q. How old is Justin? 25 A. Nineteen years old.

14 13 1 Q. How old is Justin? 2 A. He is 16 years old. 3 Q. Did you go to school that day? 4 A. No, I didn't. 5 Q. Was it a weekend? 6 A. Yes, it was. 7 Q. When did you come into possession of the Razor 8 scooter? 9 A. On Sunday, the date of the accident. 10 Q. Did you ride the scooter to the restaurant? 11 A. No, I walked. 12 Q. Holding it? 13 A. Yes. 14 Q. Is there a reason you did not use it on the way to 15 the restaurant? 16 A. Yes. 17 Q. Why? 18 A. My friend was using it. 19 Q. Who used it? 20 A. Justin. 21 Q. On the way home, was anyone else on the scooter or 22 just you? 23 A. Just me. 24 Q. Your friend and brother were on foot? 25 A. Yes, they were.

15 . f 14 1 Q. Were you riding the scooter on a sidewalk at the 2 time of the accident? 3 A. No, I was not. 4 Q. Where were you? 5 A. On the street. 6 Q. What was the weather like at the time? 7 A. It was sunny. 8 Q. Did your mother know where you were at that time? 9 A. Yes, she did. 10 Q. Did you eat in the restaurant? 11 A. Yes, I did. 12 Q. Do you know the name of it? 13 A. El Buhivo. 14 Q. Can you spell that? 15 A. E-L, B-U-H-I-V-O Restaurant. 16 Q. How long were you at the restaurant? 17 A. I believe 30 to 45 minutes. 18 Q. You had a meal there? 19 A. Yes, I did. 20 Q. If you were coming home from the restaurant between 21 Linwood and Essex, what street was the restaurant on? 22 A. I believe it was on Linwood and Essex. 23 Q. How did you get from the restaurant to the accident 24 location; what route did you take? 25 A. I walked straight from between Linwood and Essex all

16 15 1 the way up.. 2 Q. Did you take Essex? 3 A. Yes, I did. 4 Q. When you left the restaurant, did you make a left or 5 right out of the restaurant? 6 A. I made a right -- no. I made a left. I made a 7 left. 8 Q. How many blocks did you take Essex for? 9 A. Five or six blocks. 10 Q. Were all the blocks, five to six blocks, on a 11 scooter? 12 A. No. They were on foot because Justin was using the 13 scooter? 14 Q. At what point did you take over and use the scooter? 15 A. When we were at the top between Essex and Belmont. 16 Q. On the block of the accident? 17 A. Yes. 18 Q. How long had you been using the scooter for before 19 the accident occurred? 20 A. For about a month. 21 Q. On that day? 22 A. On that day? 23 Q. When you took the scooter from your friend who 24 borrowed it from you, how long were on the scooter for 25 before you had the accident that day?

17 16 1 A. At least 25 minutes. 2 Q. Were you just riding along that block of Essex and 3 Belmont or were you going from the restaurant directly 4 home. 5 A. I was riding around that block. 6 Q. Where were your friends going when you were riding 7 on the scooter for about 25 minutes? 8 A. Talking, walking home from the restaurant. 9 Q. Were they on the same block as you or at some other 10 location? 11 A. Yes, they were on the same block as me. 12 Q. Were they in front or behind you? 13 A. They were in front of me. 14 Q. Did they actually see the accident occur or come 15 over afterwards? 16 A. They came over afterwards. 17 Q. Did they see the accident? 18 A. No. 19 Q. Were their backs towards you when you had the 20 accident? 21 A. Yes. 22 Q. Were they on the sidewalk? 23 A. Yes, they were. 24 Q. When you had the accident, were you on Essex or 25 Belmont?

18 17 1 A. I was on Essex. 2 Q. Can you tell me in what kind of path you were 3 riding; were you doing circles, zigzagging? 4 A. I was riding the scooter in the street. 5 Q. From corner to corner or from side to side or 6 something else? 7 A. Just straight. 8 Q. The length of the block? 9 A. Yes. 10 Q. Did you know how to use a scooter? 11 A. Yes. 12 Q. Did it have one wheel in the front and one in the 13 back? 14 A. Yes. 15 Q. Was there anything broken with the scooter? 16 A. No, there was not. 17 Q. Were you wearing sneakers or some other shoes? 18 A. I was wearing sneakers. 19 Q. Was the roadway dry? 20 A. Yes, it was. 21 Q. Is the street you were on which you said was Essex 22 one-way or two-way? 23 A. A one-way street. 24 Q. Were there cars park on either side of Essex? 25 A. Yes, there were.

19 Q. Where were the cars? 2 A. Both sides. 3 Q. Where were you riding on the scooter before you had 4 the accident in the street? 5 A. On Essex and Sutter. 6 Q. Were you in the middle of the street when you were 7 riding on the scooter or closer to the right side or 8 closer to the left side? 9 A. I was closest to the left side. 10 Q. How far were you from the parked cars? 11 A. Approximately five to eight feet away from the cars. 12 Q. How far were you from the curb line to your left? 13 A. At least three to four feet. 14 Q. Wouldn't the cars have been closer to you than the 15 curb? 16 A. Yes. 17 Q. You told me the curb was three to four feet away, 18 but the curb was four to eight feet away. 19 MR. SHAW: Did you understand? 20 A. That was switched, sorry. 21 Q. What was switched? 22 A. The length from the cars to the curb. 23 Q. What was the distance to the cars and what was the 24 distance to the curb? 25 A. The distance to the cars was three to four feet.

20 19 1 The distance to the curb was five to eight feet. Sorry. 2 That was my mistake. 3 Q. That is the curb on your left-hand side? 4 ma' A. Yes, am. 5 Q. You were not in the middle, you were more on the 6 left side of the street? 7 A. Yes, I was. 8 Q. At the location of the accident, were there any cars 9 on your immediate left-hand side? 10 A. No, there was not. 11 Q. Did you see any defective or dangerous condition, 12 such as a pothole, crack or anything, in the roadway 13 itself prior to the accident as you were riding on 14 Essex? 15 A. Yes. 16 Q. When was the first time you ever noticed that 17 condition? 18 A. The second I fell. 19 Q. At the moment of the fall, for the first time? 20 ma' A. Yes, am. 21 Q. Prior to the fall, before the fall, did you ever see 22 the condition? 23 A. No, I didn't. 24 Q. Did you ride up and down or back and forth on the 25 same block on Essex

21 20 1 A. No. That was -- 2 Q. -- before the accident? 3 A. No. 4 Q. Did you only ride it only in the direction that 5 vehicles would travel in, in the correct direction on 6 the one-way street? 7 A. Yes. 8 Q. Was traffic running north/south, south/north, 9 east/west or something else? 10 MR. SHAW: Do you know? 11 A. I don't. 12 Q. Was the closest cross street in front of you on 13 Belmont Street? 14 A. Yes. 15 Q. How far were you from the corner of Belmont when you 16 had the accident? 17 A. At least four feet away. 18 Q. Can you describe how fast you were riding on the 19 scooter? 20 A. Eight to ten miles per hour. 21 Q. Could it have been more than that? 22 A. No. 23 Q. Is that a reasonable approximation of your speed? 24 A. Yes. 25 Q. Which foot did you keep on the scooter and which

22 21 1 foot did you use to push off on the roadway? 2 A. My right was on the scooter, my left was helping me 3 move faster. 4 Q. Your left foot was pushing off onto the street? 5 A. Yes, it was. 6 Q. At the moment of the accident, did you have one foot 7 on the scooter, both feet on the scooter or something 8 else? 9 A. I had one foot on the scooter. 10 Q. Was that the right foot? 11 A. Yes. 12 Q. Where was you left foot? 13 A. My left foot was on the ground. 14 Q. It was in the air or on the ground? 15 A. It was in the air at first, then I landed on the 16 ground. 17 Q. You were pushing off with your left foot in the area 18 when you had the accident? 19 A. Yes. 20 Q. Had you just pushed off with the. left foot? 21 A. Yes. 22 Q. How far did you travel on that street on Essex 23 before you had the accident; the full block, 24 three-quarters of a block? 25 A. At least three-quarters of a block.

23 22 1 Q. At any time when you traveled on the block, were 2 there any moving cars in front of you? 3 A. No, there was not. 4 Q. Did you have a clear view in front of you? 5 A. Yes, I did. 6 Q. Did you essentially use the scooter going in a 7 straight path on the left-hand side of the road? 8 A. Yes. 9 Q. Was there anything obstructing your view in front of 10 you at all as you traveled on that roadway? 11 A. No, there was not. sunglasses' 12 Q. Were you wearing sunglasses? 13 wasn' A. No, I wasn't. 14 Q. Glasses? wasn' 15 A. No, I wasn't. 16 Q. Are you supposed to wear prescription lenses of any 17 kind? 18 A. No, I'm not. 19 Q. Were you using any headphones or music? 20 A. No, I was not. 21 Q. Can you tell me the kind of clothing you wore? 22 A. I was wearing a sweater, sweat pants and Adidas 23 sneakers. 24 Q. Your arms and legs were covered? 25 A. Yes.

24 23 1 Q. Did you wear a helmet? 2 A. No. 3 Q. Was there any traffic moving on that street? 4 A. No, there was not. 5 Q. As you were riding on the street, did the road 6 appear to be normal and paved? 7 A. Yes, it did. 8 Q. How did the accident occur? 9 A. The accident occurred with the wheel landing in that 10 hole. 11 Q. Which wheel? 12 A. Front wheel, causing me to land on the floor, 13 tearing several ligaments in my right ankle. 14 Q. You mean the roadway? 15 A. Yes. 16 Q. That is the right ankle? 17 A. Yes. hole' 18 Q. When is the first time you saw the hole? 19 A. The second the accident occurred. 20 Q. Are you saying the moment the scooter went into the 21 hole, you saw it or at some point afterwards? 22 A. Some point after the accident occurred. 23 Q. Where were you when you first saw the hole? 24 A. At least four feet on the ground. 25 Q. Was it in front of you or behind you?

25 24 1 A. It was in front me. 2 Q. Did you fall off the scooter? 3 A. Yes, I did. 4 Q. Did the scooter get stuck in the hole? 5 A. Yes, it did. 6 Q. Do you still have the scooter? 7 A. Yes, I do. 8 Q. Was the wheel of the scooter broken? 9 A. No, it was not. 10 Q. Does the scooter still work? 11 A. Yes, it does. 12 Q. When you say the scooter went into a hole, what did 13 it feel like was happening, being that you did not see 14 what it was contacting at that time? 15 A. It kind of felt like the scooter stopped, causing me 16 to flip over. 17 Q. Did you attempt to do anything to prevent your fall? 18 A. I tried to. 19 Q. What did you try to do? 20 A. I tried to maneuver and land on my hands onto the 21 roadway. 22 Q. Did you land on your stomach? 23 A. No. I landed on my leg. 24 Q. Your back, your side or stomach? 25 A. My stomach, yes. Correct.

26 25 1 Q. Did any part of your head hit the ground? 2 A. No, it didn't. 3 Q. Did you lose consciousness? 4 A. No. 5 Q. Were you bleeding from anywhere? 6 wasn' A. No, I wasn't. 7 Q. Where was the scooter in relation to you when you 8 landed on the ground? 9 A. It was near the hole. 10 Q. How far was it from the hole? 11 A. At least two to three feet away from the hole. 12 Q. Which direction? 13 A. From the right side. 14 Q. The scooter was to the right of the hole? 15 A. Yes, because when it fell, it slanted to the right. 16 Q. Did you get up after you fell? 17 A. Yes. 18 Q. Did you look around to see what it was that might 19 have caused you to fall? 20 A. Yes, I did. 21 Q. What did you see? 22 A. A couple cracks and a hole on the roadway. 23 Q. What is it you claim caused you to fall off the 24 scooter; the couple cracks or the hole or something 25 else?

27 P 26 1 A. It was the hole, I believe, that caused my ankle to 2 break. 2 Q. Did your body land in any portion of the hole? 4 A. No, it didn't. 5 Q. It was just the scooter that went into the hole? 6 A. Yes. 7 Q. Describe the hole in terms of it's size, shape and 8 depth, width, dimensions? 9 A. It was at least four to five in diameter. 10 Q. Four to five what? 11 A. Inches, and at least this long (indicating). 12 Q. In words. 13 A. It was at least five inches in length. Like five 14 inches in length and three inches in width. 15 Q. You said four to five inches long? 16 A. Yes. 17 Q. Four to five inches long by four to five inches 18 wide? 19 A. Yes. 20 Q. What shape was it? 21 A. Oval. 22 Q. What was the depth of the hole? 23 A. At least two to four inches in. 24 Q. Was there anything inside of the hole? 25 A. No, there was not.

28 27 1 Q. Did you hear anyone else take any pictures of the 2 hole immediately after the accident? 3 A. No, I didn't. 4 Q. What did you do immediately after the accident? 5 A. I went home. 6 Q. Did you report the accident to the police? 7 A. No, I didn't. 8 Q. Did you report the accident to â or 3-1-1? 9 A. No, I didn't. 10 Q. How about any neighbors in the area? 11 A. No, I didn't. 12 Q. Did you call your parents? 13 A. Yes, I did. 14 Q. Did you have a cell phone with you? 15 A. No. I used my friend's phone to let my mother know 16 what happened the second it happened. 17 Q. Did you ask her to come get you? 18 A. No, I didn't. 19 Q. How far did you live from there? 20 A. At least a block away. 21 Q. Did you ride the scooter home? 22 A. No, I didn't. I walked. My brother and friend 23 helped me walk up the block. 24 Q. What part of the body did you injure in the 25 accident? For any part you injured, please indicate if

29 28 1 it is the left or right side, and be specific as to the 2 body part you injured. 3 A. I believe I broke my right ankle, tibia and/or 4 fibula. I don't know which one it was. 5 Q. Do you know how many fractures you had? 6 A. No. 7 Q. You are certain you fractured your right ankle? 8 A. Yes, I am. 9 Q. It was either the fibula or tibia; you do not know 10 which one? 11 A. No, I don't. 12 Q. Was it both? 13 A. No. It was only one of them. 14 Q. Is that also of the right leg? 15 A. Yes. Right ankle, I believe. 16 Q. When did you first seek medical attention? 17 A. Two days after the accident occurred. 18 Q. On any day before the accident date, had you ever 19 seen the hole you claim your scooter went into? 20 A. I didn't. 21 Q. Do you know from any source as to how long that hole 22 may have been there for? 23 A. No, I don't. 24 Q. Are you aware of any other accident occurring there? don' 25 A. No, I t.

30 29 1 Q. Had you yourself ever been on that street before the 2 date of the accident? 3 A. Yes. 4 Q. Had you also been on that street on your way to the 5 restaurant? 6 A. Yes. 7 Q. Did you see the hole in the street on your way to 8 the restaurant? 9 A. No, I didn't. 10 Q. How often would you be on that street before the 11 accident? 12 A. At least three times a week. 13 Q. How did you go to a doctor two days later? 14 A. By car. 15 Q. Who took you there? 16 A. My mother. 17 Q. Why did you wait two days to seek medical attention? 18 A. I'm not sure. It was a day. It was a day. 19 Q. The following day? 20 A. Yes, a day. The day after the accident occurred, I 21 was sent to my original doctor, and they said, We are 22 not sure what's wrong with the ankle. 23 Q. You went the day after the accident? 24 A. Yes. 25 Q. Qn the date of the accident, did you feel any pain

31 .. â â FILED: KINGS COUNTY CLERK 12/28/ :55 PM INDEX NO / to your ankle? 2 A. Yes, I did. 3 Q. Why didn't you go to an emergency room? 4 A. I was not sure what was wrong. 5 Q. Did you tell your mother your ankle bothered you? 6 A. Yes. 7 Q. Did you have swelling? 8 A. Yes, I did. 9 Q. Were you walking on the ankle? 10 A. No, I wasn't. 11 Q. What did you do the rest of that day? 12 A. I laid in bed. 13 Q. When did you go the next day? 14 A. In the afternoon, like around 12:30 or 1: Q. Where did she take you? 16 A. She first took me to my original doctor on Cleveland 17 and Atlantic. 18 Q. What is the name of that doctor? 19 A. Dr. Rita. 20 Q. R-I-I-A? I 21 A. Yes. 22 Q. What is her first name? 23 A. I don't know. 24 Q. What kind of a doctor is that? 25 A. She is a medical doctor.

32 â FILED: KINGS COUNTY CLERK 12/28/ :55 PM INDEX NO / Q. Orthopedic, a pediatrician? 2 A. I think a pediatrician. 3 Q. What street did you say she was on? 4 A. Cleveland and Linwood. 5 Q. Did she take x-rays in her office? 6 A. No, she did not. 7 Q. Did she examine you? 8 A. Yes. 9 Q. Did you actually see the doctor or an assistant? 10 A. I actually saw the doctor. 11 Q. Is there anything she did for you at that visit? 12 A. No. 13 Q. Did she refer you for x-rays? 14 A. She referred me to the hospital. 15 Q. Did you go to a hospital the same day? 16 A. Yes, I did. 17 Q. Where did she send you to? 18 A. She sent me to Brookdale Hospital. 19 Q. How did you get there? 20 A. By car. 21 Q. What treatment did you receive at Brookdale; were 22 x-rays taken? 23 A. Yes. 24 Q. What did they X-ray? 25 A. They x-rayed my right ankle.

33 32 1 Q. Did they tell you that you had a fracture? 2 A. Yes. 3 Q. Did they cast you? 1 4 A. They splinted me. 5 Q. Did they do any surgery? 6 A. Yes, they did. 7 Q. Which was done first; the splint or the surgery. 8 A. The splint. 9 Q. How long were you in the splint for? 10 A. At least 24 hours. 11 Q. Were you admitted or did you go home? 12 A. I was admitted. 13 Q. Did they tell you right away you would need surgery? 14 A. Yes, they did. 15 Q. Did they tell you if you had a tibia or fibula 16 fracture? 17 A. Yes, they did. 18 Q. How long were you at the hospital for? 19 A. Two to three days. 20 Q. Who was the surgeon? 21 A. I don't know for sure, but I do know the 22 anesthesiologist. I don't know if that helps. 23 Q. Are you still treating with the doctor who did the 24.surgery? 25 A. Yes.

34 33 1 Q.- Is it a male or female? 2 A. It was a male. 3 Q. Do you know what kind of surgery was performed? 4 don' A. No, I don't. 5 Q. Did they put pins, screws or plates in your ankle or 6 leg? 7 A. Yes. 8 Q. What did they place? 9 A. They gave me seven metal screws and one metal plate. 10 Q. Are they still there? 11 A. Yes. 12 Q. Are they intended to remain there permanently? 13 A. Yes, they are. 14 Q. Any discussion about the screws being removed at 15 some point? 16 A. No. 17 Q. Are you still under the care of any doctor for your 18 foot. 19 A. Yes. 20 Q. Did you have stitches following the surgery? 21 A. Yes. 22 Q. How many? 23 A. I was given at least ten. 24 Q. Were they removed or did they dissolve on their own? 25 A. They were removed.

35 34 1 Q. When were they removed? 2 A. At least a month after surgery. 3 Q. At the same hospital? 4 A. Yes. 5 Q. Was all of your treatment at Brookdale? 6 A. Yes. 7 Q. Do you know if the plate is at the ankle or base of 8 the leg? 9 A. It's here (indicating). 10 Q. Tell me in words. She has to write it. 11 A. Yes. It was between my -- from like the top of the 12 shin between the leg all the way down to the ankle. 13 Q. Did you speak to the surgeon after the surgery? 14 A. Yes. 15 Q. Did he tell you how it went? 16 A. Yes. 17 Q. What did he say? 18 A. He said, You are just going to have to be off your 19 feet for a couple months. And he just said, Get well 20 soon. Everything came out perfect. And he told me how 21 many screws I was given. 22 Q. He said the surgery went well? 23 A. Yes. 24 Q. Were you placed in a splint after the surgery? 25 A. Yes, I was.

36 35 1 Q. How long did you wear the splint for? 2 A. At least two months. 3 Q. With crutches? 4 A. Yes. 5 Q. Is there they reason you did not go back to school 6 with the splint and crutches? 7 A. Yes. 8 Q. Why? 9 A. The walk is at least 30 minutes, and nobody was able 10 to send me to school because people have to go for work 11 early in the morning, starting from 6:00 or 5:00 a.m. 12 Q. Who are these people? 13 A. These people are my mother, Lourdes Santana, and my 14 stepfather, John Cumia. 15 Q. What month was it when you stopped using the splint? A. December. 17 Q. Early, mid or late? 18 A. Mid December. 19 Q. Have you had any repeat x-rays done since the date 20 of your surgery? 21 A. Yes. 22 Q. When was the last time you had x-rays done? 23 A. It fell on a Tuesday, late December. 24 Q. What did they show? 25 A. They showed my x-rays said everything looked normal.

37 36 1 Q. Did they tell you the plate and screws are in proper 2 position? 3 A. Yes. 4 Q. Did they tell you the fracture was healed? 5 A. They said it would actually take a year or two for 6 it to be completely healed. They said I was able to 7 move around within three or four months time. 8 Q. Did they express any concerns at all? 9 A. No, they didn't. 10 Q. The place where the stitches were, is that area 11 where the skin -- that laceration fully healed? 12 A. Yes. 13 Q. Have you had physical therapy? 14 A. No. 15 Q. Was it recommended. 16 A. Yes. 17 Q. When was it first recommended? 18 A. The day after surgery. 19 Q. Why have you not had physical therapy? 20 A. I was not given the proper papers. It will be held 21 February 2nd. 22 Q. What proper papers are you missing? 23 A. I am not sure. 24 Q. Can you be any more specific as to why you have not 25 had therapy?

38 37 1 A. No. 2 Q. Is it because your parents could not take you? 3 A. No. It's just -- I just could not go. 4 Q. How many days a week were you supposed to start 5 going for therapy? 6 A. I am not sure. 7 Q. Is it more than once a week? 8 A. Yes. 9 Q. Has your doctor said anything to you about any 10 setbacks that you have or may have due to your failure 11 to go for therapy? 12 A. No. 13 Q. Do you have any appointments scheduled with any 14 doctors right now? 15 A. Yes. 16 Q. When. 17 A. February 2nd. 18 Q. Who are your going to see? 19 A. Following checkup to see how everything is, and they 20 were going to give me an appointment for physical 21 therapy. 22 Q. That is the day you anticipate starting it? 23 A. Yes. 24 Q. Who is the doctor you intend on seeing February 2nd? 25 A. I am not sure.

39 f â 38 1 Q. Are you currently using a device to help you walk? 2 A. Yes. 3 Q. What are you using? 4 A. A cane. 5 Q. Who gave you a cane? 6 A. The doctor. 7 Q. What doctor? 8 A. I am not sure. 9 Q. Can you tell me when you started using it? 10 A. December 3rd. 11 Q. How often do you use it? 12 A. I use it at least two to three times a day. 13 Q. Can you walk without it? 14 A. I'm not sure. 15 Q. Have you tried? 16 A. No, I have not. 17 Q. Have you been told you should try to walk without 18 it? 19 A. No, I haven't. 20 Q. Have you been told you have to walk with it? 21 A. No, I have not. 22 Q. Did they tell you they wanted you to weight-bear or 23 to put weight on the foot? 24 A. Yes. 25 Q. When you are using the cane, does that allow you to

40 39 1 put weight on the foot or to keep weight off of the 2 foot. 3 A. It helps me to take the weight off the foot. 4 Q. Why are you using the cane if you are supposed to 5 put weight on it? 6 A. Just a safety precaution. 7 Q. What kind of safety precaution? 8 A. To make sure any damage does not get to my ankle. 9 Q. Were you told if you put weight on it, it will help 10 you strengthen it? 11 A. No, I was not. 12 Q. When you go to school, do you use the cane? 13 A. Yes, I do. 14 Q. Every day? 15 A. Yes, I do. 16 Q. On the date of the accident, did you see any 17 construction work going on at the location of the 18 accident? 19 A. No, I didn't. 20 Q. Have you ever had an injury before to your right 21 ankle, leg or foot? 22 A. No, I didn't. 23 Q. Since the accident until now, have you reinjured 24 your right ankle, leg or foot? 25 A. No, I have not.

41 T 40 1 MS. BILLIG: I am requesting 2 authorizations for school records, 3 Medicaid reports and medical records are 4 furnished to the City Comptroller's 5 Office. The City deems the hearing 6 incomplete until they have been 7 furnished. 8 Q. Have you now told us about all the medical treatment 9 you had for your injuries since the accident until now? 10 A. Yes. 11 Q. Who is the parent or person who has taken you to 12 your medical appointments for your right leg or ankle? 13 A. My mother, Lourdes. 14 Q. Anyone else? 15 A. No. 16 Q. Did you ever report the accident to the police at 17 any time? 18 A. No, I didn't. 19 Q. Is your mother employed? 20 A. Yes. 21 Q. What kind of work does she do? 22 A. She is an NYPD traffic. 23 Q. Did anyone stay home with you while you were home 24 from school? 25 A. Yes.

42 41 1 Q.. Who was that? 2 A. My brother. 3 Q. How old is your brother? 4 A. Nineteen. 5 Q. His name? 6 A. Jesus. 7 Q. Are you currently taking any medication for your 8 injury? 9 A. No, I'm not. 10 Q. Has anything been prescribed? 11 A. No. 12 Q. Have you been back to the accident location since it 13 happened? 14 A. Yes. 15 Q. Have there been any repairs made? 16 A. No. 17 Q. As of today's date, have you reported the condition 18 to â 3-1-1, or any other governmental agencies? 19 A. No, I have not. 20 Q. At the accident location, can you tell me what the 21 closest address was for any buildings nearest to. where 22 you were when you had the accident? 23 can' A. No, I can't. 24 Q. Can you give me any landmarks, fixed objects or 25 otherwise that were right near the accident location?

43 42 1 A. Yes, I can. 2 Q. What are those landmarks? hole' 3 A. Landmarks, meanings areas that were near the hole? 4 Q. What was nearby? 5 A. A store.. 6 Q. How close were you from the store? What is the name 7 and address of the store? 8 A. I don't know the name of the store. I do know it 9 happened to be at least ten feet away from the accident. 10 Q. In front or you or behind you? 11 A. In front of me. 12 Q. I am going to ask that you not lose or destroy or 13 use the subject scooter, please. Preserve it in its 14 current state. What color was it? 15 A. It was pink. 16 Q. Was this a child's scooter? 17 A. Ÿes, it was. 18 Q. Do you know what age it was meant to be used by or a 19 child was to be between the ages of what and what? 20 A. I believe from eight to ten years old. 21 Q. Was it a small scooter for children of that age? 22 A. Yes, it was. 23 Q. Can you describe the size of the wheel in the front? 24 A. It was about the size of -- the size of a cup. 25 MS. BILLIG: Please mark this.

44 43 1 (Whereupon, a photograph was marked 2 as City's Exhibit A for, identification 3 as of this date.) 4 Q. I am showing you what has been marked City's A. 5 Please answer yes or no to the following questions. 6 Does this photograph show the location of your accident? 7 A. Yes. 8 Q. Does this photo accurately show what the accident 9 location looked like at the time of the accident? 10 A. Yes, it does. 11 Q. At the time of the accident, which direction were 12 you coming from prior to the accident; were you coming 13 from the top going down or the bottom going up? 14 A. From the top going down. 15 Q. Top of the photo going down? 16 A. From the bottom going to the top. 17 Q. Do you know what street that is shown where the 18 white car is? 19 A. I believe that is between Belmont. 20 Q. The street shown from the bottom to the top is 21 Essex, and the one going from left to right across is 22 Belmont? 23 A. Yes. 24 Q. Can you mark on the photograph, put an X marking the 25 location where the scooter's front wheel came to a stop?

45 44 1 A. Around this area (indicating). 2 MS. BILLIG: Claimant marked with an 3 X. 4 Q. Can you tell me who took the photograph? 5 A. I don't know. 6 Q. When was it taken? 7 A. I don't know. 8 Q. Does this photo accurately show what the size of the 9 hole looked like at the time of the accident? 10 A. I do not know. 11 Q. You are not sure if it was the same size? 12 A. I don't know. 13 Q. Are you certain this is the same hole that existed 14 on the accident date? 15 A. Yes. 16 Q. When you say you do not know if it is the same size, 17 in your recollection, can you tell me if it was bigger 18 or smaller or you don't know? 19 A. I do not know (CONTINUED) 25

46 45 1 MS. BILLIG: Thank you. I have no 2 other questions (Time noted:.4:40. p.m.) NATHANIEL TALAVERA Signed and subscribed to 13 before me, this day 14 of, Notary Public

47 46 1 L 0 U R D E S S A N T A N A, 2 the witness herein, having been first duly sworn by 3 a Notary Public of the State of New York, was 4 examined and testified as follows: 5 EXAMINATION BY MS. BILLIG: 6 Q. State your name for the record, please. 7 A. Lourdes Santana. 8 Q. State your address for the record, please. 9 A. 524 Essex Street, Brooklyn, New York Q. My name is Suzanne Billig. I am an attorney. You 11 heard the instructions I gave to your son. Please 12 answer verbally and wait until I am done with the 13 question before you answer. 14 Did you witness your son's accident? 15 A. No, didn't. 16 Q. Are you the mother of Nathaniel Talavera? 17 A. Yes, I am. 18 Q. Have you been to the accident location? 19 A. Yes, I have. 20 Q. When? 21 A. After the accident. 22 Q. On the same day or another date? 23 A. During that week. 24 Q. What day? 25 A. I don't remember.

48 47 1 Q. How many days afterwards? 2 A. About two or three.. 3 Q. Who were you with? 4 A. I was alone. 5 Q. Why did you go there? 6 A. I wanted to see where my son fell. 7 Q. Did he go with you? 8 A. He was in the hospital. 9 Q. Did you know what caused the accident at that time? 10 A. No. 11 Q. You wanted to see where and why he had fallen? 12 A. According to where he told me he fell, I wanted to 13 go see where he fell. 14 Q. Did you take photos? 15 A. Yes. 16 Q. How did you know where to go? 17 A. He told me it was opposite the store on Essex 18 between Belmont. There is only one store on the block. 19 Q. Between Belmont and what other street? 20 A. Sutter. 21 Q. What store was it opposite? 22 A. I don't know how to explain it. 23 Q. What's the address for the store? 24 A. I don't know. 25 Q. What kind of store is it?

49 48 1 A. Bodega. 2 Q. Are there any other bodegas on that street? 3 A. Not on that corner, no. 4 Q. Was the bodega on the corner? 5 A. The bodega was on the corner. 6 Q. Which corner? 7 A. The bodega is on Essex Street and the corner of 8 Belmont. The entrance is like diagonal. 9 Q. Where did your son exactly tell you to go? 10 A. He told me he fell approaching the store on Essex. 11 There is only one store. 12 Q. Did he tell you where he was going at the time? 13 A. No. 14 Q. Did he tell you he was on a scooter? 15 A. When he fell, yes. 16 Q. Whose scooter was it? 17 A. My daughter Nicole's. 18 Q. Are you aware of any witnesses to the accident? 19 A. Did I have any witnesses? 20. Q. Are you aware of the names of any witnesses to the 21 accident? 22 A. Yes. 23 Q. Who witnessed the accident? 24 A. He said my son Jesus was with them and his friend 25 Justin.

50 49 1 Q. Did you speak to Jesus about the accident? 2 A. No. 3 Q. He is your son, correct? 4 A. Yes. 5 Q. Did you speak to Justin about it? 6 A. No. 7 Q. What is your date of birth? 8 A. December 21, Q. What is your Social Security number? 10 MR. SHAW: Last four on the record. 11 A. XXX-XX Q. Do you know your son's Social Security number, 13 Nathaniel Talavera's? 14 A. By heart, I am not too sure. 15 Q. Do you have it with you? 16 A. No, I don't. 17 Q. Will you provide it? 18 A. Sure. 19 Q. Please provide that to the City of New York. We 20 will leave a space in the transcript. 21 (INSERT) 22 Q. Are you employed? 23 A. Yes. 24 Q. Who are you employed by? 25 A. NYPD Traffic Enforcement.

51 I 50 1 Q. What is your job title? 2 A. I am a supervisor, a traffic supervisor. 3 Q. How long have you been employed by the City of New 4 York? 5 A. Nine years and three-quarters. 6 Q. Have you ever filed another claim against the City 7 of New York or any City agencies? 8 A. No. 9 Q. Did you miss any time from your job because of your 10 son's injury? 11 A. I believe about three occasions. 12 Q. Were you paid on those three occasions. 13 A. I had sick time, yes. 14 Q. Where were you born? 15 A. New York, New York. 16 Q. Did you take your son to any doctor appointments? 17 A. I took him to all the appointments. 18 Q. Did you take him to the first doctor appointment 19 following the accident? 20 A. Yes. 21 Q. What areas of his body did he injure in the 22 accident? 23 A. His ankle. 24 Q. Which one? 25 A. His right ankle.

52 51 1 Q. Were you in the room when your son testified? 2 A. Yes, I was. 3 Q. Did your son give an accurate statement and answers 4 to questions concerning the doctor he treated with, the 5 timeframe and the treatment he received? 6 A. I would say 95 percent. 7 Q. Was there anything he said that was not accurate? 8 A. I believe so. He doesn't know about it. 9 Q. Who is Dr. Rita that he went to? 10 A. It was his pediatrician for this last 12 1/2 years. 11 Q. What is the last name? 12 A. Khanijou, K-H-A-N-I-J-O-U. 13 Q. Where is her office located? 14 A Fulton Street. 15 Q. Brooklyn? 16 A. Brooklyn, New York. I think it's is the 17 zip code. 18 Q. Did your son also treat at Brookdale? 19 A. Yes. 20 Q. Do you know the name of his surgeon? 21 A. I don't. It's in the paperwork. 22 Q. Do you know the names of any doctors he treated 23 with? 24 A. I believe one of the them was Dr. Khan. 25 Q. Spell it?

53 I I 52 1 A. K-H-A-N. 2 Q. Can you tell me why your son hasn't had physical 3~ 3 therapy today? 4 A. Because the last appointment we had in December, 5 they told me on that appointment, You can go upstairs 6 and schedule him for his first physical therapy 7 appointment. 8 Q. Why has he not had physical therapy? 9 A. The date hasn't been up yet. That is one of the 10 questions that I think he didn't answer because he 11 didn't know. 12 Q. Did your son have surgery? 13 A. Yes. 14 Q. Where? 15 A. In Brookdale, on his right ankle. 16 Q. He mentioned he had a plate and seven screws. Is 17 that correct? 18 A. Yes. 19 Q. What is the date of the surgery? 20 A. He fell on Sunday. Give me one second. 21 MR. SHAW: Ihink to yourself. 22 A. His surgery was Tuesday evening. I believe it was 23 the 22nd, September 22nd. 24 Q. Is there any other treatment your son has had other 25 than what he nas mentioned?

54 53 1 A. No. 2 Q. Does your son have any future appointments scheduled 3 with any physicians? 4 A. Yes. 5 Q. With whom? 6 A. Physical therapy is supposed to start tomorrow, I 7 believe, 3:00. 8 Q. Where? 9 A. At the Brookdale Hospital. First therapy session. 10 They don't give the names of the doctor until you get 11 there. 12 Q. Has your son had follow-up with the surgeon? 13 A. He has follow-up with the orthopedic surgeon. 14 Q. When was the last time he had an x-ray done of the 15 right ankle? 16 A. Before Christmas, the last week. 17 Q. Was he told the fracture healed? 18 A. They said he was coming along. 19 Q. Was the last time your son had any doctor 20 appointment before Christmas? 21 A. Before that, we were having an appointment every 22 four weeks. 23 Q. Is there any additional treatment you plan on 24 having? 25 A. That's pretty much it.

55 54 1 Q. Again, I asked is the last treatment you had 2 December? 3 A. That my son went to a doctor was Tuesday last week. 4 Q. Before that, the last visit was December? 5 A. Yes. 6 Q. Was there any other adult who had taken your son to 7 doctor appointments or just you? 8 A. Just me. 9 Q. How much time did your son miss from school, not 10 counting break and vacation? 11 A. I would say three months and two days. 12 Q. Is your son covered under Medicaid? 13 A. No. 14 Q. He said yes. Is that incorrect? 15 A. That's incorrect because he didn't know. 16 Q. What insurance does he have? 17 A. Emblem Health from the City. 18 Q. Is that who paid for the medical bills? 19 A. Yes, most of them. 20 Q. Is there any other insurance who has paid for the 21 medical bills other than Emblem Health? 22 A. No. That's it. 23 Q. Does your son make any current complaints concerning 24 his leg? 25 A. Sometimes, about, I would say, twice a week.

56 55 1 Q. Is he back to resuming sports and other activities? 2 A. No, he has not. 3 Q. Is there a scar from the surgery? 4 A. Yes. 5 Q. Can you describe what it looks like? 6 A. It's about eight inches long. Looks like a 7 centipede. It's a horrible scar. 8 Q. Will you show that to me before you leave? 9 A. If he lets me, sure. 10 MR. SHAW: Do you want to look at it? 11 MS. BILLIG: Yes. 12 THE WITNESS: Sure. 13 Q. Do you have photos of it? 14 A. I will have to pull my phone out, yes. 15 Q. I want to look at the scar itself. 16 A. Sure. 17 Q. Have you been to any plastic surgeons to have him 18 correct the scar? 19 A. No. 20 Q. Have you paid for any medical bills out of your own 21 pocket? 22 A. Not yet. I have copayment I haven't been to pay 23 yet. 24 Q. How much do you owe? 25 A. I would say $100, $150.

57 f 56 1 Q. Is there any other out-of-pocket loss or expense you 2 claim was a result of the accident? 3 A. Other than gas and stuff like that. 4 Q. Do you have photos that show the scooter? 5 A. No. 6 Q. Did the scooter break? 7 A. I don't think so. 8 Q. I am going to ask the same thing I asked your son. 9 Please do not alter, use or destroy that scooter. It is 10 to be held and maintained in its current condition, 11 okay? 12 A. Yes. 13 Q. Has your son used the scooter since the accident? 14 A. No. 15 MS. BILLIG: Thank you. I have no 16 other questions. 17 (Time noted: 5:04 p.m.) LOURDES SANTANA 21 Signed and subscribed to 22 before me, this day 23 of, Notary Public

58 57 1 C E R T I F I C A T E 2 I, CHRISTINE SOCCI, a shorthand reporter and 3 Notary Public within and for the State of New York, do 4 hereby certify: 5 That the witness(es) whose testimony is 6 hereinbefore set forth was duly sworn by me, and the 7 foregoing transcript is a true record of the testimony 8 given by such witness(es). 9 I further certify that I am not related to any 10 of the parties to this action by blood or marriage, and 11 that I am in no way interested in the outcome of this 12 matter CHRISTINE SOCCI