FILED: NEW YORK COUNTY CLERK 09/17/2018 INDEX NO / :15 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 09/17/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - CIVIL TERM - PART: X YOUSSOUF DEMBELE a/k/a MALAHA SALIK, -against- Plaintiff, ACTION CARTING ENVIRGÑiviEÑTAL SERVICES., INC., BCRE GRAND STREET OWNER LLC., BCRE GRAND HOTEL LLC, BCRE GRAND RESTAURANT LLC, BCRE SEP GRAND CAFE LLC, DHG NEW YORK HOTEL MANAGEMENT COMPANY LLC, DENIHAN OWNERSHIP COMPANY LLC, PART23 and JAMES HOTEL MANAGEMENT COMPANY L LC ms sees count-n, Defendants X Index No Centre Street New York, New York May 24, 2018 B E F O R E: HONORABLE W. FRANC PERRY, Justice A P P E A R A N C E S ANNE LABARBERA, ESQ. Of Counsel to Edelman, Krasin & Jaye Attorneys for the Plaintiff 43 W. 43rd Street, Suite 10 New York, New York KOWALSKI & DEVITO Attorneys for the Defendant Action Carting 80 Pine Street, Suite 300 New York, New York BY: BARRY N. GREENBERG, ESQ. 1 of 8 (Continued)

2 A P P E A R A N C E S: (Continued) 6 7 STRONGIN, ROTHMAN & ABRAMS LLP Attorneys for the BCRE Defendants 8 80 Pine Street, 10th Floor New York, New York BY: ALEXANDER N. BLAKE, ESQ. 10 EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for the Defendant water Street New York, New York BY: GREGORY WALTHALL, ESQ A. official Court Reporter Official Court Reporter 2 of 8

3 FILED: NEW YORK COUNTY CLERK 09/17/2018 INDEX NO / :15 P 2 THE COURT: Good morning. 3 MR. GREENBERG: Good morning. 4 MS. LABARBERA: Good morning. 5 MR. WALTHALL: Good morning. 6 MR. BLAKE: Good morning. 7 THE COURT: Why are we here? I've read the 8 papers. That'S a rhetorical question, of course. It's 9 a motion to compel response to post-ebt demands, and 10 Action Carting says that that does not relate to it. 11 I'm looking at Exhibit C in their Opposition, and {ck} 12 Denihan, DHC and James Hotel says they complied, looking 13 at Exhibit A to their opposition. So what's going on, 14 Counsel? 15 MS. LABARBERA: My understanding is that they 16 have not prõdüced a witness for an EBT regarding the 17 surveillance, and there has been a party admission that 18 there was surveillance. 19 THE COURT: But to whom? I mean, is Action 20 Caring as part of this? It doesn't seem to be. 21 MR. GREENBERG: No, your Honor. I represent 22 Action Carting. Your Honor, we only provided the 23 dumpster. We had nothing to do with the video 24 surveillance at the premises. There's only one 25 defendant, I believe, who is at issue here. 26 MS. LABARBERA: Yes. Denihan is the defendant - Official Court Reporter 3 of 8

4 FILED: NEW YORK COUNTY CLERK 09/17/2018 INDEX NO / :15 P 1 ProceedingS 2 that should be able to produce the witness, in my 3 opinion. 4 MR. WALTHALL: Your Honor, respectfully, if I 5 might, I keep all my notes on my phone, and I -- 6 THE COURT: Okay. And who do you represent, 7 counsel? 8 MR. WALTHALL: I represent the Denihans. 9 There's a couple of us. 10 THE COURT: Okay. 11 MR. WALTHALL: It's my understanding, and I 12 think, from the papers that I read, not only did we 13 produce -- we produced a witness. We have had the 14 witness testify that we don't keep the video past a 15 certain date. This.wasn't a case where we were, you 16 know, notified conteir.perañégusly of the event of this 17 accident, and a couple of years later -- we keep the I think we keep the video for about 30 or 60 days, and 19 there's just -- we don't.have it. I don't think there's 20 anything more to say other than we don't have it. 21 MR. BLAKE: Judge, just on behalf of BCRE, and 22 I can speak, somewhat, on. behalf of Denihan as Well, 23 they did manage the surveillance system. It was regular 24 business practice to tape over the tapes after two 25 months. They only received the lawsuit years after the 26 incident hap;:r.cd, so of course the surveillance videos official Court Reporter 4 of 8

5 2 have been taped over. we provided an affidavit saying 3 BCRE doesn't retain any surveillance, we hired Denihan. 4 Denihan provided an affidavit saying what I just told 5 you, and that's kind of the long and short of it. You 6 can't get blood from a stone, and here we are. 7 - MS. LABARBERA: Your Honor, given the fact 8 that this was an affidavit and not at a deposition, we 9 were in the position we weren't able to cross examine 10 anyone, or to ask questions, and the question that, I 11 think, is relevant, is why, when there was an incident, 12 was the surveillance tape disposed of? I understand the 13 routine practice of disposing of surveillance tapes, but 14 there had been an incident, and we need to depcse the 15 witness as to why they were unaware. Was there an 16 ambulance called? Did someone come into the hotel and 17 make them aware that there has been an incident? Those 18 kind of matters need to be handled in an EBT, in my 19 opinion. 20 THE COURT: Well, this accident happened in , in August. How long do you keep -- just refresh 22 my recollection. 23 MR. WALTHALL: 30 to 60 days. I can look up 24 the affidavit. 25 MR. BLAKE: Yes, it's 60 days, your Honor. 26 MS. LABARBERA: Which seems reasonable, your - Official Court Reporter 5 of 8

6 2 Homer, if there's no incident, to routinely dispose of 3 the surveillance video, but what we would need out of an 4 EBT is to ask the question of someone who is 5 knowledgeable about the procedures and responsible as to 6 why, given that there was an incident, that the tape was 7 disposed of. Maybe the answer is they were not made 8 aware of the incident, but we would like to depose them 9 as to that. 10 MR. GREENBERG: Your Honor MR. WALTHALL: Your Honor, we did produce a 12 witness for a deposition. 13 THE COURT: That's where I'm just a little 14 confused. A witness was produced, and this motion is 15 reqüésting post-ebt discovery. why was that question 16 not asked of the witness that was preduced on behalf of 17 the client? 18 MS. LABAREERA: My understanding was that the 19 witness that was produced didn't have knowledge of the 20 surveillance. Am I incorrect on that? 21 THE COURT: Was there a question asked or 22 posed regarding surveillance, and how long, and if the 23 person knew how long the surveillance tapes are kept in 24 the course of business? 25 MR. WALTHALL: I don't remember. I'm sorry 26 your Honor. I guess that would be posed to the -- 6 of 8 CaseY - Official Court Reporter 6

7 2 THE COURT: Because if the accident happened 3 in August, and it's 60 days later, the tapes were 4 disposed of in the regular course of business. we don't 5 even know if the person who was there in 2012 is still 6 under the control of the defendant, so I'm just trying 7 to figure out a solution to this, as opposed to just 8 dismissing the motion. 9 MR. BLAKE: Judge, I would just like to 10 highlight, there was questions posed about surveillance 11 activities at the hotel, and if you can take a look at 12 BCRE's opposition Exhibit A, that's the snippets of the 13 deposition transcript. 14 THE COURT: That's what I referenced, your 15 Exhibit A, in my recitation of my review of the case. 16 MS. LABARBERA: If the person with knowledge 17 of the surveillance no longer works for Denihan, if they 18 can provide a last known address to the person, or THE COURT: But Counsel, I'm sorry to Cut you 20 off. However, if a party produces a witness and 21 questions are asked of that witness regarding the 22 substance of the motion, what more do you want from 23 them? You know, the attorney at the time, who was 24 deposing the witness, should have reserved their right 25 and said, Listen, you don't know anything about 26 surveillance? Please send me ss;iicùñé who knows 7 7 of 8 - Official Court Reporter

8 2 something about surveillance. But you can't -- this is C , and the accident ht;;:r.:d in If, in the 4 regular course of business, they destroy their tapes in 5 60 days, and they produced a witness, and the witness 6 was asked about surveillance, and the witness provided 7 an answer, how can we, in good conscience, six years 8 later, want them to be put on the hook for something 9 that could have been resolved earlier? I'm just asking. 10 MS. LABARBERA: I understand, your Honor. 11 THE COURT: We are going to deny your notion. 12 MS. LABARBERA: Okay. Thank you, your Honor. 13 THE COURT: For the reasons stated on the 14 recorded today. 15 * * * * * * 16 Certified to be a true and accurate 17 transcription of the above-entitled matter A. Senior Court Reporter official court Reporter 8 of 8

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