FILED: NEW YORK COUNTY CLERK 01/10/ :51 PM INDEX NO /2015 NYSCEF DOC. NO. 262 RECEIVED NYSCEF: 01/10/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: X â - â â - â â â â â â â â â â â â HERBERT MOSKOWITZ D/B/A MANHATTAN REALTY COMPANY, Plaintiff, Index No /15 -against- NOTICE MOTION OF TORY BURCH LLC. SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIROMENTAL SURVEYING & LANDSCAPING ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants X MOTION BY: Plaintiff TIME, RETURN DATE, AND PLACE: 9:30 A.M. February 8, 2018 Motion Part Room 130 Supreme Court New York County 60 Centre Street New York, NY RELIEF REQUESTED: 1. An order compelling discovery; 2. What other relief this Court deems proper. SUPPORTING PAPERS: Affidavit of Carl T. Peluso sworn to on January 10, 2018, with Exhibits attached thereto. OPPOSITION PAPERS: Opposition papers, if any, are to be served at least seven (7) days prior to the return date pursuant to CPLR 2214(b). 1 of 56

2 DATED: January 10, FROM: darl T. Peluso Peluso & Touger, LLP, Attorneys for Plaintiff 70 Lafayette Street New York, NY (212) TO: Wasserman, Gruber & Rogers LLC. Attorneys for Tory Burch LLC 1700 Broadway New York, New York (212) Bois Schiller & Flexner LLC Attorneys for Tory Burch LLC 575 Lexington Avenue New York, New York (212) Lewis Brisbois, Bisgaard & Smith LLP Attorneys for Langan Engineering Environmental Surveying And Landscaping Architecture PPC 77 Water Street, Suite 2100 New York, New York Carroll McNulty & Kull LLC Attorneys for Thornton Tomasetti, Inc. 570 Lexington Avenue, 8th FlOOr New York, New York Fabiani Cohen & Hall LLP Attorneys for Skanska USA Building Inc. 4"' 570 Lexington Avenue, Floor New York, New York of 56

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: X â â â â â â â â â â â â â â â â â â â HERBERT MOSKOWITZ D/B/A MANHATTAN REALTY COMPANY, -against- Plaintiff, INDEX NO /2015 AFFIDAVIT SUPPORT IN TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPING ARCHITECTURE PPC., NEW YORK DEPARTMENT OF BUILDINGS, Defendants X â â â â X Carl T. Peluso being duly sworn, deposes and says: Preliminary Statement 1. I am a member of the firm of Peluso & Touger LLP, attorneys for the plaintiff and I am fully and personally familiar with the facts and circumstances stated herein. I submit this affidavit in support of the plaintiff's motion to compel discovery. The Parties 2. The plaintiff is an individual who owns the lot and building at 153 Mercer Street, New York, New York. The plaintiff or the plaintiff's family has owned the building for over 50 years. (" 3. The defendant, Tory Burch LLC, ("Tory Burch") is a limited liability company, which holds the ground lease for the lot at 151 Mercer Street, New York, New York. Tory Burch desires to build a four (4) story building on that lot and has commenced excavation work and work on the foundation. 3 of 56

4 4. The defendant, Skanska USA Building Inc. ("Skanska"), is a corporation and the general contractor in charge of excavation, foundation, and construction at 151 Mercer Street, New York, New York. (" Thornton" 5. The defendant, Thornton Tomasetti Inc. ("Thornton"), is an engineering and architectural firm, which designed the building Tory Burch intends to build and has supervised and continues to supervise construction including the foundational work. 6. The defendant, Langan Engineering Environmental Surveying & Landscaping Architecture PPC ("Langan"), is a geotechnical engineering firm hired by Tory Burch to advise and consult regarding ground and subsurface condition, excavation and foundation construction. Further, Langan was hired to monitor the excavation site a 151 Mercer Street, as well as monitor the adjacent buildings. Procedural History 7. The defendants damaged the plaintiff's building, which is directly adjacent to the defendant's construction site. The plaintiff caused a summons and complaint to be served upon the defendants. The above-mentioned defendants interposed answers to the complaint. 8. The plaintiff made a motion for summary judgment. While that motion was pending discovery was stayed. The summary judgment motion was denied. The appeal to the Appellate Division has been perfected as the decision was incorrect on multiple levels. When faced with the same issue, and an almost identical condition report prepared by the same engineering company as the one employed by the defendants, Justice Edmead correctly granted summary judgment. Coincidentally the same engineer, James Feuerborn, wrote the report relied upon in Justice Edmead's case. That same 4 of 56

5 report was determined inadmissible evidence on a motion for summary judgment in our case. 9. After there was a determination of the summary judgment motion the Court held a status conference on August 3, It resulted in an order of the Court attempting to get discovery back on track. See Court Order attached hereto as Exhibit A. The order provides that depositions are to take place by November 30, 2017, and documents produced by September 29, In an effort to move discovery forward, plaintiff noticed the depositions of the defendants by various individuals. See deposition notices attached hereto as Exhibit B. The depositions were noticed for various dates in September The plaintiff also served a request for documents upon the defendant Tory Burch. See document request attached hereto as Exhibit C. Pursuant to the notice the documents were supposed to be produced by September 29, The Discovery Requested Should Be Compelled 12. No documents have been produced by Tory Burch and no depositions have been taken of any of the defendants. None of the defendants objected to producing the individuals noticed in the deposition notices. Pursuant to CPLR 3106(d), the defendants had ten (10) days to object to the individual so designated. CPLR 3106(d) states: A party desiring to take the deposition of a particular officer, director, member or employee of a person shall indicate in the notice or subpoena served upon such person the identity, description or title of such individual. Such person shall produce the individual so designated unless they shall have no later than ten days prior to the scheduled deposition, notified the requesting party that another individual would instead be produced and the identity, description or title of such individual is specified. If timely notification has been so given, such other individual 5 of 56

6 shall instead be produced. 13. As none of the defendants objected and no other individual was designated, the defendants cannot now challenge whom the plaintiff wants to depose. 14. The defendants have priority to take the deposition of the plaintiff first. We agree and have been ready to be deposed. All the defendants have to do is say when and where and the plaintiff will gladly be deposed. Unfortunately, the defendants have refused to schedule the deposition of the plaintiff so we need the Court's intervention to set a firm date for the plaintiff's deposition. They have also used this as an excuse not to produce the witnesses designated by the plaintiff to be produced. 15. On December 14, 2017, another conference was held before the Court. At that conference the defendant's asserted incorrectly that they could designate whomever they decided to produce contrary to the explicit provisions of the CPLR. 16. At the conference the defendants also asserted that they did not have to produce more that one witness, even though the plaintiff had noticed two (2) different individuals from a number of defendants. The law is clear. The CPLR provides for full disclosure of all evidence material and necessary in the prosecution or defense of an action. See CPLR 3101(a). The Court of Appeals has held the words "material and necessary" are "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist in preparation for trial by sharpening the issues". Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968). There is no limit per se on the number of depositions a party may conduct. The defendants' position that plaintiff is limited to only one individual per defendant as a matter of law is absurd nonsense. The defendants are four large corporations, all of whom had multiple 6 of 56

7 employees working on the construction project. Some employees are engineers, others architects, others construction managers, others involved in the administrative and planning aspects of the project. These various employees had different responsibilities with respect to the project and therefore all are knowledgeable of different material and necessary facts. Plaintiff seeks to depose two individuals each from Skanska, Thornton, and Langan, and one from Tory Burch, which is hardly unreasonable or overly burdensome and certainly is not prohibited by law as the defendants maintain. The defendants do not have any reasonable argument as to why the Court should not order these depositions. Once again the defendants' actions are causing unnecessary motion practice. 17. In Gramling v. Chelsea Piers LP., 2016 N.Y. Lexis 2534 (Sup. Ct. N.Y. Co. 2016), there were multiple fact witnesses to the incident, just as the case here. The Court ordered the defendant to produce two of the fact witnesses and to provide the last known address of a third fact witness who was no longer employed by that defendant. See id. In the instant action we have multiple fact witnesses from most of the defendants and there is no reason to deny the plaintiff the right to depose them. CPLR 3101 requires the discovery of all that is material and necessary for the prosecution or defense of an action. The defendants cannot deny that the various individuals noticed hold different positions and played different roles in the construction project. All are material and necessary in the prosecution of this action. See Alexopolous v. Metropolitan Transp.. Auth., 37 A.D.3d 232, 233 (1st Dep't. 2007) (reversing lower court's denial of plaintiff's motion to depose two additional employees regarding issues central to the prosecution of plaintiff s case). 7 of 56

8 18. This is a complex matter involving four large corporations. Each employee plaintiff has designated for a deposition possesses particular knowledge of a certain aspect of the construction project. 19. The individuals noticed from Skanska are John Orsino and Stephen Fried. Both are employed by Skanska and are witnesses to very different sets of facts. John Orsino was the daily on-site field superintendent of construction according to Thornton. Orsino has direct knowledge of the test pits dug in October 2104 and January 2015 and the excavation. He also has knowledge of the April 2015 foundation and wall repair. Crucially he has knowledge of the pile drilling at least from the start of the project until the New York City Department of Buildings ("DOB") issuance of a stop work order (SWO) in June Stephen Fried was the project manager responsible for coordination and can testify to Skanska's efforts after the SWO was imposed. He can also testify regarding the remedial efforts Skanska proposed to avoid causing additional damage to the plaintiff's building. Both sets of facts are necessary for the plaintiff's case. 21. The individuals noticed from Thornton are James Feuerborn and Patrick Kenny. Both are called to testify concerning facts particular to their respective expertise and involvement in this complex matter. Mr. Feuerborn prepared an analysis and the condition reports asserting that the plaintiff had sustained damage as a result of the defendants' construction project. Mr. Feuerborn became involved after the damage to the plaintiff's building occurred. He attended meetings at the DOB as part of the construction team's efforts to move construction forward. Specifically, he affirmed that 8 of 56

9 plaintiff was damaged by the excavation and foundation construction work performed by the defendants. 22. Patrick Kenny was the senior engineer on this project and an original technical team member on the actual construction. He was specifically designated to answer technical questions of the plaintiff regarding the excavation and foundation by a Tory Burch employee. Mr. Kenny was involved in surveying the test pits and foundation wall, and in writing multiple field reports and proposing repairs to the plaintiff exposed south foundation wall. Mr. Kenny also inspected the damage to the plaintiff's building in June of 2015 and was in communication with the DOB regarding the damage and excavation and foundation work. Both men will testify to different facts and both witnesses are material and necessary to plaintiff's case. 23. For defendant Langan, the plaintiff noticed Andrew Ciancia and Arthur Alzamora. Andrew Ciancia is a managing principal of Langan. He is the individual who determined that the strict requirements regarding protecting Landmarked buildings, such as the plaintiff's building did not need to be observed or complied with during this construction project. He is the individual who prepared and successfully filed an application with the DOB seeking to have these monitoring requirements waived. He was the second author of the first geotechnical report provided to the plaintiff but the sole author of the geotechnical soil report filed with the DOB. Mr. Ciancia was the applicant of record on the required form for pile inspection as the special inspector he was positioned and had a duty to report on and shut down the project when there were variances from DOB requirements. Mr. Ciancia also wrote to the DOB regarding lifting the SWO based on Thornton's and Skanska's representations. 9 of 56

10 24. Arthur Alzamora a Senior Project Manager of Langan. He is the individual who handled the day to day coordination of preconstruction survey, vibration, and settlement monitoring of the plaintiff's building to detect movement and vibration in excess of the DOB standards and is best equipped to discuss the movement of plaintiff's building, which occurred as a result of the construction project. He sent belated reports instead of timely reports regarding movement and vibration affecting the plaintiff's building. Why these reports were sent late only he can answer. He was the on site representative of Langan. He was referred to by Tory Burch as able to answer the plaintiff's questions regarding the geotechnical aspects of the project. He had multiple direct contacts with the DOB regarding this project. Both Ciancia and Alzamora played different roles with regard to the monitoring of plaintiff's buildings and both men possess information necessary for plaintiff to prosecute this action. 25. As outlined above, each individual plaintiff is seeking to depose played a different role with regard to the construction project and therefore the testimony will not be duplicative. The only certain thing is that they are all fact witnesses. Their respective responsibilities in connection with the project differ from one another and each individual possesses information and facts material and necessary to plaintiff's case. Defendants cannot credibly assert that all of the above individuals performed the same responsibilities and/or are knowledgeable with regard to the exact same set of facts. Accordingly, plaintiff should be allowed to depose more than one individual per defendant. See Gomez v. State of Ne_w York, 106 A.D.3d 870 (2d. Dep't 2013). 26. One of the defendants' excuses is that they are entitled to take the deposition of the plaintiff before any deposition of the defendants. The defendants are 10 of 56

11 entitled to take the plaintiff's deposition first, that is true, but they refuse to do so. I have notified the defendants that plaintiff is ready to be deposed but not one defendant has attempted to schedule this deposition. Further, defendant Skanska served a notice to depose plaintiff on November 5, 2015, and yet still refuses to reschedule the deposition. The plaintiff was ready to take the depositions of the defendants as noticed starting in September s showing the above are attached hereto as Exhibit D. This was over two years ago. The defendants are using this excuse to delay their depositions. 27. The plaintiff proposes the Court order the following discovery schedule: a) Tory Burch shall respond to the plaintiff document request on or before February 28, 2018; b) The plaintiff's deposition shall take place on or before February 28, 2018, and if the defendants fail to take the deposition by that date it shall be waived; c) The deposition of Tory Burch by Renne Viola shall take place on or before March 15, 2018; d) The deposition of Skanska by John Orsino shall take place on or before March 27, e) The deposition of Skanska by Stephen Fried shall take place on or before April 5, 2018; f) The deposition of Thornton by James Feuerborn shall take place on or before April 17, 2018; g) The deposition of Thornton by Patrick Kenny shall take place on or before May 1,2018; 11 of 56

12 h) The deposition of Langan by Andrew Ciancia shall take place on or before May 10, 2018; i) The deposition of Langan by Arthur Alzamora shall take place on or before May 17, The plaintiff has attempted to resolve this discovery dispute in good faith at the Court conferences but there has been no resolution. Conclusion 28. By reason of the above, the plaintiff's motion to compel discovery should be granted, with what other relief the Court deems just and proper. Sworn to before me this 10th day of January 2018 Carl T. Peluso ublic DAVID TOUGER Notary Public, State of New York No Oualified in Kings County Cotnmission Expires September 28, of 56

13 C ~. I P.r ~ Exxugg)~ IT A 13 of 56

14 t FILED: NEW YORK INDEX COUNTY CLERK NO / /04/ :55 AM NYSCEF DOC. NO. 258 RECEIVED NYSCEF: 08/04/2017 SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK O INDEXNO. / /5 Plafnt<ff(s) -against- IASPART - XC Defendant(s). COMPLIANCE ORDER CONFERENCE On I~,, a conference was held in this case. The parties appeared as follows: Plaintiff(s): +'S +os.t ) by fc^ by by Defendant(s): /24 by ANt + tr+ by s 4J. ' by Q((~h (( i Pa(t( â k L M The Court has considered the status of this case and deter ined that the Court's case management order of E-M, 20 ~ has not been complied with in thatl Ê/E auer..t rî an to lt J ' ' Accordingly, it is ORDERED that stdeves a4 a A- /i5 ~f li 4.30 QQ "w~]g- 1&1 l~ el ~Q Dated: ENTER: "'8" HON. ROBERT R. REED J.S.C. 1 of 1 14 of 56

15 ~' w J.'i C f EXHIBIT KXNBIT B I 15 of 56

16 PELUSO &TOUGER, LLP ATTORNEYS AT LAW 70 LAFAYETTE STREET NEW YORK, NEWYORK TELEPHONE: (212) FACSIMILE: (212) July 25, 2017 Marc Ayala Boies Schiller & Flexner LLP Attorneys for Tory Burch 333 Main Street Armonk, New York I Re: Herbert Moskowitz v. Tory Burch, et al. Index No /2015 Dear Counselors: Please be advised that in light of the court's decision on our summary judgment motion we should resume discovery and commence with depositions. Enclosed please find our Notices of Deposition -Upon Oral Examination. Thank you. Sincerely, C T. Peluso cc: Andrew K. Lipetz Wasserman Grubin & Rogers LLP Attorneys for Tory Burch 42nd 1700 Broadway Pl OOr New York, New York Benjamin Shatzky Fabiani Cohen & Hall LLP Attorneys for Skanska USA Building Lexington Avenue 4 Floor New York, New York Joseph P. McNulty Kennedys'CML LLP 16 of 56

17 Attorneys for Thornton Tomasetti Lexington Avenue, 8 Floor New York, New York Kenneth D. O'Reilly Lewis Brisbois Bisgaard Smith Attorneys for Langan Engineering 77 Water Street, Suite 2100 New York, New York ~ r r rr â ~ ~ ~ ~ r r o ~. ~~.. 9 ~ ~ '~ 17 of 56

18 PELUSO&TOUGER, LLP ATTORNEYS AT LAW 70 LAFAYETTESTREET NEWYORK, NEWYORK TELEPHONE: (212) FACSIMILE: (212) July 25, 2017 Benjamin Shatzky Fabiani Cohen & Hall LLP Attorneys for Skanska USA Building 4* 570 Lexington Avenue 4 Floor New York, New York Re: Herbert Moskowitz v. Tory Burch, et al. Index No /2015 Dear Counselors: Please be advised that in light of the court's decision on our summary judgment motion we should resume discovery and commence with depositions. Enclosed please find our Notices of Deposition Upon Öral Examination. Thank you. Sincerely, Carl T. Peluso cc: Andrew K. Lipetz Wasserman Grábin & Rogers LLP Attorneys for Tory Burch 42 d 1700 Broadway Floor New York, New York Marc Ayala Boies Schiller & Flexner LLP Attorneys for Tory Burch 333 Main Street Armonk, New York Joseph P. McNulty Kennedys CML LLP 18 of 56

19 Attorneys for Thornton Tomasetti Lexington Avenue, 8 Floor New York, New York Kenneth D. O'Reilly Lewis Brisbois Bisgaard Smith Attorneys for Langan Engineering 77 Water Street, Suite 2100 New York, New York of 56

20 PELUSO & TOUGER, LLP ATTORNEYS AT LAW 70 LAFAYETTE STREET NEW YORK,.NEW YORK TELEPHONE: (212) FACSIMILE: (212) July 25, 2017 Kenneth D. O'Reilly Lewis Brisbois Bisgaard Smith Attorneys for Langan Engineering 77 Water Street, Suite 2100 New York, New York Re: Herbert Moskowitz v. Tory Burch, et al. Index No /2015 Dear Counselors: Please be advised that in light of the court's decision on our summary judgment motion we should resume discovery and commence with depositions. Enclosed please find our Notices of Deposition Upon Oral Examination. Thank you. Sincerely,.. C 1 T. eluso cc: Andrew K. Lipetz Wasserman Grubin & Rogers LLP Attorneys for Tory Burch 42nd 1700 Broadway PlOOT New York, New York Marc Ayala Boies Schiller & Flexner LLP Attorneys for Tory Burch 333 Main Street Armonk, New York Joseph P. McNulty Kennedys CML LLP 20 of 56

21 Attorneys for Thornton Tomasetti Lexington Avenue, 8 Floor New York, New York Benjamin Shatzky Fabiani Cohen & Hall LLP Attorneys for Skanska USA Building 4* 570 Lexington Avenue 4 Floor New York, New York of 56

22 PELuso &TOUGER, LLP ATTORNEYS AT LAW 70 LAFAYETTE STREET NEWYORK, NEW YORK TELEPHONE: (212) FACSIMILE: (212) July 25, 2017 Joseph P. McNulty Kennedys CML LLP Attorneys for Thornton Tomasetti Lexington Avenue, 8 Floor New York, New York Re: Herbert Moskowitz v. Tory Burch, et al. Index No /2015 Dear J Vl44 Counselors: &'V%LJVVWLU Please be advised that in light of the court's decision on our summary judgment motion we should resume discovery and commence with depositions. Enclosed please find our Notices of Deposition Upon Oral Examination. Thank you. Sincerely, C T. Peluso c cc: Andrew K. Lipetz Wasserman Grubin & Rogers LLP Attorneys for Tory Burch 42nd 1700 Broadway PlOOr New York, New York Marc Ayala Boies Schiller & Flexner LLP Attorneys for Tory Burch 333 Main Street Armonk, New York Kenneth D. O'Reilly Lewis Brisbois Bisgaard Smith 22 of 56

23 Attorneys for Langan Engineering 77 Water Street, Suite 2100 New York, New York Benjamin Shatzky Fabiani Cohen & Hall LLP Attorneys for Skanska USA Building 4* 570 Lexington Avenue 4 Floor New York, New York of 56

24 PELUSo & TOUGER, LLP ATTORNEYS AT LAW 70 LAFAYETTE STREE T NEW YORK, NEW YORK TELEPHONE: (212) FACSIMILE: (212) July 25, 2017 Andrew K. Lipetz Wasserman Grubin & Rogers LLP Attorneys for Tory Burch 42nd 1700 Broadway Floor New York, New York Re: Herbert Moskowitz v. Tory Burch, et al. Index No /2015 Dear Counselors: Please be advised that in light of the court's decision on our summary judgment motion we should resume discovery and commence with depositions. Enclosed please find our Notices of Deposition Upon Oral Examination. Thank you. Sincerely, Carl T. Peluso cc: Marc Ayala Boies Schiller & Flexner LLP Attorneys for Tory Burch 333 Main Street Armonk, New York Joseph P. McNulty Kennedys CML LLP Attorneys for Thornton Tomasetti Lexington Avenue, 8 Floor New York, New York Kenneth D. O'Reilly Lewis Brisbois Bisgaard Smith 24 of 56

25 Attorneys for Langan Engineering 77 Water Street, Suite 2100 New York, New York Benjamin Shatzky Fabiani Cohen & Hall LLP Attorneys for Skanska USA Building Lexington Avenue 4 Floor New York, New York of 56

26 SUPREME COURT OF.THE STATE OF NEW YORK COUNTY OF NEW YORK X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, -against- NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPlNG ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants..---X X PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of Renee Viola, Vice President of Global Store Design and Planning & Construction and employee of TORY BURCH LLC., a party whose address is c/o Wasserman, Grubin & Rogers LLP, 1700 Broadway, 42nd Floor, New Yoric, New York 10019, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger LLP, 70 Lafayette Street, 2nd Floor, New York, New York 10013, at 10:00 a.m., on the 6* 6 day of September, 2017, or any adjourned date thereof, with respect to all matters material and - necessary to the issues raised in this action. SEE ANNEXED RIDER 26 of 56

27 Dated: July 25, 2017 New York, New York Clirl T. Peluso, Esq. Peluso 4 Touger LLP Attorneys for Plaintiff 70 Lafayette Street - 2nd FlOOr New York, New York (212) (212) (fax) TO: WASSERMAN GRUBIN & ROGERS LLP ATTORNEYS FOR TORY BURCH BROADWAY, 42 FLOOR NEW YORK, NEW YORK (212) BOIES SCI-HLLER 2 FLEXNER LLP ATTORNEYS FOR TORY BURCH 333 MAIN STREET ARMONK, NEW YORK (914) KENNEDYS CMK LLP ATTORNEYS FOR THORNTON TOMASETTI 570 LEXINGTON 8 AVE, 8 FLOOR NEW YORK, NEW YORK (646) LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEXINGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) of 56

28 RIDER TO NOTICE Re: Herbert Moskowitz v. Tory Burch, et al. IndeX No / All documents or communications, including but not limited to correspondence, letters, memoranda, s, and handwritten notes, relating to the construction project at 151 Mercer Street, New York, New York (" the project"), between or among Tory Burch and any of the parties in this action. 2. Copies of all contracts between Tory Burch and the parties to this action concerning the project. 3. Copies of all invoices, bills, receipts, electronic transfers, cancelled checks, from Tory Burch to any of the parties in this action concerning the project. 4. All documents or communications between or among Tory Burch and any architects, engineers, design professionals, contractors and/or subcontractors relating to the project. 5. Copies of all invoices, bills, receipts, electronic transfers, cancelled checks, from Tory Burch to any architects, engineers, design professionals, contractors and/or subcontractors and/or any hired experts related to the project. 6. All documents, including estimates, invoices, and drafts and/or final reports prepared by any third parties hired by Tory Burch regarding the project or any damage at 153 Mercer Street. 7. Any reports, analysis, test results, or other documents or communications related to or concerning the inspection or investigation of the elevator at 153 Mercer Street. 8. All plans, drawings, blueprints, sketches, and/or plans filed with the Department of Buildings concerning the project. 9. All photographs and/or videotapes or any other media or format depicting the project. 10. All documents or communications related to the DOB meeting on August 31, 2015, including but not limited to any documents prepared in anticipation of the meeting, notes taken during the meeting, or documents prepared after the meeting related to the meeting. 11. All documents or communications Tory Burch intends to introduce as evidence or reply upon during this litigation. 12. All documents or communications in the possession of Tory Burch relating to the construction project at 155 Mercer Street. 28 of 56 t

29 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, Plaintiff, '-X INDEX NO /2015 -against- NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPING ARCH[TECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, X Defendants. X PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of John Orsino, Superintendent and employee of SKANSKA USA BUILDING INC., a party whose address is c/o Fabiani Cohen & Hall, LLP, 570 Lexington Avenue, 4* Floor, New York, New York 10022, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger LLP, 70 Lafayette Street, 2nd Floor, New York, New York 10013, at 10:00 a.m., on the 12* 12 day of September, 2017, or any adjourned date thereof, with respect to all matters material and necessary to the issues raised in this action. Dated: July 25, 2017 New York, New York Carl T. Peluso, Esq. Peluso & Touger LLP Attorneys for Plaintiff 29 of 56

30 70 Lafayette Street - 211d Floor New York, New York (212) (212) (fax) TO: FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEXINGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) WASSERMAN GRUBIN & ROGERS LLP ATTORNEYS FOR TORY BURCH 42" 1700 BROADWAY, 42 FLOOR NEW YORK, NEW YORK (212) BOIES SCHILLER & FLEXNER LLP ATTORNEYS FOR TORY BURCH 333 MAIN STREET ARMONK, NEW YORK (914) KENNEDYS CMK LLP ATTORNEYS FOR THORNTON TOMASETTI LEXINGTON AVE, 8 FLOOR NEW YORK, NEW YORK (646) LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) of 56

31 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, -against- NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEY1NG & LANDSCAP1NG ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants X PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of Stephan Freid, Senior Project Manager and employee of SKANSKA USA BUILDING INC., a party whose address is c/o Fabiani Cohen & Hall, LLP, 570 Lexington Avenue, 4* 4 Floor, New York, New York 10022, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger LLP, 70 Lafayette Street, 2nd Floor, New York, New York 10013, at 10:00 a.m., on the 15* 15 day of September, 2017, or any adjourned date thereof, with respect to all matters material and necessary to the issues raised in this action. Dated: July 25, 2017 New York, New York. Carl T. Peluso, Esq. 31 of 56

32 Peluso & Touger LLP Attorneys for Plaintiff 70 Lafayette Street - 2nd FlOOr New York, New York (212) (212) (fax) TO: FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEX1NGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) WASSERMAN GRUBIN & ROGERS LLP ATTORNEYS FOR TORY BURCH 1700 BROADWAY, 42*FLOOR NEW YORK, NEW YORK (212) BOIES SCHILLER & FLEXNER LLP ATTORNEYS FOR TORY BURCH 333 MAIN STREET ARMONK, NEW YORK (914) KENNEDYS CMK LLP ATTORNEYS FOR THORNTON TOMASETTI LEXINGTON AVE, 8 FLOOR NEW YORK, NEW YORK (646) LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) of 56

33 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X â â â â â â - â HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, -against- NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPING ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, X Defendants. PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of Andrew J. Ciancia, P.E., Managing Principal and employee of LANGAN ENGINEER1NG ENVIRONMENTAL SURVEYING & LANDSCAPING ARCEITECTURE PPC., a party whose address is c/o Lewis Brisbois Bisgaard Smith, 77 Water Street, Suite 2100, New York, New York 10005, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger.LLP, 70 Lafayette Street, 2nd Floor, New York, New York 10013, at 10:00 a.m., on the 19* 19 day of September, 2017, or any adjourned date thereof, with respect to all matters material and necessary to the issues raised in this action. Dated: July 25, 2017 New York, New York Carl T. Peluso, Esq. 33 of 56

34 Peluso & Touger LLP Attorneys for Plaintiff 70 Lafayette Street - 2nd FlOOr New York, New York (212) (212) (fax) TO: LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEX1NGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) WASSERMAN GRUB1N & ROGERS LLP ATTORNEYS FOR TORY BURCH BROADWAY, 42 FLOOR NEW YORK, NEW YORK (212) BOIES SCHILLER & FLEXNER LLP ATTORNEYS FOR TORY BURCH 333 MAIN STREET ARMONK, NEW YORK (914) KENNEDYS CMK LLP ATTORNEYS FOR THORNTON TOMASETTI LEXINGTON AVE, 8 FLOOR NEW YORK, NEW YORK (646) LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENG1NEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) of 56

35 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, -against- NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEY1NG LANDSCAPING ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants X â â â â â â â â â â - â X PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of Arthur J. Alzamora, Jr., P.E., Senior Project Manager and employee of LANGAN ENGINEERING ENVIRONMENTAL SURVEY1NG & LANDSCAP1NG ARCHITECTURE PPC., a party whose address is c/o Lewis Brisbois Bisgaard Smith, 77 Water Street, Suite 2100, New York, New York 10005, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger LLP, 70 Lafayette Street, 2"4 Floor, New York, New York 10013, at 10:00 a.m., on the 215t day of September, 2017, or any adjourned date thereof, with respect to all matters material and necessary to the issues raised in this action. Dated: July 25, 2017 New York, New York 35 of 56

36 1 T. Pelu o, Esq. Peluso & Touger LLP Attorneys for Plaintiff 70 Lafayette Street - 2nd PlOOT New York, New York (212) (212) (fax) TO: LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEXINGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) WASSERMAN GRUBIN & ROGERS LLP ATTORNEYS FOR TORY BURCH 42" 1700 BROADWAY, 42 FLOOR NEW YORK, NEW YORK (212) BOIES SCHILLER & FLEXNER LLP ATTORNEYS FOR TORY BURCH 333 MAIN STREET ARMONK, NEW YORK (914) KENNEDYS CMK LLP ATTORNEYS FOR THORNTON TOMASETTI LEXINGTON AVE, 8 FLOOR NEW YORK, NEW YORK (646) of 56

37 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, -against- NOTICE TO TAKE DEPO$ITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEY1NG & LANDSCAPING ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, Defendants X PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of Patrick Kenny, P.E., Senior Engineer and employee of THORNTON TOMASETTI, INC., a party whose address is c/o Kennedys CMK LLP, 570 Lexington Avenue, 8* 8 Floor, New York, New York 10022, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger LLP, 70 Lafayette Street, 2nd Floor, New York, New York 10013, at 10:00 a.m., on the 25* 25 day of September, 2017, or any adjourned date thereof, with respect to all matters material and necessary to the issues raised in this action. Dated: July 25, New York, New York Câ Carl T. Peluso, Esq. 37 of 56

38 Peluso & Touger LLP Attorneys for Plaintiff 70 Lafayette Street - 2nd FlOOr New York, New York (212) (212) (fax) TO: KENNEDYS CMK LLP ATTORNE,YS FOR THORNTON TOMASETTI LEXINGTON AVE, 8 FLOOR NEW YORK, NEW YORK (646) LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEXINGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) WASSERMAN GRUBIN & ROGERS LLP ATTORNEYS FOR TORY BURCH BROADWAY, 42 FLOOR NEW YORK, NEW YORK (212) BOIES SCIULLER & FLEXNER LLP ATTORNEYS FOR TORY BURCH. 333 MAIN STREET ARMONK, NEW YORK (914) of 56

39 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, -against- NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPING ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, X Defendants. PLEASE TAKE NOTICE that pursuant to CPLR Article 31, the testimony upon oral examination of James W. Feuerborn, Jr., Senior Principal and employee of THORNTON TOMASETTI, INC., a party whose address is c/o Kennedys CMK LLP, 570 Lexington Avenue, 8th PlOOr, New York, New York 10022, will be taken before a Notary Public, who is not an attorney, or employee of an attorney, for any party or prospective party herein, and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity, or affinity to any party herein, at Peluso & Touger LLP, 70 Lafayette Street, 2nd Floor, New York, New York 10013, at 10:00 a.m., on the 27th 27 day of September, 2017, or any adjourned date thereof, with respect to all matters material and necessary to the issues raised in this action. Dated: July 25, 2017,A New York, New York.. Carl T. Peluso, Esq. 39 of 56

40 Peluso & Touger LLP Attorneys for Plaintiff 70 Lafayette Street - 2nd FlOOr New York, New York (212) (212) (fax) TO: KENNEDYS CMK LLP ATTORNEYS FOR THORNTON TOMASETTI LEXINGTON AVE, 8 FLOOR NEW YORK, NEW YORK (646) LEWIS BRISBOIS BISGAARD SMITH ATTORNEYS FOR LANGAN ENGINEERING 77 WATER STREET, SUITE 2100 NEW YORK, NEW YORK (212) FABIANI COHEN & HALL LLP ATTORNEYS FOR SKANSKA USA BUILDING INC LEXINGTON AVENUE 4 FLOOR NEW YORK, NEW YORK (212) WASSERMAN GRUBIN & ROGERS LLP ATTORNEYS FOR TORY BURCH BROADWAY, 42 FLOOR NEW YORK, NEW YORK (212) BOIES SCHILLER & FLEXNER LLP ATTORNEYS FOR TORY BURCH 333 MAIN STREET ARMONK, NEW YORK (914) of 56

41 AFFIDAVIT OF SERVICE VIA ELECTRONIC FILING STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss. Nicole Waknine being duly sworn, deposes and says: I am over 21 years old, reside at 70 Lafayette Street, New York, New York 10013, that on the 26th day of July 2017, I served one true copy of the Plaintiff's Notices to Take Deposition Upon Oral Examination, upon: Wasserman Grubin & Rogers Attorneys for Tory Burch 42" 1700 Broadway Floor New York, New York Boies Schiller & Flexner LLP Attorneys for Tory Burch 333 Main Street Armonk, New York Fabiani Cohen 2 Hall LLP Attorneys for Skanska 4th 570 Lexington Avenue FlOOr New York, New York Kennedys CMK LLP Attorneys for Thornton 8th 570 Lexington Avenue 8 FlOOr New York, New York Lewis Brisbois Bisgaard Smith Attorneys for Langan 77 Water Street Suite 2100 New York, New York Via electronic filing. I Nicole Waknine Sworn to before me July 26, 2017 ARL-T.PELUSO ary Pu ry Pub½c, State of New York No Qualified in Kings County Januarya 21, 2I/~ Gprnrnissipn Expires 41 of 56

42 42 of 56

43 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X X HERBERT MOSKOWITZ d/b/a MANHATTAN REALTY COMPANY, INDEX NO /2015 Plaintiff, NOTICE OF DISCOVERY -against- AND INSPECTION TORY BURCH LLC, SKANSKA USA BUILDING INC., THORNTON TOMASETTI, INC., LANGAN ENGINEERING ENVIRONMENTAL SURVEYING & LANDSCAPING ARCHITECTURE PPC., AND NEW YORK CITY DEPARTMENT OF BUILDINGS, X Defendants. X PLEASE TAKE NOTICE that, in accordance with Article 31 of the New York Civil Practice Laws and Rules (."CPLR") and the Court's order dated August 3, 2017, the undersigned demands that TORY BURCH LLC produce the documents identified herein for inspection at the offices of Peluso & Touger LLP, 70 Lafayette Street, 2nd Floor, New York, New York, 10013, attorneys for Plaintiff, on or before September 20, 2017, at 10:00 a.m., of that day. DEFINITIONS AND INSTRUCTIONS 1.. "Document" means the original, all copies and all translations of any writing and any written, recorded or graphic material, whether typed, handwritten, printed or otherwise transcribed, and any photograph, photostat, microfilm or other reproduction thereof including, without limitation, each note, memorandum, letter, telegram, telex, circular, , text, release, article, report, survey, prospectus, memorandum of telephone or personal conversation, record, financial statement, analysis, chart, account, book, draft, summary, facsimile, correspondence, written electronic computer print-out, contract, diary, transcript, agreement, any communication, 43 of 56

44 order, invoice, ledger, bill, actuarial study, financial or other study, evaluation, accountant's or other work papers, brochure, pamphlet, and minutes or other record of meetings or conferences. "Document" as used herein also means any tape or audible. recording, any photograph or motion picture videotape, and any non-identical copy of any document as previously defined which differs from any other copy thereof, either by virtue of other material appearing thereon, such as handwriting or typewriting, or otherwise. 2. "Copy" when used in reference to a document means any color or black-andwhite facsimile reproduction of the document and any color or black-and white facsimile reproduction made of such a facsimile reproduction of the document, regardless of whether the facsimile reproduction is made by means of carbon paper, pressure sensitive paper, xerography or other means or process. 3. "Communication" or "Correspondence" means any writing or other document, telephone conversation, oral conversation including but not limited to telephone conversations, or meetings, between or among two or more persons. 4. "Person" means any natural person, any business entity (whether partnership, association, cooperative, trust, corporation or otherwise), any governmental entity or department, agency, bureau, or political subdivision thereof. 5. To the extent that you consider any of the following document requests objectionable, respond to so much of each document request as is not objectionable in your view, and separately state that part of each document request as to which you raise objection and each ground for such objection. 6. If you object to production of any document on a claim of privilege, identify each document for which the privilege is claimed, together with the following information and with 44 of 56

45 respect to each document state: (a) the date, (b) the sender, (c) the addressee, (d) the number of pages, (e) the subject matter, (f) the basis on which the privilege is claimed, and (g) the names of all persons to whom copies of any part of the document were furnished or shown, together with the identity of their employer(s) and their job titles. 7. With respect to documents generated subsequent or prior to the start of this lawsuit which you assert are protected by the attorney-client or work product privilege, a response: (a) generally identifying such documents, (b) indicating the basis upon which such documents are being withheld, and (c) identifying each person, other than the party claiming the privilege and the attorneys for that party, to whom copies of any part of the document were furnished or shown, will be sufficient. 8. If any requested document has been destroyed or not retained, all records pertaining to its destruction or the failure to retain it shall be produced in its place, and the missing document shall be identified to the fullest extent possible. 9. The conjunctions "and" or "or" shall be individually interpreted in every instance as meaning "and/or" and shall not be interpreted disjunctively to exclude any document(s) otherwise within the scope of any request. 10. The singular form of a noun or pronoun shall be considered to include within its meaning the plural form of the noun or pronoun, and vice versa; the neuter form of a pronoun shall be considered to include also within its meaning the masculine and feminine forms of the pronoun, and vice versa; and the use of any tense of any verb shall be considered to include also within its meaning all other tenses of the verb. In such instance, the document request shall be construed so as to facilitate the most complete and inclusive response. 45 of 56

46 11. This demand shall be deemed to be continuing and the respondent is obliged to change, supplement, and correct the production to conform to all available information and documents, including such information and documents that become available after the initial production. 12. The time frame is from January 1, 2014, to the present unless otherwise stated. DOCUMENTS TO BE PRODUCED.. 1. All documents or communications, including but not limited to correspondence, letters, memoranda, s, and handwritten notes, relating to the construction project at 151 Mercer Street, New York, New York ("the project"), between or among Tory Burch and any of the parties in this action. 2. All documents or communications, including but not limited to correspondence, letters, memoranda, s, and handwritten notes, relating to the project between or among Tory Burch and the New York City Department of Buildings ("DOB") and/or the Environmental Control Board ("ECB"). 3. All documents or communications, including but not limited to correspondence, letters, memoranda, s, and handwritten notes, relating to the project and specifically any damage caused by the project, between or among Tory Burch and any of the parties in this action. 4. All documents or communications, including but not limited to correspondence, letters, memoranda, s, and handwritten notes, relating to the project and specifically any damage caused by the project, between or among Tory Burch and the DOB and/or the ECB. 46 of 56