SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS VERTULIE O. PIERRE-LOUIS, Plaintiff, Index No.: 710940/2016E -against- FLAMBOUYANT TRANSPORTATION INC., EUGENE C. HAMILTON, and ALYSSA LOUISE DEVOE, OMNIBUS DISCOVERY DEMAND Defendants. PLEASE TAKE NOTICE that defendants, FLAMBOUYANT TRANSPORTATION INC. and EUGENE C. HAMILTON (collectively, defendants ), by and through The Chartwell Law Offices, LLP, their attorneys in this action, hereby demand pursuant to Article 31 of the Civil Practice Law and Rules that plaintiff comply with the following discovery demands set forth in greater detail below: Demand for Witnesses Demand for Discovery of Expert Witness Information Demand for Discovery and Inspection Demand for Production of Medical Discovery Demand for Party Statements Demand for Collateral Reimbursement Disclosure Demand for Insurance File Disclosure Demand for Tax Returns Demand for Employment Records and Authorizations Demand for Union Records and Authorizations Further Demand for Production of Documents Demand for Production of Records from Prior Criminal Convictions Demand to Supplement Responses Demand for Economic Expert Disclosure Demand that Plaintiff Complete a Duly Executed Authorizations for Release of Immigration Records Including Form G-639 1 1 of 18
PLEASE TAKE FURTHER NOTICE that in the event that plaintiff fails to comply, defendants will seek an order precluding plaintiff from offering evidence and/or contesting issues at the time of trial material to discovery not provided in compliance herewith, along with such other, further and different relief as the Court deems just and proper. DEMAND FOR WITNESSES PLEASE TAKE NOTICE, that pursuant to CPLR Article 31, the undersigned hereby demands that you set forth in writing no later than twenty (20) days from receipt of this Demand, the names and addresses of the following individuals: 1. All witnesses to the occurrence alleged in the Complaint. 2. All notice witnesses. 3. All admission witnesses. 4. All witnesses whom plaintiff intends to call as witnesses concerning their alleged injuries or damages. If no such witnesses are known to the plaintiff, demand is made that plaintiff so state in sworn reply to this demand. The undersigned will object upon trial to the testimony of any witnesses not so identified if a response to this demand as required by Article 31 of the Civil Practice Law and Rules. DEMAND FOR DISCOVERY OF EXPERT WITNESS INFORMATION PLEASE TAKE NOTICE, that pursuant to CPLR Article 31, the undersigned hereby demands that you set forth in writing, no later than twenty (20) days from receipt of this Demand, the following: 2 2 of 18
1. State the name and address of every expert retained or employed by you in anticipation of this litigation or preparation for trial whom you expect to call as a witness at the trial, as well as the following information with regard to each and every such expert witness: a. The subject matter on which the expert is expected to testify; b. The substance of the facts and opinions to which the expert is expected to testify; c. A summary of the grounds for each such opinion; d. A chronological resume of the witness's educational background and professional background, including the associations or societies of which the expert is a member; and e. Whether such named experts will testify as an expert at the trial of this case. 2. State the names, addresses and qualifications of all expert witnesses and other persons known to you to have made studies or analysis as to the cause of the alleged injury involved herein. If no such witnesses are known to plaintiff, so state in sworn reply to this demand. PLEASE TAKE FURTHER NOTICE, that defendants will object upon trial to the testimony of any witness not so identified if a response to this demand is not made within twenty (20) days of service hereof. DEMAND FOR DISCOVERY AND INSPECTION PLEASE TAKE NOTICE, that pursuant to Section 3120 of the Civil Practice Law and Rules ( CPLR ), demand is hereby made that plaintiff furnish to the undersigned no later than twenty (20) days from receipt of this Notice, for discovery, inspection and copying original reproductions of all photographs, videos, motion pictures, slides, charts, diagrams, computer simulations, CD-ROM, tapes and/or films depicting the following: 3 3 of 18
1. The scene of the alleged occurrence, including all conditions which plaintiff alleges constituted evidence of negligence or otherwise culpable conduct by any party claimed to be responsible for the injuries alleged herein, all of which defendants expressly deny; 2. The alleged damages sustained by plaintiff. 3. Any instrumentalities involved in the occurrence alleged in the pleadings in the within action. 4. Any reconstruction of the occurrence. 5. Any photographs, videos, motion pictures, slides, charts, diagrams, computer simulations, CD-ROM, tapes and/or films which plaintiff otherwise intends to introduce at depositions or trial. 6. Any photographs, videos, motion pictures, slides, or similar materials which plaintiff intends to introduce at trial in support of any damage claims asserted herein, including but not limited to day in the life videos. PLEASE TAKE FURTHER NOTICE, that defendants will object upon trial to the introduction into evidence of any material not produced in response to this demand within twenty (20) days of service hereof, and that insofar as this is a continuing demand, defendants will object upon trial to the introduction into evidence of any material subsequently obtained by plaintiff not produced within twenty (20) days thereafter or prior to the completion of discovery, whichever is earlier. PLEASE TAKE FURTHER NOTICE, that express demand is hereby made for digital copies of all photographs plaintiff intends to offer at trial and/or which are otherwise within the scope of the aforesaid demands that were taken using a digital camera or image-capture device and with all metadata intact that was created thereby. Objection will be made to the introduction 4 4 of 18
into evidence, by plaintif,f of each photograph which metadata existed that plaintiff has failed to preserve and disclose. DEMAND FOR PRODUCTION OF MEDICAL DISCOVERY PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law & Rules and Section 202.17 of the Uniform Rules for the New York State Trial Courts, 22 N.Y.C.R.R. 202.17(b)(1),(2), demand is hereby made as follows: 1. Serve upon and deliver to the undersigned attorney for defendants, copies of all records, test results, films, correspondence, reports, referrals, bills, invoices and all other documents and/or articles in plaintiff s possession or control related to or concerning health care services furnished to plaintiff by each health care provider who has treated plaintiff within the two (2) years prior to the alleged occurrence giving rise to this action, to and through the present. 2. Serve upon and deliver to the undersigned attorney for defendants, duly executed and acknowledged Arons and HIPAA-compliant written authorizations directing release to the undersigned of all records, test results, films, correspondence, reports, referrals, bills, invoices and all other documents by each health care provider who has treated plaintiff within the two (2) years prior to the alleged occurrence giving rise to this action, to and through the present. 3. Serve upon and deliver to the undersigned attorney for defendants, duly executed and acknowledged Arons and HIPAA-compliant written authorization permitting all parties to obtain and make copies of all hospital records, and such other records including x-rays and technician's reports as to be referred to and identified in the statement of plaintiff s physicians. 4. Serve upon and deliver to the undersigned attorney for defendants, duly executed and acknowledged Arons and HIPAA-compliant written authorizations directing release to the 5 5 of 18
undersigned counsel of records of all healthcare furnished to plaintiff related to examination, diagnosis, evaluation and/or care of any illnesses, diseases, disease processes, chronic conditions or complaints involving body parts, organs, systems, conditions, and/or mental/emotional conditions or syndromes that plaintiff will allege herein sustained injuries or were aggravated as a result of culpable conduct described in the within Verified Complaint for a period of time no less than seven (7) years prior to said occurrence. 5. Demand is hereby made that plaintiff preserve all records, test results and films related to examination, diagnosis, evaluation and/or care of any illnesses, diseases, disease processes, chronic conditions or complaints involving body parts, organs, systems, conditions, and/or mental/emotional conditions or syndromes that plaintiff claims sustained injury or which plaintiff alleges were caused or aggravated in the occurrence described in the within Verified Complaint which plaintiff has in his actual or constructive custody, control or possession. PLEASE TAKE FURTHER NOTICE, that upon failure to comply with this demand, an application will be made to preclude plaintiff upon trial of the within action from offering in evidence any of the reports, records, or examinations demanded herein, or disputing issues material to any discovery production of which is demanded which plaintiff fails to disclose. PLEASE TAKE FURTHER NOTICE that upon failure to comply with the aforesaid demand to preserve the aforesaid records and evidence, in the event such records or evidence becomes unavailable, an application will be made to the within Court for appropriate relief, including monetary sanctions, preclusion and such other relief based on theories of spoliation as the within honorable Court deems just and proper. 6 6 of 18
DEMAND FOR PARTY STATEMENTS PLEASE TAKE NOTICE that pursuant to CPLR Section 3101 demand is hereby made for the following: 1. Copies of any and all written statements taken of or from defendants or any of their agents, servants or employees. 2. A statement indicating the substance of any oral statements, including admissions against interest, taken of or from defendants, or any of their agents, servants or employees indicating the date the oral statements were made, the name and description of the person who made the oral statement and the name and addresses of the person who heard the oral statement. 3. Copies of any and all recorded statements taken of or from defendants or any of their agents, servants or employees. 4. Copies of any and all transcriptions of recorded statements taken of or from defendants or any of their agents, servants or employees. PLEASE TAKE FURTHER NOTICE, that in the event of failure to comply with this demand, defendants shall make a motion to preclude the use of such statements at trial. DEMAND FOR COLLATERAL REIMBURSEMENT DISCLOSURE PLEASE TAKE NOTICE, that pursuant to Section 4545 of the Civil Practice Law and Rules, you are hereby required to serve upon the undersigned, within twenty (20) days after the receipt of this Demand, the following: 3. For every amount claimed by plaintiff as special damages or otherwise claimed by plaintiff as economic damage or expense sustained by reason of the alleged occurrence giving rise to this action, state whether any such amount was or, with reasonable certainty, will be paid by, replaced or indemnified, in whole or in part, from any collateral source, such as insurance, 7 7 of 18
(including No Fault first-party benefits), Social Security, Workers Compensation, or employee benefit program or any other source. 4. If any of the special damages were paid by, replaced or indemnified by a collateral source: a. State the name and address of each and every collateral source which reimbursed or paid for the special damages claimed and identified by plaintiff. b. Identify the policy number, claim number, or other identifying reference used by the collateral source to pay, replace or indemnify the amount claimed as special damages. c. The amount of money any collateral source paid and the person or entity who received such payment(s). 5. Provide a duly executed and notarized HIPAA-compliant authorization for the release of all collateral source records, including public benefit sources, including all claims filed by or on behalf of plaintiff with each actual or potential benefit provider or reimbursement source. (NOTE: demand is expressly made for production of authorization(s) for disclosure of Workers Compensation Insurance carrier/claim records and all records maintained by the Workers Compensation Board and all similar agencies related to such claims if any such claims were made as a result of the occurrence described in the Verified Complaint herein and, if any workers compensation insurance carrier or Workers Compensation Board has promulgated a form other than a HIPAA-compliant authorization that it requires for release of records, demand is expressly made for such an executed form authorization.) PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and in the event that plaintiff fails to comply, defendants will seek an order precluding plaintiff from offering evidence and/or contesting issues at the time of trial material to discovery not provided in compliance with the foregoing demand. 8 8 of 18
DEMAND FOR INSURANCE FILE DISCLOSURE PLEASE TAKE NOTICE, that defendants hereby demand pursuant to Rule 3120 of the Civil Practice Law and Rules that plaintiff furnish to the undersigned no later than twenty (20) days from receipt of this demand the following: 1. Duly executed HIPAA-compliant authorizations permitting the undersigned counsel to obtain: copies of the complete claims file(s) referable to all motor vehicle accidents in which plaintiff sustained personal injuries and/or damage to property and/or which otherwise resulted in submission of claims for first-party benefits, personal injury protection payments, or other reimbursement for healthcare services obtained as a result of such accident(s), for a period of seven (7) years prior to the date of the occurrence described in the Verified Complaint to and through the present. 2. If plaintiff was covered by a policy of health insurance at any time during the period five (5) years prior to the occurrence alleged in the Complaint to and through the present, duly executed and notarized HIPAA-compliant authorizations directing release to the undersigned counsel of certified copies of plaintiff s complete claims files for the each such policy. 3. If plaintiff has submitted any claim to any governmental agency or third-party administrator during a period of time seven (7) years prior to the occurrence described in the Verified Complaint herein to and through the present seeking disability benefits or otherwise making claims based on any disability, duly executed and notarized HIPAA-compliant authorizations directing disclosure to the undersigned of certified copies of all related documents by the aforesaid governmental agency or third-party administrator. 9 9 of 18
4. If plaintiff has applied for a life insurance policy during a period of time ten (10) years prior to the occurrence described in the Verified Complaint herein to and through the present, duly executed and notarized HIPAA-compliant authorizations directing release to the undersigned of the complete underwriting file, records of all medical examinations, actuarial calculations, investigation materials, and all other documents generated in the ordinary course of business of each life-insurance policy provider or third-party administrator or related entity that may have evaluated plaintiff s physical conditions. 5. If plaintiff has submitted claims for workers compensation or occupational accident coverage benefits for a period of seven (7) years prior to the date of the occurrence described in the Verified Complaint, duly executed and notarized HIPAA-compliant authorizations in a form compliant with any applicable administrative requirements directing release to the undersigned counsel of all workers compensation board and workers compensation carrier records related to each such claim, including but not limited to disclosure of all transcripts, independent medical examination reports, orders, judgment and decrees. PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and in the event that plaintiff fails to comply, defendants will seek an order precluding plaintiff from offering evidence and/or contesting issues at the time of trial material to discovery not provided in compliance with the foregoing demand. DEMAND FOR TAX RETURNS PLEASE TAKE NOTICE, that defendants hereby demand that plaintiff provide the undersigned counsel with duly executed authorizations directing disclosure to the undersigned of plaintiff federal and State tax returns, W-2 forms and Profit and Loss Statements for five (5) years prior to the occurrence alleged in the pleadings in this action, to and through the present. 10 10 of 18
PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and in the event that plaintiff fails to comply, defendants will seek an order precluding plaintiff from offering evidence and/or contesting issues at the time of trial material to discovery not provided in compliance with the foregoing demand. DEMAND FOR EMPLOYMENT RECORDS AND AUTHORIZATIONS PLEASE TAKE NOTICE, that defendants hereby demand that plaintiff provide the undersigned counsel with duly executed and notarized authorizations within twenty (20) days of receipt of this demand, directing release to the undersigned copies of plaintiff s complete employment records including all attendance records, personnel file, training information, workrelated medical examinations, job descriptions, wage/salary information and all other information in the possession of each individual and/or entity that has employed plaintiff herein for ten (10) years prior to the occurrence alleged in the pleadings in this action, to and through the present. PLEASE TAKE FURTHER NOTICE, that this is a continuing Demand and in the event that you fail to comply with this Demand within twenty (20) days, a motion will be made for an order precluding you from offering any evidence at the trial of this action with respect to the foregoing demands. DEMAND FOR UNION RECORDS AND AUTHORIZATIONS PLEASE TAKE NOTICE, that defendants hereby demand that plaintiff provide the undersigned counsel with duly executed and notarized authorizations within twenty (20) days of receipt of this demand, directing release to the undersigned of copies of all records maintained by each union, guild, or similar tradesman s organization to which plaintiff belonged for a period of five (5) years prior to the occurrence alleged in the Verified Complaint to and through the time 11 11 of 18
of trial, including all records of training, pension, health insurance, disability insurance, professional licensure, professional certification, and all other records. PLEASE TAKE FURTHER NOTICE, that this is a continuing Demand and in the event that you fail to comply with this Demand within twenty (20) days, a motion will be made for an order precluding you from offering any evidence at the trial of this action with respect to the foregoing demands. FURTHER DEMAND FOR PRODUCTION OF DOCUMENTS PLEASE TAKE NOTICE, that the defendants, by and through their undersigned counsel in this action, hereby demand that plaintiff serve the following documents upon the undersigned within (20) twenty days after receipt of this demand, as follows: 1. Copies of all pleadings, Bills of Particulars, copies of all independent medical examination reports, Notice(s) of Claim, General Releases, and/or interrogatory answers executed by or on behalf of plaintiff in connection with or related to any prior civil actions brought by plaintiff to recover damages for personal injuries. In the event any such documents are not within plaintiff s personal control, custody or possession, demand is made for an authorization directing plaintiff s counsel or other record custodian to release copies of same to the undersigned. 2. Copies of all transcripts of testimony by plaintiff herein in any prior examinations before trial, trial, 50-H examinations, workers compensation hearing, or other testimony under oath by plaintiff s related to any prior, subsequent or pending claims for compensation for personal injury. 3. In the event plaintiff has been involved in a motor vehicle accident prior to or subsequent to the occurrence alleged in the Verified Complaint that resulted in personal injury 12 12 of 18
and/or any claim for No Fault benefits, copies of the Police Accident Report and MV104, if any, related to each such accident. If such accident reports are not in plaintiff s possession or control, demand is made for a duly executed and acknowledged authorization directing release to the undersigned of such reports by said reports record custodians and/or appropriate agency of government. 4. In the event plaintiff has been involved in any accidents in the course and/or furtherance of his employment and/or which otherwise resulted in any claims for benefits under any Workers' Compensation policy or similar self-insurance program, prior to or subsequent to the occurrence alleged in the Verified Complaint herein, duly executed and acknowledged authorizations directing release to the undersigned of all records related to such claim(s) in the control, custody or possession of each Workers' Compensation Board and Workers' Compensation Insurance Carrier or self-insured entity that adjusted or otherwise received plaintiff s benefit claim(s). 5. If plaintiff was covered under a policy of health insurance at any time from five (5) years prior to the alleged occurrence giving rise to this action to the present (including Medicaid, Medicare, or similar public benefits), not otherwise within the scope of any other discovery demand herein, demand is hereby made that plaintiff furnish an executed and acknowledged authorization for the release of plaintiff s complete health insurance claims records to the undersigned for the aforesaid period of time. 6. If plaintiff claims that the alleged occurrence resulted in impairments or inabilities to seek or remain gainfully employed, demand is hereby made that plaintiff furnish a duly executed IRS Form 4506 authorizations, accompanied by photocopies of two (2) forms of identification (at least one of which bears a photographic likeness), directing release to the 13 13 of 18
undersigned of plaintiff s complete tax records for a period of three (3) years prior to the alleged occurrence to and through the present. 7. Demand is hereby made for copies of all records prepared by any public or quasipublic agency or representatives pertaining to investigations or analysis undertaken or performed in connection with the events described in the Verified Complaint here, including but not limited to all Battalion Chief reports, Fire Marshal reports, and/or any other cause and origin reports pertaining thereto, in plaintiff s possession, custody and/or control. DEMAND FOR PRODUCTION OF RECORDS FROM PRIOR CRIMINAL CONVICTIONS PLEASE TAKE NOTICE that pursuant to Article 31 of the Civil Practice Law and Rules, ( CPLR ), demand is hereby made that plaintiff furnish to the undersigned no later than twenty (20) days from receipt of this Notice, for discovery and inspection and copying, the following: 1. Certificates of disposition documenting each criminal offense for which plaintiff have been convicted for a period of five (5) years prior to the date of the events alleged in the Verified Complaint, ( the Complaint ), to and through the present. 2. Copies of transcripts of all allocutions, trial testimony, plea agreements, and judgments related to each prior prosecution of plaintiff arising out of alleged criminal conduct that resulted in conviction of plaintiff during the period of five (5) years prior to the date of the events alleged in the Complaint to and through the present. 3. Copies of all transcripts of all allocutions, certificates of disposition, judgments of convictions, trial testimony, and plea agreements relating to each conviction of plaintiff of felony charges or the equivalent of felony charges during the period of twenty (20) years prior to the date of the events alleged in the Complaint to and through the present. 14 14 of 18
PLEASE TAKE FURTHER NOTICE that these answering defendants will seek an Order striking plaintiff s Complaint and/or precluding plaintiff from testifying at the time of trial if a response to this demand is not made within twenty (20) days of service hereof. DEMAND TO SUPPLEMENT RESPONSES PLEASE TAKE NOTICE, that pursuant to CPLR Section 3101 (h), demand is hereby made that responses to all demands and notices served herein on behalf of defendants be amended and/or supplemented promptly upon notice of or receipt of additional information that would make such response complete and/or accurate and correct. PLEASE TAKE FURTHER NOTICE, that defendants reserve all rights to object or move for all appropriate and available relief upon the failure of any party to comply with the within demand and CPLR Section 3101(h). DEMAND FOR ECONOMIC EXPERT DISCLOSURE PLEASE TAKE NOTICE, that pursuant to CPLR Section 3101(d), the undersigned hereby demands the following: 1. State the names, addresses and qualifications of each economic expert witness expected to testify at the time of trial. 2. As to each economic expert, state the subject matter on which the economic expert is expected to testify, including: a. Specific description of the losses for which calculation will be made by the witness (i.e. present value of the loss of future earning, present value of loss of second job earning, present value of future medical expenses, etc.); b. The undiscounted amount of each loss; c. The present value of the dollar amount of such loss; 15 15 of 18
d. The discount rate applied by such person to determine present value and the basis for such rate. e. The substance of the facts and opinions to which each economic expert is expected to testify other than as may be set forth in the paragraphs above including the opinions and fact upon which an estimated growth rate of future income is based. f. State the facts and opinions to which the economic expert will testify as to a projected rate of income greater than the income earned by the plaintiff when last employed g. Specify each fact or variable and/or calculation which has been used by the economic expert in formulating the net amount of the present value of the plaintiff s economic loss. 3. As to each economic expert, describe or designate publications, written materials or evidentiary materials relied upon by the economic expert in reaching his/her opinion, and describe such material with sufficient specificity as to permit identification and location by defendants. 4. As to each economic expert, state the date of any report, memoranda or any other writing showing in whole or in part the economic expert s conclusion or the facts upon which the conclusion or the facts upon which the conclusions were based including the last known location of said writing. PLEASE TAKE FURTHER NOTICE, that this Demand is considered continuing in nature and failure to comply with it will result in a Motion to Preclude made at the time of trial. 16 16 of 18
DEMAND THAT PLAINTIFF COMPLETE A DULY EXECUTED AUTHORIZATION FOR RELEASE OF IMMIGRATION RECORDS INCLUDING FORM G-639 PLEASE TAKE NOTICE, that pursuant to Balbuena v. IDR Realty LLC, 6 N.Y.3d.338, (2006), Maliqui v. 17 E.89 th St. Tenants, Inc., 25 Misc. 3d 182 (Sup. St. Bronx Co. 2009) and Komuves V. Cucinotto, 2012 NY Slip Op. 30303(U) (Sup Ct. Suffolk Co. June 25, 2012), in the event plaintiff enjoys any status other than citizenship of the United States derived from birth, demand is made that plaintiff provide: 1. A duly executed and completed authorization, with proper verification of identity as follows for release to the undersigned law firm of all information pertaining to the plaintiff from the Department of Homeland Security on Form G-639, including all information required to obtained THE COMPLETE so-called Alien File also known as an A-File ; 2. A duly executed and completed authorization permitting the release to the undersigned counsel of all information pertaining to plaintiff s immigration and tax paying status, including all applications for Green Card, permanent residency, work permits, immigration status and citizenship status, in the event plaintiff emigrated to the United States from a different country of birth and/or origin. PLEASE TAKE FURTHER NOTICE, that pursuant to the CPLR, this is a continuing demand and that you are required to serve the demanded information within 20 days of receipt of this demand. 17 17 of 18
PLEASE TAKE FURTHER NOTICE, that failure to comply with this demand will form the basis of an appropriate motion either to preclude, strike or dismiss. Dated: New York, New York March 13, 2017 THE CHARTWELL LAW OFFICES, LLP By: William H. Grae, Esq. Attorney for Defendants FLAMBOUYANT TRANSPORTATION INC. and EUGENE C. HAMILTON One Battery Park Plaza, 35 th Floor New York, New York 10004 (212) 968-2300 (212) 968-2400 Wgrae@chartwelllaw.com TO: Yadgarov & Associates, PLLC Attorneys for Plaintiff VERTULIE O. PIERRE-LOUIS 608 Fifth Avenue, Suite 1000 New York, New York 10020 P: (212) 581-2500 File No.: 16-2831 By NYS ECF ALYSSA LOUISE DEVOE Defendant Pro Se 512 Creek Rd Poughkeepsie, NY 12601 By Mail 18 18 of 18