FILED: NEW YORK COUNTY CLERK 05/10/2014 INDEX NO. 160641/2013 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 05/10/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------X Index No.: 160641/2013 ANGELENA LUCHEUX and BENJAMIN LUCHEUX, Plaintiffs, PLAINTIFFS DEMANDS FOR - against - DISCOVERY & INSPECTION WILLIAM MACKLOWE COMPANY, LLC, MACKLOWE MANAGEMENT, LLC, 386 PAS OWNER, LLC, LEND LEASE (US) CONSTRUCTION LMB, INC., and SYNERGY CONSTRUCTION, INC., Defendants. ----------------------------------------------------------------------------X SIRS: PLEASE TAKE NOTICE, that Defendants herein, pursuant to Section 3101 et seq. and Rule 3120 of the CPLR, are required to produce and permit discovery, inspection and copying of the following items, writings, and objects possessed, maintained, controlled and/or supervised by the Defendants and/or the Defendant s agents, servants, and/or employees, within twenty (20) days from the service of this notice. PLEASE TAKE FURTHER NOTICE, that in lieu of personally presenting to the undersigned office the documents and things for inspection, Defendants may mail copies of said documents and things to the undersigned attorney within twenty (20) days of service of this notice, to: PETER H. PARETSKY, ESQ., 676-A Ninth Ave., #303, New York, N.Y. 10036. If defendants respond in this manner, Plaintiffs does not waive their right to inspect the original documents and things at a future time and place. PLEASE TAKE FURTHER NOTICE, that you are required to respond to each and every demand herein in numerical order. In the event you cannot respond or do not possess such information you are required to state so affirmatively together with an explanation for such. Page 1 of 18
DEFINITIONS Documents includes, but it not limited to, all writings, agreements, papers, reports, records, recordings, video tapes, audio tapes, facsimile copies, photocopies, printouts, charts, graphs, transcriptions, CDs, DVDs, emails and any other electronic communications and/or electronic transmissions, contracts, agreements, applications, affidavits, affirmations, deeds, leases, mortgages all of any description whatsoever. INSTRUCTIONS For each and every demand that requests records pertaining to the Lobby and Entrance Project, plaintiffs demand all records relating to the Project, regardless of when they were created, which therefore includes all records created prior to the commencement of the Project, during the Project and subsequent to completion of the Project. DEMAND FOR ALL RECORDS OF OCCURRENCE PLEASE TAKE NOTICE, that the undersigned hereby demands that produce and set forth the following, pursuant to CPLR 3101 and the case of Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692 (2nd Dept. 1981): 1. Pursuant to CPLR 3101(g), the undersigned demands that you produce and allow the plaintiff to inspect each and every written record, report and document regarding the occurrence which is the subject matter of this action, prepared in the regular course of business, operation or practice of any person, firm, business, corporation, association, or other public or private entity, or any person or entity acting on behalf of any party you represent. Include records, reports and documents in written and electronic form, of the subject incident prepared in the regular course of business operations or practice of any person, firm, corporation, Page 2 of 18
association or other public or private entity. Please note: All reports prepared in the regular course of business must be disclosed even if the report was prepared exclusively for litigation, except if it is protected with conditional immunity under CPLR Section 3101(g). Also, multipurpose reports are not exempt from disclosure under CPLR Section 3101(d)(2) where litigation is but one of the motives for the preparation. This includes all accident reports, whether or not prepared exclusively in preparation for litigation. Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 94 (1981). 2. A copy of any documents or reports, in written or electronic form, submitted by the defendant to its insurance carrier in regard to the subject incident. 3. A copy of any documents, including but not limited to, correspondence, reports, memos, notes, letters, e-mails or diagrams, in written or electronic form, referencing the subject occurrence, prepared by, or on behalf of, this answering defendant. 4. Copies of any reports prepared by or on behalf of the defendant, for the period of two years prior to the subject occurrence, in regard to accidents similar to the one claimed in the instant lawsuit. DEMAND FOR EXPERT WITNESS DISCLOSURE PLEASE TAKE NOTICE, that pursuant to CPLR Section 3101(d), you are hereby required to serve upon and deliver, setting forth in detail the claim of the defendant in regard to the following:, a sworn statement containing the following: 5. Identify each person the answering party intends to call as an expert witness at the time of trial. 6. For each person so identified above, set forth: a. The qualifications of each expert witness; b. Disclose in reasonable detail the subject matter on which each expert is expected to testify; Page 3 of 18
c. The substance and facts on which each expert is expected to testify; d. A summary of the grounds for each expert's opinion. DEMAND FOR INSURANCE (BASIC, EXCESS, UMBRELLA, CATASTROPHE) PLEASE TAKE NOTICE, that pursuant to the provisions of 3101 of the Civil Practice Law and Rules, any party you represent is required to serve upon the undersigned, at the time and place specified above: 7. The declaration sheet and entire coverage agreement listing all named insureds regardless of policy type, including: (a) policy limits (b) carrier, phone number, claim number (c) third party adjuster, if any, with their name address and phone numbers. Note: This demand includes all primary reinsurance and/or excess liability, "umbrella," or "catastrophe" policies of any party you represent, the spouse of any party you represent or any relative residing with any party you represent, for liability on the date of the accident giving the name and addresses of each insurance carrier, the policy numbers thereof, the dates of coverage and/or policy periods, and the amounts of such and each policy coverage. 8. Produce and permit the undersigned to inspect a complete, true and accurate copy of the original policies of insurance covering each and every primary, contributing, umbrella, catastrophe, and /or excess insurance agreements under which any person may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payment made to satisfy the judgment and each and every insurance agreement in which the insurer is obligated to defend this action. Page 4 of 18
9. Copies of any occurrence or claim report filed with any insurance carrier in relation to such occurrence. 10. Copies of all insurance adjuster s reports regarding this incident. 11. All applicable insurance agreements insuring the defendant in this action. 12. The policy limits of all insurance agreements, the full name and address of each insurer, and the policy number. 13. If there are any other claims pending or paid against and such insurance coverage, set forth: (a) The total amounts already paid from each policy; (b) The number of claims made against each policy; (c) The total ad damnum of any pending claims against each policy and (d) The net remaining insurance coverages available. 14. If there are no other claims pending or paid, an affirmative statement to that effect is required (see, Greenwald v. Eiseman, 502 N.Y.S.2d 56; Kimball v. Davis, 81 A.D.2d 8855, 438 N.Y.S.2d 860). 15. If, after requisite investigation, no such reinsurance, excess liability, umbrella or catastrophe policies are found to exist, so state in a probative sworn party affidavit to that effect is demanded. 16. A copy of all policies of insurance held by anyone in defendant s household covering this answering Defendant. DEMAND FOR PHOTOGRAPHS, VIDEOS, AUDIO TAPES, SLIDES, AND MOTION PICTURES PLEASE TAKE NOTICE, that undersigned demands on behalf of the plaintiff that Page 5 of 18
pursuant to CPLR Article 31, you produce at the time and place above specified and permit the undersigned to discover, inspect, photograph and copy each and every photograph, audio tapes, slides, videotapes or motion pictures in defendant's custody, possession or control depicting the following: 17. (a) The location where it is alleged that the occurrence complained of took place. (b) (c) The specific condition complained of in the complaint; The general location or scene of the occurrence, including but not limited to, those showing the occurrence complained of; (d) (e) (f) (g) (h) The plaintiff and any other persons involved in the occurrence; Any actions or activities of the plaintiff; The injuries sustained by the plaintiff; The instrumentalities involved in the occurrence; Damages caused or exacerbated by the occurrence; If no such photographs, slides, video or motion pictures are in the possession, custody or control of any parties you represent in this action, so state in the sworn reply to this demand. Further, these photographs, audio and or videotapes are to be provided regardless of when they were taken, (i.e. before or after EBTs) or prepared in the ordinary course of adjusting a Third Party Claim. 18. Security or surveillance video of the occurrence. 19. Any and all materials depicting surveillance of the plaintiff, which you intend to use upon the trial of this action, including but not limited to audio tapes, films, video tapes, video recordings, photographs, out-takes, now in your possession, custody or control, or in the possession, custody or control of any party you Page 6 of 18
represent in his action or of any of your agents, servants, employees, hirees or contractors. Should any such material come into your possession, custody or control at any time after this demand, then demand is made that you produce such material for inspection and copying, upon at least one day s advance notice, within twenty (20) days after said materials come into your possession, custody or control, or in the possession, custody or control of any party you represent in his action or of any of your agents, servants, employees, hirees or contractors. 20. Surveillance tapes taken of the plaintiff, including but not limited to the date of loss and thereafter. This demand encompasses surveillance materials taken both before and after depositions. If such surveillance tape exists at any time during the course of this litigation, the answering defendant, in possession of this tape and or planning to use it at the trial, mediation or arbitration of this action is directed to provide the name and address of the videographer, the date the assignment was given, a copy of the bill of the work done with the dates included by the videographer or investigator. The tape is to be unedited. If no such statement is in the possession, custody or control of any parties you represent in this action, so state in the sworn reply to this demand. DEMAND FOR DISCOVERY AND INSPECTION OF ANY STATEMENTS PLEASE TAKE NOTICE, that pursuant to CPLR 3101(a), 3101(e) and 3120, you are required to produce at the time and place above specified and permit the undersigned to discover, inspect and copy: 21. (a) A copy of any all records, memoranda, notes, audio and video recordings, of any statements or communications made by the Plaintiff, including oral, Page 7 of 18
written, audio, video and electronically recorded statements, now in your possession, custody or control, or in the possession, custody or control of any party you represent in this action. (b) If oral statements were made by Plaintiff, furnish copies if any papers, documents, legers, logs, etc. which notated such oral statements, and set forth the nature and substance thereof. (c) If oral statements were made by Plaintiff, state (i) the sum and substance of each statement and indicate the date, time and place when such oral statement was made and/or taken, (ii) the manner in which such statement was made and/or taken, (iii) by whom and/or to whom such oral statement was made and/or taken, (iv) who was present at the time such statement was made and/or taken, including the name and last known address of such person(s), and if such witness is a police officer or member of a law enforcement agency, provide the name, rank, shield and address of current command. 22. (a). A copy of all statements made by the Defendant, Defendant s agents, servants or employees, including oral, written, audio, video and electronically recorded statements, now in your possession, custody or control, or in the possession, custody or control of any party you represent in this action. (b) If oral statements were made by the Defendant, Defendant s agents, servants or employees, furnish copies if any papers, documents, legers, logs, etc. which notated such oral statements, and set forth the nature and substance thereof. (c) If oral statements were made by the Defendant, Defendant s agents, servants or employees, state (i) the sum and substance of each statement and Page 8 of 18
indicate the date, time and place when such oral statement was made and/or taken, (ii) the manner in which such statement was made and/or taken, (iii) by whom and/or to whom such oral statement was made and/or taken, (iv) who was present at the time such statement was made and/or taken, including the name and last known address of such person(s), and if such witness is a police officer or member of a law enforcement agency, provide the name, rank, shield and address of current command. 23. Any notes, memoranda, e-mails, text messages or records made by any individuals who spoke, discussed or otherwise communicated with the Plaintiff about the alleged occurrence, and (b) the name, job title and business address of these individuals, or if no longer employed, their last known address. DEMAND FOR TRANSCRIPTS PLEASE TAKE NOTICE, that the undersigned hereby demands that produce and set forth the following: 24. Copies of any transcripts of testimony provided of any party, any party s agents, servants, or employees, taken in any proceeding arising out of the issues giving rise to this litigation, taken in any proceeding or hearing regarding the violation of any code, ordinance or statute. If any of the foregoing did occur, but no transcript is available, so note. DEMAND FOR IDENTITY OF WITNESSES PLEASE TAKE NOTICE, that the undersigned hereby demands pursuant to CPLR 3101(a), 3120 and the case of Zellman v. Metropolitan Transportation Authority, 40 Page 9 of 18
A.D.2nd 248, 339 N.Y.S.2d 255, that you set forth: 25. A sworn statement listing the full names and last known addresses and telephone numbers of all alleged witnesses to the following: a) The occurrence alleged in the complaint. b) Any acts or omissions alleged to have caused or contributed to the occurrence complained of. c) The damages sustained by plaintiff. d) The names and addresses of any witnesses to the acts or conditions substantiating the alleged affirmative defenses plead in your answer. e) Individuals who will testify as to any alleged admission made by and/or inferable and/or chargeable and/or imputed to the plaintiff. (cf, Tricarino v. Giovanniello, NYLJ, 12/7/93, p. 25, App. Term, 2 nd Dep t). PLEASE TAKE FURTHER NOTICE, that if any party you represent or it representatives, obtain names and addresses of persons who witnessed the occurrence alleged in the complaint or the acts, notice or conditions substantiating the alleged affirmative defenses or have firsthand knowledge of such facts subsequent to the service of this notice, this information is to be furnished to the plaintiff, whenever obtained. DEMAND FOR ENTRY UPON AND INSPECTION OF DEFENDANT S PROPERTY PLEASE TAKE NOTICE, that the undersigned hereby demands that: 26. Defendant permits plaintiff entry upon designated land or other property for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or filming the property or any specifically designated object, instrumentality, item, device or operation thereon, within twenty (20) days of service of this notice. Page 10 of 18
Failure to object or otherwise respond to this demand within twenty (20) days of service of this notice will be deemed an acknowledgement of permission by defendant for plaintiff to enter upon defendant s property for the purposes mentioned herein. DEMAND FOR RECORDS Work records of the Lobby/Entrance Project at the subject premises NOTE: For each and every demand that requests records pertaining to the Lobby and Entrance Project, plaintiffs demand all records relating to the Project, regardless of when they were created, including records pertaining to the Project that were created prior to the commencement of the Project, during the Project and subsequent to completion of the Project. 27. Copies of all work records, including inspection, maintenance, repairs and modifications performed by or on behalf of any defendant in regard to the Lobby and Entrance Project. 28.(a) Copies of work records, including inspection, maintenance, repairs and modifications performed by any outside contractors or third-party companies in regard to the Lobby and Entrance Project. (b) Provide the name and address of the outside contractors or third-party companies in (a) above. (c) Provide all invoices, estimates, receipts, bills, payment records, and cancelled checks for work performed by the outside contractors or third-party companies in (a) above. Page 11 of 18
Communications 29. Copies of all communications, including writings, e-mails, text messages or otherwise, concerning any construction, inspection, repairs, modifications, renovations, maintenance and improvements performed by defendant in regard to the Lobby and Entrance Project. Payment records of supplies 30. Copies of all invoices, estimates, receipts, bills, payment records, and cancelled checks for supplies used by defendant for construction, repairs, modifications, improvements and/or work performed at the subject premises in regard to the Lobby and Entrance Project. Payment records for work 31. Copies of all invoices, estimates, receipts, bills, payment records, and cancelled checks for any work, including construction and improvements, performed on the premises in regard to the Lobby and Entrance Project. Safety 32. All documents, memoranda, electronic records and e-mails that pertain to the safety of workers, tenants, residents, and the general public during construction on the subject premises in regard to the Lobby and Entrance Project. 33. Provide such records that will indicate what safety precautions were to be used on the job site during the Lobby and Entrance Project. 34. Provide copies of all safety inspection reports in regard to the Lobby and Entrance Project. 35. True and complete copies of all reports by the safety manager in regard to the Page 12 of 18
Lobby and Entrance Project. 36. Any and all meeting minutes that pertain to safety of workers and the general public during in regard to the Lobby and Entrance Project. Names and duties of workers 37. Provide any and all schedules, contracts, records, documents, electronic records, e-mails, lists, papers that will identify the names and duties of all contractors and subcontractors who worked at the subject premises in regard to the Lobby and Entrance Project. 38. If no such documents exist responsive to the preceding demand, state the names and duties of all contractors and subcontractors who worked at the subject premises in regard to the Lobby and Entrance Project. Agreements, proposals, contracts, etc. 39. A copy of the construction contract between the owner of the premises and the general contractor in effect on the accident date. 40. A copy of the construction contract between the managing agent of the premises and the general contractor in effect on the accident date. 41. Full name of the job superintendent at the accident premises. If no longer employed, provide his/her last known address and date of birth. 42. Full names of the construction foremen at the job site for the ongoing construction project that was taking place at the subject premises on and prior to the loss date. If no longer employed, provide his/her/their last known address and date of birth. 43. Copies of work logs and daily reports of all trades that performed any work at the subject location during the Lobby and Entrance Project. This response is to Page 13 of 18
include the contractor s full business name address and contact number. 44. Contracts, subcontracts and agreements between any of the parties to this action, (including all appendices riders and addenda), during the Lobby and Entrance Project. 45. Contracts, subcontracts and agreements (including all appendices, riders and addenda) between any of the parties to this action and contractors, subcontractors or third-parties, during the Lobby and Entrance Project. Hold harmless agreements 46. Copies of any written agreements in effect at the time of loss by which and person or entity agreed to hold defendant harmless for any liability in connection with any construction, work, repairs, renovations, improvements, on the subject premises in regard to the Lobby and Entrance Project. 47. Copies of any written agreements in effect by which defendant agreed to hold any person or entity harmless for any liability in connection with any construction, work, repairs, renovations, improvements, on the subject premises in regard to the Lobby and Entrance Project. Documents pertaining to operation, maintenance, supervision, inspection, repair/modification, control, cleaning, etc. 48. Any and all records, agreements, proposals, contracts (including amendments, riders and/or renewals), leases, or any other documents setting forth the responsibilities and duties of any person, party, entity, contractor or third party, in regard to the Lobby and Entrance Project relating to: (a) operation of the lobby and entrance to the subject premises in this action Page 14 of 18
(b) maintenance of the lobby and entrance to the subject premises in this action (c) management of the lobby and entrance to the subject premises in this action (d) (e) (f) supervision of the lobby and entrance to the subject premises in this action inspection of the lobby and entrance to the subject premises in this action repair/modification of the lobby and entrance to the subject premises in this action (g) (h) (i) control of the lobby and entrance to the subject premises in this action cleaning of the lobby and entrance to the subject premises in this action If any items identified in response to (a) (h) above were oral, furnish copies if any papers, documents, legers, logs, etc. which notated such oral statements, and set forth the nature and substance thereof. Prior complaints 49. Records of prior complaints by any person or entity regarding any conditions on the subject premises, including construction, repairs, defects, hazards or dangerous conditions upon the subject premises, for a period of three (3) years prior to and including the date of incident. 50. If any complaints identified in response to the immediately preceding demand were oral, furnish copies if any papers, documents, legers, logs, etc. which notated such oral statements, and set forth the nature and substance thereof. Prior incidents 51. (a) Provide records of prior incidents or accidents involving the same or similar Page 15 of 18
type of occurrence complained of in the instant action defects, hazards or dangerous conditions on the subject premises, for a period of three (3) years prior to the subject accident. (b) Provide the names and addresses of any other individuals who commenced legal action, with caption and index number, for injuries sustained as a result of the same or similar type of occurrence complained of in the instant action, for a period of three (3) years prior to the subject accident. Miscellaneous document demands 52. With respect to construction, maintenance, repairs, modifications, improvements and/or work at the subject premises pertaining to the Lobby and Entrance Project in this action, provide copies of the following items: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) Plans Diagrams Memos Drawings Progress reports Progress photos (color photos) Daily work logs Schemata Blueprints Sign in Log for workers Attendance records Log entries or diaries List of subcontractors on site with pedigree information Copies of all permits, applications, etc. 53. Provide copies of any and all permits, application for permits, denials of permits, with regard to any work performed, or intended to be performed, at the premises, pertaining to the Lobby and Entrance Project, for all construction related activity, including, but not limited to, Page 16 of 18
a. all construction work b. street openings c. sidewalk closings d. sidewalk construction e. canopy permits 54. The response to the preceding demand should include: Violations f. the date of the issuance of the permit g. to whom the permit was issued h. the type of permit i. any renewals of said permits j. any violations issued to the permittee regarding said permit/permits k. cutforms l. backfilling permits and records including the name and address and phone number of the back filling contractor m. excavation permits and records including the name, address and phone number of said contractor 55. Provide records of all violations issued to the defendant by any entity, including, but not limited to, the following municipal entities: a. Department of Environmental Protection b. Department of Sanitation c. Department of Highways d. Department of Transportation e. Department of Buildings 56. Provide all records showing that the violations were either paid, dismissed or remain open. 57. Provide all documents referencing the names and addresses of companies that supplied, delivered and/or provided concrete to the subject premises during the Lobby and Entrance Project. 58. Provide all memorandums issued by or on behalf of Macklowe Management to the tenants at the subject premises in regard to the Lobby and Entrance Project. PLEASE TAKE FURTHER NOTICE, that this demand is a continuing demand, and Page 17 of 18
all items demanded which are obtained by you subsequent to the date stated above should be immediately provided to the undersigned upon receipt by you, IN DEFAULT OF WHICH, the undersigned will move to strike this answering party's pleadings, preclude certain testimony or evidence; or to apply for such other and further relief as may be just and proper. Dated: New York, New York May 8, 2014 Yours, etc. TO: By: PETER H. PARETSKY, ESQ. Attorney for Plaintiff 676-A Ninth Ave., #303 New York, N.Y. 10036 Tel: (212) 362-5391 Fax: (212) 409-8565 TRESSLER LLP Attorneys for Defendants Macklowe Management, LLC and 386 PAS Owner, LLC 744 Broad Street, Suite 1510 Newark, New Jersey 07102 Tel: (646) 833-0900 FIDEN & NORRIS, LLP Attorneys for Defendant Synergy Construction, Inc. 420 Lexington Ave., Suite 442 New York, NY 10170 Tel: (212) 461-6122 Page 18 of 18