FILED: BRONX COUNTY CLERK 10/28/2016 03:08 PM INDEX NO. 25877/2016E NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX CARL BAILEY, Plaintiff, Index No.: 25877/2016E 1801 MARMION LLC, -against- Defendant. OMNIBUS DEMANDS DISCOVERY COUNSEL: PLEASE TAKE NOTICE that the undersigned defendant, by and through The Chartwell Law Offices, LLP, her attorneys in this action, hereby demands 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 Department of Motor Vehicle Records Demand for Employment Records and Authorizations Further Demand for Production of Documents PLEASE TAKE FURTHER NOTICE that in the event that plaintiff fails to comply, this answering defendant will seek an order precluding plaintiff from offering evidence and/or contesting 1 1 of 14
at the time of trial those issues relevant and material to the 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 plaintiff 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 each plaintiff intends to call as witnesses concerning his or her alleged injuries or damages. If no such witnesses are known, demand is made that each plaintiff so state in a 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 plaintiff set forth in writing, no later than twenty (20) days from receipt of this Demand the following: 1. State the name and address of every expert retained or employed by plaintiff 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; 2 2 of 14
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' 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 and addresses and qualifications of all expert witnesses and other person 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 the plaintiff, so state in a sworn reply to this demand. PLEASE TAKE FURTHER NOTICE, that defendant 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: 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 this answering defendant expressly denies; 2. The alleged damages sustained by plaintiff. 3 3 of 14
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 intend 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. 7. In the event plaintiff alleges any permanent or heretofore unresolved injuries as a result of the events described in the Complaint, any photographs in plaintiff s control, custody or possession that depict plaintiff engaged in physical activity making use of the body parts which plaintiff alleges sustained such injuries or otherwise depicting such body parts. PLEASE TAKE FURTHER NOTICE, that defendant 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/or seek to preclude plaintiff from contesting issues material to any such discovery plaintiff withholds in disregard of this demand. PLEASE TAKE FURTHER NOTICE that insofar as this is a continuing demand, defendant will further 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. DEMAND FOR PRODUCTION OF MEDICAL DISCOVERY 4 4 of 14
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 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 each plaintiff within the five (5) years prior to the alleged occurrence giving rise to this action, to and through the present. 2. Serve upon and deliver to the undersigned duly executed and acknowledged HIPAAand Arons-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 five (5) years prior to the alleged occurrence giving rise to this action, to and through the present. 3. Serve upon and deliver to the undersigned duly executed and acknowledged HIPAAand Arons-compliant written authorizations permitting the undersigned 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 the plaintiff's physician(s). 4. Serve upon and deliver to the undersigned attorney for defendant duly executed and acknowledged HIPAA- and Arons-compliant written authorizations directing release to the undersigned 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 5 5 of 14
will allege herein was injured or was aggravated as a result of culpable conduct described in the within Complaint. 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 was caused or aggravated in the occurrence described in the within Verified Complaint which plaintiff has in his actual or constructive custody, control or possession, and that plaintiff direct each custodian of each such record, test result and films not actually in each plaintiff s own custody and/or possession to so also preserve same. 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 each 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. DEMAND FOR PARTY STATEMENTS 6 6 of 14
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 defendant or any of defendant's agents, servants or employees. 2. A statement indicating the substance of any oral statements, including admissions against interest, taken of or from defendant or any of defendant s 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 defendant or any of the defendant's agents, servants or employees. 4. Copies of any and all transcriptions of recorded statements taken of or from defendant or any of defendant's agents, servants or employees. PLEASE TAKE FURTHER NOTICE, that in the event of failure to comply with this demand, defendant 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: 1. 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, (including 7 7 of 14
No Fault first-party benefits), Social Security, Workers Compensation, public benefits, Medicare, Medicare Advantage, Medicaid, employee benefit program or any other source. source: 2. If any of the special damages were paid by, replaced or indemnified by a collateral 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). 3. Provide a duly executed and notarized HIPAA- and Arons-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, Workers Compensation Board, insurer or public benefits provider has promulgated a form other than a standard OCA 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, defendant will seek an order precluding plaintiff from offering evidence 8 8 of 14
and/or contesting issues at the time of trial material to discovery not provided in compliance with the foregoing demand. DEMAND FOR INSURANCE FILE DISCLOSURE PLEASE TAKE NOTICE that defendant hereby demands 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 ten (10) years prior to the date of the occurrence described in the 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- and Arons-compliant authorizations directing release to the undersigned counsel of certified copies of plaintiff s complete claims file 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 ten (10) years prior to the occurrence described in the Complaint herein to and through the present seeking disability benefits or otherwise making claims based on any disability, or if plaintiff otherwise received disability benefits during the aforesaid period, demand is made for duly executed and notarized HIPAA- and Arons-compliant authorizations directing disclosure to the undersigned of certified copies of all related documents by 9 9 of 14
each carrier, governmental agency or third-party administrator to which plaintiff submitted such claim or which provided plaintiff such benefits. 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 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 condition. 5. If plaintiff has submitted a claim for workers compensation or occupational accident coverage benefits for a period of seven (7) years prior to and through 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 also 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 NOTE THAT DEMAND IS EXPRESSLY MADE FOR AUTHORIZATIONS FOR RELEASE OF RECORDS BY BOTH THE WORKERS COMPENSATION BOARD AND ALL WORKERS COMPENSATION CARRIERS TO WHICH PLAINTIFF SUBMITTED AN APPLICATION FOR BENEFITS.] PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and in the event that plaintiff fails to comply, defendant will seek an order precluding plaintiff from offering evidence 10 10 of 14
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 defendant hereby demands that plaintiff provide the undersigned counsel with duly executed authorizations directing disclosure to the undersigned of plaintiff's 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. PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and in the event that plaintiff fails to comply, defendant 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 defendant hereby demands 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 each 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 each 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 your failure to comply with this Demand within twenty (20) days, a motion will be made for an 11 11 of 14
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 defendant hereby demands 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 each plaintiff belonged for a period of five (5) years prior to the occurrence alleged in the Complaint to and through the time 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 your failure 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 defendant hereby demands 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 behalf of plaintiff in connection with or related to any prior civil actions brought by or on behalf of plaintiff to recover damages for personal injuries. In the event any such documents are not within 12 12 of 14
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 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 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 or her 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 13 13 of 14
herein, demand is hereby made that each such plaintiff furnish an executed and acknowledged HIPAA- and Arons-compliant authorization for 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 an impairment or inability to seek or remain gainfully employed, demand is hereby made that plaintiff furnish a duly executed IRS Form 4506 authorization, accompanied by photocopies of two (2) forms of identification (at least one of which bears a photographic likeness), directing release to the undersigned of each such plaintiff s complete tax records for a period of three (3) years prior to the alleged occurrence to and through the present. Dated: New York, NY October 28, 2016 THE CHARTWELL LAW OFFICES, LLP By: William H. Grae, Esq. Attorneys for Defendant 1801 MARMION LLC One Battery Park Plaza, 35th Floor New York, NY 10004 Phone: (212) 968-2300 Facsimile: (212) 968-2400 TO: Michael S. Korson, Esq. Isaacson, Schiowitz & Korson, LLP Attorneys for Plaintiff CARL BAILEY 371 Merrick Road, Suite 302 Rockville Centre, New York 11570 Phone: (516) 208-1300 14 14 of 14