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FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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OGUNWALE ELEBUTE, Index #: 520675/2017
Plaintiff(s), COMBINED DEMANDS
AND NOTICES
-against-
NORTHWELL HEALTH, INC., NORTHSHORE
UNIVERSITY HOSPITAL and JOHNNY RAY MARQUEZ,
Defendant(s)
-- -------------------------------------------- --X
PLEASE TAKE NOTICE that the undersigned hereby serves the following demands and notices
upon defendant(s), pursuant to CPLR Sections 3120 and 3101 et sea., returnable at the offices of
WESER & WESER, P.C., 1392 Coney Island Avenue, Brooklyn, New York 11230, within twenty (20)
days after service hereof:
1) Demand for the Names and Addresses of allWitnesses (annexed);
2) Demand for the Discovery and Inspection of any Statement of a Party Represented by the
Undersigned (annexed);
3) Demand for Insurance Coverage, Insurance Policy Limits, Each insurance Policy, Each
Declarations Page, Insurance Carrier(s) Complete Claim/Investigation File and Affidavit(s) of
Excess, Umbrella and Additional Insurance Coverage (annexed);
4) Demand for Accident Reports, Policy, Procedure and Operating Manuals and Written Rules,
Regulations, Brochures, Manuals and Procedures Regarding the Reporting of Accident
Regarding the Preparation and Filing of an Accident Report (annexed);
5) Demand For Photographs, Movies, Films, Slides, Videotapes, Images, Visual Reproductions
and/or Descriptions, Including Metadata And Electronically Stored Information (ESI) and to
Preserve Evidence (annexed);
6) Demand for Expert Witness Disclosure (annexed);
7) Demand for the Discovery and Inspection of Surveillance Materials (aññêxed);
8) Demand for the Discovery and inspection of Items Relating to Property Damage of Motor
Vehicles (annexed);
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9) Demands Of Taxi (Yellow) Cabs, Radio (Black) Cabs/Car Service, Livery Services, Buses,
Common Carriers And Commercial Carriers (annexed);
10) Leased/Rented Vehicle Demands (annexed);
11) Demand for the Production of Defendant(s) Subject Vehicle(s) and to Preserve Evidence
(annexed);
12) Demand for Copies of Plaintiff(s) Hospital Records; (annexed);
13) Notice of Physical Availability (annexed);
14) Notice Declining Service By Electronic Transmittal (annexed).
PLEASE TAKE FURTHER NOTICE that the annexed demands are continuing demands and that
ifany of the above items are obtained after the date of this demand, they are to be furnished to the
undersigned pursuant to these demands, within twenty (20) days of receipt by defêñdant(s) or their
attorneys.
PLEASE TAKE FURTHER NOTICE, that if there is any claim that the any of the annexed
demanded record(s), documentation and/or information cannot be located, have been destroyed or
mislaid or for some other reason no longer exists, an affidavit, from each defendant personally, is
hereby demanded pursuant to Cromwell v. Ward, 183 A.D.2d 459, 584 N.Y.S.2d 295 (1st Dep't.,
1992); Wilensky v. JRB Marketing & Opinion Research. Inc.,161 A.D.2d 761, 556 N.Y.S.2d 356 (2nd
Dep't., 1990); and Jackson v. City of New York, 185 A.D.2d 768, (N.Y.A.D.,1992). Said affidavit(s) are
to set forth, in detail,the following:
• where the subject records were likely to be kept;
• what efforts, ifany, were made to preserve them;
• whether such records were routinely destroyed, and
• whether a search had been conducted in every location where the records were likely to be
found.
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1) DEMAND FOR THE NAMES AND ADDRESSES OF WITNESSES
PLEASE TAKE NOTICE that the undersigned hereby demands pursuant to Article 31, that you
set forth in writing and under oath the names and address of each person claimed by any party you
represent to be a witness to any of the following:
a) The occurrence alleged in the Complaint;
b) With firsthand knowledge of the occurrence alleged in the Complaint;
c) That was a witness to the scene of the occurrence alleged in the Complaint before the
occurrence, during the occurrence or after the occurrence took place;
d) To any acts, omissions, defects or conditions which isalleged to have caused the accident or
occurrence set forth in the Complaint;
e) Any person giving notice to the defendant(s) of any condition which isalleged to have caused
the accident or occurrence set forth in the Complaint, along with the date and manner
thereof. Ifin writing, supply a copy thereof;
f) Any actual notice given to the defendant(s) or claimed to be given to the defendant(s) of any
ccñdition which is alleged to have caused the accident or occurrence set forth in the
Complaint;
g) The nature and duration of the conditions which allegedly caused the accident or occurrence
set forth in the Complaint;
h) The names and addresses of any persons having knowledge of the acts, notice or conditions
substantiating any affirmative defense asserted by each defendant;
i) Any acts, omissions, defects or conditions at the time of the accident or occurrence, before
the accident or occurrence and/or subsequent to the accident or occurrence;
j) Any injuries and/or damages sustained by plaintiff(s),or the lack thereof;
k) Ifany of the persons named in response to the preceding paragraphs were in the employ of
any defendant on the date of the occurrence complained of, set forth the names and
addresses of each such person;
l) If any such person named in the preceding paragraphs is presently in the employ of any
defendant, set forth the names and addresses of each such person.
PLEASE TAKE FURTHER NOTICE that Ifno such witnesses are known to the defendant(s), so
state in a sworn reply to this demand.
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PLEASE TAKE FUjRTHER NOTICE that plaintiff(s)will object upon trialto the testimony of any
witnesses not so identified.
2) DEMAND FOR DISCOVERY AND INSPECTION OF ANY STATEMENT OF A PARTY
REPRESENTED BY THE UNDERSIGNED
PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands that you produce,
pursuant to CPLR Section 3101(e), the original of each and every statement, writing and audio-tape,
including transcripts or memoranda thereof, from any plaintiff(s) or from any agent, servant and/or
employee of any plaintiff(s), which are in your custody and control or that of any employee,
representative, agent or licensee of the parties which you represent.
PLEASE TAKE FURTHER NOTICE that Ifno such statements are known to the defendant(s), so
state in a sworn reply to this demand.
PLEASE TAKE FUJRTHER NOTICE that plaintiff(s) willobject upon trial to the introduction of
such statements not so provided in response to this demand.
3) DEMAND FOR INSURANCE COVERAGE, INSURANCE POLICY LIMITS, EACH INSURANCE
POLICY. EACH DECLARATIONS PAGE, INSURANCE CARRIERIS) COMPLETE
CLAIM/lNVESTIGATION FILE AND AFFIDAVIT(S) OF EXCESS, UMBRELLA AND ADDITIONAL
INSURANCE COVERAGE
PLEASE TAKE FURTHER NOTICE that the undersigned demands pursuant to CPLR Section
3101(f) that you produce and permit plaintiff(s)to inspect and to copy the contents of any insurance
agreement under which any person carrying on an insurance business may be liable to satisfy part or
allof a judgment which may be entered in thisaction or to indemnify or reimburse for payment made
to satisfy the judgment which may be entered herein, including but not limited to excess and
additional coverage.
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PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands pursuant to CPLR
Section 3101(f) that you set forth in writing and under oath the name and address of each insurance
company, the policy number(s), the name of the insured and the policy limits of any insurance
company which may be liableto satisfy part or allof a judgment which may be entered in this action
or to indemnify or reimburse for payment made to satisfy the judgment which may be entered
herein, including but not limited to excess and additional coverage.
PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands pursuant to CPLR
Section 3101(f) that you produce an affidavit, duly-executed by each client you represent, setting
forth the name and address of each insurance company, the policy number(s), the name of the
insured and the policy limits of any insurance company which may be liableto 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 which may be entered herein, including but not limited to excess and additional
coverage. Ifno excess and additional insurance coverage exists, the affidavit shall so state.
PLEASE TAKE FURTHER NOTICE, that the undersigned demands, pursuant to CPLR 3101(f),
Insurance Law Section 3420(f)(2)(A), Sprague v. Intemational Business Machines Corporation, 120
A.D.2d 514 (2nd Dept., 1986) and Kimbell v. Davis, 81 A.D.2d 855, 856 (2nd Dept., 1981), the
items of are demanded (please note that a response to EACH sub-
following discovery hereby
demand isrequired):
a. Disclosure the insurance policy limits applicable to the within claim; including the
page"
"declarations of said policy;
b. The declaration page(s) of any and allapplicable liabilityand/or casualty insurance policies;
including policies of insurance covering the basic liability,excess, co-insurance and allother
applicable liability,medical payments, coverage and No-Fault coverage, as they apply to the
underlying accident and as specified in the Complaint and more particularly the subject
accident;
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Responsibility"
c. Any SR-22's (a/k/a "Certificate of Financial or FR-12) filed with the applicable
insurance carrier, by each answering defendant, for the policy period in effect at the time of
the subject accident.
d. Ifadditional, umbrella and/or excess coverage was in effect for each answering defendant on
excess"
the date of the subject accident, then an affidavit of "no coverage isdemanded from
each defendant personally.
Retention"
e. A written verified disclosure of any "Self-Insured (a/k/a "SlR"), consent
withholding, any deductible(s), and/or the limits of self-insurance had by each answering
defendant.
f. Each of liability insurance company(s) reports and records, prepared by or for each
defendant's insurance carrier, before itsinsured's direct claim was either paid or rejected. As
this information is made by said insurance carrier in the regular course of business, namely
the business of paying and rejecting claims, itis discoverable by Plaintiff. See, Karta Indus.
Inc. v. The Insurance Co., 258 A.D.2d 375, 685 N.Y.S.2d 685 (1st Dep't., 1999). See Bombard
v. Amica Mut. Ins. Co., 11 A.D.3d 647, 783 N.Y.S.2d 85 (2nd Dept., 2004).
g. Each of the liabilityinsurance company(s) complete investigation file. Objections of work
product or material prepared in anticipation of litigation are invalid. See, Agovino v. Taco
B_elj,5083, 225 A.D.2d 569, 639 N.Y.S.2d 111 (2d Dept. 1996). See also, Gibson v. Encompass
Ins. Co., 23 A.D.3d 1047, 804 N.Y.S.2d 226 (N.Y.A.D., App. Div.,2005) and Bombard v. Amica
M_ut. Ins. Co., 11 A.D.3d 647, 783 N.Y.S.2d 85 (N.Y.A.D., App. Div., 2004) production of a
complete and certified copy of the entire claim file for each applicable claim number. The
insurance company isin the business of making/paying claims; accordingly, this information
is properly discoverable. (Bertalo's Rest. v Exchange Ins. Co., 240 AD2d 452, 454-455, Iv
dismissed 91 NY2d 848 [internal quotation marks omitted]; see Landmark Ins. Co. v Beau
Rivage Rest., 121 AD2d 98, 101); Nicastro v. New York Cent. Mut. Fire Ins. Co., 2014 NY Slip
Op. 03381 (N.Y.A.D. 4th Dep't., 2014). Any objection to this demand is invalid. See,
McKinney's General Business Law § 349 and Medina v. State Farm Mut. Auto. Ins. Co., 303
A.D.2d 987, 757 N.Y.S.2d 178 (N.Y.A.D. 4 Dept., 2003).
h. A written declaration ,that states: (1) the number of claims against each named defendant
herein during the applicable policy period, (2) the amount sought in each claim, and, (3) the
total sums paid out against the policies. See, Kimbel v. Davis, 81 A.D.2d 855, 438 N.Y.S.2d
860 (N.Y.A.D., 1981); Folgate v. Brookhaven Memorial Hospital, 86 Misc.2d 191 (Sup. Ct.
Suffolk Co. 1976).
PLEASE TAKE FURTHER NOTICE that the Appellate Division has held that defendants may
have a claim against their own defense counsel for failure to investigate its client's insurance
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coverage or to notify itsclient's carrier of a potential claim. The Court has determined that the same
conclusion applies even with respect to any attorney who isretained, not by the defendant directly,
but itscarrier. Shaya B. Pacific LLC v. Edelman & Dicker - AD3d -
by Wilson, Elser, Maskowitz, LLP, ,
827, NYS2d 231 (2d Dept. decided Dec. 19, 2006).
4) DEMAND FOR ACC!DENT REPORTS, POLICY, PROCEDURE AND OPERATING MANUALS AND
WRITTEN RULES, REGULATIONS, BROCHURES, MANUALS AND PROCEDURES REGARDING
THE REPORTING OF ACCIDENT REGARDING THE PREPARATION AND rillNG OF AN
ACCIDENT REPORT
PLEASE TAKE FURTHER NOTICE that the undersigned demands pursuant to CPLR Section
3101(g) that you produce and allow the plaintiff(s) to inspect any written report concerning the
accident or occurrence which isthe subject matter of this lawsuit prepared in the regular course of
business operations or practices of any person, firm, corporation, association or other public or
private entity. This demand includes but is not limited to allaccident reports, incident reports and
allMV-104s, whether or not prepared exclusively in preparation for litigation. Pataki v. Kiseda, 80
record"
A.D. 2d 100, 437 N.Y.S. 2d 694 (1981). Any objection that this record isa matter of "public is
not valid. The MV-104 is discoverable from each defendant directly. See, Rodriµüez v. Middle Atlantic
Auto Leasing, Inc.,432 N.Y.S. 2d 709 (1st Dep't 1980). See also, Alfaro v. Schwartz, 649 N.Y.S.2d 176
(2nd Dept. 1996); See also, Long v. State, 33 A.D.2d 621 (3d Dept. 1969).
PLEASE TAKE FURTHER NOTICE that ifdefendant-driver(s) was/were employed on the date
of accident, it is requested that defendant(s) provide all training manuals, procedure manuals,
operation manuals, route books and guide books disseminated and utilized by defendant(s) for their
vehicle operators as well as for use in and policies to be following during emergencies as well as all
written rules, regulations, brochures, manuals and procedures in effect on the date of accident
the of accident and regarding the preparation and filingof an accident report.
regarding reporting
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PLEASE TAKE FURTHER NOTICE that if no such documentation are known to the
defendant(s), so state in a sworn reply to this demand.
PLEASE TAKE FUJRTHER NOTICE that plaintiff(s)will object upon trialto the introduction of
such documentation not so provided in response to this demand.
5) DEMAND FOR PHOTOGRAPHS, MOVIES, FILMS, SLIDES. VIDEOTAPES, IMAGES, VISUAL
REPRODUCTIONS AND/OR DESCRIPTIONS, INCLUDING METADATA AND ELECTRONICALLY
STORED INFORMATION (ESI) AND TO PRESERVE EVIDENCE
GENERAL INSTRUCTIONS
A. Plaintiff(s) demand(s) that defendant(s) preserve each photograph, movie, film, slide,
videotape, image, visual reproduction and/or descriptioñ that has previously been exchanged
along with each photograph, movie, film, slide,videotape, image, visual repro crion and/or
description that has yet to be exchanged. This isa continuing demand.
B. This demand includes all information as to when each item was created, opened, closed,
viewed, printed and edited.
C. This demand also includes the substantive information that was edited and/or deleted.
image"
D. This demand also includes providing plaintiff with a "mirror of each computer system
that contains and/or contained each item that willpreserve the present status of the digital
image"
information. A "mirror contains all the information in the computer, including
embedded, residual and deleted data.
E. This demand also includes a requirement that all Metadata (substantive, system and
embedded) associated with said electronic and/or electronically stored data and information
information"
be exchanged as well. Metadata is"secondary that describes a document's
usage."
"characteristics, origins, and See, Matter of Irwin v. Onondaga County Resource
Recovery Agency, 2010 N.Y. Slip Op. 01238 (N.Y.A.D., 2010).
F. This demand also includes a requirement that allfilesbe exchanged in their Native Electronic
Format. See Dartnell v Hewlett Packard, 2011 NY Slip Op 51758(U) (Sup.Ct. Monroe County.
2011).
"you" "your" "defendant" "defendants"
G. As used in this document, and and/or or refers to
each named defendant, and their predecessors, successors, parents, subsidiaries, divisions
and affiliates, and their respective officers, directors, agents, attorneys, accountants,
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employees, partners and other persons occupying similar positions or performing similar
functions.
H. This demand includes all photographs, movies, films, slides, videotapes, images, visual
reproductions and/or descriptions stored on defendants (as well as each agent, servant and
employee of each defendant) current and former computer systems and other media and
devices, at home and at work (including laptops, notebooks, desktop computers, as well as
every other piece of electronic equipment, including cell phones, tables, smartphones,
personal digital assistants, voice-messaging systems and online repositories), hereinafter
collectively referred to as "computer systems".
I. Electronically stored information (hereinafter "ESl") should be afforded the broadest possible
meaning and includes (by way of example and not as an exclusive list)potentially relevant
information electronically, magnetically, optically or otherwise stored as:
• Digital communications voice instant
(e.g., e-mail, mail, messaging);
• E-Mail Server Stores Lotus Domino .NSF or Microsoft Exchange
(e.g., .EDB)
• Word processed documents Word or WordPerfect filesand
(e.g., drafts);
• Spreadsheets and tables Excel or Lotus 123
(e.g., worksheets);
• Application Data Peachtree
Accounting (e.g.,QuickBooks, Money, data);
• Image and Facsimile Files (e.g., .PDF, .TIFF, .GIF images);
.JPG,
• Sound Recordings .WAV and .MP3
(e.g., files);
• Video and Animation .AVI and .MOV
(e.g., files);
• Databases SQL Server
(e.g.,Access, Oracle, data, SAP);
• Contact and Management Data ACTI);
Relationship (e.g.,Outlook,
• Calendar and Application Data Outlook entries);
Diary (e.g., PST, blog
• Online Access Data Internet History, Cookies);
(e.g.,Temporary Files,
• Presentations Corel
(e.g., PowerPoint, Presentations)
• Network Access and Server Activity Logs;
• Project Management Application Data;
• Computer Aided and
Design/Drawing Files;
• and Archival Files .GHO).
Backup (e.g.,Veritas, Zip,
J. ESI resides not only in areas of electronic, magnetic and optical storage media reasonably
accessible to you, but also in areas you may deem not reasonably accessible. You are obliged
to preserve potentially relevant evidence from both sources of ESI, even if you do not
anticipate producing such ESI.
K. The demand that you preserve both accessible and inaccessible ESI is reasonable and
necessary. Pursuant to the rules of civilprocedure, you must identify allsources of ESI you
decline to produce and demonstrate to the court why such sources are not reasonably
accessible. For good cause shown, the court may order production of the ESI, even ifitis not
accessible. Accordingly, you must preserve ESI that you deem inaccessible so as
reasonably
not to preempt the court's authority.
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L Preservation Requires Immediate Intervention. You must act immediately to preserve
potentially relevant ESI, including, without limitation, information with the earlier of a
Created or Last Modified date through the date of this demand.
M. Adequate preservation of ESI requires more than simply refraining from efforts to destroy or
dispose of such evidence. You must intervene to prevent loss due to routine operations or
malfeasance and employ proper techniques and protocols to preserve ESL Booting a drive,
examining its contents or running any application may irretrievably alter the evidence it
contains and constitute unlawful spoliation of evidence. Preservation requires action.
N. Nothing in this demand for preservation of ESI should be understood to diminish your
concurrent obligation to preserve documents, tangible things and other potentially relevant
evidence.
O. Suspension of Routine Destruction. You are directed to immediately initiate a litigation hold
for potentially relevant ESI, documents and tangible things and to act diligently and in good
faith to secure and audit compliance with such litigation hold. You are further directed to
immediately identify and modify or suspend features of your information systems and
devices that, in routine operation, operate to cause the loss of potentially relevant ESl.
Examples of such features and operations include:
• the contents of e-mail repositories age, or other criteria;
Purging by capacity
• data or media wiping, disposal, erasure or encryption utilitiesor devices;
Using
• Overwriting, or media;
erasing, destroying discarding backup
• or of systems, servers, devices or media;
Re-assigning, re-imaging disposing
• antivirus or other programs wholesale metadata alteration;
Running effecting
• or online storage repositories;
Releasing purging
• metadata stripper utilities;
Using
• server, packet or local instant messaging logging; and,
Disabling
• drive or filedefragmentation or compression programs.
Executing
P. Guard Against Deletion. You should anticipate that your officers, employees or others may
seek to hide, destroy or alter ESl. You must act to prevent and guard against such actions.
Especially where company machines were used for Internet access or personal
communications, you should anticipate that users may seek to delete or destroy information
they regard as personal, confidential or embarrassing, and in so doing, they may also delete
or destroy potentially relevant ESI. This concern isnot unique to you. It'ssimply conduct that
occurs with such regularity that any custodian of ESI and their counsel must anticipate and
guard against itsoccurrence.
Q. Preservation of Backup Tapes. You are directed to preserve complete backup tape sets
(including differentials and incrementals) containing e-mail and ESI .
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R. Act to Prevent Spoliation. You should take affirmative steps to prevent anyone with access
to your data, systems and archives from seeking to modify, destroy or hide ESI on network or
local hard drives and on other media or devices (such as by deleting or overwriting files,using
data shredding and overwriting applications, defragmentation, re-imaging, damaging or
replacing media, encryption, compression, steganography or the like).
S. System Sequestration or Forensically Sound Imaging. As an appropriate and cost-effective
means of preservation, you should remove from service and securely sequester the systems,
media and devices housing potentially relevant ESI.
In the event you deem it impractical to sequester systems, media and devices, we believe
that the breadth of preservation required, coupled with the modest number of systems
implicated, dictates that forensically sound imaging of the systems, media and devices of
those named above is expedient and cost effective. As we anticipate the need for forensic
examination of one or more of the systems and the presence of relevant evidence in
forensically accessible areas of the drives, we demand that you employ forensically sound ESI
preservation methods. Failure to use such methods poses a significant threat of spoliation
and data loss.
preservation"
T. "Forensically sound ESI means duplication of alldata stored on the evidence
media while employing a proper chain of custody and using tools and methods that make no
changes to the evidence and support authentication of the duplicate as a true and complete
bit- for-bit image of the original. The products of sound duplication are
forensically called,
images" "clones"
inter alia, "bitstream or of the evidence media. A forensically sound
Preview
FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X OGUNWALE ELEBUTE, Index #: 520675/2017 Plaintiff(s), COMBINED DEMANDS AND NOTICES -against- NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPITAL and JOHNNY RAY MARQUEZ, Defendant(s) -- -------------------------------------------- --X PLEASE TAKE NOTICE that the undersigned hereby serves the following demands and notices upon defendant(s), pursuant to CPLR Sections 3120 and 3101 et sea., returnable at the offices of WESER & WESER, P.C., 1392 Coney Island Avenue, Brooklyn, New York 11230, within twenty (20) days after service hereof: 1) Demand for the Names and Addresses of allWitnesses (annexed); 2) Demand for the Discovery and Inspection of any Statement of a Party Represented by the Undersigned (annexed); 3) Demand for Insurance Coverage, Insurance Policy Limits, Each insurance Policy, Each Declarations Page, Insurance Carrier(s) Complete Claim/Investigation File and Affidavit(s) of Excess, Umbrella and Additional Insurance Coverage (annexed); 4) Demand for Accident Reports, Policy, Procedure and Operating Manuals and Written Rules, Regulations, Brochures, Manuals and Procedures Regarding the Reporting of Accident Regarding the Preparation and Filing of an Accident Report (annexed); 5) Demand For Photographs, Movies, Films, Slides, Videotapes, Images, Visual Reproductions and/or Descriptions, Including Metadata And Electronically Stored Information (ESI) and to Preserve Evidence (annexed); 6) Demand for Expert Witness Disclosure (annexed); 7) Demand for the Discovery and Inspection of Surveillance Materials (aññêxed); 8) Demand for the Discovery and inspection of Items Relating to Property Damage of Motor Vehicles (annexed); WESER & WESER 1 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 1 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 9) Demands Of Taxi (Yellow) Cabs, Radio (Black) Cabs/Car Service, Livery Services, Buses, Common Carriers And Commercial Carriers (annexed); 10) Leased/Rented Vehicle Demands (annexed); 11) Demand for the Production of Defendant(s) Subject Vehicle(s) and to Preserve Evidence (annexed); 12) Demand for Copies of Plaintiff(s) Hospital Records; (annexed); 13) Notice of Physical Availability (annexed); 14) Notice Declining Service By Electronic Transmittal (annexed). PLEASE TAKE FURTHER NOTICE that the annexed demands are continuing demands and that ifany of the above items are obtained after the date of this demand, they are to be furnished to the undersigned pursuant to these demands, within twenty (20) days of receipt by defêñdant(s) or their attorneys. PLEASE TAKE FURTHER NOTICE, that if there is any claim that the any of the annexed demanded record(s), documentation and/or information cannot be located, have been destroyed or mislaid or for some other reason no longer exists, an affidavit, from each defendant personally, is hereby demanded pursuant to Cromwell v. Ward, 183 A.D.2d 459, 584 N.Y.S.2d 295 (1st Dep't., 1992); Wilensky v. JRB Marketing & Opinion Research. Inc.,161 A.D.2d 761, 556 N.Y.S.2d 356 (2nd Dep't., 1990); and Jackson v. City of New York, 185 A.D.2d 768, (N.Y.A.D.,1992). Said affidavit(s) are to set forth, in detail,the following: • where the subject records were likely to be kept; • what efforts, ifany, were made to preserve them; • whether such records were routinely destroyed, and • whether a search had been conducted in every location where the records were likely to be found. WESER & WESER 2 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 2 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 1) DEMAND FOR THE NAMES AND ADDRESSES OF WITNESSES PLEASE TAKE NOTICE that the undersigned hereby demands pursuant to Article 31, that you set forth in writing and under oath the names and address of each person claimed by any party you represent to be a witness to any of the following: a) The occurrence alleged in the Complaint; b) With firsthand knowledge of the occurrence alleged in the Complaint; c) That was a witness to the scene of the occurrence alleged in the Complaint before the occurrence, during the occurrence or after the occurrence took place; d) To any acts, omissions, defects or conditions which isalleged to have caused the accident or occurrence set forth in the Complaint; e) Any person giving notice to the defendant(s) of any condition which isalleged to have caused the accident or occurrence set forth in the Complaint, along with the date and manner thereof. Ifin writing, supply a copy thereof; f) Any actual notice given to the defendant(s) or claimed to be given to the defendant(s) of any ccñdition which is alleged to have caused the accident or occurrence set forth in the Complaint; g) The nature and duration of the conditions which allegedly caused the accident or occurrence set forth in the Complaint; h) The names and addresses of any persons having knowledge of the acts, notice or conditions substantiating any affirmative defense asserted by each defendant; i) Any acts, omissions, defects or conditions at the time of the accident or occurrence, before the accident or occurrence and/or subsequent to the accident or occurrence; j) Any injuries and/or damages sustained by plaintiff(s),or the lack thereof; k) Ifany of the persons named in response to the preceding paragraphs were in the employ of any defendant on the date of the occurrence complained of, set forth the names and addresses of each such person; l) If any such person named in the preceding paragraphs is presently in the employ of any defendant, set forth the names and addresses of each such person. PLEASE TAKE FURTHER NOTICE that Ifno such witnesses are known to the defendant(s), so state in a sworn reply to this demand. WESER & WESER 3 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 3 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 PLEASE TAKE FUjRTHER NOTICE that plaintiff(s)will object upon trialto the testimony of any witnesses not so identified. 2) DEMAND FOR DISCOVERY AND INSPECTION OF ANY STATEMENT OF A PARTY REPRESENTED BY THE UNDERSIGNED PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands that you produce, pursuant to CPLR Section 3101(e), the original of each and every statement, writing and audio-tape, including transcripts or memoranda thereof, from any plaintiff(s) or from any agent, servant and/or employee of any plaintiff(s), which are in your custody and control or that of any employee, representative, agent or licensee of the parties which you represent. PLEASE TAKE FURTHER NOTICE that Ifno such statements are known to the defendant(s), so state in a sworn reply to this demand. PLEASE TAKE FUJRTHER NOTICE that plaintiff(s) willobject upon trial to the introduction of such statements not so provided in response to this demand. 3) DEMAND FOR INSURANCE COVERAGE, INSURANCE POLICY LIMITS, EACH INSURANCE POLICY. EACH DECLARATIONS PAGE, INSURANCE CARRIERIS) COMPLETE CLAIM/lNVESTIGATION FILE AND AFFIDAVIT(S) OF EXCESS, UMBRELLA AND ADDITIONAL INSURANCE COVERAGE PLEASE TAKE FURTHER NOTICE that the undersigned demands pursuant to CPLR Section 3101(f) that you produce and permit plaintiff(s)to inspect and to copy the contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or allof a judgment which may be entered in thisaction or to indemnify or reimburse for payment made to satisfy the judgment which may be entered herein, including but not limited to excess and additional coverage. WESER & WESER 4 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 4 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands pursuant to CPLR Section 3101(f) that you set forth in writing and under oath the name and address of each insurance company, the policy number(s), the name of the insured and the policy limits of any insurance company which may be liableto satisfy part or allof a judgment which may be entered in this action or to indemnify or reimburse for payment made to satisfy the judgment which may be entered herein, including but not limited to excess and additional coverage. PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands pursuant to CPLR Section 3101(f) that you produce an affidavit, duly-executed by each client you represent, setting forth the name and address of each insurance company, the policy number(s), the name of the insured and the policy limits of any insurance company which may be liableto 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 which may be entered herein, including but not limited to excess and additional coverage. Ifno excess and additional insurance coverage exists, the affidavit shall so state. PLEASE TAKE FURTHER NOTICE, that the undersigned demands, pursuant to CPLR 3101(f), Insurance Law Section 3420(f)(2)(A), Sprague v. Intemational Business Machines Corporation, 120 A.D.2d 514 (2nd Dept., 1986) and Kimbell v. Davis, 81 A.D.2d 855, 856 (2nd Dept., 1981), the items of are demanded (please note that a response to EACH sub- following discovery hereby demand isrequired): a. Disclosure the insurance policy limits applicable to the within claim; including the page" "declarations of said policy; b. The declaration page(s) of any and allapplicable liabilityand/or casualty insurance policies; including policies of insurance covering the basic liability,excess, co-insurance and allother applicable liability,medical payments, coverage and No-Fault coverage, as they apply to the underlying accident and as specified in the Complaint and more particularly the subject accident; WESER & WESER 5 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 5 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 Responsibility" c. Any SR-22's (a/k/a "Certificate of Financial or FR-12) filed with the applicable insurance carrier, by each answering defendant, for the policy period in effect at the time of the subject accident. d. Ifadditional, umbrella and/or excess coverage was in effect for each answering defendant on excess" the date of the subject accident, then an affidavit of "no coverage isdemanded from each defendant personally. Retention" e. A written verified disclosure of any "Self-Insured (a/k/a "SlR"), consent withholding, any deductible(s), and/or the limits of self-insurance had by each answering defendant. f. Each of liability insurance company(s) reports and records, prepared by or for each defendant's insurance carrier, before itsinsured's direct claim was either paid or rejected. As this information is made by said insurance carrier in the regular course of business, namely the business of paying and rejecting claims, itis discoverable by Plaintiff. See, Karta Indus. Inc. v. The Insurance Co., 258 A.D.2d 375, 685 N.Y.S.2d 685 (1st Dep't., 1999). See Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647, 783 N.Y.S.2d 85 (2nd Dept., 2004). g. Each of the liabilityinsurance company(s) complete investigation file. Objections of work product or material prepared in anticipation of litigation are invalid. See, Agovino v. Taco B_elj,5083, 225 A.D.2d 569, 639 N.Y.S.2d 111 (2d Dept. 1996). See also, Gibson v. Encompass Ins. Co., 23 A.D.3d 1047, 804 N.Y.S.2d 226 (N.Y.A.D., App. Div.,2005) and Bombard v. Amica M_ut. Ins. Co., 11 A.D.3d 647, 783 N.Y.S.2d 85 (N.Y.A.D., App. Div., 2004) production of a complete and certified copy of the entire claim file for each applicable claim number. The insurance company isin the business of making/paying claims; accordingly, this information is properly discoverable. (Bertalo's Rest. v Exchange Ins. Co., 240 AD2d 452, 454-455, Iv dismissed 91 NY2d 848 [internal quotation marks omitted]; see Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101); Nicastro v. New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op. 03381 (N.Y.A.D. 4th Dep't., 2014). Any objection to this demand is invalid. See, McKinney's General Business Law § 349 and Medina v. State Farm Mut. Auto. Ins. Co., 303 A.D.2d 987, 757 N.Y.S.2d 178 (N.Y.A.D. 4 Dept., 2003). h. A written declaration ,that states: (1) the number of claims against each named defendant herein during the applicable policy period, (2) the amount sought in each claim, and, (3) the total sums paid out against the policies. See, Kimbel v. Davis, 81 A.D.2d 855, 438 N.Y.S.2d 860 (N.Y.A.D., 1981); Folgate v. Brookhaven Memorial Hospital, 86 Misc.2d 191 (Sup. Ct. Suffolk Co. 1976). PLEASE TAKE FURTHER NOTICE that the Appellate Division has held that defendants may have a claim against their own defense counsel for failure to investigate its client's insurance WESER & WESER 6 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 6 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 coverage or to notify itsclient's carrier of a potential claim. The Court has determined that the same conclusion applies even with respect to any attorney who isretained, not by the defendant directly, but itscarrier. Shaya B. Pacific LLC v. Edelman & Dicker - AD3d - by Wilson, Elser, Maskowitz, LLP, , 827, NYS2d 231 (2d Dept. decided Dec. 19, 2006). 4) DEMAND FOR ACC!DENT REPORTS, POLICY, PROCEDURE AND OPERATING MANUALS AND WRITTEN RULES, REGULATIONS, BROCHURES, MANUALS AND PROCEDURES REGARDING THE REPORTING OF ACCIDENT REGARDING THE PREPARATION AND rillNG OF AN ACCIDENT REPORT PLEASE TAKE FURTHER NOTICE that the undersigned demands pursuant to CPLR Section 3101(g) that you produce and allow the plaintiff(s) to inspect any written report concerning the accident or occurrence which isthe subject matter of this lawsuit prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity. This demand includes but is not limited to allaccident reports, incident reports and allMV-104s, whether or not prepared exclusively in preparation for litigation. Pataki v. Kiseda, 80 record" A.D. 2d 100, 437 N.Y.S. 2d 694 (1981). Any objection that this record isa matter of "public is not valid. The MV-104 is discoverable from each defendant directly. See, Rodriµüez v. Middle Atlantic Auto Leasing, Inc.,432 N.Y.S. 2d 709 (1st Dep't 1980). See also, Alfaro v. Schwartz, 649 N.Y.S.2d 176 (2nd Dept. 1996); See also, Long v. State, 33 A.D.2d 621 (3d Dept. 1969). PLEASE TAKE FURTHER NOTICE that ifdefendant-driver(s) was/were employed on the date of accident, it is requested that defendant(s) provide all training manuals, procedure manuals, operation manuals, route books and guide books disseminated and utilized by defendant(s) for their vehicle operators as well as for use in and policies to be following during emergencies as well as all written rules, regulations, brochures, manuals and procedures in effect on the date of accident the of accident and regarding the preparation and filingof an accident report. regarding reporting WESER & WESER 7 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 7 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 PLEASE TAKE FURTHER NOTICE that if no such documentation are known to the defendant(s), so state in a sworn reply to this demand. PLEASE TAKE FUJRTHER NOTICE that plaintiff(s)will object upon trialto the introduction of such documentation not so provided in response to this demand. 5) DEMAND FOR PHOTOGRAPHS, MOVIES, FILMS, SLIDES. VIDEOTAPES, IMAGES, VISUAL REPRODUCTIONS AND/OR DESCRIPTIONS, INCLUDING METADATA AND ELECTRONICALLY STORED INFORMATION (ESI) AND TO PRESERVE EVIDENCE GENERAL INSTRUCTIONS A. Plaintiff(s) demand(s) that defendant(s) preserve each photograph, movie, film, slide, videotape, image, visual reproduction and/or descriptioñ that has previously been exchanged along with each photograph, movie, film, slide,videotape, image, visual repro crion and/or description that has yet to be exchanged. This isa continuing demand. B. This demand includes all information as to when each item was created, opened, closed, viewed, printed and edited. C. This demand also includes the substantive information that was edited and/or deleted. image" D. This demand also includes providing plaintiff with a "mirror of each computer system that contains and/or contained each item that willpreserve the present status of the digital image" information. A "mirror contains all the information in the computer, including embedded, residual and deleted data. E. This demand also includes a requirement that all Metadata (substantive, system and embedded) associated with said electronic and/or electronically stored data and information information" be exchanged as well. Metadata is"secondary that describes a document's usage." "characteristics, origins, and See, Matter of Irwin v. Onondaga County Resource Recovery Agency, 2010 N.Y. Slip Op. 01238 (N.Y.A.D., 2010). F. This demand also includes a requirement that allfilesbe exchanged in their Native Electronic Format. See Dartnell v Hewlett Packard, 2011 NY Slip Op 51758(U) (Sup.Ct. Monroe County. 2011). "you" "your" "defendant" "defendants" G. As used in this document, and and/or or refers to each named defendant, and their predecessors, successors, parents, subsidiaries, divisions and affiliates, and their respective officers, directors, agents, attorneys, accountants, WESER & WESER 8 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 8 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 employees, partners and other persons occupying similar positions or performing similar functions. H. This demand includes all photographs, movies, films, slides, videotapes, images, visual reproductions and/or descriptions stored on defendants (as well as each agent, servant and employee of each defendant) current and former computer systems and other media and devices, at home and at work (including laptops, notebooks, desktop computers, as well as every other piece of electronic equipment, including cell phones, tables, smartphones, personal digital assistants, voice-messaging systems and online repositories), hereinafter collectively referred to as "computer systems". I. Electronically stored information (hereinafter "ESl") should be afforded the broadest possible meaning and includes (by way of example and not as an exclusive list)potentially relevant information electronically, magnetically, optically or otherwise stored as: • Digital communications voice instant (e.g., e-mail, mail, messaging); • E-Mail Server Stores Lotus Domino .NSF or Microsoft Exchange (e.g., .EDB) • Word processed documents Word or WordPerfect filesand (e.g., drafts); • Spreadsheets and tables Excel or Lotus 123 (e.g., worksheets); • Application Data Peachtree Accounting (e.g.,QuickBooks, Money, data); • Image and Facsimile Files (e.g., .PDF, .TIFF, .GIF images); .JPG, • Sound Recordings .WAV and .MP3 (e.g., files); • Video and Animation .AVI and .MOV (e.g., files); • Databases SQL Server (e.g.,Access, Oracle, data, SAP); • Contact and Management Data ACTI); Relationship (e.g.,Outlook, • Calendar and Application Data Outlook entries); Diary (e.g., PST, blog • Online Access Data Internet History, Cookies); (e.g.,Temporary Files, • Presentations Corel (e.g., PowerPoint, Presentations) • Network Access and Server Activity Logs; • Project Management Application Data; • Computer Aided and Design/Drawing Files; • and Archival Files .GHO). Backup (e.g.,Veritas, Zip, J. ESI resides not only in areas of electronic, magnetic and optical storage media reasonably accessible to you, but also in areas you may deem not reasonably accessible. You are obliged to preserve potentially relevant evidence from both sources of ESI, even if you do not anticipate producing such ESI. K. The demand that you preserve both accessible and inaccessible ESI is reasonable and necessary. Pursuant to the rules of civilprocedure, you must identify allsources of ESI you decline to produce and demonstrate to the court why such sources are not reasonably accessible. For good cause shown, the court may order production of the ESI, even ifitis not accessible. Accordingly, you must preserve ESI that you deem inaccessible so as reasonably not to preempt the court's authority. WESER & WESER 9 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 9 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 L Preservation Requires Immediate Intervention. You must act immediately to preserve potentially relevant ESI, including, without limitation, information with the earlier of a Created or Last Modified date through the date of this demand. M. Adequate preservation of ESI requires more than simply refraining from efforts to destroy or dispose of such evidence. You must intervene to prevent loss due to routine operations or malfeasance and employ proper techniques and protocols to preserve ESL Booting a drive, examining its contents or running any application may irretrievably alter the evidence it contains and constitute unlawful spoliation of evidence. Preservation requires action. N. Nothing in this demand for preservation of ESI should be understood to diminish your concurrent obligation to preserve documents, tangible things and other potentially relevant evidence. O. Suspension of Routine Destruction. You are directed to immediately initiate a litigation hold for potentially relevant ESI, documents and tangible things and to act diligently and in good faith to secure and audit compliance with such litigation hold. You are further directed to immediately identify and modify or suspend features of your information systems and devices that, in routine operation, operate to cause the loss of potentially relevant ESl. Examples of such features and operations include: • the contents of e-mail repositories age, or other criteria; Purging by capacity • data or media wiping, disposal, erasure or encryption utilitiesor devices; Using • Overwriting, or media; erasing, destroying discarding backup • or of systems, servers, devices or media; Re-assigning, re-imaging disposing • antivirus or other programs wholesale metadata alteration; Running effecting • or online storage repositories; Releasing purging • metadata stripper utilities; Using • server, packet or local instant messaging logging; and, Disabling • drive or filedefragmentation or compression programs. Executing P. Guard Against Deletion. You should anticipate that your officers, employees or others may seek to hide, destroy or alter ESl. You must act to prevent and guard against such actions. Especially where company machines were used for Internet access or personal communications, you should anticipate that users may seek to delete or destroy information they regard as personal, confidential or embarrassing, and in so doing, they may also delete or destroy potentially relevant ESI. This concern isnot unique to you. It'ssimply conduct that occurs with such regularity that any custodian of ESI and their counsel must anticipate and guard against itsoccurrence. Q. Preservation of Backup Tapes. You are directed to preserve complete backup tape sets (including differentials and incrementals) containing e-mail and ESI . WESER & WESER 10 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 10 of 33 FILED: KINGS COUNTY CLERK 08/16/2018 10:01 AM INDEX NO. 520675/2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/16/2018 R. Act to Prevent Spoliation. You should take affirmative steps to prevent anyone with access to your data, systems and archives from seeking to modify, destroy or hide ESI on network or local hard drives and on other media or devices (such as by deleting or overwriting files,using data shredding and overwriting applications, defragmentation, re-imaging, damaging or replacing media, encryption, compression, steganography or the like). S. System Sequestration or Forensically Sound Imaging. As an appropriate and cost-effective means of preservation, you should remove from service and securely sequester the systems, media and devices housing potentially relevant ESI. In the event you deem it impractical to sequester systems, media and devices, we believe that the breadth of preservation required, coupled with the modest number of systems implicated, dictates that forensically sound imaging of the systems, media and devices of those named above is expedient and cost effective. As we anticipate the need for forensic examination of one or more of the systems and the presence of relevant evidence in forensically accessible areas of the drives, we demand that you employ forensically sound ESI preservation methods. Failure to use such methods poses a significant threat of spoliation and data loss. preservation" T. "Forensically sound ESI means duplication of alldata stored on the evidence media while employing a proper chain of custody and using tools and methods that make no changes to the evidence and support authentication of the duplicate as a true and complete bit- for-bit image of the original. The products of sound duplication are forensically called, images" "clones" inter alia, "bitstream or of the evidence media. A forensically sound