Preview
FILED: QUEENS COUNTY CLERK 09/02/2020
06/01/2021 06:53
03:10 PM INDEX NO. 705559/2019
NYSCEF DOC. NO. 29
80 RECEIVED NYSCEF: 09/02/2020
06/01/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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RAFIK ARABOV,
RESPONSE TO PLAINTIFF’S
Plaintiff POST EXAMINATION BEFORE
TRIAL DEMANDS
-against-
Index No.: 705559/2019
THE CITY OF NEW YORK, NEW YORK CITY Law Dept. No.: 2018-092777
POLICE DEPARTMENT AND PATRICK LACRUZ,
Defendants.
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PLEASE TAKE NOTICE that defendants THE CITY OF NEW YORK, THE
CITY OF NEW YORK S/H/A THE NEW YORK CITY POLICE DEPARTMENT, AND
PATRICK LACRUZ (hereinafter “Defendants”), in response to the Plaintiff’s Demands for
Discovery, dated April 16, 2020, provides these responses upon information and belief and upon
the records maintained in this office, as follows:
GENERAL STATEMENT AND GENERAL OBJECTIONS
1. Defendants object to these Demands to the extent that they purport to
impose obligations on Defendants other than those imposed or authorized by the CPLR. Further,
Defendants specifically object to these Demands to the extent they request information not
“material and necessary” to the defense or prosecution of an action as set forth in CPLR §
3101(a).
2. Defendants object to these Demands to the extent that they are palpably
improper, vague, overbroad, and unduly burdensome to the extent each demand “fails to specify
the documents to be disclosed with reasonable particularity.” See Conway v. Bayley Seton
Hosp., 104 A.D.2d 1018, 1019 (2d Dep’t 1984) (holding that discovery and inspection of records
which were not limited in terms were overly broad inasmuch as they “could be read to include a
1
FILED: QUEENS COUNTY CLERK 09/02/2020
06/01/2021 06:53
03:10 PM INDEX NO. 705559/2019
NYSCEF DOC. NO. 29
80 RECEIVED NYSCEF: 09/02/2020
06/01/2021
myriad of irrelevant items”); Andrews v. Trustco Bank, 289 A.D.2d 910, 913 (3d Dep’t 2001)
(holding that requests for “all . . . materials” and “all memorandum, correspondence, and work
papers” are “overbroad, seek irrelevant information and impose an undue burden”); Finn v.
Town of Southampton, 266 A.d.2d 429 (2d Dep’t 1999); Harrison v. Bayley Seton Hosp., 247
A.D.2d 513 (2d Dep’t 1998); Blum v. Allied Hardware, Inc., 237 A.D.2d 492 (2d Dep’t 1997);
Andrews v. Trustco Bank, 289 A.D.2d 910, 913 (3d Dep’t 2001); Related Companies v. Bishops
Services, Inc., 171 A.D.2d 421 (1st Dep’t 1991); American Reliance Insurance Co., 174 A.D.2d
591 (2d Dep’t 1991).
3. In providing these objections and responses, Defendants do not in any way
waive but preserves: (i) all objections as to vagueness, ambiguity and undue burden; (ii) all
objections as to materiality, relevance and admissibility of any document or information
produced in response to these Demands, or the subject matter thereof; and (iii) all rights to object
on any ground to the use of any of said documents or information, or the subject matter thereof,
in any subsequent proceedings, including the trial of this or any other action.
4. These general objections are incorporated into each of the specific
responses to these Demands and shall be deemed continuing as to each Demand and are not
waived, nor in any way limited by, specific responses.
5. Defendants object to these Demands to the extent that they seek
documents and/or information which are protected by the attorney-client or work-product
privilege, or which constitute material prepared for litigation purposes.
6. Inadvertent production of any document or information which is
privileged, was prepared in anticipation of litigation, or is otherwise immune from discovery,
shall not constitute a waiver of any privilege or of another ground for objecting to discovery with
2
FILED: QUEENS COUNTY CLERK 09/02/2020
06/01/2021 06:53
03:10 PM INDEX NO. 705559/2019
NYSCEF DOC. NO. 29
80 RECEIVED NYSCEF: 09/02/2020
06/01/2021
respect to that document or any other document, or its subject matter, or the information
contained therein, or of Defendants’ right to object to the use of any such document or the
information contained therein during any proceeding in this litigation or otherwise.
7. Defendants object in the entirety to any request for information or
production from entities not represented by the Corporation Counsel of the City of New York.
8. Defendants are continuing to search for information responsive to
Plaintiff’s requests and therefore reserves the right to supplement its response to each request
with additional information, if and when such information becomes available to Defendants’
counsel. Defendants also reserve the right to object to the future disclosure of any such
information.
DEFENDANTS’ RESPONSES TO DEMANDS FOR DISCOVERY
DEMAND NO 1: A copy of the “activity log” or “memo book” of Defendant PATRICK
LACRUZ for the date of November 25, 2018, pursuant to Defendant’s testimony on March 4,
2020 (Page 28:5-29:13).
RESPONSE TO DEMAND NO 1: Defendants object to this demand on the grounds that it is
overbroad, not sufficiently limited in scope, and seeks information that is not reasonably
calculated to lead to the discovery of admissible evidence and that may be sealed pursuant to
Criminal Procedure Law Section 160.50. Defendants also objects to the extent this request seeks
information protected by the law enforcement, official-information, deliberative process, work-
product, and other applicable privileges. Subject to and without waiving, or in any way limiting
the foregoing objections and General Objections, Defendants state that they are continuing to
search for responsive documents and will supplement this response if appropriate, subject to
redaction.
3
FILED: QUEENS COUNTY CLERK 09/02/2020
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NYSCEF DOC. NO. 29
80 RECEIVED NYSCEF: 09/02/2020
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DEMAND NO 2: A copy of the “activity log” or “memobook” of Jose Checo for the date of
November 25, 2018, pursuant to Defendant’s testimony on March 4, 2020 (Page 28:5-30:10).
RESPONSE TO DEMAND NO 2: See objection and response to Demand No. 1.
DEMAND NO 3: A duly executed authorization permitting Plaintiff to obtain Defendant Patrick
Lacruz’s medical file concerning his prescription level for his eyesight for a period of one (1)
year prior to this accident, including but not limited to the medical file from Database Vision.
(Page 38:7-40:25).
RESPONSE TO DEMAND NO 3: Defendants object to this demand on the grounds that it is
overbroad, not sufficiently limited in scope, unduly burdensome, and seeks information that is
not relevant or reasonably calculated to lead to the discovery of admissible evidence. Defendants
also object to the extent this request seeks personal, privileged, and/or confidential information
concerning members of the New York City Police Department and that the disclosure of same
would be an unwarranted invasion of privacy. Defendants further object to the extent that this
demand is beyond the scope of this litigation. Defendants further object to the extent this request
seeks information protected by HIPAA.
DEMAND NO 4: A copy of the ICAD(s) as it relates to the EDP 10-54 call Defendants were
responding to prior to the accident.
RESPONSE TO DEMAND NO 4: Defendants object to this demand on the grounds that it is
overbroad, not sufficiently limited in scope, and seeks information that is not reasonably
calculated to lead to the discovery of admissible evidence. Defendants also objects to the extent
4
FILED: QUEENS COUNTY CLERK 09/02/2020
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NYSCEF DOC. NO. 29
80 RECEIVED NYSCEF: 09/02/2020
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this request seeks information protected by the law enforcement, official-information, and other
applicable privileges. Defendants also object to the extent this request seeks non-party phone
numbers and addresses, the disclosure of which is not necessary and may violate the privacy
rights of non-parties. Subject to and without waiving, or in any way limiting the foregoing
objections and General Objections, Defendants state that they are continuing to search for
responsive documents and will supplement this response if appropriate, subject to redaction.
DEMAND NO 5: A copy of the documents relating to the “Board recommendation[s]” on part
B and C of Defendants’ discovery production, that were or were not made, including but not
limited to the “final agency determination documents” discussed on pages 110-116 of Defendant
Patrick Lacruz’s deposition transcript.
RESPONSE TO DEMAND NO 5: Defendants object to this demand on the grounds that it is
palpably improper, overbroad, not sufficiently limited in scope, unduly burdensome, seeks
information that is not reasonably calculated to lead to the discovery of admissible evidence and
is covered by the deliberative process, public interest, and other applicable privileges, and to the
extent the documents contain information pertaining to subsequent remedial measures and legal
and factual conclusions.
5
FILED: QUEENS COUNTY CLERK 09/02/2020
06/01/2021 06:53
03:10 PM INDEX NO. 705559/2019
NYSCEF DOC. NO. 29
80 RECEIVED NYSCEF: 09/02/2020
06/01/2021
Yours,
JAMES E. JOHNSON
Corporation Counsel
89-17 Sutphin Boulevard, Room 456
Jamaica, New York 11435
(718) 558-2160
___________________________________
By: AMANDA KURTTI
Assistant Corporation Counsel
akurtti@law.nyc.gov
(718) 558-2160
BY EMAIL TO:
SPAR & BERNSTEIN PC
Attorneys for Plaintiff
225 Broadway, 5th Floor
New York, NY 10007
6
Preview
FILED: QUEENS COUNTY CLERK 09/02/2020 06/01/2021 06:53 03:10 PM INDEX NO. 705559/2019 NYSCEF DOC. NO. 29 80 RECEIVED NYSCEF: 09/02/2020 06/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------x RAFIK ARABOV, RESPONSE TO PLAINTIFF’S Plaintiff POST EXAMINATION BEFORE TRIAL DEMANDS -against- Index No.: 705559/2019 THE CITY OF NEW YORK, NEW YORK CITY Law Dept. No.: 2018-092777 POLICE DEPARTMENT AND PATRICK LACRUZ, Defendants. --------------------------------------------------------------------x PLEASE TAKE NOTICE that defendants THE CITY OF NEW YORK, THE CITY OF NEW YORK S/H/A THE NEW YORK CITY POLICE DEPARTMENT, AND PATRICK LACRUZ (hereinafter “Defendants”), in response to the Plaintiff’s Demands for Discovery, dated April 16, 2020, provides these responses upon information and belief and upon the records maintained in this office, as follows: GENERAL STATEMENT AND GENERAL OBJECTIONS 1. Defendants object to these Demands to the extent that they purport to impose obligations on Defendants other than those imposed or authorized by the CPLR. Further, Defendants specifically object to these Demands to the extent they request information not “material and necessary” to the defense or prosecution of an action as set forth in CPLR § 3101(a). 2. Defendants object to these Demands to the extent that they are palpably improper, vague, overbroad, and unduly burdensome to the extent each demand “fails to specify the documents to be disclosed with reasonable particularity.” See Conway v. Bayley Seton Hosp., 104 A.D.2d 1018, 1019 (2d Dep’t 1984) (holding that discovery and inspection of records which were not limited in terms were overly broad inasmuch as they “could be read to include a 1 FILED: QUEENS COUNTY CLERK 09/02/2020 06/01/2021 06:53 03:10 PM INDEX NO. 705559/2019 NYSCEF DOC. NO. 29 80 RECEIVED NYSCEF: 09/02/2020 06/01/2021 myriad of irrelevant items”); Andrews v. Trustco Bank, 289 A.D.2d 910, 913 (3d Dep’t 2001) (holding that requests for “all . . . materials” and “all memorandum, correspondence, and work papers” are “overbroad, seek irrelevant information and impose an undue burden”); Finn v. Town of Southampton, 266 A.d.2d 429 (2d Dep’t 1999); Harrison v. Bayley Seton Hosp., 247 A.D.2d 513 (2d Dep’t 1998); Blum v. Allied Hardware, Inc., 237 A.D.2d 492 (2d Dep’t 1997); Andrews v. Trustco Bank, 289 A.D.2d 910, 913 (3d Dep’t 2001); Related Companies v. Bishops Services, Inc., 171 A.D.2d 421 (1st Dep’t 1991); American Reliance Insurance Co., 174 A.D.2d 591 (2d Dep’t 1991). 3. In providing these objections and responses, Defendants do not in any way waive but preserves: (i) all objections as to vagueness, ambiguity and undue burden; (ii) all objections as to materiality, relevance and admissibility of any document or information produced in response to these Demands, or the subject matter thereof; and (iii) all rights to object on any ground to the use of any of said documents or information, or the subject matter thereof, in any subsequent proceedings, including the trial of this or any other action. 4. These general objections are incorporated into each of the specific responses to these Demands and shall be deemed continuing as to each Demand and are not waived, nor in any way limited by, specific responses. 5. Defendants object to these Demands to the extent that they seek documents and/or information which are protected by the attorney-client or work-product privilege, or which constitute material prepared for litigation purposes. 6. Inadvertent production of any document or information which is privileged, was prepared in anticipation of litigation, or is otherwise immune from discovery, shall not constitute a waiver of any privilege or of another ground for objecting to discovery with 2 FILED: QUEENS COUNTY CLERK 09/02/2020 06/01/2021 06:53 03:10 PM INDEX NO. 705559/2019 NYSCEF DOC. NO. 29 80 RECEIVED NYSCEF: 09/02/2020 06/01/2021 respect to that document or any other document, or its subject matter, or the information contained therein, or of Defendants’ right to object to the use of any such document or the information contained therein during any proceeding in this litigation or otherwise. 7. Defendants object in the entirety to any request for information or production from entities not represented by the Corporation Counsel of the City of New York. 8. Defendants are continuing to search for information responsive to Plaintiff’s requests and therefore reserves the right to supplement its response to each request with additional information, if and when such information becomes available to Defendants’ counsel. Defendants also reserve the right to object to the future disclosure of any such information. DEFENDANTS’ RESPONSES TO DEMANDS FOR DISCOVERY DEMAND NO 1: A copy of the “activity log” or “memo book” of Defendant PATRICK LACRUZ for the date of November 25, 2018, pursuant to Defendant’s testimony on March 4, 2020 (Page 28:5-29:13). RESPONSE TO DEMAND NO 1: Defendants object to this demand on the grounds that it is overbroad, not sufficiently limited in scope, and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence and that may be sealed pursuant to Criminal Procedure Law Section 160.50. Defendants also objects to the extent this request seeks information protected by the law enforcement, official-information, deliberative process, work- product, and other applicable privileges. Subject to and without waiving, or in any way limiting the foregoing objections and General Objections, Defendants state that they are continuing to search for responsive documents and will supplement this response if appropriate, subject to redaction. 3 FILED: QUEENS COUNTY CLERK 09/02/2020 06/01/2021 06:53 03:10 PM INDEX NO. 705559/2019 NYSCEF DOC. NO. 29 80 RECEIVED NYSCEF: 09/02/2020 06/01/2021 DEMAND NO 2: A copy of the “activity log” or “memobook” of Jose Checo for the date of November 25, 2018, pursuant to Defendant’s testimony on March 4, 2020 (Page 28:5-30:10). RESPONSE TO DEMAND NO 2: See objection and response to Demand No. 1. DEMAND NO 3: A duly executed authorization permitting Plaintiff to obtain Defendant Patrick Lacruz’s medical file concerning his prescription level for his eyesight for a period of one (1) year prior to this accident, including but not limited to the medical file from Database Vision. (Page 38:7-40:25). RESPONSE TO DEMAND NO 3: Defendants object to this demand on the grounds that it is overbroad, not sufficiently limited in scope, unduly burdensome, and seeks information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence. Defendants also object to the extent this request seeks personal, privileged, and/or confidential information concerning members of the New York City Police Department and that the disclosure of same would be an unwarranted invasion of privacy. Defendants further object to the extent that this demand is beyond the scope of this litigation. Defendants further object to the extent this request seeks information protected by HIPAA. DEMAND NO 4: A copy of the ICAD(s) as it relates to the EDP 10-54 call Defendants were responding to prior to the accident. RESPONSE TO DEMAND NO 4: Defendants object to this demand on the grounds that it is overbroad, not sufficiently limited in scope, and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Defendants also objects to the extent 4 FILED: QUEENS COUNTY CLERK 09/02/2020 06/01/2021 06:53 03:10 PM INDEX NO. 705559/2019 NYSCEF DOC. NO. 29 80 RECEIVED NYSCEF: 09/02/2020 06/01/2021 this request seeks information protected by the law enforcement, official-information, and other applicable privileges. Defendants also object to the extent this request seeks non-party phone numbers and addresses, the disclosure of which is not necessary and may violate the privacy rights of non-parties. Subject to and without waiving, or in any way limiting the foregoing objections and General Objections, Defendants state that they are continuing to search for responsive documents and will supplement this response if appropriate, subject to redaction. DEMAND NO 5: A copy of the documents relating to the “Board recommendation[s]” on part B and C of Defendants’ discovery production, that were or were not made, including but not limited to the “final agency determination documents” discussed on pages 110-116 of Defendant Patrick Lacruz’s deposition transcript. RESPONSE TO DEMAND NO 5: Defendants object to this demand on the grounds that it is palpably improper, overbroad, not sufficiently limited in scope, unduly burdensome, seeks information that is not reasonably calculated to lead to the discovery of admissible evidence and is covered by the deliberative process, public interest, and other applicable privileges, and to the extent the documents contain information pertaining to subsequent remedial measures and legal and factual conclusions. 5 FILED: QUEENS COUNTY CLERK 09/02/2020 06/01/2021 06:53 03:10 PM INDEX NO. 705559/2019 NYSCEF DOC. NO. 29 80 RECEIVED NYSCEF: 09/02/2020 06/01/2021 Yours, JAMES E. JOHNSON Corporation Counsel 89-17 Sutphin Boulevard, Room 456 Jamaica, New York 11435 (718) 558-2160 ___________________________________ By: AMANDA KURTTI Assistant Corporation Counsel akurtti@law.nyc.gov (718) 558-2160 BY EMAIL TO: SPAR & BERNSTEIN PC Attorneys for Plaintiff 225 Broadway, 5th Floor New York, NY 10007 6