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FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021
Supreme Court of the State of New York
County of Richmond
---------------------------X
Albert Acierno,
Plaintiff,
-against - Plaintiff's Notice of
Discovery and
Inspection dated
03/25/2021
Index No: 150273/2021
Steven Lavy Cherny and Julia Cherny,
Defendants.
--------------------X
PLEASE TAKE NOTICE that the plaintiff dernañds the production of the following within
twenty days at The Law Office of John Bosco, PLLC., 292 Nelson Avenue, Staten Island, New
York, 10308, 718-273-4046
INSURANCE ADJUSTER
1. What is the name of the insurance adjuster assigned to the claim?
2. What is the claims adjuster's telephone # and address?
3. What is the claim number assigned to the claim?
4. What is the name and address of the Insurance Company agaiñst whom a claim is being
made?
INSURANCE POLICY AND CLAIMS AGAINST IT
5. Pursuant to CPLR §3101 (f)the plaintiff demands to be informed of the existence of
each and every insurance agreement under which any persûñ carrying on an insurance
business may be liable to satisfy part or all of a judgment which may be entered in the
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action or to iñdemnify or reimburse for payments made to satisfy the judgment as well
as their c0ñtêñts. Disclosure is demanded of the policy numbers, the liabilitylimits and
each and every page of each policy including but not ||mited to each declaration sheet,
rider, coverage, limitation, endorsement, amêñdméñt, cancellation, face sheet, binder,
etc. of each primary, excess and umbrella policy.
6. Moreover, demand is hereby made for a statement of the number of claims brought
against each policy, the amount of each claim, and the payments made on each claim.
7. Ifthe existence of the aforesaid types of insurance is denied, demand is hereby made
for an affidavit of denial from the defendant or a person with firsthand knowledge.
8. Please provide a copy of the declaration sheet and policy for the househsid in which the
Defêñdants live,any vehicles associated with any member of the householder, the
home0wñers policy for the household and any primary, excess, umbrella or excess
insurance associated with the household.
9. Moreover, please put the Insurance c0mpanies on notice of potential claims against
these policies. To guard against the potential liabilityof your insured, please put all
potential insurance companies on notice of this claim
AN INDIVIDUAL DEFENDANT
10. What is the proper name of each defendant?
11. Have any of the defendants been kñGwñ by another name and ifso what is the other
name or names?
12. What is the address of the residence of each defendant?
13. What is the work address of each defendant?
14. What is the date of birth of each defendant?
15. What is the social security number of each defendant?
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WITNESSES
16. Provide the names and addresses of any witnesses to the occurrence complained of in
the complaint,
17. Provide the names and addresses of any witnesses to the existence of the ccñditicñ
complained of in the complaint or to the nonexistence of the ccñditicñ
18. Provide the names and addresses of any witnesses to the scene and plaintiff
immediately before and after the occurrence.
19. Provide the names and addresses of any witnesses to any staterments made by the
Plaintiffs.
20. Provide the names and addresses of anyone with knowledge about this accident.
STATEMENTS
21. Provide a copy of any and allstatements taken from the plaintiffs including but not
limited to any notes of any oral statements.
22. Provide a copy of any statements taken by anyone on behalf of the liabilityinsurance
carrier of the defendant such as an adjuster, attorney or investigator from anyone with
regard to the accidêñt including from your insured and the defendants in this action
Sicelekis v Washington Group. LLC. 2007 NY Slip Op 10138 [46 AD3d 800] (2nd
Dept. 2007); Melworm v Encompass Indem. Co. 2013 NY Slip Op 08415 (2nd De ,
2013); Brookivn Union Gas Co. v American Home Assur. Co., 2005 NY Slip Op
08193 [23 AD3d 190] (1st Dept., 2005); E::±:: v Fokas, 2013 NY Slip Op 08226, (2nit
Dept. 2013)
23. Provide a copy of any and all statements taken from any type of witñêsses.
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REPORTS
24. Please provide a copy of any and all reports about the occurrence complaimed of in the
camp|aint made by the defendant, their ageñts, servants, employees and/or
representatives including but not limited to MV104s.
PHOTOGRAPHS, FILMS, OTHER RECORDINGS
25. Please provide any and all ph0tcgraphs, films, representations and other reccidiñgs etc.
of the scene of the occurrence,
26. Please provide any and all photographs, films, representations and other reccidiñgs etc.
of the existence or non-existence of the conditioned complaiñêd of in the complaint,
27. Please provide any and all photographs, films, representations and other recordings etc.
of the vehicles involved
28. Please provide any and all photcgraphs, films, representations and other recordings etc.
of the Plaintiff including any surveillance ph0tographs or films, audio, video and stills
including allouttakes
INSPECT AND PHOTOGRAPH
29. The Plaintiff hereby requests an opportunity to inspect and photograph the scene of the
accidêñt and the instruméñtalities involved in the accident. Please let us know a suitable
date and time.
THIRD PARTY ACTION
30. Please provide the index number assigned to each third party action.
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QUESTIONNAIRES OF YOUR MEDICAL EXPERTS
31. The Plaintiffhereby requests any questioññaire that your medical expert willuse during
his physical examination of the plaintiff pursuant to CPLR § 3121, Physical or mental
examination. Please be advised that we will instruct our client to submit to your CPLR §
3121 physical examinations but not to complete any questicññaire that has not been
submitted to us in advance of the physical examination. We do not believe in trials by
surprise. CPLR §3121 perrñits an examination of the plaintiff not an interrogation. You
will have the opportunity to interrogate the plaintiffat her EBT and get the information
that your expert needs during the EBT. Therefore, p!êase obtain a copy of your expert's
questionnaire in advance of plaintiff's EBT for your own use and share a copy with us.
The CPLR does not provide the defendant with multiple opportunities to interrogate the
plaintiff - one and that is pursuant to CPLR §3107 not CPLR §3121.
only opportunity
MEDICAL EXPERTS
32. With regard to your medical experts, please provide all reports, notes, and bills of the
physicians, dentist, or any other type of Health Care Provider that in the course of
litigation examine the Plaintiffon your behalf or is hired to review reccids
33. Moreover, please note that our Demand for Experts must be compiled with with regard to
the foregoing physicians, dentists or health care provider.
ALL EXPERTS
34. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth
the the name and address of each and every person you expect to call as an expert
witness at the trial of this action;
35. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth in
reasonable detail, the subject matter on which each expert is expected to testify;
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36. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth
the substance of the facts and opinions on which each expert is expected to testify;
37. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth
the qualifications of each expert witness,
38. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth a
summary of the grounds for each expert's opinion.
39. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to provide a
copy of their report
ARTICLE 16 OF THE CPLR
40. Pursuant to Article 16 of the CPLR, identify any tcitfeasor not now joined as a defendant
whüse cu!pable conduct, you willclaim, should be considered by the fact-finder at the
trialof this action.
41. Also identify the acts and/or omissions that you allege constitute the aforesaid
tortfeasor's culpable conduct.
THE ACCIDENT ITSELF
42. With regard to the accident itself, please provide any recordings of the accident whether
they be photographs, video, audio or any other kind
43. With regard to the accident itself,the name, home and work address, telephcñé number,
employer of anyone with knowledge of any kind about the accident itself
THE DRIVERS OF THE MOTOR VEHICLES
44. With regard to the drivers of the motor vehicles involved in the accident, please provide
their name, date of birth, social security number, home address, work address, a copy of
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the driver's license, any summons issued after the accident, the insurance agreements
and any lease agreement for their vehicles.
THE OWNERS OF THE MOTOR VEHICLES
45. With regard to the cwñêrs of the motor vehicles involved in the accident, please provide
their name, date of birth,social security number, home address, work address, the
certificate of registration, the certificate of title,
any summons issued after the accident,
the insurance agreements and any lease agreement for their vehicles.
THE REGISTRANTS OF THE MOTOR VEHICLES
46. With regard to the registrants of the motor vehicles involved in the accidêñt, piêase
provide their name, date of birth, social security number, home address, work address,
the certificate of registration, the certificate of title,any summons issued after the
accident, the insurance agreerñeñts and any lease agreement for their vehicles.
THE LESSORS OF THE MOTOR VEHICLES
47. With regard to the lessors of the motor vehicles involved in the accident, please provide
their name, date of birth, social security number, home address, work address, the
certificate of registration, the certificate of title,any summons issued after the accident,
the insurance agreements and any lease agreement for their vehicles.
THE LESSEES OF THE MOTOR VEHICLES
48. With regard to the lessees of the motor vehicles involved in the accideñt, please provide
their name, date of birth, social security number, home address, work address, the
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certificate of registration, the certiñcate of title,any summons issued after the accident,
the insurance agreements and any lease agreement for their vehicles.
THE MOTOR VEHICLES INVOLVED IN AN ACCIDENT
49. With regard to the motor vehicles involved in the accident, please provide the Insurance
Card, the policy of Insurance that covered the vehicles on the date of the accident, Any
photographs of the motor vehicles taken before, during or after the accident, Any video
of the motor vehicles taken before, during or after the accident and Repair records and
bills for damage in the accident
ELECTRONIC TRACKING DATA DEMANDS (MVA
CASES ONLY)
50. Any vehicle tracking device that was in place and/or installed in this answeriñg
Defendant's vehicle be preserved for discovery, inspection and testing by Plaintiff's
counsel.
51. Production of all raw data from the any electronic tracking device in place and/or
installed in this answering Defendant's vehicle be produced in both original electronic
form as well as all downloads and/or print-outs of said raw data - allfrom Defendant's
vehicle for a period of twenty-four (24) hours prior to the occurrence which isthe
subject of the above captioned litigation and twenty-four (24) hours following the same.
52. The username and password for any word wide web access to the data from said device
- allfrom Defendant's vehicle for a period of twenty-four hours prior to the
(24)
occurrence which isthe subject of the above captioned litigation and twenty-four (24)
hours following the same.
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53. All text e-mails and/or other reports and/or alerts from said device -
messages, tracking
allfrom Defendant's vehicle for a pericd of twenty-four (24) hours prior to the
occurrence which isthe subject of the above captioned litigation and twenty-four (24)
hours following the same.
54. A statement of the parameters of and/or perimeter reports - allfrom
geo-fencing
Defendant's vehicle for a period of twenty-four (24) hours prior to the occurrence which
isthe subject of the above captioned litigation and twenty-four (24) hours following the
same.
events,"
55. All reports of vehicle throttle position, engine speed, "hard braking travel
history, and/or report of addresses for vehicle stops from said tracking device installed
and/or in place in Defendant's vehicle - allfrom Defendant's vehicle for a period of
twenty-four (24) hours prior to the occurrence which isthe subject of the above
captioned litigation and twenty-four (24) hours following the same.
56. A sworn statement as to whether said tracking device was an ODB IIport installed
device or other manner of installation as well as identifying the location of said device in
place and/or installed in Defendant's vehicle at the time of the loss which isthe subject
of the above captioned action.
57. A sworn statement identifying the manufacturer and model of said tracking device as
well as the firmware and/or software version running on said device at the time of the
loss which isthe subject of the above captioned action.
PLEASE TAKE FURTHER NOTICE that the foregoing demands are continuing demands. Ifyou
should receive additional information between the date of your respcñses through and including
the time of trial,you are obligated to immediately supplement your initialresponses with the
additicñal information. Your failure to do so will be met with an applicaticñ before, at or during
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trialfor such reliefthat a Court deems just and proper including but not limited to the striking or
your answer and preclusion.
LEASE TAKE FURTHER NOTICE that ifno such documentation and/or information is in the
possession, custody or control of any parties you represent, so state in a sworn reply to this
demand duly executed by an individual who actually conducted the search for each demand item.
PLEASE TAKE FURTHER NOTICE, that upon your failure to produce the aforesaid
information and/or documents, please provide a duly executed Affidavit of Search by an
individual who actually conducted the search as to each and every demand item that is unable to
be produced, which shall include a statement as to where the information or records were kept,
what efforts, if any, were made to preserve them, the circumstances surrounding the
disappearance or destruction. (see, Jackson v. City of New York, 185 A.D.2d 768, 770, 586
[1"
N.Y.S.2d 952 [1st Dept., 1992]; Virola v. New York City Hous. Auth., 185 A.D.2d 122 Dept.,
1992]; Donovan v. City of New York, 239 A.D.2d 461, 657 N.Y.S.2d 451 [2nd Dept., 1997]).
Jackson v. City of New York has been interpreted to require an affidavit from a record searcher
that must contain elements allowing the plaintiff and the court to rely upon representations that a
thorough search has been conducted by someone competent to do said search. In Lewis v City
of NY, 2007 NY Slip Op 27369, the Court stated that an affidavit of a searcher attesting that
requested records are missing should contain at a minimum information regarding:
a. The Qualifications of the Affiant;
b. The Diligent Search Efforts, made to locate and prôduce said reports and records
including the date, time and place for each search conducted;
c. The Reason for the Absence, in that the affiant must provide a meaningful exp!sestion as
to why the said reports and records are not now available;
d. The Chain of Custody, in that affiant must provide the identity of the person or persons
who created the said reports and records as well as all other persons in the authorized
chain of custody; and if unknown an explanation must be provided;
e. The Last Known Possessor, in that the affiant must provide the identity of the person last
in possession of same; and if unknown, an expisastion must be provided;
f. Storage Locations, in that all of the authorized locations where such reports and records
are, or should have been, preserved, maintained and stored in accordance with the
applicable rules and regulations must be identified; and
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g. The Applicablê Rules and Regulations, in that all rules and regulaticas relating to the
preservation, maintenance and storage of reports and other rec0rds, made by an cr.51syee
or other person charged with the obligation to make the said report and record, must be
identified and a copy of said rules and regulations must be made available and/or
appended as an exhibit.
Dated: Staten Island, New York
March 25, 2021
Yours, etc.,
The Law Office of John Bosco, PLLC
Attorney for the Plaintiff
292 Nelson Avenue
Staten Island, New York 10308
718-273-4046
By:
John Bosco
TO:
Izabela Jargilo, Esq.
Law Office Of Nicole Lesperance
Attorneys for Defendants
Julia Cherny and Steven Lavy Cherny
1400 Old Country Road, STE 201
Westbury, New York 11590
516-247-4738
516-876-7913
ijargilo@geico.com
Our File No: 21-0021106
Claim No: 0323728690101072
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No: 150273/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
Albert Acierno,
Plaintiff,
-against-
Steven Lavy Cherny and Julia Cherny,
Defendant.
Plaintiff Notice for Discove y and Inspection
Dated March 25, 2021
THE LAW OFFICE OF JOHN BOSCO, PLLC
Attorneys for Defendants
292 Nelson Avenue
Staten Island, New York 10308
(718) 273-4046
TO: Law Office of Nicole Lesperance
Attorneys for Defendants
1400 Old Country Road, Suite 201
Westbury, NY 11590
(516) 247-4738
Fax (516) 876-7913
Claim No: 03237286901010072
File No: 21-0021106
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Preview
FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 Supreme Court of the State of New York County of Richmond ---------------------------X Albert Acierno, Plaintiff, -against - Plaintiff's Notice of Discovery and Inspection dated 03/25/2021 Index No: 150273/2021 Steven Lavy Cherny and Julia Cherny, Defendants. --------------------X PLEASE TAKE NOTICE that the plaintiff dernañds the production of the following within twenty days at The Law Office of John Bosco, PLLC., 292 Nelson Avenue, Staten Island, New York, 10308, 718-273-4046 INSURANCE ADJUSTER 1. What is the name of the insurance adjuster assigned to the claim? 2. What is the claims adjuster's telephone # and address? 3. What is the claim number assigned to the claim? 4. What is the name and address of the Insurance Company agaiñst whom a claim is being made? INSURANCE POLICY AND CLAIMS AGAINST IT 5. Pursuant to CPLR §3101 (f)the plaintiff demands to be informed of the existence of each and every insurance agreement under which any persûñ carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the Plaintiff's Notice of D&l dated 03/25/2021 to Defendants Page 1 of 11 1 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 action or to iñdemnify or reimburse for payments made to satisfy the judgment as well as their c0ñtêñts. Disclosure is demanded of the policy numbers, the liabilitylimits and each and every page of each policy including but not ||mited to each declaration sheet, rider, coverage, limitation, endorsement, amêñdméñt, cancellation, face sheet, binder, etc. of each primary, excess and umbrella policy. 6. Moreover, demand is hereby made for a statement of the number of claims brought against each policy, the amount of each claim, and the payments made on each claim. 7. Ifthe existence of the aforesaid types of insurance is denied, demand is hereby made for an affidavit of denial from the defendant or a person with firsthand knowledge. 8. Please provide a copy of the declaration sheet and policy for the househsid in which the Defêñdants live,any vehicles associated with any member of the householder, the home0wñers policy for the household and any primary, excess, umbrella or excess insurance associated with the household. 9. Moreover, please put the Insurance c0mpanies on notice of potential claims against these policies. To guard against the potential liabilityof your insured, please put all potential insurance companies on notice of this claim AN INDIVIDUAL DEFENDANT 10. What is the proper name of each defendant? 11. Have any of the defendants been kñGwñ by another name and ifso what is the other name or names? 12. What is the address of the residence of each defendant? 13. What is the work address of each defendant? 14. What is the date of birth of each defendant? 15. What is the social security number of each defendant? Plaintiff'sNotice of D&l dated 03/25/2021 to Defendants Page 2 of 11 2 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 WITNESSES 16. Provide the names and addresses of any witnesses to the occurrence complained of in the complaint, 17. Provide the names and addresses of any witnesses to the existence of the ccñditicñ complained of in the complaint or to the nonexistence of the ccñditicñ 18. Provide the names and addresses of any witnesses to the scene and plaintiff immediately before and after the occurrence. 19. Provide the names and addresses of any witnesses to any staterments made by the Plaintiffs. 20. Provide the names and addresses of anyone with knowledge about this accident. STATEMENTS 21. Provide a copy of any and allstatements taken from the plaintiffs including but not limited to any notes of any oral statements. 22. Provide a copy of any statements taken by anyone on behalf of the liabilityinsurance carrier of the defendant such as an adjuster, attorney or investigator from anyone with regard to the accidêñt including from your insured and the defendants in this action Sicelekis v Washington Group. LLC. 2007 NY Slip Op 10138 [46 AD3d 800] (2nd Dept. 2007); Melworm v Encompass Indem. Co. 2013 NY Slip Op 08415 (2nd De , 2013); Brookivn Union Gas Co. v American Home Assur. Co., 2005 NY Slip Op 08193 [23 AD3d 190] (1st Dept., 2005); E::±:: v Fokas, 2013 NY Slip Op 08226, (2nit Dept. 2013) 23. Provide a copy of any and all statements taken from any type of witñêsses. Plaintiff's Notice of D&l dated 03/25/2021 to Defendants Page 3 of 11 3 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 REPORTS 24. Please provide a copy of any and all reports about the occurrence complaimed of in the camp|aint made by the defendant, their ageñts, servants, employees and/or representatives including but not limited to MV104s. PHOTOGRAPHS, FILMS, OTHER RECORDINGS 25. Please provide any and all ph0tcgraphs, films, representations and other reccidiñgs etc. of the scene of the occurrence, 26. Please provide any and all photographs, films, representations and other reccidiñgs etc. of the existence or non-existence of the conditioned complaiñêd of in the complaint, 27. Please provide any and all photographs, films, representations and other recordings etc. of the vehicles involved 28. Please provide any and all photcgraphs, films, representations and other recordings etc. of the Plaintiff including any surveillance ph0tographs or films, audio, video and stills including allouttakes INSPECT AND PHOTOGRAPH 29. The Plaintiff hereby requests an opportunity to inspect and photograph the scene of the accidêñt and the instruméñtalities involved in the accident. Please let us know a suitable date and time. THIRD PARTY ACTION 30. Please provide the index number assigned to each third party action. Plaintiff'sNotice of D&I dated 03/25/2021 to Defendants Page 4 of 11 4 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 QUESTIONNAIRES OF YOUR MEDICAL EXPERTS 31. The Plaintiffhereby requests any questioññaire that your medical expert willuse during his physical examination of the plaintiff pursuant to CPLR § 3121, Physical or mental examination. Please be advised that we will instruct our client to submit to your CPLR § 3121 physical examinations but not to complete any questicññaire that has not been submitted to us in advance of the physical examination. We do not believe in trials by surprise. CPLR §3121 perrñits an examination of the plaintiff not an interrogation. You will have the opportunity to interrogate the plaintiffat her EBT and get the information that your expert needs during the EBT. Therefore, p!êase obtain a copy of your expert's questionnaire in advance of plaintiff's EBT for your own use and share a copy with us. The CPLR does not provide the defendant with multiple opportunities to interrogate the plaintiff - one and that is pursuant to CPLR §3107 not CPLR §3121. only opportunity MEDICAL EXPERTS 32. With regard to your medical experts, please provide all reports, notes, and bills of the physicians, dentist, or any other type of Health Care Provider that in the course of litigation examine the Plaintiffon your behalf or is hired to review reccids 33. Moreover, please note that our Demand for Experts must be compiled with with regard to the foregoing physicians, dentists or health care provider. ALL EXPERTS 34. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth the the name and address of each and every person you expect to call as an expert witness at the trial of this action; 35. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth in reasonable detail, the subject matter on which each expert is expected to testify; Plaintiff's Notice of D&I dated 03/25/2021 to Defendants Page 5 of 11 5 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 36. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth the substance of the facts and opinions on which each expert is expected to testify; 37. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth the qualifications of each expert witness, 38. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to set forth a summary of the grounds for each expert's opinion. 39. Pursuant to CPLR 3101 (d) (1) (Expert Demand), you are hereby required to provide a copy of their report ARTICLE 16 OF THE CPLR 40. Pursuant to Article 16 of the CPLR, identify any tcitfeasor not now joined as a defendant whüse cu!pable conduct, you willclaim, should be considered by the fact-finder at the trialof this action. 41. Also identify the acts and/or omissions that you allege constitute the aforesaid tortfeasor's culpable conduct. THE ACCIDENT ITSELF 42. With regard to the accident itself, please provide any recordings of the accident whether they be photographs, video, audio or any other kind 43. With regard to the accident itself,the name, home and work address, telephcñé number, employer of anyone with knowledge of any kind about the accident itself THE DRIVERS OF THE MOTOR VEHICLES 44. With regard to the drivers of the motor vehicles involved in the accident, please provide their name, date of birth, social security number, home address, work address, a copy of Plaintiff's Notice of D&I dated 03/25/2021 to Defendants Page 6 of 11 6 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 the driver's license, any summons issued after the accident, the insurance agreements and any lease agreement for their vehicles. THE OWNERS OF THE MOTOR VEHICLES 45. With regard to the cwñêrs of the motor vehicles involved in the accident, please provide their name, date of birth,social security number, home address, work address, the certificate of registration, the certificate of title, any summons issued after the accident, the insurance agreements and any lease agreement for their vehicles. THE REGISTRANTS OF THE MOTOR VEHICLES 46. With regard to the registrants of the motor vehicles involved in the accidêñt, piêase provide their name, date of birth, social security number, home address, work address, the certificate of registration, the certificate of title,any summons issued after the accident, the insurance agreerñeñts and any lease agreement for their vehicles. THE LESSORS OF THE MOTOR VEHICLES 47. With regard to the lessors of the motor vehicles involved in the accident, please provide their name, date of birth, social security number, home address, work address, the certificate of registration, the certificate of title,any summons issued after the accident, the insurance agreements and any lease agreement for their vehicles. THE LESSEES OF THE MOTOR VEHICLES 48. With regard to the lessees of the motor vehicles involved in the accideñt, please provide their name, date of birth, social security number, home address, work address, the Plaintiff's Notice of D&l dated 03/25/2021 to Defendants Page 7 of 11 7 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 certificate of registration, the certiñcate of title,any summons issued after the accident, the insurance agreements and any lease agreement for their vehicles. THE MOTOR VEHICLES INVOLVED IN AN ACCIDENT 49. With regard to the motor vehicles involved in the accident, please provide the Insurance Card, the policy of Insurance that covered the vehicles on the date of the accident, Any photographs of the motor vehicles taken before, during or after the accident, Any video of the motor vehicles taken before, during or after the accident and Repair records and bills for damage in the accident ELECTRONIC TRACKING DATA DEMANDS (MVA CASES ONLY) 50. Any vehicle tracking device that was in place and/or installed in this answeriñg Defendant's vehicle be preserved for discovery, inspection and testing by Plaintiff's counsel. 51. Production of all raw data from the any electronic tracking device in place and/or installed in this answering Defendant's vehicle be produced in both original electronic form as well as all downloads and/or print-outs of said raw data - allfrom Defendant's vehicle for a period of twenty-four (24) hours prior to the occurrence which isthe subject of the above captioned litigation and twenty-four (24) hours following the same. 52. The username and password for any word wide web access to the data from said device - allfrom Defendant's vehicle for a period of twenty-four hours prior to the (24) occurrence which isthe subject of the above captioned litigation and twenty-four (24) hours following the same. Plaintiff's Notice of D&l dated 03/25/2021 to Defendants Page 8 of 11 8 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 53. All text e-mails and/or other reports and/or alerts from said device - messages, tracking allfrom Defendant's vehicle for a pericd of twenty-four (24) hours prior to the occurrence which isthe subject of the above captioned litigation and twenty-four (24) hours following the same. 54. A statement of the parameters of and/or perimeter reports - allfrom geo-fencing Defendant's vehicle for a period of twenty-four (24) hours prior to the occurrence which isthe subject of the above captioned litigation and twenty-four (24) hours following the same. events," 55. All reports of vehicle throttle position, engine speed, "hard braking travel history, and/or report of addresses for vehicle stops from said tracking device installed and/or in place in Defendant's vehicle - allfrom Defendant's vehicle for a period of twenty-four (24) hours prior to the occurrence which isthe subject of the above captioned litigation and twenty-four (24) hours following the same. 56. A sworn statement as to whether said tracking device was an ODB IIport installed device or other manner of installation as well as identifying the location of said device in place and/or installed in Defendant's vehicle at the time of the loss which isthe subject of the above captioned action. 57. A sworn statement identifying the manufacturer and model of said tracking device as well as the firmware and/or software version running on said device at the time of the loss which isthe subject of the above captioned action. PLEASE TAKE FURTHER NOTICE that the foregoing demands are continuing demands. Ifyou should receive additional information between the date of your respcñses through and including the time of trial,you are obligated to immediately supplement your initialresponses with the additicñal information. Your failure to do so will be met with an applicaticñ before, at or during Plaintiff'sNotice of D&l dated 03/25/2021 to Defendants Page 9 of 11 9 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 trialfor such reliefthat a Court deems just and proper including but not limited to the striking or your answer and preclusion. LEASE TAKE FURTHER NOTICE that ifno such documentation and/or information is in the possession, custody or control of any parties you represent, so state in a sworn reply to this demand duly executed by an individual who actually conducted the search for each demand item. PLEASE TAKE FURTHER NOTICE, that upon your failure to produce the aforesaid information and/or documents, please provide a duly executed Affidavit of Search by an individual who actually conducted the search as to each and every demand item that is unable to be produced, which shall include a statement as to where the information or records were kept, what efforts, if any, were made to preserve them, the circumstances surrounding the disappearance or destruction. (see, Jackson v. City of New York, 185 A.D.2d 768, 770, 586 [1" N.Y.S.2d 952 [1st Dept., 1992]; Virola v. New York City Hous. Auth., 185 A.D.2d 122 Dept., 1992]; Donovan v. City of New York, 239 A.D.2d 461, 657 N.Y.S.2d 451 [2nd Dept., 1997]). Jackson v. City of New York has been interpreted to require an affidavit from a record searcher that must contain elements allowing the plaintiff and the court to rely upon representations that a thorough search has been conducted by someone competent to do said search. In Lewis v City of NY, 2007 NY Slip Op 27369, the Court stated that an affidavit of a searcher attesting that requested records are missing should contain at a minimum information regarding: a. The Qualifications of the Affiant; b. The Diligent Search Efforts, made to locate and prôduce said reports and records including the date, time and place for each search conducted; c. The Reason for the Absence, in that the affiant must provide a meaningful exp!sestion as to why the said reports and records are not now available; d. The Chain of Custody, in that affiant must provide the identity of the person or persons who created the said reports and records as well as all other persons in the authorized chain of custody; and if unknown an explanation must be provided; e. The Last Known Possessor, in that the affiant must provide the identity of the person last in possession of same; and if unknown, an expisastion must be provided; f. Storage Locations, in that all of the authorized locations where such reports and records are, or should have been, preserved, maintained and stored in accordance with the applicable rules and regulations must be identified; and Plaintiff's Notice of D&I dated 03/25/2021 to Defendants Page 10 of 11 10 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 g. The Applicablê Rules and Regulations, in that all rules and regulaticas relating to the preservation, maintenance and storage of reports and other rec0rds, made by an cr.51syee or other person charged with the obligation to make the said report and record, must be identified and a copy of said rules and regulations must be made available and/or appended as an exhibit. Dated: Staten Island, New York March 25, 2021 Yours, etc., The Law Office of John Bosco, PLLC Attorney for the Plaintiff 292 Nelson Avenue Staten Island, New York 10308 718-273-4046 By: John Bosco TO: Izabela Jargilo, Esq. Law Office Of Nicole Lesperance Attorneys for Defendants Julia Cherny and Steven Lavy Cherny 1400 Old Country Road, STE 201 Westbury, New York 11590 516-247-4738 516-876-7913 ijargilo@geico.com Our File No: 21-0021106 Claim No: 0323728690101072 Plaintiff's Notice of D&I dated 03/25/2021 to Defendants Page 11 of 11 11 of 12 FILED: RICHMOND COUNTY CLERK 03/25/2021 04:18 PM INDEX NO. 150273/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/25/2021 No: 150273/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND Albert Acierno, Plaintiff, -against- Steven Lavy Cherny and Julia Cherny, Defendant. Plaintiff Notice for Discove y and Inspection Dated March 25, 2021 THE LAW OFFICE OF JOHN BOSCO, PLLC Attorneys for Defendants 292 Nelson Avenue Staten Island, New York 10308 (718) 273-4046 TO: Law Office of Nicole Lesperance Attorneys for Defendants 1400 Old Country Road, Suite 201 Westbury, NY 11590 (516) 247-4738 Fax (516) 876-7913 Claim No: 03237286901010072 File No: 21-0021106 12 of 12