Preview
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 267 RECEIVED NYSCEF: 10/15/2019
EXHIBIT E
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
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[FILED:
NYSCEF DOC. NEW
NO. YORK
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NYSCEF DOC NO. 215 RECEIVED NYSCEF: 01/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---X Index No.: 155495/2015
KENNETH JONES,
RESPONSE TO JOINT
Plaintiff, NOTICE FOR
DISCOVERY AND
-against- INSPECTION
260-261 MADISON AVENUE, LLC, SKYLIFT
CONTRACTOR CORP. and BAY CRANE
SERVICE INC.,
Defendants.
...--------------------X
SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,
D/B/A MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL TESTING
HANES as successor-by-
SOLUTIONS; SUPPLY, INC.,
merger to and/or d/b/a PAUL'S WIRE ROPE & SLING;
and PAUL'S WIRE ROPE & SLING,
Third-Party Defendants.
. . . . .. . . . , . . . . ... . ,X
260-261 MADISON AVENUE LLC,
Second Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a
MARINE & INDUSTRIAL TESTING SOLUTIONS, MARINE
& INDUSTRIAL TESTING SOLUTIONS, HANES SUPPLY,
INC., as successor-by-merger to and/or d/b/a PAUL'S WIRE
ROPE & SLING and PAUL'S WIRE ROPE & SLING,
Second Third-Party Defendants.
C O U N S E L L O R S:
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Defendants MARINE & INDUSTRIAL SUPPLY COMPANY, INC., (hereinafter
"MARINE") by and through their attorneys, CASCONE & KLUEPFEL, LLP, as and for
a Response to Defendant, 260-261 MADISON AVENUE, LLC'S Joint Notice for
Discovery and Inspection, stateas follows:
GENERAL OBJECTIONS
A. MARINE objects generally to third-party plaintiff's demand to the extent it
seeks documents that are not in the possession, custody or control of MARINE, or seeks to
impose any obligation upon MARINE to provide documents on behalf of any person or
entity other than MARINE.
B. MARINE objects to third-party plaintiff's demand to the extent that it
purports to impose obligations beyond those permitted under the New York Civil Practice
Law and Rules (CPLR).
C. MARINE objects to the third-party plaintiff's demand to the extent that it
calls for the productich of documents protected the attomey-client the work-
by privilege,
product doctrine, business strategy privilege, or any other applicable privilege, doctrine or
immunity. By respõñdiñg to third-party plaintifPs demand, MARINE does not waive,
intentianally or otherwise, the attorney-client privilege, the work-product doctrine
protectics, business strategy privilege, or any other applicable privilege, doctrine or
immunity protecting communications, transactions or records from disclosure. Accordingly,
any respeñss or objection inconsistent with the foregoing is wholly inadvertent and shallnot
constitute a waiver of any such privilege or protection.
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D. MARINE objects to third-party plaintiff's demand to the extent it seeks
documents not relevant to a claim or defense of any party, or that are otherwise not subject
to discovery under the CPLR.
E. MARINE objects to third-party plaintiff s demand to the extent it seeks
decümeñts that are unduly burdensome to obtain, including requests for identification of
"all" "all"
documents when allrelevant facts can be obtained from fewer than doen=ants
F. MARINE's respcñse to request contained in plaintifFs
any third-party
deisand shall not be deemed an admission or acknowledgement that such request calls for
material relevant to the subject matter of thisaction, and is without prejudice to MARINE's
right to contend at trial or any other stage of this or any other action that the requested
documents are inadmissible, irrelevant,immaterial or otherwise objectionable.
G. MARINE's search for documents is õñgcing. Therefore, MARINE reserves
the right to rely on any facts, documeñts or other evidence that may develop or come to
MARINE's attention subseqüent hereto. MARINE's response as set forth herein iswithest
prejudice to his right to assert additional objections or supplemental responses, should he
discover additional information or grounds for objections. MARINE reserves the right to
supplement his responses to the extent required by the CPLR.
H. These general objecticñs shall be deemed to be throughout the
continuing
responses to specific requests, even when not referred to in a specific request.
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AS AND FOR RESPONSE TO FIRST DEMAND
1. The full names and lastknown addresses of each customer, dealer and
distributor of Marine's products that is located in New York.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, Hane's Supply 55 James E. Case Drive, Buffalo, NY 14206, 3E Technology,
87th
Inc., 177 E. Street, New York, NY 10128.
AS AND FOR RESPONSE TO SECOND DEMAND
2. The full name and last known addresses of Marine's representatives that
Group"
attended the "EPRI 2017 Hoisting, Rigging, and Crane User in Buffalo, New
York.
OBJECTION. Demand is --"rSd in time and scope. Subject to said
objections, Mark McClinton & Steve Barker anended in June, 2016.
AS AND FOR A RESPONSE TO THIRD DEMAND
3. Compicte copies of contracts with any dealers or distributors of Marine's
products that are located in New York.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, none.
AS AND FOR A RESPONSE TO FOURTH DEMAMD
4. Copies of all licensing, sales, dealer, distributor and other agreements with any
entities located in New York, pertaining to the sale, distribution, delivery or manufa ture
of rigging products or services.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, none.
AS AND FOR A RESPONSE TO FIFTH DEMAND
5. All documents relating to the sale, delivery and or distribution of Marine's
products or services in New York.
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OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, see attached Exhibits A and B respectively.
AS AND FOR A RESPONSE TO SIXTH DEMAND
6. All documents relating to Marine's income, revenue and profit from the sale or
distribution of riggiñg products or services in New York.
OBJECTION. Demand is unlimited in time and scope. Subject to said objecuêñs,
Invoice No. 263712 - sales $94.86 cost $94.86 - this order was sold at cost. Invoice No.
239514 - sales $1,362.24 cost $928.80 - gross profit $433.44
AS AND FOR A RESPONSE TO SEVENTH DEMAND
7. Any applications/registrations to do business in effect on the date of loss.
OBJECTION. Demand is =!imited in time and scope, Subject to said
objections, no.
AS AND FOR A RESPONSE TO EIGHTH DEMAND
8. Any applications/registrations to do business in New York.
OBJECTION. Demand is imlimited in time and scope. Subject to said
objections, none.
AS AND FOR A RESPONSE TO NINTH DEMAND
9. All documcats pertaining to registrations with government agêñcies in New
York.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, none.
AS AND FOR A RESPONSE TO TENTH DEMAND
10. All documents relating to the transportation of any products or services
through New York.
OBJECTION. Demand is uñlimited in time and scope. Subject to said
objections, none.
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AS AND FOR A RESPONSE TO ELEVENTH DEMAND
11. All documents relating to any property owned, rented, leased or otherwise
controlled by Marine in New York.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, none.
AS AND FOR A RESPONSE TO TWELFTH DEMAND
12. All distribution records and sales records throughout the United States for five
(5) years prior to the date of loss to present.
OBJECTION. Demand is vague and coñfhsing. Marine reserves the right to
provide a supplemental response upon clarification.
AS AND FOR A RESPONSE TO THIRTEENTH DEMAND
13. All marketing documents including brochures, pamphlets, and other materials
sent to customers or potential customers for a period of five (5) years prior to the date of
loss to present.
OBJECTION. Demand is vague and confusing. Marine reserves the right to
provide a supplemental response upon clarification.
AS AND FOR A RESPONSE TO FOURTEENTH DEMAND
14. All documents relating to Marine's efforts to develop business in New York.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, none.
AS AND FOR A RESPONSE TO FIFTEENTH DEMAND
15. All agreements, contracts, purchase orders, receipts and invoices between
Marine and Hanes Supply Inc. regarding the sling at issue.
OBJECTION. MARINE has not seen the sling at issue. Subject to said
Oh üctiün, and upon information and belief, see Exhibit A.
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AS AND FOR A RESPONSE TO SIXTEENTH DEMAND
16. All agreements, contracts, purchase orders, receipts and invoices between
Marine and Paul's Wire Rope & Sling regarding the sling at issue.
OBJECTION. MARINE has not seen the sling at issue. Subject to said
objection, and upon information and belief, see Exhibit C.
AS AND FOR A RESPONSE TO SEVENTEENTH DEMAND
17. All agooments, contracts, purchase orders, receipts and iñvoices between
Marine and any other party regarding the sling at issue.
OBJECTION. MARINE has not seen the sling at issue, Subject to said
objection, and upon information and belief, see Exhibit A.
AS AND FOR A RESPONSE TO EIGHTEENTH DEMAND
18. All agreements, contracts, purchase, orders, receipts and iñvoices between
Marine and any party in New York for a period of five (5) years prior to the date of loss
to present.
See Exhibits A and B.
AS AND FOR A RESPONSE TO NINETEENTH DEMAND
19. All communications between Marine and any customers in New York
regarding the sale, shipment, manufacture or distribution of products and/or services.
OBJECTION. Demand is vague and unlimited in time and scope. Subject to
said objections, MARINE is not in possession of any responsive documents.
AS AND FOR A RESPONSE TO TWENTIETH DEMAND
20. All cessi:ations between Marine and Hanes Supply Inc. regarding the
sale, manufacture or distribution of the sling at issue.
OBJECTION. Demand is vague and r!!=bd in time and scope. Subject to
said objections, MARINE is not in pósswaion of any responsive documents.
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AS AND FOR A RESPONSE TO TWENTY-FIRST DEMAND
21. All cc--rications between Marine and Paul's Wire Rope & Sling regarding
the sale, ma.nufacture or distribution of the sling at issue.
OBJECTION. Demand is vague and uñlimited in time and scope. Subject to
said objections, MARINE is not in possession of any responsive dacümeñts.
AS AND FOR A RESPONSE TO TWENTY-SECOND DEMAND
22. All communications between Marine and any other party regarding the sale,
manufacture or distribution of the sling at issue.
OBJECTION. Demand is vague and unlimited in time and scope.
Subject to said objections, MARINE is not in possessión of any responsive documents.
AS AND FOR A RESPONSE TO TWENTY-THIRD DEMAND
23. Any and alldocuments or ccmzrlsaticñs related to any warranty
information provided to customers in New York.
OBJECTION. Dcmand is vague and unlimited in time and scope. Subject to
said objections, see Exhibit D.
Dated: Garden City, New York
December 20, 2018 .
Yo etc.,
DAVID . TAVELLA
CASCONE & KLUEPFEL, LLP
Attorneys for Third-Party Defendant
MARINE & INDUSTRIAL
SUPPLY COMPANY, INC.
1399 Franldin Avenue, Suite 302
Garden City, NY 11530
(516) 747-1990
File No.: 04584DZB
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TO:
LITCHFIELD CAVO LLP
Attorneys for Plaintiff
260-261 MADISON AVENUE, LLC
420 Lexington Avenue, Suite 2104
New York, NY 10170
(212) 434-0100
LONDON FISCHER, LLP
Attorneys for Defendant
PENGUlN AIR CONDITIONING CORP.
59 Maiden Lane
New York, NY 10038
(212) 331-9502
GARTNER & BLOOM, P.C.
Attorneys for Defendant
TIMBIL MECHANICAL, LLC
11*
801 Second Avenue, Floor
New York, NY 10017
(212) 759-5800
File No.: 10351
KAUFMAN DOLOWICH & VOLUCK, LLP
Attorneys for Defendant/Third Party Plaintiff
SKYLIFT CONTRACTOR CORP.
20th
40 Exchange Place, Floor
New York, NY 10005
(212) 485-9600
GORDON REES SCULLY MANSUKHANI, LLP
Attorneys for Third-Party Defendant
HANES SUPPLY, INC.
500 Mamaroneck Avenue, Suite 503
Harrison, NY 10528
(914) 777-2225
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NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 01/25/2019
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF NASSAU )ss.:
I,MARY L. COOKE, being duly sworn, say: I am not a party to the action, am over 18 years of age
and reside in Nassau County New York:
On January 25, 2019 I served the within RESPONSE TO JOINT NOTICE FOR DISCOVERY
AND INSPECTION with EXHIBITS.
[x ] Service by depGsity under the exclusive care and ofricial
by depositing a true copy thereof in a post-paid wrapper, in an official depository under the
Mail exclusive care and custody of the U.S. Postal Service within
the New York State, addressed to each of the following
persons at the
last
known address set forth after each name:
|j Personal a true copy thereof personally to each person named below at the address indicated. I knew each person served to be the person
by delivering
Served on mentiGñcd and described in said papers as apartytherein:
Endividur.|
|x|Service by by trrrr±±!r; system, which was desigriated by the attorneys to this action for such
the papers by electronic means to the NYSCEF
Electronic - .I..nt!s
purpose. I received a from NYSCEF that the dGcü=cnt
indicating was received and ferwarded
to all parties as registered
Means with NYSCEF.
] Overnight by dr;rr!±ir; into the custody of UNITED
a true copy thereof, enclosed in a wrapper addressedas shown below, PARCEL SERVICE for
overnight delivery, prior to the latest time designated by that service for ovemight delivery.
TO:
LITCHFIELD CAVO LLP
Attorneys forPlaintiff
260-261 MADISON AVENUE, LLC
420 Lexington Avenue, Suite2104
New York, NY 10170
(212) 434-0100
MARY L COÒKE
Sworn to before me this
25th
day of January, 2019
otary Public
CYNTHIA L LOVELACE
State of New York
Notary Public,
No. 01LO62267E3
Qualifiedin Nassau Courety
Expires August 16, 20
COramissica
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NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 01/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK INDEX NO.: 155495/2015
KENNETH JONES,
Plaintiff,
-against-
260-261 MADISON AVENUE, LLC, SKYLIPT
CONTRACTOR CORP. and BAY CRANE
SERVICE INC.,
Defendants.
X
SKYLIFT CONTRACTOR CORP.,
Third-PartyPlaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,
D/B/A MARINE & INDUSTRIAL TESTINO
SOLUTIONS; MARINE & INDUSTRIAL TESTING
SOLUTIONS; HANES SUPPLY, INC.,as successor-by-
merger to and/or
d/b/a PAUL'S WIRE ROPE & SLING;
and PAUL'S WIRE ROPE & SLING,
Third-PartyDefendants.
X
260-261 MADISON AVENUE LLC,
Second Third-PartyPlaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a
MARINE & INDUSTRIAL TESTING SOLUTIONS, MARINE
& INDUSTRIAL TESTING SOLUTIONS, HANES SUPPLY,
INC.,as successor-by-iiierger
to and/ord/b/a
PAUL'S W1RE
ROPE & SLING and PAUL'S WIRE ROPE & SLING,
Second Third-PartyDefendants.
RESPONSE iO 3ÖiNT NOTICE FOR DISCOVERY AND INSPECTIOÑ
CASCONE & KLUEPFEL, LLP.
Attorneys for Defendant(s)
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.
Office and Post Office Address, Telephone
1399 Franklin Avenue, Suite 302
Garden City, New York 11530
(516) 747-1990 (516) 747-1992 Facsimile
To: ALL COUNSEL
Serviceof a copyof the within
is herebyadmitted,
Dated, 1/25/2019
Attorney(s)forDefendant(s)
11 of 11
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Ruling
K. QUILLIN VS. NOELLE BECKER MORENO ET AL
Jul 10, 2024 |
CGC24611734
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance. Appear to address the status of case following the unsuccessful mediation
and whether it is time to set this matter for trial.
Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 267 RECEIVED NYSCEF: 10/15/2019 EXHIBIT E FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 [FILED: NYSCEF DOC. NEW NO. YORK 267 COUNT_Y CLERK 01/25/2019 05 : 24 PM RECEIVED NYSCEF: 10/15/2019 NYSCEF DOC NO. 215 RECEIVED NYSCEF: 01/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---X Index No.: 155495/2015 KENNETH JONES, RESPONSE TO JOINT Plaintiff, NOTICE FOR DISCOVERY AND -against- INSPECTION 260-261 MADISON AVENUE, LLC, SKYLIFT CONTRACTOR CORP. and BAY CRANE SERVICE INC., Defendants. ...--------------------X SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., D/B/A MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING HANES as successor-by- SOLUTIONS; SUPPLY, INC., merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-Party Defendants. . . . . .. . . . , . . . . ... . ,X 260-261 MADISON AVENUE LLC, Second Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS, MARINE & INDUSTRIAL TESTING SOLUTIONS, HANES SUPPLY, INC., as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING and PAUL'S WIRE ROPE & SLING, Second Third-Party Defendants. C O U N S E L L O R S: 1 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 [FILED DOC. NYSCEF : NEW 267 NO. YORK COUNTY CLERK 01/25/2019 05 : 2 4 PNJ RECEIVED NYSCEF: 10/15/2019 NYSCEF DOC. 40. 215 RECEIVED NYSCEF: 01/25/2019 Defendants MARINE & INDUSTRIAL SUPPLY COMPANY, INC., (hereinafter "MARINE") by and through their attorneys, CASCONE & KLUEPFEL, LLP, as and for a Response to Defendant, 260-261 MADISON AVENUE, LLC'S Joint Notice for Discovery and Inspection, stateas follows: GENERAL OBJECTIONS A. MARINE objects generally to third-party plaintiff's demand to the extent it seeks documents that are not in the possession, custody or control of MARINE, or seeks to impose any obligation upon MARINE to provide documents on behalf of any person or entity other than MARINE. B. MARINE objects to third-party plaintiff's demand to the extent that it purports to impose obligations beyond those permitted under the New York Civil Practice Law and Rules (CPLR). C. MARINE objects to the third-party plaintiff's demand to the extent that it calls for the productich of documents protected the attomey-client the work- by privilege, product doctrine, business strategy privilege, or any other applicable privilege, doctrine or immunity. By respõñdiñg to third-party plaintifPs demand, MARINE does not waive, intentianally or otherwise, the attorney-client privilege, the work-product doctrine protectics, business strategy privilege, or any other applicable privilege, doctrine or immunity protecting communications, transactions or records from disclosure. Accordingly, any respeñss or objection inconsistent with the foregoing is wholly inadvertent and shallnot constitute a waiver of any such privilege or protection. 2 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 |FILED NYSCEF DOC.: NEW NO. YORK 267 COUNTY CLERK 01/25/2019 05 : 24 Pi RECEIVED NYSCEF: 10/15/2019 NYSCEÈ' DOC. NO. '215 RECEIVED NYSCEF: .01;25/2019 D. MARINE objects to third-party plaintiff's demand to the extent it seeks documents not relevant to a claim or defense of any party, or that are otherwise not subject to discovery under the CPLR. E. MARINE objects to third-party plaintiff s demand to the extent it seeks decümeñts that are unduly burdensome to obtain, including requests for identification of "all" "all" documents when allrelevant facts can be obtained from fewer than doen=ants F. MARINE's respcñse to request contained in plaintifFs any third-party deisand shall not be deemed an admission or acknowledgement that such request calls for material relevant to the subject matter of thisaction, and is without prejudice to MARINE's right to contend at trial or any other stage of this or any other action that the requested documents are inadmissible, irrelevant,immaterial or otherwise objectionable. G. MARINE's search for documents is õñgcing. Therefore, MARINE reserves the right to rely on any facts, documeñts or other evidence that may develop or come to MARINE's attention subseqüent hereto. MARINE's response as set forth herein iswithest prejudice to his right to assert additional objections or supplemental responses, should he discover additional information or grounds for objections. MARINE reserves the right to supplement his responses to the extent required by the CPLR. H. These general objecticñs shall be deemed to be throughout the continuing responses to specific requests, even when not referred to in a specific request. 3 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 |FILED NYSCEF : DOC. NEW NO. YORK 267 COUNTY CLERK 01/25/2019 0-5 : 24 PM) RECEIVED NYSCEF: 10/15/2019 DOC.' NYSCEF 90. 215 RECEIVED NYSCEF: 01/25/,2019 AS AND FOR RESPONSE TO FIRST DEMAND 1. The full names and lastknown addresses of each customer, dealer and distributor of Marine's products that is located in New York. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, Hane's Supply 55 James E. Case Drive, Buffalo, NY 14206, 3E Technology, 87th Inc., 177 E. Street, New York, NY 10128. AS AND FOR RESPONSE TO SECOND DEMAND 2. The full name and last known addresses of Marine's representatives that Group" attended the "EPRI 2017 Hoisting, Rigging, and Crane User in Buffalo, New York. OBJECTION. Demand is --"rSd in time and scope. Subject to said objections, Mark McClinton & Steve Barker anended in June, 2016. AS AND FOR A RESPONSE TO THIRD DEMAND 3. Compicte copies of contracts with any dealers or distributors of Marine's products that are located in New York. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, none. AS AND FOR A RESPONSE TO FOURTH DEMAMD 4. Copies of all licensing, sales, dealer, distributor and other agreements with any entities located in New York, pertaining to the sale, distribution, delivery or manufa ture of rigging products or services. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, none. AS AND FOR A RESPONSE TO FIFTH DEMAND 5. All documents relating to the sale, delivery and or distribution of Marine's products or services in New York. 4 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 |FILED DOC. NYSCEF : NEW 267 NO. YORK COUNTY CLERK 01/25/2019 05 : 24 PM1 RECEIVED NYSCEF: 10/15/2019 NYSCEF DOC. O. 215 RECEIVED NYSCEF: 01/25/2019 OBJECTION. Demand is unlimited in time and scope. Subject to said objections, see attached Exhibits A and B respectively. AS AND FOR A RESPONSE TO SIXTH DEMAND 6. All documents relating to Marine's income, revenue and profit from the sale or distribution of riggiñg products or services in New York. OBJECTION. Demand is unlimited in time and scope. Subject to said objecuêñs, Invoice No. 263712 - sales $94.86 cost $94.86 - this order was sold at cost. Invoice No. 239514 - sales $1,362.24 cost $928.80 - gross profit $433.44 AS AND FOR A RESPONSE TO SEVENTH DEMAND 7. Any applications/registrations to do business in effect on the date of loss. OBJECTION. Demand is =!imited in time and scope, Subject to said objections, no. AS AND FOR A RESPONSE TO EIGHTH DEMAND 8. Any applications/registrations to do business in New York. OBJECTION. Demand is imlimited in time and scope. Subject to said objections, none. AS AND FOR A RESPONSE TO NINTH DEMAND 9. All documcats pertaining to registrations with government agêñcies in New York. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, none. AS AND FOR A RESPONSE TO TENTH DEMAND 10. All documents relating to the transportation of any products or services through New York. OBJECTION. Demand is uñlimited in time and scope. Subject to said objections, none. 5 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 [FILED NYSCEF DOC.: NEW NO. YORK 267 COUNTY CLERK 01/25/2019 05 :24 PM RECEIVED NYSCEF: 10/15/2019 NYSCEÈ' RECEIVED NYSCEF: 01 25/.2019 DOC. NO. 215 AS AND FOR A RESPONSE TO ELEVENTH DEMAND 11. All documents relating to any property owned, rented, leased or otherwise controlled by Marine in New York. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, none. AS AND FOR A RESPONSE TO TWELFTH DEMAND 12. All distribution records and sales records throughout the United States for five (5) years prior to the date of loss to present. OBJECTION. Demand is vague and coñfhsing. Marine reserves the right to provide a supplemental response upon clarification. AS AND FOR A RESPONSE TO THIRTEENTH DEMAND 13. All marketing documents including brochures, pamphlets, and other materials sent to customers or potential customers for a period of five (5) years prior to the date of loss to present. OBJECTION. Demand is vague and confusing. Marine reserves the right to provide a supplemental response upon clarification. AS AND FOR A RESPONSE TO FOURTEENTH DEMAND 14. All documents relating to Marine's efforts to develop business in New York. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, none. AS AND FOR A RESPONSE TO FIFTEENTH DEMAND 15. All agreements, contracts, purchase orders, receipts and invoices between Marine and Hanes Supply Inc. regarding the sling at issue. OBJECTION. MARINE has not seen the sling at issue. Subject to said Oh üctiün, and upon information and belief, see Exhibit A. 6 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2015 IFILED DOC. NYSCEF : NEW NO. YORK 267 COUNTY CLERK 01/25]2019 05: 24 EMI RECEIVED NYSCEF: 10/15/2019 ~NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 01e25/2019 AS AND FOR A RESPONSE TO SIXTEENTH DEMAND 16. All agreements, contracts, purchase orders, receipts and invoices between Marine and Paul's Wire Rope & Sling regarding the sling at issue. OBJECTION. MARINE has not seen the sling at issue. Subject to said objection, and upon information and belief, see Exhibit C. AS AND FOR A RESPONSE TO SEVENTEENTH DEMAND 17. All agooments, contracts, purchase orders, receipts and iñvoices between Marine and any other party regarding the sling at issue. OBJECTION. MARINE has not seen the sling at issue, Subject to said objection, and upon information and belief, see Exhibit A. AS AND FOR A RESPONSE TO EIGHTEENTH DEMAND 18. All agreements, contracts, purchase, orders, receipts and iñvoices between Marine and any party in New York for a period of five (5) years prior to the date of loss to present. See Exhibits A and B. AS AND FOR A RESPONSE TO NINETEENTH DEMAND 19. All communications between Marine and any customers in New York regarding the sale, shipment, manufacture or distribution of products and/or services. OBJECTION. Demand is vague and unlimited in time and scope. Subject to said objections, MARINE is not in possession of any responsive documents. AS AND FOR A RESPONSE TO TWENTIETH DEMAND 20. All cessi:ations between Marine and Hanes Supply Inc. regarding the sale, manufacture or distribution of the sling at issue. OBJECTION. Demand is vague and r!!=bd in time and scope. Subject to said objections, MARINE is not in pósswaion of any responsive documents. 7 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155 4 95/2015 |FILED: NYSCEF DOC. NEW NO. YORK 267 COUNTY CLERK 01/25/2019 05 : 24 PM| RECEIVED NYSCEF: 10/15/2019 NY.SCEF DOC. SO. 215 RECEIVED NYSCEF: 01/25/2019 AS AND FOR A RESPONSE TO TWENTY-FIRST DEMAND 21. All cc--rications between Marine and Paul's Wire Rope & Sling regarding the sale, ma.nufacture or distribution of the sling at issue. OBJECTION. Demand is vague and uñlimited in time and scope. Subject to said objections, MARINE is not in possession of any responsive dacümeñts. AS AND FOR A RESPONSE TO TWENTY-SECOND DEMAND 22. All communications between Marine and any other party regarding the sale, manufacture or distribution of the sling at issue. OBJECTION. Demand is vague and unlimited in time and scope. Subject to said objections, MARINE is not in possessión of any responsive documents. AS AND FOR A RESPONSE TO TWENTY-THIRD DEMAND 23. Any and alldocuments or ccmzrlsaticñs related to any warranty information provided to customers in New York. OBJECTION. Dcmand is vague and unlimited in time and scope. Subject to said objections, see Exhibit D. Dated: Garden City, New York December 20, 2018 . Yo etc., DAVID . TAVELLA CASCONE & KLUEPFEL, LLP Attorneys for Third-Party Defendant MARINE & INDUSTRIAL SUPPLY COMPANY, INC. 1399 Franldin Avenue, Suite 302 Garden City, NY 11530 (516) 747-1990 File No.: 04584DZB 8 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155495/2 015 FILED NYSCEF DOC.: NEW NO. YORK 267 COUNTY CLERK 01/25/2019 05 : 24 RECEIVED NYSCEF: 10/15/2019 NYSCEF DOC. 10. 215 RECEIVED NYSCEF: 01/ 3.5/2019 TO: LITCHFIELD CAVO LLP Attorneys for Plaintiff 260-261 MADISON AVENUE, LLC 420 Lexington Avenue, Suite 2104 New York, NY 10170 (212) 434-0100 LONDON FISCHER, LLP Attorneys for Defendant PENGUlN AIR CONDITIONING CORP. 59 Maiden Lane New York, NY 10038 (212) 331-9502 GARTNER & BLOOM, P.C. Attorneys for Defendant TIMBIL MECHANICAL, LLC 11* 801 Second Avenue, Floor New York, NY 10017 (212) 759-5800 File No.: 10351 KAUFMAN DOLOWICH & VOLUCK, LLP Attorneys for Defendant/Third Party Plaintiff SKYLIFT CONTRACTOR CORP. 20th 40 Exchange Place, Floor New York, NY 10005 (212) 485-9600 GORDON REES SCULLY MANSUKHANI, LLP Attorneys for Third-Party Defendant HANES SUPPLY, INC. 500 Mamaroneck Avenue, Suite 503 Harrison, NY 10528 (914) 777-2225 9 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155 4 95 /2015 (FILED DOC. NYSCEF : NEW NO. YORK 267 COUNTY CLERK 01725 /2019 05 : 24 PN| RECEIVED NYSCEF: 10/15/2019 NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 01/25/2019 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NASSAU )ss.: I,MARY L. COOKE, being duly sworn, say: I am not a party to the action, am over 18 years of age and reside in Nassau County New York: On January 25, 2019 I served the within RESPONSE TO JOINT NOTICE FOR DISCOVERY AND INSPECTION with EXHIBITS. [x ] Service by depGsity under the exclusive care and ofricial by depositing a true copy thereof in a post-paid wrapper, in an official depository under the Mail exclusive care and custody of the U.S. Postal Service within the New York State, addressed to each of the following persons at the last known address set forth after each name: |j Personal a true copy thereof personally to each person named below at the address indicated. I knew each person served to be the person by delivering Served on mentiGñcd and described in said papers as apartytherein: Endividur.| |x|Service by by trrrr±±!r; system, which was desigriated by the attorneys to this action for such the papers by electronic means to the NYSCEF Electronic - .I..nt!s purpose. I received a from NYSCEF that the dGcü=cnt indicating was received and ferwarded to all parties as registered Means with NYSCEF. ] Overnight by dr;rr!±ir; into the custody of UNITED a true copy thereof, enclosed in a wrapper addressedas shown below, PARCEL SERVICE for overnight delivery, prior to the latest time designated by that service for ovemight delivery. TO: LITCHFIELD CAVO LLP Attorneys forPlaintiff 260-261 MADISON AVENUE, LLC 420 Lexington Avenue, Suite2104 New York, NY 10170 (212) 434-0100 MARY L COÒKE Sworn to before me this 25th day of January, 2019 otary Public CYNTHIA L LOVELACE State of New York Notary Public, No. 01LO62267E3 Qualifiedin Nassau Courety Expires August 16, 20 COramissica 10 of 11 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 INDEX NO. 155 4 95 / 2 015 LFILED DOC. NYSCEF : NEW 267 NO. YORK COUNTY CLERK 01/25/2019 05 : 2 4 PM) RECEIVED NYSCEF: 10/15/2019 NYSCEF DOC. NO. 215 RECEIVED NYSCEF: 01/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDEX NO.: 155495/2015 KENNETH JONES, Plaintiff, -against- 260-261 MADISON AVENUE, LLC, SKYLIPT CONTRACTOR CORP. and BAY CRANE SERVICE INC., Defendants. X SKYLIFT CONTRACTOR CORP., Third-PartyPlaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., D/B/A MARINE & INDUSTRIAL TESTINO SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, INC.,as successor-by- merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-PartyDefendants. X 260-261 MADISON AVENUE LLC, Second Third-PartyPlaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS, MARINE & INDUSTRIAL TESTING SOLUTIONS, HANES SUPPLY, INC.,as successor-by-iiierger to and/ord/b/a PAUL'S W1RE ROPE & SLING and PAUL'S WIRE ROPE & SLING, Second Third-PartyDefendants. RESPONSE iO 3ÖiNT NOTICE FOR DISCOVERY AND INSPECTIOÑ CASCONE & KLUEPFEL, LLP. Attorneys for Defendant(s) MARINE & INDUSTRIAL SUPPLY COMPANY, INC. Office and Post Office Address, Telephone 1399 Franklin Avenue, Suite 302 Garden City, New York 11530 (516) 747-1990 (516) 747-1992 Facsimile To: ALL COUNSEL Serviceof a copyof the within is herebyadmitted, Dated, 1/25/2019 Attorney(s)forDefendant(s) 11 of 11