Preview
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
EXHIBIT J
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
CASCONE & KLUEPFELu'
Atto r n eys at Law
July 31, 2019
KAUFMAN DOLOWICH & VOLUCK, LLP
20th
40 Exchange Place, FlOOr
New York, NY 10005
Attn: Steven H. Kaplan
LITCHFIELD CAVO
420 Lexington Avenue
Suite 2104
New York, NY 10170
Attn: Morgan E. Mueller
Re: 1. Jones v. Skylift Contractor Corp., et al.v.Marine & Industrial Supply Co., Inc.
2. Welch v. Skylift Contractor Corp., et al.v. Marine & IndustrialSupply Co., Inc.
3. Admiral Ins.v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co.
4. McGann v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co., Inc.
5. Beck v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co., Inc.
6. 260-261 Madison v. SkyliftContractor Corp., et al.v. Marine & IndustrialSupply Co.
7. Sentinel Insurance Co. v. Skylift Contractor Corp., et al.v. Marine & Industrial
Supply Co.
8. Pacific Indem. Co. v. SkyliftContractor Corp. v. Marine & Industrial Supply Co.
9. Continental Cas. Co. v. Skylift Contractor Corp. v. Marine & Industrial Supply Co.
10. Pyle v. 260-261 Madison Ave v. Marine & Industrial Supply Co.
Dear Counsel:
Attached please find Marine's second supplemental discovery responses
regarding jurisdiction, and Marine's Jackson affidavit.
My client is available for deposition the last week of August, and pretty much any
day in September. Please advise as to your availability.
Thank you.
V y yours,
David F. Tavella, Esq.
DFT/me
1399 FranklinAvenue, Suite 302, Garden City, NY 11530
p 516.747.1990 f 516.747.1992
cklaw.com
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
cc:
LONDON FISCHER, LLP
Attorneys for Defendant
PENGUlN AIR CONDITIONING CORP.
59 Maiden Lane
New York, NY 10038
GARTNER & BLOOM, P.C.
Attorneys for Defendant
TIMBIL MECHANICAL, LLC
11th
801 Second Avenue, FlOOr
New York, NY 10017
File No.: 10351
GORDON REES SCULLY MANSUKHANI, LLP
Attorneys for Third-Party Defendant
HANES SUPPLY, INC.
500 Mamaroneck Avenue, Suite 503
Harrison, NY 10528
WENIG & WENIG, PLLC
Attorneys for Plaintiffs
ADMIRAL INDEMNITY COMPANY a/s/o,
ZUMA NYC LLC d/b/a ZUMA
150 Broadway, Suite 911
New York, NY 10038
File No.: FF2188
LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Defendant
260-261 MADISON AVENUE LLC
125 Broad Street, 7th Floor
New York, New York 10004
GALLO VITUCCI KLAR, LLP
Attorneys for Defendant
BAY CRANE SERVICE, INC.
90 Broad Street, Suite 1201
New York, NY 10004
PAUL'S WIRE ROPE & SLING
c/o Hanes Supply Inc.
55 James E. Casey Drive
Buffalo, NY 14206
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
WESTERMAN BALL EDERER
MILLER ZUCKER & SHARFSTEIN, LLP
Attorneys for Third-Third Party Defendant,
Johnson Controls, Inc.
1201 RXR Plaza
Uniondale, New York 11556
SHOOK HARDY & BACON, LLP
Attorneys for Johnson Controls, Inc.
255 Grand Boulevard
Kansas City, Missouri 64108
JEFFREY A. ARONSKY, P.C.
Attorneys for Plaintiff
RICHARD BECK
800 Second Avenue, Suite 301
New York, NY 10017
File No.: 04208
LAW OFFICE OF THOMAS TANGNEY, ESQ.
Attorneys for Plaintiffs
TYRONE McGANN and MARY McGANN
405 RXR Plaza, Suite 405
Uniondale, New York 11553
JAY H. TANENBAUM
LAW OFFICES OF JAY H. TANENBAUM
Attorneys for Plaintiffs
GREGORY WELCH and PRISCILLA WELCH
14 Wall Street., Suite 5F
New York, New York 10005
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X Index No.: 157898/2017
260-261 MADISON AVENUE, LLC
AFFIDAVIT
Plaintiff,
-against-
PENGUlN AIR CONDITIONING CORP.,
TIMBIL MECHANICAL, LLC and SKYLIFT
CONTRACTOR CORP.,
Defendants.
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
STATE OF ALABAMA
COUNTY OF MOBILE
Thomas F. Benton, being duly sworn, deposes and says:
1. I am the praddent of third-party defendant Marine & Industrial Supply
Company, Inc., (hereinafter "Marine") and as such I fully familiar with the facts and
circumstances of thisaction, and the contractual obligations of Marine.
2. Marine has not been supplied with the sling in question. However, based
upon photographs, it is believed that Marine sold similar slings, in 2008, to Paul's Wire
Rope and Sling (hereinafter "Paul's").
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
3. Marine does not have any contracts with any dealers or distributors of
Marine's products sold in New York.
4. Marine does not have any lic~~~ing, sales, dealer, distributor or other
agreemenis located in New York pertaining to the sale, distributio, delivery or
nicuiuxacture of rigging products or services.
5. Marine is not in go=:=-===-=-ion of
any ce~~IInications between Marine and
Paul's Wire Rope & Sling regarding the sale, manufacture or distribution of the sling at
issue.
6. Based upon the of the ~i~ ~~~ os it would be unfair to have
totality
Marine defend this case in New York. Marine requ~a~ this court ~'~~~« the
Therefore,
action against Marine based upon lack of jurist~'
F
Thomas F. Benton
Sworn to before me thisg2. day ofJuly, 2019
nate
~ ~pi~>
~C
II~~IIJyy~
- c„, c',,
r.; 0 r'.--:.;
g1l r 4
~.:0: I,
n
" ' ~slie~JI 111~
I
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X Index No.:
260-261 MADISON AVENUE, LLC, 157898/2017
SECOND
Plaintiff,
SUPPLEMENTAL
-against-
RESPONSE TO
PENGUIN AIR CONDITIONING CORP., TIMBIL
JOINT NOTICE
MECHANICAL, LLC, SKYLIFT CONTRACTOR CORP.,
FOR DISCOVERY
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.'
AND INSPECTION
PAUL'S WIRE ROPE & SLING and HANES SUPPLY, 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 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-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-rnerger to and/or d/b/a PAUL'S WIRE
ROPE & SLING and PAUL'S WIRE ROPE & SLING,
Second Third-Party Defendants.
-------- --------------------------------------- --X
SKYLIFT CONTRACTING CORP.,
Third Third Party Plaintiff,
-against-
JOHNSON CONTROLS, INC.,
Third Third Party Defendant
=-- ----------X
260-261 MADISON AVENUE LLC
Fourth Third-Party Plaintiff,
-against-
PENGUIN AIR CONDITIONING CORP.; TIMBIL
MECHANICAL, LLC; and JOHNSON CONTROLS, INC.
Fourth Third-Party Defendants.
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
C O U N S E L:
Defendants MARINE & INDUSTRIAL SUPPLY COMPANY, INC., (hereinafter
"MARINE") by and through their attorneys, CASCONE & KLUEPFEL, LLP, as and for
a Supplemental Response to Joint Demands, states as follows:
GENERAL OBJECTION
A. MARINE objects generally to demands to the extent itseeks 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 demañds 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 demands to the extent that itcalls for the p-odüction of
documents protected by the attorney-client privilege, the work-product doctrine, business
strategy privilege, or any other applicabic privilege, doctrine or immunity. By responding to
third-party plaintiff's demand, MARINE does not waive, intentionally or otherwise, the
attorney-client privilege, the work-product doctrine protection, business strategy privilege,
or any other applicable privilege, doctrine or immunity protecting cGGEüñiCitions,
tran3aviluús or records from disclesüre. Accordingly, any response or objection inconsistent
with the foregoing is wholly inadvertent and shall not constitute a waiver of any such
privilege or protection.
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
D. MARINE objects to demands to the extent itseeks 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 demands to the extent it seeks documents that are
"all"
unduly burdeñsome to obtain, including requests for identhtion of decamc=±s when
"all"
allrelevant facts can be obtained from fewer than documents.
F. MARINE's response to any request contained in demands shall not be
deemed an admission or acknowledgement that such request calls for material alevant to
the subject matter of this action, 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 ongoing. Therefore, MARINE eserves
the right to rely on any facts, documents or other evidence that may develop or come to
MARINE's attention subsequent hereto. MARINE's response as set forth herein is without
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 objections shall be deemed to be continuing throughout the
responses to specific requests, even when not referred to in a specific mquest.
RESPONSES
3. Complete 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.
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
4. Copies of alllicensing, sales, dealer, distributor and other agreements with
any entities located in New York, pertaining to the sale, distribution, delivery or
manufacture of rigging products or services.
OBJECTION. Demand is unlimited in time and scope. Subject to said
objections, none.
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 overbroad. There are literally thousands of
invoices, and itwould take several weeks to complete the review.
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. Previously provided.
21. All communicaticus between Marine and Paul's Wire Rope & Sling 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 possession of any responsive documents.
Dated: Garden City, New York
July 31, 2019
ours, etc.,
AVID F. TAVELLA
CASCONE & KLUEPFEL, LLP
Attorneys for Third-Party Defendant
MARINE & INDUSTRIAL SUPPLY
COMPANY, INC.
1399 Franklin Avenue, Suite 302
Garden City, NY 11530
(516) 747-1990
File No.: 04584DZB
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
TO:
LITCHFIELD CAVO LLP
Attorneys for Plaintiff/Second Third-Party Plaintiff/
Fourth Third-Party Plaintiff
260-261 MADISON AVENUE, LLC
420 Lexington Avenue, Suite 2104
New York, NY 10170
(212) 434-0100
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
LONDON FISCHER, LLP
Attorneys for Defendant/Fourth Third-Party Defendants
PENGUIN AIR CONDITIONING CORP.
59 Maiden Lane
New York, NY 10038
(212) 331-9502
GARTNER & BLOOM
Attorneys for Defendant/Fourth Third-Party Defendants
TIMBIL MECHANICAL, LLC
11th
801 Second Avenue, PlOOr
New York, NY 10017
(212) 759-5800
File No.: 10351
GALLO VITUCCI KLAR, LLP
Attorneys for Defendant
BAY CRANE SERVICE, INC.
90 Broad Street, 3rd Floor
New York, NY 10004
GORDON REES SCULLY MANSUKHANI, LLP
Attorneys for Third-Party Defendant
HANES SUPPLY, INC.
500 Mamaroneck Avenue, Suite 503
Harrison, NY 10528
(914) 777-2225
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Defendant
260-261 MADISON AVENUE LLC
7th
125 Broad Street, F100r
New York, NY 10004
PAUL'S WIRE ROPE & SLING
c/o Hanes Supply Inc.
55 James E. Casey Drive
Buffalo, NY 14206
WESTERMAN BALL EDERER MILLER
ZUCKER & SHARFSTEIN, LLP
Attorneys for Third Third Party Defendant/Fourth Third-Party Defendant
JOHNSON CONTROLS, INC.
1201 RXR Plaza
Uniondale, NY 11556
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
STATE OF NEW YORK )
COUNTY OF NASSAU )Ss.:
I,MARY 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 2019 I served the within Second Supplemental Response to Joint Notice for and Inspection
July 31, Discovery
[x J Service by by depositing a true copy thereof in a post-paid wrapper, in an official
depository under the exclusive care and official
depository under the
Mail care and custody
exclusive of the U.S. Postal Service within
the New York to
addressed
State, each ofthefollowingpersons at the
last
known address set forth aAer each name:
|] Personal by delivering to each person named below at the address indicated. I knew each person servedto be the person
a true copy thereof p=sanany
Served on mentioned and described in said papers as a party
therein:
Individual
[j Service by by tee=kE. ; the papers by electronic means to the telephone number listed below,
which number was desiga.sted by the attorney for such
Electronic purpose. I received a signal from the equipment of the attorney served indicating
that the ±==!=!cnwas received.
I also deposited a true
Means copy of the papers, enclosed in a post-paid wrapper, in an official
depository under the care and custody of the U.S. Postal Service, addressed
tothe at
attorney the set
address forthafter
eachname:
[ | Overnight by deposking a true copy thereof, enclosed in a wrapper addressed as shown below,
into the custody of UNITED
PARCEL SERVICE for
ovemight to the latest time deignated
delivery, prior by that service for evemight
delivery.
Upon :
LITCHFIELD CAVO LLP WENIG & WENIG, PLLC
Attorneys for Plaintiff/Second Third-Party Plaintiff/ Attorneys for Plaintiffs
Fourth Third-Party Plaintiff ADMIRAL INDEMNITY COMPANY a/s/o,
260-261 MADISON AVENUE, LLC ZUMA NYC LLC d/b/aZUMA
420 Lexington Avenue, Suite 2104 150 Broadway, Suite 91 1
New York, NY 10170 New York, NY 10038
(212) 434-0100 File No.: FF2188
KAUFMAN DOLOWICH & VOLUCK, LLP LAW OFFICES OF CHARLES J.SIEGEL
Attorneys for Defendant/Third Party Plaintiff Attorneys for Defendant
SKYLIFT CONTRACTOR CORP. 260-261 MADISON AVENUE LLC
20th
40 Exchange Place, FlOOr 125 Broad Street,7th Floor
New York, NY 10005 New York, New York 10004
(212) 485-9600
GALLO VITUCCI KLAR, LLP
LONDON FISCHER, LLP Attorneys for Defendant
Attorneys for Defendant BAY CRANE SERVICE, INC.
PENGUIN AIR CONDITIONING CORP. 90 Broad Street, Suite 1201
59 Maiden Lane New York, NY 10004
New York, NY 10038
(212) 331-9502 SHOOK HARDY & BACON, LLP
Attorneys for Johnson Controls, Inc.
GARTNER & BLOOM, P.C. 255 Grand Boulevard
Attorneys for Defendant Kansas City,Missouri 64108
TIMBIL MECHANICAL, LLC
th
801 Second Avenue, 11 Floor JEFFREY A. ARONSKY, P.C.
New York, NY 10017 Attorneys for Plaintiff
(212) 759-5800 RICHARD BECK
File No.: 10351 800 Second Avenue, Suite 301
New York, NY 10017
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
PAUL'S WIRE ROPE & SLING LAW OFFICE OF THOMAS TANGNEY, ESQ.
c/o Hanes Supply Inc. Attorneys for Plaintiffs
55 Jarnes E. Casey Drive TYRONE McGANN and MARY McGANN
Buffalo, NY 14206 405 RXR Plaza, Suite 405
Uniondale, New York I1553
GORDON REES SCULLY MANSUKHANI, LLP
Attorneys forThird-Party Defendant JAY H. TANENBAUM
HANES SUPPLY, INC. LAW OFFICES OF JAY H. TANENBAUM
500 Mamaroneck Avenue, Suite 503 Attorneys for Plaintiffs
Harrison, NY 10528 GREGORY WELCH and PRISCILLA WELCH
(914) 777-2225 14 Wall Street.,Suite SF
New York, New York 10005
WESTERMAN BALL EDERER
MILLER ZUCKER & SHARFSTEIN, LLP
Attorneys for Third-Third Party Defendant,
Johnson Controls, Inc.
1201 RXR Plaza
Uniondale, New York 11556
MARY COÖKE
Swom to before me this
3181
day of July, 2019
otary Public
L t.0VE 2
New York
August
FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019
INDEX NO.: 157898/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
260-261 MADISON AVENUE, LLC,
Plaintiff,
-against-
PENGUIN AIR CONDITIONING CORP., TIMBIL MECHANICAL, LLC, SKYLIFT
CONTRACTOR CORP., MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,
PAUL's.WIRE ROPE & SLING and HANES SUPPLY, INC.
Defendants.
SKYLIFT CONTRACTOR CORP.,
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-mergerto and/ord/b/aPAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING,
Third-PartyDefendants.
260-261 MADISON AVENUE LLC,
Second Third-PartyPlaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,d/b/aMARINE & INDUSTRIAL TESTING
SOLUTIONS, MARINE & INDUSTRIAL TESTING SOLUTIONS, HANES SUPPLY, INC.,as successor-
by-mergerto and/ord/b/aPAUL'S WIRE ROPE & SLING and PAUL'S WIRE ROPE & SLING,
Second Third-PartyDefendants.
X
SKYLIFT CONTRACTING CORP.,
Third Plaintiff,
Third-Party
-against-
JOHNSON CONTROLS, INC.,
ThirdThird-PartyDefendant
-..-----. X
260-261 MADISON AVENUE, LLC
FourthThird-PartyPlaintiff,
-against-
PENGUlN AIR CONDITIONING CORP.; TIMBIL MECHANICAL, LLC and JOHNSON CONTROLS, INC.
FourthThini-PartyDefendants.
SECOND SUPPLEMENTAL RESPONSE TO JOINT NOTICE FOR
DISCOVERY AND INSPECTION
CASCONE & KLUEPFEL, LLP.
Attorneys for Defendant(s)
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.
Ofice 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 aWof ihe withi
is herebyadmitted,
Dated, 7/31/2019
Attorney(s) forDefendant(s)
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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. 272 RECEIVED NYSCEF: 10/15/2019 EXHIBIT J FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 CASCONE & KLUEPFELu' Atto r n eys at Law July 31, 2019 KAUFMAN DOLOWICH & VOLUCK, LLP 20th 40 Exchange Place, FlOOr New York, NY 10005 Attn: Steven H. Kaplan LITCHFIELD CAVO 420 Lexington Avenue Suite 2104 New York, NY 10170 Attn: Morgan E. Mueller Re: 1. Jones v. Skylift Contractor Corp., et al.v.Marine & Industrial Supply Co., Inc. 2. Welch v. Skylift Contractor Corp., et al.v. Marine & IndustrialSupply Co., Inc. 3. Admiral Ins.v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co. 4. McGann v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co., Inc. 5. Beck v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co., Inc. 6. 260-261 Madison v. SkyliftContractor Corp., et al.v. Marine & IndustrialSupply Co. 7. Sentinel Insurance Co. v. Skylift Contractor Corp., et al.v. Marine & Industrial Supply Co. 8. Pacific Indem. Co. v. SkyliftContractor Corp. v. Marine & Industrial Supply Co. 9. Continental Cas. Co. v. Skylift Contractor Corp. v. Marine & Industrial Supply Co. 10. Pyle v. 260-261 Madison Ave v. Marine & Industrial Supply Co. Dear Counsel: Attached please find Marine's second supplemental discovery responses regarding jurisdiction, and Marine's Jackson affidavit. My client is available for deposition the last week of August, and pretty much any day in September. Please advise as to your availability. Thank you. V y yours, David F. Tavella, Esq. DFT/me 1399 FranklinAvenue, Suite 302, Garden City, NY 11530 p 516.747.1990 f 516.747.1992 cklaw.com FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 cc: LONDON FISCHER, LLP Attorneys for Defendant PENGUlN AIR CONDITIONING CORP. 59 Maiden Lane New York, NY 10038 GARTNER & BLOOM, P.C. Attorneys for Defendant TIMBIL MECHANICAL, LLC 11th 801 Second Avenue, FlOOr New York, NY 10017 File No.: 10351 GORDON REES SCULLY MANSUKHANI, LLP Attorneys for Third-Party Defendant HANES SUPPLY, INC. 500 Mamaroneck Avenue, Suite 503 Harrison, NY 10528 WENIG & WENIG, PLLC Attorneys for Plaintiffs ADMIRAL INDEMNITY COMPANY a/s/o, ZUMA NYC LLC d/b/a ZUMA 150 Broadway, Suite 911 New York, NY 10038 File No.: FF2188 LAW OFFICES OF CHARLES J. SIEGEL Attorneys for Defendant 260-261 MADISON AVENUE LLC 125 Broad Street, 7th Floor New York, New York 10004 GALLO VITUCCI KLAR, LLP Attorneys for Defendant BAY CRANE SERVICE, INC. 90 Broad Street, Suite 1201 New York, NY 10004 PAUL'S WIRE ROPE & SLING c/o Hanes Supply Inc. 55 James E. Casey Drive Buffalo, NY 14206 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 WESTERMAN BALL EDERER MILLER ZUCKER & SHARFSTEIN, LLP Attorneys for Third-Third Party Defendant, Johnson Controls, Inc. 1201 RXR Plaza Uniondale, New York 11556 SHOOK HARDY & BACON, LLP Attorneys for Johnson Controls, Inc. 255 Grand Boulevard Kansas City, Missouri 64108 JEFFREY A. ARONSKY, P.C. Attorneys for Plaintiff RICHARD BECK 800 Second Avenue, Suite 301 New York, NY 10017 File No.: 04208 LAW OFFICE OF THOMAS TANGNEY, ESQ. Attorneys for Plaintiffs TYRONE McGANN and MARY McGANN 405 RXR Plaza, Suite 405 Uniondale, New York 11553 JAY H. TANENBAUM LAW OFFICES OF JAY H. TANENBAUM Attorneys for Plaintiffs GREGORY WELCH and PRISCILLA WELCH 14 Wall Street., Suite 5F New York, New York 10005 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: 157898/2017 260-261 MADISON AVENUE, LLC AFFIDAVIT Plaintiff, -against- PENGUlN AIR CONDITIONING CORP., TIMBIL MECHANICAL, LLC and SKYLIFT CONTRACTOR CORP., Defendants. 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 STATE OF ALABAMA COUNTY OF MOBILE Thomas F. Benton, being duly sworn, deposes and says: 1. I am the praddent of third-party defendant Marine & Industrial Supply Company, Inc., (hereinafter "Marine") and as such I fully familiar with the facts and circumstances of thisaction, and the contractual obligations of Marine. 2. Marine has not been supplied with the sling in question. However, based upon photographs, it is believed that Marine sold similar slings, in 2008, to Paul's Wire Rope and Sling (hereinafter "Paul's"). FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 3. Marine does not have any contracts with any dealers or distributors of Marine's products sold in New York. 4. Marine does not have any lic~~~ing, sales, dealer, distributor or other agreemenis located in New York pertaining to the sale, distributio, delivery or nicuiuxacture of rigging products or services. 5. Marine is not in go=:=-===-=-ion of any ce~~IInications between Marine and Paul's Wire Rope & Sling regarding the sale, manufacture or distribution of the sling at issue. 6. Based upon the of the ~i~ ~~~ os it would be unfair to have totality Marine defend this case in New York. Marine requ~a~ this court ~'~~~« the Therefore, action against Marine based upon lack of jurist~' F Thomas F. Benton Sworn to before me thisg2. day ofJuly, 2019 nate ~ ~pi~> ~C II~~IIJyy~ - c„, c',, r.; 0 r'.--:.; g1l r 4 ~.:0: I, n " ' ~slie~JI 111~ I FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: 260-261 MADISON AVENUE, LLC, 157898/2017 SECOND Plaintiff, SUPPLEMENTAL -against- RESPONSE TO PENGUIN AIR CONDITIONING CORP., TIMBIL JOINT NOTICE MECHANICAL, LLC, SKYLIFT CONTRACTOR CORP., FOR DISCOVERY MARINE & INDUSTRIAL SUPPLY COMPANY, INC.' AND INSPECTION PAUL'S WIRE ROPE & SLING and HANES SUPPLY, 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 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-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-rnerger to and/or d/b/a PAUL'S WIRE ROPE & SLING and PAUL'S WIRE ROPE & SLING, Second Third-Party Defendants. -------- --------------------------------------- --X SKYLIFT CONTRACTING CORP., Third Third Party Plaintiff, -against- JOHNSON CONTROLS, INC., Third Third Party Defendant =-- ----------X 260-261 MADISON AVENUE LLC Fourth Third-Party Plaintiff, -against- PENGUIN AIR CONDITIONING CORP.; TIMBIL MECHANICAL, LLC; and JOHNSON CONTROLS, INC. Fourth Third-Party Defendants. FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 C O U N S E L: Defendants MARINE & INDUSTRIAL SUPPLY COMPANY, INC., (hereinafter "MARINE") by and through their attorneys, CASCONE & KLUEPFEL, LLP, as and for a Supplemental Response to Joint Demands, states as follows: GENERAL OBJECTION A. MARINE objects generally to demands to the extent itseeks 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 demañds 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 demands to the extent that itcalls for the p-odüction of documents protected by the attorney-client privilege, the work-product doctrine, business strategy privilege, or any other applicabic privilege, doctrine or immunity. By responding to third-party plaintiff's demand, MARINE does not waive, intentionally or otherwise, the attorney-client privilege, the work-product doctrine protection, business strategy privilege, or any other applicable privilege, doctrine or immunity protecting cGGEüñiCitions, tran3aviluús or records from disclesüre. Accordingly, any response or objection inconsistent with the foregoing is wholly inadvertent and shall not constitute a waiver of any such privilege or protection. FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 D. MARINE objects to demands to the extent itseeks 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 demands to the extent it seeks documents that are "all" unduly burdeñsome to obtain, including requests for identhtion of decamc=±s when "all" allrelevant facts can be obtained from fewer than documents. F. MARINE's response to any request contained in demands shall not be deemed an admission or acknowledgement that such request calls for material alevant to the subject matter of this action, 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 ongoing. Therefore, MARINE eserves the right to rely on any facts, documents or other evidence that may develop or come to MARINE's attention subsequent hereto. MARINE's response as set forth herein is without 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 objections shall be deemed to be continuing throughout the responses to specific requests, even when not referred to in a specific mquest. RESPONSES 3. Complete 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. FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 4. Copies of alllicensing, sales, dealer, distributor and other agreements with any entities located in New York, pertaining to the sale, distribution, delivery or manufacture of rigging products or services. OBJECTION. Demand is unlimited in time and scope. Subject to said objections, none. 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 overbroad. There are literally thousands of invoices, and itwould take several weeks to complete the review. 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. Previously provided. 21. All communicaticus between Marine and Paul's Wire Rope & Sling 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 possession of any responsive documents. Dated: Garden City, New York July 31, 2019 ours, etc., AVID F. TAVELLA CASCONE & KLUEPFEL, LLP Attorneys for Third-Party Defendant MARINE & INDUSTRIAL SUPPLY COMPANY, INC. 1399 Franklin Avenue, Suite 302 Garden City, NY 11530 (516) 747-1990 File No.: 04584DZB FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 TO: LITCHFIELD CAVO LLP Attorneys for Plaintiff/Second Third-Party Plaintiff/ Fourth Third-Party Plaintiff 260-261 MADISON AVENUE, LLC 420 Lexington Avenue, Suite 2104 New York, NY 10170 (212) 434-0100 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 LONDON FISCHER, LLP Attorneys for Defendant/Fourth Third-Party Defendants PENGUIN AIR CONDITIONING CORP. 59 Maiden Lane New York, NY 10038 (212) 331-9502 GARTNER & BLOOM Attorneys for Defendant/Fourth Third-Party Defendants TIMBIL MECHANICAL, LLC 11th 801 Second Avenue, PlOOr New York, NY 10017 (212) 759-5800 File No.: 10351 GALLO VITUCCI KLAR, LLP Attorneys for Defendant BAY CRANE SERVICE, INC. 90 Broad Street, 3rd Floor New York, NY 10004 GORDON REES SCULLY MANSUKHANI, LLP Attorneys for Third-Party Defendant HANES SUPPLY, INC. 500 Mamaroneck Avenue, Suite 503 Harrison, NY 10528 (914) 777-2225 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 LAW OFFICES OF CHARLES J. SIEGEL Attorneys for Defendant 260-261 MADISON AVENUE LLC 7th 125 Broad Street, F100r New York, NY 10004 PAUL'S WIRE ROPE & SLING c/o Hanes Supply Inc. 55 James E. Casey Drive Buffalo, NY 14206 WESTERMAN BALL EDERER MILLER ZUCKER & SHARFSTEIN, LLP Attorneys for Third Third Party Defendant/Fourth Third-Party Defendant JOHNSON CONTROLS, INC. 1201 RXR Plaza Uniondale, NY 11556 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 STATE OF NEW YORK ) COUNTY OF NASSAU )Ss.: I,MARY 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 2019 I served the within Second Supplemental Response to Joint Notice for and Inspection July 31, Discovery [x J Service by by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and official depository under the Mail care and custody exclusive of the U.S. Postal Service within the New York to addressed State, each ofthefollowingpersons at the last known address set forth aAer each name: |] Personal by delivering to each person named below at the address indicated. I knew each person servedto be the person a true copy thereof p=sanany Served on mentioned and described in said papers as a party therein: Individual [j Service by by tee=kE. ; the papers by electronic means to the telephone number listed below, which number was desiga.sted by the attorney for such Electronic purpose. I received a signal from the equipment of the attorney served indicating that the ±==!=!cnwas received. I also deposited a true Means copy of the papers, enclosed in a post-paid wrapper, in an official depository under the care and custody of the U.S. Postal Service, addressed tothe at attorney the set address forthafter eachname: [ | Overnight by deposking a true copy thereof, enclosed in a wrapper addressed as shown below, into the custody of UNITED PARCEL SERVICE for ovemight to the latest time deignated delivery, prior by that service for evemight delivery. Upon : LITCHFIELD CAVO LLP WENIG & WENIG, PLLC Attorneys for Plaintiff/Second Third-Party Plaintiff/ Attorneys for Plaintiffs Fourth Third-Party Plaintiff ADMIRAL INDEMNITY COMPANY a/s/o, 260-261 MADISON AVENUE, LLC ZUMA NYC LLC d/b/aZUMA 420 Lexington Avenue, Suite 2104 150 Broadway, Suite 91 1 New York, NY 10170 New York, NY 10038 (212) 434-0100 File No.: FF2188 KAUFMAN DOLOWICH & VOLUCK, LLP LAW OFFICES OF CHARLES J.SIEGEL Attorneys for Defendant/Third Party Plaintiff Attorneys for Defendant SKYLIFT CONTRACTOR CORP. 260-261 MADISON AVENUE LLC 20th 40 Exchange Place, FlOOr 125 Broad Street,7th Floor New York, NY 10005 New York, New York 10004 (212) 485-9600 GALLO VITUCCI KLAR, LLP LONDON FISCHER, LLP Attorneys for Defendant Attorneys for Defendant BAY CRANE SERVICE, INC. PENGUIN AIR CONDITIONING CORP. 90 Broad Street, Suite 1201 59 Maiden Lane New York, NY 10004 New York, NY 10038 (212) 331-9502 SHOOK HARDY & BACON, LLP Attorneys for Johnson Controls, Inc. GARTNER & BLOOM, P.C. 255 Grand Boulevard Attorneys for Defendant Kansas City,Missouri 64108 TIMBIL MECHANICAL, LLC th 801 Second Avenue, 11 Floor JEFFREY A. ARONSKY, P.C. New York, NY 10017 Attorneys for Plaintiff (212) 759-5800 RICHARD BECK File No.: 10351 800 Second Avenue, Suite 301 New York, NY 10017 FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 PAUL'S WIRE ROPE & SLING LAW OFFICE OF THOMAS TANGNEY, ESQ. c/o Hanes Supply Inc. Attorneys for Plaintiffs 55 Jarnes E. Casey Drive TYRONE McGANN and MARY McGANN Buffalo, NY 14206 405 RXR Plaza, Suite 405 Uniondale, New York I1553 GORDON REES SCULLY MANSUKHANI, LLP Attorneys forThird-Party Defendant JAY H. TANENBAUM HANES SUPPLY, INC. LAW OFFICES OF JAY H. TANENBAUM 500 Mamaroneck Avenue, Suite 503 Attorneys for Plaintiffs Harrison, NY 10528 GREGORY WELCH and PRISCILLA WELCH (914) 777-2225 14 Wall Street.,Suite SF New York, New York 10005 WESTERMAN BALL EDERER MILLER ZUCKER & SHARFSTEIN, LLP Attorneys for Third-Third Party Defendant, Johnson Controls, Inc. 1201 RXR Plaza Uniondale, New York 11556 MARY COÖKE Swom to before me this 3181 day of July, 2019 otary Public L t.0VE 2 New York August FILED: NEW YORK COUNTY CLERK 10/15/2019 06:08 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 272 RECEIVED NYSCEF: 10/15/2019 INDEX NO.: 157898/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 260-261 MADISON AVENUE, LLC, Plaintiff, -against- PENGUIN AIR CONDITIONING CORP., TIMBIL MECHANICAL, LLC, SKYLIFT CONTRACTOR CORP., MARINE & INDUSTRIAL SUPPLY COMPANY, INC., PAUL's.WIRE ROPE & SLING and HANES SUPPLY, INC. Defendants. SKYLIFT CONTRACTOR CORP., 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-mergerto and/ord/b/aPAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-PartyDefendants. 260-261 MADISON AVENUE LLC, Second Third-PartyPlaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,d/b/aMARINE & INDUSTRIAL TESTING SOLUTIONS, MARINE & INDUSTRIAL TESTING SOLUTIONS, HANES SUPPLY, INC.,as successor- by-mergerto and/ord/b/aPAUL'S WIRE ROPE & SLING and PAUL'S WIRE ROPE & SLING, Second Third-PartyDefendants. X SKYLIFT CONTRACTING CORP., Third Plaintiff, Third-Party -against- JOHNSON CONTROLS, INC., ThirdThird-PartyDefendant -..-----. X 260-261 MADISON AVENUE, LLC FourthThird-PartyPlaintiff, -against- PENGUlN AIR CONDITIONING CORP.; TIMBIL MECHANICAL, LLC and JOHNSON CONTROLS, INC. FourthThini-PartyDefendants. SECOND SUPPLEMENTAL RESPONSE TO JOINT NOTICE FOR DISCOVERY AND INSPECTION CASCONE & KLUEPFEL, LLP. Attorneys for Defendant(s) MARINE & INDUSTRIAL SUPPLY COMPANY, INC. Ofice 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 aWof ihe withi is herebyadmitted, Dated, 7/31/2019 Attorney(s) forDefendant(s)