Preview
FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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COLT 93 NORTH 9TH STREET LLC, :
: Index No. 151104/2017
Plaintiff, :
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-against- :
:
:
93-97 WYTHE AVENUE LLC and :
MAGNETIC BUILDERS GROUP LLC, :
:
Defendants. :
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PLAINTIFF’S FIRST REQUEST TO
DEFENDANTS FOR PRODUCTION OF DOCUMENTS
PLEASE TAKE NOTICE that pursuant to Article 31 of the Civil Practice Law and
Rules, Plaintiff Colt 93 North 9th Street LLC, by its attorneys, Matalon ♦ Shweky ♦ Elman
PLLC, hereby demands that Defendants 93-97 Wythe Avenue LLC and Magnetic Builders
Group LLC produce the documents designated below for inspection and copying at the offices of
Matalon ♦ Shweky ♦ Elman PLLC, 450 Seventh Avenue 33rd Floor, New York, New York
10123, on or before April 12, 2017, in the manner prescribed by the CPLR and in accordance
with the Definitions and Instructions set forth below.
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DEFINITIONS
The following definitions and instructions apply to all requests set forth below:
1) “Adjoining Property” means 93 North 9th Street, Williamsburg, Brooklyn, New
York.
2) “Colt” means Colt 93 North 9th Street LLC and its officers, directors, employees,
agents, brokers, independent contractors, partners, corporate parent, subsidiaries, affiliates and
representatives or persons under its control and shall include Thor Equities LLC.
3) “Communication” means any disclosure, transfer, or exchange of information,
and every manner or means of disclosing, transferring, or exchanging information, whether
containing facts, ideas, inquiries, or other information; whether done face to face, orally,
electronically, in writing, or otherwise; whether conveyed by telephone, mail, electronic mail,
personal delivery, or other means; or whether during a meeting, conference, consultation,
discussion, negotiation, phone call, or other event. “Communication” includes any Document.
Communications and shall also include those from Your personal or business emails; phone
records; SMS text messages; iMessages; WhatsApp messages; Facebook messages; Twitter
messages; or from any other service You used to Communicate.
4) “Document” has the broadest possible meaning accorded to it by Rule 3120 of the
Civil Practice Law and Rules, and shall include, but is not limited to, all original, non-identical
copies, and drafts, whether handwritten, typed, printed, recorded, or graphic matter of the
following items: agreements, communications, including intracompany communications;
correspondence; telephone bills and records, cables; memoranda; records; books; summaries of
records of personal conversations or interviews; diaries; forecasts; statistical statements;
accountants’ work papers; graphs; charts; maps; diagrams; blueprints; tables; indices; pictures;
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recordings; tapes; microfilms; emails; charges; accounts; analytical records; minutes of records
or meetings or conferences; reports and/or summaries of interviews; or consultants’ brochures;
pamphlets; circulars; trade letters; press releases; contracts; stenographic or handwritten notes;
projections; working papers; checks, both front and back; check stubs or receipts; invoice
vouchers; tape data sheets or data processing cards or discs or any other handwritten, recorded,
transcribed, punched, taped, filmed or graphic matter however produced or reproduced; and any
other documents or writing of whatever description, including without limitation, and
information contained in any computer, electronic databases, storage tapes, data drives, or other
electronic-storage media regardless of whether it has been printed out.
5) “Hoxton” means The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue
LLC and its officers, directors, employees, agents, brokers, independent contractors, partners,
corporate parent, subsidiaries, affiliates and representatives or persons under its control.
6) “Including” means including, but not limited to.
7) “Magnetic Builders” means Magnetic Builders Group LLC and its officers,
directors, employees, agents, brokers, independent contractors, partners, corporate parent,
subsidiaries, affiliates and representatives or persons under its control.
8) “Plaintiff” and “defendants,” as well as a party’s full or abbreviated name or a
pronoun referring to a party mean such person and, where applicable, its officers, directors,
employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries,
affiliates and representatives or persons under its control.
9) “Person” means any natural person or any business, legal or governmental entity
or association.
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10) “Project Property” means 93 North 9th Street, Williamsburg, Brooklyn, New
York.
11) “Refer to,” “Referring,” “Reflect,” “Reflecting,” “Related to,” “Relating to,” or
“Concerning” means relating to, referring to, concerning, mentioning, reflecting, pertaining to,
evidencing, involving, describing, discussing, commenting on, embodying, responding to,
supporting, contradicting, or constituting (in whole or in part), as the context makes appropriate.
12) “You,” and “Your” means 93-97 Wythe Avenue LLC and Magnetic Builders
Group LLC.
13) “Wythe LP” means 93-97 Wythe Avenue LP and its officers, directors,
employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries,
affiliates and representatives or persons under its control.
INSTRUCTIONS
1) You are required to produce all responsive Documents within Your possession,
custody, or control. All Documents produced shall be segregated so as to identify the particular
request to which the Documents respond. Documents responsive to more than one request shall
be identified as responsive to each applicable request.
2) All Documents are to be produced as they are maintained in the normal course of
business. If any portion of any Document is responsive to any request, the entire Document shall
be produced, including any cover sheet, appendix, or attachment. Documents attached to each
other (physically or via electronic mail) should not be separated.
3) If You cannot respond to a Document Request in full, then state why not and
furnish all available information.
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4) If there are no Documents responsive to any particular request, please so state in a
written response to that request.
5) If You object to any Document Request or any part thereof, then (a) state with
specificity all grounds for such objection, and (b) respond to the request to the extent not
objected to.
6) If You assert a claim of privilege from disclosure with respect to any Document
requested herein, then, on a separate log or table—
(a) identify the Document;
(b) state the type of the Document (e.g., e-mail, memorandum, letter, report,
etc.);
(c) identify each writer, author, sender, and recipient of the Document;
(d) state the general subject matter of the Document; and
(e) set forth the nature of and basis for Your claim of privilege.
7) If any Document requested herein was formerly within Your possession, custody,
or control, but no longer is, then to the extent feasible,
(a) identify each such Document;
(b) describe the Document’s specific contents;
(c) state when the Document was in Your possession or control, describe its
location during that time, and identify the Person who then had custody of
it;
(d) if You transferred the Document to a third party, then identify the Person
to whom You transferred it; and
(e) if the Document was lost, discarded, or destroyed, then—
(i) describe when, how, and why this disposition took place;
(ii) identify any Person responsible for this disposition; and
(iii) cite to any court order that authorized this disposition.
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8) If information is redacted from a Document produced pursuant to any Document
Request, identify the redaction by stamping the word “Redacted” on the Document where
information has been redacted and separately log each redaction on the privilege log.
9) To identify a Person, You shall—
(a) state the Person’s full name;
(b) state the Person’s present or last-known address; and
(c) for a natural Person, state the Person’s present or last-known place of
employment.
After You have identified a Person in accordance with this paragraph, in response
to later Document Requests requesting that You identify that Person, You may list that Person by
name only.
10) To identify a Document, You shall—
(a) state the Document’s name or title by which you refer to it;
(b) state the date of the Document;
(c) identify each writer, author, or sender of the Document;
(d) identify each recipient or addressee of the Document, including any
copies; and
(e) state the Document’s general subject matter.
11) If you object to a Document Request because it calls for information that in your
view is protected by a confidentiality agreement or a court order, then identify the agreement or
order.
12) And/Or. The connectives “and” and “or” shall be construed either disjunctively
or conjunctively as necessary to bring within the scope of the discovery request all responses that
might otherwise be construed to be outside of its scope.
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13) Number. The use of the singular form of any word includes the plural and vice
versa.
14) As necessary to bring within the scope of the following Document Requests all
responses that might otherwise be construed to be outside their scope, the following rules of
construction apply to these Definitions, Instructions, and Document Requests:
(a) use of a masculine, feminine, or neuter pronoun shall not exclude other
genders;
(b) use of a verb’s tense shall not exclude other tenses; and
(c) the terms “any,” “all,” and “each” shall mean any, all, each, and every.
15) Plaintiff reserves the right to serve additional Document Requests.
These Document Requests are continuing. They call for prompt and further supplemental
productions whenever You discover or come into the possession of any additional documents
that are responsive.
DOCUMENT REQUESTS
1) All documents relating to measures and precautions taken by You to protect 93
North 9th Street, Williamsburg, Brooklyn (the "Adjoining Property") from damage during the
demolition and construction at 93 North 9th Street, Williamsburg, Brooklyn (the "Project
Property").
2) All documents relating to violations, notices and orders issued by the Department
of Buildings ("DOB") concerning the demolition and construction at the Project Property,
including without limitation, Violations 35156044K, 35156045M and 35156043Z.
3) All documents relating to stop work orders issued by the DOB concerning the
Project Property.
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4) All documents relating to the factual basis for the allegations in the Verified
Answer, including the Affirmative Defenses.
5) All documents relating to any authorization of 93-97 Wythe Avenue LP to
conduct business in the State of New York.
6) All architectural, structural, and MEP drawings for, or relating to the Project
Property.
7) All foundation and subsurface drawings and geotechnical reports for, or relating
to the Project Property.
8) All proposed construction schedules for, or relating to the Project Property,
including documents showing the duration of tasks required during construction.
9) All pre-construction survey reports for, or relating to the Project Property.
10) All pre-construction photographs of the Project Property.
11) All documents relating to support of excavation (“SOE”) work at the Project
Property, including contractor’s daily field reports.
12) All photographs showing the construction site at the Project Property along or
together with the exterior west wall of the Adjoining Property.
13) All photographs showing the interior of the Adjoining Property.
14) All documents relating to contractors’ submitted calculations, shop drawings and
procedures for foundation and subsurface conditions at the Project Property, including without
limitation plans for (a) demolition of any subsurface structures, (b) underpinning the west
masonry wall of the Adjoining Property, (c) shoring any portions of the building (including
masonry walls and floors) at the Adjoining Property, and (d) dewatering the Adjoining Property.
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15) All documents relating to contractor’s proposed protection measures and optical
and vibration monitoring protocols utilized or to be utilized during the construction at the Project
Property, including without limitation (a) roof top protection plans for the Adjoining Property,
(b)plans for sidewalk-shed erection in front of the Adjoining Property, (c) vibration monitoring
plans and protocols for the installation of seismic monitors at the Adjoining Property, and (d)
optical surveying plans and protocols for control points installed on the exterior masonry walls of
the Adjoining Property.
16) All documents relating to communications between or among Colt, Wythe LP,
Hoxton and Magnetic Builders relating to the demolition and construction at the Project
Property.
17) All documents relating to communications between or among Colt, Wythe LP,
Hoxton, and Magnetic Builders relating to the Adjoining Property, including the condition of the
Adjoining Property and actual or alleged damage to the Adjoining Property.
Dated: March 10, 2017
MATALON ♦ SHWEKY ♦ ELMAN PLLC
By: __s/Joseph Lee Matalon_______
Joseph Lee Matalon
450 Seventh Avenue, 33rd Floor
New York, New York 10123
(212) 244-9000
Attorneys for Plaintiff
Colt 93 North 9th Street LLC
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Preview
FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X : COLT 93 NORTH 9TH STREET LLC, : : Index No. 151104/2017 Plaintiff, : : -against- : : : 93-97 WYTHE AVENUE LLC and : MAGNETIC BUILDERS GROUP LLC, : : Defendants. : : : --------------------------------------------------------------------X PLAINTIFF’S FIRST REQUEST TO DEFENDANTS FOR PRODUCTION OF DOCUMENTS PLEASE TAKE NOTICE that pursuant to Article 31 of the Civil Practice Law and Rules, Plaintiff Colt 93 North 9th Street LLC, by its attorneys, Matalon ♦ Shweky ♦ Elman PLLC, hereby demands that Defendants 93-97 Wythe Avenue LLC and Magnetic Builders Group LLC produce the documents designated below for inspection and copying at the offices of Matalon ♦ Shweky ♦ Elman PLLC, 450 Seventh Avenue 33rd Floor, New York, New York 10123, on or before April 12, 2017, in the manner prescribed by the CPLR and in accordance with the Definitions and Instructions set forth below. 1 1 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 DEFINITIONS The following definitions and instructions apply to all requests set forth below: 1) “Adjoining Property” means 93 North 9th Street, Williamsburg, Brooklyn, New York. 2) “Colt” means Colt 93 North 9th Street LLC and its officers, directors, employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries, affiliates and representatives or persons under its control and shall include Thor Equities LLC. 3) “Communication” means any disclosure, transfer, or exchange of information, and every manner or means of disclosing, transferring, or exchanging information, whether containing facts, ideas, inquiries, or other information; whether done face to face, orally, electronically, in writing, or otherwise; whether conveyed by telephone, mail, electronic mail, personal delivery, or other means; or whether during a meeting, conference, consultation, discussion, negotiation, phone call, or other event. “Communication” includes any Document. Communications and shall also include those from Your personal or business emails; phone records; SMS text messages; iMessages; WhatsApp messages; Facebook messages; Twitter messages; or from any other service You used to Communicate. 4) “Document” has the broadest possible meaning accorded to it by Rule 3120 of the Civil Practice Law and Rules, and shall include, but is not limited to, all original, non-identical copies, and drafts, whether handwritten, typed, printed, recorded, or graphic matter of the following items: agreements, communications, including intracompany communications; correspondence; telephone bills and records, cables; memoranda; records; books; summaries of records of personal conversations or interviews; diaries; forecasts; statistical statements; accountants’ work papers; graphs; charts; maps; diagrams; blueprints; tables; indices; pictures; 2 2 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 recordings; tapes; microfilms; emails; charges; accounts; analytical records; minutes of records or meetings or conferences; reports and/or summaries of interviews; or consultants’ brochures; pamphlets; circulars; trade letters; press releases; contracts; stenographic or handwritten notes; projections; working papers; checks, both front and back; check stubs or receipts; invoice vouchers; tape data sheets or data processing cards or discs or any other handwritten, recorded, transcribed, punched, taped, filmed or graphic matter however produced or reproduced; and any other documents or writing of whatever description, including without limitation, and information contained in any computer, electronic databases, storage tapes, data drives, or other electronic-storage media regardless of whether it has been printed out. 5) “Hoxton” means The Hoxton (Williamsburg) LLC f/k/a 93-97 Wythe Avenue LLC and its officers, directors, employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries, affiliates and representatives or persons under its control. 6) “Including” means including, but not limited to. 7) “Magnetic Builders” means Magnetic Builders Group LLC and its officers, directors, employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries, affiliates and representatives or persons under its control. 8) “Plaintiff” and “defendants,” as well as a party’s full or abbreviated name or a pronoun referring to a party mean such person and, where applicable, its officers, directors, employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries, affiliates and representatives or persons under its control. 9) “Person” means any natural person or any business, legal or governmental entity or association. 3 3 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 10) “Project Property” means 93 North 9th Street, Williamsburg, Brooklyn, New York. 11) “Refer to,” “Referring,” “Reflect,” “Reflecting,” “Related to,” “Relating to,” or “Concerning” means relating to, referring to, concerning, mentioning, reflecting, pertaining to, evidencing, involving, describing, discussing, commenting on, embodying, responding to, supporting, contradicting, or constituting (in whole or in part), as the context makes appropriate. 12) “You,” and “Your” means 93-97 Wythe Avenue LLC and Magnetic Builders Group LLC. 13) “Wythe LP” means 93-97 Wythe Avenue LP and its officers, directors, employees, agents, brokers, independent contractors, partners, corporate parent, subsidiaries, affiliates and representatives or persons under its control. INSTRUCTIONS 1) You are required to produce all responsive Documents within Your possession, custody, or control. All Documents produced shall be segregated so as to identify the particular request to which the Documents respond. Documents responsive to more than one request shall be identified as responsive to each applicable request. 2) All Documents are to be produced as they are maintained in the normal course of business. If any portion of any Document is responsive to any request, the entire Document shall be produced, including any cover sheet, appendix, or attachment. Documents attached to each other (physically or via electronic mail) should not be separated. 3) If You cannot respond to a Document Request in full, then state why not and furnish all available information. 4 4 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 4) If there are no Documents responsive to any particular request, please so state in a written response to that request. 5) If You object to any Document Request or any part thereof, then (a) state with specificity all grounds for such objection, and (b) respond to the request to the extent not objected to. 6) If You assert a claim of privilege from disclosure with respect to any Document requested herein, then, on a separate log or table— (a) identify the Document; (b) state the type of the Document (e.g., e-mail, memorandum, letter, report, etc.); (c) identify each writer, author, sender, and recipient of the Document; (d) state the general subject matter of the Document; and (e) set forth the nature of and basis for Your claim of privilege. 7) If any Document requested herein was formerly within Your possession, custody, or control, but no longer is, then to the extent feasible, (a) identify each such Document; (b) describe the Document’s specific contents; (c) state when the Document was in Your possession or control, describe its location during that time, and identify the Person who then had custody of it; (d) if You transferred the Document to a third party, then identify the Person to whom You transferred it; and (e) if the Document was lost, discarded, or destroyed, then— (i) describe when, how, and why this disposition took place; (ii) identify any Person responsible for this disposition; and (iii) cite to any court order that authorized this disposition. 5 5 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 8) If information is redacted from a Document produced pursuant to any Document Request, identify the redaction by stamping the word “Redacted” on the Document where information has been redacted and separately log each redaction on the privilege log. 9) To identify a Person, You shall— (a) state the Person’s full name; (b) state the Person’s present or last-known address; and (c) for a natural Person, state the Person’s present or last-known place of employment. After You have identified a Person in accordance with this paragraph, in response to later Document Requests requesting that You identify that Person, You may list that Person by name only. 10) To identify a Document, You shall— (a) state the Document’s name or title by which you refer to it; (b) state the date of the Document; (c) identify each writer, author, or sender of the Document; (d) identify each recipient or addressee of the Document, including any copies; and (e) state the Document’s general subject matter. 11) If you object to a Document Request because it calls for information that in your view is protected by a confidentiality agreement or a court order, then identify the agreement or order. 12) And/Or. The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 13) Number. The use of the singular form of any word includes the plural and vice versa. 14) As necessary to bring within the scope of the following Document Requests all responses that might otherwise be construed to be outside their scope, the following rules of construction apply to these Definitions, Instructions, and Document Requests: (a) use of a masculine, feminine, or neuter pronoun shall not exclude other genders; (b) use of a verb’s tense shall not exclude other tenses; and (c) the terms “any,” “all,” and “each” shall mean any, all, each, and every. 15) Plaintiff reserves the right to serve additional Document Requests. These Document Requests are continuing. They call for prompt and further supplemental productions whenever You discover or come into the possession of any additional documents that are responsive. DOCUMENT REQUESTS 1) All documents relating to measures and precautions taken by You to protect 93 North 9th Street, Williamsburg, Brooklyn (the "Adjoining Property") from damage during the demolition and construction at 93 North 9th Street, Williamsburg, Brooklyn (the "Project Property"). 2) All documents relating to violations, notices and orders issued by the Department of Buildings ("DOB") concerning the demolition and construction at the Project Property, including without limitation, Violations 35156044K, 35156045M and 35156043Z. 3) All documents relating to stop work orders issued by the DOB concerning the Project Property. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 4) All documents relating to the factual basis for the allegations in the Verified Answer, including the Affirmative Defenses. 5) All documents relating to any authorization of 93-97 Wythe Avenue LP to conduct business in the State of New York. 6) All architectural, structural, and MEP drawings for, or relating to the Project Property. 7) All foundation and subsurface drawings and geotechnical reports for, or relating to the Project Property. 8) All proposed construction schedules for, or relating to the Project Property, including documents showing the duration of tasks required during construction. 9) All pre-construction survey reports for, or relating to the Project Property. 10) All pre-construction photographs of the Project Property. 11) All documents relating to support of excavation (“SOE”) work at the Project Property, including contractor’s daily field reports. 12) All photographs showing the construction site at the Project Property along or together with the exterior west wall of the Adjoining Property. 13) All photographs showing the interior of the Adjoining Property. 14) All documents relating to contractors’ submitted calculations, shop drawings and procedures for foundation and subsurface conditions at the Project Property, including without limitation plans for (a) demolition of any subsurface structures, (b) underpinning the west masonry wall of the Adjoining Property, (c) shoring any portions of the building (including masonry walls and floors) at the Adjoining Property, and (d) dewatering the Adjoining Property. 8 8 of 9 FILED: NEW YORK COUNTY CLERK 03/10/2017 04:45 PM INDEX NO. 151104/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/10/2017 15) All documents relating to contractor’s proposed protection measures and optical and vibration monitoring protocols utilized or to be utilized during the construction at the Project Property, including without limitation (a) roof top protection plans for the Adjoining Property, (b)plans for sidewalk-shed erection in front of the Adjoining Property, (c) vibration monitoring plans and protocols for the installation of seismic monitors at the Adjoining Property, and (d) optical surveying plans and protocols for control points installed on the exterior masonry walls of the Adjoining Property. 16) All documents relating to communications between or among Colt, Wythe LP, Hoxton and Magnetic Builders relating to the demolition and construction at the Project Property. 17) All documents relating to communications between or among Colt, Wythe LP, Hoxton, and Magnetic Builders relating to the Adjoining Property, including the condition of the Adjoining Property and actual or alleged damage to the Adjoining Property. Dated: March 10, 2017 MATALON ♦ SHWEKY ♦ ELMAN PLLC By: __s/Joseph Lee Matalon_______ Joseph Lee Matalon 450 Seventh Avenue, 33rd Floor New York, New York 10123 (212) 244-9000 Attorneys for Plaintiff Colt 93 North 9th Street LLC 9 9 of 9