Preview
FILED: SUFFOLK COUNTY CLERK 06/15/2023 04:15 PM INDEX NO. 611883/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
________________________________________________________________Ç
KEVIN CONKLING,
Index No.: 611883/2023
Plaintiff,
-against- COMBINED DEMANDS
THE WHITING-TURNER CONTRACTING
COMPANY and ADELPHI UNIVERSITY,
Defendants.
______-------------------------..___________...._________________Ç
C O U N S E L O R S :
PLEASE TAKE NOTICE, that pursuant to the applicable rules of the CPLR
§§3120 and 3101 et seq., returnable at the offices of LAW OFFICE OF STEVEN R.
VACCARO, P.C., attorney for the plaintiff, located at 118-35 Queens Blvd., Suite 1515,
Forest Hills, New York 11375, hereby makes demand upon all defendants returnable
within thirty (30) days of your receipt of this document:
1. Demand for the Names and Addresses of Witnesses (annexed);
2. Demand for the Discovery and Inspection of any Statement of a Party
Represented by the Undersigned (annexed);
3. Demand for Insurance Coverage (annexed);
4. Demand for Accident Reports (annexed);
5. Demand for Photographs, Audio Tapes, Films, Computer Files, Videotapes,
Motion Pictures and Electronically Stored Information (annexed);
6. Demand for Expert Witness Disclosure (annexed); and
7. Demand for Contracts (annexed).
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1. DEMAND FOR THE NAMES AND ADDRESSES OF WITNESSES
PLEASE TAKE NOTICE, that the undersigned hereby demands pursuant to
Article 31, and the case of Zellman v. Metropolitan Transportation Authority, 40 A.D.2d
248, 339 N.Y.S.2d 255, that you set forth in writing and under oath the names and
addresses of each person claimed by any party you represent to be a witness to any of the
following:
(a) The occurrence alleged in the Complaint;
(b) Any acts or conditions which have been alleged as causing the
occurrence alleged in the Complaint;
(c) The names and addresses of any persons having knowledge of the
acts, notice or conditions substantiating any affirmative defense
asserted by defendants;
(d) If any of the persons named in response to the preceding paragraphs
were in the employ of any defendants on the date of the occurrence
complained of, set forth the names of each such person;
(e) If any such person named in the preceding paragraph is presently in
the employ of any defendant, set forth the name of such person.
If no such witnesses are known to the defendants, so state in the sworn reply to
this demand. The undersigned will object upon trial to the testimony of any witnesses not
so identified.
2. DEMAND FOR DISCOVERY AND INSPECTION
OF ANY STATEMENT OF A PARTY REPRESENTED
BY THE UNDERSIGNED
PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands upon
behalf of the plaintiff in this action pursuant to CPLR Article 31, that you produce at the
time and place above specified and permit the undersigned to discover, inspect and copy
each and every statement made or taken by each party and his, or its agents, servants or
employees now in your possession, custody or control or in the possession, custody and
control of any party you represent in this action, if any such statement in any matter bears
on the issues in this action. If no such statement in the possession, custody or control of
any parties you represent in this action, so state in the sworn reply to this demand.
3. DEMAND FOR INSURANCE COVERAGE
PLEASE TAKE FURTHER NOTICE, that the undersigned demands pursuant to
CPLR 3101(f) that you produce and permit plaintiff to inspect and to copy the contents
of any insurance agreement, including the declaration and coverage pages, under which
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any person carrying on an insurance business may be liable to satisfy part or all of a
judgment which may be entered in this action or to indemnify or reimburse for payment
made to satisfy judgment which may be entered herein, including but not limited to
excess and additional coverage, maintained with any insurance carrier on the date of the
subject occurrence.
4. DEMAND FOR ACCIDENT/INCIDENT REPORTS
PLEASE TAKE FURTHER NOTICE, that the undersigned demands pursuant to
CPLR 3101 that you produce and allow the plaintiffs to inspect any written report
concerning the accident, incident or occurrence which is the subject matter of this lawsuit
prepared in the regular course of business operations or practices of any person, firm,
corporation, association, hospital or other public or private entity. This demand includes
all accident reports, whether or not prepared exclusively in preparation for litigation.
(2nd
Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 694 Dept. 1981).
5. DEMAND FOR PHOTOGRAPHS, AUDIO TAPES, FILMS,
COMPUTER FILES, VIDEOTAPES, MOTION PICTURES and
ELECTRONICALLY STORED INFORMATION
PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of
the plaintiff that, pursuant to CPLR §3101(i), Rotundi v. Massachusetts Mut. Life Ins.
Co., 263 A.D.2d 84, 702 N.Y.S.2d 150 and DiNardo v. Karonowski, 684 N.Y.S.2d 736,
among other case, you produce at the offices of plaintiff's counsel at the time and date
specified above and permit the undersigned to discover, inspect, photograph and copy
each and every photograph, audio tape, slide, film, videotape, motion picture, and all
electronically stored information including emails, text messages, telephone voicemails,
cell phone voicemails, and all information contained in computers and PDA devices,
whether surveillance materials or otherwise; all surveillance reports, investigative
services reported, invoices and proof of payments for surveillance, memoranda and notes
taken, kept and/or maintained in connection with the taking, transfer and/or editing of any
films, slides, motion pictures, photographs, tapes, videotapes and/or audio tapes, and all
electronically stored information including emails, text messages, telephone voicemails,
cell phone voicemails, and all information contained in computers and PDA devices;
memoranda, records, notes, logs, billing records in your possession which were taken,
kept and/or maintained in connection with the taking, transfer and/or editing of any films,
films, slides, motion pictures, photographs, tapes, videotapes and/or audio tapes, and all
electronically stored information including emails, text messages, telephone voicemails,
cell phone voicemails, and all information contained in computers and PDA devices; the
full names and addresses of all investigators and photographers use din connection with
the taking of any films, photographs, slides, tapes, videotapes, DVDs, CDs, and/or
audiotapes; copies of transcripts of all films, motion pictures, tapes, DVDs, CDs,
videotapes and/or audio tapes and all electronically stored information including emails,
text messages, telephone voicemails, cell phone voicemails, and all information
contained on computers and PDA devices; all out-take footage of all tapes, audio tapes,
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films, motion pictures and videotapes and not just those portions of tape or film which
defendant(s) proposes to offer into evidence at trial; all records, information and
documentation regarding the type of equipment used to take, develop, convert, edit,
transfer and transcribe all such films and tapes; the make and model of all equipment
used and the lenses and range settings used in connection with the taking of any films,
slides, photographs, DVDs, CDs, computer files, audio tapes, videotapes and/or motion
pictures; and all other records, memoranda, documents, photographs, charts, slides,
DVDs, CDs, computerized files, diagrams, logs, reports, films tapes, audio tapes, motion
pictures and/or videotapes, and all electronically stored information including emails, text
messages, telephone voicemails, cell phone voicemails, and all information contained on
computers and PDA devices, used, taken, stored, maintained, kept, developed, converted,
defendants'
edited, transferred and/or transcribed in custody, possession or control
regarding the following:
a) The location where it is alleged that the occurrence complained of took place.
b) The condition complained of in the Complaint.
c) The Plaintiff.
d) Any actions or activities of the plaintiff.
e) The incident complained of in the Complaint.
f) The physical condition of and/or injuries sustained by the plaintiff.
g) Any items, vehicles, tools, equipment and/or parts thereof involved in the
occurrence, at any time prior to and following the occurrence.
h) Any exemplar tools, equipment and/or exemplar parts utilized by defendants,
defendants' defendants'
counsel and/or experts.
defendants'
i) Any other material relevant to this lawsuit that defendants,
defendants'
counsel and/or experts intend to produce at the time of trial.
If no such photographs, slides, video, films, motion pictures, tapes, audio tapes,
computerized files, electronically stored information including emails, text messages,
telephone voicemails, cell phone voicemails, and all information contained on computers
and PDA devices, notes, charts, diagrams, memoranda or other materials and/or
documentation are in the possession, custody or control of any parties you represent in
this action, so state in a sworn rely to this demand.
6. DEMAND FOR EXPERT WITNESS DISCLOSURE
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR §3101(d)(1) you
are hereby required to set forth the following:
(a) The name and address of each and every person you expect to call as
an expert witness at the trial of this action;
(b) In reasonable detail, the subject matter on which each expert is to
testify;
(c) The substance of the facts and opinions on which each expert is
expected to testify;
(d) The qualification of each such expert witnesses; and
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(e) A summary of the grounds for each expert's opinion.
7. DEMAND FOR CONTRACTS
PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of
the plaintiff in this action, that you produce at the time and place specified, and permit the
undersigned to discover, inspect and copy each and every contract pertaining to the
subject work site between the defendants and plaintiff's employer, including complete
copies of all exhibits and amendments to the contract as well as a complete copy of all
contracts entered into between the defendant(s) and other party specifically pertaining to
work at the subject job site where plaintiff was performing his work to the time of the
occurrence including complete copies of all exhibits and amendments to the contract.
PLEASE TAKE FURTHER NOTICE, that the annexed demands are continuing
demands and that if any of the above items are obtained after the date of this demand,
they are to be furnished to the undersigned pursuant to these demands.
Dated: Forest Hills, New York
June 15, 2023
Yours, etc.
LAW OFFICE OF
STEVEN R. VACCARO, P.C.
Steven R. Vaccaro, Esq.
Attorneys for plaintiff
KEVIN CONKLING
118-35 Queens Blvd., Suite 1515
Forest Hills, New York 11375
(718) 575-4075
TO: BARRY McTIERNAN & MOORE LLC
Attorneys for Defendant
THE WHITING-TURNER
CONTRACTING COMPANY
14th
101 Greenwich Street, FlOOr
New York, N.Y. 10006
Attn: Alex R. Malino, Esq.
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Preview
FILED: SUFFOLK COUNTY CLERK 06/15/2023 04:15 PM INDEX NO. 611883/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ________________________________________________________________Ç KEVIN CONKLING, Index No.: 611883/2023 Plaintiff, -against- COMBINED DEMANDS THE WHITING-TURNER CONTRACTING COMPANY and ADELPHI UNIVERSITY, Defendants. ______-------------------------..___________...._________________Ç C O U N S E L O R S : PLEASE TAKE NOTICE, that pursuant to the applicable rules of the CPLR §§3120 and 3101 et seq., returnable at the offices of LAW OFFICE OF STEVEN R. VACCARO, P.C., attorney for the plaintiff, located at 118-35 Queens Blvd., Suite 1515, Forest Hills, New York 11375, hereby makes demand upon all defendants returnable within thirty (30) days of your receipt of this document: 1. Demand for the Names and Addresses of Witnesses (annexed); 2. Demand for the Discovery and Inspection of any Statement of a Party Represented by the Undersigned (annexed); 3. Demand for Insurance Coverage (annexed); 4. Demand for Accident Reports (annexed); 5. Demand for Photographs, Audio Tapes, Films, Computer Files, Videotapes, Motion Pictures and Electronically Stored Information (annexed); 6. Demand for Expert Witness Disclosure (annexed); and 7. Demand for Contracts (annexed). 1 of 5 FILED: SUFFOLK COUNTY CLERK 06/15/2023 04:15 PM INDEX NO. 611883/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/15/2023 1. DEMAND FOR THE NAMES AND ADDRESSES OF WITNESSES PLEASE TAKE NOTICE, that the undersigned hereby demands pursuant to Article 31, and the case of Zellman v. Metropolitan Transportation Authority, 40 A.D.2d 248, 339 N.Y.S.2d 255, that you set forth in writing and under oath the names and addresses of each person claimed by any party you represent to be a witness to any of the following: (a) The occurrence alleged in the Complaint; (b) Any acts or conditions which have been alleged as causing the occurrence alleged in the Complaint; (c) The names and addresses of any persons having knowledge of the acts, notice or conditions substantiating any affirmative defense asserted by defendants; (d) If any of the persons named in response to the preceding paragraphs were in the employ of any defendants on the date of the occurrence complained of, set forth the names of each such person; (e) If any such person named in the preceding paragraph is presently in the employ of any defendant, set forth the name of such person. If no such witnesses are known to the defendants, so state in the sworn reply to this demand. The undersigned will object upon trial to the testimony of any witnesses not so identified. 2. DEMAND FOR DISCOVERY AND INSPECTION OF ANY STATEMENT OF A PARTY REPRESENTED BY THE UNDERSIGNED PLEASE TAKE FURTHER NOTICE, that the undersigned hereby demands upon behalf of the plaintiff in this action pursuant to CPLR Article 31, that you produce at the time and place above specified and permit the undersigned to discover, inspect and copy each and every statement made or taken by each party and his, or its agents, servants or employees now in your possession, custody or control or in the possession, custody and control of any party you represent in this action, if any such statement in any matter bears on the issues in this action. If no such statement in the possession, custody or control of any parties you represent in this action, so state in the sworn reply to this demand. 3. DEMAND FOR INSURANCE COVERAGE PLEASE TAKE FURTHER NOTICE, that the undersigned demands pursuant to CPLR 3101(f) that you produce and permit plaintiff to inspect and to copy the contents of any insurance agreement, including the declaration and coverage pages, under which 2 of 5 FILED: SUFFOLK COUNTY CLERK 06/15/2023 04:15 PM INDEX NO. 611883/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/15/2023 any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payment made to satisfy judgment which may be entered herein, including but not limited to excess and additional coverage, maintained with any insurance carrier on the date of the subject occurrence. 4. DEMAND FOR ACCIDENT/INCIDENT REPORTS PLEASE TAKE FURTHER NOTICE, that the undersigned demands pursuant to CPLR 3101 that you produce and allow the plaintiffs to inspect any written report concerning the accident, incident or occurrence which is the subject matter of this lawsuit prepared in the regular course of business operations or practices of any person, firm, corporation, association, hospital or other public or private entity. This demand includes all accident reports, whether or not prepared exclusively in preparation for litigation. (2nd Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 694 Dept. 1981). 5. DEMAND FOR PHOTOGRAPHS, AUDIO TAPES, FILMS, COMPUTER FILES, VIDEOTAPES, MOTION PICTURES and ELECTRONICALLY STORED INFORMATION PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of the plaintiff that, pursuant to CPLR §3101(i), Rotundi v. Massachusetts Mut. Life Ins. Co., 263 A.D.2d 84, 702 N.Y.S.2d 150 and DiNardo v. Karonowski, 684 N.Y.S.2d 736, among other case, you produce at the offices of plaintiff's counsel at the time and date specified above and permit the undersigned to discover, inspect, photograph and copy each and every photograph, audio tape, slide, film, videotape, motion picture, and all electronically stored information including emails, text messages, telephone voicemails, cell phone voicemails, and all information contained in computers and PDA devices, whether surveillance materials or otherwise; all surveillance reports, investigative services reported, invoices and proof of payments for surveillance, memoranda and notes taken, kept and/or maintained in connection with the taking, transfer and/or editing of any films, slides, motion pictures, photographs, tapes, videotapes and/or audio tapes, and all electronically stored information including emails, text messages, telephone voicemails, cell phone voicemails, and all information contained in computers and PDA devices; memoranda, records, notes, logs, billing records in your possession which were taken, kept and/or maintained in connection with the taking, transfer and/or editing of any films, films, slides, motion pictures, photographs, tapes, videotapes and/or audio tapes, and all electronically stored information including emails, text messages, telephone voicemails, cell phone voicemails, and all information contained in computers and PDA devices; the full names and addresses of all investigators and photographers use din connection with the taking of any films, photographs, slides, tapes, videotapes, DVDs, CDs, and/or audiotapes; copies of transcripts of all films, motion pictures, tapes, DVDs, CDs, videotapes and/or audio tapes and all electronically stored information including emails, text messages, telephone voicemails, cell phone voicemails, and all information contained on computers and PDA devices; all out-take footage of all tapes, audio tapes, 3 of 5 FILED: SUFFOLK COUNTY CLERK 06/15/2023 04:15 PM INDEX NO. 611883/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/15/2023 films, motion pictures and videotapes and not just those portions of tape or film which defendant(s) proposes to offer into evidence at trial; all records, information and documentation regarding the type of equipment used to take, develop, convert, edit, transfer and transcribe all such films and tapes; the make and model of all equipment used and the lenses and range settings used in connection with the taking of any films, slides, photographs, DVDs, CDs, computer files, audio tapes, videotapes and/or motion pictures; and all other records, memoranda, documents, photographs, charts, slides, DVDs, CDs, computerized files, diagrams, logs, reports, films tapes, audio tapes, motion pictures and/or videotapes, and all electronically stored information including emails, text messages, telephone voicemails, cell phone voicemails, and all information contained on computers and PDA devices, used, taken, stored, maintained, kept, developed, converted, defendants' edited, transferred and/or transcribed in custody, possession or control regarding the following: a) The location where it is alleged that the occurrence complained of took place. b) The condition complained of in the Complaint. c) The Plaintiff. d) Any actions or activities of the plaintiff. e) The incident complained of in the Complaint. f) The physical condition of and/or injuries sustained by the plaintiff. g) Any items, vehicles, tools, equipment and/or parts thereof involved in the occurrence, at any time prior to and following the occurrence. h) Any exemplar tools, equipment and/or exemplar parts utilized by defendants, defendants' defendants' counsel and/or experts. defendants' i) Any other material relevant to this lawsuit that defendants, defendants' counsel and/or experts intend to produce at the time of trial. If no such photographs, slides, video, films, motion pictures, tapes, audio tapes, computerized files, electronically stored information including emails, text messages, telephone voicemails, cell phone voicemails, and all information contained on computers and PDA devices, notes, charts, diagrams, memoranda or other materials and/or documentation are in the possession, custody or control of any parties you represent in this action, so state in a sworn rely to this demand. 6. DEMAND FOR EXPERT WITNESS DISCLOSURE PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR §3101(d)(1) you are hereby required to set forth the following: (a) The name and address of each and every person you expect to call as an expert witness at the trial of this action; (b) In reasonable detail, the subject matter on which each expert is to testify; (c) The substance of the facts and opinions on which each expert is expected to testify; (d) The qualification of each such expert witnesses; and 4 of 5 FILED: SUFFOLK COUNTY CLERK 06/15/2023 04:15 PM INDEX NO. 611883/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/15/2023 (e) A summary of the grounds for each expert's opinion. 7. DEMAND FOR CONTRACTS PLEASE TAKE FURTHER NOTICE, that the undersigned demands on behalf of the plaintiff in this action, that you produce at the time and place specified, and permit the undersigned to discover, inspect and copy each and every contract pertaining to the subject work site between the defendants and plaintiff's employer, including complete copies of all exhibits and amendments to the contract as well as a complete copy of all contracts entered into between the defendant(s) and other party specifically pertaining to work at the subject job site where plaintiff was performing his work to the time of the occurrence including complete copies of all exhibits and amendments to the contract. PLEASE TAKE FURTHER NOTICE, that the annexed demands are continuing demands and that if any of the above items are obtained after the date of this demand, they are to be furnished to the undersigned pursuant to these demands. Dated: Forest Hills, New York June 15, 2023 Yours, etc. LAW OFFICE OF STEVEN R. VACCARO, P.C. Steven R. Vaccaro, Esq. Attorneys for plaintiff KEVIN CONKLING 118-35 Queens Blvd., Suite 1515 Forest Hills, New York 11375 (718) 575-4075 TO: BARRY McTIERNAN & MOORE LLC Attorneys for Defendant THE WHITING-TURNER CONTRACTING COMPANY 14th 101 Greenwich Street, FlOOr New York, N.Y. 10006 Attn: Alex R. Malino, Esq. 5 of 5