On March 03, 2021 a
Motion-Secondary
was filed
involving a dispute between
Cheryl Follman,
and
City Of New York,
for Torts - Other Negligence (Premises)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
___________________________________________________________________ x
Index No: 505170/2021
CHERYL FOLLMAN,
Plaintiff, AFFIRMATION IN SUPPORT
OF THE PLAINTIFF'S
-against-
MOTION
THE CITY OF NEW YORK,
Defendant.
___________________________________________________________________Ç
KENNETH A. LEITNER, an attorney licensed to practice law in the State of New York,
affirms as follows subject to the penalties of perjury:
L I am an attorney associated with The Berkman Law Office, LLC, attorneys for the
plaintiff herein. I am fully familiar with the facts and circumstances of the case herein. I
respectfully submit this affirmation in support of the within motion for an order:
a) COMPELLING Defendant to conduct a search and provide by a date certain
records and documents of the milling, repair, paying and resurfacing history of the roadway at the
subject incident location for the period September 2014 up to and including the date of the subject
incident; and
b) GRANTING such other and further relief as is just and proper under the
circumstances.
2. This is an action to recover damages for serious personal injuries sustained by
Plaintiff on June 10, 2020 when plaintiff was caused to trip and fall due to a hole in the cracked
12th
roadway on Avenue H at its intersection with East Street in Brooklyn. (Exhibit A).
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FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023
3. The hole appears to be the result of shoddy milling and resurfacing work which
created a seam which cracked in the roadway where the paving of Avenue H meets the paying of
12th
East Street, CauSing the subject defect. (Id.).
4. Pictures from Google Maps show that the subject incident location was paved and
resurfaced sometime between September 2014 and August 2018. (Exhibit B). In the September
12th
2014 picture, the crosswalk is not striped and there are lines in the roadway on East Street
from prior repair work. (Id.). In the August 2018 picture, the crosswalk is striped and the roadway
12th
of East Street appearS somewhat freshly paved and resurfaced.(Id.).
5. As such, Plaintiff seeks records and documents, including, inter alia, permits,
contracts, maintenance and work orders, pertaining to the milling, repair, paying and resurfacing
history of the roadway at the subject incident location for the period September 2014 up to and
including the date of the subject incident.
6. In good faith, Plaintiff has reviewed the discovery provided by Defendant and
found that it was limited to a search for records of two years prior to the date of the subject incident,
and produced no relevant results as the pertinent period for the record search should have been
between September 2014 and August 2018.
7. Plaintiff additionally sought to obtain relevant records pursuant to a FOIL request,
(Exhibit C), but has not received responsive materials and the NYC Department of Transportation
has been non-committal as to whether or when it would respond to the FOIL request. Since the
City of New York is the Defendant in this case, Plaintiff shouldn't have to resort to a FOIL request
for disclosure, and Defendant should produce the discovery expeditiously.
-2-
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FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023
8. Accordingly, as Plaintiff has demonstrated a relevant and reasonable basis for the
records sought, Plaintiff's motion to compel Defendant to conduct a search and to provide
responsive records by a date certain should be granted in its entirety.
WHEREFORE, it is respectfully requested that the Court enter an order:
a) COMPELLING Defendant to conduct a search and provide by a date certain
records and documents of the milling, repair, paving and resurfacing history of the roadway at the
subject incident location for the period September 2014 up to and including the date of the subject
incident; and
b) GRANTING such other and further relief as is just and proper under the
circumstances.
Dated: Brooklyn, New York
) '
August 23, 2023 / /'b
Kenneth A. Leitner
-3-
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FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023
CERTIFICATION PURSUANT TO RULE 202.8-b
I hereby certify that pursuant to 22 NYCRR §202.8-b the foregoing affirmation was prepared on
a word-processing system with word-count and the undersigned has relied upon same to prepare
this certification.
Word Count: The total number of words in the foregoing affirmation, exclusive of caption, table
of contents, table of authorities and signature block is: 584.
Dated: Brooklyn, New York
August 23, 2023 ü
Kenneth A. Leitner
-4-
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Document Filed Date
August 23, 2023
Case Filing Date
March 03, 2021
Category
Torts - Other Negligence (Premises)
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FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ___________________________________________________________________ x Index No: 505170/2021 CHERYL FOLLMAN, Plaintiff, AFFIRMATION IN SUPPORT OF THE PLAINTIFF'S -against- MOTION THE CITY OF NEW YORK, Defendant. ___________________________________________________________________Ç KENNETH A. LEITNER, an attorney licensed to practice law in the State of New York, affirms as follows subject to the penalties of perjury: L I am an attorney associated with The Berkman Law Office, LLC, attorneys for the plaintiff herein. I am fully familiar with the facts and circumstances of the case herein. I respectfully submit this affirmation in support of the within motion for an order: a) COMPELLING Defendant to conduct a search and provide by a date certain records and documents of the milling, repair, paying and resurfacing history of the roadway at the subject incident location for the period September 2014 up to and including the date of the subject incident; and b) GRANTING such other and further relief as is just and proper under the circumstances. 2. This is an action to recover damages for serious personal injuries sustained by Plaintiff on June 10, 2020 when plaintiff was caused to trip and fall due to a hole in the cracked 12th roadway on Avenue H at its intersection with East Street in Brooklyn. (Exhibit A). 1 of 4 FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023 3. The hole appears to be the result of shoddy milling and resurfacing work which created a seam which cracked in the roadway where the paving of Avenue H meets the paying of 12th East Street, CauSing the subject defect. (Id.). 4. Pictures from Google Maps show that the subject incident location was paved and resurfaced sometime between September 2014 and August 2018. (Exhibit B). In the September 12th 2014 picture, the crosswalk is not striped and there are lines in the roadway on East Street from prior repair work. (Id.). In the August 2018 picture, the crosswalk is striped and the roadway 12th of East Street appearS somewhat freshly paved and resurfaced.(Id.). 5. As such, Plaintiff seeks records and documents, including, inter alia, permits, contracts, maintenance and work orders, pertaining to the milling, repair, paying and resurfacing history of the roadway at the subject incident location for the period September 2014 up to and including the date of the subject incident. 6. In good faith, Plaintiff has reviewed the discovery provided by Defendant and found that it was limited to a search for records of two years prior to the date of the subject incident, and produced no relevant results as the pertinent period for the record search should have been between September 2014 and August 2018. 7. Plaintiff additionally sought to obtain relevant records pursuant to a FOIL request, (Exhibit C), but has not received responsive materials and the NYC Department of Transportation has been non-committal as to whether or when it would respond to the FOIL request. Since the City of New York is the Defendant in this case, Plaintiff shouldn't have to resort to a FOIL request for disclosure, and Defendant should produce the discovery expeditiously. -2- 2 of 4 FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023 8. Accordingly, as Plaintiff has demonstrated a relevant and reasonable basis for the records sought, Plaintiff's motion to compel Defendant to conduct a search and to provide responsive records by a date certain should be granted in its entirety. WHEREFORE, it is respectfully requested that the Court enter an order: a) COMPELLING Defendant to conduct a search and provide by a date certain records and documents of the milling, repair, paving and resurfacing history of the roadway at the subject incident location for the period September 2014 up to and including the date of the subject incident; and b) GRANTING such other and further relief as is just and proper under the circumstances. Dated: Brooklyn, New York ) ' August 23, 2023 / /'b Kenneth A. Leitner -3- 3 of 4 FILED: KINGS COUNTY CLERK 08/23/2023 06:04 PM INDEX NO. 505170/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/23/2023 CERTIFICATION PURSUANT TO RULE 202.8-b I hereby certify that pursuant to 22 NYCRR §202.8-b the foregoing affirmation was prepared on a word-processing system with word-count and the undersigned has relied upon same to prepare this certification. Word Count: The total number of words in the foregoing affirmation, exclusive of caption, table of contents, table of authorities and signature block is: 584. Dated: Brooklyn, New York August 23, 2023 ü Kenneth A. Leitner -4- 4 of 4