Preview
FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023
Lp
LAROCK & PEREZ, LLP
42 Broadway, Suite 1927, New York, NY 10004
Tel: 571-1112 " Fax: (212) 571-1113
(212)
DARio PEREZ
ALLEN L LARocK
March 23, 2023
Via NYSCEF
Gerber Ciano Kelly Brady LLP
P.O. Box 1060
Buffalo, NY 14201
Re: Enrique Zamudio v. Vista Hill Realty LLC, et al.
Index #: 700460/2022
Dear Counselor(s):
A review of our file indicates that we still have not received your response to plaintiff's Combined
Demands and Notice Pursuant to the Comprehensive Insurance Disclosure Act of 2022 dated January 11, 2023
(copies are attached herewith).
The outstanding discovery was to be provided on or before February 13, 2023. To date, your office has
failed to respond to said discovery demands. If you conduct a search and the search fails to reveal any of the
Affidavit"
demanded discovery, please provide our office with a "Jackson (Jackson v. City of New York,
185 A.D.2d 768, 586 N.Y.S.2d 952) stating such.
As of this present date, discovery continues to remain outstanding.
It is imperative our office receives all outstanding discovery prior to any upcoming Court ordered
depositions and/or appearance.
As such, please accept this correspondence as a second good faith attempt to resolve these discovery
issues. If we do not receive your response within fourteen (14) days of receipt of this letter, we will have no
alternative but to seek judicial intervention.
Thank you for your immediate attention to this ma .
V fry 1 yours
io Pere , Es .
DP/aa
Enc.
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SUPREME COURT QF THE STATE OF NEW YORK
COUNTY OF QUEENS
____.-----.._____-..--.-----____.------x
ENRIQUE ZAMUDIO,
Index No.: 700460/2022
Plaintiff,
COMBINED DEMANDS
.
-against-
VISTA REALTY LLC and
UPPER RESTORATION, INC.,
Defendants.
____.....___---........_______________x
C O U N S E L O R S :
PLEASE TAKE NOTICE that the defendants are hereby required to serve upon the
. . undersigned plaintiff's trial attorneys your Response to the following demands for Discovery
and Inspection within twenty (20) days of service of this demand, setting forth:
1. PHOTOGRAPHS AND/OR ANY OTHER TYPE OF VIDEO OR MOVING
PICTURE REPRODUCTION OF THE PLAINTIFF taken by the defendant, its agents,
servants, representatives and/or employees and/or third party defendant, including but not
limited to: films, lihotographs, video tapes or audio tapes, and transcripts and memoranda
thereof. This demand includes all portions of such material, including out-takes, rather than
only those portions a party intends to úse. Sea, CPLR § 3101(i); Tran v. New Rochelle
Hospital, 99 N.Y.2d 383 (2003). THIS DEMAND IS A CONTINUING DEMAND UP TO
AND INCLUDING THE TIME OF THE TRIAL.
2. COPIES OF THE PRIMARY AND EXCESS/UMBRELLA LIABILITY
INSURANCE POLICIES HELD BY THE OWNER AND/OR LESSEE of the subject
premises under which 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
payments made to satisfy the judgment which may be entered herein. This demand is for "all
contents"
of the aforementioned insurance policies. See, CPLR § 3101(f).
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3. COPIES OF THE PRIMARY AND BXCESS/UMBRELLA LIABILITY
INSURANCE POLICIES HELD BY THE GENERAL CONTRACTOR/CONSTRUCTION
MANAGER of the subject jobsite under which 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 payments made to satisfy the judgment which may be entered
contents"
herein. This demand is for "all of the aforementioned insurance policies. See,
CPLR § 3101(f).
4. COPIES OF THE PRIMARY AND EXCESS/UMBRELLA LIABILITY
INSURANCE POLICIES HELD BY PLAINTIFF'S EMPLOYER under which 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 indenmify or reimburse for payments made to satisfy the
contents"
judgment which may be entered herein. This demand is for "all of the
aforementioned insurance policies. See, CPLR § 3101(f).
5. PLAINTIFF'S STATEMENTS- and all statements, abstracts of
any
recordings and/or writings taken by the Defendant individually or their representatives from
the plaintiff with reference to the within litigation which are presently in the possession of the
Defendant, its agents, servants and/or employees.
6. WRITTEN ACCIDENT REPORTS, including but not limited to copies of:
a. the C-3 (employee's report of accident);
b. the FROI (old forhi, C2) and SROI(s) (employer's reports or accident or
injury);
c. accident reports or other written memoranda describing the accident alleged in
this lawsuit including those prepared and/or received by the general
contractor/constructiorf manager/subcontractors on the job sites and including
all records concerning the happening of the accident received from their job
engineers'
supeñntendent's reports, consulting reports whether hired by the
general contractor or municipality;
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d. written reports of the subject accident prepared in the ordinary course of
business operations or practices of the Defendant and/or the Defendant's
servants, agents, and/or employees. See, CPLR § 3101(g);
e. any memo books and/or personal diaries maintained by the defendant's
representatives at the job site which contain references to the accident or
accident reports.
WORKERS'
7. PLAINTIFF'S STATEMENTS GIVEN TO COMPENSATION
CARRIER/EMPLOYER - obtained the plaintiff
any statements by defendants from by the
Workers'
Cotnpensation carrier and/or employer (third party defendant), if any, whether said
statement were written or oral.
8. COPIES OF ALL SITE SAFETY PLANS prepared by the general
contractor/construction manager, any subcontractors and/or owner of the premises for the
subject jobsite/construction project.
9. COPIES OF ALL SAFETY MANUALS prepared by general
contractor/construction manager, any subcontractors, and/or owner of the premises for the
subject jobsite/construction project.
10. COPIES OF ALL SAFETY MEMOS AND OTHER SAFETY MATERIAL
distributed to the employees and or subcontractors and/or prepared by the defendants herein
for use of their employees concerning site safety and safety on the job site.
11. The name, address and whether said person is still employed of any individual
ÒFFICER"
designated as a "SITE SAFETY for the job in question.
12. ANY PHOTOS OF SCIsNE, INCLUDING PROGRESS PHOTOS - all
Defendants'
photographs under the control of Defendants, the agents, servants and/or
Defendants'
employees or received by the agents, servants and/or employees from any other
individual, entity, source and/or company including all subcontractors and/or financial
lending institutions showing the scene of the accident and taken within a six (6) month period
prior to the happening of the accident and a thirty (30) day period subsequent to the
happening of the accident.
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13. A full and complete copy of the DEED to the subject premises in effect at the
time of the subject occurrence, including the description of the property and any ground leases
between the owner and a tenant in possession.
14. Copy of the entire CONTRACT BETWEEN THE OWNER of said premises
and GENERAL CONTRACTOR/CONSTRUCTION MANAGER, including but not limited
to: all bids, specifications, indexes, contract documents, plans, drawings, as-built plans,
mechanicals, shop drawings, purchase orders, change orders, punch lists, add-ons and
diagrams prepared and referring to the contract herein and other records concerning the
preparation of this construction contract.
15. Copy of the entire GENERAL CONTRACTOR/CONSTRUCTION
MANAGER'S PROJECT FILE. If said file is voluminous, Plaintiff requests that an index be
prepared and supplied to the plaintiff's attomey at this time detailing and containing the
contents of said project file.
16. Copy of the entire CONTRACT BETWEEN THE OWNER or GENERAL
CONTRACTOR/CONSTRUCTION MANAGER and THE ARCHITECT, including but not
limited to: the standard form of agreement between the owner and architect (AIA Form),
architect's records, plans, specifications, drawings and other records prepared by the architect
and submitted to the owner.
17. Copy of the entire CONTRACT BETWEEN THE OWNER or OENERAL
CONTRACTOR/CONSTRUCTION MANAGER and THE CONSULTING ENGINEER.
18. Copy of ANY AND ALL REQUESTS OR APPLICATIONS FOR PERMITS,
ISSUED PERMITS, WORK ORDERS, AND JOB FILING for the premises, property, or
land that is the subject of this lawsuit.
19, Copies of the daily and/or weekly job reports prepared by the consulting
engineer for a sixty (60) days period prior to and including the date of the accident herein.
20. Copies of the memo books and/or personal diaries of the consulting engineers
maintained for thirty (30) day period prior to and including the date of the accident herein.
21. Full and complete copies of the SUBCONTRACTS ENTERED INTO
BETWEEN THE OWNER, GENERAL CONTRACTOR/CONSTRUCTION MANAGER
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and SUBCONTRACTORS, including the plaintiff's employer, for the construction project
herein.
22. Full and complete copies of the following prepared by prepared and/or
maintained by the general contractor/construction manager for a sixty (60) day period prior to
and including the date of the accident herein:
a, Daily and/or weekly job reports;
b. Job logs;
c. Progress records;
d. Project manager's records and/or diaries.
23. Full and complete copies of the following prepared by prepared and/or
maintained by the plaintiff's employer for a sixty (60) day period prior to and including the
date of the accident herein:
a. Daily and/or weeldy job reports;
b. Job logs;
c. Progress records.
24. Full and complete copies of the following prepared by prepared and/or
maintained by the site safety manager for a sixty (60) day period prior to and including the
date of the accident herein:
a. Daily and/or weekly job reports;
b. Job logs;
c. Progress records;
d. Site inspection reports/records;
e. Incident reports and investigations.
25. Full and complete copies of job meeting minutes, safety meeting minutes, and
gang box meeting minutes (including sign in sheets, if any) held and attended by the
owner/general contractor and/or subcontractors upon the job site for sixty (60) day period
prior to and including the date of the accident herein.
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26. Copies of all ACCIDENT REPORTS prepared by or received by the
defendants herein from the plaintiff, plaintiff's employer or any other source concerning the
happening of the plaintiff's accident herein.
27. Copies of any MEDICAL RECORDS concerning the plaintiff for medical
treatment rendered to the plaintiff on behalf of the owner, contractor, engineer or other pany
on the construction site or off the construction site at the request of the owner, general
contractor and/or construction manager, including full and complete copies of the office
records, nurse's records and any other reports received by them for services rendered at said
parties request.
28. If the accident herein involved ladders, cranes, scaffolds, hoists, slings, lifting
and/or hoisting equipment, plaintiff demands production of the FULL AND COMPLETE
RENTAL AGREEMENTS FOR SAID EQUIPMENT, including any time and manpower
records, concerning the operators of the said equipment, should said operators have been
employed by outside companies.
29. The names of:
a. the project manager,
b, the assistant project manager(s),
c. job and general foreman for the construction project
The demand is for a third (30) day period prior to and including the date of the accident
herein. Responses should include a statement of whether said individuals are still employed
by the defendants/third party defendants herein, and if an individual is no longer employed by
the defendants/third party defendants herein, the last known address of said individual.
30. Copies of any and all OSHA CORRESPONDENCE received by the
defendant/third party defendant concerning the instrumentality and/or location of the accident
herein for sixty (60) day period prior to and including the date of the accident, including but
not limited to: OSHA inspections, Notice(s) of Violations, Notice(s) of Negotiation and
resolution letters received from OSHA, as well as cancelled check(s) or other proof of
payment of fines levied by OSHA.
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31. Copies of any and all WRITTEN COMPLAINTS received by any party on the
jobsite conceming the location of the accident herein and/or the instrumentality involved in
the plaintiff s accident for a sixty (60) day period prior to and including the date of the
accident.
32. NAMES OF WITNESSES: The names and addresses of any witnesses to the
within accident obtained by the defendant, its agents,servants and/or employees. See,
Zellman v. Metropolitation Transportation, 40 A.D.2d 248 (2d. Dept. 1973). Please provide
the names and addresses of any employees who are known to have witnessed the accident and
if said employees are no longer in the employment of the Defendant herein, please state in this
witness'
response the last known residence and last date of employment. Please provide the
names of any eyewitnesses obtained from any subcontractors or other entities upon the job
site. If the defendant has obtained the names of notice witnesses to the condition which led to
the plaintifPs accident, please provide same.
33. EXPERTS WITNESSES:
a. the names and addresses of each person the defendant expects to call as an
expert witness at trial of the subject matter, on which each expert is expected to
testify.
b. the substance of the facts and opinions on which each expert is expected to
testify.
c. the qualifications of each expert witness and a summary of the grounds for
each expert opinion.
PLEASE TAKE NOTICE, that in lieu of producing said items at the office of the
undersigned, the defendants may submit by mail to the undersigned before the return date of
the within Notice.
PLEASE TAKE NOTICE, that the foregoing 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 this demand. The undersigned will object upon the trial of this
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matter to the testimony or introduction of any items sought herein and not provided within 20
days of receipt by defendants.
PLEASE TAKE FURTHER NOTICE, that in the event of your failure to comply with
this Notice, the undersigned will move to preclude any non-complying defendant, at any time
up to and including time of trial, from introducing into evidence and from otherwise using
each aforementioned item for any purpose whatsoever, upon trial of this action and for such
other relief as the Court may deem just and proper.
Dated: New York, New York
January 11, 2023
Yours e ,
LaR & P e
B . Dario Perez, Es .
ttorneys for Plai iff
ENRIQUE Z DIO
42 Broadway, Sui
New York, New York 10004
(212)571-1112
(212)571-1113 Fax
To:
Gerber Ciano Kelly Brady LLP
Attorneys for Defendant
UPPER RESTORATION, INC.
P.O. Box 1060
Buffalo, New York 14201
(516) 534-5061
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SUPRBME COURT OF THE STATB OF NEW YORK
COUNTY OF QUEENS
._______.____-__________.._________...x
ENRIQUE ZAMUDIO,
Index No.: 700460/2022
Plaintiff,
-against- DEMAND FOR A BILL OF
PARTICULARS AS TO
AFFIRMATIVE DEFENSES
VISTA REALTY LLC and
UPPER RESTORATION, INC.,
Defendants.
_____............._____________.---.__x
PLEASB TAKE NOTICBthat the plaintiff demands that you serve upon the
undersigned attorney within ten (10) days after service of this demand a Verified Bill of
defendants'
Particulars of the affinnative defenses contained in Answer, responsive to the
following demands:
1. Set forth the basis for responding defendant's First Affirmative Defense that
the personal injuries and/or property damage alleged by the plaintiff were caused entirely or
in part through culpable conduct attributable to the plaintiff and the defendant seeks a
dismissal or reduction in any recovery had by the plaintiff in the proportion which the
culpable conduct attributable to the plaintiff bears to the culpable conduct which cause the
defendants'
damages. Set forth the basis for responding Affirmative Defense that the igjuries
and damages alleged by the plaintiffs were sustained while engaged in an activity that the
plaintiff entered knowing the risks inherent herein and which risks were assumed by plaintiff
therefore barring this action.
2. Set forth the basis for responding defendant's Second Affirmative Defense that
if the answering defendant is found liable for plaintiff's damages that they are to be
apportioned, pursuant to CPLR Section 1412, between the plaintiff and the Defendant
according to the degree ofresponsibility that each is found to have in the ocetuTence, in
proportion to the entire measure of responsibility for the occurrence.
3. Set forth the basis for responding defendant's Third Affirmative Defense that
plaintiff's damages were cause by the culpable conduct of others for whose acts and
omissions the answering Defendant bears no responsibility. Set forth the names and addresses
of said responsible parties.
4. Set forth the basis for responding defendant's Fourth Affirmative Defense that
if found liable for plaintiff's damages and subject accident that Defendants share of liability is
fifty percent or less the total liability assigned to all persons or entities pursuant to section
1601 ofthe CPLR.
S. Set forth the basis for responding defendant's Fifth Affirmative Defense that if
at the time of trial any of the issues herein have been fmally determined against the Plaintiff
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by a Tribunal, Forum or Court, all of competent jurisdiction, then, in that event, Plaintiff will
be estopped from re-litigating said issues.
6. Set forth the basis for responding defendant's Sixth Affirmative Defense that
plaintiffs recovery shall be reduced by the amount of any collateral payments received, in
accordance with CPLR §4545.
7. Set forth the basis for responding defendant's Seventh Affirmative Defense
that Plaintiff's complaint fails to state a cause of action against this answering Defendant.
8. Set forth the basis for responding defendant's Eighth Affirmative Defense that
defendant
Preview
FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 Lp LAROCK & PEREZ, LLP 42 Broadway, Suite 1927, New York, NY 10004 Tel: 571-1112 " Fax: (212) 571-1113 (212) DARio PEREZ ALLEN L LARocK March 23, 2023 Via NYSCEF Gerber Ciano Kelly Brady LLP P.O. Box 1060 Buffalo, NY 14201 Re: Enrique Zamudio v. Vista Hill Realty LLC, et al. Index #: 700460/2022 Dear Counselor(s): A review of our file indicates that we still have not received your response to plaintiff's Combined Demands and Notice Pursuant to the Comprehensive Insurance Disclosure Act of 2022 dated January 11, 2023 (copies are attached herewith). The outstanding discovery was to be provided on or before February 13, 2023. To date, your office has failed to respond to said discovery demands. If you conduct a search and the search fails to reveal any of the Affidavit" demanded discovery, please provide our office with a "Jackson (Jackson v. City of New York, 185 A.D.2d 768, 586 N.Y.S.2d 952) stating such. As of this present date, discovery continues to remain outstanding. It is imperative our office receives all outstanding discovery prior to any upcoming Court ordered depositions and/or appearance. As such, please accept this correspondence as a second good faith attempt to resolve these discovery issues. If we do not receive your response within fourteen (14) days of receipt of this letter, we will have no alternative but to seek judicial intervention. Thank you for your immediate attention to this ma . V fry 1 yours io Pere , Es . DP/aa Enc. 1 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 SUPREME COURT QF THE STATE OF NEW YORK COUNTY OF QUEENS ____.-----.._____-..--.-----____.------x ENRIQUE ZAMUDIO, Index No.: 700460/2022 Plaintiff, COMBINED DEMANDS . -against- VISTA REALTY LLC and UPPER RESTORATION, INC., Defendants. ____.....___---........_______________x C O U N S E L O R S : PLEASE TAKE NOTICE that the defendants are hereby required to serve upon the . . undersigned plaintiff's trial attorneys your Response to the following demands for Discovery and Inspection within twenty (20) days of service of this demand, setting forth: 1. PHOTOGRAPHS AND/OR ANY OTHER TYPE OF VIDEO OR MOVING PICTURE REPRODUCTION OF THE PLAINTIFF taken by the defendant, its agents, servants, representatives and/or employees and/or third party defendant, including but not limited to: films, lihotographs, video tapes or audio tapes, and transcripts and memoranda thereof. This demand includes all portions of such material, including out-takes, rather than only those portions a party intends to úse. Sea, CPLR § 3101(i); Tran v. New Rochelle Hospital, 99 N.Y.2d 383 (2003). THIS DEMAND IS A CONTINUING DEMAND UP TO AND INCLUDING THE TIME OF THE TRIAL. 2. COPIES OF THE PRIMARY AND EXCESS/UMBRELLA LIABILITY INSURANCE POLICIES HELD BY THE OWNER AND/OR LESSEE of the subject premises under which 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 payments made to satisfy the judgment which may be entered herein. This demand is for "all contents" of the aforementioned insurance policies. See, CPLR § 3101(f). 2 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 3. COPIES OF THE PRIMARY AND BXCESS/UMBRELLA LIABILITY INSURANCE POLICIES HELD BY THE GENERAL CONTRACTOR/CONSTRUCTION MANAGER of the subject jobsite under which 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 payments made to satisfy the judgment which may be entered contents" herein. This demand is for "all of the aforementioned insurance policies. See, CPLR § 3101(f). 4. COPIES OF THE PRIMARY AND EXCESS/UMBRELLA LIABILITY INSURANCE POLICIES HELD BY PLAINTIFF'S EMPLOYER under which 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 indenmify or reimburse for payments made to satisfy the contents" judgment which may be entered herein. This demand is for "all of the aforementioned insurance policies. See, CPLR § 3101(f). 5. PLAINTIFF'S STATEMENTS- and all statements, abstracts of any recordings and/or writings taken by the Defendant individually or their representatives from the plaintiff with reference to the within litigation which are presently in the possession of the Defendant, its agents, servants and/or employees. 6. WRITTEN ACCIDENT REPORTS, including but not limited to copies of: a. the C-3 (employee's report of accident); b. the FROI (old forhi, C2) and SROI(s) (employer's reports or accident or injury); c. accident reports or other written memoranda describing the accident alleged in this lawsuit including those prepared and/or received by the general contractor/constructiorf manager/subcontractors on the job sites and including all records concerning the happening of the accident received from their job engineers' supeñntendent's reports, consulting reports whether hired by the general contractor or municipality; 3 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 d. written reports of the subject accident prepared in the ordinary course of business operations or practices of the Defendant and/or the Defendant's servants, agents, and/or employees. See, CPLR § 3101(g); e. any memo books and/or personal diaries maintained by the defendant's representatives at the job site which contain references to the accident or accident reports. WORKERS' 7. PLAINTIFF'S STATEMENTS GIVEN TO COMPENSATION CARRIER/EMPLOYER - obtained the plaintiff any statements by defendants from by the Workers' Cotnpensation carrier and/or employer (third party defendant), if any, whether said statement were written or oral. 8. COPIES OF ALL SITE SAFETY PLANS prepared by the general contractor/construction manager, any subcontractors and/or owner of the premises for the subject jobsite/construction project. 9. COPIES OF ALL SAFETY MANUALS prepared by general contractor/construction manager, any subcontractors, and/or owner of the premises for the subject jobsite/construction project. 10. COPIES OF ALL SAFETY MEMOS AND OTHER SAFETY MATERIAL distributed to the employees and or subcontractors and/or prepared by the defendants herein for use of their employees concerning site safety and safety on the job site. 11. The name, address and whether said person is still employed of any individual ÒFFICER" designated as a "SITE SAFETY for the job in question. 12. ANY PHOTOS OF SCIsNE, INCLUDING PROGRESS PHOTOS - all Defendants' photographs under the control of Defendants, the agents, servants and/or Defendants' employees or received by the agents, servants and/or employees from any other individual, entity, source and/or company including all subcontractors and/or financial lending institutions showing the scene of the accident and taken within a six (6) month period prior to the happening of the accident and a thirty (30) day period subsequent to the happening of the accident. 4 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 13. A full and complete copy of the DEED to the subject premises in effect at the time of the subject occurrence, including the description of the property and any ground leases between the owner and a tenant in possession. 14. Copy of the entire CONTRACT BETWEEN THE OWNER of said premises and GENERAL CONTRACTOR/CONSTRUCTION MANAGER, including but not limited to: all bids, specifications, indexes, contract documents, plans, drawings, as-built plans, mechanicals, shop drawings, purchase orders, change orders, punch lists, add-ons and diagrams prepared and referring to the contract herein and other records concerning the preparation of this construction contract. 15. Copy of the entire GENERAL CONTRACTOR/CONSTRUCTION MANAGER'S PROJECT FILE. If said file is voluminous, Plaintiff requests that an index be prepared and supplied to the plaintiff's attomey at this time detailing and containing the contents of said project file. 16. Copy of the entire CONTRACT BETWEEN THE OWNER or GENERAL CONTRACTOR/CONSTRUCTION MANAGER and THE ARCHITECT, including but not limited to: the standard form of agreement between the owner and architect (AIA Form), architect's records, plans, specifications, drawings and other records prepared by the architect and submitted to the owner. 17. Copy of the entire CONTRACT BETWEEN THE OWNER or OENERAL CONTRACTOR/CONSTRUCTION MANAGER and THE CONSULTING ENGINEER. 18. Copy of ANY AND ALL REQUESTS OR APPLICATIONS FOR PERMITS, ISSUED PERMITS, WORK ORDERS, AND JOB FILING for the premises, property, or land that is the subject of this lawsuit. 19, Copies of the daily and/or weekly job reports prepared by the consulting engineer for a sixty (60) days period prior to and including the date of the accident herein. 20. Copies of the memo books and/or personal diaries of the consulting engineers maintained for thirty (30) day period prior to and including the date of the accident herein. 21. Full and complete copies of the SUBCONTRACTS ENTERED INTO BETWEEN THE OWNER, GENERAL CONTRACTOR/CONSTRUCTION MANAGER 5 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 and SUBCONTRACTORS, including the plaintiff's employer, for the construction project herein. 22. Full and complete copies of the following prepared by prepared and/or maintained by the general contractor/construction manager for a sixty (60) day period prior to and including the date of the accident herein: a, Daily and/or weekly job reports; b. Job logs; c. Progress records; d. Project manager's records and/or diaries. 23. Full and complete copies of the following prepared by prepared and/or maintained by the plaintiff's employer for a sixty (60) day period prior to and including the date of the accident herein: a. Daily and/or weeldy job reports; b. Job logs; c. Progress records. 24. Full and complete copies of the following prepared by prepared and/or maintained by the site safety manager for a sixty (60) day period prior to and including the date of the accident herein: a. Daily and/or weekly job reports; b. Job logs; c. Progress records; d. Site inspection reports/records; e. Incident reports and investigations. 25. Full and complete copies of job meeting minutes, safety meeting minutes, and gang box meeting minutes (including sign in sheets, if any) held and attended by the owner/general contractor and/or subcontractors upon the job site for sixty (60) day period prior to and including the date of the accident herein. 6 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 26. Copies of all ACCIDENT REPORTS prepared by or received by the defendants herein from the plaintiff, plaintiff's employer or any other source concerning the happening of the plaintiff's accident herein. 27. Copies of any MEDICAL RECORDS concerning the plaintiff for medical treatment rendered to the plaintiff on behalf of the owner, contractor, engineer or other pany on the construction site or off the construction site at the request of the owner, general contractor and/or construction manager, including full and complete copies of the office records, nurse's records and any other reports received by them for services rendered at said parties request. 28. If the accident herein involved ladders, cranes, scaffolds, hoists, slings, lifting and/or hoisting equipment, plaintiff demands production of the FULL AND COMPLETE RENTAL AGREEMENTS FOR SAID EQUIPMENT, including any time and manpower records, concerning the operators of the said equipment, should said operators have been employed by outside companies. 29. The names of: a. the project manager, b, the assistant project manager(s), c. job and general foreman for the construction project The demand is for a third (30) day period prior to and including the date of the accident herein. Responses should include a statement of whether said individuals are still employed by the defendants/third party defendants herein, and if an individual is no longer employed by the defendants/third party defendants herein, the last known address of said individual. 30. Copies of any and all OSHA CORRESPONDENCE received by the defendant/third party defendant concerning the instrumentality and/or location of the accident herein for sixty (60) day period prior to and including the date of the accident, including but not limited to: OSHA inspections, Notice(s) of Violations, Notice(s) of Negotiation and resolution letters received from OSHA, as well as cancelled check(s) or other proof of payment of fines levied by OSHA. 7 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 31. Copies of any and all WRITTEN COMPLAINTS received by any party on the jobsite conceming the location of the accident herein and/or the instrumentality involved in the plaintiff s accident for a sixty (60) day period prior to and including the date of the accident. 32. NAMES OF WITNESSES: The names and addresses of any witnesses to the within accident obtained by the defendant, its agents,servants and/or employees. See, Zellman v. Metropolitation Transportation, 40 A.D.2d 248 (2d. Dept. 1973). Please provide the names and addresses of any employees who are known to have witnessed the accident and if said employees are no longer in the employment of the Defendant herein, please state in this witness' response the last known residence and last date of employment. Please provide the names of any eyewitnesses obtained from any subcontractors or other entities upon the job site. If the defendant has obtained the names of notice witnesses to the condition which led to the plaintifPs accident, please provide same. 33. EXPERTS WITNESSES: a. the names and addresses of each person the defendant expects to call as an expert witness at trial of the subject matter, on which each expert is expected to testify. b. the substance of the facts and opinions on which each expert is expected to testify. c. the qualifications of each expert witness and a summary of the grounds for each expert opinion. PLEASE TAKE NOTICE, that in lieu of producing said items at the office of the undersigned, the defendants may submit by mail to the undersigned before the return date of the within Notice. PLEASE TAKE NOTICE, that the foregoing 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 this demand. The undersigned will object upon the trial of this 8 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 matter to the testimony or introduction of any items sought herein and not provided within 20 days of receipt by defendants. PLEASE TAKE FURTHER NOTICE, that in the event of your failure to comply with this Notice, the undersigned will move to preclude any non-complying defendant, at any time up to and including time of trial, from introducing into evidence and from otherwise using each aforementioned item for any purpose whatsoever, upon trial of this action and for such other relief as the Court may deem just and proper. Dated: New York, New York January 11, 2023 Yours e , LaR & P e B . Dario Perez, Es . ttorneys for Plai iff ENRIQUE Z DIO 42 Broadway, Sui New York, New York 10004 (212)571-1112 (212)571-1113 Fax To: Gerber Ciano Kelly Brady LLP Attorneys for Defendant UPPER RESTORATION, INC. P.O. Box 1060 Buffalo, New York 14201 (516) 534-5061 9 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 SUPRBME COURT OF THE STATB OF NEW YORK COUNTY OF QUEENS ._______.____-__________.._________...x ENRIQUE ZAMUDIO, Index No.: 700460/2022 Plaintiff, -against- DEMAND FOR A BILL OF PARTICULARS AS TO AFFIRMATIVE DEFENSES VISTA REALTY LLC and UPPER RESTORATION, INC., Defendants. _____............._____________.---.__x PLEASB TAKE NOTICBthat the plaintiff demands that you serve upon the undersigned attorney within ten (10) days after service of this demand a Verified Bill of defendants' Particulars of the affinnative defenses contained in Answer, responsive to the following demands: 1. Set forth the basis for responding defendant's First Affirmative Defense that the personal injuries and/or property damage alleged by the plaintiff were caused entirely or in part through culpable conduct attributable to the plaintiff and the defendant seeks a dismissal or reduction in any recovery had by the plaintiff in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which cause the defendants' damages. Set forth the basis for responding Affirmative Defense that the igjuries and damages alleged by the plaintiffs were sustained while engaged in an activity that the plaintiff entered knowing the risks inherent herein and which risks were assumed by plaintiff therefore barring this action. 2. Set forth the basis for responding defendant's Second Affirmative Defense that if the answering defendant is found liable for plaintiff's damages that they are to be apportioned, pursuant to CPLR Section 1412, between the plaintiff and the Defendant according to the degree ofresponsibility that each is found to have in the ocetuTence, in proportion to the entire measure of responsibility for the occurrence. 3. Set forth the basis for responding defendant's Third Affirmative Defense that plaintiff's damages were cause by the culpable conduct of others for whose acts and omissions the answering Defendant bears no responsibility. Set forth the names and addresses of said responsible parties. 4. Set forth the basis for responding defendant's Fourth Affirmative Defense that if found liable for plaintiff's damages and subject accident that Defendants share of liability is fifty percent or less the total liability assigned to all persons or entities pursuant to section 1601 ofthe CPLR. S. Set forth the basis for responding defendant's Fifth Affirmative Defense that if at the time of trial any of the issues herein have been fmally determined against the Plaintiff 10 of 23 FILED: QUEENS COUNTY CLERK 03/23/2023 03:36 PM INDEX NO. 700460/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/23/2023 by a Tribunal, Forum or Court, all of competent jurisdiction, then, in that event, Plaintiff will be estopped from re-litigating said issues. 6. Set forth the basis for responding defendant's Sixth Affirmative Defense that plaintiffs recovery shall be reduced by the amount of any collateral payments received, in accordance with CPLR §4545. 7. Set forth the basis for responding defendant's Seventh Affirmative Defense that Plaintiff's complaint fails to state a cause of action against this answering Defendant. 8. Set forth the basis for responding defendant's Eighth Affirmative Defense that defendant