Preview
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
EXHIBIT
C
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
lPage 1]
July 26, 2023
)j
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------x
MICHELLE PARKO,
PLAINTIFF,
-agai-nst- Index No.
802963/20238
OSO AUTO CORP. and JUAN DANIEL TAVAREZ,
DEFENDANTS.
------x
: Ju1 y 26, 2023
DATE
TIME: 'l-2:L0 p.m.
EXAMINATTON BEFORE TRrAL of the Plaintiff,
MICHELLE PARKO, taken by the Defendants, pursuant to a
Court Order, held via videoconference, before Evelyne
Higgins, a Shorthand Reporter and Notary Public of the
State of New York.
Lexitas Court Reporting
800-618-01,66
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
fPage 2)
July 26, 2023
(1)
(2t APPEARANCES
(3)
(4) JAMES NEWMAN, ESQ.
Attorney f or the Pl-ainti f f
(5) MICHELLE PARKO
281,5 Waterbury Avenue
(6) Bronx, New York 10461
BY: DEVIN NEWMAN, ESQ.
(7)
(B)
BAKER, McEVOY/ MORRISSEY & MOSKOVITS, P.C
(e) Attorneys for the Defendants
OSO AUTO CORP. and JUAN DANIEL TAVAREZ
(1_0) One MetroTech Center
BrookIyn, New York 1,I201,
(11) BY: ALLAN LEZNIKOVA, ESQ., of Counsef
File #: I723259
(r2)
(13)
(14) * * *
(1s )
(16)
(17 )
(18 )
(1e )
(20)
(2r)
(22)
(23)
(24)
(2s)
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
fpage 3]
July 25, 2023
(1)
(2) STIPULATIONS
(3)
(4) IT IS HEREBY STIPULATED AND AGREED by and
(s) between (among) counsel- for the respectj-ve parties
(6) hereto, that :
(7)
(8) A1f rights provided by the C. P. L. R. , incl-uding
(e) the ri-ght to object to any question, except as to form,
(10 ) or to move to strike any testj-mony at this (these)
(11) examination ( s ) , are reserved, and, in addition, the
(12) fail-ure to object to any question or to move to strike
(13 ) any testimony at this (these) examj-nation (s) shall- not
(14 ) be a bar or waiver to make such motion dt, and is
(1s ) reserved for the trial of this action;
(16 )
(17 ) rT 1S FURTHER STIPULATED AND AGREED by and
(18 ) between (among) counsel for the respective parties
(1e ) hereto, that this ( these ) examination ( s ) may be sworn
(20l- to by the witness (es ) being examined, before a Notary
(21) Public other than the Notary Public before whom this
(22) (these) examj-nation (s) was (were) begun; but the
(23) fai-1ure to do sor or to return the original of this
(24') (these) examination (s) to counsel,
(2s') STIPULATIONS
Lexitas Court Reporting
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 4]
July 26, 2023
(1)
(2\ sha11 not be deemed a waj-ver of the rights provided by
(3) Rul-es 3116 and 3117 of the C.P.L.R., and shall- be
(4) controlled thereby;
(s)
(5) IT IS FURTHER STIPULATED AND AGREED by and
(7) between ( among) counsel for the respective parties
(8) hereto, that thls (these) examination (s) may be
(e) utilized for all purposes as provided by the C.P.L.R.;
1r0)
(11) IT 1S FURTHER ST]PULATED AND AGREED by and
(12) between (among) counsel for the respective parti-es
1r3 ) hereto, that the filing and certification of the
1r4 ) original of this (these) examination(s) shaII be and
1r5 ) the same hereby are waived;
(16 )
(L1) IT IS FURTHER STIPULATED AND AGREED by and
(18) between ( among) counsel for the respectj-ve parties
1r9) hereto, that a copy of the within examination (s) shal-l
(20) be furnished to counsel representing the witness (es )
(2L) testifying, without charge.
(22)
(23) STIPULATIONS
(24) ]T IS FURTHER STIPULATED AND AGREED by and
(2s) between (among) counsel for the respective parties
Lexitas Court. Reporting
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
[Page 5]
July 26, 2023
(1)
(2) hereto, that all rights provided by the C.P.L.R., and
(3) Part 221- of the Uniform Rules for the Conduct of
(4) Depositions, lncluding the right to obj ect to any
(s) questi-onr eXcept as to formr or to move to strike any
(6) testimony at this examination is reserved; and in
(7) addition, the failure to object to any question or to
(8) move to strike any testimony at this examination sha11
(e) not be a bar or waiwer to make such motion dt, and is
(10 ) reserved to, the trial of this action.
(11)
(r2)
(13)
(14)
(1s)
1r6)
(17)
1r8)
(1e)
(20)
(2L)
(22)
(23')
124)
(2s)
Lexitas Court Report.ing
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 6]
July 26, 2023
(1)
(2) VIDEOCONFERENCE STIPULATIONS
(3) IT IS HEREBY STIPULATED AND AGREED by and between
(4) counsef for af f parties present that pursuant to CPLR
(s) section 3113 (d) this deposition is to be conducted by
(6) video conference, that the court reporter, all counsel,
(7) and the witness are all in separate remote locations
(B) and participating via videoconference (Legal-View/Zoom)
(e) meeting under the control of Lexitas Court Reportj-ng
1r0) Service, that the offj-cer administering the oath to the
(11) Witness need not be in the place of the deposition and
(12) the witness shall- be sworn in remotely by the court
(13 ) reporter after confirming the wiLness' identi-ty, that
(14) this vj-deoconference wil-1 not be recorded j-n any manner
(15) and that any recordj-ng without the express written
(16) consent of a1l- parties sha11 be considered
(17 ) unauthorized, in violation of 1aw, and sha11 not be
(18 ) used for any purpose in this 1j-tigation or otherwise.
(1e )
(20') IT IS FURTHER STIPULATED that exhibits may be
(27t marked by the attorney presenting the exhibit to the
(221 wltness, and that a copy of any exhibit presented to a
(23) witness shal-.1- be Email-ed to or otherwj-se in possession
(241 of all counsel prior to any questioning of a witness
(25\ regarding the exhibit in question. A11 parties shall-
Lexitas Court. Reporting
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
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July 26, 2023
(1)
(2t bear their own costs in the conduct of this deposition
(3) by video conference, not withstanding the obligation by
(4) CPLR to supply a copy of the transcript to the deposed
(s) party by the taking party in civil Iitigation matters.
(6)
(7)
(8)
(e)
(10)
( 11)
(t2l
(13)
) (14)
(1s)
(16)
(17)
1r8)
(1e)
(20')
(2rl
(22')
(23t
(241
(2s)
Lexitas Court Reporting
800-618-01.66
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 8]
July 26, 2023
(1)
(2t MS. POLLACK: Good morning. My
(3) name is Toby iI. Pollackand I'm a notary
(4) public in the State of New York, gualified
(s) in Nassau County, number 01POs020275. My
(6) commission expires on November 15th , 2025.
(7) Will the witness please raise their
(8) right hand.
(e) (Witness complies. )
(10) MS. POLLACK: Do you solemnly swear
(11) or affirm that the testimony that you're
(72) about to give will be the truth, the whole
(13 ) truth, and nothing but the truth, so help
(14 ) you God?
(1s) THE WITNESS: Yes.
(16 ) MS. POLLACK: Please state and
(r1) spell your full name for the record.
(18 ) THE I{ITNESS: My name is Michelle
(1e ) Abu Parko. And itrs spelled
(20) M-I-C-H-E-L-L-E, middle name Adu, A-D-U,
(2Ll last name is Parko, P-A-R-K-O.
(22) MS. POLLACK: And what is your
(23) current address?
(24) THE !{ITNESS : It' s 432 East 162nd
(2s) Street, Bronx, New York 10451, Apartment
Lexitas Court Reporting
800-618-0L66
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 9]
July 26, 2023
(1)
(2) l_ 0 -o, as 1n orange.
(3) MS . POLLACK: Thank you.
(4) MICHEL L E P A R K O, called as a witness,
(s) having been first duly sworn by a Notary Public of the
(6) State of New York, was examined and testified as
(7) f ollosrs:
(B) EXAMINATION BY
(e) MR. LEZNIKOVA:
(10) O. Please state your name for the
(11) record.
(12) A. Michelle Parko .
(13 ) O. Where do you reside?
(14 ) A. 432 East 162nd Street, Bronx, New
(1s ) York 10451, Apartment 10-O, as in oranlte.
(16 ) O . Good afternoon, Ms . Parko . My name
(r7 ) is Al-1an Leznikova. f'm of counsel- to Baker,
(18 ) McEvoy & Moskovits and we represent the
(1e ) Defendants in this case. I 'm golng to go over
(20t some brief instructi-ons with you before we begin
(27) some questions.
(22t Just to give you an overview, and
(23) it's not always in the sorter, but for the most
(24) part I I m going to ask you a 1ittle bit about
(25) your background, then I'm going to try to get
Lexitas Court Reporting
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 10]
July 26, 2023
(1) PARKO
(2) your side of the accident that you're here for
(3) today, how it happened according to your and
(4) then I want to find out how it's affected you.
(s) But before I do all that, I'm just going to qo
(6) over some brief instructions so that we're on
(7) the same page.
(8) Itm just
going to ask that all of
(e) your responses be verbaf and spoken. As you can
(10) see, there's a court reporter here, Ms. Higgins,
(11) who has a chaflenging job to take down
(r2) everything that we're saying and put it in the
(13) transcript .
In order for her to do that r we
(14) need to have verbal, spoken responses from you.
(1s) Sometlmes people say things like uh-huh and
(16 ) uh-uh, you know, when they're speaking casually
(r1) as human beings, but today because everything is
(18) being taken down in the transcript, we j ust need
(1e ) to make sure we have words like y€s, nor maybe,
(20) you know r dctual words. Okay?
(2r) A. I understand.
(22) O. A11 right. And j ust as you.'ve
(23) correctly doner dnswered verbally and waited for
(24) me to finish speaking before you responded, I
(25) ask that you continue to do so. It becomes very
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July 26, 2023
(1) PARKO
(2) difficult if
we talk over each other. Sometimes
(3) I might ask you a question or be in the middle
(4) of a question, and the answer might seem realIy
(s) obvious to you because you're invol-ved in this.
(6) But just keep in mind I wasn I t invol-vedr so
(7) there's a lot of things I don't know, and please
(8) let me finish asking my question and I promise
(e) you f'm qoing to give you a chance to answer my
(10 ) question. Okay?
(11 ) A.
Understood.
(r2) O. For the most part, i-t's going to be
(13) a question-and-answer format. I ask you
(14 ) questions, you don't ask me questions; you give
(1s) me answers, I donrt give answers myself. So we
(16) have different roles today. If there comes a
(17) point in time and I ask you a question and you
(18 ) don't know or you don't remember somethinq,
(1e) please don't guess, just Iet me know. If you
(20) don't know or you don't remember something,
(2r) we're al-I human beings and we can't know
(22) everything. Okay?
(23) A.
Understood.
(24) O. If there comes a point in time and
(25) f ask you a questionr you just don't understand
Lexitas Court Reporti-ng
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July 26, 2023
(1) PARKO
(2) my question, pfease Iet me know if you don't
(3) understand my question and to the best of my
(4) abilities I'l-l- do my best to rephrase it f or
(s) you. Okay?
(6) A. Okay.
(7) O. If at some point during this
(8) process you need to take a break, whether itrs
(e) to refresh yourseff, use the restroom r or maybe
(10) you're j ust tired of listening to re r which
(11) happens, j ust l-et me know i f you need to take a
(r2) break, approximately how long you need so that
(13) we aII know when to come back, and I just ask
(14 ) that if I've already begun to ask a question or
(1s) I have asked a question, to the best of your
(16 ) abilities if you coul-d just answer that question
(17) first before you take a break. Okay?
(18 ) A. Okay.
(1e ) O. Al-1 right. And al-so during this
(20) deposition, I just need you to remain in the
(21) room that you're in by yourseff. Is that okay
(22) with you?
(23) A. Yes.
(24) O. Okay. And please, Irm sure you
(2s) probably won't, but just in case, I have to say
Lexitas Court Reporting
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
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I
July 26, 2023
(1) PARKO
(2) it. While this deposition is happening, please
(3) don I t record usr don I t, Iike, Facebook
(4) livestream this l-ike that.
or anything PartIy
(s) because Irm camera shy, but more importantly
(6) because this is j ust for the parties involved in
(7) this case. Okay?
(8) A. Okay.
(e) O. It protects your privacy and
(10) everything that we're doing between us and the
(11) courts. A11 right?
(L2) A. Okay.
( 13) O. AII right, great. There may come a
(14) point in time that I ask you a question and the
(1s) best you can do is approximate or estimate.
(16) That' s okay, j ust please let me know if it's an
(17) approximate or estimate so that the record is
(18) clear it might not be exact. Okay?
(1e) A. Okay.
(20) O. Any other answers you give, I'm
(2L) just going to assume it's based on your
(22) knowledge and recoll-ection unless you te11 me
(23',) otherwise. AII right?
(24) A. Okay.
(25) O. AII right, great. How tall are
Lexitas Court Reporting
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
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July 26, 2023
(1) PARKO
(2) you ?
(3) A. I rm five-three.
(4) O. How much do you wei-gh now?
(s) A.Irm 160 pounds.
(6) O. Back on December 20 in the year of
(7) 2022, were you invol-ved in a car accident ?
(8) A. Yes.
(e) O. And back then, did you also weigh
(10) about 160 pounds?
(11) A. Yes.
(L2) O. Okay. The address where you
(13 ) currentJ-y l-ive, is that where you were Iiving
(L4) back on December 20, 2022?
(1s) A. Yes.
(16) a. Okay , gr eat. The next question I 'm
(17) going to ask you, f don't mean any offense by
(18) it, but as your attorney probably knows, when I
(1e ) was being sworn in or appfying for the bar, as
(20) he was, we're all asked whether we've been
(2L',) convicted of a crime. So my question to you is,
(22) have you ever been convicted of a cr j-me ?
(23) A. No, I have not.
(24) O. AII right, thanks . And what I s your
(2s) highest level- of education ?
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 15]
JuIy 26, 2023
(1) PARKO
(2) A. I have a masters degree in
(3) heal thcare administration.
(4) a. And from which universj-ty or
(s) coll-ege?
(6) A. Grand Canyon University.
(7) a. And where i-s that Iocated?
(B) A. That's located in Phoenix, Arizona.
(e) o. When did you get that deqree?
(10) A. August of 2O2L.
(11) O. Okay. Are you currentJ-y employed?
(r2) A. Yes, I am.
(13) O. What are you employed doing?
(14) A. I am a personal care assistant for
(1s) my mother.
(16) o. Are you employed doing anything
(17) else?
(18 ) A. No.
(19) O. How many hours a week do you work?
(20) A. 40.
(2Ll o. How long have you been doing that
(22) for?
(23) A. I've been doing it for five years.
(24) o. Is there an agency thatrs your
(25) employer officj-aIJ-y?
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July 26, 2023
I
(1) PARKO
(2') A. Yes.
(3) a. Which agency?
(4) A.
Heart to Heart Home Care.
(s) a. Have you been with Heart to Heart
(6) these five years that you have been doing this
(7) work for your mom?
(B) A. Yes.
(e) A. And from December 20, '22,
Okay.
(10) from that date up until now, have you been
( 11) employed doing anything else besides this?
(L2) A. No.
(13) A. Okay. And prior to today, have you
(14) ever testified under oath in a deposition or in
(15) court before?
(16) A. Yes.
(17) O. When was the last time you did
(18) that ?
(1e) A. I would say about four years ago.
(20) O. Okay. And what was the matter that
(2r) you testified in or what was it regarding?
(22) A. It didn't involve me directly,
(231 so...
(24) O. Okay.
(2st MR. NE!{MAN: ilust tell him what it
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July 26, 2023
(1) PARKO
(2) lta s about, Miche1J-e.
(3) A. It rilas about my mom.
(4) O. Okay. You were, like, a witness or
(s) something?
(6) A. Yes.
('t ) O. Okay. I understand. And besides
(B) that, have you testified under oath in anything
(e) efse before this deposition today?
(10) A. No.
(11) O. Okay. And in the December 20, 2022
(12) accident, w ere you inj ured?
(13 ) A. No.
(14) MR. LEZNIKOVA: Just go off the
(1s) record one second.
(16) (Whereupon, dD off-the-record
(17) discussion was held. )
(18) MR. NE!{MAN: Michel1e, I don' t know
(1e) if you understood it, but he asked if you
(20r, were injured in this accident, December
(21) 20th of 2022.
(22) THE WITNESS: Yes. I made a I
(23) got confused a bit, but y€s, I was
(24) inj ured .
(25) O. A1I right, sorry about that. I
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JuIy 26, 2023
(1) PARKO
(2) don't mean the one with your mother because
(3) that's I'm not rea11y interested
separate. in
(4) what happened to your mother in that prior
(s) testimony that. you had. f'm asking about this
(6) accident. Okay?
(1) A. Okay.
(B) a. AII right., great.
(e) MR. LEZNIKOVA: Just go off the
(10) record for a second.
(11) (llhereupon, BD o ff - the - record
(12) discussion was he1d. )
(13 ) O. On December 20, 2022, were you
(r+1 living with anybody or were you living on your
(15 ) own ?
(16 ) A. I was living with my mom, my son,
(17) and my younger brother.
(18) O. How ol-d is your son?
(1e ) A. My son is ten.
(20) O. And how old is your ofder brother?
(2r) A. He's 22.
(221 O. What is the name of your older
(23) brother?
(24) A. oh, my younger brother.
(2s) O. How ol-d is your younger brother?
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July 26, 2023
(1) PARKO
(2) A. Hets 22.
(3) O. What is the name of your younger
(4) brother?
(s) A. Marvin.
(6) O. Last name?
(7) A. Darko, D-A-R-K-O.
(8) O. And is your last name spelled with
(e) a P?
(10 ) A. Yes.
( 11) O. Okay. What is your mother's name?
(r2) A. My mom's name is Lisa I L-I-S-A,
(13) D-A-R-K-O, as in Darko, for the last name.
(14) O. Okay. And back on December 20,
(1s) 2022, ofl that d"y, did either your brother or
(16 ) mother have, lease, or own a car of their own?
(17) A. No.
(18 ) O. And how old are you?
(1e ) A. I rm 30 years ol-d.
(20) O. I'm going to ask for your date of
(2r) birth, but before you give it to me I'm goinq to
(22) instruct the court reporter to redact everything
(23) except for the year for your privacy. But you
(24) can go ahead, Ms. Parko, and give me your full
(25) date of birth.
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IPage 20)
JuIy 26, 2023
(1) PARKO
(2) A. rt' s xx/xx/ L992 .
(3) O. And don't give it to me just yet,
(4) but do you have a Social- Security number?
(s) A. Yes.
(6) O. Itm qoing to instruct the court
(7) reporter to redact the entire thing for the
(8) privacy of the witness, but you can go ahead and
(e) give me your Social- Security number, just nice
(10) and sl-ow so I can take it down, please. Thanks.
(11) A. XXX-XX-XXXX.
(L2) O. Where were you born?
(13) A. Bronx, New York.
(14) O. Back on December 20th, 2022 when
(1s) the accident happened, were you the driver of
(16 ) the car ?
(17 ) A. Yes.
(18) O. Was that your car?
(1e) A. Yes.
(20) O. What was the maker rodel, year, and
(2L) color of that car?
(22) A. It's a 2OLG Toyota Rav 4 XLE and
(23) the color is silver.
(24) MR. LEZNIKOVA: Irm just going to
(2s) go off the record for a second.
Lexitas Court Reporting
800-618-0]-66
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 2I)
July 26, 2023
(1) PARKO
(2) (Wbereupon, irD off-the-record
(3) discussion was he1d.)
(4) O. Vihen this accident happened, were
(s) you wearing a seatbel-t ?
(6) A. Yes.
(7) O. And was that a seatbel-t that went
(B) over your Ieft shoufder and over your waist?
(e) A. Yes.
(10 ) O. The vehicl-e that was involved i-n
(11 ) this accident, your vehicle, the 20I6 Toyota Rav
(r2) 4 XLE in silver, on the day of the accident was
(13 ) that vehicl-e insured?
(14) A. Yes.
(1s) O. And which company was it insured
(16) by?
(17) A. GEICO.
(18) MR. LEZNIKOVA: This is for the
(1e ) record for your attorney, just because I
(20) donrt know what the policy or S.U.M.
(2L) limits might have been on that GEICO
(22) policy, the Defendants just demand the
(23) declarations page and any S . U. M.
(24) endorsement. To the extent that it
(25) exceeds our policy, it could provide
Lexitas Court Reporting
800-618-0L66
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
IPage 22]
July 26, 2023
(1) PARKO
(2) additional coverage to the Plaintiff and
(3) serve as a form excess coverage for my
",
(4) cl ient .
(s) MR . NEI{MAN : Jus t f ol low up in
(6) writing with any demands, that's fine.
(1) O. Did this accident happen on the
(B) Bronx River Parkway?
(e) A. Yes.
(10) A. Okay. And did it. happen in an exit
(11) or close to some exit, to your knowledqe?
(12) A. It happened at an exit.
(13) O. Okay. Which exit?
(!4) A. It was the East 177th and Sheridan
(1s) exit.
(16) O. Okay. And is Sheridan spelled
(17) S-H-E-R- I -D_A_N?
(18) A. Yes.
(1e) O. Okay. And is the Bronx River
(20) Parkway a two-way or a one-way?
(21) A. It's a two-way highway.
(22',| o. And which direction were you
(23) heading in when the accident happened?
(24) A. I was heading south.
(25) O. Okay. Where were you coming from
Lexitas Court Reporting
800-618-0166
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023
fPage 23)
July 26, 2023
(1) PARKO
(2) before the accident happened?
(3) A. I was coming from Bay Plaza MalI.
(4) a. Is that afso in the Bronx?
(s) A. Yes.
(6) o. And where were you heading if the
(7) accident didn't happen?
(B) A. I was coming home.
(e) O. Okay. Around what time did this
(10) acci-dent happen ?
(11) A. It happened around noon.
(r2) o. Okay. And when the accident
(13) happened, at that moment, was it raining or
(14) snowing?
(1s) A. No.
(16) O. In the l-ocation where the accident
(17) happened, was the ground flat and levef or was
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Ruling
Lykkeberg vs. Wilburn, et al.
Jul 17, 2024 |
23CV-0202789
LYKKEBERG VS. WILBURN, ET AL.
Case Number: 23CV-0202789
This matter is on calendar for review regarding status of arbitration. This matter was stayed by
the Court’s Order dated January 23, 2024 pending conclusion of a FINRA arbitration between the
parties. No status report has been filed. An appearance is necessary on today’s calendar.
Ruling
CLAIRE STANFORD VS THE PALISADES ASSOCIATION, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 18, 2024 |
22LBCV00894
Case Number:
22LBCV00894
Hearing Date:
July 18, 2024
Dept:
S27
1.
Background Facts
Plaintiff, Claire Stanford filed this action against Defendants, The Palisades Association, Inc., Long Beach Home Solutions, Inc., Boris Bogomolny, and Renee Bogomolny for damages arising out of a fall down a staircase at her apartment complex.
2.
Motion for New Trial
a.
Trial
This case was tried to a jury from 4/16/24 to 4/22/24.
At the conclusion of the trial, Plaintiff made a motion for a mistrial, which was denied.
The jury found in favor of Defendants and against Plaintiff.
On 5/13/24, the Court entered judgment in favor of Defendants.
b.
Grounds for Motion
Plaintiff moves for a new trial based on:
(1) Irregularity in the proceedings of the Court (CCP § 657(1));
(2) Irregularity in the proceedings of the jury (CCP § 657(1));
(3) Irregularity in the proceedings caused by (adverse party) (CCP § 657(1));
(4) Improper orders of the Court (CCP § 657(1));
(5) Abuse of discretion by the Court (CCP § 657(1));
(6) Accident or surprise, which ordinary prudence could not have guarded against (CCP § 657(3)); and
(7) Error in law occurring at the trial and objected to by the moving party (CCP § 657(7)
Substantively, Plaintiff argues a new trial is necessary because:
(1)
The Court did not allow her to demonstrate how she fell;
(2)
The Court did not allow Plaintiffs expert to use demonstrative evidence to show the severity of the condition on which she fell; and
(3)
The Court did not allow Plaintiff to submit testimony showing the reasonableness of her medical bills.
c.
Initial Note
While Plaintiffs notice of motion indicates she is moving for a new trial on seven delineated grounds, her points and authorities are not clear concerning what ground she is moving on.
§III(A) of her brief purports to brief irregularities in the proceedings under §657(1).
Her very short argument thereafter incorporates other aspects of §657(1).
The Court notes that the full text of §657(1) provides for a new trial when there is: Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
The Court will do its best to rule on the motion based on all of the asserted grounds, but is doing so without the benefit of meaningful briefing from Plaintiff concerning which grounds she contends support which substantive argument in her moving papers.
d.
Law Governing Motion for New Trial Under §657(1)
A new trial may be granted for:
1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
CCP §657(1).
As will be seen, irregularity is broadly interpreted to encompass many forms of misconduct and error that would also be ground for mistrial or reversal on appeal.
Irregularity in the proceedings of the court: This phrase refers to conduct other than orders and rulings and reaches matters that may have to be proved by affidavit rather than by exceptions on the record during trial.
It includes personal misconduct by the trial judge or any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected.
Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1226, 1229-1230.
CCP § 657(1) also authorizes new trials based on any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
CCP § 657(1).
Evidentiary rulings by which relevant evidence was erroneously excluded (or conversely, irrelevant evidence erroneously admitted) may be ground for a new trial if prejudicial to the moving party's right to a fair trial.
Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294.
This may include the erroneous exclusion of expert testimony.
People ex rel. Dept. of Transp. v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1084-1086.
e.
Demonstrative Evidence
Plaintiffs first argument is that the Court erred in refusing to permit her expert to use demonstrative evidence to show the severity of the condition on which she fell.
Plaintiff contends she offered to present the dog, the leash, and the laundry basket for the purpose of showing the weight of each object and to show she could not have been tripped by the leash, which was retractable.
Plaintiff cites various cases from more than fifty years ago that collectively establish the trial court has the discretion to permit introduction of demonstrative evidence when it will clarify a witnesss testimony.
As an initial note, Defendants correctly establish, in their opposition, that Plaintiff failed to provide evidence sufficient to support her position in this regard.
The sole evidence is her attorneys declaration, which conclusively states that she was not allowed to introduce this evidence.
Counsel does not state whether and when the evidence was proffered, whether it was proffered in a procedurally proper manner, or what ruling the Court made on any such proffer.
While Defendants address this issue in opposition, Plaintiff fails to address it in reply, effectively conceding the deficiency of the moving papers.
Even if the Court were to find the evidence sufficient, the Court finds any ruling it made in this regard was correct.
Evidence Code §352 permits the Court to exclude any evidence that would be more prejudicial than probative.
Permitting a plaintiff to bring a dog into a courtroom would be highly disruptive and unusual.
Notably, Plaintiff failed to show that she could not simply testify as to the weight of the dog, the weight of the laundry basket, and the retractable quality of the leash, and that this would not be sufficient for the jury to deliberate on the issue.
f.
Dangerousness of Stairs
Plaintiffs next argument is that the Court erred in refusing her to introduce demonstrative evidence showing the dangerousness of the stairs.
Specifically, she contends the Court refused to permit her expert to write the measurements of each individual stair on the photo of the stairs, which would have shown the substantial deviations from the building code.
Plaintiffs second argument suffers from the same evidentiary deficiency as her first argument.
She fails to show that she attempted to introduce this evidence, how she attempted to do so, or what ruling was made concerning this evidence.
Additionally, the Court finds Plaintiff was welcome to introduce testimony about any deviations from the building code, and Plaintiff failed to show any order precluding her from writing this testimony on a photograph was not prejudicial.
g.
Reasonableness of Medical Bills
Plaintiffs third argument is that the Court erred in refusing to permit her expert, Dr. Ghodadra, to testify concerning the reasonableness of her medical bills.
Plaintiff argues, in her moving papers, that this error was prejudicial because she was not allowed to show the severity of her damages or the necessity of her treatment.
This argument fails for the same reason stated above; again, Plaintiff did not provide any evidence showing what testimony she attempted to introduce, how she attempted to do so, or what court order was issued precluding her from doing so.
Additionally, the jury verdict was rendered based on a finding that there was no dangerous condition, and therefore any evidence of medical damages was not relevant to the verdict.
Plaintiff, in reply, argues this evidence was necessary for credibility reasons.
She did not make this argument in her moving papers, and cannot raise it for the first time in reply.
h.
Conclusion
Plaintiffs motion for a new trial is denied on both procedural and also substantive grounds, as discussed fully above.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
Ruling
STEPHANIE HUGHES VS CULVER SALAR FAMILY INVESTMENT, LLC
Jul 17, 2024 |
6/18/2022 |
23SMCV01089
Case Number:
23SMCV01089
Hearing Date:
July 17, 2024
Dept:
I The demurrer is OVERRULED.
While defendants statement of law is correct in that it is hard to see who the individual is that is alleged to be specifically responsible, there is enough here for pleading purposes.
The specifics can be fleshed out in discovery and for now there are allegations, albeit general, as to the defendants acting together.
In short, these issues are better raised by way of a summary judgment motion or at trial.
The court is also having trouble understanding how the demurrer is timely.
The court notes three discovery motions on file.
That does not bode well this early in the case.
The court has not worked up those motions, but for the parties aid, the court appends its guidelines on discovery responses, meet and confers, and IDCs.
The court encourages IDCs where both parties would like to resolve the matter informally and in good faith, and often the failure to participate in an IDC can have an impact on the recovery or propriety of any sanctions request.
DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I
The guidelines below are not rules and they are not universally applicable in all cases.
Rather, they are guidelines as to the courts general views.
Each case, of course, will be decided on its own facts and circumstances, and some of the guidelines below may not apply to particular circumstances.
That said, the court does take these views seriously.
Discovery Responses
The Court provides the following guidance concerning its general views on some common issues regarding responses to written objections.
The Court has noticed that many attorneys view objections and the manner of making them in a way different than does the Court.
To avoid these common pitfalls, the Court offers the following in addition to the provisions of the Litigation Guidelines appended to the Los Angeles County Superior Court Local Rules.
First
, General Objections are not permitted.
The Code of Civil Procedure does not provide for them, and therefore they are disregarded by the Court.
Any response that incorporates the General Objections is improper by definition.
Second
, the Court often views boilerplate objections as being in bad faith.
A bad faith response is no response at all in the Courts view.
Therefore, making boilerplate objections does not preserve those objections nor does it constitute a good faith response to written discovery.
A bad faith response is viewed by the Court for what it is: bad faith.
The objections will be stricken and deemed waived.
In the context of a Request for Admission, such objections may lead to a finding that the request is deemed admitted, although that will depend on the facts of the particular case and the specific discovery at hand.
Objections should be tailored to each specific request.
If a request truly is overbroad, then an objection to that effect is proper.
But such an objection is best accompanied by some reasonable limitation by the responding party that will narrow the request appropriately and (as narrowed) provide a substantive response rather than a mere statement that the request is overbroad.
The same is true as to an objection that a request is unduly burdensome.
The Court also notes that the party asserting that a request is unduly burdensome has the obligation at some point to provide an evidentiary basis for the objection, including evidence as to what the burden of compliance would be.
(
West Pico Furniture Co. v. Superior Court
(1961) 56 Cal.2d 407.)
Often such an objection will include a statement by the responding party as to a narrower request that would not be unduly burdensome and provide substantive responses as so limited.
Objections that a request is vague and ambiguous must set forth the vague and ambiguous term as well as the responding partys reasonable interpretation of that term as well as a statement that, so interpreted, the response will provide the discovery requested.
If there is no reasonable interpretation possible (which is a rare situation), then the responding party must so state.
Objections as to privilege must set forth the basis explaining why the information sought is in fact privileged.
Where a privilege is asserted in the context of a document request, a privilege log must accompany the answer or be provided within a short and reasonable time after the answer.
Where the objection is made in the context of an interrogatory, it must be clear from the objection the scope of the information being withheld.
If there is no log, there should be no privilege objection to a document request (meaning that a prophylactic privilege objection is the equivalent of no objection; it preserves nothing).
There are some rare exceptions, such as where the entire point of the discovery is to get allegedly privileged information or where compliance would require a log that is in essence an index of counsels file.
In that situation, the log is unnecessary, but the assertion should be made that the request is in that rare context.
Third
, if an objection is made to the discovery but a response is being given, it must be clear whether information or documents are in fact being withheld on the basis of the objections.
If the objections are clear and done in the manner set forth above, with statements in the objection as to a narrowing that will make the request proper, this is usually a simple task.
The objections themselves state the limit and the response will be full and complete as limited.
But where the objections are not so clear, the response must clearly state whether any information or document is being withheld on the basis of the objection and, if so, the extent of the withholding.
Accordingly, in those situations, phrases like Notwithstanding and subject to the foregoing objections, responding party states as follows are improper.
Those sorts of phrases make the verification useless, as the verifier can always fall back on the objections as the reason why a document was not produced or information was not disclosed.
On the other hand, where the line of demarcation is clear, the verification will still serve its purpose.
Fourth
, for document requests, the substantive response must conform to the Code.
There are relatively tight rules as to what the response must say, and the response must say it.
For example, where a responding party is not producing documents because they are not in the partys possession, custody, or control, the responding party must verify that a diligent search has been made and must further provide the information set forth in the Code of Civil Procedure in such cases.
In the case of interrogatories, the responses must also conform to the Code of Civil Procedure and must be made after diligent inquiry.
It is not proper to refuse to respond because the responding party has no personal knowledge.
If the knowledge is hearsay, it must still be disclosed, although it can be qualified to make it clear that it is not based on the verifiers personal knowledge.
Fifth
, the Court frowns on responses that do not conform to the foregoing rules being served with the view that the responses will moot themselves out in the meet and confer process.
That is not how the process works.
A good faith response is required before the meet and confer process begins.
The meet and confer process will (hopefully) bridge the gaps between the parties respective positions.
Further, where a response to a request for documents is made and documents are to be produced subject to certain objections (with the documents withheld properly delineated), the documents should be turned over irrespective of the meet and confer.
The documents are to be produced with alacrity to the extent that there is no objection to them.
What this means is that the response to a discovery request is not a trivial undertaking.
Nabbing the response from the form file is a generally bad idea and can lead to all objections being waived.
The point is that the boilerplate often renders the remainder of the response useless.
The only exception is where it is clear that the substantive response is not in any way limited by the objections.
In that case, the objections do no harm, although they also do no good.
Meet and Confer
The Code of Civil Procedure requires that before a motion to compel further responses or a motion for a protective order is filed, the parties engage in a good faith attempt to resolve their differences.
They are to meet and confer for that purpose.
Only if that effort fails can a motion be brought.
Sadly, many litigants view the meet and confer process as just another procedural hoop through which they must jump in order to bring the motion, similar to the need to include an actual demurrer with the demurrer papers.
The Code requires it, so they do it, but no ones heart is really in it.
That is not sufficient.
Given that, the Court believes it appropriate to set forth how the Court views the meet and confer requirement.
Failure to abide by the guidelines below may well justify denial of the motion or a continuance of it to allow the process to take place.
If one party but not the other refuses to participate as set forth, more likely than not the party refusing to participate will find itself on the losing end of the motion.
The following quotation fairly sums up the Courts own view.
[W]e feel compelled to observe that resort to the courts easily could have been avoided here had
both
parties actually taken to heart Justice Stone's admonitions in
Townsend
that the statute requires that there be a serious effort at negotiation and informal resolution. (
Townsend, supra,
61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]
rgument
is not the same as informal negotiation (
id
at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways (
id.
at p. 1435); and that a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel....
Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (
Id.
at p. 1439.) (
Clement v. Alegre
(2009) 177 Cal.App.4th 1277, 1294, emphasis in original, parallel citations omitted.)
In practical terms, it means as follows.
It is entirely appropriate to begin the process with a letter or other correspondence.
The letter should not include a demand in the form of an ultimatum, but it can certainly include the relief that is being sought with an invitation to meet and confer.
It is also entirely appropriate for the other party to respond with a letter or other correspondence to set forth its position on the issues.
Such an initial exchange can often be helpful to narrow the dispute.
Whether further exchanges make sense will depend on each case and each dispute.
However, at some point, before impasse is reached the process must include an actual meet.
The letters might well suffice to confer, but an exchange of correspondence is not a meeting.
In the COVID-19 era, the meeting can be virtual or telephonic, but a meeting there must be.
The meeting must be attended by a person from each side with the authority to agree to the other sides position without getting further permission from anyone, including the client.
If only the client can give the needed authority, then the client must be available instantaneously at all times during the meeting.
This does not mean that one side or the other must concede, but it does mean that the people meeting have the ability in real and practical terms to strike a deal then and there.
The parties should approach the meet and confer process as a problem-solving exercise.
The purpose of the meet and confer is not to convince the other side of the bankruptcy of its position; rather the purpose is to reach an agreement by which the party seeking discovery is able to obtain the information that it reasonably needs and the party providing discovery is not put to an undue burden or forced to provide unnecessary information that might infringe on a privacy interest or disclose a competitive trade secret or the like.
At the conclusion of the meet and confer, the parties should have an agreed statement as to the outcome.
If the outcome is a total impasse, then they should agree on that.
If they have resolved some or all of their differences, then they should statein writingwhat that agreement is so that there will be no confusion later.
Often, an agreement will be without prejudice to a further request by the propounding party for more information after that party receives the responses.
If a motion is still required, the declaration in support should describe with some detail the meet and confer process.
While the Court is not interested in the back and forth, the court is interested in when the meeting took place, who was there, and how long it lasted.
All communicationsin writing or oralmust be civil, polite, and professional.
Name-calling and accusations are devices that undermine the process; they do not further it.
A party engaging in such activity generally is not acting in a good faith effort to reach an agreement.
Informal Discovery Conferences
The court generally will encourage an Informal Discovery Conference (IDC) before any party files a motion to compel further responses.
The goal of the IDC is to get to yes.
To achieve that goal, the court adopts the following.
Five Court days before the IDC, the parties will submit a JOINT statement no more than eight pages total (on pleading paper) setting forth their respective positions.
Where a similar issue is raised that will resolve many requests, it can be dealt with as a single issue.
The IDC follows the good faith meet and confer.
It is not a substitute for the meet and confer.
The courts time is to be spent only on issues after the parties have tried to narrow the dispute as much as possible.
As stated above, the goal is to get to yes.
This means a few things.
One is that each party must be represented by a person who has the authority to agree to the other sides position without getting further permission.
It need not be lead counsel and that authority need not be exercised.
But the people at the conference must have that authority.
If only the client has that authority, then the client will be present physically with counsel in an adjacent room without distraction after initial introductions are made.
All IDCs are off the record.
That means that whatever anyone says at the IDC will not be binding or quoted back at the party unless an agreement is struck.
It is very bad form to quote the courts comments at an IDC during a later hearing unless the comments were part of a stipulated order.
All parties have the right to change position if no deal is reached.
The court, for example, might strongly indicate that it believes one side or the other has the better position but rule in a completely different way if there is a formal motion.
Partial agreements that are contingent upon a full resolution are not binding unless a full resolution is reached.
Partial resolutions that are not contingent on a full resolution are binding.
Parties who are suggesting a resolution should make it clear whether their proposal depends upon other resolutions.
Parties should be especially willing to give up sanctions at an IDC if it will resolve the dispute.
That is not a requirement, but the courts experience is such that if a party is really going to insist on a sanction, the likelihood of a resolution is very low.
It is likely that no party will get everything that it wants.
The goal is to abide the Code, but at the same time make sure that the party seeking discovery is not creating busy-work or demanding a lot of work for no benefit (or virtually no benefit).
The responding party might well have the right (should it come to motion practice) to avoid some aspect of the discovery, but in order to get to a resolution it might be in the responding partys interest to be willing to offer something.
Conversely, the propounding party might have the right (should it come to motion practice) to get some aspect of discovery, but in order to get to a resolution it might be in the propounding partys interest to forego aspects of the discovery that are not really needed, perhaps reserving the right to seek that information at a later time should it prove necessary.
The point is not to have the Court simply hammer away at the opponent.
That might happen at a motion, but it is not the goal of the IDC.
No orders will be made except on stipulation.
However, if there is an agreement, the court may well want to make an appropriate order or ask the parties to confirm it in writing.
Parties should take careful notes on any agreements.
Because there are no Court Reporters, it is hard to put an agreement on the record.
However, unless the agreement is confirmed quickly, people have a tendency to forget or to have buyers remorse.
Therefore, it is best to have one party send an immediate confirming email to the other and obtain an agreement.
The court would prefer not to get into the specific wording of the agreement during the IDC unless absolutely necessary.
The IDC process does not work if people view it as just a necessary step to filing a motion.
The court does not see it that wayif it did, then the court would abandon the IDC as a waste of time.
Rather, this is an off-ramp to avoid motion practice and the attendant costs and time.
Hopefully, it is also a way to get discovery more quickly than through formal motion practice.
At the IDC, no matter how hot tempers have run in the past, the court expects all counsel to be polite and civil in tone to one another.
The court will not tolerate rudeness or unnecessary accusations.
They do not move the ball forward and they make it nigh impossible to reach an agreement.
Ruling
Mac Leod VS Singh
Jul 16, 2024 |
Civil Unlimited (Motor Vehicle - Personal Inju...) |
RG20080278
RG20080278: Mac Leod VS Singh
07/16/2024 Hearing on Motion for Protective Order filed by Tesla, Inc (Defendant) in
Department 512
Tentative Ruling - 07/12/2024 Elizabeth Riles
The Motion for Protective Order filed by Tesla, Inc on 05/02/2024 is Granted in Part.
This Tentative Ruling addresses both (1) plaintiffs Norman and Dianna Mac Leod’s
(“Plaintiffs”) Motion to Compel the further deposition of defendant Tesla Inc. (the “Motion to
Compel; and (2) Tesla’s Motion Protective Order re: further deposition of Tesla (the “MPO”).
The Motion to Compel and the MPO are both GRANTED IN PART and DENIED IN PART as
set forth below.
As an initial matter, neither party met their respective obligations to present admissible evidence
in a form that would expedite the Court’s review of the relevant issues in dispute. Tesla’s MPO
and its Opposition to the Motion to Compel make various representations regarding plaintiff
Norman Mac Leod’s and Tesla’s person most qualified (“PMQ”) Vamsi Naraharisetty’s prior
deposition testimony in this action. However, instead of providing relevant portions of these
deposition transcripts for the Court to review and consider, Plaintiff’s counsel makes a hearsay
declaration as to the substance of their respective testimonies.
Similarly, Plaintiffs in their Reply on the Motion to Compel assert that Mr./Ms. Naraharisetty
was unable to provide testimony in connection with Tesla’s shipping operations at the subject
premises where Plaintiffs allege Mr. Mac Leod was injured. (Reply at pp. 2:24-3:2.) However,
the Reply does not provide specific citations to any asserted relevant testimony, nor has Plaintiff
marked the relevant deposition testimony as expressly required by CRC Rule 3.1116(c). Because
the propounding party has not met their obligation to provide specific citations to relevant
evidence or to mark relevant deposition testimony as required by the CRC, and the Court has
limited judicial resources, the Court has not considered any portion of Exh. 8 to the Thompson
Reply Declaration.
Having reviewed all the parties’ respective briefing, the Court ORDERS as follows.
The Court authorizes Plaintiffs to take up to four (4) additional hours of deposition of Tesla’s
PMQ, exclusive of breaks, regarding Tesla’s shipping operations and/or activities at the subject
premises alleged in the Complaint. The Court ORDERS THE PARTIES TO MEET AND
CONFER IN GOOD FAITH regarding a mutually agreeable date for Tesla’s PMQ’s further
deposition to occur no later than Wednesday, August 7, 2024.
The Court DENIES Plaintiffs’ request for any further continuance of the hearing on Tesla’s
dispositive motion, which is presently set for hearing on 9/10/2024.
The Court DENIES Plaintiffs’ request for monetary sanctions in any amount. Plaintiffs did not
serve a Notice of Motion containing a request for monetary sanctions in a specific amount or
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
RG20080278: Mac Leod VS Singh
07/16/2024 Hearing on Motion for Protective Order filed by Tesla, Inc (Defendant) in
Department 512
setting forth the legal basis for the award of sanctions. Even if Plaintiffs had served such a Notice
of Motion, the moving Thompson Declaration declares no facts as to Plaintiffs’ reasonable legal
fees and costs incurred in bringing the present Motion to Compel. Similarly, the Opp. Thompson
Declaration on the MPO contains no evidence regarding Plaintiffs’ fees and costs in opposing the
MPO.
CONTESTING TENTATIVE RULINGS
PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur
remotely via the court’s own video-conferencing system.
Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become
the order of the Court unless it is contested before 4:00 PM on the court day preceding the
noticed hearing date.
To contest a tentative ruling, a party should do the following:
First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and
copy all counsel of record and self-represented parties. The contesting party must state in the
subject line of the email the case name, case number and motion.
Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case
number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this
Ruling" button, enter the party's name and a brief statement of the party's reason for contesting
the tentative, and click "Proceed."
Parties may appear via videoconference, using the Zoom.com website or application.
TO CONNECT TO ZOOM:
Join the meeting using the following link: https://www.zoomgov.com/j/16057661931
Join the meeting by Phone:
Meeting ID: 160 5766 1931
1 669 254 5252, 16057661931# US (San Jose)
1 669 216 1590, 16057661931# US (San Jose)
833 568 8864 US Toll-free
Ruling
MEREDITH CHERRY, ET AL. VS LOS ANGELES UNIFIED SCHOOL DISTRICT, ET AL.
Jul 19, 2024 |
23BBCV01846
Case Number:
23BBCV01846
Hearing Date:
July 19, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
emerson mikasa
, a minor individual, by and through his Guardian ad Litem, MEREDITH CHERRY,
Plaintiff,
v.
los angeles unified school district,
et al
.,
Defendants.
Case No.:
23BBCV01846
Hearing Date:
July 19, 2024
[
TENTATIVE] order RE:
motion for an order compelling mental examination of Plaintiff
BACKGROUND
A.
Allegations
Plaintiff minor Emerson Mikasa (Plaintiff) alleges that he sustained physical, emotional, and psychological injuries on August 18, 2022
[1]
when he was brutally attacked, assaulted, and bullied by another student H.A.D1 (Assailant) at Dixie Canyon Community Charter, an elementary school under the control, operation, management, and supervision of Defendant Los Angeles Unified School District (LAUSD).
Plaintiff alleges that during school hours, he entered the restroom at or near the schools lunch area and was approached by Assailant, who suddenly and without provocation attacked Plaintiff from behind.
Plaintiff alleges that Assailant grabbed him by the collar, threw him to the floor, and struck his head repeatedly.
Plaintiff alleges 4 other students witnessed the event and ran to get help.
Plaintiff alleges that the event was promptly reported to LAUSD and Defendant Silvia Lopez (LAUSD employee, Lopez) that same day.
Plaintiff alleges that on August 19, 2022, he reported the assault to the Los Angeles Police Department.
On August 21, 2022, Plaintiffs mother, Meredith Cherry, emailed Defendants Lopez, Pamela Damonte (Damonte), and Margery Weller (Weller), as well as several other LAUSD employees/representatives regarding the incident.
The complaint, filed August 10, 2023, alleges causes of action for: (1) negligence; and (2) negligent hiring, retention, supervision, and training.
On September 15, 2023, Plaintiff amended the name for Pamela Demonte to Pamela Damonte.
B.
Motion on Calendar
On May 17, 2024, Defendants LAUSD, Lopez, Damonte, and Weller filed a motion to compel Plaintiff Emerson Mikasa to attend a mental examination conducted by Dr. April Thames on July 22, 2024 at 10:00 a.m. or on a mutually agreeable date and time.
On July 3, 2024, Plaintiff filed an opposition brief.
On July 12, 2024, Defendants filed reply papers.
DISCUSSION
Defendants move to compel Plaintiff to attend a mental examination conducted by Defendants retained psychological expert, Dr. April Thames, Ph.D.
On February 23, 2024, defense counsel sent a letter to Plaintiffs counsel requesting that Plaintiff stipulate to an independent medical examination (mental) of Plaintiff, and Plaintiffs counsel responded by asking defense counsel to clarify the scope of the test and requested that Defendants agree to produce the raw data to Plaintiffs counsel.
On March 1, 2024, defense counsel sent a draft stipulation for an order on Plaintiffs mental examination, but declined to provide the raw data to Plaintiffs counsel.
The parties thereafter met and conferred about the mental examination, whereby the parties agreed that Plaintiff would submit to a physical and mental IME, but the parties still disputed whether the raw data from the IME would be provided to Plaintiffs counsel.
Defendants argue that their counsel followed up with Plaintiffs counsel numerous times regarding the draft stipulation, but did not hear back from Plaintiffs counsel until May 13, 2024 when Plaintiffs counsel again requested that raw data be shared.
Despite meet and confer efforts, the parties were unable to agree upon a stipulation, such that Defendants filed this motion.
The parties do not dispute that Plaintiff will submit to a mental IME.
The only issue between the parties regarding the mental IME is whether Plaintiffs counsel is entitled to the raw data from the examination.
In opposition, Plaintiff relies on
Randys Trucking, Inc. v. Superior Court of Kern County
(2023) 91 Cal.App.5th 818, arguing that the disclosure of raw test data falls within the broad discretion of the superior court.
The Court will consider several relevant cases.
In
Carpenter v. Superior Court
(2006) 141 Cal.App.4th 249, Carpenter argued that he should be provided a copy of test questions and answers after his mental examination.
(
Carpenter
, supra, 141 Cal.App.4th at 271.)
The Court stated that [w]
hile there is no express statutory authority for Carpenter's position, neither is there statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the written test questions and answers.
(
Id.
)
The Court discussed whether copyright protections and ethical issues barred production of the test questions and answers.
With regard to copyright protection, the Court acknowledged that components of the MMPI test have been held protected by copyright law.
(
Id.
at 272.)
Based on the evidence provided, the Court found the evidence was insufficient to support a finding that providing a copy of the test would be a copyright infringement.
(
Id.
at 273.)
The publisher of the MMPI tests is Pearson, Inc. and the publisher of the WAIS tests, CVLT-II, and the Ravens Standard Progressive Matrices is Harcourt Assessment, Inc.
(
Id.
)
The Court found that Pearson and Harcourt both suggested satisfactory means by which the test can be provided after a mental examination, whereby the
test questions and answers may be given to plaintiff's counsel or a designated psychologist, subject to a protective order strictly limiting the use and further disclosure of the material, and providing for other safeguards against access that would compromise the integrity and validity of the tests.
(
Id.
at 274.)
Next, the Court discussed the examiners ethical and professional duties.
(
Id.
at 275.)
Under the Standards for Educational and Psychological Testing, examiners are responsible for protecting the security of test materials and psychologists have an obligation not to reproduce copyrighted materials (i.e., test items, ancillary forms, scoring templates, conversion tables of raw scores, and tables of norms) for routine test use without consent of the copyright holder.
(
Id.
)
The Court of Appeal remanded this latter issue to the trial court.
In
Roe v. Superior Court
(2015) 243 Cal.App.4th 138
, the plaintiff sought copies of the written questions and her responses from her mental examination.
In the trial court proceedings, the defendant argued that the examiner objected to the production of testing materials because they were subject to copyright law and defendant sought a protective order in the event the trial court ordered disclosure of the materials.
(
Roe
, supra, 243 Cal.App.4th at 146.)
The trial court ordered the doctor to comply with the statutory language of CCP § 2032.610, stated that the parties should wait and see how the examiner would comply, and told the parties to bring a subsequent motion if they believed she failed to comply with section 2032.610; the order did not mention copyright law.
(
Id.
at 147.)
Plaintiff argued that section 2032.610 implied the production of written testing materials and her answers by analogizing the section to Penal Code, § 1054.3(a)(1), which provides for the results of physical or mental examinations, which defendant intends to offer in evidence at trial. (
Id.
)
However, the Court held that there was no legislative history supporting any finding that this would include raw data.
(
Id.
)
The Court of Appeal found that plaintiffs undeveloped analyses that results of all tests made as stated in CCP § 2032.610 required defendants to deliver the written testing materials and plaintiffs raw answers.
(
Id.
at 149.)
In
Randys Trucking
, the trial court had granted the defendants motion to compel the mental examination of plaintiff and ordered defendants neuropsychologist to transfer raw data and an audio recording of the examination to plaintiffs counsel subject to a protective order.
(
Randys Trucking
, supra, 91 Cal.App.5th at 824.)
The Court of Appeal acknowledged that while there was no statutory authority precluding a trial court from ordering the disclosure of test materials or data when ordering a mental IME, there was also not authority precluding a trial court from exercising its discretion to bar the disclosure of the written test questions and answers.
(
Id.
at 834 [
citing
Carpenter
].)
While
Carpenter
did not decide whether the examiner's ethical and professional obligations precluded disclosing the test questions and the examinee's answers to the examinee, the appellate court recognized the trial court has discretion to order the disclosure of such materials even if no statute authorizes itand this discretion was based on the trial courts broad discretion in discovery matters.
(
Id.
at 835.)
The Court of Appeal discussed both
Carpenter
and
Roe
and found:
At best,
Roe
stands for the proposition that a trial court is not
required
to order the production of test materials or test data under section 2032.610. Under
Carpenter
, however, given the trial court's broad discretion in discovery matters, it retains the discretion to order the production of such materials.
Moreover, although not developed by either party, since section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording.
Where, as here, the trial court ordered the examiner to record the examination, the trial court had discretion to order the examiner to provide a copy to the examinee. Therefore, we conclude the trial court here had the discretion to order the production of the raw data and audio recording, as stated in its order.
(
Id.
at 837.)
The Court of Appeal considered the doctors concerns about producing raw data, but noted that the doctor had not explained why a protective order would not ameliorate those dangers.
(
Id.
)
The Court weighed this against plaintiffs right to take discovery and cross-examine defendants expert witnesses and determined that [w]ithout the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the
neuropsychologist's opinion.
(
Id.
at 838.)
Standards 9.04 and 9.11 of the APA Ethical Standards state:
9.04 RELEASE OF TEST DATA
(a) The term test
data
refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of
test data
. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, "Maintaining Test Security.")
(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
9.11 MAINTAINING TEST SECURITY
The term
test materials
refers to manuals, instruments, protocols, and test questions or stimuli and does not include
test data
as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.
(APA Ethical Standards, Standards 9.04 and 9.11.)
As summarized by the Court in
Randys Trucking
:
Standard 9.04 of the APA Ethical Standards provides that a patient may authorize the release of raw test data to the patient or other persons identified in the release, and Standard 9.11 of the APA Ethical Standards only requires that psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations.
(
Randys Trucking
, supra, 91 Cal.App.5th at 827.)
Based on
Carpenter, Roe
, and
Randys Trucking
, the Court declines to grant the motion outright, and thus it will not order the production of the raw data to Plaintiffs counsel without a protective order.
The motion will be granted subject to the parties entering into a protective order.
As indicated by
Carpenter
, the parties to this litigation are not the copyright holders of the administered tests.
Rather, the copyright holders are the publishers of the tests themselves.
According to
Carpenter
, every effort should be made to restrict access to the materials and testimony regarding the materials to the most limited audience possible, and preferably only to those individuals who are professionally qualified to use and interpret the tests; restrict copying of the test materials; restrict use of the test materials to only to that required for the resolution of the lawsuit; require prompt return and destruction of any copies made of the material at the conclusion of the proceedings, and sealing the record to the extent any portion of the materials are disclosed in pleadings, testimony, exhibit, or any other documents available for public inspection.
(See
Carpenter
, supra, 141 Cal.App.4th at 274.)
Here, entering into a protective order to protect against the public dissemination of the information should sufficiently guard against any copyright concerns.
In her declaration, Dr. Thames states that psychologists do not release raw test data forms, audio recordings of testing, or narrative reports and score summaries to non-psychologists and that she would be willing to exchange raw data to Plaintiffs psychological expert only, who is bound by the same ethical and legal duties as her.
(Thames Decl., ¶7.)
Dr. Thames expresses her concerns that the maintenance of test security will be compromised and would negatively affect the scientific value of psychological evaluations if they are disseminated.
(
Id.
, ¶¶9-10.)
She also opines that Plaintiffs counsel do not need raw data to cross-examine a psychological expert and that a protective order would not afford sufficient protection as counsel could later use the information learned in this case to coach current and future clients.
(
Id.
, ¶¶13-14.)
Dr. Thames states that attorneys lack the professional training and experience to evaluate raw testing and audio recording data and thus she will not agree to releasing raw test data or audio recording of Plaintiff.
(
Id.
, ¶¶18-19.)
Dr. Thames states that if the Court is inclined to order that raw testing and audio recording be transmitted to Plaintiffs counsel, she will recuse herself from the case.
(
Id.
, ¶20.)
Defendants argue that they will be prejudiced if Dr. Thames is forced to recuse herself, as they would not have an expert prior to the preferentially set September 16, 2024 trial date.
(Reply at p.2.)
As discussed above, trial courts have discretion to allow the production of raw test data and audio recordings of mental IMEs.
While Dr. Thames has particular concerns about test security, the Court finds that a protective order will adequately protect against such concerns.
Further, the
Randy Trucking
court recognized Dr. Thames similar concerns that counsel cannot evaluate test materials: W
hile defendants assert plaintiffs' attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.
(
Id.
at 838.)
Thus, the Court will grant the motion such that the data should be produced subject to a protective order.
The protective order shall include the following terms:
(1)
Confidential test materials shall be released only to professionally qualified individuals who are able to obtain, use, and interpret them, as well as counsel in this matter
for the purposes of cross-examination of Defendants retained experts
.
(2)
The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders rights in the material.
(3)
Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.
(4)
The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings,
testimony, exhibit, or any other documents available for public inspection.
(5)
Any copy of the material shall be promptly returned to Defendants and destroyed at the conclusion of the proceedings.
The Court finds that entering into a protective order and sealing documents will prevent the unlawful disclosure of test materials and protect Dr. Thames (or any other retained defense examiner) from engaging in any unethical practice.
Defendants request sanctions in the amount of $2,700 against Plaintiff and his counsel of record.
In light of the ruling on the motion, the Court declines to award sanctions on this motion.
CONCLUSION AND ORDER
Defendants motion to compel Plaintiff Emerson Mikasa to attend a mental examination conducted by Dr. April Thames on July 22, 2024 at 10:00 a.m. or on a mutually agreeable date and time is granted, subject to the parties entering a protective order.
Defendants mental examiner shall be ordered to produce
all test materials, the raw data of Plaintiffs administered tests, and documents, medical records, and audio recordings relied upon by the mental examiner in reaching his conclusions in the report subject to a protective order.
The protective order shall be entered as follows:
(1)
Confidential test materials shall be released only to professionally qualified individuals who are able to obtain, use, and interpret them, as well as counsel in this matter for the purposes of cross-examination of Defendants retained experts.
(2)
The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders rights in the material.
(3)
Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.
(4)
The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings,
testimony, exhibit, or any other documents available for public inspection.
(5)
Any copy of the material shall be promptly returned to Defendant and destroyed at the conclusion of the proceedings.
No sanctions will be awarded.
Defendant shall give notice of this order.
DATED:
July 19, 2024
___________________________
John J. Kralik
Judge of the Superior Court
[1]
Paragraph 13 alleges that the incident occurred on August 18, 2023.
However, different parts of the complaint alleges that the incident occurred on August 18, 2022.
The Court will consider the 2022 date as the date of injury as the complaint was filed on August 10, 2023 (which was before the alleged August 18, 2023 incident date).
Ruling
Adkison, et al. vs. Maughs, et al.
Jul 16, 2024 |
22CV-0201172
ADKISON, ET AL. VS. MAUGHS, ET AL.
Case Number: 22CV-0201172
Tentative Ruling on Order to Show Cause Re: Dismissal: An Order to Show Cause Re: Dismissal (“OSC”)
issued on May 29, 2024 to Plaintiffs Angela Adkison and Elizabeth Boren and counsel J&M Legal Group for
failure to prosecute the action and for their failure to timely enter default. No response has been filed to the OSC.
Plaintiffs have now obtained the defaults of both Defendants. Plaintiffs have also requested a default Court
Judgment but failed to file a supporting declaration pursuant to CCP § 585(d). Plaintiffs request to enter a default
Court Judgment is DENIED. Based on the efforts of Plaintiff, the Court finds that dismissal of this matter would
not be in the interests of justice. The OSC is DISCHARGED. The Court continues today’s review hearing set
for 9:00 a.m. to Monday, October 14, 2024, at 9:00 a.m. in Department 63 for review regarding status of
default judgment. The Court will issue an Order to Show Cause Re: Monetary Sanctions at the continued hearing
date if Plaintiffs have not obtained a default judgment by the continued hearing date. The clerk is instructed to
mail a copy of today’s minute order to Plaintiffs. No appearance is necessary on today’s calendar.
Ruling
CYNTHIA DURAZO ET AL VS. D.R. PATEL INVESTMENTS, LLC, ET AL
Jul 17, 2024 |
CGC22602616
Matter on calendar for Wednesday, July 17, 2024, Line 2, PLAINTIFF CYNTHIA DURAZO, DANIEL MORENO's Motion To Compel Eco Terra Pest Managements Production Of Business Records And Notice Of Hearing. The matter is continued to August 1, 2024 on the court's motion. =(302/JPT).
Ruling
GERALD WACHEL, ET AL. VS TY LABBE, ET AL.
Jul 17, 2024 |
21STCV47525
Case Number:
21STCV47525
Hearing Date:
July 17, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
GERALD WACHEL, et al.
,
Plaintiff(s),
vs.
TY LABBE, et al.
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
21STCV47525
[TENTATIVE] ORDER RE:
DEFENDANTS MOTION TO COMPEL PLAINTIFF GERALD WACHELS RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS SET THREE
Dept. 3
8:30 a.m.
July 17
, 2024
)
On March 20, 2024, the Court continued trial from May 20, 2024, to January 27, 2025, pursuant to an ex parte application filed by defendants Ty Labbe and Liza Gonzalez (collectively, Defendants). The discovery and motion cut-off dates did not track the new trial date, but on June 5, 2024, the parties stipulated to have the instant motion heard on July 17, 2024.
This motion was filed on April 12, 2024. Defendants move for an order compelling plaintiff Gerald Wachels (Plaintiff) to serve verified responses to Request for Production of Documents Set Three without objections within 7 days of the hearing after Plaintiff served unverified hybrid responses containing statements of compliance and objections on April 10, 2024.
The objections are preserved because the portion of the responses containing objections did not need to be verified and were timely filed. (
Food 4 Less Supermarkets, Inc. v. Superior Court
(1995) 40 Cal.App.4th 651, 656.) Furthermore, on July 12, 2024, Plaintiffs counsel, Sacha V. Emanuel, filed a declaration attaching a verification by Plaintiff that was served the same day.
Accordingly, Defendants motion is DENIED as moot.
Moving party to give notice.
Dated this
17th
day of
July
, 2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Document
Lorpue Sampson v. Manuel De Jesus Erroa M.D., Judy Ruiz R.N., Ma Luz Tamoy Locquiao R.N., Muhammed Adagbada R.N., Violetta Vallejo Chunsim L.P.N., Davita Inc. A/K/A Davita Healthcare Partners Inc. D/B/A South Bronx Dialysis Center, Morgan Chen M.D., Thomas Parry M.D., New York City Health And Hospitals Corporaton, Lincoln Medical And Mental Health Center, Beth Israel Medical Center,
Jun 25, 2014 |
George J. Silver
|
Medical Malpractice |
Medical Malpractice |
22930/2014E
Preview
FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 EXHIBIT C FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 lPage 1] July 26, 2023 )j SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------x MICHELLE PARKO, PLAINTIFF, -agai-nst- Index No. 802963/20238 OSO AUTO CORP. and JUAN DANIEL TAVAREZ, DEFENDANTS. ------x : Ju1 y 26, 2023 DATE TIME: 'l-2:L0 p.m. EXAMINATTON BEFORE TRrAL of the Plaintiff, MICHELLE PARKO, taken by the Defendants, pursuant to a Court Order, held via videoconference, before Evelyne Higgins, a Shorthand Reporter and Notary Public of the State of New York. Lexitas Court Reporting 800-618-01,66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 fPage 2) July 26, 2023 (1) (2t APPEARANCES (3) (4) JAMES NEWMAN, ESQ. Attorney f or the Pl-ainti f f (5) MICHELLE PARKO 281,5 Waterbury Avenue (6) Bronx, New York 10461 BY: DEVIN NEWMAN, ESQ. (7) (B) BAKER, McEVOY/ MORRISSEY & MOSKOVITS, P.C (e) Attorneys for the Defendants OSO AUTO CORP. and JUAN DANIEL TAVAREZ (1_0) One MetroTech Center BrookIyn, New York 1,I201, (11) BY: ALLAN LEZNIKOVA, ESQ., of Counsef File #: I723259 (r2) (13) (14) * * * (1s ) (16) (17 ) (18 ) (1e ) (20) (2r) (22) (23) (24) (2s) Lexi-t.as Court Reporting 8 0 0- 61 8-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 fpage 3] July 25, 2023 (1) (2) STIPULATIONS (3) (4) IT IS HEREBY STIPULATED AND AGREED by and (s) between (among) counsel- for the respectj-ve parties (6) hereto, that : (7) (8) A1f rights provided by the C. P. L. R. , incl-uding (e) the ri-ght to object to any question, except as to form, (10 ) or to move to strike any testj-mony at this (these) (11) examination ( s ) , are reserved, and, in addition, the (12) fail-ure to object to any question or to move to strike (13 ) any testimony at this (these) examj-nation (s) shall- not (14 ) be a bar or waiver to make such motion dt, and is (1s ) reserved for the trial of this action; (16 ) (17 ) rT 1S FURTHER STIPULATED AND AGREED by and (18 ) between (among) counsel for the respective parties (1e ) hereto, that this ( these ) examination ( s ) may be sworn (20l- to by the witness (es ) being examined, before a Notary (21) Public other than the Notary Public before whom this (22) (these) examj-nation (s) was (were) begun; but the (23) fai-1ure to do sor or to return the original of this (24') (these) examination (s) to counsel, (2s') STIPULATIONS Lexitas Court Reporting 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 4] July 26, 2023 (1) (2\ sha11 not be deemed a waj-ver of the rights provided by (3) Rul-es 3116 and 3117 of the C.P.L.R., and shall- be (4) controlled thereby; (s) (5) IT IS FURTHER STIPULATED AND AGREED by and (7) between ( among) counsel for the respective parties (8) hereto, that thls (these) examination (s) may be (e) utilized for all purposes as provided by the C.P.L.R.; 1r0) (11) IT 1S FURTHER ST]PULATED AND AGREED by and (12) between (among) counsel for the respective parti-es 1r3 ) hereto, that the filing and certification of the 1r4 ) original of this (these) examination(s) shaII be and 1r5 ) the same hereby are waived; (16 ) (L1) IT IS FURTHER STIPULATED AND AGREED by and (18) between ( among) counsel for the respectj-ve parties 1r9) hereto, that a copy of the within examination (s) shal-l (20) be furnished to counsel representing the witness (es ) (2L) testifying, without charge. (22) (23) STIPULATIONS (24) ]T IS FURTHER STIPULATED AND AGREED by and (2s) between (among) counsel for the respective parties Lexitas Court. Reporting 80 0- 67 8-0156 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 [Page 5] July 26, 2023 (1) (2) hereto, that all rights provided by the C.P.L.R., and (3) Part 221- of the Uniform Rules for the Conduct of (4) Depositions, lncluding the right to obj ect to any (s) questi-onr eXcept as to formr or to move to strike any (6) testimony at this examination is reserved; and in (7) addition, the failure to object to any question or to (8) move to strike any testimony at this examination sha11 (e) not be a bar or waiwer to make such motion dt, and is (10 ) reserved to, the trial of this action. (11) (r2) (13) (14) (1s) 1r6) (17) 1r8) (1e) (20) (2L) (22) (23') 124) (2s) Lexitas Court Report.ing 800-618-0165 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 6] July 26, 2023 (1) (2) VIDEOCONFERENCE STIPULATIONS (3) IT IS HEREBY STIPULATED AND AGREED by and between (4) counsef for af f parties present that pursuant to CPLR (s) section 3113 (d) this deposition is to be conducted by (6) video conference, that the court reporter, all counsel, (7) and the witness are all in separate remote locations (B) and participating via videoconference (Legal-View/Zoom) (e) meeting under the control of Lexitas Court Reportj-ng 1r0) Service, that the offj-cer administering the oath to the (11) Witness need not be in the place of the deposition and (12) the witness shall- be sworn in remotely by the court (13 ) reporter after confirming the wiLness' identi-ty, that (14) this vj-deoconference wil-1 not be recorded j-n any manner (15) and that any recordj-ng without the express written (16) consent of a1l- parties sha11 be considered (17 ) unauthorized, in violation of 1aw, and sha11 not be (18 ) used for any purpose in this 1j-tigation or otherwise. (1e ) (20') IT IS FURTHER STIPULATED that exhibits may be (27t marked by the attorney presenting the exhibit to the (221 wltness, and that a copy of any exhibit presented to a (23) witness shal-.1- be Email-ed to or otherwj-se in possession (241 of all counsel prior to any questioning of a witness (25\ regarding the exhibit in question. A11 parties shall- Lexitas Court. Reporting 800-678-0L66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 lPage 7l July 26, 2023 (1) (2t bear their own costs in the conduct of this deposition (3) by video conference, not withstanding the obligation by (4) CPLR to supply a copy of the transcript to the deposed (s) party by the taking party in civil Iitigation matters. (6) (7) (8) (e) (10) ( 11) (t2l (13) ) (14) (1s) (16) (17) 1r8) (1e) (20') (2rl (22') (23t (241 (2s) Lexitas Court Reporting 800-618-01.66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 8] July 26, 2023 (1) (2t MS. POLLACK: Good morning. My (3) name is Toby iI. Pollackand I'm a notary (4) public in the State of New York, gualified (s) in Nassau County, number 01POs020275. My (6) commission expires on November 15th , 2025. (7) Will the witness please raise their (8) right hand. (e) (Witness complies. ) (10) MS. POLLACK: Do you solemnly swear (11) or affirm that the testimony that you're (72) about to give will be the truth, the whole (13 ) truth, and nothing but the truth, so help (14 ) you God? (1s) THE WITNESS: Yes. (16 ) MS. POLLACK: Please state and (r1) spell your full name for the record. (18 ) THE I{ITNESS: My name is Michelle (1e ) Abu Parko. And itrs spelled (20) M-I-C-H-E-L-L-E, middle name Adu, A-D-U, (2Ll last name is Parko, P-A-R-K-O. (22) MS. POLLACK: And what is your (23) current address? (24) THE !{ITNESS : It' s 432 East 162nd (2s) Street, Bronx, New York 10451, Apartment Lexitas Court Reporting 800-618-0L66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 9] July 26, 2023 (1) (2) l_ 0 -o, as 1n orange. (3) MS . POLLACK: Thank you. (4) MICHEL L E P A R K O, called as a witness, (s) having been first duly sworn by a Notary Public of the (6) State of New York, was examined and testified as (7) f ollosrs: (B) EXAMINATION BY (e) MR. LEZNIKOVA: (10) O. Please state your name for the (11) record. (12) A. Michelle Parko . (13 ) O. Where do you reside? (14 ) A. 432 East 162nd Street, Bronx, New (1s ) York 10451, Apartment 10-O, as in oranlte. (16 ) O . Good afternoon, Ms . Parko . My name (r7 ) is Al-1an Leznikova. f'm of counsel- to Baker, (18 ) McEvoy & Moskovits and we represent the (1e ) Defendants in this case. I 'm golng to go over (20t some brief instructi-ons with you before we begin (27) some questions. (22t Just to give you an overview, and (23) it's not always in the sorter, but for the most (24) part I I m going to ask you a 1ittle bit about (25) your background, then I'm going to try to get Lexitas Court Reporting 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 10] July 26, 2023 (1) PARKO (2) your side of the accident that you're here for (3) today, how it happened according to your and (4) then I want to find out how it's affected you. (s) But before I do all that, I'm just going to qo (6) over some brief instructions so that we're on (7) the same page. (8) Itm just going to ask that all of (e) your responses be verbaf and spoken. As you can (10) see, there's a court reporter here, Ms. Higgins, (11) who has a chaflenging job to take down (r2) everything that we're saying and put it in the (13) transcript . In order for her to do that r we (14) need to have verbal, spoken responses from you. (1s) Sometlmes people say things like uh-huh and (16 ) uh-uh, you know, when they're speaking casually (r1) as human beings, but today because everything is (18) being taken down in the transcript, we j ust need (1e ) to make sure we have words like y€s, nor maybe, (20) you know r dctual words. Okay? (2r) A. I understand. (22) O. A11 right. And j ust as you.'ve (23) correctly doner dnswered verbally and waited for (24) me to finish speaking before you responded, I (25) ask that you continue to do so. It becomes very Lexitas Court Reporting 800-518-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 I Page 111 July 26, 2023 (1) PARKO (2) difficult if we talk over each other. Sometimes (3) I might ask you a question or be in the middle (4) of a question, and the answer might seem realIy (s) obvious to you because you're invol-ved in this. (6) But just keep in mind I wasn I t invol-vedr so (7) there's a lot of things I don't know, and please (8) let me finish asking my question and I promise (e) you f'm qoing to give you a chance to answer my (10 ) question. Okay? (11 ) A. Understood. (r2) O. For the most part, i-t's going to be (13) a question-and-answer format. I ask you (14 ) questions, you don't ask me questions; you give (1s) me answers, I donrt give answers myself. So we (16) have different roles today. If there comes a (17) point in time and I ask you a question and you (18 ) don't know or you don't remember somethinq, (1e) please don't guess, just Iet me know. If you (20) don't know or you don't remember something, (2r) we're al-I human beings and we can't know (22) everything. Okay? (23) A. Understood. (24) O. If there comes a point in time and (25) f ask you a questionr you just don't understand Lexitas Court Reporti-ng 800-618-0L66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 I Page 12l July 26, 2023 (1) PARKO (2) my question, pfease Iet me know if you don't (3) understand my question and to the best of my (4) abilities I'l-l- do my best to rephrase it f or (s) you. Okay? (6) A. Okay. (7) O. If at some point during this (8) process you need to take a break, whether itrs (e) to refresh yourseff, use the restroom r or maybe (10) you're j ust tired of listening to re r which (11) happens, j ust l-et me know i f you need to take a (r2) break, approximately how long you need so that (13) we aII know when to come back, and I just ask (14 ) that if I've already begun to ask a question or (1s) I have asked a question, to the best of your (16 ) abilities if you coul-d just answer that question (17) first before you take a break. Okay? (18 ) A. Okay. (1e ) O. Al-1 right. And al-so during this (20) deposition, I just need you to remain in the (21) room that you're in by yourseff. Is that okay (22) with you? (23) A. Yes. (24) O. Okay. And please, Irm sure you (2s) probably won't, but just in case, I have to say Lexitas Court Reporting 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 Page 131 I July 26, 2023 (1) PARKO (2) it. While this deposition is happening, please (3) don I t record usr don I t, Iike, Facebook (4) livestream this l-ike that. or anything PartIy (s) because Irm camera shy, but more importantly (6) because this is j ust for the parties involved in (7) this case. Okay? (8) A. Okay. (e) O. It protects your privacy and (10) everything that we're doing between us and the (11) courts. A11 right? (L2) A. Okay. ( 13) O. AII right, great. There may come a (14) point in time that I ask you a question and the (1s) best you can do is approximate or estimate. (16) That' s okay, j ust please let me know if it's an (17) approximate or estimate so that the record is (18) clear it might not be exact. Okay? (1e) A. Okay. (20) O. Any other answers you give, I'm (2L) just going to assume it's based on your (22) knowledge and recoll-ection unless you te11 me (23',) otherwise. AII right? (24) A. Okay. (25) O. AII right, great. How tall are Lexitas Court Reporting 800-678-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 I Page L4) July 26, 2023 (1) PARKO (2) you ? (3) A. I rm five-three. (4) O. How much do you wei-gh now? (s) A.Irm 160 pounds. (6) O. Back on December 20 in the year of (7) 2022, were you invol-ved in a car accident ? (8) A. Yes. (e) O. And back then, did you also weigh (10) about 160 pounds? (11) A. Yes. (L2) O. Okay. The address where you (13 ) currentJ-y l-ive, is that where you were Iiving (L4) back on December 20, 2022? (1s) A. Yes. (16) a. Okay , gr eat. The next question I 'm (17) going to ask you, f don't mean any offense by (18) it, but as your attorney probably knows, when I (1e ) was being sworn in or appfying for the bar, as (20) he was, we're all asked whether we've been (2L',) convicted of a crime. So my question to you is, (22) have you ever been convicted of a cr j-me ? (23) A. No, I have not. (24) O. AII right, thanks . And what I s your (2s) highest level- of education ? Lexitas Court Reporting 800-678-01,66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 15] JuIy 26, 2023 (1) PARKO (2) A. I have a masters degree in (3) heal thcare administration. (4) a. And from which universj-ty or (s) coll-ege? (6) A. Grand Canyon University. (7) a. And where i-s that Iocated? (B) A. That's located in Phoenix, Arizona. (e) o. When did you get that deqree? (10) A. August of 2O2L. (11) O. Okay. Are you currentJ-y employed? (r2) A. Yes, I am. (13) O. What are you employed doing? (14) A. I am a personal care assistant for (1s) my mother. (16) o. Are you employed doing anything (17) else? (18 ) A. No. (19) O. How many hours a week do you work? (20) A. 40. (2Ll o. How long have you been doing that (22) for? (23) A. I've been doing it for five years. (24) o. Is there an agency thatrs your (25) employer officj-aIJ-y? Lexitas Court Reporting 800-678-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 I Page r6l July 26, 2023 I (1) PARKO (2') A. Yes. (3) a. Which agency? (4) A. Heart to Heart Home Care. (s) a. Have you been with Heart to Heart (6) these five years that you have been doing this (7) work for your mom? (B) A. Yes. (e) A. And from December 20, '22, Okay. (10) from that date up until now, have you been ( 11) employed doing anything else besides this? (L2) A. No. (13) A. Okay. And prior to today, have you (14) ever testified under oath in a deposition or in (15) court before? (16) A. Yes. (17) O. When was the last time you did (18) that ? (1e) A. I would say about four years ago. (20) O. Okay. And what was the matter that (2r) you testified in or what was it regarding? (22) A. It didn't involve me directly, (231 so... (24) O. Okay. (2st MR. NE!{MAN: ilust tell him what it Lexi-tas Court Reporting 800-618-0L66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 fPage 771 July 26, 2023 (1) PARKO (2) lta s about, Miche1J-e. (3) A. It rilas about my mom. (4) O. Okay. You were, like, a witness or (s) something? (6) A. Yes. ('t ) O. Okay. I understand. And besides (B) that, have you testified under oath in anything (e) efse before this deposition today? (10) A. No. (11) O. Okay. And in the December 20, 2022 (12) accident, w ere you inj ured? (13 ) A. No. (14) MR. LEZNIKOVA: Just go off the (1s) record one second. (16) (Whereupon, dD off-the-record (17) discussion was held. ) (18) MR. NE!{MAN: Michel1e, I don' t know (1e) if you understood it, but he asked if you (20r, were injured in this accident, December (21) 20th of 2022. (22) THE WITNESS: Yes. I made a I (23) got confused a bit, but y€s, I was (24) inj ured . (25) O. A1I right, sorry about that. I Lexrtas Court Reporting 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 I Page r8l JuIy 26, 2023 (1) PARKO (2) don't mean the one with your mother because (3) that's I'm not rea11y interested separate. in (4) what happened to your mother in that prior (s) testimony that. you had. f'm asking about this (6) accident. Okay? (1) A. Okay. (B) a. AII right., great. (e) MR. LEZNIKOVA: Just go off the (10) record for a second. (11) (llhereupon, BD o ff - the - record (12) discussion was he1d. ) (13 ) O. On December 20, 2022, were you (r+1 living with anybody or were you living on your (15 ) own ? (16 ) A. I was living with my mom, my son, (17) and my younger brother. (18) O. How ol-d is your son? (1e ) A. My son is ten. (20) O. And how old is your ofder brother? (2r) A. He's 22. (221 O. What is the name of your older (23) brother? (24) A. oh, my younger brother. (2s) O. How ol-d is your younger brother? Lexitas Court Reporting 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 I Page 191 July 26, 2023 (1) PARKO (2) A. Hets 22. (3) O. What is the name of your younger (4) brother? (s) A. Marvin. (6) O. Last name? (7) A. Darko, D-A-R-K-O. (8) O. And is your last name spelled with (e) a P? (10 ) A. Yes. ( 11) O. Okay. What is your mother's name? (r2) A. My mom's name is Lisa I L-I-S-A, (13) D-A-R-K-O, as in Darko, for the last name. (14) O. Okay. And back on December 20, (1s) 2022, ofl that d"y, did either your brother or (16 ) mother have, lease, or own a car of their own? (17) A. No. (18 ) O. And how old are you? (1e ) A. I rm 30 years ol-d. (20) O. I'm going to ask for your date of (2r) birth, but before you give it to me I'm goinq to (22) instruct the court reporter to redact everything (23) except for the year for your privacy. But you (24) can go ahead, Ms. Parko, and give me your full (25) date of birth. Lexitas Court Reportj-ng 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 20) JuIy 26, 2023 (1) PARKO (2) A. rt' s xx/xx/ L992 . (3) O. And don't give it to me just yet, (4) but do you have a Social- Security number? (s) A. Yes. (6) O. Itm qoing to instruct the court (7) reporter to redact the entire thing for the (8) privacy of the witness, but you can go ahead and (e) give me your Social- Security number, just nice (10) and sl-ow so I can take it down, please. Thanks. (11) A. XXX-XX-XXXX. (L2) O. Where were you born? (13) A. Bronx, New York. (14) O. Back on December 20th, 2022 when (1s) the accident happened, were you the driver of (16 ) the car ? (17 ) A. Yes. (18) O. Was that your car? (1e) A. Yes. (20) O. What was the maker rodel, year, and (2L) color of that car? (22) A. It's a 2OLG Toyota Rav 4 XLE and (23) the color is silver. (24) MR. LEZNIKOVA: Irm just going to (2s) go off the record for a second. Lexitas Court Reporting 800-618-0]-66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 2I) July 26, 2023 (1) PARKO (2) (Wbereupon, irD off-the-record (3) discussion was he1d.) (4) O. Vihen this accident happened, were (s) you wearing a seatbel-t ? (6) A. Yes. (7) O. And was that a seatbel-t that went (B) over your Ieft shoufder and over your waist? (e) A. Yes. (10 ) O. The vehicl-e that was involved i-n (11 ) this accident, your vehicle, the 20I6 Toyota Rav (r2) 4 XLE in silver, on the day of the accident was (13 ) that vehicl-e insured? (14) A. Yes. (1s) O. And which company was it insured (16) by? (17) A. GEICO. (18) MR. LEZNIKOVA: This is for the (1e ) record for your attorney, just because I (20) donrt know what the policy or S.U.M. (2L) limits might have been on that GEICO (22) policy, the Defendants just demand the (23) declarations page and any S . U. M. (24) endorsement. To the extent that it (25) exceeds our policy, it could provide Lexitas Court Reporting 800-618-0L66 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 IPage 22] July 26, 2023 (1) PARKO (2) additional coverage to the Plaintiff and (3) serve as a form excess coverage for my ", (4) cl ient . (s) MR . NEI{MAN : Jus t f ol low up in (6) writing with any demands, that's fine. (1) O. Did this accident happen on the (B) Bronx River Parkway? (e) A. Yes. (10) A. Okay. And did it. happen in an exit (11) or close to some exit, to your knowledqe? (12) A. It happened at an exit. (13) O. Okay. Which exit? (!4) A. It was the East 177th and Sheridan (1s) exit. (16) O. Okay. And is Sheridan spelled (17) S-H-E-R- I -D_A_N? (18) A. Yes. (1e) O. Okay. And is the Bronx River (20) Parkway a two-way or a one-way? (21) A. It's a two-way highway. (22',| o. And which direction were you (23) heading in when the accident happened? (24) A. I was heading south. (25) O. Okay. Where were you coming from Lexitas Court Reporting 800-618-0166 FILED: BRONX COUNTY CLERK 10/18/2023 03:16 PM INDEX NO. 802963/2023E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/18/2023 fPage 23) July 26, 2023 (1) PARKO (2) before the accident happened? (3) A. I was coming from Bay Plaza MalI. (4) a. Is that afso in the Bronx? (s) A. Yes. (6) o. And where were you heading if the (7) accident didn't happen? (B) A. I was coming home. (e) O. Okay. Around what time did this (10) acci-dent happen ? (11) A. It happened around noon. (r2) o. Okay. And when the accident (13) happened, at that moment, was it raining or (14) snowing? (1s) A. No. (16) O. In the l-ocation where the accident (17) happened, was the ground flat and levef or was