Preview
INDEX NO. 150886/2014
(FILED: NEW YORK COUNTY CLERK 0471772014)
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/17/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------- Index No. 150886/14
ANZHELLA RABAYEVA, (ECF)
Plaintiff,
Vv ANSWER TO COMPLAINT
140BW, LLC., ABM INDUSTRIES, INC. A/K/A
“AMERICAN BUILDING MAINTENANCE", UNION
INVESTMENT REAL ESTATE, BROWN BROTHERS
HARRIMAN & CO., AND "XYZ",
Defendants.
~------ +--+ ee eee eee
Defendants, Union Investment Real Estate and 140 BW, Inc.,
by their attorneys, HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ,
answer the Complaint of the Plaintiff by stating as follows:
1 Deny, upon information and belief, the allegations of
paragraphs 7, 17, 18, 19, 20, al, 22, 23, 24, 4l, 42, 43, 44, 45,
46, 47 and 48.
2 Deny having knowledge or information sufficient to form a
belief as to the truth of the allegations of paragraphs 1, 2, 3, 4,
5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 36, 38, 39, 40, 50, 51, 52, 53, 54, 55, 56, 57, 58, 53, 60,
62, 63, 64, 65, 66, 67, 68, 69, 70, 71 and 72.
3 Respond to paragraph 13, 25, 37, 49 and 61 of the
Complaint by repeating, reiterating, and realleging all responses
given to the paragraphs referred to therein with the same force and
effect as if herein set forth at length.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
4 The injuries alleged to have been suffered by the Plaintiff
were caused, in whole or part, by the conduct of Plaintiff.
Plaintiff's claims therefore are barred or diminished in the
proportion that such culpable conduct of Plaintiff bears to the total
culpable conduct causing the damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
5 The injuries and damages alleged in the Complaint were
caused or contributed to by the culpable conduct including
contributory negligence, assumption of the risk and/or product misuse
of persons over whom these Defendants had no authority or control.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
6 Pursuant to CPLR Article 16, the liability of these
Defendants to the Plaintiff for non-economic loss shall not exceed
the equitable share of these Defendants determined in accordance with
the relative culpability of each person/party causing or contributing
to the total liability for non-economic loss.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
7 That recovery, if any, on the Complaint of the Plaintiff
shall be reduced by the amounts paid or reimbursed by collateral
sources in accordance with CPLR 4545(c).
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
8 That if it is determined that these answering Defendants
are responsible for the acts alleged in the Complaint then Plaintiff
failed to take appropriate action to mitigate any damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THESE
ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
9 The injuries and damages alleged in the Complaint of the
Plaintiff were caused or contributed to by Plaintiff's culpable
conduct in assuming the risk under the conditions and circumstances
existing.
AS AND FOR A CROSS-CLAIM FOR CONTRIBUTION AGAINST: BROWN BROTHERS
HARRIMAN & CO. AND uxyge
10. If any plaintiff recovers against these Defendants, then
these Defendants will be entitled to an apportionment of
responsibility for damages between and amongst the parties of this
action and will be entitled to recover from each other party for its
proportional share commensurate with any judgment which may be
awarded to the plaintiff.
AS AND FOR A CROSS-CLAIM FOR COMMON LAW INDEMNITY AGAINST: BROWN
BROTHERS HARRIMAN & CO. AND "XYZ"
11. If any plaintiff recovers against these Defendants, then
these Defendants will be entitled to be indemnified and to recover
the full amount of any judgment from the Brown Brothers Harriman &
Co. and "XYZ".
AS AND FOR A CROSS-CLAIM FOR CONTRACTUAL INDEMNITY AGAINST: BROWN
BROTHERS HARRIMAN & CO. AND xyz"
12. At the time of the accident alleged in the complaint a
contract was in effect between these Defendants and Brown Brothers
Harriman & Co. and "XYZ".
13. The contract required Brown Brothers Harriman & Co. and
"XYZ" to indemnify and, or hold harmless these Defendants for all
claims, losses, liability and damages for any injury to any person.
14. Brown Brothers Harriman & Co. and "yyg0 breached the
contract and is obligated to indemnify these Defendants for any
judgement or settlement obtained by any plaintiff in this action
including defense costs and attorneys’ fees.
AS AND FOR A CROSS-CLAIM FOR BREACH OF CONTRACT FOR FAILURE TO NAME
ON INSURANCE POLICY AGAINST: BROWN BROTHERS HARRIMAN & CO. AND "XYZ"
15. At the time of the accident alleged in the complaint a
contract was in effect between these Defendants and Brown Brothers
Harriman & Co. and "XYZ",
16. The contract required Brown Brothers Harriman & Co. and
"XYZ" to purchase liability insurance for the benefit of these
Defendants.
17. Brown Brothers Harriman & Co. and "XYZ" failed to purchase
the insurance required and thereby breached the contract.
18. By reason of the foregoing, Brown Brothers Harriman & Co.
and "XYZ" is liable to these answering Defendants for all damages
resulting from the breach including defense costs and attorneys’
fees.
WHEREFORE, these Defendants demand judgment dismissing the
Complaint, together with costs and disbursements, and in the
event any judgment or settlement is recovered herein against
these Defendants, then these Defendants further demand that such
judgment be reduced by the amount which is proportionate to the
degree of culpability of any plaintiff, and these Defendants
further demand judgment against each other party on the
respective crossclaims and/or counterclaims.
DATED: April 17, 2014
New York, New York
Yours, etc.
HOEY, KING, EPSTEIN, PREZIOSO &
MARQUEZ
Attorneys for Defendants
UNION INVESTMENT REAL ESTATE AND
140 BW, INC.
Office and Post Office Address
55 Water Street, 29th Floor
New York, New York 10041-2899
(212) 612-4200
By:
hie Looe
—
John R. Marquez
To:
Goidel & Siegel, LLP
Attorneys for Plaintiff, Anzhella Rabayeva
56 West 45th Street, 3rd Floor
New York, New York 10036
ABM Industries, Inc. a/k/a "American Building Maintenance"
Defendant
c/O Kathleen J. Fraher
59 South Park Street
Cambridge, New York 12816
Steven K. Mantione, Esq.
Attorneys for Defendant, Brown Brothers Harriman & Co.
333 Hempstead Avenue
Suite 211
Malverne, New York 11565
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--- -----x Index No.: 150886/14
ANZHELLA RABAYEVA, (ECP)
Plaintiff,
NOTICE PURSUANT
Vv TO CPLR 2103
140 BW, LLC., ABM INDUSTRIES, INC. A/K/A
"AMERICAN BUILDING MAINTENANCE", UNION
INVESTMENT REAL ESTATE, BROWN BROTHERS
HARRIMAN & CO., AND "XYZ",
Defendants.
--------- +--+
PLEASE TAKE NOTICE that Defendants Union Investment Real
Estate and 140 BW, Inc., by their attorneys, HOEY, KING,
EPSTEIN, PREZIOSO & MARQUEZ, hereby serve(s) Notice upon you
pursuant to Rule 2103 of the Civil Practice Law and Rules that
it expressly rejects service of papers in this matter upon them
by electronic means.
PLEASE TAKE FURTHER NOTICE that waiver of the foregoing may
only be affected by express prior written consent to such
service by HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ and by
placement thereby of HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ
electronic communication number in the address block of papers
filed with the Court.
DATED: April 17, 2014
New York, New York
Yours, etc.
HOEY, KING, EPSTEIN, PREZIOSO &
MARQUEZ
Attorneys for Defendants
UNION INVESTMENT REAL ESTATE AND
140 BW, INC.
Office and Post Office Address
55 Water Street, 29th Floor
New York, New York 10041-2899
{212) 612-4200
By:
(ee omg
a Penge ce 2
John R. Marquez
To:
Goidel & Siegel, LLP
Attorneys for Plaintiff, Anzhella Rabayeva
56 West 45th Street, 3rd Floor
New York, New York 10036
ABM Industries, Inc. a/k/a "American Building Maintenance"
Defendant
c/O Kathleen J. Fraher
59 South Park Street
Cambridge, New York 12816
Steven K. Mantione, Esq.
Attorneys for Defendant, Brown Brothers Harriman & Co.
333 Hempstead Avenue
Suite 211
Malverne, New York 11565
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------- 2-7 -e--------
- - -- Index No.: 150886/14
ANZHELLA RABAYEVA, (ECF)
Plaintiff,
COMBINED DISCOVERY
Vv DEMANDS AND NOTICE
OF DEPOSITION
140 BW, LLC., ABM INDUSTRIES, INC. A/K/A
"AMERICAN BUILDING MAINTENANCE", UNION
INVESTMENT REAL ESTATE, BROWN BROTHERS
HARRIMAN & CO., AND "Eye
Defendants.
anne nn ee ee
PLEASE TAKE NOTICE, that Defendants Union Investment Real Estate
and 140 BW, Inc., by their attorneys, HOEY, KING, EPSTEIN, PREZIOSO &
MARQUEZ, demands that each adverse party afford us the disclosure
which this notice and demand specifies:
DEPOSITIONS OF ADVERSE PARTIES UPON ORAL EXAMINATION
A Each adverse party is to appear for deposition upon
oral examination pursuant to CPLR 3107:
(1) At this date and time: May 21, 2014 at 10:00 am
(2) At this place: Hoey, King, Epstein, Prezioso & Marquez
55 Water Street, 28th Floor
New York, New York 10041
B Pursuant to CPLR 3106(d) we designate the following as
the identity, description or title of the particular officer,
director, member, or employee of the adverse party specified
whose deposition we desire to take: ALL PARTIES
c Each deposition witness thus examined is to produce at
such time and place, pursuant to CPLR 3111, all books, papers,
and other things which are relevant to the issues in the action
and within that adverse party's possession, custody, er control
to be marked as exhibits, and used on the examination.
PARTY STATEMENTS
Each adverse party is to serve on us, pursuant to CPLR
3101 (e) and CPLR 3120, within thirty (30) days from the service
of this Demand, a complete and legible copy of any statement
made by or taken from any individual party or any officer,
agent, or employee of said party.
INSURANCE POLICIES
Each adverse party is to serve, pursuant to CPLR 3101(f)
and CPLR 3120, within thirty (30) days from the service of this
Demand, a complete and legible copy of each primary or excess
insurance agreement under which any person carrying on an
insurance business may be liable to satisfy part or all of any
judgment which may be entered in this action or to indemnify or
reimburse for payments made to satisfy any such judgment.
ACCIDENT REPORTS
Each adverse party is to serve, pursuant to CPLR 3101(g)
and CPLR 3120, within thirty (30) days from service of this
Demand, a complete and legible copy of every written report of
the accident or other event alleged in the complaint prepared in
the regular course of that adverse party's business operations
or practices.
PHOTOGRAPHS AND VIDEOTAPES
Each adverse party is to serve within thirty (30) days from
the service of this Demand, complete and legible photographic or
videotape reproductions of any and all photographs, motion
pictures, maps, drawings, diagrams, measurements, surveys of the
scene of the accident or equipment or instrumentality involved
in the action or photographs of persons or vehicles involved (if
applicable) made either before, after or at the time of the
events in question, including any photographs or videotapes made
of the plaintiff at any time since the incident referred to in
the Complaint.
WITNESSES
Each adverse party is to serve within thirty (30) days from
the service of this Demand, the name and address of each witness
to any of the following:
1 The accident, occurrence or any other event set forth
in the complaint.
2 Any fact tending to prove actual or constructive notice
of any condition which may give rise to the liability of any
person, whether or not a party, for any damages alleged in this
action.
3 Any admission, statement, writing or act of our client.
EXPERT WITNESS MATERIAL
Each adverse party is to serve, pursuant to CPLR
3101(da) (1), within thirty (30) days from the service of this
request, a statement specifying all of the following data as to
each person whom that adverse party expects to call as an expert
witness at trial:
A The identity of each expert;
B The subject matter on which each expert is expected to
testify, disclosed in reasonable detail;
Cc The substance of the facts and opinions on which each
expert is expected to testify;
D The qualifications of each expert; and
E A summary of the grounds for each expert's opinion.
PLEASE TAKE FURTHER NOTICE that we will object at trial to
the offer of any proof of an expert's qualifications which are
different from or additional to those which the adverse party
calling the expert had disclosed in reference to sub-paragraph
D
COLLATERAL SOURCE INFORMATION
Each plaintiff seeking to recover for the cost of medical
care, dental care, custodial care or rehabilitation services,
loss of earnings or other economic loss is to serve, pursuant to
CPLR 4545(c), within thirty (30) days from the service of this
Demand, a statement of all past and future cost and expense
which has been or will, with reasonable certainty, be replaced
or indemnified, in whole or in part, from any collateral source
such as insurance (except life insurance), social security,
workers! compensation, or employeé benefit programs. Each such
statement is to set forth the name, address, and insurance
policy {or other account) number of each collateral source
payor; and, separately stated for each payor, a list specifying
the date and amount of each payment and the name, address, and
social security number or other taxpayer identification number
ef each payee.
PRODUCTION OF MEDICAL REPORTS AND AUTHORIZATIONS
Each plaintiff is to serve upon and deliver to us within
thirty (30) days from the service of this Demand:
Medical Reports and Bills: Copies of the medical reports
and bills of those health professionals who have previously
treated or examined the plaintiff. Those reports shall include a
detailed recital of the injuries and conditions as to which
testimony will be offered at the trial, referring to and
identifying those diagnostic tests and technicians’ reports
which will be offered at the trial.
B. Medical Authorizations: Duly executed and acknowledged
written medical authorizations, complying with the Health
Insurance Portability and Accountability Act (“HIPPA”), 45
C.F.R, §164.508(a), (using attached form) permitting all parties
to obtain and make copies of the records and notes including any
intake sheets, diagnostic tests, X-Rays, MRI's and cat scan
films, of all treating and examining hospitals, physicians and
other medical professionals.
MEDICARE DOCUMENTS
Plaintiff is to serve, pursuant to CPLR 3120(1) (i), within
thirty (30) days from the service of this demand, a complete and
legible copy of:
1. Plaintiff's Medicare Insurance Card
2. All Medicare statements of conditional payments for medical
treatment arising out of the incident which is the subject
of this lawsuit.
Plaintiff's Social Security card.
All documents pertaining to Medicare benefits received for
treatment provided to plaintiff for injuries and illness
arising out of the incident which is the subject of this
lawsuit.
PRODUCTION OF RECORDS AND AUTHORIZATIONS
Each plaintiff is to serve upon and deliver to us within
thirty (30) days from the service of this demand duly executed,
fully addressed and acknowledged written authorizations
permitting all parties to obtain and make copies of each of the
following:
A All workers' compensation records and reports of
hearings pertaining to the incident alleged to have occurred in
plaintiff's complaint maintained by the workers' compensation
Board and workers' compensation carrier.
B All records of present and past employment of
plaintiff.
c All records in the no-fault file of any carrier issuing
benefits to the plaintiff arising out of the incident alleged to
have occurred in the complaint.
D All records of the Internal Revenue Service filed by
the plaintiff for the calendar year prior to the date of the
incident alleged in the complaint and for the two subsequent
years. Please use IRS form 4506 and attach 2 copies of
identification of the plaintiff, with photo and signature as
required by the IRS.
E All records of schools attended by plaintiff.
F All records of each collateral source that has provided
and/or in the future will be providing any payment or
reimbursement for expenses incurred because of this
incident.
PHYSICAL OR MENTAL EXAMINATION
Defendant hereby demands, pursuant to CPLR §3121, that
plaintiff appear for and submit to physical, mental and blood
examination(s), for all claimed injuries, by a doctor(s) of
defendant's designation-specialties to be determined. This
examination(s) shall to be conducted in said doctor’ (s')
office(s) and at a reasonable time following plaintiff's
deposition, but in no event less than 20 days after the service
of this Notice.
NAMES AND ADDRESSES OF ATTORNEYS
Each adverse party is to serve on us, within thirty (30)
days from service of this Demand, the names and addresses of all
attorneys having appeared in this action on behalf of any
adverse party.
PLEASE TAKE FURTHER NOTICE THAT THESE ARE CONTINUING
DEMANDS, and that each demand requires that an adverse party who
acquires more than thirty (30) days from the service of this
demand any document, information, or thing (including the
opinion of any person whom the adverse party expects to call as
an expert witness at trial) which is responsive to any of the
above demands, is to give us prompt written advice to that
effect; and, within thirty (30) days (but no less than sixty
{60) days before trial), is to serve all such information on us
and allow us to inspect, copy, test, and photograph each such
document or thing.
PLEASE TAKE FURTHER NOTICE that we will object at trial,
and move to preclude as to any adverse party who does not timely
identify any witness, serve any report, or produce any document,
information, or thing which is responsive to a discovery demand
set forth in any of the ensuing paragraphs:
A From calling any event or notice witness not identified
to us or medical expert whose reports have not been served on
us;
B From calling any other expert witness whose identity,
qualifications, and expected fact and opinion testimony
(together with a summary of the grounds for each such opinion)
have not been served on us;
ec. From putting in evidence any exhibit not served on us
or produced for us to discover, inspect, copy, and photograph in
accordance with any of the ensuing paragraphs; and
D From offering any other proof not timely disclosed
pursuant to a court order in this action
DATED: April 17, 2014
New York, New York
Yours, ete
HOEY, KING, EPSTEIN, PREZIOSO &
MARQUEZ
Attorneys for Defendants
UNION INVESTMENT REAL ESTATE AND
140 BW, Inc.
Office and Post Office Address
55 Water Street, 29th Floor
New York, New York 10041-2899
(212) 612-4200
By:
kee fing
Preview
INDEX NO. 150886/2014 (FILED: NEW YORK COUNTY CLERK 0471772014) NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------- Index No. 150886/14 ANZHELLA RABAYEVA, (ECF) Plaintiff, Vv ANSWER TO COMPLAINT 140BW, LLC., ABM INDUSTRIES, INC. A/K/A “AMERICAN BUILDING MAINTENANCE", UNION INVESTMENT REAL ESTATE, BROWN BROTHERS HARRIMAN & CO., AND "XYZ", Defendants. ~------ +--+ ee eee eee Defendants, Union Investment Real Estate and 140 BW, Inc., by their attorneys, HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ, answer the Complaint of the Plaintiff by stating as follows: 1 Deny, upon information and belief, the allegations of paragraphs 7, 17, 18, 19, 20, al, 22, 23, 24, 4l, 42, 43, 44, 45, 46, 47 and 48. 2 Deny having knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, 39, 40, 50, 51, 52, 53, 54, 55, 56, 57, 58, 53, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71 and 72. 3 Respond to paragraph 13, 25, 37, 49 and 61 of the Complaint by repeating, reiterating, and realleging all responses given to the paragraphs referred to therein with the same force and effect as if herein set forth at length. AS AND FOR A FIRST AFFIRMATIVE DEFENSE THESE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: 4 The injuries alleged to have been suffered by the Plaintiff were caused, in whole or part, by the conduct of Plaintiff. Plaintiff's claims therefore are barred or diminished in the proportion that such culpable conduct of Plaintiff bears to the total culpable conduct causing the damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THESE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: 5 The injuries and damages alleged in the Complaint were caused or contributed to by the culpable conduct including contributory negligence, assumption of the risk and/or product misuse of persons over whom these Defendants had no authority or control. AS AND FOR A THIRD AFFIRMATIVE DEFENSE THESE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: 6 Pursuant to CPLR Article 16, the liability of these Defendants to the Plaintiff for non-economic loss shall not exceed the equitable share of these Defendants determined in accordance with the relative culpability of each person/party causing or contributing to the total liability for non-economic loss. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THESE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: 7 That recovery, if any, on the Complaint of the Plaintiff shall be reduced by the amounts paid or reimbursed by collateral sources in accordance with CPLR 4545(c). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THESE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: 8 That if it is determined that these answering Defendants are responsible for the acts alleged in the Complaint then Plaintiff failed to take appropriate action to mitigate any damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THESE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: 9 The injuries and damages alleged in the Complaint of the Plaintiff were caused or contributed to by Plaintiff's culpable conduct in assuming the risk under the conditions and circumstances existing. AS AND FOR A CROSS-CLAIM FOR CONTRIBUTION AGAINST: BROWN BROTHERS HARRIMAN & CO. AND uxyge 10. If any plaintiff recovers against these Defendants, then these Defendants will be entitled to an apportionment of responsibility for damages between and amongst the parties of this action and will be entitled to recover from each other party for its proportional share commensurate with any judgment which may be awarded to the plaintiff. AS AND FOR A CROSS-CLAIM FOR COMMON LAW INDEMNITY AGAINST: BROWN BROTHERS HARRIMAN & CO. AND "XYZ" 11. If any plaintiff recovers against these Defendants, then these Defendants will be entitled to be indemnified and to recover the full amount of any judgment from the Brown Brothers Harriman & Co. and "XYZ". AS AND FOR A CROSS-CLAIM FOR CONTRACTUAL INDEMNITY AGAINST: BROWN BROTHERS HARRIMAN & CO. AND xyz" 12. At the time of the accident alleged in the complaint a contract was in effect between these Defendants and Brown Brothers Harriman & Co. and "XYZ". 13. The contract required Brown Brothers Harriman & Co. and "XYZ" to indemnify and, or hold harmless these Defendants for all claims, losses, liability and damages for any injury to any person. 14. Brown Brothers Harriman & Co. and "yyg0 breached the contract and is obligated to indemnify these Defendants for any judgement or settlement obtained by any plaintiff in this action including defense costs and attorneys’ fees. AS AND FOR A CROSS-CLAIM FOR BREACH OF CONTRACT FOR FAILURE TO NAME ON INSURANCE POLICY AGAINST: BROWN BROTHERS HARRIMAN & CO. AND "XYZ" 15. At the time of the accident alleged in the complaint a contract was in effect between these Defendants and Brown Brothers Harriman & Co. and "XYZ", 16. The contract required Brown Brothers Harriman & Co. and "XYZ" to purchase liability insurance for the benefit of these Defendants. 17. Brown Brothers Harriman & Co. and "XYZ" failed to purchase the insurance required and thereby breached the contract. 18. By reason of the foregoing, Brown Brothers Harriman & Co. and "XYZ" is liable to these answering Defendants for all damages resulting from the breach including defense costs and attorneys’ fees. WHEREFORE, these Defendants demand judgment dismissing the Complaint, together with costs and disbursements, and in the event any judgment or settlement is recovered herein against these Defendants, then these Defendants further demand that such judgment be reduced by the amount which is proportionate to the degree of culpability of any plaintiff, and these Defendants further demand judgment against each other party on the respective crossclaims and/or counterclaims. DATED: April 17, 2014 New York, New York Yours, etc. HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendants UNION INVESTMENT REAL ESTATE AND 140 BW, INC. Office and Post Office Address 55 Water Street, 29th Floor New York, New York 10041-2899 (212) 612-4200 By: hie Looe — John R. Marquez To: Goidel & Siegel, LLP Attorneys for Plaintiff, Anzhella Rabayeva 56 West 45th Street, 3rd Floor New York, New York 10036 ABM Industries, Inc. a/k/a "American Building Maintenance" Defendant c/O Kathleen J. Fraher 59 South Park Street Cambridge, New York 12816 Steven K. Mantione, Esq. Attorneys for Defendant, Brown Brothers Harriman & Co. 333 Hempstead Avenue Suite 211 Malverne, New York 11565 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --- -----x Index No.: 150886/14 ANZHELLA RABAYEVA, (ECP) Plaintiff, NOTICE PURSUANT Vv TO CPLR 2103 140 BW, LLC., ABM INDUSTRIES, INC. A/K/A "AMERICAN BUILDING MAINTENANCE", UNION INVESTMENT REAL ESTATE, BROWN BROTHERS HARRIMAN & CO., AND "XYZ", Defendants. --------- +--+ PLEASE TAKE NOTICE that Defendants Union Investment Real Estate and 140 BW, Inc., by their attorneys, HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ, hereby serve(s) Notice upon you pursuant to Rule 2103 of the Civil Practice Law and Rules that it expressly rejects service of papers in this matter upon them by electronic means. PLEASE TAKE FURTHER NOTICE that waiver of the foregoing may only be affected by express prior written consent to such service by HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ and by placement thereby of HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ electronic communication number in the address block of papers filed with the Court. DATED: April 17, 2014 New York, New York Yours, etc. HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendants UNION INVESTMENT REAL ESTATE AND 140 BW, INC. Office and Post Office Address 55 Water Street, 29th Floor New York, New York 10041-2899 {212) 612-4200 By: (ee omg a Penge ce 2 John R. Marquez To: Goidel & Siegel, LLP Attorneys for Plaintiff, Anzhella Rabayeva 56 West 45th Street, 3rd Floor New York, New York 10036 ABM Industries, Inc. a/k/a "American Building Maintenance" Defendant c/O Kathleen J. Fraher 59 South Park Street Cambridge, New York 12816 Steven K. Mantione, Esq. Attorneys for Defendant, Brown Brothers Harriman & Co. 333 Hempstead Avenue Suite 211 Malverne, New York 11565 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------- 2-7 -e-------- - - -- Index No.: 150886/14 ANZHELLA RABAYEVA, (ECF) Plaintiff, COMBINED DISCOVERY Vv DEMANDS AND NOTICE OF DEPOSITION 140 BW, LLC., ABM INDUSTRIES, INC. A/K/A "AMERICAN BUILDING MAINTENANCE", UNION INVESTMENT REAL ESTATE, BROWN BROTHERS HARRIMAN & CO., AND "Eye Defendants. anne nn ee ee PLEASE TAKE NOTICE, that Defendants Union Investment Real Estate and 140 BW, Inc., by their attorneys, HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ, demands that each adverse party afford us the disclosure which this notice and demand specifies: DEPOSITIONS OF ADVERSE PARTIES UPON ORAL EXAMINATION A Each adverse party is to appear for deposition upon oral examination pursuant to CPLR 3107: (1) At this date and time: May 21, 2014 at 10:00 am (2) At this place: Hoey, King, Epstein, Prezioso & Marquez 55 Water Street, 28th Floor New York, New York 10041 B Pursuant to CPLR 3106(d) we designate the following as the identity, description or title of the particular officer, director, member, or employee of the adverse party specified whose deposition we desire to take: ALL PARTIES c Each deposition witness thus examined is to produce at such time and place, pursuant to CPLR 3111, all books, papers, and other things which are relevant to the issues in the action and within that adverse party's possession, custody, er control to be marked as exhibits, and used on the examination. PARTY STATEMENTS Each adverse party is to serve on us, pursuant to CPLR 3101 (e) and CPLR 3120, within thirty (30) days from the service of this Demand, a complete and legible copy of any statement made by or taken from any individual party or any officer, agent, or employee of said party. INSURANCE POLICIES Each adverse party is to serve, pursuant to CPLR 3101(f) and CPLR 3120, within thirty (30) days from the service of this Demand, a complete and legible copy of each primary or excess insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of any judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy any such judgment. ACCIDENT REPORTS Each adverse party is to serve, pursuant to CPLR 3101(g) and CPLR 3120, within thirty (30) days from service of this Demand, a complete and legible copy of every written report of the accident or other event alleged in the complaint prepared in the regular course of that adverse party's business operations or practices. PHOTOGRAPHS AND VIDEOTAPES Each adverse party is to serve within thirty (30) days from the service of this Demand, complete and legible photographic or videotape reproductions of any and all photographs, motion pictures, maps, drawings, diagrams, measurements, surveys of the scene of the accident or equipment or instrumentality involved in the action or photographs of persons or vehicles involved (if applicable) made either before, after or at the time of the events in question, including any photographs or videotapes made of the plaintiff at any time since the incident referred to in the Complaint. WITNESSES Each adverse party is to serve within thirty (30) days from the service of this Demand, the name and address of each witness to any of the following: 1 The accident, occurrence or any other event set forth in the complaint. 2 Any fact tending to prove actual or constructive notice of any condition which may give rise to the liability of any person, whether or not a party, for any damages alleged in this action. 3 Any admission, statement, writing or act of our client. EXPERT WITNESS MATERIAL Each adverse party is to serve, pursuant to CPLR 3101(da) (1), within thirty (30) days from the service of this request, a statement specifying all of the following data as to each person whom that adverse party expects to call as an expert witness at trial: A The identity of each expert; B The subject matter on which each expert is expected to testify, disclosed in reasonable detail; Cc The substance of the facts and opinions on which each expert is expected to testify; D The qualifications of each expert; and E A summary of the grounds for each expert's opinion. PLEASE TAKE FURTHER NOTICE that we will object at trial to the offer of any proof of an expert's qualifications which are different from or additional to those which the adverse party calling the expert had disclosed in reference to sub-paragraph D COLLATERAL SOURCE INFORMATION Each plaintiff seeking to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss is to serve, pursuant to CPLR 4545(c), within thirty (30) days from the service of this Demand, a statement of all past and future cost and expense which has been or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance (except life insurance), social security, workers! compensation, or employeé benefit programs. Each such statement is to set forth the name, address, and insurance policy {or other account) number of each collateral source payor; and, separately stated for each payor, a list specifying the date and amount of each payment and the name, address, and social security number or other taxpayer identification number ef each payee. PRODUCTION OF MEDICAL REPORTS AND AUTHORIZATIONS Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of this Demand: Medical Reports and Bills: Copies of the medical reports and bills of those health professionals who have previously treated or examined the plaintiff. Those reports shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those diagnostic tests and technicians’ reports which will be offered at the trial. B. Medical Authorizations: Duly executed and acknowledged written medical authorizations, complying with the Health Insurance Portability and Accountability Act (“HIPPA”), 45 C.F.R, §164.508(a), (using attached form) permitting all parties to obtain and make copies of the records and notes including any intake sheets, diagnostic tests, X-Rays, MRI's and cat scan films, of all treating and examining hospitals, physicians and other medical professionals. MEDICARE DOCUMENTS Plaintiff is to serve, pursuant to CPLR 3120(1) (i), within thirty (30) days from the service of this demand, a complete and legible copy of: 1. Plaintiff's Medicare Insurance Card 2. All Medicare statements of conditional payments for medical treatment arising out of the incident which is the subject of this lawsuit. Plaintiff's Social Security card. All documents pertaining to Medicare benefits received for treatment provided to plaintiff for injuries and illness arising out of the incident which is the subject of this lawsuit. PRODUCTION OF RECORDS AND AUTHORIZATIONS Each plaintiff is to serve upon and deliver to us within thirty (30) days from the service of this demand duly executed, fully addressed and acknowledged written authorizations permitting all parties to obtain and make copies of each of the following: A All workers' compensation records and reports of hearings pertaining to the incident alleged to have occurred in plaintiff's complaint maintained by the workers' compensation Board and workers' compensation carrier. B All records of present and past employment of plaintiff. c All records in the no-fault file of any carrier issuing benefits to the plaintiff arising out of the incident alleged to have occurred in the complaint. D All records of the Internal Revenue Service filed by the plaintiff for the calendar year prior to the date of the incident alleged in the complaint and for the two subsequent years. Please use IRS form 4506 and attach 2 copies of identification of the plaintiff, with photo and signature as required by the IRS. E All records of schools attended by plaintiff. F All records of each collateral source that has provided and/or in the future will be providing any payment or reimbursement for expenses incurred because of this incident. PHYSICAL OR MENTAL EXAMINATION Defendant hereby demands, pursuant to CPLR §3121, that plaintiff appear for and submit to physical, mental and blood examination(s), for all claimed injuries, by a doctor(s) of defendant's designation-specialties to be determined. This examination(s) shall to be conducted in said doctor’ (s') office(s) and at a reasonable time following plaintiff's deposition, but in no event less than 20 days after the service of this Notice. NAMES AND ADDRESSES OF ATTORNEYS Each adverse party is to serve on us, within thirty (30) days from service of this Demand, the names and addresses of all attorneys having appeared in this action on behalf of any adverse party. PLEASE TAKE FURTHER NOTICE THAT THESE ARE CONTINUING DEMANDS, and that each demand requires that an adverse party who acquires more than thirty (30) days from the service of this demand any document, information, or thing (including the opinion of any person whom the adverse party expects to call as an expert witness at trial) which is responsive to any of the above demands, is to give us prompt written advice to that effect; and, within thirty (30) days (but no less than sixty {60) days before trial), is to serve all such information on us and allow us to inspect, copy, test, and photograph each such document or thing. PLEASE TAKE FURTHER NOTICE that we will object at trial, and move to preclude as to any adverse party who does not timely identify any witness, serve any report, or produce any document, information, or thing which is responsive to a discovery demand set forth in any of the ensuing paragraphs: A From calling any event or notice witness not identified to us or medical expert whose reports have not been served on us; B From calling any other expert witness whose identity, qualifications, and expected fact and opinion testimony (together with a summary of the grounds for each such opinion) have not been served on us; ec. From putting in evidence any exhibit not served on us or produced for us to discover, inspect, copy, and photograph in accordance with any of the ensuing paragraphs; and D From offering any other proof not timely disclosed pursuant to a court order in this action DATED: April 17, 2014 New York, New York Yours, ete HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendants UNION INVESTMENT REAL ESTATE AND 140 BW, Inc. Office and Post Office Address 55 Water Street, 29th Floor New York, New York 10041-2899 (212) 612-4200 By: kee fing