Preview
FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
INDEX NO. 527995/2019
KENNETH L. MITCHELL,
Plaintiff,
COMBINED DEMANDS
-against-
GLEN P. MILLER,
Defendant.
----------------------------------------------------------------------X
COUNSELORS:
PLEASE TAKE NOTICE that demand is hereby made that Defendant GLENP. MILLER
answer the annexed COMBlNED DEMANDS in the manner and within the deadlines set forth in
the Civil Practice Law and Rules (CPLR).
_..
• Demand for Discovery and Inspection
• Demand for Bill of Particulars
• Notice to Preserve
• Expert Witness Discovery
• Fact Witness Discovery
• Notice for Examination Before Trial
• Notice to Admit
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the
courts of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions and requests contained in the above documents are not frivolous:
Dated: Rockville Centre, New York
May 14, 2020 Yours, etc.,
GABRIEL LAW FIR , P. .
SUREN GABRIEL, US .
GABRIEL LAW FIR , .C.
Attorneysfor Plaintiff
2 Lincoln Avenue, Su e 0
Rockville Centre, Ne ork 11570
(516)360-9101
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
INDEX NO. 527995/2019
KENNETH L. MITCHELL,
Plaintiff,
DEMAND FOR
-against- DISCOVERY
AND INSPECTION
GLEN P. MILLER,
Defendant.
---------------------------------------------------------X
COUNSELORS:
PLEASE TAKE NOTICE THAT, pursuant to CPLR 3120 and the applicable rules of
this Court, demand is hereby made upon Defendant GLEN P. MILLER that true and accurate
copies of the documents listed below be made available for inspection and copying at the office of
the undersigned.
DEFINITIONS
Accident"
(A) The term "Underlying refers to the collision that took place on Monday, July
29, 2019, on Schenectady Avenue at or about itsintersection with East New York Avenue
in County of Kings, State of New York, between the vehicle operated by KENNETH L.
MITCHELL and the vehicle operated by GLEN P. MILLER.
Vehicle"
(B) The term "Defendant's shall refer to the vehicle which, at the time of the
Underlying Accident, was: (i) Owned by GLEN P. MILLER; and (ii)Involved in the
Underlying Accident.
"any" "each" all," such,"
(C) The terms or shall mean "any and "any and similar all-inclusive
references necessary to bring within the scope of the discovery request allresponses that
might otherwise be construed to be outside of its scope.
"and/or"
(D) The expression shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses that might
otherwise be construed to be outside of its scope.
"document"
(E) The term shall mean, without limitation, any kind of written, recorded, or
graphic material, however, produced, reproduced, or maintained, including, without
limitation, papers, photographs, films, recordings, memoranda, books, records, accounts,
letters, correspondence, notes of meetings or of conversations either in writing or upon any
mechanical or electrical or electronic recording device, work papers, surveys, checks,
statements, facsimiles, telecopies, work sheets, reports, e-mails, instant messages, social
media post, CD-ROMs, floppy disks, manuals, lists, diaries, notebooks, microfiche,
ledgers, files, telegrams, minutes, summaries, contracts, computer databases, computer
printout sheets, log books, financial statements, drawings, charts, schedules, telex
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messages, notes, intra-office and inter-office communications, transcripts, affidavits, desk
calendars, appointment books, telephone logs, data sheets, or printed matter of every kind
or description, including allfinal originals, drafts, revisions, or different versions of any of
the foregoing, as well as any copies of the foregoing that are not identical to the original
(either by interlineation, receipt stamped, notation, indication of copy sent or received, or
otherwise) and are in the actual or constructive possession, custody, care, or control of the
responding party, and whether the documents are recorded in a writing or otherwise by
way of an electrical, mechanical, or electronic device (including, without limitation,
storage media such as computer hard drives, CD-ROMs, floppy disks, zip drives, portable
drives, and similar devices).
"concern" "concerning"
(F) The term or means concerning, referring to, having to do with,
regarding, describing, evidencing, memorializing, demonstrating, substantiating, made in
connection with, arising out of, or constituting; and shall have the broadest possible
meaning consistent with the CPLR.
"communication"
(G) The term shall mean all discussions, conversations, meetings,
conferences, telephone conversations, interviews, negotiations, agreements,
understandings, cards, letters, correspondence, facsimile transmission, telegrams, telexes,
electronic mail, voicemail, or other forms of written or verbal exchange or interchange,
however transmitted or stored, including reports, notes, memoranda, lists, summaries,
agenda and other records of, or documents memorializing, any such communication.
"person"
(H) The term shall refer to: (i) a natural person; or (ii) a legal entity, including a
corporation, partnership, limited liability corporation, limited liability partnership, firm,
association, professional corporation, proprietorship, or similar private or public entity.
"identify"
(I) The term shall mean, with respect to a person, to give the person's full name,
present or last known address, any telephone, cellphone, and/or facsimile numbers, any
email address, any website, and any social-media identity, avatar, or similar unique
identifier; and, with respect to a natural person, also that person's present and/or lastknown
"identify"
place of employment, job title,and job duties. With respect to a document, to
shall mean either to provide a copy of that document or to provide information concerning:
(i)The type of document; (ii)General subject matter; (iii)Date of the document; and (iv)
Author(s), addressee(s), and recipient(s).
"file"
(J) The term shall refer to one or more structured arrays of documents, directly or
indirectly concerning things, concepts, ideas, persons, or any other identifiable subject,
which are searchable or otherwise accessible according to specified criteria including,
without limitation, names, addresses, claim numbers, dates of accident, amounts billed, or
descriptions of healthcare services or supplies.
"representative"
(K) The term refers to and include any person, including attorneys, agents,
investigators, servants, officers, or employees, who acts, has at any time acted, or has at
any time been requested or solicited to act for the benefit or on behalf of another person,
upon this other person's request and/or with this other person's knowledge, consent, or
acquiescence.
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INSTRUCTIONS
(I) Unless otherwise stated, each part, paragraph, and subparagraph of the following Demands
shall be construed independently and without reference to any other part, paragraph, or
subparagraph for the purpose of limitation.
(II) The use of the singular form of any word includes the plural, and vice versa.
(III) Each Demand seeks production of all documents described, together with any attachments
thereto, drafts whereof, and non-identical copies, in any language and format whatsoever.
(IV) Documents are to be produced in their entirety, without redaction or expurgation.
(V) If any document or thing responsive to the following Demands has been destroyed or
discarded, or is otherwise unavailable or disposed of, that document or thing shall be
identified as completely as possible, including by providing the following information: (i)
Every author of a document; (ii)Every owner of a thing; (iii)Each and every recipient; (iv)
Date and subject matter of a document; (v) Reason for disposal; (vi) Each and every person
who authorized disposal and/or personally disposed of the document or thing.
DEMANDS
1) Any document created and/or maintained in Defendant's liability insurance file or files,
from the date of the Underlying Accident and up until the date on which liability coverage
was denied or confirmed to exist with respect to the Underlying Accident.
2) With respect to any insurance in effect for Defendant's Vehicle at the time of the
Underlying Accident, any primary, co-insurance, re-insurance, excess, catastrophe,
umbrella, and/or other applicable liability coverage policies and/or agreements ofinsurance
in which Defendant is either named insured or additional named insured, including
declaration sheets, riders, limitations, endorsements, amendments, cancellations, face
sheet, and/or binders, which may apply to satisfy all of a judgment which may be entered
in this action, or to indemnify or reimburse payments made to satisfy the judgment which
may be had as against Defendant.
3) If applicable, an affidavit of no excess insurance concerning the Underlying Accident.
4) Any document memorializing any communication to or from any person who was either a
witness to the Underlying Accident or acquainted with any condition related to said
Underlying Accident; also identify each such person.
5) Any accident report prepared by or received by Defendant or Defendant's representatives
or any other source, concerning the Underlying Accident and prepared in the regular course
of business operation or practice of any person.
6) With respect to any statement and/or report concerning the Underlying Accident, alleged
by or known to Defendant to have been made by Plaintiff or Plaintiff's representative: (i)
Any such written statement and/or report, whether signed or unsigned, taken by,
maintained by, or in the possession, custody, or control of, Defendant or Defendant's
representatives; (ii)If any such statement or report was electronically recorded, any tape,
record, videotape, or other recording, and a true and complete transcription of the
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recording; and (iii) Any statement relating to any prior occurrences or claims reflected in
any report from the Central Index Bureau (a/k/a "ISO REPORT").
7) Any Item of Visual Evidence purporting to depict the appearance or activities of Plaintiff,
together with the full name and address of the person or persons alleged to have made,
prepared, created, taken, maintained, received, and/or obtained each such Item of Visual
Evidence.
8) Any Item of Visual Evidence of the siteof the Underlying Accident, or purporting to depict
the site of the Underlying Accident, together with the full name and address of the person
or persons alleged to have made, prepared, created, taken, maintained, received, and/or
obtained each such Item of Visual Evidence.
9) Any Item of Visual Evidence which purports to depict any experiment simulating the
Underlying Accident, or any other relevant condition or circumstance existing at the time
of the Underlying Accident at or near the location where the Underlying Accident took
place, together with the full name and address of the person or persons alleged to have
made, prepared, created, taken, maintained, received, and/or obtained each such Item of
Visual Evidence.
10) Any Item of Visual Evidence depicting any of the vehicles involved in the Underlying
Accident, together with the full name and address of the person or persons alleged to have
made, prepared, created, taken, maintained, received, and/or obtained each such Item of
Visual Evidence.
11) Any Surveillance Material made, prepared, created, taken, received, maintained, obtained
by, or in the possession, custody, or control of Defendant or Defendant's representatives;
and/or made, prepared, created, taken, received, maintained, obtained by, or in the
possession, custody, or control of, any third party, and available to Defendant. Also identify
the videographer, photographer, and/or person or persons, or entity, alleged to have made,
prepared, created, taken, maintained, received, and/or obtained such Surveillance Material;
and the date or dates when said Surveillance Material was first made, created, or taken, and
when itwas received by Defendant.
12) Any past and current driver's license held by Defendant, as well as and any record relating
to, or affecting, said license, including suspensions and/or revocations.
13) Any record of conviction for moving violations committed by Defendant in the United
States and any of its possessions or territories, or in any foreign country.
14) Any maintenance records concerning Defendant's Vehicle for a period going from one
year before the Underlying Accident to the present date.
15) Any record, note, memorandum, bill, work order, change order, correspondence, or other
documents concerning any inspection, maintenance of, or repairs to,Defendant's Vehicle.
16) Any report, notice or claim (whether formal or informal), or complaint filed in a court of
law or arbitration concerning Defendant, including the name and address of each person
making said report, notice of claim, or complaint, for a period going from five years before
the Underlying Accident to the present date.
17) Any lease agreement concerning Defendant's Vehicle.
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18) Any report, information, and/or data concerning the Underlying Accident and generated
Retrieval"
by the Defendant's Vehicle's "Crash Data (CDR) system, "Event Data
Recorder" Module"
or like device, and/or "Airbag Control (ABM).
19) Any cellular telephone records, for a period going from one hour before the Underlying
Accident to three hours thereafter, concerning any cellular telephone or other mobile
communication device located in Defendant's Vehicle at the time of the Underlying
Accident.
20) Any record generated by Defendant's Vehicle's GPS, LoJack, OnStar, or similar tracking
or communication device, for a period going from one hour before the Underlying Accident
to five hours thereafter.
21) DEFENDANT'S VEHICLE, ifthis is in Defendant's possession, custody, or control;
otherwise, a verified authorization permitting Plaintiff to inspect and examine Defendant's
Vehicle, including by measuring, accessing the interior of, and photographing it.
Dated: Rockville Centre, New York
May 14, 2020
Yours, etc.
SUR N AB L, ESQ.
GAB E W FIRM, P.C.
·
Attorneys Plaintiff
2 Lincoln ve., Ste 400
Rockvill Centre, New York 11570
(516) 360-9101
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-- --------------------------------------------------------X
INDEX NO. 527995/2019
KENNETH L. MITCHELL,
Plaintiff,
DEMAND FOR BILL OF
-against- PARTICULARS
GLEN P. MILLER,
Defendant.
---------------------------------------------------------------------X
COUNSELORS:
PLEASE TAKE NOTICE THAT pursuant to CPLR 3120, Defendant GLEN P. MILLER
shall serve upon the undersigned within twenty days hereaf a Verified Bill of Particulars with
respect to the Affirmative Defenses contained in the respective Answer, which shall provide the
following information:
CULPABLE CONDUCT
1. A statement of each and every act on the part of plaintiff, which constitutes
plaintiff s alleged culpable conduct, which defendant contends, was the cause of plaintiff s injuries.
2. State the date of each specific act of culpable conduct by the plaintiff. Set forth the
place where each alleged act of culpable conduct occurred. State what damages, if any, sustained
by the plaintiff, which were caused or attributed to by reason of plaintiff s alleged culpable conduct.
DUE CARE
1. A statement of each and every act constituting the due care on the part of plaintiff,
which itis alleged plaintiff, was required to use for plaintiff s own safety.
2. Set forth in detail in what respect the alleged failure caused or contributed to these
injuries and damages.
3. State the date that each and every act occurred.
CONTRIBUTORY NEGLIGENCE
1. State what damages, ifany, sustained by the plaintiff, which were caused or attributed
to by reason of plaintiff s alleged contributory negligence.
2. State what specific contributory negligence the defendant is claiming that the plaintiff
caused, participated in or which contributed to her injury.
3. State the date or dates that each specific act of contributory negligence was committed
by the plaintiff (asserting which specific acts or omissions on plaintiff s part caused or contributed to
plaintiff s injuries).
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LACK OF JURISDICTION
1. State in what manner or what regard the defendant claims that this Court lacks
jurisdiction over his person.
2. The time, date and place where notice of this lawsuit was received.
3. The manner in which it isclaimed that the service of process actually effected was
defective.
4. Identify Defendant's complete residence address.
5. Identify Defendant's complete mailing address, ifdifferent from his residence address.
6. If it is claimed that process was not served in any form whatsoever, set forth a
statement describing how notice of this lawsuit was obtained.
COMPARATIVE NEGLIGENCE
1. State what damages, ifany, sustained by the plaintiff, which were caused or attributed
to by reason of plaintiff s comparative negligence.
2. State what specific comparative negligence the defendant is claiming that the plaintiff
caused, participated in or which contributed to plaintiffs injury.
3. State the date or dates that each specific act of comparative negligence was committed
by the plaintiff (asserting which specific acts or omissions on plaintiff s part caused or contributed to
plaintiff s injuries).
SEATBELTS
1. State in what manner itis alleged that the plaintiff failed to use seatbelts.
2. Specify the type of seatbelts itis alleged that plaintiff failed to use.
3. Specify in detail the names and addresses of any witness to the plaintiff s failure to
use seatbelts.
4. State in what manner the alleged failure to use seatbelts constitutes a failure to
mitigate damages.
INSURANCE LAW (ARTICLE 51)
plaintiffs'
1. State in complete detail how sole and exclusive remedy is confined and
limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York.
2. State in complete detail in what manner the defendants allege that the plaintiff failed
to sustain a serious injury as defined by Section 5102(d) of the Insurance Law of the State of New
York.
3. State in what manner the plaintiff is barred from bringing this action by the
provisions of the New York Comprehensive Automobile Insurance Reparations Act.
ASSUMPTION OF RISK
1. State in full detail what damages and/or injuries sustained by the Plaintiff,which were
caused or contributed to, in whole or in part, by the assumption of risk on the part of the Plaintiff.
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2. State in fulldetail what risks and dangers connected with the occurrence at the time
and place mentioned which were open, obvious, apparent and known to and assumed by the Plaintiff.
3. In what manner the damages and/or injuries sustained by the plaintiffwere contributed
to,in whole or in part, by the culpable conduct on the part of the plaintiff.
4. State in complete detail the manner the plaintiff is not entitled recover any sums of
money for economic loss pursuant to Article 51 of theNew York State Insurance.
BARRED BY ARTICLE 51, SECTION 5104
1. State in complete detail how plaintiff s cause of action is barred by Article 51,
Section 5104 of the Insurance Law of the State of New York.
COLLATERAL SOURCE
1. State in detail any and all collateral sources which the defendant alleges will reduce
the verdict, judgment or settlement by the plaintiff, or, in specifically, the amount of money that will,
with reasonably certainty, replace or indemnify the plaintiff, in whole or in part, for any past or future
claim for economic loss.
OTHER PARTY CULPABILITY
1. State in full detail the names and addresses of all other parties or equities whom the
defendant alleges are liable by reason of relative culpability.
ACTS OR OMISSIONS OF OTHER PARTIES
1. State in full detail what damages and/or injuries sustained by the plaintiff,which were
caused or contributed to, in whole or in part, by the acts or omissions of persons other than the
defendant.
2. State in full details the names and addresses of all other persons who committed these
acts and/or omissions.
ACTION BARRED BY STATUTE OF LIMITATIONS
1. The specific statute, section and subsection pursuant to which this defense is
asserted.
2. State in complete detail how it iscalculated that this matter is barred by Statute of
Limitations.
PLEASE TAKE FURTHER NOTICE, that upon your failure to comply with the
foregoing demand, plaintiff will move for an Order for Preclusion herein, pursuant to the rules of
this Court.
PLEASE TAKE FURTHER NOTICE, that all of these Demands shall be deemed to be
continuing during the pendency of the action, including the trialthereof. In the event of failure or
refusal to comply with these Demands, the plaintiff(s) shall seek to preclude the testimony of any
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such witnesses or the introduction into evidence of any previously non-disclosed statements,
records, reports or any other items demanded herein. Plaintiff(s) also reserves the right to seek
costs and/or sanctions for any non-compliance.
Dated: Rockville Centre, New York
May 14, 2020
Yours, etc.,
GABRIEL L FI , P.C.
SUREN GABRI , ESQ.
Attorneys for P intzff
2 Lincoln Av ne, Suite 400
Rockville Centre, New York 11570
(516)360-9101
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_____________________________________-------------X
INDEX NO. 527995/2019
KENNETH L. MITCHELL,
Plaintiff,
NOTICE TO PRESERVE
-against-
GLEN P. MILLER,
Defendant.
-----------------------------------------------------------X
COUNSELORS:
PLEASE TAKE NOTICE THAT, pursuant to the within notice, Defendant GLEN P.
MILLER shall preserve any and all evidence concerning the accident at issue in thisaction which
is currently in the possession or control of GLEN P. MILLER or of any representative of GLEN
P. MILLER. Such evidence includes, but is not limited to, the following: (i)Any and all involved
equipment, photographs, videotape, recorded audio, or computer media; (ii)Measurements; (iii)
Real evidence, materials, or any other tangible thing involved in,or affected by, the accident; and
(iv) Documents, memoranda, or any other writing documenting, memorializing, or otherwise
concerning the accident.
Any such evidence shall be maintained and preserved, and not be destroyed, altered,
modified, repaired, or changed in any manner; and shall include any documents or other writings
whatsoever, whether stored in paper, electronic, or other format.
Dated: Rockville Centre, New York
May 14, 2020
Yours, etc.,
GABRIEL L FI M, . .
SUREN GABRIE , E .
Attorneys for Pl mti
2 Lincoln Ave , Suite 400
Rockville Centre, New York 11570
(516)360-9101
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X
INDEX NO. 527995/2019
KENNETH L. MITCHELL,
Plaintiff,
EXPERT WITNESS
-against- DISCOVERY
GLEN P. MILLER,
Defendant.
------------------------------------------------------------X
COUNSELORS:
PLEASE TAKE NOTICE THAT pursuant to CPLR 3101(d) Defendants GLEN P.
MILLER shall provide the following information about any person to be called at trial as an expert
witness.
1. A recent and complete curriculum vitae, including name and current address.
2. Educational background, including names and addresses of each professional school
attended and the dates of attendance.
3. Number of years engaged in the expert's specialty.
4. Membership in professional organizations or societies, however denominated or identified.
5. Whether the expert was subject to any disciplinary proceedings and, if so, their outcome.
6. For any individual expected to testify as an expert about any medical matter:
a. present field of sub-
Qualifications, including occupation, specialization,
specialization, and any board certification;
b. The names and addresses of each hospital or other institution where the expert
participated in an internship, residency, or fellowship program; and the dates
thereof;
c. The names and addresses of each hospital in which the expert is employed or has
privileges, and the nature of the relationship; and
d. The name of all States in which the expert is or has been licensed; and the State in
which the expert primarily practices.
7. A detailed description of the expected testimony, including facts, opinions, and the grounds
and/or documents upon which the expert will rely, including without limitation any
publications, articles, peer reviews, and any other element relevant to the expert's ultimate
opinion.
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8. Any publications the expert has published or subjected to peer review.
9. A detailed schedule of previous appearances in court as an expert.
Dated: Rockville Centre, New York
May 14, 2020
Yours, etc.,
GABRIEL LAW , P .
SUREN GAB
Preview
FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X INDEX NO. 527995/2019 KENNETH L. MITCHELL, Plaintiff, COMBINED DEMANDS -against- GLEN P. MILLER, Defendant. ----------------------------------------------------------------------X COUNSELORS: PLEASE TAKE NOTICE that demand is hereby made that Defendant GLENP. MILLER answer the annexed COMBlNED DEMANDS in the manner and within the deadlines set forth in the Civil Practice Law and Rules (CPLR). _.. • Demand for Discovery and Inspection • Demand for Bill of Particulars • Notice to Preserve • Expert Witness Discovery • Fact Witness Discovery • Notice for Examination Before Trial • Notice to Admit Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions and requests contained in the above documents are not frivolous: Dated: Rockville Centre, New York May 14, 2020 Yours, etc., GABRIEL LAW FIR , P. . SUREN GABRIEL, US . GABRIEL LAW FIR , .C. Attorneysfor Plaintiff 2 Lincoln Avenue, Su e 0 Rockville Centre, Ne ork 11570 (516)360-9101 1 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X INDEX NO. 527995/2019 KENNETH L. MITCHELL, Plaintiff, DEMAND FOR -against- DISCOVERY AND INSPECTION GLEN P. MILLER, Defendant. ---------------------------------------------------------X COUNSELORS: PLEASE TAKE NOTICE THAT, pursuant to CPLR 3120 and the applicable rules of this Court, demand is hereby made upon Defendant GLEN P. MILLER that true and accurate copies of the documents listed below be made available for inspection and copying at the office of the undersigned. DEFINITIONS Accident" (A) The term "Underlying refers to the collision that took place on Monday, July 29, 2019, on Schenectady Avenue at or about itsintersection with East New York Avenue in County of Kings, State of New York, between the vehicle operated by KENNETH L. MITCHELL and the vehicle operated by GLEN P. MILLER. Vehicle" (B) The term "Defendant's shall refer to the vehicle which, at the time of the Underlying Accident, was: (i) Owned by GLEN P. MILLER; and (ii)Involved in the Underlying Accident. "any" "each" all," such," (C) The terms or shall mean "any and "any and similar all-inclusive references necessary to bring within the scope of the discovery request allresponses that might otherwise be construed to be outside of its scope. "and/or" (D) The expression shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. "document" (E) The term shall mean, without limitation, any kind of written, recorded, or graphic material, however, produced, reproduced, or maintained, including, without limitation, papers, photographs, films, recordings, memoranda, books, records, accounts, letters, correspondence, notes of meetings or of conversations either in writing or upon any mechanical or electrical or electronic recording device, work papers, surveys, checks, statements, facsimiles, telecopies, work sheets, reports, e-mails, instant messages, social media post, CD-ROMs, floppy disks, manuals, lists, diaries, notebooks, microfiche, ledgers, files, telegrams, minutes, summaries, contracts, computer databases, computer printout sheets, log books, financial statements, drawings, charts, schedules, telex 2 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 messages, notes, intra-office and inter-office communications, transcripts, affidavits, desk calendars, appointment books, telephone logs, data sheets, or printed matter of every kind or description, including allfinal originals, drafts, revisions, or different versions of any of the foregoing, as well as any copies of the foregoing that are not identical to the original (either by interlineation, receipt stamped, notation, indication of copy sent or received, or otherwise) and are in the actual or constructive possession, custody, care, or control of the responding party, and whether the documents are recorded in a writing or otherwise by way of an electrical, mechanical, or electronic device (including, without limitation, storage media such as computer hard drives, CD-ROMs, floppy disks, zip drives, portable drives, and similar devices). "concern" "concerning" (F) The term or means concerning, referring to, having to do with, regarding, describing, evidencing, memorializing, demonstrating, substantiating, made in connection with, arising out of, or constituting; and shall have the broadest possible meaning consistent with the CPLR. "communication" (G) The term shall mean all discussions, conversations, meetings, conferences, telephone conversations, interviews, negotiations, agreements, understandings, cards, letters, correspondence, facsimile transmission, telegrams, telexes, electronic mail, voicemail, or other forms of written or verbal exchange or interchange, however transmitted or stored, including reports, notes, memoranda, lists, summaries, agenda and other records of, or documents memorializing, any such communication. "person" (H) The term shall refer to: (i) a natural person; or (ii) a legal entity, including a corporation, partnership, limited liability corporation, limited liability partnership, firm, association, professional corporation, proprietorship, or similar private or public entity. "identify" (I) The term shall mean, with respect to a person, to give the person's full name, present or last known address, any telephone, cellphone, and/or facsimile numbers, any email address, any website, and any social-media identity, avatar, or similar unique identifier; and, with respect to a natural person, also that person's present and/or lastknown "identify" place of employment, job title,and job duties. With respect to a document, to shall mean either to provide a copy of that document or to provide information concerning: (i)The type of document; (ii)General subject matter; (iii)Date of the document; and (iv) Author(s), addressee(s), and recipient(s). "file" (J) The term shall refer to one or more structured arrays of documents, directly or indirectly concerning things, concepts, ideas, persons, or any other identifiable subject, which are searchable or otherwise accessible according to specified criteria including, without limitation, names, addresses, claim numbers, dates of accident, amounts billed, or descriptions of healthcare services or supplies. "representative" (K) The term refers to and include any person, including attorneys, agents, investigators, servants, officers, or employees, who acts, has at any time acted, or has at any time been requested or solicited to act for the benefit or on behalf of another person, upon this other person's request and/or with this other person's knowledge, consent, or acquiescence. 3 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 INSTRUCTIONS (I) Unless otherwise stated, each part, paragraph, and subparagraph of the following Demands shall be construed independently and without reference to any other part, paragraph, or subparagraph for the purpose of limitation. (II) The use of the singular form of any word includes the plural, and vice versa. (III) Each Demand seeks production of all documents described, together with any attachments thereto, drafts whereof, and non-identical copies, in any language and format whatsoever. (IV) Documents are to be produced in their entirety, without redaction or expurgation. (V) If any document or thing responsive to the following Demands has been destroyed or discarded, or is otherwise unavailable or disposed of, that document or thing shall be identified as completely as possible, including by providing the following information: (i) Every author of a document; (ii)Every owner of a thing; (iii)Each and every recipient; (iv) Date and subject matter of a document; (v) Reason for disposal; (vi) Each and every person who authorized disposal and/or personally disposed of the document or thing. DEMANDS 1) Any document created and/or maintained in Defendant's liability insurance file or files, from the date of the Underlying Accident and up until the date on which liability coverage was denied or confirmed to exist with respect to the Underlying Accident. 2) With respect to any insurance in effect for Defendant's Vehicle at the time of the Underlying Accident, any primary, co-insurance, re-insurance, excess, catastrophe, umbrella, and/or other applicable liability coverage policies and/or agreements ofinsurance in which Defendant is either named insured or additional named insured, including declaration sheets, riders, limitations, endorsements, amendments, cancellations, face sheet, and/or binders, which may apply to satisfy all of a judgment which may be entered in this action, or to indemnify or reimburse payments made to satisfy the judgment which may be had as against Defendant. 3) If applicable, an affidavit of no excess insurance concerning the Underlying Accident. 4) Any document memorializing any communication to or from any person who was either a witness to the Underlying Accident or acquainted with any condition related to said Underlying Accident; also identify each such person. 5) Any accident report prepared by or received by Defendant or Defendant's representatives or any other source, concerning the Underlying Accident and prepared in the regular course of business operation or practice of any person. 6) With respect to any statement and/or report concerning the Underlying Accident, alleged by or known to Defendant to have been made by Plaintiff or Plaintiff's representative: (i) Any such written statement and/or report, whether signed or unsigned, taken by, maintained by, or in the possession, custody, or control of, Defendant or Defendant's representatives; (ii)If any such statement or report was electronically recorded, any tape, record, videotape, or other recording, and a true and complete transcription of the 4 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 recording; and (iii) Any statement relating to any prior occurrences or claims reflected in any report from the Central Index Bureau (a/k/a "ISO REPORT"). 7) Any Item of Visual Evidence purporting to depict the appearance or activities of Plaintiff, together with the full name and address of the person or persons alleged to have made, prepared, created, taken, maintained, received, and/or obtained each such Item of Visual Evidence. 8) Any Item of Visual Evidence of the siteof the Underlying Accident, or purporting to depict the site of the Underlying Accident, together with the full name and address of the person or persons alleged to have made, prepared, created, taken, maintained, received, and/or obtained each such Item of Visual Evidence. 9) Any Item of Visual Evidence which purports to depict any experiment simulating the Underlying Accident, or any other relevant condition or circumstance existing at the time of the Underlying Accident at or near the location where the Underlying Accident took place, together with the full name and address of the person or persons alleged to have made, prepared, created, taken, maintained, received, and/or obtained each such Item of Visual Evidence. 10) Any Item of Visual Evidence depicting any of the vehicles involved in the Underlying Accident, together with the full name and address of the person or persons alleged to have made, prepared, created, taken, maintained, received, and/or obtained each such Item of Visual Evidence. 11) Any Surveillance Material made, prepared, created, taken, received, maintained, obtained by, or in the possession, custody, or control of Defendant or Defendant's representatives; and/or made, prepared, created, taken, received, maintained, obtained by, or in the possession, custody, or control of, any third party, and available to Defendant. Also identify the videographer, photographer, and/or person or persons, or entity, alleged to have made, prepared, created, taken, maintained, received, and/or obtained such Surveillance Material; and the date or dates when said Surveillance Material was first made, created, or taken, and when itwas received by Defendant. 12) Any past and current driver's license held by Defendant, as well as and any record relating to, or affecting, said license, including suspensions and/or revocations. 13) Any record of conviction for moving violations committed by Defendant in the United States and any of its possessions or territories, or in any foreign country. 14) Any maintenance records concerning Defendant's Vehicle for a period going from one year before the Underlying Accident to the present date. 15) Any record, note, memorandum, bill, work order, change order, correspondence, or other documents concerning any inspection, maintenance of, or repairs to,Defendant's Vehicle. 16) Any report, notice or claim (whether formal or informal), or complaint filed in a court of law or arbitration concerning Defendant, including the name and address of each person making said report, notice of claim, or complaint, for a period going from five years before the Underlying Accident to the present date. 17) Any lease agreement concerning Defendant's Vehicle. 5 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 18) Any report, information, and/or data concerning the Underlying Accident and generated Retrieval" by the Defendant's Vehicle's "Crash Data (CDR) system, "Event Data Recorder" Module" or like device, and/or "Airbag Control (ABM). 19) Any cellular telephone records, for a period going from one hour before the Underlying Accident to three hours thereafter, concerning any cellular telephone or other mobile communication device located in Defendant's Vehicle at the time of the Underlying Accident. 20) Any record generated by Defendant's Vehicle's GPS, LoJack, OnStar, or similar tracking or communication device, for a period going from one hour before the Underlying Accident to five hours thereafter. 21) DEFENDANT'S VEHICLE, ifthis is in Defendant's possession, custody, or control; otherwise, a verified authorization permitting Plaintiff to inspect and examine Defendant's Vehicle, including by measuring, accessing the interior of, and photographing it. Dated: Rockville Centre, New York May 14, 2020 Yours, etc. SUR N AB L, ESQ. GAB E W FIRM, P.C. · Attorneys Plaintiff 2 Lincoln ve., Ste 400 Rockvill Centre, New York 11570 (516) 360-9101 6 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -- --------------------------------------------------------X INDEX NO. 527995/2019 KENNETH L. MITCHELL, Plaintiff, DEMAND FOR BILL OF -against- PARTICULARS GLEN P. MILLER, Defendant. ---------------------------------------------------------------------X COUNSELORS: PLEASE TAKE NOTICE THAT pursuant to CPLR 3120, Defendant GLEN P. MILLER shall serve upon the undersigned within twenty days hereaf a Verified Bill of Particulars with respect to the Affirmative Defenses contained in the respective Answer, which shall provide the following information: CULPABLE CONDUCT 1. A statement of each and every act on the part of plaintiff, which constitutes plaintiff s alleged culpable conduct, which defendant contends, was the cause of plaintiff s injuries. 2. State the date of each specific act of culpable conduct by the plaintiff. Set forth the place where each alleged act of culpable conduct occurred. State what damages, if any, sustained by the plaintiff, which were caused or attributed to by reason of plaintiff s alleged culpable conduct. DUE CARE 1. A statement of each and every act constituting the due care on the part of plaintiff, which itis alleged plaintiff, was required to use for plaintiff s own safety. 2. Set forth in detail in what respect the alleged failure caused or contributed to these injuries and damages. 3. State the date that each and every act occurred. CONTRIBUTORY NEGLIGENCE 1. State what damages, ifany, sustained by the plaintiff, which were caused or attributed to by reason of plaintiff s alleged contributory negligence. 2. State what specific contributory negligence the defendant is claiming that the plaintiff caused, participated in or which contributed to her injury. 3. State the date or dates that each specific act of contributory negligence was committed by the plaintiff (asserting which specific acts or omissions on plaintiff s part caused or contributed to plaintiff s injuries). 7 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 LACK OF JURISDICTION 1. State in what manner or what regard the defendant claims that this Court lacks jurisdiction over his person. 2. The time, date and place where notice of this lawsuit was received. 3. The manner in which it isclaimed that the service of process actually effected was defective. 4. Identify Defendant's complete residence address. 5. Identify Defendant's complete mailing address, ifdifferent from his residence address. 6. If it is claimed that process was not served in any form whatsoever, set forth a statement describing how notice of this lawsuit was obtained. COMPARATIVE NEGLIGENCE 1. State what damages, ifany, sustained by the plaintiff, which were caused or attributed to by reason of plaintiff s comparative negligence. 2. State what specific comparative negligence the defendant is claiming that the plaintiff caused, participated in or which contributed to plaintiffs injury. 3. State the date or dates that each specific act of comparative negligence was committed by the plaintiff (asserting which specific acts or omissions on plaintiff s part caused or contributed to plaintiff s injuries). SEATBELTS 1. State in what manner itis alleged that the plaintiff failed to use seatbelts. 2. Specify the type of seatbelts itis alleged that plaintiff failed to use. 3. Specify in detail the names and addresses of any witness to the plaintiff s failure to use seatbelts. 4. State in what manner the alleged failure to use seatbelts constitutes a failure to mitigate damages. INSURANCE LAW (ARTICLE 51) plaintiffs' 1. State in complete detail how sole and exclusive remedy is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. 2. State in complete detail in what manner the defendants allege that the plaintiff failed to sustain a serious injury as defined by Section 5102(d) of the Insurance Law of the State of New York. 3. State in what manner the plaintiff is barred from bringing this action by the provisions of the New York Comprehensive Automobile Insurance Reparations Act. ASSUMPTION OF RISK 1. State in full detail what damages and/or injuries sustained by the Plaintiff,which were caused or contributed to, in whole or in part, by the assumption of risk on the part of the Plaintiff. 8 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 2. State in fulldetail what risks and dangers connected with the occurrence at the time and place mentioned which were open, obvious, apparent and known to and assumed by the Plaintiff. 3. In what manner the damages and/or injuries sustained by the plaintiffwere contributed to,in whole or in part, by the culpable conduct on the part of the plaintiff. 4. State in complete detail the manner the plaintiff is not entitled recover any sums of money for economic loss pursuant to Article 51 of theNew York State Insurance. BARRED BY ARTICLE 51, SECTION 5104 1. State in complete detail how plaintiff s cause of action is barred by Article 51, Section 5104 of the Insurance Law of the State of New York. COLLATERAL SOURCE 1. State in detail any and all collateral sources which the defendant alleges will reduce the verdict, judgment or settlement by the plaintiff, or, in specifically, the amount of money that will, with reasonably certainty, replace or indemnify the plaintiff, in whole or in part, for any past or future claim for economic loss. OTHER PARTY CULPABILITY 1. State in full detail the names and addresses of all other parties or equities whom the defendant alleges are liable by reason of relative culpability. ACTS OR OMISSIONS OF OTHER PARTIES 1. State in full detail what damages and/or injuries sustained by the plaintiff,which were caused or contributed to, in whole or in part, by the acts or omissions of persons other than the defendant. 2. State in full details the names and addresses of all other persons who committed these acts and/or omissions. ACTION BARRED BY STATUTE OF LIMITATIONS 1. The specific statute, section and subsection pursuant to which this defense is asserted. 2. State in complete detail how it iscalculated that this matter is barred by Statute of Limitations. PLEASE TAKE FURTHER NOTICE, that upon your failure to comply with the foregoing demand, plaintiff will move for an Order for Preclusion herein, pursuant to the rules of this Court. PLEASE TAKE FURTHER NOTICE, that all of these Demands shall be deemed to be continuing during the pendency of the action, including the trialthereof. In the event of failure or refusal to comply with these Demands, the plaintiff(s) shall seek to preclude the testimony of any 9 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 such witnesses or the introduction into evidence of any previously non-disclosed statements, records, reports or any other items demanded herein. Plaintiff(s) also reserves the right to seek costs and/or sanctions for any non-compliance. Dated: Rockville Centre, New York May 14, 2020 Yours, etc., GABRIEL L FI , P.C. SUREN GABRI , ESQ. Attorneys for P intzff 2 Lincoln Av ne, Suite 400 Rockville Centre, New York 11570 (516)360-9101 10 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _____________________________________-------------X INDEX NO. 527995/2019 KENNETH L. MITCHELL, Plaintiff, NOTICE TO PRESERVE -against- GLEN P. MILLER, Defendant. -----------------------------------------------------------X COUNSELORS: PLEASE TAKE NOTICE THAT, pursuant to the within notice, Defendant GLEN P. MILLER shall preserve any and all evidence concerning the accident at issue in thisaction which is currently in the possession or control of GLEN P. MILLER or of any representative of GLEN P. MILLER. Such evidence includes, but is not limited to, the following: (i)Any and all involved equipment, photographs, videotape, recorded audio, or computer media; (ii)Measurements; (iii) Real evidence, materials, or any other tangible thing involved in,or affected by, the accident; and (iv) Documents, memoranda, or any other writing documenting, memorializing, or otherwise concerning the accident. Any such evidence shall be maintained and preserved, and not be destroyed, altered, modified, repaired, or changed in any manner; and shall include any documents or other writings whatsoever, whether stored in paper, electronic, or other format. Dated: Rockville Centre, New York May 14, 2020 Yours, etc., GABRIEL L FI M, . . SUREN GABRIE , E . Attorneys for Pl mti 2 Lincoln Ave , Suite 400 Rockville Centre, New York 11570 (516)360-9101 11 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X INDEX NO. 527995/2019 KENNETH L. MITCHELL, Plaintiff, EXPERT WITNESS -against- DISCOVERY GLEN P. MILLER, Defendant. ------------------------------------------------------------X COUNSELORS: PLEASE TAKE NOTICE THAT pursuant to CPLR 3101(d) Defendants GLEN P. MILLER shall provide the following information about any person to be called at trial as an expert witness. 1. A recent and complete curriculum vitae, including name and current address. 2. Educational background, including names and addresses of each professional school attended and the dates of attendance. 3. Number of years engaged in the expert's specialty. 4. Membership in professional organizations or societies, however denominated or identified. 5. Whether the expert was subject to any disciplinary proceedings and, if so, their outcome. 6. For any individual expected to testify as an expert about any medical matter: a. present field of sub- Qualifications, including occupation, specialization, specialization, and any board certification; b. The names and addresses of each hospital or other institution where the expert participated in an internship, residency, or fellowship program; and the dates thereof; c. The names and addresses of each hospital in which the expert is employed or has privileges, and the nature of the relationship; and d. The name of all States in which the expert is or has been licensed; and the State in which the expert primarily practices. 7. A detailed description of the expected testimony, including facts, opinions, and the grounds and/or documents upon which the expert will rely, including without limitation any publications, articles, peer reviews, and any other element relevant to the expert's ultimate opinion. 12 of 24 FILED: KINGS COUNTY CLERK 05/22/2020 10:01 AM INDEX NO. 527995/2019 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/22/2020 8. Any publications the expert has published or subjected to peer review. 9. A detailed schedule of previous appearances in court as an expert. Dated: Rockville Centre, New York May 14, 2020 Yours, etc., GABRIEL LAW , P . SUREN GAB