On September 30, 2020 a
Complaint,Petition
was filed
involving a dispute between
Christopher Eduardo Farias,
and
Five Star Awning,
for Torts - Other (Labor Law)
in the District Court of Queens County.
Preview
FILED: QUEENS COUNTY CLERK 09/30/2020 02:59 PM INDEX NO. 717252/2020
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
----------------------------------------------------------------------X
In the Matter of Petitioner, CHRISTOPHER EDUARDO
FARIAS, who seeks an Order pursuant to CPLR 3102(c) AFFIRMATION
Compelling Respondent, FIVE STAR AWNING to Index #:
Furnish pre action disclosure.
----------------------------------------------------------------------X
MARTIN GROSSMAN, Esq., an attorney duly admitted to practice law before the Courts
of the State of New York, hereby affirms the truth of the following under the penalties of
perjury under the penalties of perjury as proscribed by CPLR § 2106:
1. I am an associate with the law firm of ROBERT A. CARDALI & ASSOCIATES, LLP,
attorneys for the petitioner, CHRISTOPHER EDUARDO FARIAS, and, as such, am fully familiar
with the facts and circumstances of this matter by virtue of a review of the file maintained in
my office.
2. I submit this affirmation in support of the within application of the petitioner
for an Order pursuant to CPLR § 3102(c) compelling pre-action discovery from the
respondent, FIVE STAR AWNING located at 5923 Decatur Street Ridgewood, New York 11385.
3. Petitioner retained this firm as counsel for the prosecution of an action for
serious injuries he sustained as a result of an incident that occurred at a jobsite on December
20, 2019.
4. Specifically, on that date, petitioner was working for respondent at a
construction site located at the TWA Hotel, JFK Airport, Jamaica, NY. Annexed as Exhibit “A”
is petitioner’s Affidavit of Merit.
5. Petitioner, who was an employee for respondent on the date of the accident,
has no knowledge as to the identity of the individual and/or entity that retained his employer
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2020
to perform work at the subject location. As such, petitioner respectfully requests that the
respondent be compelled to produce the following items:
a. NAME AND ADDRESS of the entity that retained FIVE STAR AWNING to work at
the subject location;
b. COPY OF THE AGREEMENT between the two entities;
c. NAMES OF THE WORKERS FROM FIVE AWNING at the job site who were present
at the time of the accident;
d. ANY RECORDS OR REPORTS pertaining to the subject incident;
e. ANY WRITTEN STATEMENTS obtained from Mr. Farias or his co-workers
Concerning the incident.
6. In support of this application, petitioner respectfully refers this Honorable
Court to the relevant case law in this area. Under CPLR § 3102(c), a party that has a viable
cause of action against another, but needs assistance in the form of disclosure from a third-
party to determine the form of that cause of action, may make an application for pre-action
disclosure from said third-party. See, Siegel, Practice Commentaries, McKinney’s Cons. Laws
of N.Y., Book 7B, CPLR § 3102:4 at 311. In order to obtain this disclosure, the requesting party
must submit facts in admissible form from an individual with personal knowledge
demonstrating that a viable cause of action exists. See, Cotler v. Retail Credit Co., 18 AD2d 898
[1st Dept. 1963]. Provided that this threshold requirement is satisfied, pre-action disclosure
can be provided to a requesting party to determine the proper parties to the potential cause of
action. See, Boltja v. Southside Hospital, 153 Misc2d 568 [Sup. Ct., Nassau County 1992].
7. Your affirmant respectfully refers this Court to the affidavit of the petitioner.
The substance of this affidavit establishes that the petitioner has a meritorious cause of action
as he was hit by a large metal panel which was being hoisted from an elevation above his
work area.
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8. A previous request was made to obtain the requested information (Exhibit
“B”).
9. Our request herein is made for records as well as information due to the
probability of spoliation. Petitioner’s accident occurred approximately eight (8) months ago.
In the present case, petitioner respectfully submits that he has demonstrated his entitlement
to the relief requested herein such that CPLR § 3102 (c) should be properly invoked and the
instant application granted by the Court in its entirety.
10. Petitioner agrees to bear the cost of reproducing the requested items.
11. This application is made by Order to Show Cause pursuant to Court Rules.
12. No prior application has been made for the relief requested herein.
WHEREFORE, petitioner respectfully requests that this Honorable Court issue an
Order granting the within application in accordance with the foregoing; and for such other
and further relief as this Honorable Court may deem just and proper.
Dated: New York, New York
September 30, 2020
MARTIN GROSSMAN, ESQ.
3 of 3
Document Filed Date
September 30, 2020
Case Filing Date
September 30, 2020
Category
Torts - Other (Labor Law)
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FILED: QUEENS COUNTY CLERK 09/30/2020 02:59 PM INDEX NO. 717252/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------------X In the Matter of Petitioner, CHRISTOPHER EDUARDO FARIAS, who seeks an Order pursuant to CPLR 3102(c) AFFIRMATION Compelling Respondent, FIVE STAR AWNING to Index #: Furnish pre action disclosure. ----------------------------------------------------------------------X MARTIN GROSSMAN, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury under the penalties of perjury as proscribed by CPLR § 2106: 1. I am an associate with the law firm of ROBERT A. CARDALI & ASSOCIATES, LLP, attorneys for the petitioner, CHRISTOPHER EDUARDO FARIAS, and, as such, am fully familiar with the facts and circumstances of this matter by virtue of a review of the file maintained in my office. 2. I submit this affirmation in support of the within application of the petitioner for an Order pursuant to CPLR § 3102(c) compelling pre-action discovery from the respondent, FIVE STAR AWNING located at 5923 Decatur Street Ridgewood, New York 11385. 3. Petitioner retained this firm as counsel for the prosecution of an action for serious injuries he sustained as a result of an incident that occurred at a jobsite on December 20, 2019. 4. Specifically, on that date, petitioner was working for respondent at a construction site located at the TWA Hotel, JFK Airport, Jamaica, NY. Annexed as Exhibit “A” is petitioner’s Affidavit of Merit. 5. Petitioner, who was an employee for respondent on the date of the accident, has no knowledge as to the identity of the individual and/or entity that retained his employer 1 of 3 FILED: QUEENS COUNTY CLERK 09/30/2020 02:59 PM INDEX NO. 717252/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2020 to perform work at the subject location. As such, petitioner respectfully requests that the respondent be compelled to produce the following items: a. NAME AND ADDRESS of the entity that retained FIVE STAR AWNING to work at the subject location; b. COPY OF THE AGREEMENT between the two entities; c. NAMES OF THE WORKERS FROM FIVE AWNING at the job site who were present at the time of the accident; d. ANY RECORDS OR REPORTS pertaining to the subject incident; e. ANY WRITTEN STATEMENTS obtained from Mr. Farias or his co-workers Concerning the incident. 6. In support of this application, petitioner respectfully refers this Honorable Court to the relevant case law in this area. Under CPLR § 3102(c), a party that has a viable cause of action against another, but needs assistance in the form of disclosure from a third- party to determine the form of that cause of action, may make an application for pre-action disclosure from said third-party. See, Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR § 3102:4 at 311. In order to obtain this disclosure, the requesting party must submit facts in admissible form from an individual with personal knowledge demonstrating that a viable cause of action exists. See, Cotler v. Retail Credit Co., 18 AD2d 898 [1st Dept. 1963]. Provided that this threshold requirement is satisfied, pre-action disclosure can be provided to a requesting party to determine the proper parties to the potential cause of action. See, Boltja v. Southside Hospital, 153 Misc2d 568 [Sup. Ct., Nassau County 1992]. 7. Your affirmant respectfully refers this Court to the affidavit of the petitioner. The substance of this affidavit establishes that the petitioner has a meritorious cause of action as he was hit by a large metal panel which was being hoisted from an elevation above his work area. 2 of 3 FILED: QUEENS COUNTY CLERK 09/30/2020 02:59 PM INDEX NO. 717252/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2020 8. A previous request was made to obtain the requested information (Exhibit “B”). 9. Our request herein is made for records as well as information due to the probability of spoliation. Petitioner’s accident occurred approximately eight (8) months ago. In the present case, petitioner respectfully submits that he has demonstrated his entitlement to the relief requested herein such that CPLR § 3102 (c) should be properly invoked and the instant application granted by the Court in its entirety. 10. Petitioner agrees to bear the cost of reproducing the requested items. 11. This application is made by Order to Show Cause pursuant to Court Rules. 12. No prior application has been made for the relief requested herein. WHEREFORE, petitioner respectfully requests that this Honorable Court issue an Order granting the within application in accordance with the foregoing; and for such other and further relief as this Honorable Court may deem just and proper. Dated: New York, New York September 30, 2020 MARTIN GROSSMAN, ESQ. 3 of 3