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FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--- -----------------------------------------------------x
YVETTE MCCLAMB, Index No. 154374/2018
(ECF)
Plaintiff,
v.
RESPONSE TO PLAINTIFF'S
HOUSING PARTNERSHIP DEVELOPMENT NOTICE TO PRODUCE
CORPORATION, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC AND WEST
NEW YORK RESTORATION OF CT, INC.,
Defendants.
---------------------------------------------------------------x
Cross-Claimant-Defendant West New York Restoration of CT, Inc. ("West New York"),
by and through its undersigned counsel, hereby responds to the Notice to Produce of Plaintiff
Yvette McClamb ("Plaintiff"), as follows:
GENERAL OBJECTIONS AND LIMITATIONS
All of the General Objections and Limitations set forth herein are incorporated into each
of the specific responses to Plaintiff's discovery demands, and have the same force and effect as
if fully set forth with each response:
1. The responding party objects to any discovery demand to the extent that it seeks
to impose on the responding party obligations or requirements beyond those imposed by the
CPLR.
2. The responding party objects to any discovery demand to the extent that itseeks
information or documents that are not presently within the possession, custody or control of
counsel for the responding party or the responding party and thereby purports to impose
obligations beyond those required by the CPLR.
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3. The responding party objects to any discovery demand to the extent that itseeks
information protected from discovery by the attorney-client privilege, the work-product doctrine,
the self-critical analysis privilege, the consulting-expert privilege, or any other applicable
privilege or immunity from discovery recognized by law (collectively, the "Privileged
Information"). Any undertaking by the responding party to provide information in response to
any discovery demand should be understood to exclude any Privileged Information.
4. The responding party objects to any discovery demand to the extent that it seeks
information prepared in contemplation and/or anticipation of litigation.
5. In responding to any discovery demands, the responding party does not in any
waive or intend to waive but, rather, intends to preserve and is preserving:
a. all objections as to competency, relevancy, materiality, privilege
and admissibility of evidence for any purpose of any information, or the subject
matter thereof, in the trial of this or any other action or subsequent proceedings:
b. the right to object to the use of any information, or the subject
matter thereof, in the trial of this or any other action or subsequent proceedings;
c. the right to elicit appropriate evidence, beyond the responses
themselves, regarding the subjects referred to in or in response to any request;
d. the right to preserve the confidential or proprietary nature of any
information, or the subject matter thereof, by mutual agreement or otherwise, as a
condition of production; and
e. the right at any time to correct, supplement, or clarify any of the
responses.
6. The responding party's failure to object to any discovery demand on a particular
ground or grounds shall not be construed as a waiver of its rights to object on that or any
additional ground(s). Subject to and without waiving any objection stated herein, the responding
party will provide responses to discovery demands based on information that is believed to be
complete and accurate as of the present date. The responding party's investigation of the factual
matters related to this litigation is ongoing. The responding party reserves the right to amend
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and/or supplement its responses and production, as may become necessary, in accordance with
the applicable provisions of the CPLR.
7. Each response to any discovery demand is made subject to all objections as to
competence, relevance, materiality, propriety and admissibility, as well as any and all other
objections and grounds which require the exclusion of evidence. The responding party reserves
the right to make any and all objections at trialand at any other proceeding relating to this action.
8. The responding party objects to any discovery demand that fails to limit the
information or materials requested to any period of time relevant to the claims and defenses at
issue in these cases. Therefore, absent a limitation to the relevant period of time, the responding
party objects to these demands because they are overly broad, unduly burdensome and not
reasonably calculated to lead to the discovery of admissible evidence relevant to the claims and
defenses presently in this lawsuit. Rather, the discovery demands that are not so limited
constitute an impermissible fishing expedition.
9. Subject to and without waiving these General Objections and Limitations, which
are hereby incorporated by references within each response, the responding party states as
follows:
SPECIFIC OBJECTIONS AND RESPONSES
1. Each and every primary, contributory and excess insurance agreement under
which any person carrying on an insurance business may be liable to satisfy part or all of the
judgment which may be entered in this action or to indemnify or reimburse for payments made to
satisfy the judgment and each and every insurance agreement in which the insurer is obligated to
defend this action.
RESPONSE: Objection. Without waiving any objection, West New York will provide
the relevant portions of its general commercial liability insurance policy and itsexcess insurance
policy subject to the parties entering into a mutually acceptable confidentiality agreement.
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2. a) Original photographs of the scene of the occurrence herein in your possession
which represent the condition of the location of the occurrence herein at the time of said
occurrence, prior thereto or after the said occurrence which is the subject matter of this action
and/or any instrumentalities involved in this within occurrence.
RESPONSE: West New York is not in possession of any photographs of the sidewalk
116th
abutting the building the building commonly known by the street address of 40 West
Street, New York, New York that represent the condition of the sidewalk at the time of the
alleged accident or thereafter. Without waiving any objection, West New York is producing
herewith five photographs that are bate stamped WNY0190 through WNY0194 that were taken
prior to occurrence of the alleged accident complained of in Plaintiff's complaint.
2. b) Original photographs of the plaintiff(s) taken before, during or subsequent to the
occurrence herein.
RESPONSE: West New York is not in possession of any photographs of plaintiff.
2. c) Original photographs of the motor vehicle(s) involved in this occurrence, if
applicable.
RESPONSE: Inapplicable because a motor vehicle is not alleged to have been involved
in this occurrence.
3. a) Any and all surveillance materials, including but not limited to films, video-tapes
or photographs depicting or alleging to depict, the plaintiff(s), which you intend to use upon the
trial of this action, now in your possession, custody or control, or in the possession, custody or
control of any party you represent in this action.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand, and reserves the right to supplement this response.
3. b) Pursuant to CPLR Section 3101(i), all films, photographs, video tapes
and/or audio tapes, including transcripts and/or memoranda thereof, including all out-takes,
rather than only those portions defendant(s) intend(s) to use at trial.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
4. a) Any and all statements in the possession, custody or control of any party you
represent in this action, actually or allegedly made by or taken from the plaintiff(s).
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
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4. b) The name and residence address of each and every individual who spoke,
discussed or otherwise reviewed with any party herein either the occurrence or incident alleged
in the complaint together with the business address of each named individual together with any
defendants'
notes or memoranda made by such individuals or by anyone on behalf of the
attorneys with respect to each such conversation, discussion or review.
RESPONSE: Without waiving any objection, West New York states no such
individuals are currently known to West New York. Responding further, West New York is not
in possession of documents responsive to this demand and reserves the right to supplement this
response.
5. Names and addresses of all persons claimed by parties you represent herein to
have either witnessed the occurrence herein or to have firsthand knowledge of same or to have
notice of the condition proximately causing this occurrence or having firsthand knowledge of
facts and circumstances regarding this occurrence whether by the parties you represent at the
scene of the occurrence or thereafter obtained by their attorneys or representatives.
RESPONSE: Without waiving any objection, West New York states no such individuals
are currently known to West New York. Responding further, West New York is not in
possession of documents responsive to this demand and reserves the right to supplement this
response.
6. Any and all written reports concerning the occurrence herein which is the subject
matter of this lawsuit prepared in the regular course of business operations or practices of any
person, firm, corporation, association or other public or private entity.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
7. Copies of any and all transcripts of Examinations Before Trial, Hearings or other
statements made by plaintiff(s), whether electronically or otherwise, taken of plaintiff(s) by
defendants or their representatives.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
8. a) Any and all medical reports and/or records submitted to defendants by their
physicians who have examined plaintiff(s) on behalf of defendants.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
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8. b) Name and address of each and every physician who will testify on behalf of the
defendants herein together with copies of their medical reports which shall include a detailed
recital of the injuries and conditions as to which testimony will be offered at the trial referring to
technicians'
and identifying those x-rays and reports which will be offered at trial.
RESPONSE: West New York will provide expert information, ifnecessary, pursuant to
CPLR § 3101(d), and reserves the right to supplement this response.
9. Certificates of doing business and Certificates of Incorporation relating to each
and every defendant.
RESPONSE: Objection, overbroad, unduly burdensome, and palpably improper. The
Certificates of doing business and Certificates of Incorporation are not relevant in this personal
injury action in which liability has not been established and is not reasonably calculated to lead
to the discovery of admissible evidence relevant to the claims and defenses presently in this
lawsuit.
10. If applicable herein, the name, last known address and social security number of
the Superintendent, Managing Agent and Landlord of the premises where the occurrence herein
took place.
RESPONSE: Wallack Management Co., Inc. is the managing agent and it may be
contacted through its attorneys that have already appeared in this personal injury action. The
Superintendent for the building may be contacted through counsel for the building that has
already appeared in this personal injury action.
11. Any Inter-company Accident Reports relating to the occurrence herein.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand, and reserves the right to supplement this response.
12. The name and address of the Foreman/Foremen, Supervisor/Supervisors, Security
officer(s), and all employees of defendants who were present in the vicinity of the occurrence
herein at the time of the occurrence herein.
RESPONSE: Without waiving any objection, West New York states no such individuals
are currently known to West New York, and reserves the right to supplement this response.
13. Copies of any and all claim forms, applications for benefits, bills and reports
obtained from or on behalf of plaintiff(s) by defendants and/or their insurance representatives
relating to the occurrence herein.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand, and reserves the right to supplement this response.
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14. A list of any and all payments made by defendants and/or their insurance
representatives as a result of the occurrence herein which list is to include the date of each
payment, the amount of each payment, the name and address to whom payment was made, the
check or draft number of each payment and the reason for each payment.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
15. Copies of and/or statements of any and all inspections and periodical inspections
of the location of the occurrence from the date of the accident and for a period of two years prior
thereto.
RESPONSE: Without waiving any objection, West New York is not in possession of
copies and/or statement of inspections of the sidewalk abutting the building commonly known as
116th
40 West Street, New York, New York.
16. Copies of any and all maintenance and repair records for the location of the
occurrence from the date of the accident and for a period of two years prior thereto.
RESPONSE: Without waiving any objection, West New York is not in possession of
maintenance and repair records for the sidewalk abutting the building commonly known as 40
116th
West Street, New York, New York.
17. Copies of the records of and/or statements of any and all constructions and
alterations for the location of the occurrence from the date of the accident and for a period of
three years prior thereto.
RESPONSE: Without waiving any objection, West New York is not in possession of
records and statements concerning constructions and alternations of the sidewalk abutting the
116th
building commonly known as 40 West Street, New York, New York.
18. Copies of the records of and/or statements of any and all prior and subsequent
accidents that took place in or near the location of the occurrence.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
19. Copies of any and all written and verbal complaints regarding the condition of the
sidewalk/street/curb from the date of the accident and for a period of two years prior thereto.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
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20. Copies of any and all log books, Department of Transportation records, inspection
reports/records, Big Apple notices, and all Notices regarding the condition of the
sidewalk/street/curb from the date of the accident and for a period of two years prior thereto.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
21. Copies of any and all forms, permits, invoices, contracts and/or records relating to
work being performed on the sidewalk/street/curb from the date of the accident and for a period
of two years prior thereto.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
22. Pursuant to Rule 3101(d), 1(i) of the CPLR:
a) Name and address of each expert that will be called to testify at the trial and the
company, firm or organization with which the expert is associated or employed.
b) A reasonably detailed statement of the subject matter on which each expert will
testify.
c) A reasonably detailed statement of the substance of the facts and opinions upon
which each expert will testify.
d) The full qualifications of each expert.
e) A reasonably detailed summary of the grounds for each opinion as to which each
expert will testify.
RESPONSE: West New York will provide expert information, if necessary, pursuant to
CPLR § 3101(d), and reserves the right to supplement this response.
23 Copies of surveillance footage depicting the sidewalk adjacent to the subject
premises for the period of 8/20/17 @ 7:30 p.m. through and including 8/30/17 @ 7:30 p.m.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
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24. Name and, if no longer employed, the last known address and telephone number
of the individual(s) working the front desk/lobby desk for the building located at 40 West ll6th
Street, New York, NY on the evening of August 22, 2017 at 7:45 p.m.
RESPONSE: West New York states no such individuals are currently known to West
New York.
25. Records of any communications whether by written correspondence, text
messages, e-mail or other means of communication about the condition of the sidewalk adjacent
to the subject premises between August 16, 2017 and August 23, 2017.
RESPONSE: Without waiving any objection, West New York is not in possession of
documents responsive to this demand and reserves the right to supplement this response.
26. Copies of meeting minutes from Safety meetings, weekly progress meetings and
toolbox contact meetings for six months prior to the accident on August 22, 2017.
RESPONSE: Without waiving any objection, West New York will produce responsive,
non-privileged documents in response to this discovery demand.
27. Copies of daily field reports, extra-work orders and change orders generated three
months prior to the accident on August 22, 2017.
RESPONSE: Without waiving any objection, West New York will produce responsive,
non-privileged documents in response to this discovery demand.
28. Copies of any and allorganizational charts generated before, during or as a result
of the project.
charts"
RESPONSE: Objection. The phrase "organizational is vague and ambiguous
and, therefore, subject to different interpretations. Without waiving any objection, West New is
not in possession of documents responsive to this demand and reserves the right to supplement
this response
contractors' subcontractors'
29. Copies of any and all or written safety policy
program and accident history submitted and/or generated for the project.
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RESPONSE: Without waiving any objection, West New York is
producing herewith a
Project
Safety Program Employee Handbook that is bate stamped WNY0195 through
WNY0233.
30. Copies of monthly safety-data summary reports generated for the 6 months prior
to the incident on August 22, 2017.
reports"
RESPONSE: Objection. The phrase "monthly safety-date summary is vague
and ambiguous and, therefore, subject to different interpretations. Without waiving any
objection, West New is not in possession of documents responsive to this demand and reserves
the right to supplement this response
ATTORNEY'S CERTIFICATION
The undersigned hereby certifies that, to the best of the undersigned's knowledge,
information and belief formed after reasonable inquiry under the circumstances, the presentation
of the within Response to Plaintiff's Notice to Produce or the contentions contained therein are
not frivolous as defined in 22 NYCRR § 130-1.1(c).
Dated: New York, New York
March 14, 2019 Yours, c.
Scott H. Bernstein, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP
ATTORNEYS FOR CROSS-CLAIMANT-DEFENDANT,
WEST NEW YORK RESTORATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, New York 10017
Telephone: (212) 812-4132
Facsimile: (646) 682-7180
Sbernstein@stradley.com
TO:
RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP
ATTORNEYS FOR PLAINTIFF YVETTE MCCLAMB
Jeremy A. Hellman, Esq.
29*
551 Fifth Avenue, Floor
New York, New York 10176
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PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP
ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT
RNC INDUSTRIES, LLC
Kenneth J. Kutner, Esq.
60 Broad Street, Suite 3600A
New York, New York 10004
MARGARET G. KLEIN & ASSOCIATES
ATTORNEYS FOR DEFENDANTS/CROSS-CLAIMANTS
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, AND WALLACK MANAGEMENT CO., INC.
Carol Morell, Esq.
2nd
200 Madison Avenue, FlOOr
New York, New York 10016
DEVITT SPELLMAN BARRETT, LLP
ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION
Kelly E. Wright, Esq.
50 Route 11, Suite 314
Smithtown, New YOrk 11787
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 154374/2018
YVETTE MCCLAMB,
Plaintiff,
-against-
HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC and WEST NEW
YORK RESTORATION OF CT, INC.,
Defendants.
RESPONSE TO PLAINTIFF'S NOTICE TO PRODUCE
STRADLEY RONON STEVENS & YOUNG, LLP
Attorneys for Defendant
100 Park Avenue, Suite 2000
New York, New York 10017
(212) 812-4124 (telephone)
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New
York State, certifies that, upon information and belief and reasonable inquiry, the contentions coñtaiñed
in the annexed document are not frivolous.
Dated: March 14, 2019 Signature:
Scott H. Bernstein
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("West New York"), by and through its undersigned counsel, hereby responds to the Notice to Produce of Plaintiff Yvette McClamb ("Plaintiff"), as follows: GENERAL OBJECTIONS AND LIMITATIONS All of the General Objections and Limitations set forth herein are incorporated into each of the specific responses to Plaintiff's discovery demands, and have the same force and effect as if fully set forth with each response: 1. The responding party objects to any discovery demand to the extent that it seeks to impose on the responding party obligations or requirements beyond those imposed by the CPLR. 2. The responding party objects to any discovery demand to the extent that itseeks information or documents that are not presently within the possession, custody or control of counsel for the responding party or the responding party and thereby purports to impose obligations beyond those required by the CPLR. # 3898491 v. 1 1 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 3. The responding party objects to any discovery demand to the extent that itseeks information protected from discovery by the attorney-client privilege, the work-product doctrine, the self-critical analysis privilege, the consulting-expert privilege, or any other applicable privilege or immunity from discovery recognized by law (collectively, the "Privileged Information"). Any undertaking by the responding party to provide information in response to any discovery demand should be understood to exclude any Privileged Information. 4. The responding party objects to any discovery demand to the extent that it seeks information prepared in contemplation and/or anticipation of litigation. 5. In responding to any discovery demands, the responding party does not in any waive or intend to waive but, rather, intends to preserve and is preserving: a. all objections as to competency, relevancy, materiality, privilege and admissibility of evidence for any purpose of any information, or the subject matter thereof, in the trial of this or any other action or subsequent proceedings: b. the right to object to the use of any information, or the subject matter thereof, in the trial of this or any other action or subsequent proceedings; c. the right to elicit appropriate evidence, beyond the responses themselves, regarding the subjects referred to in or in response to any request; d. the right to preserve the confidential or proprietary nature of any information, or the subject matter thereof, by mutual agreement or otherwise, as a condition of production; and e. the right at any time to correct, supplement, or clarify any of the responses. 6. The responding party's failure to object to any discovery demand on a particular ground or grounds shall not be construed as a waiver of its rights to object on that or any additional ground(s). Subject to and without waiving any objection stated herein, the responding party will provide responses to discovery demands based on information that is believed to be complete and accurate as of the present date. The responding party's investigation of the factual matters related to this litigation is ongoing. The responding party reserves the right to amend 2 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 and/or supplement its responses and production, as may become necessary, in accordance with the applicable provisions of the CPLR. 7. Each response to any discovery demand is made subject to all objections as to competence, relevance, materiality, propriety and admissibility, as well as any and all other objections and grounds which require the exclusion of evidence. The responding party reserves the right to make any and all objections at trialand at any other proceeding relating to this action. 8. The responding party objects to any discovery demand that fails to limit the information or materials requested to any period of time relevant to the claims and defenses at issue in these cases. Therefore, absent a limitation to the relevant period of time, the responding party objects to these demands because they are overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence relevant to the claims and defenses presently in this lawsuit. Rather, the discovery demands that are not so limited constitute an impermissible fishing expedition. 9. Subject to and without waiving these General Objections and Limitations, which are hereby incorporated by references within each response, the responding party states as follows: SPECIFIC OBJECTIONS AND RESPONSES 1. Each and every primary, contributory and excess insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of the judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment and each and every insurance agreement in which the insurer is obligated to defend this action. RESPONSE: Objection. Without waiving any objection, West New York will provide the relevant portions of its general commercial liability insurance policy and itsexcess insurance policy subject to the parties entering into a mutually acceptable confidentiality agreement. 3 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 2. a) Original photographs of the scene of the occurrence herein in your possession which represent the condition of the location of the occurrence herein at the time of said occurrence, prior thereto or after the said occurrence which is the subject matter of this action and/or any instrumentalities involved in this within occurrence. RESPONSE: West New York is not in possession of any photographs of the sidewalk 116th abutting the building the building commonly known by the street address of 40 West Street, New York, New York that represent the condition of the sidewalk at the time of the alleged accident or thereafter. Without waiving any objection, West New York is producing herewith five photographs that are bate stamped WNY0190 through WNY0194 that were taken prior to occurrence of the alleged accident complained of in Plaintiff's complaint. 2. b) Original photographs of the plaintiff(s) taken before, during or subsequent to the occurrence herein. RESPONSE: West New York is not in possession of any photographs of plaintiff. 2. c) Original photographs of the motor vehicle(s) involved in this occurrence, if applicable. RESPONSE: Inapplicable because a motor vehicle is not alleged to have been involved in this occurrence. 3. a) Any and all surveillance materials, including but not limited to films, video-tapes or photographs depicting or alleging to depict, the plaintiff(s), which you intend to use upon the trial of this action, now in your possession, custody or control, or in the possession, custody or control of any party you represent in this action. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand, and reserves the right to supplement this response. 3. b) Pursuant to CPLR Section 3101(i), all films, photographs, video tapes and/or audio tapes, including transcripts and/or memoranda thereof, including all out-takes, rather than only those portions defendant(s) intend(s) to use at trial. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 4. a) Any and all statements in the possession, custody or control of any party you represent in this action, actually or allegedly made by or taken from the plaintiff(s). RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. _ 4 _ # 3898491 v. 1 4 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 4. b) The name and residence address of each and every individual who spoke, discussed or otherwise reviewed with any party herein either the occurrence or incident alleged in the complaint together with the business address of each named individual together with any defendants' notes or memoranda made by such individuals or by anyone on behalf of the attorneys with respect to each such conversation, discussion or review. RESPONSE: Without waiving any objection, West New York states no such individuals are currently known to West New York. Responding further, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 5. Names and addresses of all persons claimed by parties you represent herein to have either witnessed the occurrence herein or to have firsthand knowledge of same or to have notice of the condition proximately causing this occurrence or having firsthand knowledge of facts and circumstances regarding this occurrence whether by the parties you represent at the scene of the occurrence or thereafter obtained by their attorneys or representatives. RESPONSE: Without waiving any objection, West New York states no such individuals are currently known to West New York. Responding further, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 6. Any and all written reports concerning the occurrence herein which is the subject matter of this lawsuit prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 7. Copies of any and all transcripts of Examinations Before Trial, Hearings or other statements made by plaintiff(s), whether electronically or otherwise, taken of plaintiff(s) by defendants or their representatives. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 8. a) Any and all medical reports and/or records submitted to defendants by their physicians who have examined plaintiff(s) on behalf of defendants. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. - 5 - ™ 5 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 8. b) Name and address of each and every physician who will testify on behalf of the defendants herein together with copies of their medical reports which shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial referring to technicians' and identifying those x-rays and reports which will be offered at trial. RESPONSE: West New York will provide expert information, ifnecessary, pursuant to CPLR § 3101(d), and reserves the right to supplement this response. 9. Certificates of doing business and Certificates of Incorporation relating to each and every defendant. RESPONSE: Objection, overbroad, unduly burdensome, and palpably improper. The Certificates of doing business and Certificates of Incorporation are not relevant in this personal injury action in which liability has not been established and is not reasonably calculated to lead to the discovery of admissible evidence relevant to the claims and defenses presently in this lawsuit. 10. If applicable herein, the name, last known address and social security number of the Superintendent, Managing Agent and Landlord of the premises where the occurrence herein took place. RESPONSE: Wallack Management Co., Inc. is the managing agent and it may be contacted through its attorneys that have already appeared in this personal injury action. The Superintendent for the building may be contacted through counsel for the building that has already appeared in this personal injury action. 11. Any Inter-company Accident Reports relating to the occurrence herein. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand, and reserves the right to supplement this response. 12. The name and address of the Foreman/Foremen, Supervisor/Supervisors, Security officer(s), and all employees of defendants who were present in the vicinity of the occurrence herein at the time of the occurrence herein. RESPONSE: Without waiving any objection, West New York states no such individuals are currently known to West New York, and reserves the right to supplement this response. 13. Copies of any and all claim forms, applications for benefits, bills and reports obtained from or on behalf of plaintiff(s) by defendants and/or their insurance representatives relating to the occurrence herein. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand, and reserves the right to supplement this response. 6 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 14. A list of any and all payments made by defendants and/or their insurance representatives as a result of the occurrence herein which list is to include the date of each payment, the amount of each payment, the name and address to whom payment was made, the check or draft number of each payment and the reason for each payment. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 15. Copies of and/or statements of any and all inspections and periodical inspections of the location of the occurrence from the date of the accident and for a period of two years prior thereto. RESPONSE: Without waiving any objection, West New York is not in possession of copies and/or statement of inspections of the sidewalk abutting the building commonly known as 116th 40 West Street, New York, New York. 16. Copies of any and all maintenance and repair records for the location of the occurrence from the date of the accident and for a period of two years prior thereto. RESPONSE: Without waiving any objection, West New York is not in possession of maintenance and repair records for the sidewalk abutting the building commonly known as 40 116th West Street, New York, New York. 17. Copies of the records of and/or statements of any and all constructions and alterations for the location of the occurrence from the date of the accident and for a period of three years prior thereto. RESPONSE: Without waiving any objection, West New York is not in possession of records and statements concerning constructions and alternations of the sidewalk abutting the 116th building commonly known as 40 West Street, New York, New York. 18. Copies of the records of and/or statements of any and all prior and subsequent accidents that took place in or near the location of the occurrence. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 19. Copies of any and all written and verbal complaints regarding the condition of the sidewalk/street/curb from the date of the accident and for a period of two years prior thereto. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. - - # 3898491 v. 1 7 7 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 20. Copies of any and all log books, Department of Transportation records, inspection reports/records, Big Apple notices, and all Notices regarding the condition of the sidewalk/street/curb from the date of the accident and for a period of two years prior thereto. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 21. Copies of any and all forms, permits, invoices, contracts and/or records relating to work being performed on the sidewalk/street/curb from the date of the accident and for a period of two years prior thereto. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 22. Pursuant to Rule 3101(d), 1(i) of the CPLR: a) Name and address of each expert that will be called to testify at the trial and the company, firm or organization with which the expert is associated or employed. b) A reasonably detailed statement of the subject matter on which each expert will testify. c) A reasonably detailed statement of the substance of the facts and opinions upon which each expert will testify. d) The full qualifications of each expert. e) A reasonably detailed summary of the grounds for each opinion as to which each expert will testify. RESPONSE: West New York will provide expert information, if necessary, pursuant to CPLR § 3101(d), and reserves the right to supplement this response. 23 Copies of surveillance footage depicting the sidewalk adjacent to the subject premises for the period of 8/20/17 @ 7:30 p.m. through and including 8/30/17 @ 7:30 p.m. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. _ g _ # 3898491 v. I 8 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 24. Name and, if no longer employed, the last known address and telephone number of the individual(s) working the front desk/lobby desk for the building located at 40 West ll6th Street, New York, NY on the evening of August 22, 2017 at 7:45 p.m. RESPONSE: West New York states no such individuals are currently known to West New York. 25. Records of any communications whether by written correspondence, text messages, e-mail or other means of communication about the condition of the sidewalk adjacent to the subject premises between August 16, 2017 and August 23, 2017. RESPONSE: Without waiving any objection, West New York is not in possession of documents responsive to this demand and reserves the right to supplement this response. 26. Copies of meeting minutes from Safety meetings, weekly progress meetings and toolbox contact meetings for six months prior to the accident on August 22, 2017. RESPONSE: Without waiving any objection, West New York will produce responsive, non-privileged documents in response to this discovery demand. 27. Copies of daily field reports, extra-work orders and change orders generated three months prior to the accident on August 22, 2017. RESPONSE: Without waiving any objection, West New York will produce responsive, non-privileged documents in response to this discovery demand. 28. Copies of any and allorganizational charts generated before, during or as a result of the project. charts" RESPONSE: Objection. The phrase "organizational is vague and ambiguous and, therefore, subject to different interpretations. Without waiving any objection, West New is not in possession of documents responsive to this demand and reserves the right to supplement this response contractors' subcontractors' 29. Copies of any and all or written safety policy program and accident history submitted and/or generated for the project. - - 3 9 9 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 RESPONSE: Without waiving any objection, West New York is producing herewith a Project Safety Program Employee Handbook that is bate stamped WNY0195 through WNY0233. 30. Copies of monthly safety-data summary reports generated for the 6 months prior to the incident on August 22, 2017. reports" RESPONSE: Objection. The phrase "monthly safety-date summary is vague and ambiguous and, therefore, subject to different interpretations. Without waiving any objection, West New is not in possession of documents responsive to this demand and reserves the right to supplement this response ATTORNEY'S CERTIFICATION The undersigned hereby certifies that, to the best of the undersigned's knowledge, information and belief formed after reasonable inquiry under the circumstances, the presentation of the within Response to Plaintiff's Notice to Produce or the contentions contained therein are not frivolous as defined in 22 NYCRR § 130-1.1(c). Dated: New York, New York March 14, 2019 Yours, c. Scott H. Bernstein, Esq. STRADLEY RONON STEVENS & YOUNG, LLP ATTORNEYS FOR CROSS-CLAIMANT-DEFENDANT, WEST NEW YORK RESTORATION OF CT, INC. 100 Park Avenue, Suite 2000 New York, New York 10017 Telephone: (212) 812-4132 Facsimile: (646) 682-7180 Sbernstein@stradley.com TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP ATTORNEYS FOR PLAINTIFF YVETTE MCCLAMB Jeremy A. Hellman, Esq. 29* 551 Fifth Avenue, Floor New York, New York 10176 # 3898491 v. 1 10 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT RNC INDUSTRIES, LLC Kenneth J. Kutner, Esq. 60 Broad Street, Suite 3600A New York, New York 10004 MARGARET G. KLEIN & ASSOCIATES ATTORNEYS FOR DEFENDANTS/CROSS-CLAIMANTS KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, AND WALLACK MANAGEMENT CO., INC. Carol Morell, Esq. 2nd 200 Madison Avenue, FlOOr New York, New York 10016 DEVITT SPELLMAN BARRETT, LLP ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT HOUSING PARTNERSHIP DEVELOPMENT CORPORATION Kelly E. Wright, Esq. 50 Route 11, Suite 314 Smithtown, New YOrk 11787 # 3898491 v. 1 11 of 12 FILED: NEW YORK COUNTY CLERK 03/14/2019 12:18 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 03/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 154374/2018 YVETTE MCCLAMB, Plaintiff, -against- HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Defendants. RESPONSE TO PLAINTIFF'S NOTICE TO PRODUCE STRADLEY RONON STEVENS & YOUNG, LLP Attorneys for Defendant 100 Park Avenue, Suite 2000 New York, New York 10017 (212) 812-4124 (telephone) Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions coñtaiñed in the annexed document are not frivolous. Dated: March 14, 2019 Signature: Scott H. Bernstein 12 of 12