Preview
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________________________________________________________________Ç
In the Matter of the Petition of
JOHN WYMA, Index No.:
Petitioner, AFFIRMATION IN
SUPPORT
2350 BROADWAY ASSOCIATES LLC and
BROADWAY DESSERTS, LTD. d/b/a/ FRENCH ROAST
Respondents.
----________________________________________________________-______Ç
ANGELIOU SCHILLINGER, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the truth of the following under the penalties of perjury:
1. I am the attorney for Petitioner in the above-captioned matter and am fully familiar
with the facts, circumstances and proceedings in this action based upon the contents of the file
maintained by this office.
2. I submit this affirmation in support of the instant application, made pursuant to
CPLR § 3102(c) and 3124, for an Order directing Respondents, 2350 BROADWAY
ASSOCIATES LLC and BROADWAY DESSERTS, LTD. d/b/a/ FRENCH ROAST, for the
purpose of identifying responsible parties to be named in Petitioner's injury claim, and for the
purpose of preserving evidence vital to Petitioner's injury claim that may otherwise be destroyed,
to preserve and produce to Petitioner certain surveillance video of an incident in which Petitioner
Respondents'
was injured that is now in possession; along with such other and further relief as this
Court deems just and proper.
1 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
3. This application seeks to obtain certain video footage that depicts an incident in
which Petitioner was injured on February 08, 2023, at about 12:00 p.m., at or near the property
located at 2340 Broadway, New York, New York 10024.
4. Upon a thorough investigation, Petitioner's counsel has discovered cameras affixed
to nearby properties 2350 Broadway, New York, New York, 10024 and 2340 Broadway, New
York, New York 10024 that would have captured the incident. The property at 2350 Broadway,
New York, New York, 10024 is owned by Respondent 2350 Broadway Associates LLC. Attached
hereto as Exhibit A is a copy of the Deed for the premises. The property located at 2340 Broadway,
New York, New York 10024 is owned by Broadway Desserts Ltd. d/b/a/ French Roast. Attached
hereto as Exhibit B is a copy of the liquor license for the premises located at 2340 Broadway New
York, New York, 10024.
5. In order to obtain the proper place of service, Petitioner's counsel conducted
corporation searches on Broadway Desserts Ltd. and 2350 Broadway Associates LLC. Annexed
hereto as Exhibit C are copies of the corporation searches.
6. The instant application now seeks to obtain the video.
STATEMENT OF FACTS
7. This proceeding arises out of an incident in which Petitioner was injured on
February 08, 2023, at approximately 12:00 p.m. at or near the property located at 2340 Broadway,
New York, New York 10024. At that time and location, Petitioner was caused to trip and fall as a
result of a defect and/or hazardous condition.
8. On March 02, 2023, Petitioner's counsel had the area canvassed for video footage.
Petitioner's investigator was advised by a building manager and a doorman at 2350 Broadway
St"
New York, New York 10024 that a camera named "W 85 points directly at the incident scene
2 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
and recorded the incident. Subsequently, the property manager informed our office that all further
discussions would need to be with the insurance company and then refused to provide any
insurance contact infonnation. Petitioner now seeks the relevant video footage that is in possession
of Respondent 2350 Broadway Associates LLC.
9. Additionally, on March 02, 2023, when canvassing the area for video footage,
Petitioner's investigator was informed by the manager at 2340 Broadway, New York, New York
10024 that video footage is only saved for thirty (30) days. Petitioner now also seeks the relevant
video footage facing 2340 Broadway, New York, New York 10024 that is in possession of
Respondent Broadway Desserts Ltd.
10. By letters dated March 02, 2023, Petitioner's counsel sent Notice to Preserve letters
to the respective property owners for the properties located at 2340 Broadway, New York, New
York 10024 and 2350 Broadway New York, New York 10024. Annexed hereto as Exhibit D is a
copy of the letters.
11. The video is necessary for Petitioner to identify the parties involved in the accident
so that they can be named as a proper party to the action before an action is commenced. The video
is also necessary to preserve as evidence in the eventual action that will be commenced on behalf
of Petitioner, and absent preservation of this evidence, the video may be overwritten, erased or
destroyed. The video should also be produced in its original format, to the extent that it is available,
so as to allow for the best picture quality and allow for any type of zoom features to be utilized.
12. Based on the foregoing facts, and in light of the applicable law set forth below, this
Court should grant the instant application in its entirety.
THE DISCOVERY SOUGHT IS PROPERLY WITHIN THE SCOPE OF CPLR 3102(c)
BECAUSE IT IS FOR PURPOSES OF IDENTIFYING THE PROPER PARTIES TO A
PERSONAL INJURY LAWSUIT TO BE FILED ON BEHALF OF PETITIONER AND
FOR PRESERVING EVIDENCE THAT WILL OTHERWISE LIKELY BE DESTROYED
3 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
13. CPLR 3102(c) authorizes disclosure to be obtained by court order before an action
is commenced where the purpose is to aid in bringing an action or to preserve evidence.
14. First, Petitioner seeks disclosure of the subject video for purposes of identifying
proper parties to be named in an action. It is well settled that disclosure "to aid in bringing an
action"
authorizes discovery to allow a Petitioner to frame a complaint or to identity prospective
defendants. Stewart v. New York City Transit Authority, 112 A.D.2d 939, 940 (2d Dep't 1985);
Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., Inc., 58 A.D.2d 629, 630 (2d Dep't 1977).
15. To obtain disclosure for this purpose, the movant must show the existence of a
prima facie cause of action. Toal v. Staten Island University Hosp., 300 A.D.2d 592, 593 (2d Dep't
2002). In determining whether the petitioner has demonstrated a prima facie case, the evidence
presented must be considered in a light most favorable to the petitioner and the petitioner is entitled
to the benefit of every favorable inference that can reasonably be drawn from the evidence
presented. Id.; Ero v. Graystone Materials, Inc., 252 A.D.2d 812, 814 (3d Dep't 1998).
16. Once the petitioner offers sufficient facts to establish the existence of a prima facie
cause of action, the petitioner meets the threshold requirement of CPLR 3102(c) and must be
granted leave to obtain any discovery necessary to identify prospective defendants or determine
the form that the action should take. Stewart v. New York City Transit Authority, 455 A.D.2d at
940; Perez v. New York City Health and Hospitals Corp., 84 A.D.2d 789, 790 (2d Dep't 1981).
The requirement that a party be able to show a prima facie cause of action is designed to prevent
the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may
annoy and intrude upon an innocent party, but where, however, the facts alleged state a cause of
action, protection of a party's affairs is no longer the primary consideration and discovery to
4 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
determine the identities of the parties and what form or forms the action should take is proper.
Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., Inc., 58 A.D.2d at 630.
17. Here, the sworn Petition establishes facts sufficient to make out Petitioner's prima
facie case in a negligence cause of action against the individuals involved in the accident.
Respondents should be compelled to produce the video in its possession so that Petitioner may
ascertain the identity of the involved parties and frame the complaint against them.
18. Furthermore, disclosure of the video is also sought for purposes of preserving
evidence that may otherwise be destroyed. In determining whether pre-action disclosure will be
permitted on this basis, the court should weigh the present needs of the petitioner against any
inconvenience to the respondent. Matter of Simmons, 112 A.D.2d 806, 806 (4th Dep't 1985).
Where a party demonstrates a need to preserve the current condition of certain evidence that may
change in the absent a showing of inconvenience to the the pre-
future, party opposing disclosure,
action discovery should be ordered on such terms as necessary to take into account the competing
interests of the parties involved. M. Where pre-action discovery is sought for the purpose of
preserving information, there is no requirement that the existence of a cause of action be
demonstrated with the certainty as is required when the application is intended to assist in framing
a complaint or identifying defendants. Matter ofDavis, 178 Misc.2d 65, 66 (NY Ct. Claims 1998).
19. Here, it is necessary for Petitioner to obtain the subject video so that it may be used
as evidence in the future lawsuit to be commenced by Petitioner against the involved individuals.
As the video is part of an active surveillance recording system, there is a possibility that the video
may be erased or overwritten after some period of time. Therefore, the risk of such video being
destroyed with the passage of time favors directing production of the surveillance video at this
time while it is in Respondent's possession. There would not be any significant burden imposed
5 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
upon Respondents if production of the video is directed at this time. Had Petitioner been able to
identify the proper parties and commence a lawsuit at this time, production of the video would
have been required and done pursuant to subpoena and the same costs of production would have
been incurred by Respondents as would be incurred now. Finally, Petitioner would agree to bear
the reasonable costs of copying or downloading the video to offset any burden on Respondents
that may result. As Petitioner's need to obtain the video outweighs the burden to Respondents that
would result from having to produce the video, this Court should order that the video be produced.
20. Based on the Petitioner should be permitted to obtain the pre-
foregoing, necessary
action discovery sought herein for the purpose of bringing an action against the responsible party
identified in the video, and for the purpose of preserving that video for the future litigation.
Therefore, this Court should Order Respondents to produce to Petitioner the following:
The surveillance video recordings from February 08, 2023, between the hours of 11:00 am
and 1:00 pm, in their possession from cameras affixed to the exterior of Respondents
respective properties that would have captured the subject incident at or near 2340
Broadway, New York, New York 10024
Ordering production of the video footage to this limited extent will provide Petitioner with video
necessary to meet Petitioner's needs as set forth herein and is proper pursuant to CPLR § 3102(c).
21. No prior application for the relief requested herein has previously been made by
Petitioner in any Court.
WHEREFORE, it is respectfully requested that this Court grant the instant motion in its
entirety, and order such other and further relief as this Court may deem just, proper and equitable.
Dated: New York, New York
April 03, 2023
Angeli u Sch llinger, E
Caesar, Napoli & Spivak PLLC
Attorneys for Petitioner
233 Broadway, Suite 2348
6 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
New York, NY 10279
(212) 226-2100
File No.: 50249PU.JNAC
To: BROADWAY DESSERTS
d/b/a/ FRENCH ROAST
2340 Broadway
New York, New York 10024
2350 BROADWAY ASSOCIATES LLC
73rd
23 West Street
New York, New York 10023
2350 BROADWAY ASSOCIATES LLC
2350 Broadway
New York, New York 10024
Ce: Corcoran Group
Property Manager for 2350 Broadway
590 Madison Avenue
New York, New York 10022
7 of 8
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023
CERTIFICATE OF COMPLIANCE
I hereby certify to 22 NYCRR § 202.8-b that the foregoing Affirmation In Support was
prepared on a computer using Microsoft Word.
The total number of words in the enclosed Affirmation In Support, exclusive of the caption
and signature blocks, is less than 7,000 words.
Dated: New York, New York
April 03, 2023
Angeliou Schillinger, Es
8 of 8
Preview
FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________________________________________________________________Ç In the Matter of the Petition of JOHN WYMA, Index No.: Petitioner, AFFIRMATION IN SUPPORT 2350 BROADWAY ASSOCIATES LLC and BROADWAY DESSERTS, LTD. d/b/a/ FRENCH ROAST Respondents. ----________________________________________________________-______Ç ANGELIOU SCHILLINGER, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury: 1. I am the attorney for Petitioner in the above-captioned matter and am fully familiar with the facts, circumstances and proceedings in this action based upon the contents of the file maintained by this office. 2. I submit this affirmation in support of the instant application, made pursuant to CPLR § 3102(c) and 3124, for an Order directing Respondents, 2350 BROADWAY ASSOCIATES LLC and BROADWAY DESSERTS, LTD. d/b/a/ FRENCH ROAST, for the purpose of identifying responsible parties to be named in Petitioner's injury claim, and for the purpose of preserving evidence vital to Petitioner's injury claim that may otherwise be destroyed, to preserve and produce to Petitioner certain surveillance video of an incident in which Petitioner Respondents' was injured that is now in possession; along with such other and further relief as this Court deems just and proper. 1 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 3. This application seeks to obtain certain video footage that depicts an incident in which Petitioner was injured on February 08, 2023, at about 12:00 p.m., at or near the property located at 2340 Broadway, New York, New York 10024. 4. Upon a thorough investigation, Petitioner's counsel has discovered cameras affixed to nearby properties 2350 Broadway, New York, New York, 10024 and 2340 Broadway, New York, New York 10024 that would have captured the incident. The property at 2350 Broadway, New York, New York, 10024 is owned by Respondent 2350 Broadway Associates LLC. Attached hereto as Exhibit A is a copy of the Deed for the premises. The property located at 2340 Broadway, New York, New York 10024 is owned by Broadway Desserts Ltd. d/b/a/ French Roast. Attached hereto as Exhibit B is a copy of the liquor license for the premises located at 2340 Broadway New York, New York, 10024. 5. In order to obtain the proper place of service, Petitioner's counsel conducted corporation searches on Broadway Desserts Ltd. and 2350 Broadway Associates LLC. Annexed hereto as Exhibit C are copies of the corporation searches. 6. The instant application now seeks to obtain the video. STATEMENT OF FACTS 7. This proceeding arises out of an incident in which Petitioner was injured on February 08, 2023, at approximately 12:00 p.m. at or near the property located at 2340 Broadway, New York, New York 10024. At that time and location, Petitioner was caused to trip and fall as a result of a defect and/or hazardous condition. 8. On March 02, 2023, Petitioner's counsel had the area canvassed for video footage. Petitioner's investigator was advised by a building manager and a doorman at 2350 Broadway St" New York, New York 10024 that a camera named "W 85 points directly at the incident scene 2 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 and recorded the incident. Subsequently, the property manager informed our office that all further discussions would need to be with the insurance company and then refused to provide any insurance contact infonnation. Petitioner now seeks the relevant video footage that is in possession of Respondent 2350 Broadway Associates LLC. 9. Additionally, on March 02, 2023, when canvassing the area for video footage, Petitioner's investigator was informed by the manager at 2340 Broadway, New York, New York 10024 that video footage is only saved for thirty (30) days. Petitioner now also seeks the relevant video footage facing 2340 Broadway, New York, New York 10024 that is in possession of Respondent Broadway Desserts Ltd. 10. By letters dated March 02, 2023, Petitioner's counsel sent Notice to Preserve letters to the respective property owners for the properties located at 2340 Broadway, New York, New York 10024 and 2350 Broadway New York, New York 10024. Annexed hereto as Exhibit D is a copy of the letters. 11. The video is necessary for Petitioner to identify the parties involved in the accident so that they can be named as a proper party to the action before an action is commenced. The video is also necessary to preserve as evidence in the eventual action that will be commenced on behalf of Petitioner, and absent preservation of this evidence, the video may be overwritten, erased or destroyed. The video should also be produced in its original format, to the extent that it is available, so as to allow for the best picture quality and allow for any type of zoom features to be utilized. 12. Based on the foregoing facts, and in light of the applicable law set forth below, this Court should grant the instant application in its entirety. THE DISCOVERY SOUGHT IS PROPERLY WITHIN THE SCOPE OF CPLR 3102(c) BECAUSE IT IS FOR PURPOSES OF IDENTIFYING THE PROPER PARTIES TO A PERSONAL INJURY LAWSUIT TO BE FILED ON BEHALF OF PETITIONER AND FOR PRESERVING EVIDENCE THAT WILL OTHERWISE LIKELY BE DESTROYED 3 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 13. CPLR 3102(c) authorizes disclosure to be obtained by court order before an action is commenced where the purpose is to aid in bringing an action or to preserve evidence. 14. First, Petitioner seeks disclosure of the subject video for purposes of identifying proper parties to be named in an action. It is well settled that disclosure "to aid in bringing an action" authorizes discovery to allow a Petitioner to frame a complaint or to identity prospective defendants. Stewart v. New York City Transit Authority, 112 A.D.2d 939, 940 (2d Dep't 1985); Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., Inc., 58 A.D.2d 629, 630 (2d Dep't 1977). 15. To obtain disclosure for this purpose, the movant must show the existence of a prima facie cause of action. Toal v. Staten Island University Hosp., 300 A.D.2d 592, 593 (2d Dep't 2002). In determining whether the petitioner has demonstrated a prima facie case, the evidence presented must be considered in a light most favorable to the petitioner and the petitioner is entitled to the benefit of every favorable inference that can reasonably be drawn from the evidence presented. Id.; Ero v. Graystone Materials, Inc., 252 A.D.2d 812, 814 (3d Dep't 1998). 16. Once the petitioner offers sufficient facts to establish the existence of a prima facie cause of action, the petitioner meets the threshold requirement of CPLR 3102(c) and must be granted leave to obtain any discovery necessary to identify prospective defendants or determine the form that the action should take. Stewart v. New York City Transit Authority, 455 A.D.2d at 940; Perez v. New York City Health and Hospitals Corp., 84 A.D.2d 789, 790 (2d Dep't 1981). The requirement that a party be able to show a prima facie cause of action is designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party, but where, however, the facts alleged state a cause of action, protection of a party's affairs is no longer the primary consideration and discovery to 4 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 determine the identities of the parties and what form or forms the action should take is proper. Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., Inc., 58 A.D.2d at 630. 17. Here, the sworn Petition establishes facts sufficient to make out Petitioner's prima facie case in a negligence cause of action against the individuals involved in the accident. Respondents should be compelled to produce the video in its possession so that Petitioner may ascertain the identity of the involved parties and frame the complaint against them. 18. Furthermore, disclosure of the video is also sought for purposes of preserving evidence that may otherwise be destroyed. In determining whether pre-action disclosure will be permitted on this basis, the court should weigh the present needs of the petitioner against any inconvenience to the respondent. Matter of Simmons, 112 A.D.2d 806, 806 (4th Dep't 1985). Where a party demonstrates a need to preserve the current condition of certain evidence that may change in the absent a showing of inconvenience to the the pre- future, party opposing disclosure, action discovery should be ordered on such terms as necessary to take into account the competing interests of the parties involved. M. Where pre-action discovery is sought for the purpose of preserving information, there is no requirement that the existence of a cause of action be demonstrated with the certainty as is required when the application is intended to assist in framing a complaint or identifying defendants. Matter ofDavis, 178 Misc.2d 65, 66 (NY Ct. Claims 1998). 19. Here, it is necessary for Petitioner to obtain the subject video so that it may be used as evidence in the future lawsuit to be commenced by Petitioner against the involved individuals. As the video is part of an active surveillance recording system, there is a possibility that the video may be erased or overwritten after some period of time. Therefore, the risk of such video being destroyed with the passage of time favors directing production of the surveillance video at this time while it is in Respondent's possession. There would not be any significant burden imposed 5 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 upon Respondents if production of the video is directed at this time. Had Petitioner been able to identify the proper parties and commence a lawsuit at this time, production of the video would have been required and done pursuant to subpoena and the same costs of production would have been incurred by Respondents as would be incurred now. Finally, Petitioner would agree to bear the reasonable costs of copying or downloading the video to offset any burden on Respondents that may result. As Petitioner's need to obtain the video outweighs the burden to Respondents that would result from having to produce the video, this Court should order that the video be produced. 20. Based on the Petitioner should be permitted to obtain the pre- foregoing, necessary action discovery sought herein for the purpose of bringing an action against the responsible party identified in the video, and for the purpose of preserving that video for the future litigation. Therefore, this Court should Order Respondents to produce to Petitioner the following: The surveillance video recordings from February 08, 2023, between the hours of 11:00 am and 1:00 pm, in their possession from cameras affixed to the exterior of Respondents respective properties that would have captured the subject incident at or near 2340 Broadway, New York, New York 10024 Ordering production of the video footage to this limited extent will provide Petitioner with video necessary to meet Petitioner's needs as set forth herein and is proper pursuant to CPLR § 3102(c). 21. No prior application for the relief requested herein has previously been made by Petitioner in any Court. WHEREFORE, it is respectfully requested that this Court grant the instant motion in its entirety, and order such other and further relief as this Court may deem just, proper and equitable. Dated: New York, New York April 03, 2023 Angeli u Sch llinger, E Caesar, Napoli & Spivak PLLC Attorneys for Petitioner 233 Broadway, Suite 2348 6 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 New York, NY 10279 (212) 226-2100 File No.: 50249PU.JNAC To: BROADWAY DESSERTS d/b/a/ FRENCH ROAST 2340 Broadway New York, New York 10024 2350 BROADWAY ASSOCIATES LLC 73rd 23 West Street New York, New York 10023 2350 BROADWAY ASSOCIATES LLC 2350 Broadway New York, New York 10024 Ce: Corcoran Group Property Manager for 2350 Broadway 590 Madison Avenue New York, New York 10022 7 of 8 FILED: NEW YORK COUNTY CLERK 04/03/2023 11:25 AM INDEX NO. 153028/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/03/2023 CERTIFICATE OF COMPLIANCE I hereby certify to 22 NYCRR § 202.8-b that the foregoing Affirmation In Support was prepared on a computer using Microsoft Word. The total number of words in the enclosed Affirmation In Support, exclusive of the caption and signature blocks, is less than 7,000 words. Dated: New York, New York April 03, 2023 Angeliou Schillinger, Es 8 of 8