Preview
INDEX NO. 150323/2011
(FILED: NEW YORK COUNTY CLERK 0271372012)
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/13/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
eee ee eee ene ene ene nen ne menenennnne K
RAYMOND KILPATRICK, Index No.:150323/11
Plaintiff,
-against- AFFIRMATION IN OPPOSITION
THE CITY OF NEW YORK and RESTANI
CONSTRUCTION CORP.
Defendants.
een ene
LAWRENCE B. SAFTLER, an attorney duly admitted to practice law before the courts
of the state of New York, affirms the following to be true:
1 I am an attorney with THE SAFTLER LAW FIRM, attorneys for the plaintiff,
RAYMOND KILPATRICK. As such, I am fully familiar with the facts and circumstances of
this action.
2 This affirmation, as well as the attached affidavit and exhibits, are submitted in
opposition to defendant’s, RESTANI CONSTRUCTION CORP. (“RESTANI”), motion for an
order pursuant to CPLR § 3212, dismissing all claims and cross claims.
SUMMARY OF ARGUMENT.
3 Your affirmant has a good faith basis for naming RESTANI as a defendant based
upon communication received by defendant, City of New York. The communication itself,
which states RESTANI’s potential liability, creates a material issue of fact that precludes the
grant of summary judgment to RESTANI.
4 Further, all relevant materials needed to prosecute this case, or to defend this
motion, is in the sole possession of RESTANI. RESTANI and the co-defendant CITY OF NEW
YORK have produced no discovery in response to either plaintiff's First Demand for Documents
or the Differentiated Case Management Program Case Scheduling Order. Facts essential to
justify opposition to RESTANI’s Motion may exist, but cannot be stated because RESTANI
never complied or produced any discovery. Pursuant to CPLR § 3212(f), RESTANI’s motion is
grossly premature and should be denied.
RELEVANT PROCEDURAL HISTORY
5 Your affirmant adopts the procedural history stated in J. Tribble Aff’m. as if fully
stated herein except as to those relevant items stated below.
6. Following the completion of the 50-H hearing, City of New York Office of the
Comptroller, Robert Howe as supervisor, notified my office that following his investigation of
this accident, “a third-party may be responsible” (see Exhibit_1). Pursuant to that
correspondence, RESTANI is the third-party who may be responsible. This means the City has
conducted a search and found documentation that can prove Restani’s responsibility.
7 On December 12, 2011, Plaintiff's First Demand for Documents (see Exhibit 2)
requesting relevant evidence related to the prosecution of this case was served on defendant’s
counsel, KAUFMAN BORGEEST & RYAN LLP.
8 RESTANI never provided a response, nor has the City.
9 On January 20, 2012, a Differentiated Case Management Program Case
Scheduling Order (see Exhibit 3) was issued via e-file and faxed to both defendants.
10. RESTANI never provided a response, nor has the City
i There has been no Preliminary Conference.
12. There have been no Compliance Conferences.
13 There have been no Depositions.
14. There has not even been any paper discovery, other than those documents
provided by plaintiff to both defendants'.
RELEVANT FACTS
15. Your affirmant adopts the brief factual background stated in J. Tribble Aff’m. as if
fully stated herein except as to those relevant items stated below.
16. At the 50-H hearing, photographs of the accident location were marked and
testified to (see Exhibit 4). These photographs show the location of the accident and clearly
reveal the implication of construction being performed.
ARGUMENT
I. SUMMARY JUDGMENT IS GROSSLY PREMATURE BECAUSE EVIDENCE
NECESSARY TO OPPOSE RESTANI’S MOTION REMAINS IN RESTANI’S SOLE
POSSESSION AND HAS NEVER BEEN DISCLOSED.
17. Your affirmant provides no pro forma argument, as RESTANI’s counsel
suggests; the facts and law (see CPLR § 3212[f]) require denial of this motion.
18. Where facts are unavailable to the party opposing a motion for summary
judgment pursuant to CPLR § 3212, the court may deny the motion as premature, may require
further discovery and is free to make such other order as it deems just (see Moukarzel v
Montefiore Med. Ctr., 235 AD2d 239, 240 [1st Dep’t 1997]; Ruttura & Sons Constr. v Petrocelli
Constr., 257 AD2d 614, 615 [2nd Dep’t 1999]; Wyllie v District Attorney of County of Kings, 2
AD3d 714, 770 [2nd Dep’t 2003]). Only when opponents fail to make the threshold showing
that facts essential to justify opposition may exist, do court's grant the drastic result of summary
judgment before any discovery takes place. Here, plaintiff achieves the minimal threshold
showing that essential facts exist based upon the correspondence received by codefendant, City
' Copies of plaintiff's responses are not annexed hereto as they contain only those documents in plaintiff's
possession, which include medical treatment records, the 50-H transcript that is our any attached to RESTANT’s
moving papers.
of New York (see Exhibit 1).
19. The RESTANI discovery only now provided when compared to the evidence
provided by codefendant, City of New York, creates an issue of fact that requires discovery more
than the self-serving statements and documents only now provided as part of RESTANI’s motion
submission.
20. Permitting dismissal pursuant to CPLR § 3212 is not warranted.
I. DISCOVERY HAS NOT EVEN BEGUN.
21, Where outstanding discovery sought by the nonmoving party exists, which may
include paper evidence and the opportunity to depose eyewitnesses and other witnesses, the court
should deny motions for summary judgment as premature (see Groves v. Land’s End Hous. Co.,
80 NY2d 978 [1992]; CPLR §3212[f]). RESTANI provided no response to plaintiffs demand
for documents, provided no response to the case scheduling order and has produced no
witnesses. It is one thing to suggest, as counsel has in her moving papers, “where discovery is
not complete,” but it is a whole other situation where discovery has not even begun. Without
having an opportunity to depose the individual who swore to the affidavit, without having an
opportunity to depose the individual who signed the contract with codefendant, City of New
York, and without having an opportunity to depose the individual listed in the reports who
supervised the construction, plaintiff is placed in a substantially prejudiced position. This is not
the type of situation that was contemplated as dismissible during pre-trial litigation pursuant to
CPLR § 3212.
CONCLUSION
22. Plaintiff had no opportunity to obtain any evidence prior to RESTANI’s motion
because RESTANI never responded to plaintiff’s demand or the court’s case management order.
Permitting it to now use that to its advantage and obtain dismissal goes against logic.
Nevertheless, based upon the evidence received thus far that suggests RESTANI’s responsibility
(see Exhibit 1), and in viewing the evidence in a light most favorable to the nonmoving party,
material issues of fact remain as to RESTANI’s ownership and responsibility for plaintiffs
accident and subsequent injuries. Plaintiff's basis for alleging negligence against RESTANI is the
correspondence from codefendant, City of New York, and at this early stage where nothing has
been disclosed, plaintiff is in an undeniably difficult position to defend this motion. Nonetheless,
the correspondence stating RESTANI’s potential involvement in this case suffices to create an
issue that requires discovery.
WHEREFORE, it is respectfully requested that this court deny RESTANI’s motion for
summary judgment and that this matter be scheduled for further discovery as the court deems
just, proper and equitable.
Dated: New York, NY ete.
February 14, 2012
AWTENCS Sattle
THE SAFTLER LAW FIRM
Attorney for Plaintiff
275 Madison Avenue
Suite 1605
New York, New York 10016
(646) 865-0797
TO:
KAUFMAN BORGEEST & RYAN LLP
Attorneys for Defendant
RESTANI CONSTRUCTION CORP.
200 Summit Lake Drive
Valhalla, NY 10595
(914) 449-1000
MICHAEL A. CARDOZO
Corporation Counsel
Attorney for Defendant
THE CITY OF NEW YORK
100 Church Street
New York, Y 10007
EXHIBIT 1
THE CITY OF NEW YORK OFFICE OF THE COMPTROLLER
1 CENTRE STREET, NEW YORK, N.Y. 10007-2341
U tf John C. Liu
COMPTROLLER
015-175
RAYMOND KILPATRICK c/o SAFTLER LAW FIRM
275 MADISON AVENUE SUITE 1605
NEW YORK, NY 10016
Date: 08/17/2011
Re.: RAYMOND KILPATRICK.
Claim #: 2011P1019678
D/A: 02/27/2011
THIRD PARTY NOTIFICATION
In reference to the above captioned claim, please be advised that our investigation reveals
that a third party may be responsible for your loss or injury. Therefore, we recommend that you
contact the following concerning your claim:
RESTANI CONSTRUCTION CORP.
42-04 BERRIAN BLVD.
ASTORIA , NY 11105
‘You may also pursue your claim against the City of New York by commencing an action
within one year and ninety days from the date of the original accident/occurrence.
Very truly yours,
eet
ROBERT HOWE - SUPERVISOR
(212)669-4445 Room 1220
EXHIBIT 2
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK.
ene nent x
RAYMOND KILPATRICK, Index No.:150323/11
Plaintiff,
-against- PLAINTIFF'S FIRST
DEMAND FOR DOCUMENTS
THE CITY OF NEW YORK and RESTANI
CONSTRUCTION CORP.
Defendants.
a et nieennnennn
PLEASE TAKE NOTICE, that pursuant to rule 3120 of the CPLR, you are hereby
requested to produce and permit the plaintiff and his attorneys to inspect, copy, test and/or
photograph the following specified documents in your possession, control and custody that relate
to the accident location for a period of three (3) years before the date of accident up to the date of
accident:
1 Copies of any prior notifications of sidewalk defects for the location where this accident
occurred for a period of three (3) years before the date of accident up to the date of
accident;
Copies of any and all permits, work orders, cut forms and big Apple Maps for the
location where this accident occurred for a period of three (3) years before the date of
accident up to the date of accident;
3 Any and all documents showing inspections of the location where this accident occurred
for a period of three (3) years before the date of accident up to the date of accident.
PLEASE TAKE NOTICE, pursuant to 3101(d)(1) of the Civil Practice Law and Rules
you are hereby required to serve upon the undersigned, within twenty (20) days after the service
of this demand the name of each person whom defendant expects to call as an expert which shall
include a detail statement of subject matter, the substance and facts, qualifications and some of
the grounds of each experts opinion
PLEASE TAKE FURTHER NOTICE, that this demand shall deem to be continuing
during the pendency of this action, including the trial thereof. In the event of failure or refusal to
comply with this demand, plaintiff will seek to preclude the testimony of any such witnesses or
expert witnesses or the introduction into evidence of any previously non disclosed photograph’s,
statements, records, reports or any other items demanded herein. Plaintiff shall move for
appropriate relief in the event that the above is not complied with.
Dated: New York, New York
December 12, 2011
rs, etc.
DZ. rence B attfer
THE TLER LAW FIRM
Attorney for Plaintiff
275 Madison Avenue
Suite 1605
New York, New York 10016
(646) 865-0797
TO:
KAUFMAN BORGEEST & RYAN LLP
Attomeys for Defendant
RESTANI CONSTRUCTION CORP.
200 Summit Lake Drive
Valhalla, NY 10595
(914) 449-1000
have read the foregoing and I certify that upon information and belief, the source of
which is my review of the file maintained by my office in this action, that the foregoing is not
frivolous as defined in (c) of Section 130.1 of the Rules of the Chief Administrator.
‘Yours, ¢
AWTEN B7Sai 1, Esq.
THE SAFTLER LAW FI
275 Madison Avenue, Suite 1605
New York, NY 10016
(646) 865-0797
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK)
COUNTY NEW YORK JSS:
VIVIANA S. ROMERO, being duly sworn, deposes and says:
That deponent is not a party to the action, is over 18 years of age, and resides within the
State of New York.
That on the 15" day of December, 2011 deponent served the within PLAINTIFEF’S
FIRST DEMAND FOR DOCUMENTS upon:
KAUFMAN BORGEEST & RYAN LLP
Attorneys for Defendant
RESTANI CONSTRUCTION CORP.
200 Summit Lake Drive
Valhalla, NY 10595
(914) 449-1000
the addresses designated by said attorneys for that purpose by depositing a true ¢o of same
enclosed in a postpaid properly addressed wrapper in an official depository wy Xclusive
care and custody of the United States Postal Service within New York State. \
ADM ><
iviana S OmMero
Sworn to before‘ne this
15" day of De ber
Notary?
ff se
&
a
>
yo
we
ye of
ae
SUPREME court
STATE OF NEW YORK, COUNTY OF NEW YORK. Index No. 150323/11 Year
cr
RAYMOND KILPATRICK,
Plaintiff
-against-
THE CITY OF NEW YORK and
RESTANI CONSTRUCTION CORP.
Defendants.
PLAINTIFF’S FIRST DEMAND FOR DOCUMENTS
THE SAFTLER LAW FIRM
Attorney(s) for Plaintiff
Office and Post Office Address, Telephone
275 MADISON AVENUE
SUITE 1605
NEW YORK, NEW YORK 10016
(646) 865-0797
Signature (Rule 130-1.1-a)
To
Print name beneath
Service of a copy of the within is hereby admitted.
Dated:
Attorney(s) for
PLEASE TAKE NOTICE:
( NOTICE OF ENTRY
that the within is a (certified) true copy ofa
duly entered in the office of the clerk of the within named court on
O NOTICE OF SETTLEMENT
that an order of which the within is a true copy
will be presented for settlement to the HON. one of the judges of the
within named Court, at
on at
Dated,
Yours, etc.
THE SAFTLER LAW FIRM
EXHIBIT 3
Abana. avery aU Vy use 2 Raa ey op vay
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/27/302
x
le ¥
oe
SUPREME COURT OF THE STATE OF NEW YORK flor
New York County Courthouse
80 Centre Street
New York, New York 10013
DIFFERENTIATED CASE MANAGEMENT PROGRAM
PRESENT: JUSTICE ARTHUR F. ENGORON Part 52 - DCM
Jan 20, 2012
Index Number: 0150323/2011
C.C.T.T.No: 2011-027986
KILPATRICK, RAYMOND PLAINTIFF
v
CITY OF NEW YORK DEFENDANT
CASE SCHEDULING ORDER - CITY CASES
A request for a preliminary conference having been filed or the court having taken
action on its own initiative,
IT IS HEREBY ORDERED that this case is designated a Standard matter (Uniform
Rule 202.19 (b) and disclosure not already furnished shal! proceed in accordance with the deadlines
set forth below. However, a party claiming to be prejudiced by this order may seek a modification
of the Standard designation or the schedule by contacting the clerk at the Case Management Office
(by phone 646-386-3687, fax 212-374-1753 or email to dwoodley@courts.state.ny.us) within 20
DAYS FROM THE DATE OF THIS ORDER. That Office will provide an opportunity to the
parties to be heard on the request at a court conference and the court will take such action as is
appropriate. Failure to contact the office before the conference date shall constitute a waiver of any
objection to the designation or schedule. The parties shall not contact the Justice assigned,
1. Mandatory Notification: The attorney who receives this Order shall, within ten days from
receipt, (a) transmit a copy to counsel for all parties who have appeared in the case and to all
self-represented litigants and (b) return to the Case Management Office an original by mail or a
copy by fax of an affidavit of service or a letter setting forth the dates the parties were served.
2. Insurance Coverage: Within 30 days from the date of this order, defendant City of New York
and any other defendant represented by Corporation Counsel, shal! state in writing, whether it is
self-insured or covered by an insurance policy, and all defendant(s), including the City (if
applicable), shall furnish to all parties evidence of primary and excess coverage and Certificate of
insurance.
This is a conformed copy. The original has been signed and filed with the County Clerk.
3. Bill of Particulars:
Any party seeking particulars (including as to affirmative defenses, if any) shall serve a demand
for a bill within 21 days from the date of this order. The party receiving the demand shall serve a
verified bill of particulars within 60 days from the date of this order.
4. Medical Reports and Authorizations:
(a) Plaintiff(s) shall provide authorizations to obtain copies of the actual records of all treating and
examining health care providers, including diagnostic tests, x-rays, MRIs, EMGs, CT Scans, for
injuries specified in the bill of particulars, within 30 days from the date of this order.
(b) Plaintiff{s) shall provide an authorization for collateral source information, if any, within 30
days from the date of this order.
(c) If plaintiff is claiming a loss of income or wages, within 30 days from the date of this order,
plaintiff shal! provide authorizations for W-2 forms or employment records shall be provided for
the year of, year before and year after the date of the alleged accident, as well as for the period of
time lost from work as a result of the alleged accident, or IRS records if provided by law.
(d) If plaintiff was a student at the time of the alleged accident, within 30 days from the date of this
order plaintiff shall provide an authorization for schoo] attendance records for the period of time
lost from school as a result of the alleged accident,within 30days from the date of this order thereof.
(e) For cases alleging police assault or false arrest, plaintiff(s) shall, within 30 days from the date of
this order, submit an unsealing order, to be "so ordered" by this Court, to obtain a copy of the
Criminal Court File. Plaintiff(s) shall then serve the so ordered" unsealing order upon the Criminal
Court. After that Court provides plaintiff with a copy of the Criminal Court file, plaintiff shall
provide a copy of the file to the Corporation Counsel within 30 days of the date of service of the
unsealing order.
5. Depositions:
(a) The depositions of all parties shall take place on APRIL 19, 2012 at 10 am in the Office of the
Corporation Counsel, located at 52 Duane Street, 4th floor, New York, New York,10007. Absent
prior court approval,any deposition which is not held as scheduled in this order must be immediately
rescheduled for a date which is not later than four(4)weeks after the original date.
(b) Defendant(s)' right to a further deposition of plaintiff(s) is reserved as to any new injuries or
damages claimed in any supplemental bill of particulars served by plaintiff(s) following the
plaintiff's deposition.
6. Physical Examination:
(a) A physical examination of the plaintiff (s) shall be conducted within 45 days after completion of
examination before trial of the plaintiff(s).
(b) Acopy of the physician's report shall be furnished to plaintiff(s) within 45 after the examination.
(c) Defendant(s)’ right to a further physical is reserved as to any new injuries claimed in any
supplemental bil of particulars served by plaintiff(s).
7. Other Disclosure:
(a) All parties shall provide the names and addresses of any witnesses to the occurrence and notice
the witnesses; accident reports; party statements; and photographs taken in the ordinary course of
business and/or to be presented at trial, within 90 days from the date of this order.
(b) All parties shall supply expert witness disclosure pursuant to CPLR.
-2-
(c) All defendants other than those listed in Item 7(d) hereof shall,within 90 days from the date of
this order, provide to all parties copies of maintenance and repair records for 2 years prior to and
including the date of the occurrence.
(d) The City of New York and/or other defendants represented by Corporation Counsel, if any, shall
provide the following Additional Disclosure to all parties within 90 days from the date of this order,
subject to the date and location specified in the notice of claim [check if applicable]:
ADDITIONAL DISCLOSURE ITEM 7(d
Cases involving allegations of police misconduct:
The City will provide the following within 90 days after receipt from plaintiff of an
authorization and "so-ordered" unsealing order described in 4(e) above.
L Complaint Report;
ii. Complaint Follow Up Report;
iii. Arrest Report;
iv. Memo Book entries for incident in question;
v. On-line Booking Sheet;
vi. Copies of the applicable Patrol Guide shall be made available by the City for inspection
and copying within 90 days from the date of this order.
vii. Copies of all 911 tapes, if still in existence, and of all sprint printouts for any 911 calls
and radio transmissions related to the events of the action.
Inmate assault cases (Department of Correction (DOC):
i, Department of correction incident report, subject to redaction of privileged information,
including any information regarding criminal acts of other inmates and/or personal information
regarding DOC employees;
ii. Injury to inmate report (within 90 days after receipt of an authorization fromplaintiff;
iii. In camera review of redactions to be made upon request of plaintiff's attorney.
Premise liability Cases:
i, Departmental accident/incident report from respective City agency;
ii, For non-transitory conditions (including recurrent conditions), maintenance and repair
records and written complaints regarding the condition complained of for 18 months prior to
and including the date of occurrence.
iii. For transitory conditions, maintenance records and written complaints regarding the
condition complained of for one month prior to and including the date of the occurrence.
iv. Ifapplicable, lease and/or sublease for the City-owned building.
Board of Education Cases:
i. Board of Education Comprehensive Accident Report for the occurrence, subject to redaction
of privileged information pursuant to the Family Education and Privacy Act, 20 U.S. Code Ch 31.
Extent and nature of the redaction, if questioned, are subject to motion under the statute,
li, Witness statements, subject to redaction of privileged information pursuant to the Family
Education and Privacy Act. Extent and nature of the redaction, if questioned, are
subject to motion under the statute.
I For non-transitory conditions (including recurrent conditions), maintenance and repair
records, written complaints and, to the extent applicable, related contracts for the situs of
-3-
plaintiff's accident, regarding the condition complained of for 18 months prior to and including
the date of occurrence.
iv. For transitory conditions, maintenance records and written complaints regarding the condition
complained of for three months prior to and including the date of occurrance.
ADDITIONAL DISCLOSURE ITEM 7(d
Motor vehicle accidents involving City-owned vehicles:
i. Departmental Accident Report from respective City agency.
ii. Maintence and repair records for the department vehicle involved for one year prior to and including
the date of the occurrence, ifa vehicular defect is alleged in either the departmental accident report or the MV-104.
ii Photos of damage to City vehicle.
iy. Records regarding post-accident repairs shall be supplied by the City unless determined by the court
not to be relevant to an issue in the case,
Slip and Fall Cases (Department of Sanitation): :
i. District Operation Log (carting book) for the period of two weeks prior to and including the date of
occurrence.
District Snow Operation Book for the above period of time.
iii. Snow Removal Operation Report (SR-2) and spreading or plowing operation card for the above time
period, if the occurrence took place in the roadway.
Trip and Fall Cases (Department of Transportation (DOT):
i. Applications for permits and permits for 2 years prior to and including the date of occurrence;
ii, Cut forms, repair orders and repair records for 2 years prior to and including the date of occurrence;
iii. Violations issued for 2 years prior to and including the date of occurrence;
iv. A copy of the title and signature pages, and insurance declaration sheets and/or certificates, for all
contracts in effect for two years prior to and including the date of oceurrence.
y. Contracts and all related contract documents (i.e. progress reports) for two years prior to and
including the date of occurrence will be made available for inspection and copying at either the Office
of the Corporation Counsel designated by said Counsel, or the appropriate City agency, upon a
mutually convenient appointment, but in no event more than 90 days hereafter or a subsequent request
for same by plaintiff.
vi. Complaints made for 2 years prior to and including the date of occurrence;
vii. A copy of the most recent Big Apple Pothole and Sidewalk Protection Corporation map filed for the
area in issue and, if the incident at issue occurred six months or less after the filing of the most recent
such map, then the City shall also produce the last such map filed before the most recent such map for
that location,
Cases involving allegations of defective traffic signals DOT):
i, Maintence and repair records for 30 days prior to and including date of oceurrence;
ii, Complaints made for 30 days prior to and including date of occurrence;
iii, The name and address of the contractor responsible for maintenance of the traffic signals on date of
the occurrence.
iv. A copy of title and signature pages, and insurance declaration sheet and/or certificates, for all
contracts in effect for two years prior to and including the date of the occurrence.
4.
v. Contracts and all related contract document (i.e., progress reports) for two years prior to and including
the date of the occurrence will be made available for inspection and copying at either the Office of the
Corporation Counsel designated by said Counsel, or the appropriate City agency, upon a mutually
convenient appointment, but in no event more than 90 days hereafter or a subsequent request for same
by plaintiff.
Cases involving allegation of defective traffic signs (DOT):
i, Maintenance and repair records for six months prior to and including the date of occurrence;
ii. Complaints for six months prior to and including the date of the occurrence,
(e) Surveillance videos to be provided in accordance with CPLR 3101(i).
(f) Any party who wishes to obtain prior notices of claim, pursuant to GML'S0-g, may do so by
contacting the Division Chief of Claims Support at (212) 669-4329 to set up an appointment to
search the index maintained at One Centre Street, New York, New York.
(g) The New York City Police Department no longer maintains MV-104s beyond 30 days for
accidents occurring after April 15, 1995.
(h) All searches shal] be conducted based upon the date and location as described in the notice of claim
8. Third-party actions/Impleader shall be completed as per CPLR.
9. Compliance Conference shal] be held on MAY 16, 2012 at 2 pm
at 80 Centre Street, New York City in room 103.
10. The Note of Is: sue Due Date shall be established at the final compliance conference.
11. Plaintiff shall within fifteen days after the note of issue is filed and receipt of a request by
defense counsel, provide to defense counsel, HIPAA compliant authorizations in order to
subpoena medical records for trial. Any disputes shall promptly be brought to the attention
of the case management coordinator,
12. Summary Judgment Motions shall be filed no later than 60 days after filing the note of
issue.
If disputes arise about compliance with this Order, the parties shall promptly confer in an
effort to resolve them. If that effort fails, the parties, or any party aggrieved, shall, in
advance of deadlines and prior to initiating motion practice, bring the dispute to the attention
of the Case Management Coordinator (not the assigned Justice), who will schedule a
conference shortly thereafter to resolve the dispute.
-5-
All disclosure called for by this Order must be completed prior to the compliance conference.
The compliance conference will not be adjourned.
Absent good cause, failure to comply with this Order may result in the imposition of penalties
upon the offending party and, where warranted, upon counsel, Such penalties may include
waiver of the discovery, preclusion, dismissal, striking of an answer, costs, sanctions, and
attorney's fees.”
This constitutes the Order of this Court.
Date: Jan 20, 2012
JSC.
Justice: Arthur F. Engoron
~6-
a
we
iv
o a
ae
a
s
i
ate
Py cs a
Be ss
i fs) i bg i si
Ge pe ‘
i ee
u iD AN
hy eh 1b
4 aM
wi a)
é
as a7
es i vesn al Sasa)
ay
bi
ji
s Ps
ae ee
ie
ae
a
ae
.
a ee
a
m ets
eg as
a i
us
st
RESPONDEN(
EXHIBIT
Vhiolu
ak
EXHIBIT 4
—
ra
“6
fe
7 ry
ieie
ih,
‘i
3
a a
He
Pes
i ee Me
a a
:
s
5 a b / a
es ae i
i i m1
z
Vy
a
hy
pa
aa bs ead
tf pine
eT
ee
am
i
ae Ps
i
a
aoe
a De
ae Sik cu
ie
ale
em
ene Tou
i a
— ie, a
Fle
Bat a
i
RESPONDEN(
iB
EXHIBIT
Vliolu
Thave read the foregoing and I certify that upon information and belief, the source of
which is my review of the file maintained by my office in this action, that the foregoing is not
frivolous as defined in (c) of Section 130.1 of the Rules of the Chief Administrator.
S, ete,
Lawr al ftlef, E: C
THE SAFTL R LAW FI
275 Madison Avenue, Suite 1605
New York, NY 10016
(646) 865-0797
A
So
a
WO
0°
st
zs
HO
§ om
Wn
oD
N
SUPREME
COURT
STATE OF NEW YORK, COUNTY OF NEW YORK Index No. 150323/11 Year
Zc
RAYMOND KILPATRICK,
Plaintiff
-against-
THE CITY OF NEW YORK and
RESTANI CONSTRUCTION CORP.
Defendants.
AFFIRMATION IN OPPOSITION
THE SAFTLER LAW FIRM
Attorney(s) for Plaintiff
Office and Post Office Address, Telephone
275 MADISON AVENUE
SUITE 1605
Preview
INDEX NO. 150323/2011 (FILED: NEW YORK COUNTY CLERK 0271372012) NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/13/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eee ee eee ene ene ene nen ne menenennnne K RAYMOND KILPATRICK, Index No.:150323/11 Plaintiff, -against- AFFIRMATION IN OPPOSITION THE CITY OF NEW YORK and RESTANI CONSTRUCTION CORP. Defendants. een ene LAWRENCE B. SAFTLER, an attorney duly admitted to practice law before the courts of the state of New York, affirms the following to be true: 1 I am an attorney with THE SAFTLER LAW FIRM, attorneys for the plaintiff, RAYMOND KILPATRICK. As such, I am fully familiar with the facts and circumstances of this action. 2 This affirmation, as well as the attached affidavit and exhibits, are submitted in opposition to defendant’s, RESTANI CONSTRUCTION CORP. (“RESTANI”), motion for an order pursuant to CPLR § 3212, dismissing all claims and cross claims. SUMMARY OF ARGUMENT. 3 Your affirmant has a good faith basis for naming RESTANI as a defendant based upon communication received by defendant, City of New York. The communication itself, which states RESTANI’s potential liability, creates a material issue of fact that precludes the grant of summary judgment to RESTANI. 4 Further, all relevant materials needed to prosecute this case, or to defend this motion, is in the sole possession of RESTANI. RESTANI and the co-defendant CITY OF NEW YORK have produced no discovery in response to either plaintiff's First Demand for Documents or the Differentiated Case Management Program Case Scheduling Order. Facts essential to justify opposition to RESTANI’s Motion may exist, but cannot be stated because RESTANI never complied or produced any discovery. Pursuant to CPLR § 3212(f), RESTANI’s motion is grossly premature and should be denied. RELEVANT PROCEDURAL HISTORY 5 Your affirmant adopts the procedural history stated in J. Tribble Aff’m. as if fully stated herein except as to those relevant items stated below. 6. Following the completion of the 50-H hearing, City of New York Office of the Comptroller, Robert Howe as supervisor, notified my office that following his investigation of this accident, “a third-party may be responsible” (see Exhibit_1). Pursuant to that correspondence, RESTANI is the third-party who may be responsible. This means the City has conducted a search and found documentation that can prove Restani’s responsibility. 7 On December 12, 2011, Plaintiff's First Demand for Documents (see Exhibit 2) requesting relevant evidence related to the prosecution of this case was served on defendant’s counsel, KAUFMAN BORGEEST & RYAN LLP. 8 RESTANI never provided a response, nor has the City. 9 On January 20, 2012, a Differentiated Case Management Program Case Scheduling Order (see Exhibit 3) was issued via e-file and faxed to both defendants. 10. RESTANI never provided a response, nor has the City i There has been no Preliminary Conference. 12. There have been no Compliance Conferences. 13 There have been no Depositions. 14. There has not even been any paper discovery, other than those documents provided by plaintiff to both defendants'. RELEVANT FACTS 15. Your affirmant adopts the brief factual background stated in J. Tribble Aff’m. as if fully stated herein except as to those relevant items stated below. 16. At the 50-H hearing, photographs of the accident location were marked and testified to (see Exhibit 4). These photographs show the location of the accident and clearly reveal the implication of construction being performed. ARGUMENT I. SUMMARY JUDGMENT IS GROSSLY PREMATURE BECAUSE EVIDENCE NECESSARY TO OPPOSE RESTANI’S MOTION REMAINS IN RESTANI’S SOLE POSSESSION AND HAS NEVER BEEN DISCLOSED. 17. Your affirmant provides no pro forma argument, as RESTANI’s counsel suggests; the facts and law (see CPLR § 3212[f]) require denial of this motion. 18. Where facts are unavailable to the party opposing a motion for summary judgment pursuant to CPLR § 3212, the court may deny the motion as premature, may require further discovery and is free to make such other order as it deems just (see Moukarzel v Montefiore Med. Ctr., 235 AD2d 239, 240 [1st Dep’t 1997]; Ruttura & Sons Constr. v Petrocelli Constr., 257 AD2d 614, 615 [2nd Dep’t 1999]; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 770 [2nd Dep’t 2003]). Only when opponents fail to make the threshold showing that facts essential to justify opposition may exist, do court's grant the drastic result of summary judgment before any discovery takes place. Here, plaintiff achieves the minimal threshold showing that essential facts exist based upon the correspondence received by codefendant, City ' Copies of plaintiff's responses are not annexed hereto as they contain only those documents in plaintiff's possession, which include medical treatment records, the 50-H transcript that is our any attached to RESTANT’s moving papers. of New York (see Exhibit 1). 19. The RESTANI discovery only now provided when compared to the evidence provided by codefendant, City of New York, creates an issue of fact that requires discovery more than the self-serving statements and documents only now provided as part of RESTANI’s motion submission. 20. Permitting dismissal pursuant to CPLR § 3212 is not warranted. I. DISCOVERY HAS NOT EVEN BEGUN. 21, Where outstanding discovery sought by the nonmoving party exists, which may include paper evidence and the opportunity to depose eyewitnesses and other witnesses, the court should deny motions for summary judgment as premature (see Groves v. Land’s End Hous. Co., 80 NY2d 978 [1992]; CPLR §3212[f]). RESTANI provided no response to plaintiffs demand for documents, provided no response to the case scheduling order and has produced no witnesses. It is one thing to suggest, as counsel has in her moving papers, “where discovery is not complete,” but it is a whole other situation where discovery has not even begun. Without having an opportunity to depose the individual who swore to the affidavit, without having an opportunity to depose the individual who signed the contract with codefendant, City of New York, and without having an opportunity to depose the individual listed in the reports who supervised the construction, plaintiff is placed in a substantially prejudiced position. This is not the type of situation that was contemplated as dismissible during pre-trial litigation pursuant to CPLR § 3212. CONCLUSION 22. Plaintiff had no opportunity to obtain any evidence prior to RESTANI’s motion because RESTANI never responded to plaintiff’s demand or the court’s case management order. Permitting it to now use that to its advantage and obtain dismissal goes against logic. Nevertheless, based upon the evidence received thus far that suggests RESTANI’s responsibility (see Exhibit 1), and in viewing the evidence in a light most favorable to the nonmoving party, material issues of fact remain as to RESTANI’s ownership and responsibility for plaintiffs accident and subsequent injuries. Plaintiff's basis for alleging negligence against RESTANI is the correspondence from codefendant, City of New York, and at this early stage where nothing has been disclosed, plaintiff is in an undeniably difficult position to defend this motion. Nonetheless, the correspondence stating RESTANI’s potential involvement in this case suffices to create an issue that requires discovery. WHEREFORE, it is respectfully requested that this court deny RESTANI’s motion for summary judgment and that this matter be scheduled for further discovery as the court deems just, proper and equitable. Dated: New York, NY ete. February 14, 2012 AWTENCS Sattle THE SAFTLER LAW FIRM Attorney for Plaintiff 275 Madison Avenue Suite 1605 New York, New York 10016 (646) 865-0797 TO: KAUFMAN BORGEEST & RYAN LLP Attorneys for Defendant RESTANI CONSTRUCTION CORP. 200 Summit Lake Drive Valhalla, NY 10595 (914) 449-1000 MICHAEL A. CARDOZO Corporation Counsel Attorney for Defendant THE CITY OF NEW YORK 100 Church Street New York, Y 10007 EXHIBIT 1 THE CITY OF NEW YORK OFFICE OF THE COMPTROLLER 1 CENTRE STREET, NEW YORK, N.Y. 10007-2341 U tf John C. Liu COMPTROLLER 015-175 RAYMOND KILPATRICK c/o SAFTLER LAW FIRM 275 MADISON AVENUE SUITE 1605 NEW YORK, NY 10016 Date: 08/17/2011 Re.: RAYMOND KILPATRICK. Claim #: 2011P1019678 D/A: 02/27/2011 THIRD PARTY NOTIFICATION In reference to the above captioned claim, please be advised that our investigation reveals that a third party may be responsible for your loss or injury. Therefore, we recommend that you contact the following concerning your claim: RESTANI CONSTRUCTION CORP. 42-04 BERRIAN BLVD. ASTORIA , NY 11105 ‘You may also pursue your claim against the City of New York by commencing an action within one year and ninety days from the date of the original accident/occurrence. Very truly yours, eet ROBERT HOWE - SUPERVISOR (212)669-4445 Room 1220 EXHIBIT 2 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK. ene nent x RAYMOND KILPATRICK, Index No.:150323/11 Plaintiff, -against- PLAINTIFF'S FIRST DEMAND FOR DOCUMENTS THE CITY OF NEW YORK and RESTANI CONSTRUCTION CORP. Defendants. a et nieennnennn PLEASE TAKE NOTICE, that pursuant to rule 3120 of the CPLR, you are hereby requested to produce and permit the plaintiff and his attorneys to inspect, copy, test and/or photograph the following specified documents in your possession, control and custody that relate to the accident location for a period of three (3) years before the date of accident up to the date of accident: 1 Copies of any prior notifications of sidewalk defects for the location where this accident occurred for a period of three (3) years before the date of accident up to the date of accident; Copies of any and all permits, work orders, cut forms and big Apple Maps for the location where this accident occurred for a period of three (3) years before the date of accident up to the date of accident; 3 Any and all documents showing inspections of the location where this accident occurred for a period of three (3) years before the date of accident up to the date of accident. PLEASE TAKE NOTICE, pursuant to 3101(d)(1) of the Civil Practice Law and Rules you are hereby required to serve upon the undersigned, within twenty (20) days after the service of this demand the name of each person whom defendant expects to call as an expert which shall include a detail statement of subject matter, the substance and facts, qualifications and some of the grounds of each experts opinion PLEASE TAKE FURTHER NOTICE, that this demand shall deem to be continuing during the pendency of this action, including the trial thereof. In the event of failure or refusal to comply with this demand, plaintiff will seek to preclude the testimony of any such witnesses or expert witnesses or the introduction into evidence of any previously non disclosed photograph’s, statements, records, reports or any other items demanded herein. Plaintiff shall move for appropriate relief in the event that the above is not complied with. Dated: New York, New York December 12, 2011 rs, etc. DZ. rence B attfer THE TLER LAW FIRM Attorney for Plaintiff 275 Madison Avenue Suite 1605 New York, New York 10016 (646) 865-0797 TO: KAUFMAN BORGEEST & RYAN LLP Attomeys for Defendant RESTANI CONSTRUCTION CORP. 200 Summit Lake Drive Valhalla, NY 10595 (914) 449-1000 have read the foregoing and I certify that upon information and belief, the source of which is my review of the file maintained by my office in this action, that the foregoing is not frivolous as defined in (c) of Section 130.1 of the Rules of the Chief Administrator. ‘Yours, ¢ AWTEN B7Sai 1, Esq. THE SAFTLER LAW FI 275 Madison Avenue, Suite 1605 New York, NY 10016 (646) 865-0797 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK) COUNTY NEW YORK JSS: VIVIANA S. ROMERO, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age, and resides within the State of New York. That on the 15" day of December, 2011 deponent served the within PLAINTIFEF’S FIRST DEMAND FOR DOCUMENTS upon: KAUFMAN BORGEEST & RYAN LLP Attorneys for Defendant RESTANI CONSTRUCTION CORP. 200 Summit Lake Drive Valhalla, NY 10595 (914) 449-1000 the addresses designated by said attorneys for that purpose by depositing a true ¢o of same enclosed in a postpaid properly addressed wrapper in an official depository wy Xclusive care and custody of the United States Postal Service within New York State. \ ADM >< iviana S OmMero Sworn to before‘ne this 15" day of De ber Notary? ff se & a > yo we ye of ae SUPREME court STATE OF NEW YORK, COUNTY OF NEW YORK. Index No. 150323/11 Year cr RAYMOND KILPATRICK, Plaintiff -against- THE CITY OF NEW YORK and RESTANI CONSTRUCTION CORP. Defendants. PLAINTIFF’S FIRST DEMAND FOR DOCUMENTS THE SAFTLER LAW FIRM Attorney(s) for Plaintiff Office and Post Office Address, Telephone 275 MADISON AVENUE SUITE 1605 NEW YORK, NEW YORK 10016 (646) 865-0797 Signature (Rule 130-1.1-a) To Print name beneath Service of a copy of the within is hereby admitted. Dated: Attorney(s) for PLEASE TAKE NOTICE: ( NOTICE OF ENTRY that the within is a (certified) true copy ofa duly entered in the office of the clerk of the within named court on O NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named Court, at on at Dated, Yours, etc. THE SAFTLER LAW FIRM EXHIBIT 3 Abana. avery aU Vy use 2 Raa ey op vay NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/27/302 x le ¥ oe SUPREME COURT OF THE STATE OF NEW YORK flor New York County Courthouse 80 Centre Street New York, New York 10013 DIFFERENTIATED CASE MANAGEMENT PROGRAM PRESENT: JUSTICE ARTHUR F. ENGORON Part 52 - DCM Jan 20, 2012 Index Number: 0150323/2011 C.C.T.T.No: 2011-027986 KILPATRICK, RAYMOND PLAINTIFF v CITY OF NEW YORK DEFENDANT CASE SCHEDULING ORDER - CITY CASES A request for a preliminary conference having been filed or the court having taken action on its own initiative, IT IS HEREBY ORDERED that this case is designated a Standard matter (Uniform Rule 202.19 (b) and disclosure not already furnished shal! proceed in accordance with the deadlines set forth below. However, a party claiming to be prejudiced by this order may seek a modification of the Standard designation or the schedule by contacting the clerk at the Case Management Office (by phone 646-386-3687, fax 212-374-1753 or email to dwoodley@courts.state.ny.us) within 20 DAYS FROM THE DATE OF THIS ORDER. That Office will provide an opportunity to the parties to be heard on the request at a court conference and the court will take such action as is appropriate. Failure to contact the office before the conference date shall constitute a waiver of any objection to the designation or schedule. The parties shall not contact the Justice assigned, 1. Mandatory Notification: The attorney who receives this Order shall, within ten days from receipt, (a) transmit a copy to counsel for all parties who have appeared in the case and to all self-represented litigants and (b) return to the Case Management Office an original by mail or a copy by fax of an affidavit of service or a letter setting forth the dates the parties were served. 2. Insurance Coverage: Within 30 days from the date of this order, defendant City of New York and any other defendant represented by Corporation Counsel, shal! state in writing, whether it is self-insured or covered by an insurance policy, and all defendant(s), including the City (if applicable), shall furnish to all parties evidence of primary and excess coverage and Certificate of insurance. This is a conformed copy. The original has been signed and filed with the County Clerk. 3. Bill of Particulars: Any party seeking particulars (including as to affirmative defenses, if any) shall serve a demand for a bill within 21 days from the date of this order. The party receiving the demand shall serve a verified bill of particulars within 60 days from the date of this order. 4. Medical Reports and Authorizations: (a) Plaintiff(s) shall provide authorizations to obtain copies of the actual records of all treating and examining health care providers, including diagnostic tests, x-rays, MRIs, EMGs, CT Scans, for injuries specified in the bill of particulars, within 30 days from the date of this order. (b) Plaintiff{s) shall provide an authorization for collateral source information, if any, within 30 days from the date of this order. (c) If plaintiff is claiming a loss of income or wages, within 30 days from the date of this order, plaintiff shal! provide authorizations for W-2 forms or employment records shall be provided for the year of, year before and year after the date of the alleged accident, as well as for the period of time lost from work as a result of the alleged accident, or IRS records if provided by law. (d) If plaintiff was a student at the time of the alleged accident, within 30 days from the date of this order plaintiff shall provide an authorization for schoo] attendance records for the period of time lost from school as a result of the alleged accident,within 30days from the date of this order thereof. (e) For cases alleging police assault or false arrest, plaintiff(s) shall, within 30 days from the date of this order, submit an unsealing order, to be "so ordered" by this Court, to obtain a copy of the Criminal Court File. Plaintiff(s) shall then serve the so ordered" unsealing order upon the Criminal Court. After that Court provides plaintiff with a copy of the Criminal Court file, plaintiff shall provide a copy of the file to the Corporation Counsel within 30 days of the date of service of the unsealing order. 5. Depositions: (a) The depositions of all parties shall take place on APRIL 19, 2012 at 10 am in the Office of the Corporation Counsel, located at 52 Duane Street, 4th floor, New York, New York,10007. Absent prior court approval,any deposition which is not held as scheduled in this order must be immediately rescheduled for a date which is not later than four(4)weeks after the original date. (b) Defendant(s)' right to a further deposition of plaintiff(s) is reserved as to any new injuries or damages claimed in any supplemental bill of particulars served by plaintiff(s) following the plaintiff's deposition. 6. Physical Examination: (a) A physical examination of the plaintiff (s) shall be conducted within 45 days after completion of examination before trial of the plaintiff(s). (b) Acopy of the physician's report shall be furnished to plaintiff(s) within 45 after the examination. (c) Defendant(s)’ right to a further physical is reserved as to any new injuries claimed in any supplemental bil of particulars served by plaintiff(s). 7. Other Disclosure: (a) All parties shall provide the names and addresses of any witnesses to the occurrence and notice the witnesses; accident reports; party statements; and photographs taken in the ordinary course of business and/or to be presented at trial, within 90 days from the date of this order. (b) All parties shall supply expert witness disclosure pursuant to CPLR. -2- (c) All defendants other than those listed in Item 7(d) hereof shall,within 90 days from the date of this order, provide to all parties copies of maintenance and repair records for 2 years prior to and including the date of the occurrence. (d) The City of New York and/or other defendants represented by Corporation Counsel, if any, shall provide the following Additional Disclosure to all parties within 90 days from the date of this order, subject to the date and location specified in the notice of claim [check if applicable]: ADDITIONAL DISCLOSURE ITEM 7(d Cases involving allegations of police misconduct: The City will provide the following within 90 days after receipt from plaintiff of an authorization and "so-ordered" unsealing order described in 4(e) above. L Complaint Report; ii. Complaint Follow Up Report; iii. Arrest Report; iv. Memo Book entries for incident in question; v. On-line Booking Sheet; vi. Copies of the applicable Patrol Guide shall be made available by the City for inspection and copying within 90 days from the date of this order. vii. Copies of all 911 tapes, if still in existence, and of all sprint printouts for any 911 calls and radio transmissions related to the events of the action. Inmate assault cases (Department of Correction (DOC): i, Department of correction incident report, subject to redaction of privileged information, including any information regarding criminal acts of other inmates and/or personal information regarding DOC employees; ii. Injury to inmate report (within 90 days after receipt of an authorization fromplaintiff; iii. In camera review of redactions to be made upon request of plaintiff's attorney. Premise liability Cases: i, Departmental accident/incident report from respective City agency; ii, For non-transitory conditions (including recurrent conditions), maintenance and repair records and written complaints regarding the condition complained of for 18 months prior to and including the date of occurrence. iii. For transitory conditions, maintenance records and written complaints regarding the condition complained of for one month prior to and including the date of the occurrence. iv. Ifapplicable, lease and/or sublease for the City-owned building. Board of Education Cases: i. Board of Education Comprehensive Accident Report for the occurrence, subject to redaction of privileged information pursuant to the Family Education and Privacy Act, 20 U.S. Code Ch 31. Extent and nature of the redaction, if questioned, are subject to motion under the statute, li, Witness statements, subject to redaction of privileged information pursuant to the Family Education and Privacy Act. Extent and nature of the redaction, if questioned, are subject to motion under the statute. I For non-transitory conditions (including recurrent conditions), maintenance and repair records, written complaints and, to the extent applicable, related contracts for the situs of -3- plaintiff's accident, regarding the condition complained of for 18 months prior to and including the date of occurrence. iv. For transitory conditions, maintenance records and written complaints regarding the condition complained of for three months prior to and including the date of occurrance. ADDITIONAL DISCLOSURE ITEM 7(d Motor vehicle accidents involving City-owned vehicles: i. Departmental Accident Report from respective City agency. ii. Maintence and repair records for the department vehicle involved for one year prior to and including the date of the occurrence, ifa vehicular defect is alleged in either the departmental accident report or the MV-104. ii Photos of damage to City vehicle. iy. Records regarding post-accident repairs shall be supplied by the City unless determined by the court not to be relevant to an issue in the case, Slip and Fall Cases (Department of Sanitation): : i. District Operation Log (carting book) for the period of two weeks prior to and including the date of occurrence. District Snow Operation Book for the above period of time. iii. Snow Removal Operation Report (SR-2) and spreading or plowing operation card for the above time period, if the occurrence took place in the roadway. Trip and Fall Cases (Department of Transportation (DOT): i. Applications for permits and permits for 2 years prior to and including the date of occurrence; ii, Cut forms, repair orders and repair records for 2 years prior to and including the date of occurrence; iii. Violations issued for 2 years prior to and including the date of occurrence; iv. A copy of the title and signature pages, and insurance declaration sheets and/or certificates, for all contracts in effect for two years prior to and including the date of oceurrence. y. Contracts and all related contract documents (i.e. progress reports) for two years prior to and including the date of occurrence will be made available for inspection and copying at either the Office of the Corporation Counsel designated by said Counsel, or the appropriate City agency, upon a mutually convenient appointment, but in no event more than 90 days hereafter or a subsequent request for same by plaintiff. vi. Complaints made for 2 years prior to and including the date of occurrence; vii. A copy of the most recent Big Apple Pothole and Sidewalk Protection Corporation map filed for the area in issue and, if the incident at issue occurred six months or less after the filing of the most recent such map, then the City shall also produce the last such map filed before the most recent such map for that location, Cases involving allegations of defective traffic signals DOT): i, Maintence and repair records for 30 days prior to and including date of oceurrence; ii, Complaints made for 30 days prior to and including date of occurrence; iii, The name and address of the contractor responsible for maintenance of the traffic signals on date of the occurrence. iv. A copy of title and signature pages, and insurance declaration sheet and/or certificates, for all contracts in effect for two years prior to and including the date of the occurrence. 4. v. Contracts and all related contract document (i.e., progress reports) for two years prior to and including the date of the occurrence will be made available for inspection and copying at either the Office of the Corporation Counsel designated by said Counsel, or the appropriate City agency, upon a mutually convenient appointment, but in no event more than 90 days hereafter or a subsequent request for same by plaintiff. Cases involving allegation of defective traffic signs (DOT): i, Maintenance and repair records for six months prior to and including the date of occurrence; ii. Complaints for six months prior to and including the date of the occurrence, (e) Surveillance videos to be provided in accordance with CPLR 3101(i). (f) Any party who wishes to obtain prior notices of claim, pursuant to GML'S0-g, may do so by contacting the Division Chief of Claims Support at (212) 669-4329 to set up an appointment to search the index maintained at One Centre Street, New York, New York. (g) The New York City Police Department no longer maintains MV-104s beyond 30 days for accidents occurring after April 15, 1995. (h) All searches shal] be conducted based upon the date and location as described in the notice of claim 8. Third-party actions/Impleader shall be completed as per CPLR. 9. Compliance Conference shal] be held on MAY 16, 2012 at 2 pm at 80 Centre Street, New York City in room 103. 10. The Note of Is: sue Due Date shall be established at the final compliance conference. 11. Plaintiff shall within fifteen days after the note of issue is filed and receipt of a request by defense counsel, provide to defense counsel, HIPAA compliant authorizations in order to subpoena medical records for trial. Any disputes shall promptly be brought to the attention of the case management coordinator, 12. Summary Judgment Motions shall be filed no later than 60 days after filing the note of issue. If disputes arise about compliance with this Order, the parties shall promptly confer in an effort to resolve them. If that effort fails, the parties, or any party aggrieved, shall, in advance of deadlines and prior to initiating motion practice, bring the dispute to the attention of the Case Management Coordinator (not the assigned Justice), who will schedule a conference shortly thereafter to resolve the dispute. -5- All disclosure called for by this Order must be completed prior to the compliance conference. The compliance conference will not be adjourned. Absent good cause, failure to comply with this Order may result in the imposition of penalties upon the offending party and, where warranted, upon counsel, Such penalties may include waiver of the discovery, preclusion, dismissal, striking of an answer, costs, sanctions, and attorney's fees.” This constitutes the Order of this Court. Date: Jan 20, 2012 JSC. Justice: Arthur F. Engoron ~6- a we iv o a ae a s i ate Py cs a Be ss i fs) i bg i si Ge pe ‘ i ee u iD AN hy eh 1b 4 aM wi a) é as a7 es i vesn al Sasa) ay bi ji s Ps ae ee ie ae a ae . a ee a m ets eg as a i us st RESPONDEN( EXHIBIT Vhiolu ak EXHIBIT 4 — ra “6 fe 7 ry ieie ih, ‘i 3 a a He Pes i ee Me a a : s 5 a b / a es ae i i i m1 z Vy a hy pa aa bs ead tf pine eT ee am i ae Ps i a aoe a De ae Sik cu ie ale em ene Tou i a — ie, a Fle Bat a i RESPONDEN( iB EXHIBIT Vliolu Thave read the foregoing and I certify that upon information and belief, the source of which is my review of the file maintained by my office in this action, that the foregoing is not frivolous as defined in (c) of Section 130.1 of the Rules of the Chief Administrator. S, ete, Lawr al ftlef, E: C THE SAFTL R LAW FI 275 Madison Avenue, Suite 1605 New York, NY 10016 (646) 865-0797 A So a WO 0° st zs HO § om Wn oD N SUPREME COURT STATE OF NEW YORK, COUNTY OF NEW YORK Index No. 150323/11 Year Zc RAYMOND KILPATRICK, Plaintiff -against- THE CITY OF NEW YORK and RESTANI CONSTRUCTION CORP. Defendants. AFFIRMATION IN OPPOSITION THE SAFTLER LAW FIRM Attorney(s) for Plaintiff Office and Post Office Address, Telephone 275 MADISON AVENUE SUITE 1605