FILED: NEW YORK COUNTY CLERK 09/09/ :15 PM INDEX NO /2016 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/09/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 09/09/ :15 PM INDEX NO /2016 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/09/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X BILL STATHAKOS and 1413 FULTON MANAGEMENT, LLC Index No.: /2016 -against- Plaintiffs, NOTICE FOR DISCOVERY AND INSPECTION COLONY INSURANCE COMPANY, Defendant X PLEASE TAKE NOTICE THAT, pursuant to Section 3101 and Rule 3120 of the New York Civil Practice Law and Rules, defendant Colony Insurance Company, by its attorneys, demand that plaintiffs produce for discovery, inspection and copying the requested documents within twenty (20) days hereof to Melito & Adolfsen P.C. at 233 Broadway, Suite 1010, New York, New York 10279: DEFINITIONS AND INSTRUCTIONS A. This Notice is intended to cover all information and documents in the possession of plaintiff, its agents and representatives, or which are subject to the custody and control of plaintiff, its agents or representatives. B. As used in this request, the terms listed below have the following meanings: 1. Plaintiffs, You, Your, or refers to plaintiffs Bill Stathakos ( Stathakos ), and 1413 Fulton Management, LLC ( Fulton ), plaintiffs in this action, and their agents, attorneys, representatives, partners, affiliates, predecessors or successors in interest, whether past or present, and all persons acting or purporting to act on their behalf. 2. Colony or Defendant refers to Colony Insurance Company, and its 1 1 of 10

2 employees, officers, directors, agents, attorneys and representatives, partners, affiliates, predecessors or successors in interest, whether past or present, and all persons acting or purporting to act on their behalf. 3. Complaint refers to the complaint filed by plaintiffs in this action 4. Underlying Complaint refers to the complaint brought by Pedro Valentin, Kings Supreme Court Index No. 5046/ Party means any entity or person regardless of whether they have been named in any action commenced herein, presently or hereafter, and where applicable, includes their present or former employees, agents, representatives, brokers, attorneys, officers, directors, partners, predecessors and successors in interest, whether past or present, and all persons acting or purporting to act on their behalf. 6. The Occurrence refers to the alleged accident or incident which gives rise to the Underlying Complaint. 7. The Colony GL Policy refers to the commercial general liability policy of insurance issued by Colony which is at issue in this action. 8. The Colony Excess Policy refers to the excess policy of insurance issued by Colony which is at issue in this action. 9. Communication means every manner of transmitting or receiving information, including, but not limited to, conversations (whether face to face, by telephone or otherwise), meetings, conferences, discussions, negotiations, documents and all other oral or written contacts. 10. The term Document means (a) any written or graphic matter of any kind or character, however produced or reproduced; (b) any electronically or magnetically recorded or 2 2 of 10

3 stored matter of any kind or character, however produced or reproduced; and (c) any other matter of any kind or character, constituting the recording or storage in any retrievable way, of any tangible thing, any means of communication or representation or data retention not previously mentioned in this subsection. The foregoing includes, but is not limited to, all written or printed matter of any kind, including the originals, drafts, and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise, including, without limitation, transcripts, minutes, contracts, agreements, correspondence, memoranda, notes, diaries, statistics, letters, telegraphs, agendas, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books, prospectuses, interoffice and intraoffice communications, offers, notations of any sort of any conversation (including, without limitation, telephone conversations or meetings), bulletins, computer printouts, teletypes, telefax, invoices, worksheets and all drafts, alterations, modifications, changes and amendments to any of the foregoing, graphic or manual records or representations of any kind (including, without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, records, motion pictures), and electronic, mechanical or electric records or representations of any kind (including, without limitation, tapes, cassettes, disks, and recording information contained in any computer although not yet printed out). 11. Agreement means any document that constitutes or purports to be, in whole or in part, a contract, and includes all amendments, modifications, interpretations and drafts thereof, whether or not executed, as well as any document which memorializes an oral agreement. 12. Concerning means containing, constituting, showing, mentioning, reflecting, responding to, pertaining, relating or referring to in any way, directly or indirectly. 13. Any includes the word all and all includes the word any. 3 3 of 10

4 14. And as well as or shall be construed either disjunctively or conjunctively as necessary to bring within the scope of this notice documents that might otherwise be construed to be outside of the scope. 15. The use of any tense of any verb includes all other tenses of the verb so used, except where circumstances clearly make it inappropriate. 16. Where appropriate, the use of a singular includes the plural, and the use of the plural includes the singular, except as the context might otherwise require. C. With respect to any information or document requested herein to which a claim of privilege is asserted, you are to provide the following information: 1. The basis for withholding production of the document, e.g., attorney-client privilege or work product immunity; 2. If the basis is attorney-client privilege, the identity of the client and the attorney; 3. If the basis is work product immunity, the identity of the litigation in anticipation of which the document was prepared, or of the trial for which the document was prepared; 4. Type of document, e.g., letter, memorandum; 5. The general subject matter of the document; 6. Composition of the document, e.g., typed, handwritten; 7. Whether the document is an original or copy; 8. Number of pages of the document; 9. Date of the document; 10. Author(s) of the document, including without limitation, the person who drafted or otherwise prepared the document, the person who signed the document, and the company or other entity on whose behalf the document was prepared or signed; and 4 4 of 10

5 11. Addressee(s) of the document, including without limitation, any person to whom the document was sent, shown, or to whom the contents of the document are otherwise known. D. If any of the documents requested herein have been destroyed, furnish a list identifying each document, the author and addressee, each person to whom copies of the document were furnished or to whom the contents thereof were known, a summary of the substance of the document, the date upon which it was destroyed and the reason it was destroyed. E. This request is continuing and thus, to the extent that your responses may be enlarged by you after you respond, you are promptly to make available for inspection and copying such additional materials. F. Each request herein for a document contemplates production of the document in its entirety, without abbreviation or expurgation. G. Identify (with respect to persons) means to provide, to the extent known, the person s: a. full name; b. present or last known home address; c. present or last known business address; d. business affiliation and job title at the time of the events described in the Complaint; and e. present business affiliation and job title, and/or if unavailable, last known business affiliation and job title. H. Identify (with respect to documents) means to provide, to the extent known, information about the: 5 5 of 10

6 a. type of document (e.g., letter, memorandum, telegram, chart); b. general subject matter; c. the date of the document; d. its author(s); e. all addressees or recipients; and f. its present location or custodian. DOCUMENTS TO BE PRODUCED 1. All documents concerning The Occurrence. 2. All documents concerning any insurance policies that provide or potentially provide Plaintiffs with insurance coverage for The Occurrence. 3. All Certificates of Insurance pertaining to insurance coverage described in item #2 above. 4. All documents, including but not limited to contracts, which do or potentially may require another Party to indemnify or hold Plaintiffs harmless from any liability arising out of The Occurrence. 5. All documents concerning the procurement, maintenance, cancellation or replacement of insurance coverage by any other Party for The Occurrence that provides or potentially provides Plaintiffs with insurance coverage for any lawsuit arising out of The Occurrence. 6. All documents concerning any company hired by any or all of the Plaintiffs to perform work at the situs of the Occurrence, including but not limited to communications, contracts, subcontracts, purchase orders, etc. 6 6 of 10

7 7. All contracts, agreements and/or communications between Plaintiffs and Defendant concerning The Occurrence. 8. All contracts, agreements, and/or communications between Plaintiffs and any insurance company or insurance fund concerning The Occurrence. 9. All contracts, agreements and/or communications between Plaintiff and any other Party concerning The Occurrence. 10. All contracts, agreements and/or communications not called for above concerning The Occurrence. 11. A complete copy of Plaintiffs files concerning The Occurrence and, including, but not limited to, all applications, investigation reports, accident reports to government agencies and insurers, all accident or incident reports generated in the normal course of business, photographs and any other written or graphic materials pertaining to The Occurrence. 12. All documents concerning any discovery exchanged, deposition transcripts, pleadings, demands, accident reports, expert reports, police reports, or any other document served or exchanged in the Underlying Action. 13. All documents concerning The Occurrence, including, but not limited to, all investigations conducted by Plaintiffs, or any other Party into The Occurrence. 14. All documents, not called for above, concerning The Occurrence including, but not limited to, all correspondence and tenders concerning The Occurrence. 15. All documents relating to when Plaintiffs first had notice of The Occurrence, including but not limited to any accident reports or other correspondence relating to The Occurrence. 16. All documents not called for above relating to insurance coverage for The 7 7 of 10

8 Occurrence. 17. All documents identified in Plaintiff s responses to the First Set of Interrogatories, served simultaneously with this Notice For Discovery and Inspection, which are not otherwise requested in the preceding paragraphs of this notice. 18. All documents relied upon by Plaintiffs in support of their allegation that they are entitled to insurance coverage under the Colony GL Policy and the Colony Excess Policy. 19. All documents concerning the amount of defense and/or indemnify costs allegedly incurred, estimated to be incurred or expended by Plaintiffs with regard to The Occurrence, including, but limited to, invoices, billing statements, and itemizations relating to such costs. 20. All documents concerning any allegations regarding breach of contract by Defendant. 21. Copies of any all statements narrative, recorded or transcribed of employees of Plaintiffs, or any employee, or of a party in the Underlying Action, or in this action, and any memoranda prepared of interviews held with any employee of a party in the Underlying Action, or in this action. 22. Names and addresses of any witness known to Plaintiffs or Plaintiffs attorney, including witnesses to admissions, notice or conversation. Specify the name or witness to each of the following, including, but not limited thereto: (a) (b) The Occurrence; Any acts, omissions or conditions which allegedly caused The Occurrence 8 8 of 10

9 PLEASE TAKE FURTHER NOTICE THAT, in lieu of physical production of the aforesaid documents at the above-stated time and place, Defendant shall deem this notice satisfied by your photocopying the aforesaid items and mailing copies thereof to Defendant attorneys by regular mail within twenty (20) days of the date hereof. Dated: New York, New York September 9, 2016 Yours, etc. MELITO & ADOLFSEN P.C By: /s/ Michael F. Panayotou Ignatius John Melito, Esq. Michael F. Panayotou, Esq. Attorneys for Defendant 233 Broadway Suite 1010 New York, New York Tel. No.: (212) TO: KENNEY SHELTON LIPTAK NOWAK LLP Timothy E. Delahunt, Esq. Matthew C. Ronan, Esq. Attorneys for Plaintiffs 233 Franklin Street Buffalo, New York Tel. No.: (716) M&A of 10

10 AFFIRMATION OF SERVICE BY NYSCEF STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) MICHAEL F. PANAYOTOU, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the truth of the following statements under the penalties of perjury: That on the 9 th day of September, 2016 Your Affirmant served the within NOTICE FOR DISCOVERY AND INSPECTION upon: KENNEY SHELTON LIPTAK NOWAK LLP Timothy E. Delahunt, Esq. Matthew C. Ronan, Esq. Attorneys for Plaintiffs 233 Franklin Street Buffalo, New York Tel. No.: (716) attorneys in this action, by uploading a true and correct electronic copy of same to the New York State E-Filing website located at Said attorneys consented to receive service of papers by e-filing upon commencement of/answering the complaint in this action. /s/ Michael F. Panayotou MICHAEL F. PANAYOTOU, ESQ of 10