FILED: BRONX COUNTY CLERK 04/28/2016 02:53 PM
`FILED: BRONX COUNTY CLERK 042016 02:53 P
`NYSCEF DOC. NO. 188
`NYSCEF DOC. NO. 188
`
`INDEX NO. 21612/2011E
`INDEX N0- 21612/20113
`R*.C*.IV*.D \IYSCEF: O4/28/2016
`RECEIVED NYSCEF: 04/28/2016
`
`EXHIBIT E
`
`
`FILED: BRONX COUNTY CLERK 042016 02:53 P
`NYSCEF DOC. NO. 188
`NYSCEF DOC. NO. 188
`
`INDEX NO. 21612/2011E
`INDEX N0- 21612/20113
`R*.C*.IV*.D \IYSCEF: O4/28/2016
`RECEIVED NYSCEF: 04/28/2016
`
`EXHIBIT E
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF BRONX
`
`___________________________________________________________________________ “X
`
`JACKELINE MONTOYA,
`
`Index No.: 21612/2011E
`
`Plaintiff,
`
`—against-
`
`RESPONSE TO
`COURT ORDER OF
`
`NOVEMBER 24 2015
`
`BAY PLAZA APPLE, LLC, BAY PLAZA COMMUNITY
`CENTRE, LLC AND SP CENTER, LLC, DAFPY’S, INC., and
`ACCOLADE BUILDING MAINTENANCE CORP.,
`
`...........................................................................-_X
`
`C O U N S E L O R S:
`
`Defendants.
`
`PLEASE TAKE NOTICE, that the defendants, BAY PLAZA COMMUNITY
`
`CENTRE, LLC AND SP CENTER, LLC, by and through their attorneys, MALAPERO &
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`PRISCO LLP, respond to the Court’s Order of November 24, 2015 which directed that defendants
`
`respond to plaintiffs “combined demands of June 17, 2012.” A review of defendants’ file confirms
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`that “plaintiffs combined demands of June 17, 2012” does not exist. However, in a good faith
`
`effort
`
`to respond to this Court’s Order of November 24, 2015, defendants, BAY PLAZA
`
`COMMUNITY CENTRE, LLC AND SP CENTER, LLC, state upon information and belief as
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`follows:
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`RESERVATION OF RIGHTS:
`
`A.
`
`To the extent that defendant produces documents in response to said demands, they
`
`do so without conceding the materiality, authenticity, admissibility or relevance of
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`any such documents, or of any substantive responses to demands.
`
`B.
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`Defendant reserves all objections to the use of these responses and if any documents
`
`produced in connection herewith. Such obj ections may be interposed by responding
`
`defendants at any time, including at the time of trial or as otherwise required by the
`
`rules and orders of this Court.
`
`-1- (32-459)
`
`
`
`Defendant
`
`reserves the right
`
`to amend, supplement, modify or correct
`
`these
`
`responses, objections and production of documents, if any, as additional information
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`and/or documents are identified and/or become available.
`
`Insofar as the inadvertent production of any documents by the defendants pursuant
`
`to the demands may be deemed a waiver of any privilege or right, such waiver shall
`
`be deemed to be a limited waiver solely with respect to that particular document.
`
`The inadvertent production of any document shall not be deemed or construed to
`
`constitute a waiver of any privilege,
`
`right or obligation of defendants, and
`
`defendants reserve the right to demand that such document and all copies thereof
`
`be returned to defendants.
`
`Defendant reserves the right to redact non—responsive material from many otherwise
`
`responsive documents that may be produced as part of defendants’ responses to the
`
`demands.
`
`GENERAL OBJECTIONS:
`
`Defendant objects to the demands to the extent
`
`that
`
`they seek information,
`
`documents or other materials that are neither relevant to the subject matter of the
`
`pending action nor reasonably calculated to lead to the discovery of admissible
`
`evidence.
`
`Defendant objects to the demands to the extent that they purport to seek information,
`
`documents or other materials protected by the attorney—client privilege, the work
`
`product doctrine or any other applicable privilege or immunity.
`
`Defendant objects to the demands to the extent that they purport to seek documents
`
`generated by or at the direction of their counsel.
`
`In responding to the demands,
`
`defendants will construe the demands as not requesting production of such
`
`documents.
`
`Defendant objects to the demands to the extent
`
`that
`
`they purport
`
`to require
`
`defendants to produce or to provide information or documents not within responding
`
`defendants’ possession, custody or control.
`
`Defendant objects to the demands to the extent that they do not incorporate time
`
`limitations.
`
`-2- (82-459)
`
`
`
`F.
`
`Defendant objects to the demands to the extent that they seek to impose obligations
`
`extended beyond those imposed or authorized by the CPLR of this Court.
`
`G.
`
`Defendant objects to the demands to the extent
`
`that
`
`they purport to demand
`
`information, documents or other materials created, dated or generated after the date
`
`of the complaint that this action was filed.
`
`H.
`
`These general objections are continuing and are incorporated by reference and
`
`response to each of the demands set forth below. Any objection or lack of objection
`
`to any portion of the demands is not to be deemed an admission. Subject to and
`
`without waiver of these general objections, defendants respond to the demands of
`
`co—defendant as follows:
`
`RESPONSES
`
`MAINTENANCE, REPAIR AND CONSTRUCTION RECORDS
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC, are not in
`
`possession of any records of maintenance, repair, construction, contractors, work records,
`
`permits, bids, applications, engineering plans, or surveys regarding the subject bathroom.
`
`STORE MONITORING VIDEO / DIGITAL FOOTAGE
`
`Upon information and belief, defendants, BAY PLAZA COMMUNITY
`
`CENTER, LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC,
`
`are not in possession of any store monitoring video / digital footage of the subject bathroom,
`
`however, defendants are conducting a good faith search, and should same exist defendants
`
`reserve the right to supplement this response.
`
`STATEMENTS
`
`Upon information and belief, defendants, BAY PLAZA COMMUNITY
`
`CENTER, LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC,
`
`are not in possession of any statements issued by plaintiff.
`
`-3- (82-459)
`
`
`
`INSURANCE
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC were issued a
`
`policy of insurance by Philadelphia Indemnity Insurance Company with policy number
`
`PHPK56047l, with effective dates of April 25, 2010 to April 25, 2011, in the amount of Two
`
`Million ($2,000,000.00) Dollars in the general aggregate limit; and One Million ($1,000,000.00)
`
`Dollars per occurrence.
`
`ACCIDENT / INCIDENT REPORTS
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC, are not in
`
`possession of any accident / incident reports, however, defendants are conducting a good faith
`
`search, and should same exist defendants reserve the right to supplement this response.
`
`WITNESSES
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC, are unaware
`
`of any witnesses other than those disclosed by the plaintiff.
`
`EXPERT WITNESSES
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC, have
`
`exchanged Dr. Allen E. Rubenstein on October 29, 2015, and Dr. Benjamin E. Rosenstadt on
`
`October 29, 2015, pursuant to CPLR §3 l0l(d).
`
`PHOTOGRAPHS
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC, are not in
`
`-4- (82-459)
`
`
`
`possession of any photographs of the scene of the incident other than those which may have been
`
`provided by plaintiff.
`
`LEASES
`
`Upon information and belief, defendants BAY PLAZA COMMUNITY CENTER,
`
`LLC i/s/h/a BAY PLAZA COMMUNITY CENTRE, LLC, and SP CENTER, LLC, are not in
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`possession of the lease agreement between BAY PLAZA COMMUNITY CENTER, LLC AND
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`SP CENTER, LLC and Personal Touch allegedly in effect on August 16, 2010.
`
`PLEASE TAKE FURTHER NOTICE, that the defendants hereby deem the above
`
`responses to be ongoing in nature and reserve their right to supplement and/or amend the same
`
`should further information and/or documentation become available up to the time of trial.
`
`Dated: New York, New York
`
`December 28, 2015
`
`
`
`Attorneys for Defendants
`BAY PLAZA COMMUNITY CENTER,
`LLC i/s/h/a BAY PLAZA COMMUNITY
`
`CENTRE, LLC, and SP CENTER, LLC
`295 Madison Avenue
`
`New York, New York 10017
`(212) 661-7300
`
`-5- (82-459)
`
`TO:
`
`KRAVET, HOEFER & MAHER, P.C.
`Attorneys for Plaintiff
`JACKELINE MONTOYA
`
`1135A Morris Park Avenue, Suite 202
`
`Bronx, New York l0461
`
`(718) 931-3131
`
`
`
`FUREY, FUREY, LEVERAGE, MANZIONE,
`WILLIAMS & DARLINGTON, P.C.
`Attorneys for Defendant
`ACCOLADE BUILDING MAINTENANCE CORP.
`600 Front Street
`
`Hempstead, NY 1 1550
`(516)538-2500
`File: 7024
`
`LAW OFFICES OF SAFRANEK, COHEN & KROLIAN
`Attorneys for Defendant
`DAFFY’S INC.
`
`1 Water Street
`
`White Plains, New York 10601
`
`(914) 997-0072
`
`-6- (82-459)
`
`
`
`AFFIDAVIT OF SERVICE
`
`SS.:
`
`) :
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK )
`
`ALEXA MILLER, being duly sworn, deposes and says:
`
`That I am not a party to their action, and am over 18 years of age.
`On the Zcfdtay of December, 2015, I served the within RESPONSE TO COURT
`
`ORDER OF NOVEMBER 24, 2015 upon the attorneys whose name(s) and address(es) are set
`
`forth below, by enclosing a true copy thereof in a securely sealed envelope/container, with proper
`
`postage, addressed to their respective office(s), and by depositing the same in an official box of the
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`U.S. Post Office regularly maintained by the United States Government at 12 East 41st Street, New
`
`York, New York 10017.
`
`TO:
`
`KRAVET, HOEFER & MAHER, PC.
`Attorneys for Plaintiff
`JACKELINE MONTOYA
`
`1 135A Morris Park Avenue, Suite 202
`
`Bronx, New York 10461
`
`(718) 931-3131
`
`FUREY, FUREY, LEVERAGE, MANZIONE,
`
`WILLIAMS & DARLINGTON, PC.
`
`Attorneys for Defendant
`ACCOLADE BUILDING MAINTENANCE CORP.
`
`600 Front Street
`
`Hempstead, NY 11550
`(516) 538~2500
`File: 7024
`
`LAW OFFICES OF SAFRANEK, COHEN & KROLIAN
`Attorneys for Defendant
`DAFFY’S INC.
`
`1 Water Street
`
`White Plains, New York 10601
`
`(914) 997-0072
`Commission EXDIFGS 04/16/2016
`
`SANABRIA
`Notarf/3§i:It[>\li[:i:’.A‘State of New York
`No. O18/#6259534 t
`Qualified in Kings COW‘ Y
`
`-7- (82-459)
`
`
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