[September 18, 2014]

https://iapps.courts.state.ny.us/nyscef/CaseDetails?docketId=XoCtMVQ3XwfW/d1Vhv3CSQ==

500098/2013 - Kings County Supreme Court

Short Caption: Trustees of the New York City District Council of Carpenters Pension Fund et al - v. O'Dwyer & Bernstien, LLP et al
Case Type: Commercial
eFiling Status: Full Participation Recorded
Case Status: Active
Assigned Judge: Lawrence Knipel
Document List
Doc
#

Document Type
Information
SUMMONS + COMPLAINT
ACKNOWLEDGEMENT OF SERVICE
Acknowledgment of Service (Defendant O'Dwyer
& Bernstien, LLP)
ACKNOWLEDGEMENT OF SERVICE
Acknowledgment of Service (Defendant Brian
O'Dwyer)
ACKNOWLEDGEMENT OF SERVICE
Acknowledgment of Service (Defendant Gary
Silverman)
ACKNOWLEDGEMENT OF SERVICE
Acknowlegment of Service (Defendant Gary
Rothman)

Status

Processed

Processed

Processed

Processed

Processed

Received
Date
Filing User
01/08/2013
Tenenbaum,
M.
01/18/2013
Tenenbaum,
M.
01/18/2013
Tenenbaum,
M.
01/18/2013
Tenenbaum,
M.
01/18/2013
Tenenbaum,
M.

ANSWER
Answer

Processed

02/11/2013
Richman, E.

RJI -RE: REQUEST FOR PRELIMINARY

CONFERENCE

Processed

10/09/2013
Bishop, N.

PRELIMINARY CONFERENCE ORDER

order dated 2/7/14 filed CC 2/14/14

Processed

02/18/2014
Court User

OTHER ORDER
order dated 5/16/14 filed CC 5/28/14

Processed

05/30/2014
Court User

View

Confirmation
Notice
Confirmation
Notice
Confirmation
Notice
Confirmation
Notice
Confirmation
Notice
Confirmation
Notice
Confirmation
Notice
Confirmation
Notice
Confirmation
Notice

INDEX NO. 500098/2013

FILED: KINGS COUNTY CLERK 02/18/2014

NYSCEF DOC. NO. 8

RECEIVED NYSCEF: 02/18/2014

COMMERCIAL DIVISION
PRELIMINARY CONFERENCE ORDER
PURSUANT TO PART 202 OF THE UNIFORM CIVIL RULES
FOR THE SUPREME COURT KINGS COUNTY
Date

Fe6lP 7

Index

# ~O()!Jr6/!uJI3

Plaintiff(s)

201f

-against-

0 ('Dwyer

'1- Bef'/lSf'/el]_; 1-L-~ ef a./. .

Defendant(s)

Defendant
Firm:

Q' Dwyu
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,
Wh1!r

Fle/)C~Il(; ~

is represented by

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Address:
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E-mail:
p F,~o e v.-FF-/~v. [!?A,
I ertclvvr&Jiz e ~;vf/-/t;~v. c.-....,
Responsible Attorney:

Telephone:

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Fax:

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Defendant._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _is represented by

Firm:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Responsible Attorney: _ _ _ _ _ _ _ _ _ _ _ __
Address: _ _ _ _ _ _ _ _ __ _ _ _ __ _
E-mail:
Telephone: _ _ _ _ _ _ _ _ _ Fax:

Defendant._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ is represented by
Firm: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Responsible Attorney:, _ _ _ _ _ _ _ _ _ _ _ _ __
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
E-mail:
Telephone: _ _ _ _ _ _ _ _ __

(b)

Fax:

Defendant _ _ _ _ _ _ _'s Claims I Defenses

Amount Demanded: $_ _ _ _ __
Defendant _ _ _ _ _ _ _'s Claims I Defenses

Amount Demanded: $_ _ _ _ _ __
Defendant _ _ _ _ _ _ _ 's Claims 1 Defenses

Amount Demanded: $._ _ _ _ _ __

Defendant _ _ _ _ _ _ _'s Claims 1 Defenses

Amount Demanded: $_ _ _ _ __

IT IS HEREBY ORDERED THAT THIS ACTION IS ASSIGNED TO THE

_ _ _ _EXPEDITED_ _ _ _ _.STANDARD _ _ _ _ _COMPLEX TRACK
AND DISCLOSURE SHALL PROCEED AS FOLLOWS:
(1) BILL OF PARTICULARS (See CPLR 3130(1)):

(a) Demand for ~ilYQf particulars shall be served by

before_---~JJL;.
~
/Lt_
L..L.-_ _
(b) Bill of Particulars all be served by
before._ _-+41-T--L-L...----

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on or

on or

(c) BILL OF PARTICULARS SERVED:

[
[

] Satisfactory
] Unsatisfactory - because:

(2) DOCUMENT PRODUCTION/ DISCOVERY AND INSPECTION:

(a) All Demands for Di covery and Inspection (CPLR 3120) shall be served not
later than
days from the date of this Order.
a f'e;::u/y .sel've.
(b) All respons s to Discovery an Inspection demands shall be served not later
than days after 1eceipt of the opposiftg party(ies) defflartd(s). -

De~11fs.) frcJtLcf/D!1 1/71ctrcl; f{b 2.{)!'/ 71/far~tr'ffs ,./1-vr!t~Cf{DA ~ /Jp!','( 3fb~ftf

(c) All demands for production of books, docu~nt~, records and other writings
relevant to the issues in this case shall be deemed to include a demand for
production of any photograph(s), audio tape(s), video tape(s), computer
disk(s) or program(s) and e-mail. The failure to comply herewith may result
in preclusion from the introduction of such evidence.

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(4) DEPOSITIONS: To be held as follows:

(Priority shall be in accordance with CPLR 3106 unless otherwise agreed or ordered)
Party

Date

Time

Place

{o k, sdVKluJed art- CCJrry:JI/rLAce co,{e;-e"ce.=--------

FAILURE TO APPEAR FOR DEPOSffiON AS SCHEDULED WILL BE DEEMED A WAIVER.

FAILURE TO PRODUCE A SPECIFIED WITNESS FOR DEPOSffiON WILL PRECLUDE
SUCH WITNESS'S TESTIMONY AT TRIAL ON BEHALF OF THE PARTY FAILING TO
PRODUCE. SUCH PARTY MAY ALSO BE DEEMED TO HAVE WAIVED THE DEPOSffiON
OF THE OPPOSING PARTY.

(5) OTHER DISCLOSURE:

(a) Commissions or letter rogatory (CPLR 3108): Identify and set forth the

(b) Expert disclosure (CPLR 3101[d])

Plaintiff(s) shall provide expert disclosure by

Defendant(s) shall provide expert disclosure

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(6) PRESERVATION OF ELECTRONIC EVIDENCE:

(a) The term ESI shall include, but not be limited to, e-mails and attachments,
voice mail, instant messaging and other electronic communications, word processing
documents, text files, hard drive spreadsheets, graphics, audio and video files,
databases, calendars, telephone logs, transaction logs, internet usage files, offline
storage or information stored on removable media, information contained on laptops or
other portable devices and network access information and backup materials, Native
Files and the corresponding Metadata which is ordinarily maintained.
(b) Within 10 days of the execution of this PC Order, all signatories hereto shall,
in compliance with Rule 8(b) of the Uniform Commercial Division Rules (22 NYCRR
202.70), submit to the Court a copy of the agreed written plan/stipulation for the
preservation of ESI related documents, data and tangible things reasonably anticipated
to be subject to discovery in this action. Such plan, which may be updated, shall
identify the categories of ESI to be preserved, individuals responsible for preservation,
maintenance and production of ESI and issues relating to potential costs of
maintenance, preservation and production of ESI. In the alternative, counsel may
stipulate to limit and/or eliminate the discovery of ESI in whole or part and/or forego or
4

limit the production of information in electronic form. A copy of such stipulation must
be submitted to the court within 10 days of this Order.
(c) For the relevant periods relating to the issues in this litigation, each party
shall take all reasonable steps (including suspending aspects of ordinary computer
processing and/or backup of data that may compromise or destroy ESI) necessary to
maintain and preserve such ESI as may be (i) relevant to the parties' claims and/or
defenses, or (ii) reasonably calculated to lead to the discovery of admissible evidence,
including but not limited to all such ESI data generated by and/or stored on the party's
computer system(s) and/or any computer system and storage media (i.e., internal and
external hard drives, hard disks, floppy disks, memory sticks, flash drives and backup
tapes), under the party's possession, custody and/or control. The failure to comply
herewith may result in appropriate sanctions or such other relief as the court may be
authorized to impose or award, including but not limited to precluding use of evidence,
taking adverse inferences, and/or rendering judgment in whole or part against the
offending party(ies).
(d) (i) When ESI is produced, it shall be produced on appropriate electronic
media (i.e. CD, DVD or portable hard-drive) in the following format(s), as
may be agreed:
Digital images endorsed with numbers and confidentiality legends, searchable text
and agreed-to metadata fields with regard to the following data:

~ative Format with metadata intact and, as a~pro~riate under the cireums~nees,
endorsed with numbers anti confidentiality legerrds with regard to tire follotving
,data:

_The following format, as agreed by the parties, with regard to the following data:

(ii) In the absence of an agreement by the parties, the court shall direct the
manner of production upon application of the party(ies).
(e) Issues with regard to cost shifting shall be brought to the attention of the
Court as soon as practicable.

(7) CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT:

(a) In the event that there is a need for a Confidentiality/Non-Disclosure
Agreement prior to disclosure, the party(ies) demanding same shall prepare
and circulate the proposed agreement. If the party(ies) cannot agree as to
same, they shall promptly notify the Court. The failure to promptly seek a
co nfi~enttaDty agreement may result in a waiver of same.
anticipates the need for a
(b) P cc.fJ7jif+...S

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(8) DISCOVERY- RELATED DISPUTES:
Issues relating to disclosure shall be resolved between counsel without Court
intervention whenever possible. If Court intervention becomes necessary, a
conference call may be arranged with the Judge or Law Clerk pursuant to Kings
County Commercial Division Rule 18 and must take place prior to any motions
being made.
(9) INSURANCE COVERAGE (IF APPLICABLE): _ _ _ _ _ _ _ _ _ __

(10) IMPLEADER: Shall be completed on or before

( 11) END DATE FOR ALL DISCLOSURE:

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011

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C"'A1flt H&.. c/

[)e_c.J;?/1\hel' 3 ~ :J-. Dt 7

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note of issue/certificate of readiness shall be filed on or

Jz/~1fy before ~ Failure to file a note of issue by this date may result in the
dismissal of this action.

{! Jd

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(15) MOTIONS: Any dispositive motion(s) shall ~llMf!lt=R!tt: rlil

before f-ebf-Uatf2l;:J-0/s;--- ~G Jqt, Cf~k- filt~1

tc P-re

011 or

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(16) FINAL SETTLEMENT CONFERENCE: A final settlement conference, at which the

parties must be present, shall be held on _ _ __
THE DATES SET FORTH HEREIN MAY NOT BE ADJOURNED OR MODIFIED
EXCEPT WITH APPROVAL OF THE COURT.
IN THE EVENT OF NON-COMPLIANCE WITH THE TERMS OF THIS ORDER,
COSTS OR OTHER SANCTIONS MAY BE IMPOSED, INCLUDING PRECLUSION
OF EVIDENCE.
IF A SETTLEMENT IS REACHED, THE COURT SHALL BE PROMPTLY NOTIFIED
AND A COURTESY COPY OF THE STIPULATION OF DISCONTINUANCE SHALL
BE PROMPTLY FORWARDED TO THE COURT. PLAINTIFF IS RESPONSIBLE
FOR FILING THE STIPULATION WITH THE COUNTY CLERK AND SHALL PAY
THE FEES UNLESS OTHERWISE AGREED BETWEEN THE PARTIES AS PART OF
6

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(12) ALTERNATIVE DISPUTE RESOLUTION:

[ ] Requested
[] Declined

(14) NOTE

qfJ-

'

'

'

. THE WRITTEN STIPULATION.

.
-.

'
'

.._

ADDITIONAL DIRECTIVES:

THE PARTIES HAVING APPEARED FOR A PRELIMINARY CONFERENCE ON

THIS DATE HAVE REVIEWED THE TERMS AND/OR CONDITIONS OF THIS
ORDER AND HEREBY AGREE TO SAME.

ATTORNEY~~R PLAINTIF_,_,F:S" " " - - - - - - - - ATTORNEY~~

FOR DEFENDANTS.,___ _ _ _ _ _ __

ATTORNEY_ _ _ _ __

FOR DEFENDANT: _ _ _ _ _ _ _ _-;-,~;

ATTORNEY_ _ _ _ __

FOR DEFENDANT: _ _ _ _ _ _ _r;;:;

-:r:"
_......_____,-..-'.;:~

ATTORNEY_ _ _ _ __

FOR DEFENDANT: _ _ _ _ _ _ _~
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FOR DEFENDANT:
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ATTORNEY_ _ _ _ __

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SO ORDERED:

Datecf EB - 7 2014

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INDEX NO. 500098/2013

FILED: KINGS COUNTY CLERK 05/30/2014

IO~t.!.e

NYSCEF DOC. NO. 9

RECEIVED NYSCEF: 05/30/2014

At the ewihl
-t,fThe Supreme
Court of the State ofNew York, held in and for
the County of Kings, at the Courthouse located at
360 Adams Street, Brooklyn New York on the
"" day of
20rj_

"1'/

f.f-t_JL-------' JHO

PRESENT: Hon.,_...:.."_:__n_,

-~---------------------------------------------------------------)(
(vt,ktl vf- flf'- y,rk_ (,t, Plaintiff(s),

Dulnc.L L"".-agamst."'' .,;, (f4rpt~tln /tit>~

O'Dto;tr~ ~f11~flt!IJ iLflJct,.l

If~

Cal. No.

CPh-<

@SN'fltAL COMPLIXNCE PAR 1'ORDER

Index No.
0011

fvv J ttfi l

!"o

/IJ

DON DEFAULT
oONCONSENT
o AFTER ORAL ARGUMENT

Defendant(s)

-----------------------------------------------------------------)(

Plaintiff to provide all outstanding authorizations within twenty (20) days. (Enumerate if necessary on Page 2)
All outstanding responses to Discovery and Inspection requests within twenty (20) days.
Depositions of
must be held on or be; re ------=---=--=-=---=--:---o
Independent Medical Examinations to be held on or before
( within thirty (30)
days after the plaintiffs depositions). Defendant to designate Doctor s) by
~
.
Medical Reports must be exchanged within
days of the exam.
Plaintiff shall file a Note of Issue on or before
"1
:S or action may be dismissed. Plaintiff
must comply with the Uniform Rules of Kings County for pia ing action on the Calendar. If the Note oflssue
is filed prematurely, motions to strike Note oflssue must be made within the time-period required in the CPLR.
Furthe rdered:_~---~~--~-----~H-~--------------------

Unjustifie failure of any party to comply with the terms of this Order will
pleading. This order does not constitute a CPLR 3216 notice.

in the striking of a

ENTER:
HON.

PRINT NAME
ATTORNEY FIRM
ATTORNEY FIRM

SIGNATURE

/Jta.rc 1iMeA/:x,tl~by ~FOR ~AINTIFF(S)

fiAVI fit&~

by

ATTORNEY FIRM_ _ _ _ _ _ _ _by

fq ~

FORDEFENDANT(S)

7'~
0 'l"'")v:J. f,t/'11,/c.. Uf',

i :i WV

ATToRNEY FIRM

FOR DEFENDANT(S)
8ZAVIJ~mt
--by__-+t-r-~.......-~---'ftj~EFENDANT(S) - - - - - -

ATTORNEY FIRM

by

CS/ CCP-Rev 09/20 13

AlNn~p s~~EFENDANT(s) _ _ _ _ __

eJ., t