SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER RICHARD THOMAS, as Mayor of the City of Mount = Vernon, + Index No. @¥U1Z017 Petitioner, -against- ERNEST D. DAVIS, MAUREEN WALKER, individually and as Comptroller of the City of Mount Vernon, ANTHONY BOVE, AVANTI BUILDING CONSTRUCTION CORP., LANDI CONTRACTING, INC., FULLER & D’ANGELO, P.C., NEW YORK AFFIRMATION RECYCLING, LLC, WOODARD & CURRAN OF JEFFREY D. BUSS, ESQ. ENGINEERING, P.A., WOODARD & CURRAN, : INSUPPORT OF APPLICATION INC., SPORT-TECH CONSTRUCTION CORP., HCK FOR DISCLOSURE PRIOR TO RECREATION, INC., EBERLIN & EBERLIN, P.C., COMEMNCEMENT OF : ACTION PURSUANT TO CPLR RYAN BIGGS CLARK DAVIS ENGINEERING & SURVEYING, D.P.C., WALTERS & WALTERS, INC, THE CITY COUNCIL OF THE CITY OF MOUNT VERNON, JOHN DOES 1-10, and JANE DOES 1-10, §3102(C) AON Cier Respondents, ‘THE CITY OF MOUNT VERNON. Nominal respondent. x fOnd 0 JEFFREY D. BUSS, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury, pursuant to CPLR 2106: 1, Lam a member of Smith, Buss & Jacobs, LLP, attorneys for Petitioner in the above-captioned action, and I am familiar with the facts set forth herein. I respectfully submit this affirmation in support of the Petitioner’s application to obtain pre-action disclosure pursuant to CPLR 3102(c) to aid in bringing an action against potential defendants and to preserve information,2. Inor around November 2015, Petitioner became aware that unknown defendants had dumped approximately 12,000 cubic yards of construction debris and regulated materials at Memorial Field, a municipal park owned by the City of Mount Vernon. 3. _Ittis a violation of City and State laws to dispose of construction and demolition debris without a Solid Waste Management Facility Permit issued from the New York State Department of Environmental Conservation (the “DEC 4, Inconnection with this unlawful dumping of construction and demolition debris, and regulated materials at Memorial Field, the DEC imposed a civil penalty upon the City and directed it to remediate Memorial Field, 5. Under New York Jaw, Petitioner has rights, claims and remedies with it may assert against entities and individuals who caused 12,000 cubic yards of construction and demolition debris and other materials to be dumped at Memorial Field, including without limitation remedies to recover costs related to the remediation of Memorial Field and to protect against the further unlawful dumping of construction debris and contaminated materials within the municipal park. 6. Inthe opinion of counsel, Petitioner has several meritorious common law and statutory claims against the unknown defendants who have unlawfully dumped approximately 12,000 cubie yards of construction debris and contaminated materials at Memorial Field, causing the City to sustain environmental and monetary damages. 7. Petitioner intends to commence an action against the prospective defendants in this Court and to assert New York statutory and common law claims, including, inter alia, public and private nuisance, negligence, trespass, restitution, and indemnification and claims under the New ‘York Real Property Actions and Proceedings Law § 841.8. Asexplained more fully in the Verified Petition, pre-action discovery, pursuant to CPLR 3102(c), is necessary to identify defendants who unlawfully dumped construction and demolition debris containing contaminated substances at Memorial Field. 9. Pursuant to CPLR 3102(c), before an action is commenced, a court may order disclosure to aid in bringing an action and to preserve information. CPLR 3102(c); see also Stewart v, New York City Tr. Auth., 112 A.D.2d 939, 940 (2d Dep't 1985) (“It is well established that disclosure ‘to aid in bringing an action’ (CPLR 3102(c)) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants.”). 10. The primary purpose of CPLR 3102(c) is to allow a prospective plaintiff to conduct discovery to frame a complaint and to identify prospective defendants. 11. Where, as here, the facts state prima facie causes of action, the requested discovery should be permitted by the Court to allow the prospective plaintiff to determine what form or forms the action should take. See Stewart, supra, 112 A.D.2d at 940; see also Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., Inc., 58 A.D.2d 629, 630 (2d Dep't 1977) (“Where, however, the facts alleged state a cause of action, the protection of a party's affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate.”) 12. Upon information and belief, the respondents have documents and information that are material and necessary to ascertaining potential defendants who were directly responsible for dumbing construction debris and contaminated materials at Memorial Field. Further, as set forth in the Verified Petition, each respondent (or its employees and representatives) has personal knowledge about those contractors and individuals who performed or authorized construction or demolition work at or around Memorial Field during the operative periods. 313, The Court should direct the respondents to produce such documents and information and appear for deposition, pursuant to CPLR 3102(c). 14. Absent the requested relief, Petitioner will be unable to ascertain the identity of the unknown defendants and unable to bring an action against those defendants, WHEREFORE, based upon the foregoing and the accompanying papers, I respectfully request that this Court issue an Order, pursuant to CPLR 3102(c): (@ Directing respondents and their respective agents, officers, directors, employees, representatives, successors and assigns, having knowledge of the facts, to preserve and produce for inspection and discovery all documents and communications from January 1, 2009 to the present regarding the delivery and disposal of construction and demolition debris and regulated waste to and from the Memorial field site, as well as the demolition, renovation, remediation or construction work performed or proposed to be performed at or near Memorial Field; Gi) Directing respondents and their respective agents, officers, directors, employees, representatives, successors and assigns, having knowledge of the facts, to preserve and produce for inspection and discovery all documents and communications, including electronic date, emails and text messages, regarding waste delivered, deposited, created, or removed to or from the Memorial Field site; (ii) Directing each respondent to appear for a deposition/examination before trial regarding the delivery and disposal of construction and demolition debris and. regulated waste to and from the Memorial field site, as well as any demolition, renovation,remediation or construction work performed or proposed to be performed, at or near ‘Memorial Field; (iv) Directing each entity respondent to produce a witness who is familiar with the above-described subject to appear for a deposition/examination before trial regarding the delivery and disposal of construction and demolition debris and regulated waste to and from the Memorial field site, as well as all demolition, renovation, remediation or construction work performed or proposed to be performed at or near Memorial Field; (v) Directing respondents to identify and produce documents and communications sufficient to show, for the period of January 1, 2009 to the present: a. The name and address of, and any record indicating the name and address of each and every consultant, contractor, subcontractor, or individual hired or proposed to be hired to perform work at or around Memorial Field. b. The scope of work to be performed by said consultant, contractor, subcontractor, or individual, including the costs for such work or services. ¢. The approval and selection process for hiring each contractor, consultant, or other individual hired to perform demolition, construction, remediation, or renovation work at or around Memorial Field d. Any permits or permit applications for work being performed at or around Memorial Field ©. Any contract or agreement, whether written or oral, in connection with any work performed or proposed to be performed at or around Memorial Field, or the delivery and disposal of construction and demolition debris and regulated waste to and from the Memorial field site. f, Any record, including any invoice, time card, contract, plans, sketches, dump ticket, and/or drawing, indicating the name of any entity or individual 5performing work at or around Memorial Field or the delivery and disposal of construction and demolition debris and regulated waste to and from the Memorial field site. g. Any record, including invoices, purchase and sales agreements, rental agreements, receipts, and plans to identify any equipment that was used in connection with any construction, renovation, alteration, or demolition work at or around Memorial Field h, The name and address of, and any record indicating the name and address of each every consultant, contractor, subcontractor, or individual that received funds from the City of Mount Vernon in connection with work performed or to be performed at or around Memorial Field, and the amount of funds paid to said persons or entities, including date(s) of payments. (vi) granting such other and further relief as may seem just and equitable under the circumstances. Dated: Yonkers, New York Novernber 3, 2017