Document 1Q27RNy88mmQwjKY4bZg95z5a

SUPREME COURT OF THE STATE OF HEW YORK COUNTY OF NEW YORK NICOLINA SIRECI, as Executrix of the Estate of JOSEPH E. SIRECI* deceased, Plaintiff, -against- CHEMCO, INC., ROMAN HAAS, INC. MONSANTO, INC., UNION CARBIDE, INC., and AMERICAN CYANAMID, INC. Defendants. AFFIRMATION IN OPPOSITION Index #13411/83 pnuM i u,i! COMPANY a/h/a ROMAN HAAS INC*.', *" Defendant and Third Party Plaintiff, -against- ELM COATED FABRICS, INC., a Division of KALEX CHEMICAL, INC., Third Party Defendant. ....... - -- -- -- -- -- -- -- -x MONSANTO COMPANY, INC., Third Party Plaintiff, -against- ELM COATED FABRICS, INC. and ELM COATED FABRICS, INC. d/b/a ELM COATED FABRICS DIV. OF KALEX CHEMICAL PRODUCTS, INC., Third Party Defendants. ----------- -....--->--x 1 STATE OF NEW YORK, COUNTY OF NEW YORK FRANK P, MANGIATORDI an attorney-at-law duly admitted to practice In the State of New York, hereby affirms under the penalty of perjury as followst That he Is a partner In the firm of MANGIATORDI & CORPINA, ESQS., trial counsel to the attorneys of record herein, and as suoh attorney is fully familiar with the facts, circumstances, nuances and legalities pertaining thereto* That this affirmation is submitted in opposition to this belated and untimely motion by the third party defendant for a protective order pursuant to CPLR 3103 with respect to a notic for discovery and inspection served on said third-party defendant am Meir 01 1 flflC f ^ * The original notice of mo'tion was received on July 8, 1985* Thereafter, another notice of motion was received at your affirmant's office on July 15, 1985 with a covering letter from the attorneys for the third party defendant dated July 10, 1985 indicating that the motion "is returnable in Special Term, Part 1A and not Special Term, Part 1". The envelope of transmittal is postmarked July 11, 1985* The above papers were received simultaneously on July 15, 1985 with an affirmation in opposition by ALEXANDER V. SANASONE, to a cross motion, made by your affirmant which was returnable in Special Term, Part 1, on July 23, 1985* That cross motion was in response to a motion made by the defendant, UNION 2 ucc 044589 CARBIDE, INC. for summary judgment dismissing plaintiff's complaint on the primary ground that sales or distribution of the offending poly vinyl chloride was not manufactured by UNION CARBIDE since September 5, 1977 and that no products containing poly vinyl chloride resins were sold, by them, to the third party defendant. That upon receipt of the motion for summary judgment, your affirmant had hearsay knowledge from a co-employee ofj decedent, that poly vinyl chlorides were used by third party defendant up until the untimely death of plaintiff's decedent. Prior to receipt of the motion for summary judgment, the third party defendant was served with a notice for discovery ?nd ir^^ection by the defendant, UNION. CARBIDE, a copy of which is attached hereto and marked Exhib'it "A". Said notice was dated December 21, 1984 and no response or motion against it have been initiated by the third party defendant. The third party defendant was and still is also in default of that notice. Therefore, your affirmant, duplicated the notice for disoovery and inspection and served the demand on May 21, 1985, a copy of which is attached hereto and marked Exhibit "B", together with an affidavit of service of mailing. Unfortunately the third party defendant's attorneys are having problems with receiving and sending their mail. Your affirmant refuses to believe that an attorney would misrepresent to the court, under oath, the receipt or forwarding of notices through the mail. The third party defendant's attorney states in 3 uee 044590 his affirmation in opposition that the attorney for UNION CARBIDE, INC. forwarded a copy of the notice for discovery and inspection to him in mid-June. He admittedly was aware of the notice at that time and, therefore, makes this motion untimely pursuant to CPLR 3122, which allows for this motion "within ten days". The mere allegation by the attorney for the third-party defendant that the demands for discovery and inspection are overly broad, speculative and abusive are unfounded. Demand goes to the very essence of the defense by the primary defendants as to the statute of limitation running prior to the lawsuit. "he plaintiff cannot speak on behalf of tne aeceaent. The demand calls for the particulars which would be primarily and solely In the possession, knowledge and control of the third party defendant. To withhold this Information and knowledge will substantially prejudice the plaintiff. The disclosure process as promoted by the legislature through the Civil Practice Law and Rules was designed in order to obviate the practice of concealing material which is "material and neaessary" rather than to enhance the opportunity of concealment as proposed by the third party defendant. In light of the fact that this motion is in the form of a cross motion made by your affirmant, returnable in Special Term, Part 1A, it is requested that this motion be returned to Special Term, Part 1, so that all of the motions may be decided ucc 4 044591 * at the same time. WHEREFORE, your affirmant respectfully requests that this motion be denied and that the third party defendant be compelled to answer the demand for discovery and inspection, and for such other and further relief as to this court may be Just and proper. Dated* New York, New York July 17, 1?85 5 1JCC 044592 Exhibit A / Urn SUPREME COURT OP THE STATE OP NEW YORK COUNTY OP NEW YORK X N1COLINA SIRECI, as Exacutrix of tha Estats of JOSEPH E. SIRECI, dacaasad. Plaintiff, -against- CHEMCO, 'INC* , ROMAN HAAS, INC*, MONSANTO, INC.. UNXON CARBIDE, INC., and AMERICAN CYANAMID, INC. Defendants. NOTICE OF DISCOVERY AND INSPECTION ROHN fc HASS COMPANY s/h/a ROMAN HAAS, INC,, Dafandant and Third Parry Plaintiff, -against* ELM COATED FABRICS, INC., a Division Of KALEX CHEMICAL, INC., Third-Party Dafandant. Indax No. 13411/83 MONSANTO COMPANY, INC., Third-Party Plaintiff, 'X -againstELM COATED FABRICS, INC* and ELM COATED FABRICS, INC. d/b/a. ELM COATED FABRICS DIV. OF KALEX CHEMICAL PRODUCTS, INC., Third-Party Dafandants. S I R Si x PLEASE TAKE NOTICE that pursuant to Rula 3120(a) of tha Civil Practica Lai* and Rulas, tha dafandant. Union* Carbid ' ' ucc 044594 c* c * ft Corporation, demands that tha third-party defendant Elm Coat d Fabrics, Inc., a Division of Kalex Chemical, Inc. {"Kalex") produce and permit discovery by its attorneys, or another acting on its behalf, of the documents described in the annexed Schedule of Documents which are in the possession, custody or control -of Kalex or any of its agents, employees, officers of other persons under the control of or acting on behalf of Kal x on the 16th day of January, 1985 at lOtOO A.M. a$* the offices of defendant's counsel located at 101 Park Avenue, 32nd floor. New York, New York 10178, at which time they will be physically inspected, copied or mechanically produced or reproduced. If there is any document called tor in this notice mm which is claimed to be privileged, identify each such document by stating (1) its date; (2) the name, address and occupation at the time of preparation of the person or persons who prepared it; (3) the name, address and occupation at the tin of dissemination of the person or persons to thorn it was directed or circulated or who had access thereto; (4) its nature (i.e., letter, memorandum, contract); (5) its subject matter(s); (6) the name, address and present occupation of th person or persons now in possession of it; and (7) the ground upon which the claim of privilege is made. Definitions As used herein, the terms "documents" and "records" mean (1) all writings of any kind, whether handwritten, typ d, printed or otherwise produced or reproduced, and including, but ucc ij445'3S c not limited to* all agreements, contracts, correspondence, letters, telegrams, teletypes, telexes, cables. Interoffice and intraoffice communications, memoranda, notes* opinions, reports, studies, entries in personal diaries os other record boolcs, summaries or notes of conversations or communications f any type or description (including, without limitation, telephone conversations, personal conversations or interviews, meetings, conferences, negotiations and investigations), marginal comments appearing on any documents, calendars, pamphlets, books, manuals, directives, bulletins, news releases, ledgers, statistics, surveys, checks, financial statements, invoices, receipts, work sheets, opinions and reports of consultants, and all drafts of any of the foregoing writings; (2) all graphic, mechanical or electronic reproductions, representations, recordings or compilations f data of any kind, including, but not limited to, drawings, charts, graphs, motion picture films, microfilms, microfiles, phonograph and tape recordings, videotapes, any transcripts or printouts produced therefrom and all drafts of any of the_foregoing; and (3) all copies of the documents listed in (1) and (2) above. For the purposes of the foregoing definition, the term "draft** means any earlier, preliminary, preparatory or tentative version of all or part of a document, Whethef or not the terms of the draft are the same as or different from the terms of the final documents and the term "copies* means all Ur c copies of any documents which ara not identical in every respect with the documents being produced. The term "Kalex" shall mean the defendant Elm Coated Fabrics. Inc., a Division of Kalex Chemical. Inc. or any predecessor company of said defendant. Schedule of Documents ' 1* Any and all inventory records pertaining to polyvinyl chloride ("PVC") or products containing< PVC Which s were used, stored, or otherwise in Kalex*s possession from January 1. 1976 to and including June 30. 1981. 2. Any and all records pertaining to FVC or products ' containing PVC purchased by Kalex from January 1. 1976 to and including June 30. 1981, Including but not limited to purchase orders, packing slips, invoices, and purchase ledger books. 3. Any and all records pertaining to FVC or products containing PVC Which were manufactured, used, sold or otherwise dirposed of by Kalex from January 1, 1976 to and including June 30, 1981, including but not limited to purchase orders, packing slips, purchase orders, or other records of such manufacture, sale or other disposal. 4. The names and addresses of all persons or entities from whom Kalex purchased PVC or products containing PVC from January 1, 1976 to and including June 30, 1981. 5. Any and all brochures, catalogs or other descriptive literature with respect to PVC or any product containing PVC received by Kalex or promulgated by Kalex from January 1, 1976 to and including June 30, 1981. ucc 044597 9 C( 6 . Any and all guidelines, instruction booklets, safety manuals, rules, regulations or procedures with respect to PVC or products containing PVC used by Kalex froa January 1, 1976 to and including June 30, 1981* 7. Any and all safety or inspection reports prepared by or on behalf of Kalex with respect to PVC or products containing PVC fro* a January 1* 1976 to and including June 30, 1981, including but not liaited to any OSHA reports or reports of or for any other federal, state of local government agency. 8. Any and all literature received by Kalex froa any federal, state or local governaent agency with respect to PVC or the dangers of PVC between January 1, 1976 to and including June 30, 1981. 9. The complete personnel file of Joseph E. Sired, including but not United to records of positions held by Mr. Sireei and the duration thereof, records of duties performed by Mr. Sired and the dates and locations thereof, payroll records, medical records, records of any insurance applications or Insurance claims mads by Mr. Sireei, and Mr. Sired's worker*s compensation file. Dated* New York, New York December 21, 1984 TO* Hogan, Jones A Paris!, P.C. Attorneys for Third Party Defendant 82 Beaver Street New York, New York 10005 Morris A Duffy Attorneys for Roha a Haas 233 Broadway Suite 1800 New York, NY 10279 ucc -5- 044598 c c I ft Mongiatordi fc Corpins* P.C Attorney* for Plaintiff 110 East 42nd Straat New York* New York 10017 Costello ft Shea Attorneys for American Cyanamid 50 Broadway New York* New York 10004 Siff & Newman* P.C. Attorneys for Monsant 233 Broadway New York* NY 10279 -6- 9 ucc G445S9 Exhibit B ( ucc 044600 SUPREME COURT OF THE STATE OF HEW YORK COUNTY OF HEW YORK NXCOLINA SXRECI, as Executrix of tha Estate of JOSEPH E. SIRECI, deceased, Plaintiff, -against- CHEMCO, .INC., ROMAN HAAS, INC., MONSANTO, INC., UNION CARBIDE, INC., and AMERICAN CYANAMID, INC. Defendants. ROHN A HASS COMPANY a/h/a ROMAN HAAS, INC., Dafandant and Third Party Plaintiff, -against- r t i ELM COATED FABRICS, INC., a Division Of KALEX CHEMICAL, INC., Third-Party Dafandant. NOTICE OF DISCOVERY AND INSPECTION Zndsx No. 13411/83 MONSANTO COMPANY, INC., Third-Party Plaintiff, -against- ELM COATED FABRICS, INC. and ELM COATED FABRICS. INC. d/b/a. ELM COATED FABRICS D1V. OF KALEX CHEMICAL PRODUCTS, INC., S IRS* Third-Party Dafandants. ----------------------------------x ucc 044601 PLEASE TAKE NOTICE that pursuant to Rula 3120(a) of tha Civil Praetica Lav and Rulas, tha plaintiff, NXCOLINA 6IRECI, . demands that tha third-party dafandant Elm Coated fabrics, Inc., a Division of Kalex Cheaical, Inc. (`Kales*) produce and parait diacovary by ita attorneys, or another acting on its behalf, of the docuaents described in the annexed i* Schedule of Docuaents Which are In the possession, custody or control of Kales or any of its agents, employees, officers of other persons under the control of or acting on Deihalf of Kales on the 11thday of .'June, 1985 at IOiOO A.N. at Jthe offices of defendant's counsel located at-US-East 42nd Street, Suite 1511, New York, New York 10017, at. Which tlae they will be physically inspected, copied or nechanically produced or reproduced. If there is any document called for in this * Which is elaiaed to be privileged,"'identify each such document by stating (1) Its date* (2) the name, address and occupation at the time of preparation of the person or persons Who prepared itx (3) the name, address and occupation at the time of dissemination of the person or persons to Whoa it was directed or circulated or Who had aecess thereto (4) its #* nature (i.e., letter, aeaorandua, contract)} (5) its subject matter(s); (6) the name, address and present occupation of the person or persons now in possession of itt and (7) the ground upon Which the claia of privilege is made. Definitions * As used herein, the teras `docuaents* and `records* mean (1) all writings .of any kind. Whether handwritten, typed, .printed or otherwise produced or reproduced, and including, but ucc 044602 a cc not Halted to* all agreements, contracts, correspondence, letters, telegrams, teletypes, telexes, cables, interoffice and intraoffice communications, memoranda, notes, opinions, reports, studies, entries in personal diaries or other record books, summaries or notes of conversations or cdmmunlcatlons f any type or description (including, without limitation, telephone conversetions, personal conversations or Interviews, meetings, conferences, negotiations and investigations), a marginal comments appearing on any documents, calendars, pamphlets, books, manuals, directives, bulletins, news releases, ledgers, statistics, surveys, bheeks, financial statements, invoices, receipts, work sheets, opinions and reports of consultants, and all dwfts of any of the foregoing writings; (2) all graphic, mechanical or electronic reproductions, representations, recordings or compilations of data of any kind, including, but not limited to, drawings, charts, graphs, motion picture films, microfilms, microfiles, phonograph and tape recordings, videotapes, any transcripts r printouts produced therefrom and all drafts of any of the . foregoing; and (3) all copies of the documents listed in (1) and (2) above* For the purposes of the foregoing definition, the term "draft" means any earlier, preliminary, preparatory or tentative version of all or part of a document. Whether or not the terms of the draft are the same as or different from the terms of the final documents and the term "copies" means all ucc 044803 copiss of any docunents which arc not identical In every raspact with tha docunsnts bsing produced. Tha tarn "Kalex" shall naan tha dafandant Eln Coatsd Fabrics* Inc., a Division of Kalax Chan!cal, Inc. or any. pradscassor conpany of said dafandant. Schedula of Docunants 1. Any and all inventory records pertaining to polyvinyl chloride ("FVC") or products containing FVC which * wars usad, -stored, or otharwisa in Kalax's possession fron January 1, 1976 to and including June 30, 1981* 2. Any and all records pertaining to FVC or products containing FVC purchased by Kalax froa January 1, 1976 to and including June 30, 1981, including, but not Halted to purchase . orders, packing slips, invoices, `and purchase ledger books. 3. Any and all records pertaining to PVC or products containing PVC Which ware nanufactured, usad, sold or otherwise disposed of by' Kalax froa January 1, 1976 to and including June 30, 1981, including but not Halted to purchase orders, packing slips, purchase orders, or other records of such aanufacture, sale or other disposal. 4. The nanes and addresses of all persons or entities froa whoa Kalax purchased FVC or products containing FVC fron January 1, 1976 to and including June 30, 1981. 5* Any and all brochures, catalogs or other descriptive literature with respect to FVC or any product containing FVC received by Kalax or proaulgated by Kalax froa January 1, 1976 to and including June 30, 1981. -A. Ucc ^60i 8 II j i l j l i ! cG 6. Any and all guidelines, instrueti n booklets, safety manuals, rules, regulations or procedures with respect to PVC or products containing FVC used by Kalex from January 1, 1976 to and Including June 30, 1981. 7. Any and all safety or inspection reports prepared by or on behalf of Kalex with respect to PVC or products containing FVC from January 1, 1976 to and including June 30, 1981, including but not limited to any OSHA reports or reports of or for any other federal, state or local government agency. e 8. Any and all literature received by Kalex from any federal, state or local government agency with respect to PVC or the dangers of PVC between January 1, 1976 to and Including June 30, 1981. 9. The complete personnel file of Joseph E. Sired, including but not limited to records of positions held by Hr. Sired and the dates and locations thereof, payroll records, medical Tecords, records of any insurance applications or insurance claims made by Hr. Sired, and Hr. Sired's worker's compensation file. Dated: New York, New York Hay 21, 1985 Yours, etc., HANGIATOBDI & CORPXNA, ESQS. Attorneys for Plaintiff Office & P.0. Address 110 East 42nd Street New York, New York 10017 212 697 0700 ucc C44S05 c c- 10: HOGAN. JONES & FARISI, P.C. Attorney* for Third Party Defendant 82 Beaver Street New.; York. New York 10005 MORRIS & DUFFY. ESQS. Attorneys for Rohm & Haas 233 Broadway Suite 1800 New York, New York 10279 COSTELLO & SHEA, ESQS. Attorneys for American Cyanamid 50 Broadway New York, New York 10004 SIFF & NEUMAN, P.C. Attorneys for Monsanto 233 Broadway New York, New York 10279 KELLY, DRYE & WARREN, ESQS. Attorneys for Union Carbide Corp. 101 Park Avenue New York, New York 10178 ucc 044606 $ cc or nvia w wm STATE or NEW TORE ) ss.< COUNTY or NEW YOKE. > JANET A. FERRAIOLE bliC| Ally WTli. . **s ..y... o.r.` "* ****** ** ,'tl0B "* is OVIf U Jr * Ik rt *> rf **J l* 8S deponent esrved the vitkiAHotice of Discovery and Inspection . rw ,XSB,iSS5.M,Sw*2 f! tbr ` HirtSTSS.!*&`U5 J&S S,S5.i w - persons for ihst purpose. HOGAN, JONES &PARIST, P.C. Attorneys for Third Party Defendant 82 Beaver Street New York, New York 10QG5 MORRIS & DUFFY, ESQS. Attorneys for Rohm & Haas 233 Broadway Suite 1800 New York, New York 10279 COSTELLO & SHEA, ESQS. Attorneys for American Synaaid , SO Broadway I New York, New York 10004 "SIFF & NEWMAN, P.C.' Attorneys for Monsanto 233 Broadway New York, New York 10279 KELLY, DRYE & WARREN, ESQS. Attorneya for Union Carbid 101 Park Avenue New York, New York 10178 r two** to kefort m this 21 day of May \ 9