days after service is In complctc if the summons is not personally delivered to you within the State of New York, case of your failure to mwww, judgment will be taken against you by default for the relief demanded in the complaint.

Plaintiff; Brandon Colon, for his complaint herein, by his attorneys Cooper Erving & Savage, LLP, respectfully alleges the following upon information and belief:

10, That at all times hereinafter mentioned, Defendant PKP Syracuse was recognized, accepted and permitted to operate as a fraternal organization and thereafter registered to act as same by Symouse University.

That at all times hereiñafter mentioned, Defendant Home Association leased the Fraternity House Premises located at University Place, Syracuse, New York 13210, to Defeñdâñt

That by reason of defendant PKP Syracuse's breach of its duty to comply with the rules, regulations and policies of FASA and the Interfraternity Council as aforementioned, Mr, Watson becarne intoxicated and Mr. Colon was caused to suffer serious physiesl and emotional injuries.

This matter involves an alleged assault and battery upon plaintiff by a member of Phi Kappa Psi, Watson, occurring in the early morning hours of April 10, 2016 near the fraternity house.

In an attempt to respond to plaintiff s disclosure demand there are 4,935 pages of google chats that were produced by counsel for the fraternity defendants which are subject to objection logs, a procedure expressly permitted by the Court.

See in particular, McCann v. Harleysville Insurance Company of New York, 78 AD3d 1524 (4th Dept 2010) in which it was held that the mere fact of use of social media (in that case Facebook) was not sufficient to justify disclosure except as to those materials a disclosing party might intend to

The satne is not generally relevant or admissible at trial [Levine v. Shell Oil Co., 28 NY2d 205 (1971)] although, in this case, the habit or custom asserted is said to involve deliberate and repetitive practices that may be material and necessary for disclosure [Holloran v. Virginia Chemicals, Inc., 41 NY2d 386 (1977)].

These were not one on one or private conversations with an expectation of privacy as in Forman v. Henkin, 134 AD3d 529 (l st Dept 2915) and Melissa G. v North Babylon Union Free School District, 48 Misc3d 389 (Suffolk County 2015).

Daniel J. Goodstadt, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true, under penalty of perjury, pursuant to CPLR § 2106:

Your affirmant was able to speak with counsel representing the national chapter of the Phi Kappa Psi fraternity who confirmed that Berman had given a verbal statement to her office in which he outlined his account of the events

Following this conversation with counsel for the national fraternity, your affirmant was able to speak with Berman on his cell phone to discuss his appearance for a non- party deposition in connection with this matter.

Defendant Estate has attempted to serve the subpoena on Berrnan's parents, Allen and Sherri Berman at 17351 W Sunset Blvd, Unit 2b, Pacific Palisades,

As set forth in detail in the accompanying Memorandum of Law, this Honorable Court should issue pursuant to CPLR Estate an Order, §308 (5), granting Defendant of Hunter Brooks Watson authority to serve the non-party witness subpoena upon non-party witness Eric Berman via overnight mail at his last known address as well as his parents address, and also electronically by text message and electronic mail, extending the time to complete the non-party depositions of Berman and Maizlish for 60 days and granting such other and further relief as this Honorable Court may deem just and proper.

FILED: ONONDAGA COUNTY CLERK 02m2020 03:28 P

laid and excuses all business aside, being officer oaths law to administer authorized or other reporter a court before by on the Santa Monica, Suite 1299 Ocean California, 900, Avenue, O'Connor, or continued date to testify and give evidence at 12:00 and any adjourned 2020 at an Examination Before Trial in connection all of the facts and circumstances with allegations herein.

plaintiff's p.m., regarding at th you the appear offices of day as a non-party your within and attend of Cozen , witness knowledge alleged Your incident deposition of April is necessary is believe it because at the Phi Kappa 9 and 10, 2016, that Psi you have unique

Fraternity knowledge House.

The Honorable Justice Scott J. DelConte J. Goodstadt, Esq. for Defendant

Plaintiff, Brandon Colon, by and through his attorneys, Cooper Erving & Savage, LLC, having moved this Court for an order to strike pleadings and render a default judgment against Defendants PHI KApPA PSI FRATERNITY,NEW YORK BETA CHAPTEROF SYRACUSEUNIVERSITY, PHI KApPA PSI FRATERNITY,INC.

ANDHOME ASSOCIATIONOFNEW YORK BETA OF PHI KApPA PSI, and Co-defendant Estate of Hunter Brooks Watson having made a cross motion to compel discovery from Co-defendants

upon reading and filing of plaintiffs notice of motion dated October 25, 2017 and the attorney affirmation (with exhibits included) of Brett D. French, Esq.

NOW, upon further reading and filing of the cross notice of motion of co-defendant Estate of Hunter Brooks Watson dated November 13,2017 and the attorney affirmation (with exhibits included) of Patrick B. Sardino, Esq.

That the cross motion of co-defendant Estate of Hunter Brooks Watson to compel discovery of the Google Chat messages in question is granted subject to the Court's in camera review referred to above.

for Leave to Amend its Verified Answer pursuant to CPLR § 3025(b) with the addition of affirmative defense of General Obligations Law §15-108; and

upon reading and consideration of the moving papers of the Estate including Notice of Motion, Memorandum of Law and proposed Amended Answer; the Affirmation the in Opposition of the Plaintiff; and the Reply Affirmation of the Defendant Estate, it is hereby,

The proposed Ameñded Verified Answer attached Defendant's papers as Exhibit

years duly sworn says: I am not a party to the action, am over copy and last thereof custody known On January 22, 2020, in a post-paid enclosed the United States of address of the addressee

the within under in an official wrapper, depository of New York, Postal Service within the State forth set below: I served by depositing the exclusive addressed a true care to the D. French, Brett Esq.

VAN Raul-tum 3mm: none-rue) n. unmuu uvme (lore-man) CHRISTOFHKR P. FLINT‘ PAUL F. MIR OFCDUMIH.

Gregory R. Gilbert Onondaga County Supreme Court 25 East Oneida Street Oswego, NY 13126

Dear Judge Gilbert: This office represents defendant, Theodore Zelley, in the above-referenced matter.

We are writing to advise the Court that we have no opposition to plaintiff’s Motion to Amend the First Amended Verified Complaint [Doc. 357] which is currently returnable before Your Honor on April 18, 2019.

As such, we will not be appearing to be heard on this motion.

Respectfully submitted,

33-17-1093 29208 Paul, et al. defendant, Court that Complaint As 2019.

Mason have [Doc #357] we will no in the Paul, opposition which not be we such, above-referenced to plaintiffs is currently appearing to We matter.

Gregory Onondaga East Oswego, R. Gilbert Supreme Street 13126 County Oneida

dge Gilbert: represents firm to advise the writing Amended Verified First Honor on April 18, This are the Your motion.

AHC:csa cc: All Counsel of Record Via NYSCEF Respectfully submitted,

On September 9, 2016, Plaintiff commenced this action seeking damages for alleged On September 9, 2016, Plaintiff commenced this action seeking damages for alleged personal injuries arising from a physical altercation that occurred in or about the middle of a personal injuries arising from a physical altercation that occurred in or about the middle of a public roadway in Syracuse, New York (hereinafter "Incident").

On January 6, 2019, Plaintiff served his five months overdue responses to Defendant's discovery, January 6, 2019, Plaintiff served his five months overdue responses to Defendant’s discovery, including a Verified Bill of Particulars in which he identified a new cause of action against including a Verified Bill of Particulars in which he identified a new cause of action against Defendant for "negligent supervision" of the Local Chapter.

The proposed Second Amended Verified Complaint attached to Plaintiff's motion seeks to further expand upon the "negligent Verified Complaint attached to Plaintiff’s motion seeks to further expand upon the “negligent supervision" cause of action introduced in Plaintiff's bill of particulars by alleging Defendant has supervision” cause of action introduced in Plaintiff’s bill of particulars by alleging Defendant has a duty to supervise not only the Local Chapter, but also each of its individual members.

As further evidence of Defendant's purported assumption of control over the Local Chapter As further evidence of Defendant’s purported assumption of control over the Local Chapter and its members, Plaintiff includes a copy of Phi Kappa Psi's Risk Management and Insurance and its members, Plaintiff includes a copy of Phi Kappa Psi’s Risk Management and Insurance Guide.

risk management.” … "This guide will help to identify some general liability exposures which “This guide will help to identify some general liability exposures which are common to fraternity chapters and present our policies and offer are common to fraternity chapters and present our policies and offer guidelines and ideas which can be implemented to reduce the potential for guidelines and ideas which can be implemented to reduce the potential for

ATTO RNE YS AT L AW ESTABLlSH ED 1785 coopererving.com LOO-rER ERVING & SAVAGE LLP

E-File Via Hon, Justice R. Gilbert Gregory of the Supreme Court Courthouse Onondaga County Street 401 Montgomery New York 13202 Syracuse, Joseph Wallen c/o Re: Brandon Index Date v. Phi Colon

for Deposition No.: Certain Kappa Psi, et al of Jerry Watson Dear Judge: In convenience.

accordance with the directive of the Court, please So Order this letter at your of Hunter Estate Defendant New in Syracuse, deposition York, New York Suite 750, Syracuse, for Jerry Watson be unable to attend of Hunter Watson shall be required which be done ex patte.

Reporters, October on Monday, 13202, medical unforeseen some a request to and submit appear at One at for Lincoln

HOME ASSOCIA nON OF NEW YORK BETA OF PHI KAPPA PSI, and ESTATE OF HUNTER BROOKS WATSON, deceased, Defendants Han.

Upon the moving papers of the Defendant ESTATE OF HUNTER BROOOKS WATSON (hereinafter referred to as the "Defendant Estate"), including the Defendant Estate's Notice of Motion, dated June 1, 2017, Attomey Patrick B. Sardina's Affirmation in Support of Motion, and Exhibits attached thereto, dated, June 1,2017, and Attorney Patrick B. Sardina's AffiImation of Good Faith Pursuant to 22 NYCRR 9202.7, dated June 1, 2017; upon Attorney Patrick B. Sardina's Notice of Withdrawn Subpoena letter, dated August 1, 2017, which notified the court that the Plaintiff BRANDON COLON had.

withdrawn its Subpoena Duces Tecum, dated May 2, 2017, which originally sought documents and things from the late Hunter Brook's Watson's criminal defense attomey, Attomey George F. Hildebrant; and upon appearance of counsel for the parties, including Attorney Brett D. French, of Cooper Erving & Savage LLP, attomeys, for the Plaintiff, Attorney Patrick B. Sardina, of Cozen O'Connor, attorneys for the Defendant Estate, and Attorney Michael P. Ringwood, of Smith Sovik Kendrick & Sugnet, P.C., ,.

attorneys for Pill KAPPA PSI FRATERNITY, NEW YORK BETA CHAPTER OF

and HOME ASSOCIATION OF NEW YORK BETA OF PHI KAPPA PSI, on August 10,2017, wherein Attorney Brett D. French, confinned that the Plaintiff had withdrawn its Subpoena Duces Tecum, dated May 2, 2017, which sought documents and things from the late Hunter Brook's Watson's criminal defense attorney, Attorney George F. Hildebrant, it is hereby ORDERED that the Defendant Estate's Motion to Quash the Plaintiffs Subpoena Duces Tecum, dated May 2, 2017, which sought documents and things from the late Hunter Brook's Watson's criminal defense attomey, Attorney George F. Hildebrant, is denied as moot.

HOME ASSOCIAnON OF NEW YORK BETA OF PHI KAPPA PSI, and ESTATE OF HUNTER BROOKS WATSON, deceased, Defendants Hon.

in Support of Plaintiff's Motion to Compel, dated July 25, 2017; upon the Affirnlation in Opposition, and Exhibits attached thereto, dated August 3, 2017, of Attorney Patrick B. Sardino, of Cozen O'Connor, counsel for the Defendant ESTATE OF HUNTER BROOKS WATSON (hereinafter referred to as the "Defendant Estate"); upon the Affidavit in Behalf "Fraternity" Defendants, dated August 4, 2017, of Attorney Michael P. Ringwood, of Smith, Sovik, Kendrick & Sugnet, P.C., attorneys for PHI KAPPA PSI FRATERNITY, NEW

INC, and HOME ASSOCIATION OF NEW YORK BETA OF PHI KAPPA PSI (hereinafter referred to collectively as the "Fraternity Defendants"), and Attorney Michael P. Ringwood's Fraternity Defendants Supplemental Affidavit in Response/Opposition to Plaintiff's Motion to Preclude and Compel, and Exhibits attached thereto, dated August 8, 2017; and upon appearance of counsel for the parties, Attorney Brett D. French, of Cooper Erving & Savage LLP, attorneys,

IT IS FURTHER ORDERED that the Plaintiffs Motion to Compel and Preclude pursuant to CPLR ~S 3042, 3124, and 3126, is granted on the basis that the Defendant Estate is ordered to produce authorizations for school and academic records as well as records relating to criminal matters that resulted in criminal convictions by October 1, 2017.

Preclusion will be effective October 1, 2017, unless the Defendant Estate supplies authorizations for school and academic records as well as records relating to criminal matters that resulted in criminal convictions by October 1, 2017 DATE:August 4r"c.' ,2017 ;13

HOME ASSOCIA nON OF NEW YORK BETA OF PHI KAPPA PSI, and ESTATE OF HUNTER BROOKS WATSON, deceased, Defendants Hon.

1lJI.# S S - / 7- /oC:; 3 Upon the moving papers of the Plaintiff BRANDON COLON, including the Plaintiffs Notice of Motion to Compel, dated July 6, 2017, the Affirnlation of Brett D. French, Esq.

in Support of Plaintiffs Motion to Compel and Exhibits attached thereto, dated July 6, 2017, the Plaintiffs Certificate of Service of the Notice of Motion to Compel and Affirmation of Brett D. French on Michael Pro Ringwood, Esq., and Patrick Sardino, Esq., the Plaintiffs Notice of Hard Copy Exhibit Filing, dated July 6, 2017, and the Plaintiffs Affidavit of Service of the Notice of Motion to Compel with Exhibits and Affirmation on CHESTNUT STREET SECURITY, INC., sworn to on July 8, 2017; upon appearance of counsel for the parties, including Attorney Brett D. French, of Cooper Erving & Savage LLP, attorneys, for the Plaintiff, Attorney Patrick B. Sardina, of Cozen O'Connor, attorneys for the Defendant ESTATE OF HUNTER BROOKS WATSON, and Attorney Michael P. Ringwood, of Smith Sovik Kendrick & Sugnet, P.C., attorneys for PHI KAPPA PSI FRATERNITY, NEW YORK BETA CHAPTER OF

and HOME ASSOCIATION OF NEW YORK BETA OF PHI KAPPA PSI, on August 10,2017; and with no

opposition papers having been received by the Court by or on behalf of Chestnut Street Security, Inc., and no appearance having been made by or on behalf of Chestnut Street Security, Inc. on August 10, 2017, it is hereby ORDERED that the Plaintiffs Motion to Compel CHESTNUT STREET SECURITY, IN '.~ou+ C4$.fI INC., pursuant to CPLR S 2308, is granted on the basis that Chestnut Street Security, Inc., is to / comply with the Plaintiffs Subpoena Duces Tecum and producing the demanded documents and things for Plaintif.fs review by October 1,2017.

Defendants Upon the Motion to Compel filed by the Plaintiff on July 6, 2017, BRANDON COLON, by and through his attorneys Cooper Erving & Savage LLP, and upon oral argument heard by the court on August 10, 2017, with no opposition papers having been received, and the Court having had due deliberation thereon, it is hereby ORDERED that the Plaintiffs Motion to Compel CHESTNUT STREET SECURITY, INC., pursuant to CPLR § 2308, is granted, in that Chestnut Street Security, Inc, is ordered to comply with the Plaintiffs Subpoena Duces Tecum, served on Ron Falise, President and/or owner of Chestnut Street Security, Inc, on May 11, 2017, by producing the demanded documents and things for Plaintiff‘s review by October 1, 2017.

As counsel for the Plaintiff withdrew its request for the imposition of a fine of fifty dollars ($50.00) and costs of fifty dollars ($50.00) plus attorney’s fees against Chestnut Street Security, Inc, no such fine, costs and fees are awarded.

Further, upon the Motion to Compel and Preclude, filed by the Plaintiff on July 25, 2017, by and through his attorneys, and upon oral argument heard by the court on August 10, 2017, with no opposition papers having been received, and the Court having had due deliberation thereon, it is hereby ORDERED that the Plaintiff’ 3 Motion to Compel and Preclude pursuant to CPLR §§ 3042, 3124, and 3126, for Defendants PHI KAPPA PSI FRATERNITY, NEW YORK BETA CHAPTER OF SYRACUSE UNIVERSITY a/k/a New York Beta Chapter of Phi Kappa Psi (hereinafter referred to as “Defendant PKP Syracuse”), PHI KAPPA PSI FRATERNITY, INC. (hereinafter referred to as “Defendant PKP National”), and HOME ASSOCIATION OF NEW YORK BETA OF PHI KAPPA PSI a/k/a Horne Association of New York Beta of Phi Kappa Psi, Inc. (hereinafter referred to as “Defendant PKP Home Association”) (hereinafter collectively referred to as the “Fraternity Defendants”) to comply with the Court’s Preliminary Conference Stipulation and Order is granted in that the Fraternity Defendants are ordered to produce all documents and things demanded by the Plaintiff in the Plaintiff s Combined Discovery Demands served on the Fraternity Defendants on April 13, 2017, by October 1, 2017.

Further, upon the Motion to Compel and Preclude, filed by the Plaintiff on July 25, 2017, by and through his attorneys, and upon oral argument heard by the court on August 10, 2017, and the Court having had due deliberation thereon, it is hereby ORDERED that the Plaintiffs Motion to Compel and Preclude pursuant to CPLR §§ 3042, 3124, and 3126, against the Defendant ESTATE OF HUNTER BROOKS WATSON, deceased (hereinafter referred to as “Defendant Estate”) is granted in part and denied in part, in that the Defendant Estate is ordered to produce documents and things demanded by the Plaintiff regarding Hunter Brooks Watson’s criminal history, if any such criminal matters resulted in convictions.

The part of Plaintiffs Motion to Compel and Preclude pursuant to CPLR §§ 3042, 3124, and 3126 seeking authorizations, and documents and things regarding Mr. Watson’s employment history or educational history, or donations made by Mr. Watson’s family to the Fraternity Defendants is denied.