FILED: NEW YORK COUNTY CLERK 11/25/2019 02:21 PM INDEX NO.

161451/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------- --------------- -----X Index No:
In the Matter of CAL STUART, PRENDINELLYS
GARCIA, JENNIFER AGOSTINI, and CHRISTOPHER
SELLETTI, Petitioners, for an Order Compelling the
Production and preservation of video recordings, and other
Documents pursuant to Civil Practice Law and Rules,
Section 3126 pre-suit proceeding,

Petitioners, _VERIFIED PETITIO_N

-against-

THE SKY BAR TIMES SQUARE, INC., PM HOSPITALITY

GROUP, INC., and THE GEHR GROUP,

Respondents.
---------------------------------------- -----X
The petitioner, Matthew B. Waller, Esq., an attorney, duly admitted to practice before the

courts of this State affirms the following under the penalties of perjury:

1. I am the attorneys for the Petitioners in the foregoing action, CAL STUART,

PRENDINELLYS GARCIA, JENNIFER AGOSTINI, and CHRISTOPHER SELLETTI, who

are submitting this Order to Show Cause pursuant to Civil Practice and Rules Section 3126

compelling disclosure of a videotape of the assault and battery of Petitioners, , CAL STUART,

PRENDINELLYS GARCIA, JENNIFER AGOSTINI, and CHRISTOPHER SELLETTI at the

40th
Sky Bar night club located at 330 West Street. Further, the court must direct Respondents to

preserve all documentation and memorandum concerning the name of each person employed by

security of respondent including the name of the Security company hired as well as their

certification of insurance and their requirement to be bonded as security agents within the State

of New York

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BACKGROUND OF INCIDENT

2. On the evening of November 23, 2019 at approximately 1 1:00 pm., the Petitioners

entered the Sky Bar lobby and purchased VIP Tickets and bottle service. The Sky

Bar required a $350.00 credit card supplied by Petitioner, CAL STUART. In the

party were Petitioners GARCIA, AGOSTINI and SELLETTI. The Petitioners were

attending the birthday party of actress NINA MARTINEZ. The Petitioners were

escorted to their table by a host. During the course of the evening the Petitioners

ordered more bottle service beverages until 3:00 am. At around 3:00 am a security

mernber stated we had to leave our area even though Petitioners had ordered another

bottle and mixers for another $350.00.

3. The Petitioners were escorted one floor done with non- VIP customers. Petitioner,

CAL STUART paid the bill which amounted to $908.00. At around 3:30 am

Petitioners proceeded down to the lobby area. At the lobby area one of Petitioner's

acquaintances realized the host had her credit card. A bouncer (black male, bald

head, white goatee, wandering eye approximately six feet two inches tall wearing a

black turtle neck and black pants) pushed the young lady looking for her credit card.

This security personnel proceeded to continue to manhandle two women. When

Petitioner STUART objected this bouncer/security person threatened to harm

STUART within ear shot of a group of his friends.

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4. As Petitioners started walking out Petitioners GARCIA and STUART were

attacked and beaten by approximately ten to fifteen people which included security

personnel. Petitioners, AGOSTINI and SELLETTI in attempt to defend their

friends were also beaten and attacked by the security personnel as well as customers

who were acquaintances of bald African-American goatee security staffer. Several

motherfuckers"
racial slurs were directed at Petitioners "such as white and "dirty

bitches" money" 10-

white and "fuck those white bitches and their as approximately

15 people beat Petitioners to the ground.

5. The Petitioners left on their own accord and they all presented to the New York

University Hospital-Langone Emergency room at about 5:00 am. on November 24,

2019. The most seriously injured were Ms. Agostini and Ms. Garcia. Attached as

Exhibit A is the photograph of Ms. Agostini. Ms. Agostini is a SAG-AFSTRA

movie and television actress She has facial scarring and multiple lacerations. Ms.

Garcia received several scalp lacerations and was beaten about her face, body and

limbs. Ms. Garcia is a swim suit model and Paralegal. Petitioners, STUART and

SELLETTI were beaten about the face and body. Mr. Selletti received a puncture to

his lung and rib area; back and leg injuries. Mr. Stuart recently had a toe amputation

and was thrown to the floor and beaten about the face and body. The Petitioners

were all hospitalized at New York University Hospital-Langone for medical

treatment as a result of a brutal assault. (See Emergency room NYU-Langone

records attached as Exhibit B.)

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COURT ORDER NEEDED FOR PRESERVATION OF VIDEO EVIDENCE

6. The Respondents are in possession of video evidence which will show the assault

of Petitioners. More disturbing is the participation of the security staff in the brutal

assault of cash paying VIP customers. The Petitioner, STUART paid $908.00 for

VIP service only to be assaulted, thrown to the ground and beaten by a combination

of security and friends of the security staff. Petitioners, GARCIA, AGOSTINI and

SELLETTi also assaulted and beaten.

7. It is also apparent that the bald, African-American, silver goatee security member

not only instigated the assault but was also a participant. This security staff member

at his behest had gang members who were his friends assist in the participation of

the assault. The New York State Courts are clear on the law regarding the

preservation of video evidence. The Respondents must secure the videotapes

concerning the assault footage and cannot erase the footage or tape over it.

8. The court must also order Respondents to secure their logs, papers, materials and

memorandum regarding their employees and security staff for the night of

November 24-25 2019. It is not clear if African-American, bald, silver goatee is an

employee of Sky Bar or an employee of a separate security company hired by Sky

Bar. His decision to assault VIP patrons will now be the subject of litigation and

perhaps the suspension of Sky Bar's liquor license.

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9. The court must also issue an injunction and temporary restraining Order preveiiting

the Respondents from destroying or discarding any of the video recordings or

paperwork.

10. No prior application for the relief requested has been previously made by

Petitioners.

WHEREFORE, Petitioners, CAL STUART, PRENDINELLYS GARCIA, JENNIFER

AGOSTINI and CHRISTOPHER SELLETTI, respectfully requests that the court order

Respondents, THE SKY BAR TIMES SQUARE, INC., PM HOSPITALITY GROUP, INC

and THE GEHR GROUP to preserve videotape and paper evidence concerning the assault and

battery of Petitioners on November 25, 2019 between 3:30-4:00 am.

Dated: November 25, 2019

MATTHEW B. WALLER.

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ATTORNEY'S VERIFICATION

STATE OF NEW YORK:

;ss.

COUNTY OF NEW YORK

Matthew B. Waller, being duly sworn deposes and says that he is the attorney for the

petitioners in this proceedings: that I have read the annexed ORDER TO SHOW CAUSE AND

VERIFIED PETITION, and know the contents thereof and the same are true to my knowledge,

except as to those matters stated to be alleged on information and belief, and as to those matters I

believe them to be true;

atthe B. Waller

Subscribed and sworn to

Before me this 1 day of

6Vg WI , 2019

arrHOm P PORDEN

Comm ss on Expnes Ju y 7 20

Notary Public

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