Motion-Secondary: Armand Santaguida v. Gertrude Hennessy, Eugene Hennessy

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                                FILED:         QUEENS        COUNTY         CLERK        08/20/2019             04:48       PM                      INDEX    NO.   703470/2018
   NYSCEF     DOC.   NO.   27                                                                                 RECEIVED      NYSCEF:     08/20/2019




                    SUPREME        COURT      OF   THE   STATE     OF   NEW     YORK
                    COUNTY       OF   QUEENS
                                         --------------------------------------------X
                    ARMAND        SANTAGUIDA,
                                                                Plaintiff,
                                                                                                AFFIRMATION
                                    -against-

                                                                                                Index   No.:  703470/18

                    GERTRUDE         HENNESSY        AND     EUGENE       HENNESSY


                                                               Defendants.
                    ----------------------------------------------------------------------X

                          MITCHELL        SILBOWITZ,        an  attorney  admitted   to practice   before  the Courts   of this


                 State  affirms  the  truth of the  following   under   the penalty   of perjury:


                          1.       I am   a member     of  SILBOWITZ,        GARAFOLA,         SILBOWITZ,        SCHATZ      &


                 FREDERICK,        LLP,   attorneys   for the Plaintiff  herein  and  as such   I am  fully familiar  with  the


                 facts  and   circumstances      of  this  action   based   upon    a  review   of  the   case   file and   the


                 investigation   materials   contained    therein.


                          2.       This  affirmation   is submitted    in connection   with   the Plaintiff s application   for


                 an  Order  restoring   this case  to the active  Trial  Calendar   and  extending    plaintiff's  time  to file



.                a Note   of Issue.


                          3.       This  is a negligence    action  to recover    damages    for serious   injuries  sustained



                 by  Plaintiff  as a result  of an  accident   which   occurred   on  December      13, 2017.   On   said date,


                 plaintiff  an  employee    of the  United   States  Postal  Service   was   caused   to trip and  fall on  the


                                                         813t
                 front  steps   of  premises    61-23          Street   in Queens     County    while    delivering   mail   to


                 defendants.




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   FILED:         QUEENS        COUNTY         CLERK        08/20/2019             04:48       PM                      INDEX    NO.   703470/2018
   NYSCEF     DOC.   NO.   27                                                                                 RECEIVED      NYSCEF:     08/20/2019




                          4.       Pursuant    to  the  Compliance      Conference     Order    dated   November      5, 2018,


                 plaintiff  was   directed   to file a Note    of  Issue  by  July  12,  2019.   (A  copy   of  said  Order   is



                 annexed    as Exhibit    "A").


                          5.       As    plaintiff  is  a  post   office   employee,     federal   regulations    govern    the



                 acquisition   of needed    files,such  as employment      and  the  documents     concerning    investigation



                 of  the accident,   and  also the  deposing   of plaintiff's  co-workers     and  supervisors.



                          6.       By   letterdated   July 3, 2019,   your  Affiant   informed   the  Court  of this fact. The



                 letter  stated  that  while   we  have   very   recently   received   the  results  of  our  request   for the



                 investigative    file,we  are  stillin the  process   of acquiring   his employment      file, and  presently


                 have   a deposition   of plaintiff's  supervisor   (a witness   to the  incident)  scheduled    for July  10d'.



                 In  the   event   that  she  does   not   appear,   or  her  deposition     does   not  yield  the   requisite



                 information,    we   may   be forced   to pursue   other  lines  of discovery,    including   depositions   of



                 other   co-workers.    The   letter also  requested   that  plaintiff's  time   to file a Note   of  Issue  be



                 extended    in view  of the  foregoing   or a conference    scheduled.    (A  copy  of the  letteris annexed



                 as Exhibit    "B").


                          7.       The   Court   did  not  respond   and  our  office  lost  track  of the  filing date  while



                 awaiting    a reply.  Law   Office   failure is a reasonable    excuse   for  the  failure to  filea Note   of



                 Issue.


                          8.       Moreover,     plaintiff has  a meritorious    cause   of action  as demonstrated      by his



                 Affidavit   of Merit   annexed    as Exhibit   "C").



                          9.       It is obvious,   from   the  foregoing,   that  plaintiff has  not  intended   to  abandon



                 this litigation  and  that he and  his  attorneys  have   diligently  prosecuted    same.  Plaintiff has  also




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   FILED:         QUEENS        COUNTY         CLERK        08/20/2019             04:48       PM                      INDEX    NO.   703470/2018
   NYSCEF     DOC.   NO.   27                                                                                 RECEIVED      NYSCEF:     08/20/2019




                 set forth  a reasonable    excuse   and  a meritorious    cause   of action  for  his failure  to file a Note


                 of Issue  within   the time  period   provided   by  the Court.


                          10.      Accordingly,     it is requested    that this  matter   be  restored  to  the  active  Trial
 ,

                 Calendar    and  that the time  within   which   to filea Note   of Issue  be extended    as that discovery,


                 crucial  to plaintiff's case,  may   be  conducted.   The   outstanding   discovery    is essential, relevant


                 and  material.


                          11.      No   prejudice   accrues  to defendants    ifthe  relief sought   is granted.


                          12.      No   prior request   for the relief  requested   herein  has  heretofore   been  made.



                          WHEREFORE,            Plaintiff respectfully   requests   the  within  motion    be granted   in all respects


                 and  that this  Court  grant  such  other  and  further  relief as it deems   just  and  proper.


                 Dated:   New    York,  NY
                           August   20,  2019




                                                                               MITCHELL        SILBOWITZ




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