On December 20, 2017 a
Motion-Secondary
was filed
involving a dispute between
Charles L Anzalone,
and
Andrew I Lusk,
for Torts - Motor Vehicle
in the District Court of Chautauqua County.
Preview
FILED: CHAUTAUQUA COUNTY CLERK 08/03/2018 09:20 AM INDEX NO. EK12017001693
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/03/2018
STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
AFFIRMATION IN SUPPORT
CHARLES L. ANZALONE,
Plaintiff
Index No.: EK12017001693
vs.
ANDREW L LUSK,
Defendant.
Amy E. Belmont, an attorney duly admitted to practice law in the Courts of the State of
New York, affirms the following statement to be true under the penalties of perjury pursuant to
CPLR Section 2106:
1. I am the attorney for the defendant, Andrew I. Lusk, and am familiar with the
facts, circumstances, and proceedings regarding the instant action.
2. I make this affirmation in support of the defendant's Motion for an Order
pursuant to CPLR 3042 and CPLR 3124, precluding the plaintiff from giving evidence at the trial
of this action on the ground that there has been a failure on the part of said plaintiff to comply
with defendant's Demand for a Bill of Particulars and Omnibus Discovery Demands duly served
upon plaintiff's counsel or to otherwise move against said demand within twenty (20) days after
the receipt thereof, or in the alternative, for an Order compelling the plaintiff to respond to
defendant's Demand for Bill of Particulars and Omnibus Discovery Demands, together with
costs and disbursements of this motion, the cost of filing the Request for Judicial Intervention,
and for such other and further relief as may be just and proper.
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FILED: CHAUTAUQUA COUNTY CLERK 08/03/2018 09:20 AM INDEX NO. EK12017001693
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/03/2018
3. This action for alleged personal injuries arose out of a motor vehicle accident that
occurred on or about May 8, 2015 at approximately 1:40 pm on North Main Street, in the City of
Jamestown, County of Chautauqua and State of New York.
4. This action was commenced by service of a Summons and Complaint filed with
the Chautauqua County Clerk on or about December 20, 2017 and issue was joined by the
service of the defendant's Answer on or about February 20, 2018. (Exhibit A).
6. On or about February 20, 2018 along with his Answer, defendant served plaintiff
with a Demand for Bill of Particulars and Omnibus Discovery Demands. (Exhibit B).
7. In accordance with the applicable rules of this Court, on March 27, 2018 a
written request was made to plaintiff's counsel requesting responses to defendant's discovery
demands and Demand for Bill of Particulars in a good faith attempt to resolve the discovery
issues without Court intervention, (Exhibit C).
8. A second written request was made to plaintiff's counsel by correspondence dated
April 25, 2018. (Exhibit D).
9. A third written request was made to plaintiff's counsel by correspondence dated
July 12, 2018. (Exhibit E).
10. Your affirmant has failed to receive plaintiff's verified Bill of Particulars or
response to defendant's Omnibus Discovery Demands necessitating the instant motion.
11. Said discovery is material and necessary to the defense ofthis action.
12. CPLR §3126 provides the penalties for failing to comply with an order of the
Court or to disclose material, which the Court deems, should have been disclosed. CPLR
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FILED: CHAUTAUQUA COUNTY CLERK 08/03/2018 09:20 AM INDEX NO. EK12017001693
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/03/2018
§§8106 and 8202 provide for awarding costs on motions. Since the plaintiff has failed to provide
the requested materials, the defendant should be awarded costs on the motion.
13. No prior application for this relief has been made.
WHEREFORE, your affirmant prays for an Order pursuant to CPLR 3042 and CPLR
3124 precluding the plaintiff from giving evidence at the trial of this action on the ground that
there has been a failure on the part of said plaintiff to comply with defendant's Demand for a Bill
of Particulars and Omnibus Discovery Demands duly served upon plaintiff's counsel or to
otherwise move against said demand within twenty (20) days after the receipt thereof, or in the
alternative, for an Order compelling the plaintiff to respond to defendant's Demand for Bill of
Particulars and Omnibus Discovery Demands, together with costs and disbursements of this
motion, the cost of filing the Request for Judicial Intervention, and for such other and further
relief as may be just and proper.
DATED: Buffalo, New York
August 1, 2018
BY: E. Belmont, Esq.
Law 0 fi of Daniel R. Archilla
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Document Filed Date
August 03, 2018
Case Filing Date
December 20, 2017
Category
Torts - Motor Vehicle
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Preview
FILED: CHAUTAUQUA COUNTY CLERK 08/03/2018 09:20 AM INDEX NO. EK12017001693 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/03/2018 STATE OF NEW YORK SUPREME COURT : COUNTY OF CHAUTAUQUA AFFIRMATION IN SUPPORT CHARLES L. ANZALONE, Plaintiff Index No.: EK12017001693 vs. ANDREW L LUSK, Defendant. Amy E. Belmont, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following statement to be true under the penalties of perjury pursuant to CPLR Section 2106: 1. I am the attorney for the defendant, Andrew I. Lusk, and am familiar with the facts, circumstances, and proceedings regarding the instant action. 2. I make this affirmation in support of the defendant's Motion for an Order pursuant to CPLR 3042 and CPLR 3124, precluding the plaintiff from giving evidence at the trial of this action on the ground that there has been a failure on the part of said plaintiff to comply with defendant's Demand for a Bill of Particulars and Omnibus Discovery Demands duly served upon plaintiff's counsel or to otherwise move against said demand within twenty (20) days after the receipt thereof, or in the alternative, for an Order compelling the plaintiff to respond to defendant's Demand for Bill of Particulars and Omnibus Discovery Demands, together with costs and disbursements of this motion, the cost of filing the Request for Judicial Intervention, and for such other and further relief as may be just and proper. 1 of 3 FILED: CHAUTAUQUA COUNTY CLERK 08/03/2018 09:20 AM INDEX NO. EK12017001693 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/03/2018 3. This action for alleged personal injuries arose out of a motor vehicle accident that occurred on or about May 8, 2015 at approximately 1:40 pm on North Main Street, in the City of Jamestown, County of Chautauqua and State of New York. 4. This action was commenced by service of a Summons and Complaint filed with the Chautauqua County Clerk on or about December 20, 2017 and issue was joined by the service of the defendant's Answer on or about February 20, 2018. (Exhibit A). 6. On or about February 20, 2018 along with his Answer, defendant served plaintiff with a Demand for Bill of Particulars and Omnibus Discovery Demands. (Exhibit B). 7. In accordance with the applicable rules of this Court, on March 27, 2018 a written request was made to plaintiff's counsel requesting responses to defendant's discovery demands and Demand for Bill of Particulars in a good faith attempt to resolve the discovery issues without Court intervention, (Exhibit C). 8. A second written request was made to plaintiff's counsel by correspondence dated April 25, 2018. (Exhibit D). 9. A third written request was made to plaintiff's counsel by correspondence dated July 12, 2018. (Exhibit E). 10. Your affirmant has failed to receive plaintiff's verified Bill of Particulars or response to defendant's Omnibus Discovery Demands necessitating the instant motion. 11. Said discovery is material and necessary to the defense ofthis action. 12. CPLR §3126 provides the penalties for failing to comply with an order of the Court or to disclose material, which the Court deems, should have been disclosed. CPLR 2 of 3 FILED: CHAUTAUQUA COUNTY CLERK 08/03/2018 09:20 AM INDEX NO. EK12017001693 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/03/2018 §§8106 and 8202 provide for awarding costs on motions. Since the plaintiff has failed to provide the requested materials, the defendant should be awarded costs on the motion. 13. No prior application for this relief has been made. WHEREFORE, your affirmant prays for an Order pursuant to CPLR 3042 and CPLR 3124 precluding the plaintiff from giving evidence at the trial of this action on the ground that there has been a failure on the part of said plaintiff to comply with defendant's Demand for a Bill of Particulars and Omnibus Discovery Demands duly served upon plaintiff's counsel or to otherwise move against said demand within twenty (20) days after the receipt thereof, or in the alternative, for an Order compelling the plaintiff to respond to defendant's Demand for Bill of Particulars and Omnibus Discovery Demands, together with costs and disbursements of this motion, the cost of filing the Request for Judicial Intervention, and for such other and further relief as may be just and proper. DATED: Buffalo, New York August 1, 2018 BY: E. Belmont, Esq. Law 0 fi of Daniel R. Archilla 3 of 3