Preview
FILED: KINGS COUNTY CLERK 11/22/2019 12:10 PM INDEX NO. 521507/2017
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------X Index No.: 521507/2017
YVONNE ANDERSON,
Plaintiff,
-against- AFFIRMATION IN SUPPORT
COURTNEY S. ROBINSON, HEART TO HEART
SOCIAL ADULT SERVICES, LLC, and
ABDOURAHAMANE DIALLO,
Defendants.
-----------------------------------------------------------X
JULIE P. LEE, an attorney duly admitted to practice law in the court of this State, affirms
the following under the penalties of perjury:
1. I am an associate at Ross and Hill, attorneys for plaintiff and am familiar with all
facts and circumstances in this case. I make this affirmation in support of the instant motion for an
Order vacating the Stipulation of Discontinuance dated January 8, 2019 as to Defendant Diallo
only and to reinstate Defendant Diallo as a party defendant, together with such other and further
relief as to this Court deems just and proper. A copy of the stipulation is annexed hereto as
EXHIBIT A.
2. This is an action for serious personal injuries sustained by plaintiff as the result of
a motor vehicle accident that occurred on March 2, 2017. On said date, plaintiff was a passenger
in a motor vehicle driven by defendant Courtney S. Robinson, owned by defendant Heart to Heart
Social Adult Services, LLC that was rear-ended by a motor vehicle operated by defendant Diallo.
Enclosed herewith as EXHIBIT B is a copy of the police report. Action was commenced by the
filing of a summons with notice and verified complaint with the Kings County Clerk on November
6, 2017, a copy of which is enclosed hereto as EXHIBIT C. Issued was joined upon the filing of
Answers by defendants. Annexed hereto as EXHIBIT D are copies of all Answers.
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3. A Preliminary Conference was held on July 9, 2018, and a Compliance Conference
was held on November 29, 2018. Copies of the Court Orders are annexed hereto as EXHIBIT E.
4. In or around December 2018, plaintiff settled this matter with defendants Courtney
S. Robinson and Heart to Heart Social Adult Services, LLC ("settled-defendants") only. Upon
settlement, the January 8, 2019 Stipulation of Discontinuance with Prejudice was executed with
the intent that this action be discontinued with prejudice against said settled-defendants only (see
EXHIBIT A) and not defendant Diallo. Subsequent to the eFiling of said stipulation, the case
"disposed."
status was marked
5. To the extent this Court reads the stipulation as discontinuing the action against all
defendants, your affirmant requests that the discontinuance be vacated against defendant Diallo
and that defendant Diallo be reinstated as a party defendant. Where a stipulation does not represent
the intent of the parties or rests on mistake, the remedy of the aggrieved party is to move in court
(4th
wherein itwas entered to vacate it.CPLR 3217; Matter of Horton's Estate, 51 A.D.2d 856
Dep't. 1976); Sheng v. State Div. of Human Rights, 93 A.D.3d 851 (2d Dep't. 2012)(stipulation
disposing of proceedings and actions may be set aside upon showing of good cause, such as fraud,
overreaching, duress, or mistake); Matter of Frutiger, 29 N.Y.2d 143 (1971)(stipulation may be
(4th
set aside based on mistake); Matter of Horton's Estate, 51 A.D.2d 856 97
(1st
v. Manhattan and Bronx Surface Transit Operating Authority, 241 A.D.2d 305 Dep't. 1997);
Carrion v. Metropolitan Transp. Authority, 92 A.D.2d 907 (2d Dep't. 1983). A stipulation may
also be vacated ifit suggests an ambiguity indicating that the words did not fully and accurately
parties'
represent the agreement. CPLR 2104; McCoy v. Feinman, 99 N.Y.2d 295 (2002).
6. Clearly, as this is a rear-end collision whereby defendant Diallo rear-ended the
motor vehicle that plaintiff was a passenger in, the stipulation agreeing to discontinue the action
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prejudice"
"in its entirety with was a mistake. In fact, the stipulation was not signed by defendant
Diallo nor defense counsel. Said stipulation was only signed by plaintiff and the settled-defendants.
CPLR 3217(a)(2)(stipulation of discontinuance to be signed by attorneys of record for all parties).
7. Despite the stipulation, plaintiff and defendant Diallo have continued litigating this
action. On March 4, 2019, defendant Diallo served plaintiff with a Notice of Expert Witness; see
EXHIBIT F. Moreover, defense counsel for Diallo and plaintiff have actively engaged in
scheduling defendant Diallo's deposition, scheduling itfour times post-stipulation: January 31,
2019, March 25, 2019, May 13, 2019, and June 14, 2019. Enclosed herewith as EXHIBIT G is a
copy of a statement on the record for defendant Diallo's deposition on June 14, 2019 where he
failed to appear. As demonstrated, it was not plaintiff's intent to discontinue the action with
prejudice against defendant Diallo.
WHEREFORE, it is respectfully requested that this Honorable Court issue an Order
vacating the Stipulation of Discontinuance with Prejudice dated January 8, 2019 as to defendant
Diallo only and reinstate defendant Diallo as a party defendant, together with such other and further
relief as this Court deems just and proper.
Dated: Brooklyn, New York
'
November 22, 2019
utie d.ee. Esq. of
ROSS & HILL, ESQS.
Attorneys for Plaintiff
YVONNE ANDERSON
35th
16 Court Street, FlOOr
Brooklyn, NY 11241
(718) 855-2324
3 of 3
Preview
FILED: KINGS COUNTY CLERK 11/22/2019 12:10 PM INDEX NO. 521507/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------X Index No.: 521507/2017 YVONNE ANDERSON, Plaintiff, -against- AFFIRMATION IN SUPPORT COURTNEY S. ROBINSON, HEART TO HEART SOCIAL ADULT SERVICES, LLC, and ABDOURAHAMANE DIALLO, Defendants. -----------------------------------------------------------X JULIE P. LEE, an attorney duly admitted to practice law in the court of this State, affirms the following under the penalties of perjury: 1. I am an associate at Ross and Hill, attorneys for plaintiff and am familiar with all facts and circumstances in this case. I make this affirmation in support of the instant motion for an Order vacating the Stipulation of Discontinuance dated January 8, 2019 as to Defendant Diallo only and to reinstate Defendant Diallo as a party defendant, together with such other and further relief as to this Court deems just and proper. A copy of the stipulation is annexed hereto as EXHIBIT A. 2. This is an action for serious personal injuries sustained by plaintiff as the result of a motor vehicle accident that occurred on March 2, 2017. On said date, plaintiff was a passenger in a motor vehicle driven by defendant Courtney S. Robinson, owned by defendant Heart to Heart Social Adult Services, LLC that was rear-ended by a motor vehicle operated by defendant Diallo. Enclosed herewith as EXHIBIT B is a copy of the police report. Action was commenced by the filing of a summons with notice and verified complaint with the Kings County Clerk on November 6, 2017, a copy of which is enclosed hereto as EXHIBIT C. Issued was joined upon the filing of Answers by defendants. Annexed hereto as EXHIBIT D are copies of all Answers. 1 of 3 FILED: KINGS COUNTY CLERK 11/22/2019 12:10 PM INDEX NO. 521507/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/22/2019 3. A Preliminary Conference was held on July 9, 2018, and a Compliance Conference was held on November 29, 2018. Copies of the Court Orders are annexed hereto as EXHIBIT E. 4. In or around December 2018, plaintiff settled this matter with defendants Courtney S. Robinson and Heart to Heart Social Adult Services, LLC ("settled-defendants") only. Upon settlement, the January 8, 2019 Stipulation of Discontinuance with Prejudice was executed with the intent that this action be discontinued with prejudice against said settled-defendants only (see EXHIBIT A) and not defendant Diallo. Subsequent to the eFiling of said stipulation, the case "disposed." status was marked 5. To the extent this Court reads the stipulation as discontinuing the action against all defendants, your affirmant requests that the discontinuance be vacated against defendant Diallo and that defendant Diallo be reinstated as a party defendant. Where a stipulation does not represent the intent of the parties or rests on mistake, the remedy of the aggrieved party is to move in court (4th wherein itwas entered to vacate it.CPLR 3217; Matter of Horton's Estate, 51 A.D.2d 856 Dep't. 1976); Sheng v. State Div. of Human Rights, 93 A.D.3d 851 (2d Dep't. 2012)(stipulation disposing of proceedings and actions may be set aside upon showing of good cause, such as fraud, overreaching, duress, or mistake); Matter of Frutiger, 29 N.Y.2d 143 (1971)(stipulation may be (4th set aside based on mistake); Matter of Horton's Estate, 51 A.D.2d 856 97 (1st v. Manhattan and Bronx Surface Transit Operating Authority, 241 A.D.2d 305 Dep't. 1997); Carrion v. Metropolitan Transp. Authority, 92 A.D.2d 907 (2d Dep't. 1983). A stipulation may also be vacated ifit suggests an ambiguity indicating that the words did not fully and accurately parties' represent the agreement. CPLR 2104; McCoy v. Feinman, 99 N.Y.2d 295 (2002). 6. Clearly, as this is a rear-end collision whereby defendant Diallo rear-ended the motor vehicle that plaintiff was a passenger in, the stipulation agreeing to discontinue the action 2 of 3 FILED: KINGS COUNTY CLERK 11/22/2019 12:10 PM INDEX NO. 521507/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/22/2019 prejudice" "in its entirety with was a mistake. In fact, the stipulation was not signed by defendant Diallo nor defense counsel. Said stipulation was only signed by plaintiff and the settled-defendants. CPLR 3217(a)(2)(stipulation of discontinuance to be signed by attorneys of record for all parties). 7. Despite the stipulation, plaintiff and defendant Diallo have continued litigating this action. On March 4, 2019, defendant Diallo served plaintiff with a Notice of Expert Witness; see EXHIBIT F. Moreover, defense counsel for Diallo and plaintiff have actively engaged in scheduling defendant Diallo's deposition, scheduling itfour times post-stipulation: January 31, 2019, March 25, 2019, May 13, 2019, and June 14, 2019. Enclosed herewith as EXHIBIT G is a copy of a statement on the record for defendant Diallo's deposition on June 14, 2019 where he failed to appear. As demonstrated, it was not plaintiff's intent to discontinue the action with prejudice against defendant Diallo. WHEREFORE, it is respectfully requested that this Honorable Court issue an Order vacating the Stipulation of Discontinuance with Prejudice dated January 8, 2019 as to defendant Diallo only and reinstate defendant Diallo as a party defendant, together with such other and further relief as this Court deems just and proper. Dated: Brooklyn, New York ' November 22, 2019 utie d.ee. Esq. of ROSS & HILL, ESQS. Attorneys for Plaintiff YVONNE ANDERSON 35th 16 Court Street, FlOOr Brooklyn, NY 11241 (718) 855-2324 3 of 3