Preview
FILED: KINGS COUNTY CLERK 10/16/2019 03:17 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/16/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------- --------------- X
NAJAH STEVENS, Index No.: 521039/2017
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION
IRT PARTNERSHIP and SDHR MANAGEMENT, LLC,
Defendants.
--- ---------- ¬------ --- --X
JODI M. NYEAR, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirrns, subject to the penalties of perjury, as follows:
1. I am an associate with the firm of GOLD BENES, LLP and I am the attorney
assigned to represent the Defendants IRT PARTNERSHIP and SDHR MANAGEMENT, LLC,
and, as such, am fully familiar with the facts and circumstances herein.
2. I hereby submit this Affirmation in Opposition to Plaintiff's Motion to Strike the
Defendants'
Answer and/or precluding the Defendants from offering evidence as to the
happening of the alleged accident.
3. At the outset, plaintiff's motion should be denied in its entirety as it isprocedurally
deficient as plaintiff's counsel has failed to include an Affirmation of Good Faith with plaintiff's
motion. "[U]nder NYCRR 202.7 an affirmation of good faith must accompany all discovery
motions. Moreover, subsection (c) of this rule provides that this affirmation must "indicate the
time, place and nature of the consultation and the issues discussed and any resolutions, or shall
held."
indicate good cause why no such conferral with counsel for opposing parties was In the
motion."
absence of a good faith affirmation, the Court must deny the Klebanow v. Flatto, 2008
1 of 3
FILED: KINGS COUNTY CLERK 10/16/2019 03:17 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/16/2019
N.Y. Misc. LEXIS 9389, 3-4, 2008 NY Slip Op 32374(U), 3-4 (N.Y. Sup. 2008); citing, Fulton
(1"
v. Allstate Ins. Co., 14 A.D.3d 380, 382, 788 N.Y.S.2d 349, 351 Dept. 2005). "Denial is
appropriate because of a fundamental procedural defect. Under NYCRR 202.7, an affirmation of
motions."
good faith must accompany all discovery Scarola Ellis, LLP v. Padeh, 2012 N.Y.
Misc. LEXIS 2519, 1, 2012 NY Slip Op 31406(U), 2 (N.Y. Sup. 2012).
4. As plaintiff's counsel failed to include an Affirmation of Good Faith, itis
respectfully submitted that the instant motion be denied in its entirety.
5. The Defendants are ready and willing to appear for a deposition. Defendant's prior
deposition that was scheduled for July 24, 2019, was adjourned as upon information and belief,
Defendants'
the representative was away. Moreover, upon information and belief, the deposition
of the Defendant that was scheduled for October 2, 2019 was adjourned due to the Jewish
holidays.
"A,"
6. As demonstrated in the Affidavit of Donna Eyring, annexed hereto as Exhibit
your affirmant's office contacted the plaintiff on two (2) separate occasions to reschedule
Defendants'
deposition. To date, counsel for plaintiff has failed to respond to Ms. Eyring's
telephone calls.
7. In a further attempt to reschedule the deposition, Ms. Eyring sent correspondence via
fax requesting plaintiff's counsel's office contact defense counsel to reschedule the
aforementioned deposition. A copy of the correspondence and fax confirmation are annexed
"B."
collectively hereto as Exhibit
8. Based upon the foregoing, itis respectfully submitted that the instant motion should
be denied in its entirety as the Defendants are ready and willing to appear for a deposition.
WHEREFORE, it isrespectfully requested that this Honorable Court deny Plaintiff's
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FILED: KINGS COUNTY CLERK 10/16/2019 03:17 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/16/2019
Motion in itsentirety and for such other, further and different relief as this Court may deem just
and proper under the circumstances.
Dated: Bellmore, New York
October 16, 2019
Yours, etc.
Jodi M.(Nýear, Es .
3 of 3
Preview
FILED: KINGS COUNTY CLERK 10/16/2019 03:17 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------- --------------- X NAJAH STEVENS, Index No.: 521039/2017 Plaintiff, AFFIRMATION IN -against- OPPOSITION IRT PARTNERSHIP and SDHR MANAGEMENT, LLC, Defendants. --- ---------- ¬------ --- --X JODI M. NYEAR, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirrns, subject to the penalties of perjury, as follows: 1. I am an associate with the firm of GOLD BENES, LLP and I am the attorney assigned to represent the Defendants IRT PARTNERSHIP and SDHR MANAGEMENT, LLC, and, as such, am fully familiar with the facts and circumstances herein. 2. I hereby submit this Affirmation in Opposition to Plaintiff's Motion to Strike the Defendants' Answer and/or precluding the Defendants from offering evidence as to the happening of the alleged accident. 3. At the outset, plaintiff's motion should be denied in its entirety as it isprocedurally deficient as plaintiff's counsel has failed to include an Affirmation of Good Faith with plaintiff's motion. "[U]nder NYCRR 202.7 an affirmation of good faith must accompany all discovery motions. Moreover, subsection (c) of this rule provides that this affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall held." indicate good cause why no such conferral with counsel for opposing parties was In the motion." absence of a good faith affirmation, the Court must deny the Klebanow v. Flatto, 2008 1 of 3 FILED: KINGS COUNTY CLERK 10/16/2019 03:17 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/16/2019 N.Y. Misc. LEXIS 9389, 3-4, 2008 NY Slip Op 32374(U), 3-4 (N.Y. Sup. 2008); citing, Fulton (1" v. Allstate Ins. Co., 14 A.D.3d 380, 382, 788 N.Y.S.2d 349, 351 Dept. 2005). "Denial is appropriate because of a fundamental procedural defect. Under NYCRR 202.7, an affirmation of motions." good faith must accompany all discovery Scarola Ellis, LLP v. Padeh, 2012 N.Y. Misc. LEXIS 2519, 1, 2012 NY Slip Op 31406(U), 2 (N.Y. Sup. 2012). 4. As plaintiff's counsel failed to include an Affirmation of Good Faith, itis respectfully submitted that the instant motion be denied in its entirety. 5. The Defendants are ready and willing to appear for a deposition. Defendant's prior deposition that was scheduled for July 24, 2019, was adjourned as upon information and belief, Defendants' the representative was away. Moreover, upon information and belief, the deposition of the Defendant that was scheduled for October 2, 2019 was adjourned due to the Jewish holidays. "A," 6. As demonstrated in the Affidavit of Donna Eyring, annexed hereto as Exhibit your affirmant's office contacted the plaintiff on two (2) separate occasions to reschedule Defendants' deposition. To date, counsel for plaintiff has failed to respond to Ms. Eyring's telephone calls. 7. In a further attempt to reschedule the deposition, Ms. Eyring sent correspondence via fax requesting plaintiff's counsel's office contact defense counsel to reschedule the aforementioned deposition. A copy of the correspondence and fax confirmation are annexed "B." collectively hereto as Exhibit 8. Based upon the foregoing, itis respectfully submitted that the instant motion should be denied in its entirety as the Defendants are ready and willing to appear for a deposition. WHEREFORE, it isrespectfully requested that this Honorable Court deny Plaintiff's 2 of 3 FILED: KINGS COUNTY CLERK 10/16/2019 03:17 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/16/2019 Motion in itsentirety and for such other, further and different relief as this Court may deem just and proper under the circumstances. Dated: Bellmore, New York October 16, 2019 Yours, etc. Jodi M.(Nýear, Es . 3 of 3