Preview
FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--- ---------- -- ----------------X
JULIE AYALA,
Plaintiff, AFFIRMATION IN
OPPOSITION
-against-
Index No.: 521818/2018
94TH AVENUE JAMAICA, LLC, ARTIMUS
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE
HOUSING DEVELOPMENT FUND COMPANY, INC. AND
94TH AVENUE JAMAICA LI LLC,
Defendants.
--- ------------------- -------------------------X
Thomas Reimel, Esq., an attorney duly admitted to practice law in the state of New York,
affirms the following to be true, under penalty of perjury:
1. I am an attorney with the law office of Helen F. Dalton & Associates, P.C.,
attorneys for Plaintiff, JULIE AYALA., and, as such, I am fully familiar with the facts and
circumstances of this action based on a review of the file maintained by my office.
2. I submit this affirmation in partial opposition to the Motion made by Defendants,
94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH
AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE
JAMAICA LI LLC to (1) precluding Plaintiff from introducing any evidence at the time of trial
on the subject of damages pursuant to CPLR 3042 or (3), compelling Plaintiff to provide
outstanding discovery days, or face subsequent preclusion at trial, pursuant to CPLR 3124.
Additionally, Defendants seek an Order pursuant to CPLR 3124 compelling Plaintiff to appear for
an Independent Medical Examination.
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3. For the sake of judicial economy and brevity, Plaintiffs incorporate by reference
the procedural set forth in Defendant's underlying motion, as itrelates to the pleadings and
history
demands and responses for discovery. Further, Plaintiffs incorporates by reference all exhibits
annexed to Defendant's moving papers so that they shall be given the full force and effect as if
annexed to the within affirmation.
4. This is a negligence action to recover damages for serious injuries sustained by
Plaintiffs as a result of a fall in the stairwell of the building in which she worked as a security
guard due to a hazardous and defective condition occasioned by debris present because of
construction. The fall occurred on March 26, 2018. As a result of the accident, Plaintiff JULIE
AYALA sustained multiple serious and periliaiiciit injuries, including, but not limited to her back,
left shoulder and both knees: plaintiff has undergone surgery to both knees as a result of her injuries.
5. Plaintiff was deposed on March 4, 2020. On or about March 20, 2020 counsel for
Defendants hereinabove recited made demand upon this office for Post-EBT discovery.
6. Ultimately, Defendant is seeking certain authorizations relative to prior accidents
in 1993, and May of 2019. At this time, Plaintiff has complied with all outstanding discovely
Defendants'
demands and served a response to Post-EBT discovery demands on July 7, 2020 (See
Exhibit A, annexed hereto, making the sanctions sought by Moving Defendants wildly
disproportionate; as the defects have been cured, and any delay in providing the aforementioned
discovery was neither willful nor contumacious. Additionally, Defendants seek a date for Plaintiff
to appear for an IME. Plaintiff does not oppose that branch of the Motion relating to the scheduling
of an IME.
A. OUTSTANDING DISCOVERY HAS BEEN PROVIDED
7. On July 7, 2020, Plaintiff served a Response to Defendant's Post-EBT Demands
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020
dated March 20, 2020 (annexed collectively hereto as Exhibit "A").
8. To date, Plaintiff has responded to all demands by Defendants, 94TH AVENUE
JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE
HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI
LLC.
B. SANCTIONS ARE NOT APPROPRIATE BECAUSE DELAYS WERE
NOT "WILLFUL AND CONTUMACIOUS"
9. It iswell settled that public policy and the Courts of this State favor reso9lution of
disputes on the merits and that discovery sanctions are left to the sound discretion of the trialCourt
and should be proportionate (Henry v Datson, 140 AD3d 1120, 1122 [2d Dept. 2016}; see Singer
v Riskin, 137 AD3d 999, 1001 [2d Dept. 2016]). "The burden of establishing that a failure or
refusal to disclose was the result of willful, deliberate, or contumacious conduct rests with the
preclusion"
party seeking an order of (Goodman, Rackower & Agiato v Lieberman, 260 AD2d
599, 600 [1999]; see Singer v Riskin, supra at 1001).
10. In order for the court to invoke the remedy ofpreclusion, itmust find that the offending
party's lack of cooperation with disclosure was willful, deliberate, and contumacious. Pryzant v. City
ofNew York, 300 A.D.2d 383, 750 N.Y.S.2d 779. Moreover, the party seeking sanctions must make
Showing"
a "clear that the conduct was willful. (Fellin v Sahgal, 268 AD2d 456, 456 [2d Dept.
2000]). Such a showing has not been made by moving Defendants. Defendants have not, and cannot
meet this standard. Moreover, inasmuch as the defect has been cured, itis submitted that the remedy
sought is un-needed.
11. Moreover, the remedy sought by Movants is simply unavailable during the
pendency of the current health crisis by the Order of the Chief Administrative Judge. Despite the
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interest of litigants to move their cases forward, the chief administrative judge has ordered that in
"no event will participants in civil litigation be penalized if discovery compliance is delayed for
emergency"
reasons relating to the coronavirus public health ( See AO-71-20).
12. On the contrary, this office has been diligent in responding to all discovery
demands. Notably, the discovely demands) about which moving Defendants complain, were made
Defendants'
in part, during the Covid health crisis. Specifically, demand was made on March 20,
2020. (See Def. Aff. in Support at ¶ 6). Plaintiff invites this honorable Court to note that the
"shut-down"
demand was made three days after the general precipitated by the Covid health crisis..
The notion that Plaintiffs should be faced with sanctions for inaction during a period when all
tolledl
statutes of limitation and other deadlines and time limits were is nothing short of absurd.
Conclusion
13. Given the foregoing, Defendant's motion to preclude Plaintiff from introducing any
evidence at the time of trialmust be denied outright.
1 Per
Executive Order 202: "In accordance with the directiveof the ChiefJudge of theState to limitcourt operations
toessentialmatters during the pendency ofthe COVID-19 healthcrisis,any specifictime limit forthe coñmewment,
or
filing, service of any legal action,notice, motion, or other process or proceeding, as prescribed by the procedural
laws of the state,including but not limitedto the criminal procedure law, the family court act,the civilpractice law
and rules,the court of claims act,the surrogate's court procedure act,and the uniform court acts,or by any other
..."
local
statute, law, ordinance, order,rule, or regulation,or partthereof, is herebytolled
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020
WHEREFORE, itis respectfully requested that Defendant's motion be denied with respect
to any and allpreclusion and the compelling of discovery, with the sole exception of that relatingto
an Independent Medical Examination.
Dated: Kew Gardens, NY
September g, 2020
Yours, etc.
Thomas Reimel, Esq.
Helen F. Dalton & Associates, P.C.
Attorneys for Plaintiffs
JULIE AMAYA
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
File No.: 119-0256
TO:
Gallo Vitucci Klar LLP
Attorneys for Defendants
94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC.,
HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC.
AND 94TH AVENUE JAMAICA LI LLC
90 Broad Street
New York, NY 10004
Tel: (212) 683-7100
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020
Index No.: 521818/2018
COURT OF THE STATE OF NEW YORK
SUPREME
COUNTY OF KINGS
JULIE AYALA,
Plaintiff,
-against-
CONSTRUCTION INC., HP JAMAICA 94TH
AVENUE JAMAICA, LLC, ARTIMUS
94TH AVENUE
DEVELOPMENT FUND COMPANY, INC. AND 94TH
AVENUE HOUSING
JAMAICA LI LLC
AFFIRMATION IN OPPOSITION
AFFIRMATION OF SERVICE
F. Dalton & Associates, P.C.
Helen
Attorneys for PlaintVf
Kew Gardens Road, Suite 601
80-02
Kew Gardens, NY 11415
263-9591
(718)
TO:
Gallo Vitucci Klar LLP
Attorneys for Defendants
ARTIMUS CONSTRUCTION INC.,
94TH AVENUE JAMAICA, LLC,
INC.
HOUSING DEVELOPMENT FUND COMPANY,
HP JAMAICA 94TH AVENUE
AVENUE JAMAICA LI LLC
AND 94TH
90 Broad Street
New York, NY 10004
Tel: 683-7100
(212)
6 of 6
Preview
FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --- ---------- -- ----------------X JULIE AYALA, Plaintiff, AFFIRMATION IN OPPOSITION -against- Index No.: 521818/2018 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, Defendants. --- ------------------- -------------------------X Thomas Reimel, Esq., an attorney duly admitted to practice law in the state of New York, affirms the following to be true, under penalty of perjury: 1. I am an attorney with the law office of Helen F. Dalton & Associates, P.C., attorneys for Plaintiff, JULIE AYALA., and, as such, I am fully familiar with the facts and circumstances of this action based on a review of the file maintained by my office. 2. I submit this affirmation in partial opposition to the Motion made by Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC to (1) precluding Plaintiff from introducing any evidence at the time of trial on the subject of damages pursuant to CPLR 3042 or (3), compelling Plaintiff to provide outstanding discovery days, or face subsequent preclusion at trial, pursuant to CPLR 3124. Additionally, Defendants seek an Order pursuant to CPLR 3124 compelling Plaintiff to appear for an Independent Medical Examination. 1 of 6 FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020 3. For the sake of judicial economy and brevity, Plaintiffs incorporate by reference the procedural set forth in Defendant's underlying motion, as itrelates to the pleadings and history demands and responses for discovery. Further, Plaintiffs incorporates by reference all exhibits annexed to Defendant's moving papers so that they shall be given the full force and effect as if annexed to the within affirmation. 4. This is a negligence action to recover damages for serious injuries sustained by Plaintiffs as a result of a fall in the stairwell of the building in which she worked as a security guard due to a hazardous and defective condition occasioned by debris present because of construction. The fall occurred on March 26, 2018. As a result of the accident, Plaintiff JULIE AYALA sustained multiple serious and periliaiiciit injuries, including, but not limited to her back, left shoulder and both knees: plaintiff has undergone surgery to both knees as a result of her injuries. 5. Plaintiff was deposed on March 4, 2020. On or about March 20, 2020 counsel for Defendants hereinabove recited made demand upon this office for Post-EBT discovery. 6. Ultimately, Defendant is seeking certain authorizations relative to prior accidents in 1993, and May of 2019. At this time, Plaintiff has complied with all outstanding discovely Defendants' demands and served a response to Post-EBT discovery demands on July 7, 2020 (See Exhibit A, annexed hereto, making the sanctions sought by Moving Defendants wildly disproportionate; as the defects have been cured, and any delay in providing the aforementioned discovery was neither willful nor contumacious. Additionally, Defendants seek a date for Plaintiff to appear for an IME. Plaintiff does not oppose that branch of the Motion relating to the scheduling of an IME. A. OUTSTANDING DISCOVERY HAS BEEN PROVIDED 7. On July 7, 2020, Plaintiff served a Response to Defendant's Post-EBT Demands 2 of 6 FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020 dated March 20, 2020 (annexed collectively hereto as Exhibit "A"). 8. To date, Plaintiff has responded to all demands by Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC. B. SANCTIONS ARE NOT APPROPRIATE BECAUSE DELAYS WERE NOT "WILLFUL AND CONTUMACIOUS" 9. It iswell settled that public policy and the Courts of this State favor reso9lution of disputes on the merits and that discovery sanctions are left to the sound discretion of the trialCourt and should be proportionate (Henry v Datson, 140 AD3d 1120, 1122 [2d Dept. 2016}; see Singer v Riskin, 137 AD3d 999, 1001 [2d Dept. 2016]). "The burden of establishing that a failure or refusal to disclose was the result of willful, deliberate, or contumacious conduct rests with the preclusion" party seeking an order of (Goodman, Rackower & Agiato v Lieberman, 260 AD2d 599, 600 [1999]; see Singer v Riskin, supra at 1001). 10. In order for the court to invoke the remedy ofpreclusion, itmust find that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious. Pryzant v. City ofNew York, 300 A.D.2d 383, 750 N.Y.S.2d 779. Moreover, the party seeking sanctions must make Showing" a "clear that the conduct was willful. (Fellin v Sahgal, 268 AD2d 456, 456 [2d Dept. 2000]). Such a showing has not been made by moving Defendants. Defendants have not, and cannot meet this standard. Moreover, inasmuch as the defect has been cured, itis submitted that the remedy sought is un-needed. 11. Moreover, the remedy sought by Movants is simply unavailable during the pendency of the current health crisis by the Order of the Chief Administrative Judge. Despite the 3 of 6 FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020 interest of litigants to move their cases forward, the chief administrative judge has ordered that in "no event will participants in civil litigation be penalized if discovery compliance is delayed for emergency" reasons relating to the coronavirus public health ( See AO-71-20). 12. On the contrary, this office has been diligent in responding to all discovery demands. Notably, the discovely demands) about which moving Defendants complain, were made Defendants' in part, during the Covid health crisis. Specifically, demand was made on March 20, 2020. (See Def. Aff. in Support at ¶ 6). Plaintiff invites this honorable Court to note that the "shut-down" demand was made three days after the general precipitated by the Covid health crisis.. The notion that Plaintiffs should be faced with sanctions for inaction during a period when all tolledl statutes of limitation and other deadlines and time limits were is nothing short of absurd. Conclusion 13. Given the foregoing, Defendant's motion to preclude Plaintiff from introducing any evidence at the time of trialmust be denied outright. 1 Per Executive Order 202: "In accordance with the directiveof the ChiefJudge of theState to limitcourt operations toessentialmatters during the pendency ofthe COVID-19 healthcrisis,any specifictime limit forthe coñmewment, or filing, service of any legal action,notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state,including but not limitedto the criminal procedure law, the family court act,the civilpractice law and rules,the court of claims act,the surrogate's court procedure act,and the uniform court acts,or by any other ..." local statute, law, ordinance, order,rule, or regulation,or partthereof, is herebytolled 4 of 6 FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020 WHEREFORE, itis respectfully requested that Defendant's motion be denied with respect to any and allpreclusion and the compelling of discovery, with the sole exception of that relatingto an Independent Medical Examination. Dated: Kew Gardens, NY September g, 2020 Yours, etc. Thomas Reimel, Esq. Helen F. Dalton & Associates, P.C. Attorneys for Plaintiffs JULIE AMAYA 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Tel: (718) 263-9591 File No.: 119-0256 TO: Gallo Vitucci Klar LLP Attorneys for Defendants 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC 90 Broad Street New York, NY 10004 Tel: (212) 683-7100 5 of 6 FILED: KINGS COUNTY CLERK 09/15/2020 01:59 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 09/15/2020 Index No.: 521818/2018 COURT OF THE STATE OF NEW YORK SUPREME COUNTY OF KINGS JULIE AYALA, Plaintiff, -against- CONSTRUCTION INC., HP JAMAICA 94TH AVENUE JAMAICA, LLC, ARTIMUS 94TH AVENUE DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE HOUSING JAMAICA LI LLC AFFIRMATION IN OPPOSITION AFFIRMATION OF SERVICE F. Dalton & Associates, P.C. Helen Attorneys for PlaintVf Kew Gardens Road, Suite 601 80-02 Kew Gardens, NY 11415 263-9591 (718) TO: Gallo Vitucci Klar LLP Attorneys for Defendants ARTIMUS CONSTRUCTION INC., 94TH AVENUE JAMAICA, LLC, INC. HOUSING DEVELOPMENT FUND COMPANY, HP JAMAICA 94TH AVENUE AVENUE JAMAICA LI LLC AND 94TH 90 Broad Street New York, NY 10004 Tel: 683-7100 (212) 6 of 6