Preview
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------X
JULIE AYALA,
AFFIRMATION IN
Plaintiff, SUPPORI
-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
94TH AVENUE JAMAICA, LLC, ARTIMUS
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE
HOUSING DEVELOPMENT FUND COMPANY, INC. AND
94TH AVENUE JAMAICA LI LLC,
Third-Party Plaintiffs,
-against-
A&M PROFESSIONAL SECURITY CONSULTING CORP.,
Third-Party Defendants.
--------------------------------------------------------X
Thomas Reimel, Esq., an attorney duly admitted to practice before the Courts of this State,
affirms to be true, under the penalties of perjury:
1. I am an Associate of HELEN F. DALTON & ASSOCIATES, P.C., attorneys for
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 Plaintiff s application seeking to
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preclude Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC.,
HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC.
AND 94TH AVENUE JAMAICA LI LLC, AND A&M PROFESSIONAL SECURITY
CONSULTING CORP., from testifying and offering evidence at the time of trialor otherwise
compelling Defendants to comply with court-ordered Examinations Before Trial.
3. This is a negligence action to recover damages for serious injuries sustained by
Plaintiff as a result of an accident, which occurred on March 26, 2018.
PROCEDURAL HISTORY
4. This action was commenced by the filing of a Summons and Verified Complaint
on or about October 30, 2018 and serving same on Defendants shortly thereafter (See Exhibit A).
5. Defendant, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION
INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY,
INC. AND 94TH AVENUE JAMAICA LI LLC, by way of counsel, GALLO, VITUCCI &
KLAR, interposed an Answer on or about May 16, 2019 (See Exhibit B).
6. Plaintiff served a verified bill of particular on May 30, 2019 to Defendants (See
Exhibit C).
7. Pursuant to the Preliminary Conference Order of the Honorable Justice Francois A.
Rivera, executed the attorneys for all parties on June 18, 2019, Examinations before Trial were
by
agreed to be conducted on September 18, 2019 for Plaintiff, and September 25, 2019 for Defendants
94TH AVENUE JAMAICA, LLC, ARTIMUS 'CONSTRUCTION INC., HP JAMAICA
94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH
AVENUE JAMAICA LI LLC, (See Exhibit D).
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8. Pursuant to the Compliance Conference Order of the Honorable Martin Schneier,
executed the attorneys for allparties on October 7, 2019, Examinations before Trial were agreed
by
to be conducted on October 17, 2019 for Plaintiff, November 18, 2019 for Defendant, 94TH
AVENUE JAMAICA, LLC, and November 25, 2019 for Defendant, ARTIMUS
CONSTRUCTION INC.. Plaintiff was to serve Note of Issue on or before May 7, 2020. (See
Exhibit E).
9. Pursuant to the Compliance Conference Order of the Honorable Lizette Colon,
executed the attorneys for allparties on January 27, 2020, Examinations before Trial were agreed
by
to be conducted on February 12, 2020 for Plaintiff, and March 4, 2020 for Defendants, 94TH
AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH
AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE
JAMAICA LI LLC. Plaintiff was to serve Note of Issue on or before May 8, 2020. (See Exhibit
F).
10. On February 7, 2020, Defendant, 94TH AVENUE JAMAICA, LLC, ARTIMUS
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT
FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC., by way of counsel
GALLO, VITUCCI & KLAR, filed a Third-Party Summons. (See Exhibit G).
11. On February 11, 2020, this office contacted GALLO, VITUCCI & KLAR via
"Jessi"
telephone conference to confirm Examination before Trial of Plaintiff. EBT clerk requested
an adjournment. Examinations before Trial of Plaintiff was adjourned to March 4, 2020, and
Examination before Trail before of Defendant was adjourned to April 3, 2020.
12. On March 4, 2020 Examination before Trial of Plaintiff was held.
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"Jessi"
13. On April this office received an email from EBT clerk from defense
2, 2020,
counsel VITUCCI & KLAR and requested an adjournment for Examination before Trial
GALLO,
of Defendañts. Examination before Trial of Defendant was adjourned to May 14, 2020.
14. On May 13, 2020, thisoffice contacted GALLO, VITUCCI & KLAR via telephone
"Jessi"
conference to confirm Examiñation before Trial of Defendant. EBT clerk requested an
adjournment. Examination before Trail of Defendant was adjourned to August 25, 2020.
15. On June 3, 2020, Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS
CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT
FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, by way of counsel,
VITUCCI & prepared a Notice of Motion Plaintiff to appear for
GALLO, KLAR, compelling
Independent Medical Examination and respond to Defendant's Post-Deposition Discovery Demand,
which was returnable on July 6, 2020. . (See Exhibit H).
16. On August 19, 2020, Third-party Defendants, A&M PROFESSIONAL
SECURITY CONSULTING CORP, by the way of counsel, LEWIS JOHS AVALLONE
interposed an Answer to the Third-party Summons. (See Exhibit J)
AVILES, LLP,
17. On September this office filed Opposition to the Motion made by
15, 2020,
Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP
JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND
94TH AVENUE JAMAICA LI LLC. (See Exhibit K)
18. On September 17, 2020, the Motion to Compel was resolved via stipulation,
that Plaintiff is to appear for Independent Medical Examination by November 17, 2020,
specifying
and will provide authorizations for certain of Plaintiff's medical records by October 16, 2020.
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19. Examination before Trial of Defendants, 94TH AVENUE JAMAICA, LLC,
ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING
DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC,
AND A&M PROFESSIONAL SECURITY CONSULTING CORP. remains outstanding to
date.
ARGUMENT
20. Examinations Before Trial of Defendants are essential, especially in light of the
Defendants'
denials set forth by said counsel in the answer served upon this office.
21. 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
New York, 300 AD2d 383, 383 [2d Dept 2002]). "[T]he absence of an excuse for the delay in
of
to demands and the delaying party's failure to object to the demands, supports
responding discovery
an inference that the failure to con1ply was willful (Ranfort v Peak Tours, Inc., 250 AD2d 747, 747
Mount Vernon the court precluded the non-
[2d Dept 1998]). Additionally, in Wright v Hosp.,
from testifying because of its failure to appear at depositions (Wright v Mount
conforming party
Vernon Hosp., 88 AD3d 873, 874 [2d Dept 2011]).
22. Given Defendants failure to comply with the Preliminary Conference Order and the
Compliance Conference Order and the adjournment requests, Plaintiff seeks an Order precluding
Defendants from and offering evidence at the time of trial or otherwise compelling
testifying
Defendants to appear for Court-ordered Examinations Before Trial.
Defendants'
23. Preclusion is warranted, both due to the procedural history and in light of
willful and contumacious disiegeud of the prior Orders issued before this Honorable Court
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NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020
24. Plaintiff respectfully requests that Defendants be compelled to appear for a Court
Ordered Deposition.
25. No requests for the relief requested herein has heretofore been made by Plaintiff.
WHEREFORE, Plaintiff respectfully requests the within motion be granted in all respects
and that this Court grant such other and further relief as itdeems just and proper.
Dated: Kew Gardens, NY
October 1, 2020
Yours, etc.
Thomas Reimel, Esq.
Helen F. Dalton & Associates P.C.
Attorneys for Plaintiff
JULIE AYALA
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.
12d¹
90 Broad Street, Floor
New York, NY 10004
Tel: (212) 683-7100
File No.: PRO-2019-23
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Third-Party Defendants
A&M PROFESSIONAL SECURITY CONSULTING CORP.
One CA Plaza, Suite 225
Islandia, NY 11749
File No. 070-1054
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Preview
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------X JULIE AYALA, AFFIRMATION IN Plaintiff, SUPPORI -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 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, Third-Party Plaintiffs, -against- A&M PROFESSIONAL SECURITY CONSULTING CORP., Third-Party Defendants. --------------------------------------------------------X Thomas Reimel, Esq., an attorney duly admitted to practice before the Courts of this State, affirms to be true, under the penalties of perjury: 1. I am an Associate of HELEN F. DALTON & ASSOCIATES, P.C., attorneys for 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 Plaintiff s application seeking to 3 1 of 6 FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020 preclude Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, AND A&M PROFESSIONAL SECURITY CONSULTING CORP., from testifying and offering evidence at the time of trialor otherwise compelling Defendants to comply with court-ordered Examinations Before Trial. 3. This is a negligence action to recover damages for serious injuries sustained by Plaintiff as a result of an accident, which occurred on March 26, 2018. PROCEDURAL HISTORY 4. This action was commenced by the filing of a Summons and Verified Complaint on or about October 30, 2018 and serving same on Defendants shortly thereafter (See Exhibit A). 5. Defendant, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, by way of counsel, GALLO, VITUCCI & KLAR, interposed an Answer on or about May 16, 2019 (See Exhibit B). 6. Plaintiff served a verified bill of particular on May 30, 2019 to Defendants (See Exhibit C). 7. Pursuant to the Preliminary Conference Order of the Honorable Justice Francois A. Rivera, executed the attorneys for all parties on June 18, 2019, Examinations before Trial were by agreed to be conducted on September 18, 2019 for Plaintiff, and September 25, 2019 for Defendants 94TH AVENUE JAMAICA, LLC, ARTIMUS 'CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, (See Exhibit D). 4 2 of 6 FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020 8. Pursuant to the Compliance Conference Order of the Honorable Martin Schneier, executed the attorneys for allparties on October 7, 2019, Examinations before Trial were agreed by to be conducted on October 17, 2019 for Plaintiff, November 18, 2019 for Defendant, 94TH AVENUE JAMAICA, LLC, and November 25, 2019 for Defendant, ARTIMUS CONSTRUCTION INC.. Plaintiff was to serve Note of Issue on or before May 7, 2020. (See Exhibit E). 9. Pursuant to the Compliance Conference Order of the Honorable Lizette Colon, executed the attorneys for allparties on January 27, 2020, Examinations before Trial were agreed by to be conducted on February 12, 2020 for Plaintiff, and March 4, 2020 for Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC. Plaintiff was to serve Note of Issue on or before May 8, 2020. (See Exhibit F). 10. On February 7, 2020, Defendant, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC., by way of counsel GALLO, VITUCCI & KLAR, filed a Third-Party Summons. (See Exhibit G). 11. On February 11, 2020, this office contacted GALLO, VITUCCI & KLAR via "Jessi" telephone conference to confirm Examination before Trial of Plaintiff. EBT clerk requested an adjournment. Examinations before Trial of Plaintiff was adjourned to March 4, 2020, and Examination before Trail before of Defendant was adjourned to April 3, 2020. 12. On March 4, 2020 Examination before Trial of Plaintiff was held. 5 3 of 6 FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020 "Jessi" 13. On April this office received an email from EBT clerk from defense 2, 2020, counsel VITUCCI & KLAR and requested an adjournment for Examination before Trial GALLO, of Defendañts. Examination before Trial of Defendant was adjourned to May 14, 2020. 14. On May 13, 2020, thisoffice contacted GALLO, VITUCCI & KLAR via telephone "Jessi" conference to confirm Examiñation before Trial of Defendant. EBT clerk requested an adjournment. Examination before Trail of Defendant was adjourned to August 25, 2020. 15. On June 3, 2020, Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, by way of counsel, VITUCCI & prepared a Notice of Motion Plaintiff to appear for GALLO, KLAR, compelling Independent Medical Examination and respond to Defendant's Post-Deposition Discovery Demand, which was returnable on July 6, 2020. . (See Exhibit H). 16. On August 19, 2020, Third-party Defendants, A&M PROFESSIONAL SECURITY CONSULTING CORP, by the way of counsel, LEWIS JOHS AVALLONE interposed an Answer to the Third-party Summons. (See Exhibit J) AVILES, LLP, 17. On September this office filed Opposition to the Motion made by 15, 2020, Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC. (See Exhibit K) 18. On September 17, 2020, the Motion to Compel was resolved via stipulation, that Plaintiff is to appear for Independent Medical Examination by November 17, 2020, specifying and will provide authorizations for certain of Plaintiff's medical records by October 16, 2020. 6 4 of 6 FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020 19. Examination before Trial of Defendants, 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. AND 94TH AVENUE JAMAICA LI LLC, AND A&M PROFESSIONAL SECURITY CONSULTING CORP. remains outstanding to date. ARGUMENT 20. Examinations Before Trial of Defendants are essential, especially in light of the Defendants' denials set forth by said counsel in the answer served upon this office. 21. 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 New York, 300 AD2d 383, 383 [2d Dept 2002]). "[T]he absence of an excuse for the delay in of to demands and the delaying party's failure to object to the demands, supports responding discovery an inference that the failure to con1ply was willful (Ranfort v Peak Tours, Inc., 250 AD2d 747, 747 Mount Vernon the court precluded the non- [2d Dept 1998]). Additionally, in Wright v Hosp., from testifying because of its failure to appear at depositions (Wright v Mount conforming party Vernon Hosp., 88 AD3d 873, 874 [2d Dept 2011]). 22. Given Defendants failure to comply with the Preliminary Conference Order and the Compliance Conference Order and the adjournment requests, Plaintiff seeks an Order precluding Defendants from and offering evidence at the time of trial or otherwise compelling testifying Defendants to appear for Court-ordered Examinations Before Trial. Defendants' 23. Preclusion is warranted, both due to the procedural history and in light of willful and contumacious disiegeud of the prior Orders issued before this Honorable Court 7 5 of 6 FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/02/2020 24. Plaintiff respectfully requests that Defendants be compelled to appear for a Court Ordered Deposition. 25. No requests for the relief requested herein has heretofore been made by Plaintiff. WHEREFORE, Plaintiff respectfully requests the within motion be granted in all respects and that this Court grant such other and further relief as itdeems just and proper. Dated: Kew Gardens, NY October 1, 2020 Yours, etc. Thomas Reimel, Esq. Helen F. Dalton & Associates P.C. Attorneys for Plaintiff JULIE AYALA 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. 12d¹ 90 Broad Street, Floor New York, NY 10004 Tel: (212) 683-7100 File No.: PRO-2019-23 LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Third-Party Defendants A&M PROFESSIONAL SECURITY CONSULTING CORP. One CA Plaza, Suite 225 Islandia, NY 11749 File No. 070-1054 8 6 of 6