Preview
FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------------X Index No: 519867/2018
RAUL SANTILLAN,
Plaintiff,
AFFIRMATION
- against - IN OPPOSITION
THE NEW WORLD SERVICE, INC. and MANA M.
WAIBA,
File No. 1036961
Defendants.
------------------------------------------------------------------------------X
Jerry L. Lynch, an attorney duly admitted to practice law before the Courts of the State of
New York, affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106:
1. I am associated with BAKER McEVOY & MOSKOVITS, P.C., attorneys for
Defendants, THE NEW WORLD SERVICE, INC. and MANA M. WAIBA (“Defendant”), and as
such am fully familiar with the facts and circumstances of this action as set forth, based upon the
contents of the file maintained by this office.
2. I respectfully make this Affirmation, upon information and belief, in opposition to
Plaintiff’s motion, seeking an Order striking Defendant’s Answer; and for such other and further
relief as this Court may deem just and proper.
3. This is an action for personal injuries allegedly sustained as the result of a motor
vehicle accident.
PLAINTIFF’S MOTION MUST BE DENIED FOR FAILURE TO COMPLY
WITH 22 NYCRR 202.7(a)(2)
4. Plaintiff’s motion must be denied for failure to comply with Rule 22 NYCRR
202.7[a][2] which directs that prior to making a motion for discovery, movant must affirm to the
court that they made good faith efforts to resolve the discovery issues prior to resorting to motion
practice and set forth the same within an ‘Affirmation of Good Faith.’
5. The Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (b) require:
[w]ith respect to a motion relating to disclosure, a separate affidavit or
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affirmation in support, containing a representation that the parties have
conferred with each other in a good faith effort to resolve the issues raised
by the motion, shall be annexed to the motion papers.
6. This standard of a “good faith effort” has been interpreted to mean there must be
a demonstration of “[m]ore than an exchange of computer generated form letters or cursory
telephone conversations.” “Significant, intelligent and expansive contact and negotiations must
be held between counsel to resolve any dispute and such efforts must be adequately detailed in
an affirmation.” Eaton v. Chahal, 146 Misc2d 977, 983 [1990]. Plainitff fails to detail said efforts
within an Affirmation of Good Faith and merely states some of the procedural history of the case
then concludes that “Plaintiff has attempted to conduct discovery iin good faith, but despite these
attempts, discovery has not been completed.” Movant’s ‘Affirmation of Good Faith’ at ¶5. No such
efforts have been detailed as to whom Plaintiff’s counsel attempted to speak to, or email, in
regards to this matter.
7. It has been your affiant’s experience that a stipulation will be encouraged when the
parties meet in court to argue this motion. Plaintiff’s clear lack of effort to contact this office warrant
that their motion should be denied, and Plaintiff should be encouraged to follow the procedure for
discovery motions, as set by the courts of this State.
IF NOT DENIED OUTRIGHT PURSUANT TO PLAINTIFF’S FAILURE TO COMPLY WTH
NYRCC RULE 202.7, THEN THEIR MOTION MUST STILL BE DENIED FOR FAILURE TO
MEET THE BURDEN OF PROOF THAT DEFENDANT ACTED WILFULLY AND
CONTUMACIOUSLY IN FAILING TO APPEAR FOR AN EBT
8. Striking an Answer for failure to comply with an Order of disclosure is an extreme
penalty that should not be invoked unless itis clearly shown that the default was willful,
contumacious, or in bad faith. Linwood Roofing and Contracting Co., Inc. v. Olit Assoc., 123 AD2d
840 [2d Dept. 1986]; Scharlack v. Richmond Memorial Hosp., 127 AD2d 580 [2nd Dept 1987];
Mancusi v. Middlesex Ins. Co., 102 AD2d 846 [2d Dept 1984]; Lowitt v. Korelitz, 152 AD2d 506
[1st Dept 1989]. The moving party bears the burden of coming forward with a sufficient showing
of willfulness. Read v. Dickson, 541 NYS2d 126 [2d Dept 1989]; Rosner v. Blue Channel Corp.,
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131 AD2d 654 [2nd Dept 1987]. The nonmoving party can then offer a reasonable excuse for his
default. Read v. Dickson, supra.
9. The drastic remedy of striking Defendant’s Answer is unwarranted here, where
Plaintiff has failed to meet their burden and failed to establish that Defendant has acted either
willfully or contumaciously.
10. Movant has offered no evidence that the failure of Defendant to appear for
deposition has been a willful or contumacious act. The motion should therefore be denied.
Jeffcoat v. Andrade, 203 AD2d 374, 613 NYS2d 650 [1st Dept 1994]; Stathoudakis v. Kelmer
Contracting Corp., 147 AD2d 690, 538 NYS2d 297 [2d Dept 1989]; Oceara v. Zito, 212 AD2d 681,
622 NYS2d 800 [2d Dept 1995].
11. It should also be noted that even where there is protracted delay and evasion,
striking an Answer for failure to appear for an examination before trial has been held to be too
drastic a remedy. Hunter Mechanical Corp. v. Salkind, 237 AD2d 180 [1st Dept 1997].
12. This office made good faith efforts to produce Defendant. An investigation was
conducted in December 2019 to locate and produce Defendant for EBT; as recently as November
2020 this office was in contact with Defendant, who was at that time, ready and willing to be
deposed. It is respectfully requested that Plaintiff contact this office via email to arrange
Defendant’s deposition.
IF THE COURT WILL NOT ALLOW DEFENDANT TO BE DEPOSED, THE APPROPRIATE
RELIEF IS THE CONDITIONAL PRECLUSION OF DEFENDANT’S TESTIMONY
13. The courts have held itto be an abuse of discretion to strike an Answer under
circumstances, whereas here, there is evidence of good faith effort by counsel to produce a party
for deposition. Montgomery v. Colorado, 577 NYS2d 851 [1st Dept 1992].
14. It is respectfully submitted that itis the law of this State and better practice to
preclude the Defendant from testifying at the trial of this action, if not deposed prior to the time of
trial. New v. Scores Entertainment, Inc., 679 NYS2d 382 [1st Dept 1998]; Cantos v. Castle
3 of 6
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Abatement Corp., 673 NYS2d 662 [1st Dept 1998]; Corner Realty 30/7 Inc. v. Bernstein
Management Corp., 672 NYS2d 95 [1st Dept 1998]; Gorelik v. Luna Park Village, 201 AD2d 435
[1st Dept 1994]; Gross v. Edmer Sanitary Supply, 201 AD2d 390 [1st Dept 1994]; Grabow v.
Blue Eyes, Inc., 123 AD2d 155 [1st Dept 1986]; see also, Balsam v. Nicolosi, 36 AD2d 533 [2d
Dept 1971]; DiGiantomaso v. Kieger Truck Renting Co., 34 AD2d 964 [2d Dept 1970]; Cincelli v.
Radcliffe, 35 AD2d 829 [2d Dept 1970]; Thornlow v. Long Island Railroad Co., 33 AD2d 1027 964
[2d Dept 1970]; Askinary v. Jacobson, 40 AD2d 860 [2d Dept 1972].
15. It is respectfully requested that this Court refuse to strike Defendant’s Answer, and
instead issue an Order conditionally precluding Defendant from testifying at trial, unless produced
for deposition prior to thirty days before trial. Defendant should not be unfairly prejudiced merely
because there are technologic elements that are creating issue with him being able to submit to
questioning.
16. Alternatively, if this Court determines that the proper relief is to strike Defendant’s
Answer, it is respectfully requested that such action be conditional, based upon Defendant’s
appearance at EBT.
17. It is also respectfully requested that even if the Answer is stricken, that the matter
be set down for a full damages trial, as opposed to an inquest, and only after the completion of
relevant damages discovery. As previously stated, the failure of Defendant to appear for EBTs
has no bearing on the damages.
WHEREFORE, for all the reasons aforesaid, itis respectfully requested that this Court
issue an Order denying Plaintiff’s motion in its entirety; or issue an Order conditionally Precluding
Defendant from testifying if not deposed within thirty days before trial;and for such other and
further relief as this Court may deem just and proper.
Dated: Brooklyn, New York
March 4, 2021
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NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021
Yours, etc.,
BAKER McEVOY & MOSKOVITS, P.C.
______________________________
Jerry L. Lynch, Esq.
Attorneys for Defendants
One MetroTech Center, 8th Floor
Brooklyn, New York 11201
(212) 857-8230 x728
Mail Process Center:
5 Broadway
Freeport, New York 11520
To: LAW OFFICE OF RONALD W. RAMIREZ
Attorneys for Plaintiff
107-19 71st Avenue
Forest Hills, New York 11375
(718) 261-6161
Their File No. 180012
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NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No.: 519867/2018
RAUL SANTILLAN,
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION
THE NEW WORLD SERVICE, INC. and MANA M. WAIBA,
File No. 1027151
Defendants.
____________________________________________________________________________
AFFIRMATION IN OPPOSITION
____________________________________________________________________________
BAKER McEVOY & MOSKOVITS, P.C.
One Metro Tech Center
Brooklyn, NY 11201
(212) 857-8230
____________________________________________________________________________
Service of a copy of the within AFFIRMATION IN OPPOSITION is hereby admitted.
Dated: _________________________
Dated: Brooklyn, New York
March 4, 2021
BAKER McEVOY & MOSKOVITS, P.C.
One MetroTech Center, 8th Floor
Brooklyn, NY 11201
212-857-8230 x728
Mailing Address:
5 Broadway
Freeport, New York 11520
_____________________________
Jerry L. Lynch, Esq.
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Preview
FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------------X Index No: 519867/2018 RAUL SANTILLAN, Plaintiff, AFFIRMATION - against - IN OPPOSITION THE NEW WORLD SERVICE, INC. and MANA M. WAIBA, File No. 1036961 Defendants. ------------------------------------------------------------------------------X Jerry L. Lynch, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106: 1. I am associated with BAKER McEVOY & MOSKOVITS, P.C., attorneys for Defendants, THE NEW WORLD SERVICE, INC. and MANA M. WAIBA (“Defendant”), and as such am fully familiar with the facts and circumstances of this action as set forth, based upon the contents of the file maintained by this office. 2. I respectfully make this Affirmation, upon information and belief, in opposition to Plaintiff’s motion, seeking an Order striking Defendant’s Answer; and for such other and further relief as this Court may deem just and proper. 3. This is an action for personal injuries allegedly sustained as the result of a motor vehicle accident. PLAINTIFF’S MOTION MUST BE DENIED FOR FAILURE TO COMPLY WITH 22 NYCRR 202.7(a)(2) 4. Plaintiff’s motion must be denied for failure to comply with Rule 22 NYCRR 202.7[a][2] which directs that prior to making a motion for discovery, movant must affirm to the court that they made good faith efforts to resolve the discovery issues prior to resorting to motion practice and set forth the same within an ‘Affirmation of Good Faith.’ 5. The Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (b) require: [w]ith respect to a motion relating to disclosure, a separate affidavit or 1 of 6 FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021 affirmation in support, containing a representation that the parties have conferred with each other in a good faith effort to resolve the issues raised by the motion, shall be annexed to the motion papers. 6. This standard of a “good faith effort” has been interpreted to mean there must be a demonstration of “[m]ore than an exchange of computer generated form letters or cursory telephone conversations.” “Significant, intelligent and expansive contact and negotiations must be held between counsel to resolve any dispute and such efforts must be adequately detailed in an affirmation.” Eaton v. Chahal, 146 Misc2d 977, 983 [1990]. Plainitff fails to detail said efforts within an Affirmation of Good Faith and merely states some of the procedural history of the case then concludes that “Plaintiff has attempted to conduct discovery iin good faith, but despite these attempts, discovery has not been completed.” Movant’s ‘Affirmation of Good Faith’ at ¶5. No such efforts have been detailed as to whom Plaintiff’s counsel attempted to speak to, or email, in regards to this matter. 7. It has been your affiant’s experience that a stipulation will be encouraged when the parties meet in court to argue this motion. Plaintiff’s clear lack of effort to contact this office warrant that their motion should be denied, and Plaintiff should be encouraged to follow the procedure for discovery motions, as set by the courts of this State. IF NOT DENIED OUTRIGHT PURSUANT TO PLAINTIFF’S FAILURE TO COMPLY WTH NYRCC RULE 202.7, THEN THEIR MOTION MUST STILL BE DENIED FOR FAILURE TO MEET THE BURDEN OF PROOF THAT DEFENDANT ACTED WILFULLY AND CONTUMACIOUSLY IN FAILING TO APPEAR FOR AN EBT 8. Striking an Answer for failure to comply with an Order of disclosure is an extreme penalty that should not be invoked unless itis clearly shown that the default was willful, contumacious, or in bad faith. Linwood Roofing and Contracting Co., Inc. v. Olit Assoc., 123 AD2d 840 [2d Dept. 1986]; Scharlack v. Richmond Memorial Hosp., 127 AD2d 580 [2nd Dept 1987]; Mancusi v. Middlesex Ins. Co., 102 AD2d 846 [2d Dept 1984]; Lowitt v. Korelitz, 152 AD2d 506 [1st Dept 1989]. The moving party bears the burden of coming forward with a sufficient showing of willfulness. Read v. Dickson, 541 NYS2d 126 [2d Dept 1989]; Rosner v. Blue Channel Corp., 2 of 6 FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021 131 AD2d 654 [2nd Dept 1987]. The nonmoving party can then offer a reasonable excuse for his default. Read v. Dickson, supra. 9. The drastic remedy of striking Defendant’s Answer is unwarranted here, where Plaintiff has failed to meet their burden and failed to establish that Defendant has acted either willfully or contumaciously. 10. Movant has offered no evidence that the failure of Defendant to appear for deposition has been a willful or contumacious act. The motion should therefore be denied. Jeffcoat v. Andrade, 203 AD2d 374, 613 NYS2d 650 [1st Dept 1994]; Stathoudakis v. Kelmer Contracting Corp., 147 AD2d 690, 538 NYS2d 297 [2d Dept 1989]; Oceara v. Zito, 212 AD2d 681, 622 NYS2d 800 [2d Dept 1995]. 11. It should also be noted that even where there is protracted delay and evasion, striking an Answer for failure to appear for an examination before trial has been held to be too drastic a remedy. Hunter Mechanical Corp. v. Salkind, 237 AD2d 180 [1st Dept 1997]. 12. This office made good faith efforts to produce Defendant. An investigation was conducted in December 2019 to locate and produce Defendant for EBT; as recently as November 2020 this office was in contact with Defendant, who was at that time, ready and willing to be deposed. It is respectfully requested that Plaintiff contact this office via email to arrange Defendant’s deposition. IF THE COURT WILL NOT ALLOW DEFENDANT TO BE DEPOSED, THE APPROPRIATE RELIEF IS THE CONDITIONAL PRECLUSION OF DEFENDANT’S TESTIMONY 13. The courts have held itto be an abuse of discretion to strike an Answer under circumstances, whereas here, there is evidence of good faith effort by counsel to produce a party for deposition. Montgomery v. Colorado, 577 NYS2d 851 [1st Dept 1992]. 14. It is respectfully submitted that itis the law of this State and better practice to preclude the Defendant from testifying at the trial of this action, if not deposed prior to the time of trial. New v. Scores Entertainment, Inc., 679 NYS2d 382 [1st Dept 1998]; Cantos v. Castle 3 of 6 FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021 Abatement Corp., 673 NYS2d 662 [1st Dept 1998]; Corner Realty 30/7 Inc. v. Bernstein Management Corp., 672 NYS2d 95 [1st Dept 1998]; Gorelik v. Luna Park Village, 201 AD2d 435 [1st Dept 1994]; Gross v. Edmer Sanitary Supply, 201 AD2d 390 [1st Dept 1994]; Grabow v. Blue Eyes, Inc., 123 AD2d 155 [1st Dept 1986]; see also, Balsam v. Nicolosi, 36 AD2d 533 [2d Dept 1971]; DiGiantomaso v. Kieger Truck Renting Co., 34 AD2d 964 [2d Dept 1970]; Cincelli v. Radcliffe, 35 AD2d 829 [2d Dept 1970]; Thornlow v. Long Island Railroad Co., 33 AD2d 1027 964 [2d Dept 1970]; Askinary v. Jacobson, 40 AD2d 860 [2d Dept 1972]. 15. It is respectfully requested that this Court refuse to strike Defendant’s Answer, and instead issue an Order conditionally precluding Defendant from testifying at trial, unless produced for deposition prior to thirty days before trial. Defendant should not be unfairly prejudiced merely because there are technologic elements that are creating issue with him being able to submit to questioning. 16. Alternatively, if this Court determines that the proper relief is to strike Defendant’s Answer, it is respectfully requested that such action be conditional, based upon Defendant’s appearance at EBT. 17. It is also respectfully requested that even if the Answer is stricken, that the matter be set down for a full damages trial, as opposed to an inquest, and only after the completion of relevant damages discovery. As previously stated, the failure of Defendant to appear for EBTs has no bearing on the damages. WHEREFORE, for all the reasons aforesaid, itis respectfully requested that this Court issue an Order denying Plaintiff’s motion in its entirety; or issue an Order conditionally Precluding Defendant from testifying if not deposed within thirty days before trial;and for such other and further relief as this Court may deem just and proper. Dated: Brooklyn, New York March 4, 2021 4 of 6 FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021 Yours, etc., BAKER McEVOY & MOSKOVITS, P.C. ______________________________ Jerry L. Lynch, Esq. Attorneys for Defendants One MetroTech Center, 8th Floor Brooklyn, New York 11201 (212) 857-8230 x728 Mail Process Center: 5 Broadway Freeport, New York 11520 To: LAW OFFICE OF RONALD W. RAMIREZ Attorneys for Plaintiff 107-19 71st Avenue Forest Hills, New York 11375 (718) 261-6161 Their File No. 180012 5 of 6 FILED: KINGS COUNTY CLERK 03/04/2021 12:55 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.: 519867/2018 RAUL SANTILLAN, Plaintiff, AFFIRMATION IN -against- OPPOSITION THE NEW WORLD SERVICE, INC. and MANA M. WAIBA, File No. 1027151 Defendants. ____________________________________________________________________________ AFFIRMATION IN OPPOSITION ____________________________________________________________________________ BAKER McEVOY & MOSKOVITS, P.C. One Metro Tech Center Brooklyn, NY 11201 (212) 857-8230 ____________________________________________________________________________ Service of a copy of the within AFFIRMATION IN OPPOSITION is hereby admitted. Dated: _________________________ Dated: Brooklyn, New York March 4, 2021 BAKER McEVOY & MOSKOVITS, P.C. One MetroTech Center, 8th Floor Brooklyn, NY 11201 212-857-8230 x728 Mailing Address: 5 Broadway Freeport, New York 11520 _____________________________ Jerry L. Lynch, Esq. 6 of 6