Preview
FILED: NASSAU COUNTY CLERK 09/01/2021 04:12 PM INDEX NO. 617067/2019
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/01/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------------------------------------------------------------X
LUIS E. RIVERA,
Index No.: 617067/2019
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION
YVETE GAYLE,
Defendant.
----------------------------------------------------------------------X
MICHAEL A. STEA, ESQ., an attorney duly admitted to practice before
the courts of the State of New York, affirms the truth of the following under the penalties
of perjury:
1. I am of counsel to ALEX YADGAROV & ASSOCIATES, P.C., the
attorney(s) of record for plaintiff LUIS E. RIVERA. I am fully familiar with the facts
and circumstances of this matter based upon personal knowledge, and a review of the
case file maintained by the firm during the regular course of business.
2. I make this affirmation in opposition to the instant motion which seeks an
order pursuant to pursuant to CPLR Sec. 3126 dismissing the Complaint due to plaintiff’s
failure to appear for two orthopedic examinations, or in the alternative, for an order pursuant
to CPLR Sec. 3042 precluding plaintiff from offering any testimony at the time of trial on
the issue of damages.
3. This is an action to recover damages for the severe personal injuries sustained
by plaintiff LUIS E. RIVERA as the result of a motor vehicle accident that occurred on
January 31, 2019.
4. In the moving papers, counsel argues that this action should be dismissed, or
that plaintiff should be precluded, on the grounds that he failed to paper for two orthopedic
examinations.
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5. However, it is our contention that the instant motion should be denied in its
entirety for the following reasons:
(a) the Affirmation of Good Faith, dated August 20, 2021, does not meet
the stringent requirements of the Uniform Court Rules;
(b) there is no evidence that plaintiff LUIS E. RIVERA willfully and/or
contumaciously refused to comply with any prior court orders;
(c) plaintiff has no objection to defendant’s request for an extension of
time to serve/file a motion for summary judgment.
6. The courts of this State have consistently held that a discovery related motion
must be accompanied by a good faith affirmation pursuant to 22 NYCRR 202.7 which
indicates the time, place and nature of the consultation and the issues discussed and any
resolutions, or shall indicate good cause why no such conferral with counsel for opposing
parties was held. Martinez v. 1261 Realty Co., LLC, 121 A.D.3d 955, 2014 NY SlipOp
07134 (2d Dep’t 2014); Deutsch v. Grunwald, 110 A.D.3d 949, 2013 NY SlipOp 06832 (2d
Dep’t 2013); 148 Magnolia, LLC v. Merrimack Mutual Fire Insurance Co., 62 A.D.3d 486,
878 N.Y.S.2d 727 (1st Dep’t 2009); Chervin v. Macura, 28 A.D.3d 600, 2006 NY SlipOp
02845 (2d Dep’t 2006); Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1005, 816 N.Y.S.2d
782 (4th Dep’t 2006); Baez v. Sugrue, 300 A.D.2d 519, 752 N.Y.S.2d 385 (2d Dep’t 2002).
7. In the instant matter, the Affirmation of Good Faith only states that “good
faith attempts have been made . . . at prior Court Conferences and via telephone calls to
plaintiff’s counsel’s office”.
8. Unfortunately, the Affirmation of Good Faith, dated August 20, 2021, lacks
the specificity required by Sec. 202(7) of the Uniform Court Rules, the court should deny
the motion in the first instance without entertaining the arguments made therein.
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9. In addition, the Affirmation of Good Faith contains false and erroneous
information. According to the office notes, our office did not receive any telephone calls
or voicemail messages from defense counsel regarding this matter and the issues raised in
this motion (ie. plaintiff’s failure to appear for a physical examination) was never discussed
at any prior court conference(s).
10. At the time of the last conference, which was conducted on May 28, 2021, an
orthopedist had not yet been designated in this matter.
11. Based on the foregoing, the court should deny the instant motion in the first
instance regardless of the sufficiency of the within opposition papers.
12. However, even if the court entertains the merits of the motion, it is our
contention that the motion should denied because there is no evidence that plaintiff LUIS E.
RIVERA willfully and/or contumaciously refused to comply with any prior court orders.
10=3. It is respectfully submitted that the only reason that plaintiff LUIS E. RIVERA
failed to appear for the orthopedic examination in this matter is because he never received
the correspondence from our office notifying him of same. Plaintiff apparently moved to the
State of Connecticut. We recently located him, and are now in contact with him.
14. That the plaintiff, LUIS E. RIVERA, has advised us that he is ready, willing,
and able to appear for an “independent” orthopedic examination in this matter.
15. In fact, our office has been in contact with the defendant’s representative and
is currently in the process of scheduling an appointment for sometime in October, 2021.
16. The courts of this State have consistently held that a motion to preclude must
demonstrate a willful failure to disclose, and that the court has broad discretion to fashion
a less harsh sanction pursuant to CPLR Sec. 3126, et seq. Delgado v. City of New York, 47
A.D.3d 550, 2008 NY SlipOp 00573 (1st Dep’t 2008); Plakstis v. Cadieu, 154 A.D.2d 445
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(2d Dep’t 1989); Jet Asphalt Corp. v. Consolidated Edison Co. of New York, 114 A.D.2d 489
(2d Dep’t 1985).
17. In DiDomenico v. C & S Aeroatick Supplies, the Appellate Division, Second
Department held that the Practice Commentaries to CPLR Sec. 3126 encourage the courts to
exercise their ingenuity, “and to devise sanctions as narrowly tailored as possible to the
circumstances of the individual case.” DiDomenico v. C & S Aeroatick Supplies, 252 A.D.2d
41 (2d Dep’t 1998).
18. In the case of Lerner v. Knot, the Appellate Division, Second Department held
that in deciding whether to impose the severe penalty of striking a party’s pleading, the court
must determine “whether the evidence clearly shows that the party’s conduct was willful.”
Lerner v. Knot, 201 A.D.2d 466, 609 N.Y.S.2d 791 (2d Dep’t 1994).
19. In Fitterer v. Riedlinger’s Towing Service, the Appellate Division, Second
Department held that any Order imposing drastic remedies such as preclusion or the striking
of a pleading must be based on a failure to provide discovery that is willful, contumacious or
in bad faith. Fitterer v. Riedlinger’s Towing Serv., 271 A.D.2d 403 (2d Dep’t 2000).
20. In the instant matter, there is no evidence that defendant, or her attorneys, have
been prejudiced in any way by plaintiff’s purported failure to respond to appear for two
orthopedic examinations.
21. Therefore, the portions of the motion that seeks an order of dismissal and/or
order of preclusion should be denied, in their entirety. Those sanctions are unduly harsh
since there is no evidence indicating that plaintiff LUIS E. RIVERA, or his attorney(s), have
willfully and contumaciously failed to comply with any prior court orders, or that they acted
in bad faith.
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22. Based on the foregoing, it is respectfully requested that the court issue a
conditional order which gives plaintiff LUIS E. RIVERA at least one more opportunity to
appear for an “independent” orthopedic examination.
23. In the moving papers, counsel requests an extension of time for defendant
to serve/file a motion for summary judgment. Plaintiff does not oppose this portion of the
motion.
WHEREFORE, it is respectfully requested that the within motion be denied
in all respects, together with such other and further relief as to this Honorable Court may
seem just, proper and equitable.
Dated: Oviedo, Florida
September 1, 2021
Michael A Stea
______________________________________
MICHAEL A. STEA, ESQ.
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Preview
FILED: NASSAU COUNTY CLERK 09/01/2021 04:12 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------------------------------------------------------------X LUIS E. RIVERA, Index No.: 617067/2019 Plaintiff, -against- AFFIRMATION IN OPPOSITION YVETE GAYLE, Defendant. ----------------------------------------------------------------------X MICHAEL A. STEA, ESQ., an attorney duly admitted to practice before the courts of the State of New York, affirms the truth of the following under the penalties of perjury: 1. I am of counsel to ALEX YADGAROV & ASSOCIATES, P.C., the attorney(s) of record for plaintiff LUIS E. RIVERA. I am fully familiar with the facts and circumstances of this matter based upon personal knowledge, and a review of the case file maintained by the firm during the regular course of business. 2. I make this affirmation in opposition to the instant motion which seeks an order pursuant to pursuant to CPLR Sec. 3126 dismissing the Complaint due to plaintiff’s failure to appear for two orthopedic examinations, or in the alternative, for an order pursuant to CPLR Sec. 3042 precluding plaintiff from offering any testimony at the time of trial on the issue of damages. 3. This is an action to recover damages for the severe personal injuries sustained by plaintiff LUIS E. RIVERA as the result of a motor vehicle accident that occurred on January 31, 2019. 4. In the moving papers, counsel argues that this action should be dismissed, or that plaintiff should be precluded, on the grounds that he failed to paper for two orthopedic examinations. 1 of 5 FILED: NASSAU COUNTY CLERK 09/01/2021 04:12 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/01/2021 5. However, it is our contention that the instant motion should be denied in its entirety for the following reasons: (a) the Affirmation of Good Faith, dated August 20, 2021, does not meet the stringent requirements of the Uniform Court Rules; (b) there is no evidence that plaintiff LUIS E. RIVERA willfully and/or contumaciously refused to comply with any prior court orders; (c) plaintiff has no objection to defendant’s request for an extension of time to serve/file a motion for summary judgment. 6. The courts of this State have consistently held that a discovery related motion must be accompanied by a good faith affirmation pursuant to 22 NYCRR 202.7 which indicates the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. Martinez v. 1261 Realty Co., LLC, 121 A.D.3d 955, 2014 NY SlipOp 07134 (2d Dep’t 2014); Deutsch v. Grunwald, 110 A.D.3d 949, 2013 NY SlipOp 06832 (2d Dep’t 2013); 148 Magnolia, LLC v. Merrimack Mutual Fire Insurance Co., 62 A.D.3d 486, 878 N.Y.S.2d 727 (1st Dep’t 2009); Chervin v. Macura, 28 A.D.3d 600, 2006 NY SlipOp 02845 (2d Dep’t 2006); Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1005, 816 N.Y.S.2d 782 (4th Dep’t 2006); Baez v. Sugrue, 300 A.D.2d 519, 752 N.Y.S.2d 385 (2d Dep’t 2002). 7. In the instant matter, the Affirmation of Good Faith only states that “good faith attempts have been made . . . at prior Court Conferences and via telephone calls to plaintiff’s counsel’s office”. 8. Unfortunately, the Affirmation of Good Faith, dated August 20, 2021, lacks the specificity required by Sec. 202(7) of the Uniform Court Rules, the court should deny the motion in the first instance without entertaining the arguments made therein. 2 of 5 FILED: NASSAU COUNTY CLERK 09/01/2021 04:12 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/01/2021 9. In addition, the Affirmation of Good Faith contains false and erroneous information. According to the office notes, our office did not receive any telephone calls or voicemail messages from defense counsel regarding this matter and the issues raised in this motion (ie. plaintiff’s failure to appear for a physical examination) was never discussed at any prior court conference(s). 10. At the time of the last conference, which was conducted on May 28, 2021, an orthopedist had not yet been designated in this matter. 11. Based on the foregoing, the court should deny the instant motion in the first instance regardless of the sufficiency of the within opposition papers. 12. However, even if the court entertains the merits of the motion, it is our contention that the motion should denied because there is no evidence that plaintiff LUIS E. RIVERA willfully and/or contumaciously refused to comply with any prior court orders. 10=3. It is respectfully submitted that the only reason that plaintiff LUIS E. RIVERA failed to appear for the orthopedic examination in this matter is because he never received the correspondence from our office notifying him of same. Plaintiff apparently moved to the State of Connecticut. We recently located him, and are now in contact with him. 14. That the plaintiff, LUIS E. RIVERA, has advised us that he is ready, willing, and able to appear for an “independent” orthopedic examination in this matter. 15. In fact, our office has been in contact with the defendant’s representative and is currently in the process of scheduling an appointment for sometime in October, 2021. 16. The courts of this State have consistently held that a motion to preclude must demonstrate a willful failure to disclose, and that the court has broad discretion to fashion a less harsh sanction pursuant to CPLR Sec. 3126, et seq. Delgado v. City of New York, 47 A.D.3d 550, 2008 NY SlipOp 00573 (1st Dep’t 2008); Plakstis v. Cadieu, 154 A.D.2d 445 3 of 5 FILED: NASSAU COUNTY CLERK 09/01/2021 04:12 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/01/2021 (2d Dep’t 1989); Jet Asphalt Corp. v. Consolidated Edison Co. of New York, 114 A.D.2d 489 (2d Dep’t 1985). 17. In DiDomenico v. C & S Aeroatick Supplies, the Appellate Division, Second Department held that the Practice Commentaries to CPLR Sec. 3126 encourage the courts to exercise their ingenuity, “and to devise sanctions as narrowly tailored as possible to the circumstances of the individual case.” DiDomenico v. C & S Aeroatick Supplies, 252 A.D.2d 41 (2d Dep’t 1998). 18. In the case of Lerner v. Knot, the Appellate Division, Second Department held that in deciding whether to impose the severe penalty of striking a party’s pleading, the court must determine “whether the evidence clearly shows that the party’s conduct was willful.” Lerner v. Knot, 201 A.D.2d 466, 609 N.Y.S.2d 791 (2d Dep’t 1994). 19. In Fitterer v. Riedlinger’s Towing Service, the Appellate Division, Second Department held that any Order imposing drastic remedies such as preclusion or the striking of a pleading must be based on a failure to provide discovery that is willful, contumacious or in bad faith. Fitterer v. Riedlinger’s Towing Serv., 271 A.D.2d 403 (2d Dep’t 2000). 20. In the instant matter, there is no evidence that defendant, or her attorneys, have been prejudiced in any way by plaintiff’s purported failure to respond to appear for two orthopedic examinations. 21. Therefore, the portions of the motion that seeks an order of dismissal and/or order of preclusion should be denied, in their entirety. Those sanctions are unduly harsh since there is no evidence indicating that plaintiff LUIS E. RIVERA, or his attorney(s), have willfully and contumaciously failed to comply with any prior court orders, or that they acted in bad faith. 4 of 5 FILED: NASSAU COUNTY CLERK 09/01/2021 04:12 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/01/2021 22. Based on the foregoing, it is respectfully requested that the court issue a conditional order which gives plaintiff LUIS E. RIVERA at least one more opportunity to appear for an “independent” orthopedic examination. 23. In the moving papers, counsel requests an extension of time for defendant to serve/file a motion for summary judgment. Plaintiff does not oppose this portion of the motion. WHEREFORE, it is respectfully requested that the within motion be denied in all respects, together with such other and further relief as to this Honorable Court may seem just, proper and equitable. Dated: Oviedo, Florida September 1, 2021 Michael A Stea ______________________________________ MICHAEL A. STEA, ESQ. 5 of 5