Preview
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018
TAF:tf File No.: 17-00903-01(TAF)/000308239CL
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------X
DAYONNA HOWELL,
Plaintiff(s), Index No.: 154787/17
- against - AFFIRMATION
IN OPPOSITION
G ARANDA-BERNARDEZ, DREAM LAND
and JOHN DOE,
Return Date: July 6, 2018
Defendant(s).
------------------------------------------------------------------X
CHRIS M. HATZIS, an attorney duly admitted to practice in the Courts of the State
of New York, hereby affirms the following to be true under the penalty of perjury:
1. I am a member with CHEVEN, KEELY & HATZIS, ESQS., attorneys for the
defendant G ARANDA-BERNARDEZ herein and from a review of the file maintained by this
office, I am fully familiar with the facts and proceedings heretofore had.
2. I respectfully make this affirmation in opposition to plaintiff's motion for an
Order compelling defendant G ARNANDA BERNARDEZ to comply with the prior discovery
requests by plaintiff, or in the alternative, and Order pursuant to CPLR 3126 striking all
pleadings of defendant; and for all other and further relief as this Court deems just and proper.
3. With respect to plaintiff's Combined Demands dated January 9, 2018, the defendant
has previously responded to same advising that the matter concerning excess insurance is under
investigation and the information sought would be exchanged once it has been ascertained. ( See
Exhibit "A") To date, this office has been unable to verify this information with defendant although
several attempts have been made to ascertain the information, therefore a supplemental response
cannot be provided at this time.
1 of 4
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018
4. This office has attempted in good faith to obtain this information from defendant G
ARANDA-BERNARDEZ by via telephone and by letter.An initial letterwas mailed to defendant
on August 7, 2017. However, defendant did not respond to this affirmant's office's
correspondence. Numerous telephone calls were made and voicemail messages were left at all
known numbers for defendant. In addition, we have also conducted investigative database searches
including a clear search and DMV database search to obtain the current address and telephone
number for the defendant, and upon obtaining that information a second letter was mailed to
defendant on March 5, 2018.
5. To date defendant has not responded to this offices letters or voice messages
seeking information in reference to excess insurance. This afffirmant's office is unable to provide
plaintiff with an affidavit until defendant communicates with our office. We are continuing our
efforts to locate defendant and obtain this information to date.
6. Itis also respectfully noted that this affirmant's office is uncertain that the phone
numbers we have called and left messages at are in fact those of the defendant nor are we certain
that the letters that were mailed are being received by defendant as we have not received a response
from defendant to date. Therefore, defendant may not be aware of the request for the within
mentioned insurance information.
7. As this Honorable Court can see, there is no showing of willful or contumacious
behavior on part of the defendant, therefore the defendant should not be prejudiced by having his
Answer stricken. The Courts have held that the striking of an answer is a drastic remedy and courts
contumacious"
are reluctant to resort to such relief unless a party has acted in a "willful or manner.
(2"4
Thornlow v. Lon Island Railroad, 33 AD2d 1027 Dept, 1970),
2 of 4
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018
8. Due to strong public policy favoring the resolution of actions on the merits, the
extreme sanction of striking an Answer is only to be used as a last resort. Rubin v. Pan American
(2nd
World Airways, Inc., 128 a.D.2d 765, 513 N.Y.S.2d 248 Dept. 1987) Citing BaSSett v. Bando
Sangsa Co., 103 A.D.2d 728, 478 N.Y.S.2d 298 (N.Y.A.D. 1984). It is sufficient to preclude the
defendant from testifying at trial.Furthermore, the preclusion should only take effect twenty days
prior to trial so as to avoid a wide latitude of time to locate the insured defendant.
9. In Balsam, the defendant could not be located and the court held that if the
defendant is not produced within twenty days prior to trialthen the defendant is precluded from
(2nd
testifying at trial. Balsam v. Nicolosi Building Co., 36 A.D.2d 533, 318 N.Y.S.2d 658 Dept.
1971). The Courts have often held that in the case of a defendant's failure to appear for an
examination before trial,preclusion of testimony is a more appropriate remedy than the harsh
remedy of completely striking the defendant's Answer. Cruzatti v. St. Mary's Hospital, 193
(2nd
A.D.2d 579, 597 N.Y.S.2d 457 Dept. 1993); Nudelman v. N.Y.C. Transit Authority, 172
(2nd
A.D.2d 503, 567 N.Y.S.2d 851 Dept. 1991).
10. Applicable case law supports your affirmant's position on behalf of the defendant
courts'
concerning the lack of willfulness and the general desire to have matters determined on the
merits.
11. The striking of an answer is a drastic remedy and courts are reluctant to resort to
contumacious"
such relief unless movant conclusively shows that a party has acted in a "willful or
manner. The sanction of striking a pleading is rarely justified, and it is not an approved remedy
when there has been attempted compliance. Pezhman v. Department of Education, 95 A.D. 3d
(1" (1"
5625 Dept 2012); Blanding v. Return Housing Corp., 277 A.D. 2d 92 Dept 2000); Palmenta
3 of 4
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018
(1st
v. Columbia University, 266 A.D. 2d 90 Dept 2000); Rosario v. New York City Housing
(1St (1st
Authority, 272 A.D. 2d 105 Dept 2000); Dauriav.City ofNew York, 127 A.D. 2d 459 Dept
(2nd
1987); Thornlow v. Long Island Railroad, 33 AD2d 1027 Dept. 1970). In this case the failure
to disclose is not willful or contumacious but rather an inability to disclose or produce (i.e. the
insured driver cannot be physically located after diligent investigative efforts were conducted).
Willfulness implies knowledge and intent whereas the inability to physically locate a defendant is
contray to a defendant willfully and contumaciously thwarting the integrity of a court order.
12. In the interest of fair play and due process, without a conclusive showing of willful
or contumacious conduct by the defendant, it is more appropriate for the Court to consider the
interests involved in the litigation and strike an appropriate balance between the parties and not
strike the defendant's pleadings.
WHEREFORE, your affirmant respectfully requests that plaintiffs motion be
denied in it's entirety and for such other and further relief as this Court may deem to be just and
proper.
Dated: New York, New York
June 29, 2018
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018 TAF:tf File No.: 17-00903-01(TAF)/000308239CL SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X DAYONNA HOWELL, Plaintiff(s), Index No.: 154787/17 - against - AFFIRMATION IN OPPOSITION G ARANDA-BERNARDEZ, DREAM LAND and JOHN DOE, Return Date: July 6, 2018 Defendant(s). ------------------------------------------------------------------X CHRIS M. HATZIS, an attorney duly admitted to practice in the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am a member with CHEVEN, KEELY & HATZIS, ESQS., attorneys for the defendant G ARANDA-BERNARDEZ herein and from a review of the file maintained by this office, I am fully familiar with the facts and proceedings heretofore had. 2. I respectfully make this affirmation in opposition to plaintiff's motion for an Order compelling defendant G ARNANDA BERNARDEZ to comply with the prior discovery requests by plaintiff, or in the alternative, and Order pursuant to CPLR 3126 striking all pleadings of defendant; and for all other and further relief as this Court deems just and proper. 3. With respect to plaintiff's Combined Demands dated January 9, 2018, the defendant has previously responded to same advising that the matter concerning excess insurance is under investigation and the information sought would be exchanged once it has been ascertained. ( See Exhibit "A") To date, this office has been unable to verify this information with defendant although several attempts have been made to ascertain the information, therefore a supplemental response cannot be provided at this time. 1 of 4 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018 4. This office has attempted in good faith to obtain this information from defendant G ARANDA-BERNARDEZ by via telephone and by letter.An initial letterwas mailed to defendant on August 7, 2017. However, defendant did not respond to this affirmant's office's correspondence. Numerous telephone calls were made and voicemail messages were left at all known numbers for defendant. In addition, we have also conducted investigative database searches including a clear search and DMV database search to obtain the current address and telephone number for the defendant, and upon obtaining that information a second letter was mailed to defendant on March 5, 2018. 5. To date defendant has not responded to this offices letters or voice messages seeking information in reference to excess insurance. This afffirmant's office is unable to provide plaintiff with an affidavit until defendant communicates with our office. We are continuing our efforts to locate defendant and obtain this information to date. 6. Itis also respectfully noted that this affirmant's office is uncertain that the phone numbers we have called and left messages at are in fact those of the defendant nor are we certain that the letters that were mailed are being received by defendant as we have not received a response from defendant to date. Therefore, defendant may not be aware of the request for the within mentioned insurance information. 7. As this Honorable Court can see, there is no showing of willful or contumacious behavior on part of the defendant, therefore the defendant should not be prejudiced by having his Answer stricken. The Courts have held that the striking of an answer is a drastic remedy and courts contumacious" are reluctant to resort to such relief unless a party has acted in a "willful or manner. (2"4 Thornlow v. Lon Island Railroad, 33 AD2d 1027 Dept, 1970), 2 of 4 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018 8. Due to strong public policy favoring the resolution of actions on the merits, the extreme sanction of striking an Answer is only to be used as a last resort. Rubin v. Pan American (2nd World Airways, Inc., 128 a.D.2d 765, 513 N.Y.S.2d 248 Dept. 1987) Citing BaSSett v. Bando Sangsa Co., 103 A.D.2d 728, 478 N.Y.S.2d 298 (N.Y.A.D. 1984). It is sufficient to preclude the defendant from testifying at trial.Furthermore, the preclusion should only take effect twenty days prior to trial so as to avoid a wide latitude of time to locate the insured defendant. 9. In Balsam, the defendant could not be located and the court held that if the defendant is not produced within twenty days prior to trialthen the defendant is precluded from (2nd testifying at trial. Balsam v. Nicolosi Building Co., 36 A.D.2d 533, 318 N.Y.S.2d 658 Dept. 1971). The Courts have often held that in the case of a defendant's failure to appear for an examination before trial,preclusion of testimony is a more appropriate remedy than the harsh remedy of completely striking the defendant's Answer. Cruzatti v. St. Mary's Hospital, 193 (2nd A.D.2d 579, 597 N.Y.S.2d 457 Dept. 1993); Nudelman v. N.Y.C. Transit Authority, 172 (2nd A.D.2d 503, 567 N.Y.S.2d 851 Dept. 1991). 10. Applicable case law supports your affirmant's position on behalf of the defendant courts' concerning the lack of willfulness and the general desire to have matters determined on the merits. 11. The striking of an answer is a drastic remedy and courts are reluctant to resort to contumacious" such relief unless movant conclusively shows that a party has acted in a "willful or manner. The sanction of striking a pleading is rarely justified, and it is not an approved remedy when there has been attempted compliance. Pezhman v. Department of Education, 95 A.D. 3d (1" (1" 5625 Dept 2012); Blanding v. Return Housing Corp., 277 A.D. 2d 92 Dept 2000); Palmenta 3 of 4 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:15 PM INDEX NO. 154787/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 06/29/2018 (1st v. Columbia University, 266 A.D. 2d 90 Dept 2000); Rosario v. New York City Housing (1St (1st Authority, 272 A.D. 2d 105 Dept 2000); Dauriav.City ofNew York, 127 A.D. 2d 459 Dept (2nd 1987); Thornlow v. Long Island Railroad, 33 AD2d 1027 Dept. 1970). In this case the failure to disclose is not willful or contumacious but rather an inability to disclose or produce (i.e. the insured driver cannot be physically located after diligent investigative efforts were conducted). Willfulness implies knowledge and intent whereas the inability to physically locate a defendant is contray to a defendant willfully and contumaciously thwarting the integrity of a court order. 12. In the interest of fair play and due process, without a conclusive showing of willful or contumacious conduct by the defendant, it is more appropriate for the Court to consider the interests involved in the litigation and strike an appropriate balance between the parties and not strike the defendant's pleadings. WHEREFORE, your affirmant respectfully requests that plaintiffs motion be denied in it's entirety and for such other and further relief as this Court may deem to be just and proper. Dated: New York, New York June 29, 2018 4 of 4