Preview
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 04/14/2022
EXHIBIT 2
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM| PM INDEXNO.NO.517020/2018
INDEX
517020/2018
FILED : KINGS COUNTY CLERK 06/08/2020 05:00
NYSCEF
NYSCEF
DOC.
DOC.
NO.
NO.
41
17 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________..--X
BASHKIM QOSAJ,
Index No: 517020/2018
Plaintiff,
-against- NOTICE OF MOTION
1750 OCEAN PARKWAY ASSOCIATES LLC,
Defendant.
______________..______________________Ç
MOTION RETURNABLE: July 8, 2020, at 9:45 a.m., at Court located at
Supreme Court, Kings County located at 360 Adams
Street, Brooklyn, New York 11201.
RELIEF SOUGHT: An Order: (1) pursuant to CPLR 3126 striking the
answer of Defendant for its failure to provide Court
Ordered discovery; or (2) in the alternative,
precluding Defendant from offering testimony and
evidence at the time of trialor in motion practice as to
those items requested; and (3) for such further and
other reliefas to this Court may deem just and proper.
SUPPORTING PAPERS: Good Faith Affirmation by Michael J. Wells, dated
June 8, 2020, Affirmation in Support by Michael J.
Wells, dated June 8, 2020, and attached exhibits,
Court Orders and Stipulations governing discovery
proceedings.
ANSWERING AFFIDAVITS: Please take further notice that pursuant to CPLR
§2214, answering papers, if any, must be served at
least seven (7) days prior to the return date of this
motion.
Dated: Bronx, New York
J1me 8, 2020
1 of 3
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018
INDEX NO. 517020/2018
|FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM|
NYSCEF DOC. NO. 41
17
RECEIVED
RECEIVED
NYSCEF: 04/14/2022
NYSCEF DOC. NO. NYSCEF: 06/08/2020
Yours, etc.
PEÑA & KAHN, PLLC
Attorneys for Plaintiff
1250 Waters Place, Suite 901
Bronx, New York 10461
(718) 585-6551
Our File No.: 07572
By:
MICHAEL J. WELLS, ESQ.
TO:
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
1750 OCEAN PARKWAY ASSOCIATES LLC
55 Water Street, 28th Floor
New York, NY 10041
Phone: (212) 612-4200
2 of 3
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018
FILED : KINGS COUNTY CLERK 06/08/2020 05:00 INDEX NO. 517020 /2 018
PM|
NYSCEF
NYSCEF
DOC.
DOC.
NO.
NO.
4117
RECEIVED NYSCEF: 04/14/2022
RECEIVED NYSCEF: 06/08/2020
SUPREME COURT OF THE STATE OF NEW YORK Index No.: 517020/2018
COUNTY OF KINGS
BASHKIM QOSAJ,
Plaintiff,
-against-
1750 OCEAN PARKWAY ASSOCIATES LLC,
Defendants.
NOTICE OF MOTION, GOOD FAITH AFFIRMATION and AFFIRMATION IN SUPPORT
PECA & KAHN, PLLC
Attorneys for Plaintiff(s)
Post OfHee Address and Telephone
1250 Waters Place, Suite901
Bronx, New York 10461
Tel: (718)585-6551
Fax: (718) 585-6618
Pursuant to 22NYCRR 130-1.1,theundersigned, an attorney admitted topractice in the Courts of New York
State,certifiesthat,upon information and beliefand reasonable inquiry,the contentions contained inthe
annexed docurnent are not frivolous
MICHAEL J. WELLS, ESQ.
PEGA & KAHN, PLLC
[ ] Noticeof Entry
that thewithin is a (certified)
true copy of a
duly entered in the OfHce ofthe Clerk of the within named court on 20
[ ]Notice of Settlement
that an order of which the within isa true copy
willbe presented to theHon. one of the judges of thewithin court at
on 20 at M.
Dated: Yours, etc.
PEGA & KAHN, PI1C
1250 Waters Place, Suite901
Bronx, New York 10461
3 of 3
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018
INDEX
517020/2018
FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM|
NYSCEF
NYSCEF
DOC.
DOC.
NO.
NO.
41
18
RECEIVEDNYSCEF:
RECEIVED
NYSCEF:06/08/2020
04/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________________________________________Ç
BASHKIM QOSAJ, Index No: 517020/2018
Plaintiff, GOOD FAITH
-against- AFFIRMATION
1750 OCEAN PARKWAY ASSOCIATES LLC,
Defendant.
___________________________________________________________________________Ç
MICHAEL J. WELLS, an attorney duly licensed to practice law before the Courts of the
State of New York, affirms the following under the penalties of perjury:
1. I am an associate in the law firm of PEÑA & KAHN, PLLC, I am the handling attorney
for the above matter. My familiarity with this matter is based on my review of the file
maintained by this office.
2. On or about July 1, 2019 my office served a post-EBT demand upon defendant's
counsel.
3. We have had Court Orders demanding a response be provided and emailed and wrote
defendant's counsel numerous times (see Exhibit 10).
4. Before filing the instant motion, my office contacted defense counsel on multiple
occasions in good faith pursuant to NYCRR 202.7 to obtain compliance with the Final
Pre-Note Order, dated January 2, 2020.
5. To date, defendant has failed to provide necessary discovery or otherwise respond to
our demands and multiple court orders.
6. As such, the court's intervention in this matter is now required.
Dated: Bronx, New York
June 8, 2020
MICHAEL J. WELLS, ESQ.
1 of 1
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.
INDEX
NO.517020/2018
517020/2018
FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 4119 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
___________________________________________________________________________Ç
BASHKIM QOSAJ, Index No.: 517020/2018
Plaintiff, AFFIRMATION
-against- IN SUPPORT
1750 OCEAN PARKWAY ASSOCIATES LLC,
Defendant.
___________________________________________________________________________Ç
MICHAEL J. WELLS, an attomey duly licensed to practice law before the Courts of the
State of New York, affirms the following under the penalties of perjury:
1. I am an associate in the law firm of PEÑA & KAHN, PLLC, I am the handling
attorney for the above matter. My familiarity with this matter is based on my review of the file
maintained by this office.
PROCEDURAL HISTORY and FACTUAL STATEMENT
2. This motion is being made after speaking with defense counsel as he is unable to
provide the discovery demanded in July of 2019. As set forth in the annexed exhibits, Plaintiff
has attempted, in good faith,pursuant to NYCRR 202.7 to obtain compliance with the discovery
orders, with the remaining outstanding discovery being a demand made back in July of 2019.
3. This action was commenced by the filing of a Summons and Complaint on behalf
of Plaintiff BASHKIM QOSAJ (hereinafter "Plaintiff") on or about August 21, 2018. Issue was
joined by service of a Verified Answer from Defendant 1750 OCEAN PARKWAY ASSOCIATES
LLC. (hereinafter "Defendant") on or about October 26, 2018. See pleadings annexed hereto as
Exhibit 1.
1 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018
INDEX
517020/2018
FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 41
19 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
4. On November 23, 2018, Plaintiff served his Verified Bill of Particulars and Notice
for Discovery and Inspection on Defendant. Copy of the Bill of Particulars and Notice for
Discovery and Inspection are annexed hereto as Exhibit 2.
5. Plaintiff was injured on June 22, 2017 while performing repairs to a drain located
on theroof above the lobby of 1750 Ocean Parkway. In order to gain access to the roof, Plaintiff
was required to use the fire escape ladder located by said area. The fire escape ladder, due in part
to it being improperly painted, was improperly maintained, unsafe and defective and as a result
Plaintiff fell from the ladder. Plaintiff claims that the Defendant herein violated Labor Law
240 and 241 as well as various Rules of the Industrial Boards. See Exhibit 2 - Verified
§§ 200,
Bill of Particulars.
6. On January 9, 2019 a Preliminary Conference was held, demanding that all
depositions be held by April 3, 2019. See, Preliminary Conference Order annexed hereto as
Exhibit 3.
7. A Central Compliance Conference was then held on May 14, 2019 demanding that
all depositions be held by July 10, 2019. Central Compliance Conference Order dated May 14,
2019 annexed hereto as Exhibit 4.
8. On or about June 5, 2019 a So Ordered Stipulation was circulated wherein the
parties agreed that Plaintiff's deposition would take place on June 11, 2019 and Defendant's
deposition would take place on June 28, 2019. The Court So Ordered the Stipulation on June 19,
2019. So Ordered Stipulation is annexed hereto as Exhibit 5.
9. Plaintiff was deposed on June 11, 2019 and Defendant produced Zeev Frankel for
a deposition on June 27, 2019. Following the deposition of Mr. Frankel, Plaintiff served a demand
2 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018
FILED KINGS COUNTY CLERK 06/08 INDEX NO. 517020/2018
: / 2020 05 :00 PM)
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 04/14/2022
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/08/2020
dated July 1, 2019 seeking various documents that Mr. Frankel testified would exist. A copy of
the deposition transcript of Defendant witness Zeev Frankel is annexed hereto as Exhibit 6.
10. Mr. Frankel, who was twenty-six (26) years old as of his June 27, 2019 deposition
(see Exhibit 6, p. 9), testified that he started working at Eliat Management at the end of 2016 or
beginning of 2017 (see Exhibit 6, p. 10-11), approximately six months before the subject incident.
He worked for Eliat Management as a property manager (see Exhibit 6, p. 9-10). Prior to working
at Eliat,he had no experience in property management nor had he ever taken any classes or courses
in property management (see Exhibit 6, p. 16). Mr. Frankel testified that the property manager he
replaced was Sam Goldberg (see Exhibit 6, p. 23) and that Mr. Goldberg no longer works for Eliat
(see Exhibit 6, p. 24). Clearly, Sam Goldberg may have relevant information regarding prior
problems with the building and his lastknown address was requested.
11. During that six month time period, Mr. Fraitel and one other co-worker (see
Exhibit 6, p. 18, 20-22) managed four different properties which consisted of approximately 370
residential units as well as commercial spaces (see Exhibit 6, p. 12-13). One of those properties
was the subject property 1750 Ocean Parkway (see Exhibit 6, p. 1 1-12). During that same time
frame, only Mr. Frankel went to the subject property as his co-worker stays in her office (see
Exhibit 6, p. 21-22).
12. Mr. Frankel testified that he was the person responsible for hiring outside
contractors to work at 1750 Ocean Parkway (see Exhibit 6, p. 32). Mr. Frankel testified that that
there was a private company that did the painting at the subject building (see Exhibit 6, p. 33) and
if wanted to know the name of that company or any other contractor that worked at 1750 Ocean
Parkway he would look on the building file (see Exhibit 6, p. 34). Mr. Frankel also admitted that
the file would include all the vendors, such as plumbers and painters, as well as work orders, and
3 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018
FILED KINGS COUNTY CLERK INDEX NO. 517020/2018
: 06/08/2020 05:00 PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO.
4119 RECEIVEDNYSCEF:
RECEIVED
NYSCEF:06/08/2020
04/14/2022
invoices (see Exhibit 6, p. 33-34) and that each building had its own file(see Exhibit 6, p. 34)
and the filewas further broken down by the year (see Exhibit 6, p. 35).
13. Mr. Frankel also testified that during the six months period he would text with
plaintiff (see Exhibit 6, p. 44-45) and tellhim what needed to be cleaned or painted (see Exhibit
6, p. 46). Mr. Frankel admitted that he would text Plaintiff daily or a few times a week (see Exhibit
6, p. 97) and he recalled that there were even texts between himself and Plaintiff which were made
after this incident while Plaintiff was attempting to work while at the building while in a brace (see
Exhibit 6, p. 72) and there were texts on June 14, 2017 in his phone about Plaintiff (see Exhibit
6, p. 105). Lastly, Mr. Frankel also recalled that he had emailed Plaintiff (see Exhibit 6, p. 93).
Clearly, the text messages and emails are communications which Plaintiff is entitled to have in his
possession -and ifthey no longer exist then an affidavit explaining what happened to them would
be required.
14. Lastly, Mr. Frankel testified that he recalled that Plaintiff to be fired effective June
30, 2017 (see Exhibit 6, p. 99) and that there may have been other documents signed by Plaintiff
at a prior discussion as Mr. Frankel recalled that they wanted Plaintiff to sign documents at that
meeting (see Exhibit 6, p. 102). Again, this would be a writing signed by our client and we are
entitled to it and we demanded it - and if no longer exist then an affidavit what
they explaining
happened to them would be required.
15. Following the deposition several demands were made with said demands being sent
out on July 1, 2019. Copy of the July 1, 2019 demand is annexed hereto as Exhibit 7. Notably,
the post-EBT demand sought, inter alia, documents related to:
- folder for 1750 Ocean
Building Parkway;
- Plaintiff's employment and termination;
- Text messages or emails between the parties;
4 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018
FILED KINGS COUNTY CLERK INDEX NO. 517020/2018
: 06/08/2020 05:00 PM|
NYSCEF
NYSCEF
DOC.
DOC.
NO.
NO.
4119 RECEIVEDNYSCEF:
RECEIVED
NYSCEF: 04/14/2022
06/08/2020
- Documentations/communications leaks and in the area of
regarding painting
where the accident occurred; and
- Records as to when Zev Frankel was firsthired and when Sam Goldberger was
last employed.
The firstthree demands were articulated in plaintiff's Notice for Discovery and Inspection
(see Exhibit 2) and as of today counsel for Defendant has failed to provide the demanded
discovery.
16. On September 6, 2019 a Compliance Conference was held scheduling a further
deposition of plaintiff as he had undergone a two level lumbar fusion after his June 11, 2019
deposition. The Court directed that his deposition be held on or before October 14, 2019. That
Order also required Defendant to respond to plaintiff's discovery demand dated July 1, 2019 within
twenty days. Central Compliance Conference Order dated September 6, 2019 is annexed hereto as
Exhibit 8.
17. On January 2, 2020 a Final Pre-Note Order was issued where the Court directed
Defendant to conduct their DMEs and for Defendant to allow a site inspection to take place by
February 28, 2020. Final Pre-Note Order is annexed hereto as Exhibit 9.
18. Subsequent to said Order, we have attempted multiple times to obtain a response to
plaintiff's demand dated July 1, 2019. Your affirmant has sent emails to defense counsel on
February 17, 2020, March 13, 2020, March 30, 2020, April 8, 2020 and again on May 11, 2020.
Copies of the emails are collectively annexed hereto as Exhibit 10.
19. In good faith, your affirmant has spoken to counsel as to when we can expect the
demanded items. He has informed me that due to COVID he has not been able to speak to his
clients and has been unable to confirm if the demanded items even exist let alone exchange it.
Unfortunately, these items were demanded almost a year ago and there is no excuse for this failure
pre-COVID. At this time, your affirmant seeks the demanded items within twenty (20) days or an
5 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018
INDEX
517020/2018
FILED : KINGS COUNTY CLERK 06/08/ 2020 05:00 PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 41
19 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
affidavit from a person with knowledge that the demanded items do not exist within twenty (20)
days.
LEGAL ARGUMENT
THE ANSWER OF DEFENDANT SHOULD BE STRICKEN DUE TO THEIR
REPEATED FAILURE TO APPEAR FOR COURT-ORDERED DEPOSITIONS.
20. CPLR §3126 provides express penalties for any litigant's refusal to comply with
court orders or to disclose that which the court (or statute) requires to be disclosed. Among the
penalties prescribed by statute is "an order striking out pleadings or parts thereof...or rendering a
judgment by default against the disobedient party (CPLR §3126[3]). This sanction is warranted
here.
21. In Gibbs v. St. Barnabas Hospital, 16 N.Y.3d 74, 942 N.E.2d 277 (2010), the Court
courts'
of Appeals noted that the integrity of the judicial process requires that the orders not be
scheme"
disobeyed with impunity. When a party "frustrates the disclosure set forth in both the
CPLR and in judicial directives, it iswell within the court's discretion to strike the disobedient
party's pleadings. Kihl v. Pfeffer, 94 N.Y.2d 118, 722 N.E.2d 55 (1999)
22. "Willful and contumacious behavior can be inferred by a failure to comply with
excuses."
court orders, in the absence of adequate Henderson-Jones v. City of New York 87
(1"
A.D.3d 498, 928 N.Y.S.2d 536 Dept. 2011). The Appellate Court further opined that a party
attitude" consequence"
exhibiting a "cavalier toward discovery "should not escape the adverse of
such an attitude. Id.
23. Here, defendants have refused to provide documents that were demanded from the
beginning of litigation and have been directly ordered by the Court to be provided. The Court
6 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.
INDEX
NO.517020/2018
517020/2018
FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 4119 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
its'
specifically directed the Defendant to provide a response to the demand in September 6, 2019
Order. See Exhibit 8.
24. Defendant has never objected to the demanded material and clearly the documents
and communications are discoverable. Counsel simply claims that he cannot communicate with
his client and cannot determine if the documents and communications exist. Simply stated,
telephones and emails and letters stillexist and itdefies logic that an answer cannot be obtained
and despite the passage of time there is no indication by counsel for Defendant that his clients will
ever provide the long demanded documents.
25. Based on the willful and repeated failure of the Defendant to produce the long
demanded discovery, Defendant's Answer should be stricken.
26. Should the Court, in its discretion, decline to strike the Defendant's Answer, the
Defendant should be ordered to provide the demanded discovery within thirty (30) days or be
precluded from offering testimony and evidence at the time of trialor in motion practice as to those
items demanded. The requested documents would either support or oppose various
defenses. Defendant should be estopped from a claim they had no notice of the leak in the lobby
and problems with the drain. Similarly, they should be estopped from claiming the fire escape was
painted in the months before the accident and that ladder did not descend properly. Finally, they
should be estopped from arguing that the plaintiff was a bad employee and should not be permitted
to discuss his termination at the time of trial.
WHEREFORE, for the reasons stated above, the Plaintiff respectfully requests that this
Court grant the instant motion and issue an order striking the answer of Defendant for itsfailure
to provide Court Ordered discovery; or in the alternative issue an order compelling Defendant to
provide the demanded discovery within thirty (30) days or be precluded from offering testimony
7 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM| PM INDEXNO.NO.517020/2018
INDEX
517020/2018
EŠLED : KINGS COUNTY CLERK 06/08/2020 05:00
NYSCEF
NYSCEF DOC.
DOC.
NO.
NO. 41
19 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
and evidence at the time of trialor in motion practice as to those items demanded, and for such
further and other reliefas to this Court may seem just and proper.
Dated: Bronx, New York
June 8, 2020
MICHAEL J. WELLS, ESQ.
8 of 8
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018
INDEX 517020/2018
FILED: KINGS COUNTY CLERK 06 05:00
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 4120 RECEIVEDNYSCEF:
RECEIVED NYSCEF:06/08/2020
04/14/2022
EXHIBIT 1
FILED: INDEX NO. NO. 517020/2018
:KINGS COUNTY CLERK 04/14/202228 05:45 BSPM
INDEX 517020/2018
FILED KINGS COUNTY CLERK BB:
NYSCEF
NYSCEFDOC.DOC.NO.NO.41 20 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 04/14/2022
08/G8/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No.
BASHKIM QOSAJ,
Date Filed:
Plaintiff,
-agamst-
Plaintiff designates: KINGS
County as the place of trial
1750 OCEAN PARKWAY ASSOCIATES LLC, , , .
I he basis of venue 1s:
Location of Occurrence
Defendant.
S U M M O N S
Plaintiff's address:
37 Hillside Terrace
Monroe, New York
To the above named Defendant(s):
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy
of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiff's attorney, within 20 days after the service of this summons, exclusive
of the day of service (or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York); and in case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in the complaint.
Dated: Bronx, New York
August 20, 2018
PEÑA & KAHN, PLLC
Attorneys for Plaintiff
Office & P. O. Address
1250 Waters Place, Ste. 901
Bronx, New York 10461
(718) 585-6551
Our File No.: 07572
By:
J NATHAN O. MICHAELS
Preview
FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 04/14/2022 EXHIBIT 2 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM| PM INDEXNO.NO.517020/2018 INDEX 517020/2018 FILED : KINGS COUNTY CLERK 06/08/2020 05:00 NYSCEF NYSCEF DOC. DOC. NO. NO. 41 17 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS __________________________________..--X BASHKIM QOSAJ, Index No: 517020/2018 Plaintiff, -against- NOTICE OF MOTION 1750 OCEAN PARKWAY ASSOCIATES LLC, Defendant. ______________..______________________Ç MOTION RETURNABLE: July 8, 2020, at 9:45 a.m., at Court located at Supreme Court, Kings County located at 360 Adams Street, Brooklyn, New York 11201. RELIEF SOUGHT: An Order: (1) pursuant to CPLR 3126 striking the answer of Defendant for its failure to provide Court Ordered discovery; or (2) in the alternative, precluding Defendant from offering testimony and evidence at the time of trialor in motion practice as to those items requested; and (3) for such further and other reliefas to this Court may deem just and proper. SUPPORTING PAPERS: Good Faith Affirmation by Michael J. Wells, dated June 8, 2020, Affirmation in Support by Michael J. Wells, dated June 8, 2020, and attached exhibits, Court Orders and Stipulations governing discovery proceedings. ANSWERING AFFIDAVITS: Please take further notice that pursuant to CPLR §2214, answering papers, if any, must be served at least seven (7) days prior to the return date of this motion. Dated: Bronx, New York J1me 8, 2020 1 of 3 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018 INDEX NO. 517020/2018 |FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM| NYSCEF DOC. NO. 41 17 RECEIVED RECEIVED NYSCEF: 04/14/2022 NYSCEF DOC. NO. NYSCEF: 06/08/2020 Yours, etc. PEÑA & KAHN, PLLC Attorneys for Plaintiff 1250 Waters Place, Suite 901 Bronx, New York 10461 (718) 585-6551 Our File No.: 07572 By: MICHAEL J. WELLS, ESQ. TO: EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant 1750 OCEAN PARKWAY ASSOCIATES LLC 55 Water Street, 28th Floor New York, NY 10041 Phone: (212) 612-4200 2 of 3 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018 FILED : KINGS COUNTY CLERK 06/08/2020 05:00 INDEX NO. 517020 /2 018 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 4117 RECEIVED NYSCEF: 04/14/2022 RECEIVED NYSCEF: 06/08/2020 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 517020/2018 COUNTY OF KINGS BASHKIM QOSAJ, Plaintiff, -against- 1750 OCEAN PARKWAY ASSOCIATES LLC, Defendants. NOTICE OF MOTION, GOOD FAITH AFFIRMATION and AFFIRMATION IN SUPPORT PECA & KAHN, PLLC Attorneys for Plaintiff(s) Post OfHee Address and Telephone 1250 Waters Place, Suite901 Bronx, New York 10461 Tel: (718)585-6551 Fax: (718) 585-6618 Pursuant to 22NYCRR 130-1.1,theundersigned, an attorney admitted topractice in the Courts of New York State,certifiesthat,upon information and beliefand reasonable inquiry,the contentions contained inthe annexed docurnent are not frivolous MICHAEL J. WELLS, ESQ. PEGA & KAHN, PLLC [ ] Noticeof Entry that thewithin is a (certified) true copy of a duly entered in the OfHce ofthe Clerk of the within named court on 20 [ ]Notice of Settlement that an order of which the within isa true copy willbe presented to theHon. one of the judges of thewithin court at on 20 at M. Dated: Yours, etc. PEGA & KAHN, PI1C 1250 Waters Place, Suite901 Bronx, New York 10461 3 of 3 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018 INDEX 517020/2018 FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 41 18 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS __________________________________________________________________Ç BASHKIM QOSAJ, Index No: 517020/2018 Plaintiff, GOOD FAITH -against- AFFIRMATION 1750 OCEAN PARKWAY ASSOCIATES LLC, Defendant. ___________________________________________________________________________Ç MICHAEL J. WELLS, an attorney duly licensed to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am an associate in the law firm of PEÑA & KAHN, PLLC, I am the handling attorney for the above matter. My familiarity with this matter is based on my review of the file maintained by this office. 2. On or about July 1, 2019 my office served a post-EBT demand upon defendant's counsel. 3. We have had Court Orders demanding a response be provided and emailed and wrote defendant's counsel numerous times (see Exhibit 10). 4. Before filing the instant motion, my office contacted defense counsel on multiple occasions in good faith pursuant to NYCRR 202.7 to obtain compliance with the Final Pre-Note Order, dated January 2, 2020. 5. To date, defendant has failed to provide necessary discovery or otherwise respond to our demands and multiple court orders. 6. As such, the court's intervention in this matter is now required. Dated: Bronx, New York June 8, 2020 MICHAEL J. WELLS, ESQ. 1 of 1 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO. INDEX NO.517020/2018 517020/2018 FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 4119 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ___________________________________________________________________________Ç BASHKIM QOSAJ, Index No.: 517020/2018 Plaintiff, AFFIRMATION -against- IN SUPPORT 1750 OCEAN PARKWAY ASSOCIATES LLC, Defendant. ___________________________________________________________________________Ç MICHAEL J. WELLS, an attomey duly licensed to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am an associate in the law firm of PEÑA & KAHN, PLLC, I am the handling attorney for the above matter. My familiarity with this matter is based on my review of the file maintained by this office. PROCEDURAL HISTORY and FACTUAL STATEMENT 2. This motion is being made after speaking with defense counsel as he is unable to provide the discovery demanded in July of 2019. As set forth in the annexed exhibits, Plaintiff has attempted, in good faith,pursuant to NYCRR 202.7 to obtain compliance with the discovery orders, with the remaining outstanding discovery being a demand made back in July of 2019. 3. This action was commenced by the filing of a Summons and Complaint on behalf of Plaintiff BASHKIM QOSAJ (hereinafter "Plaintiff") on or about August 21, 2018. Issue was joined by service of a Verified Answer from Defendant 1750 OCEAN PARKWAY ASSOCIATES LLC. (hereinafter "Defendant") on or about October 26, 2018. See pleadings annexed hereto as Exhibit 1. 1 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018 INDEX 517020/2018 FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 41 19 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 4. On November 23, 2018, Plaintiff served his Verified Bill of Particulars and Notice for Discovery and Inspection on Defendant. Copy of the Bill of Particulars and Notice for Discovery and Inspection are annexed hereto as Exhibit 2. 5. Plaintiff was injured on June 22, 2017 while performing repairs to a drain located on theroof above the lobby of 1750 Ocean Parkway. In order to gain access to the roof, Plaintiff was required to use the fire escape ladder located by said area. The fire escape ladder, due in part to it being improperly painted, was improperly maintained, unsafe and defective and as a result Plaintiff fell from the ladder. Plaintiff claims that the Defendant herein violated Labor Law 240 and 241 as well as various Rules of the Industrial Boards. See Exhibit 2 - Verified §§ 200, Bill of Particulars. 6. On January 9, 2019 a Preliminary Conference was held, demanding that all depositions be held by April 3, 2019. See, Preliminary Conference Order annexed hereto as Exhibit 3. 7. A Central Compliance Conference was then held on May 14, 2019 demanding that all depositions be held by July 10, 2019. Central Compliance Conference Order dated May 14, 2019 annexed hereto as Exhibit 4. 8. On or about June 5, 2019 a So Ordered Stipulation was circulated wherein the parties agreed that Plaintiff's deposition would take place on June 11, 2019 and Defendant's deposition would take place on June 28, 2019. The Court So Ordered the Stipulation on June 19, 2019. So Ordered Stipulation is annexed hereto as Exhibit 5. 9. Plaintiff was deposed on June 11, 2019 and Defendant produced Zeev Frankel for a deposition on June 27, 2019. Following the deposition of Mr. Frankel, Plaintiff served a demand 2 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018 FILED KINGS COUNTY CLERK 06/08 INDEX NO. 517020/2018 : / 2020 05 :00 PM) NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 04/14/2022 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/08/2020 dated July 1, 2019 seeking various documents that Mr. Frankel testified would exist. A copy of the deposition transcript of Defendant witness Zeev Frankel is annexed hereto as Exhibit 6. 10. Mr. Frankel, who was twenty-six (26) years old as of his June 27, 2019 deposition (see Exhibit 6, p. 9), testified that he started working at Eliat Management at the end of 2016 or beginning of 2017 (see Exhibit 6, p. 10-11), approximately six months before the subject incident. He worked for Eliat Management as a property manager (see Exhibit 6, p. 9-10). Prior to working at Eliat,he had no experience in property management nor had he ever taken any classes or courses in property management (see Exhibit 6, p. 16). Mr. Frankel testified that the property manager he replaced was Sam Goldberg (see Exhibit 6, p. 23) and that Mr. Goldberg no longer works for Eliat (see Exhibit 6, p. 24). Clearly, Sam Goldberg may have relevant information regarding prior problems with the building and his lastknown address was requested. 11. During that six month time period, Mr. Fraitel and one other co-worker (see Exhibit 6, p. 18, 20-22) managed four different properties which consisted of approximately 370 residential units as well as commercial spaces (see Exhibit 6, p. 12-13). One of those properties was the subject property 1750 Ocean Parkway (see Exhibit 6, p. 1 1-12). During that same time frame, only Mr. Frankel went to the subject property as his co-worker stays in her office (see Exhibit 6, p. 21-22). 12. Mr. Frankel testified that he was the person responsible for hiring outside contractors to work at 1750 Ocean Parkway (see Exhibit 6, p. 32). Mr. Frankel testified that that there was a private company that did the painting at the subject building (see Exhibit 6, p. 33) and if wanted to know the name of that company or any other contractor that worked at 1750 Ocean Parkway he would look on the building file (see Exhibit 6, p. 34). Mr. Frankel also admitted that the file would include all the vendors, such as plumbers and painters, as well as work orders, and 3 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018 FILED KINGS COUNTY CLERK INDEX NO. 517020/2018 : 06/08/2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 4119 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 invoices (see Exhibit 6, p. 33-34) and that each building had its own file(see Exhibit 6, p. 34) and the filewas further broken down by the year (see Exhibit 6, p. 35). 13. Mr. Frankel also testified that during the six months period he would text with plaintiff (see Exhibit 6, p. 44-45) and tellhim what needed to be cleaned or painted (see Exhibit 6, p. 46). Mr. Frankel admitted that he would text Plaintiff daily or a few times a week (see Exhibit 6, p. 97) and he recalled that there were even texts between himself and Plaintiff which were made after this incident while Plaintiff was attempting to work while at the building while in a brace (see Exhibit 6, p. 72) and there were texts on June 14, 2017 in his phone about Plaintiff (see Exhibit 6, p. 105). Lastly, Mr. Frankel also recalled that he had emailed Plaintiff (see Exhibit 6, p. 93). Clearly, the text messages and emails are communications which Plaintiff is entitled to have in his possession -and ifthey no longer exist then an affidavit explaining what happened to them would be required. 14. Lastly, Mr. Frankel testified that he recalled that Plaintiff to be fired effective June 30, 2017 (see Exhibit 6, p. 99) and that there may have been other documents signed by Plaintiff at a prior discussion as Mr. Frankel recalled that they wanted Plaintiff to sign documents at that meeting (see Exhibit 6, p. 102). Again, this would be a writing signed by our client and we are entitled to it and we demanded it - and if no longer exist then an affidavit what they explaining happened to them would be required. 15. Following the deposition several demands were made with said demands being sent out on July 1, 2019. Copy of the July 1, 2019 demand is annexed hereto as Exhibit 7. Notably, the post-EBT demand sought, inter alia, documents related to: - folder for 1750 Ocean Building Parkway; - Plaintiff's employment and termination; - Text messages or emails between the parties; 4 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEX NO. 517020/2018 FILED KINGS COUNTY CLERK INDEX NO. 517020/2018 : 06/08/2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 4119 RECEIVEDNYSCEF: RECEIVED NYSCEF: 04/14/2022 06/08/2020 - Documentations/communications leaks and in the area of regarding painting where the accident occurred; and - Records as to when Zev Frankel was firsthired and when Sam Goldberger was last employed. The firstthree demands were articulated in plaintiff's Notice for Discovery and Inspection (see Exhibit 2) and as of today counsel for Defendant has failed to provide the demanded discovery. 16. On September 6, 2019 a Compliance Conference was held scheduling a further deposition of plaintiff as he had undergone a two level lumbar fusion after his June 11, 2019 deposition. The Court directed that his deposition be held on or before October 14, 2019. That Order also required Defendant to respond to plaintiff's discovery demand dated July 1, 2019 within twenty days. Central Compliance Conference Order dated September 6, 2019 is annexed hereto as Exhibit 8. 17. On January 2, 2020 a Final Pre-Note Order was issued where the Court directed Defendant to conduct their DMEs and for Defendant to allow a site inspection to take place by February 28, 2020. Final Pre-Note Order is annexed hereto as Exhibit 9. 18. Subsequent to said Order, we have attempted multiple times to obtain a response to plaintiff's demand dated July 1, 2019. Your affirmant has sent emails to defense counsel on February 17, 2020, March 13, 2020, March 30, 2020, April 8, 2020 and again on May 11, 2020. Copies of the emails are collectively annexed hereto as Exhibit 10. 19. In good faith, your affirmant has spoken to counsel as to when we can expect the demanded items. He has informed me that due to COVID he has not been able to speak to his clients and has been unable to confirm if the demanded items even exist let alone exchange it. Unfortunately, these items were demanded almost a year ago and there is no excuse for this failure pre-COVID. At this time, your affirmant seeks the demanded items within twenty (20) days or an 5 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018 INDEX 517020/2018 FILED : KINGS COUNTY CLERK 06/08/ 2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 41 19 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 affidavit from a person with knowledge that the demanded items do not exist within twenty (20) days. LEGAL ARGUMENT THE ANSWER OF DEFENDANT SHOULD BE STRICKEN DUE TO THEIR REPEATED FAILURE TO APPEAR FOR COURT-ORDERED DEPOSITIONS. 20. CPLR §3126 provides express penalties for any litigant's refusal to comply with court orders or to disclose that which the court (or statute) requires to be disclosed. Among the penalties prescribed by statute is "an order striking out pleadings or parts thereof...or rendering a judgment by default against the disobedient party (CPLR §3126[3]). This sanction is warranted here. 21. In Gibbs v. St. Barnabas Hospital, 16 N.Y.3d 74, 942 N.E.2d 277 (2010), the Court courts' of Appeals noted that the integrity of the judicial process requires that the orders not be scheme" disobeyed with impunity. When a party "frustrates the disclosure set forth in both the CPLR and in judicial directives, it iswell within the court's discretion to strike the disobedient party's pleadings. Kihl v. Pfeffer, 94 N.Y.2d 118, 722 N.E.2d 55 (1999) 22. "Willful and contumacious behavior can be inferred by a failure to comply with excuses." court orders, in the absence of adequate Henderson-Jones v. City of New York 87 (1" A.D.3d 498, 928 N.Y.S.2d 536 Dept. 2011). The Appellate Court further opined that a party attitude" consequence" exhibiting a "cavalier toward discovery "should not escape the adverse of such an attitude. Id. 23. Here, defendants have refused to provide documents that were demanded from the beginning of litigation and have been directly ordered by the Court to be provided. The Court 6 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO. INDEX NO.517020/2018 517020/2018 FILED : KINGS COUNTY CLERK 06/08/2020 05:00 PM| NYSCEF NYSCEF DOC. DOC. NO. NO. 4119 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 its' specifically directed the Defendant to provide a response to the demand in September 6, 2019 Order. See Exhibit 8. 24. Defendant has never objected to the demanded material and clearly the documents and communications are discoverable. Counsel simply claims that he cannot communicate with his client and cannot determine if the documents and communications exist. Simply stated, telephones and emails and letters stillexist and itdefies logic that an answer cannot be obtained and despite the passage of time there is no indication by counsel for Defendant that his clients will ever provide the long demanded documents. 25. Based on the willful and repeated failure of the Defendant to produce the long demanded discovery, Defendant's Answer should be stricken. 26. Should the Court, in its discretion, decline to strike the Defendant's Answer, the Defendant should be ordered to provide the demanded discovery within thirty (30) days or be precluded from offering testimony and evidence at the time of trialor in motion practice as to those items demanded. The requested documents would either support or oppose various defenses. Defendant should be estopped from a claim they had no notice of the leak in the lobby and problems with the drain. Similarly, they should be estopped from claiming the fire escape was painted in the months before the accident and that ladder did not descend properly. Finally, they should be estopped from arguing that the plaintiff was a bad employee and should not be permitted to discuss his termination at the time of trial. WHEREFORE, for the reasons stated above, the Plaintiff respectfully requests that this Court grant the instant motion and issue an order striking the answer of Defendant for itsfailure to provide Court Ordered discovery; or in the alternative issue an order compelling Defendant to provide the demanded discovery within thirty (30) days or be precluded from offering testimony 7 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM| PM INDEXNO.NO.517020/2018 INDEX 517020/2018 EŠLED : KINGS COUNTY CLERK 06/08/2020 05:00 NYSCEF NYSCEF DOC. DOC. NO. NO. 41 19 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 and evidence at the time of trialor in motion practice as to those items demanded, and for such further and other reliefas to this Court may seem just and proper. Dated: Bronx, New York June 8, 2020 MICHAEL J. WELLS, ESQ. 8 of 8 FILED: KINGS COUNTY CLERK 04/14/2022 05:45 PM INDEXNO.NO.517020/2018 INDEX 517020/2018 FILED: KINGS COUNTY CLERK 06 05:00 NYSCEF NYSCEF DOC. DOC. NO. NO. 4120 RECEIVEDNYSCEF: RECEIVED NYSCEF:06/08/2020 04/14/2022 EXHIBIT 1 FILED: INDEX NO. NO. 517020/2018 :KINGS COUNTY CLERK 04/14/202228 05:45 BSPM INDEX 517020/2018 FILED KINGS COUNTY CLERK BB: NYSCEF NYSCEFDOC.DOC.NO.NO.41 20 RECEIVED RECEIVED NYSCEF: NYSCEF: 04/14/2022 08/G8/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No. BASHKIM QOSAJ, Date Filed: Plaintiff, -agamst- Plaintiff designates: KINGS County as the place of trial 1750 OCEAN PARKWAY ASSOCIATES LLC, , , . I he basis of venue 1s: Location of Occurrence Defendant. S U M M O N S Plaintiff's address: 37 Hillside Terrace Monroe, New York To the above named Defendant(s): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's attorney, within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: Bronx, New York August 20, 2018 PEÑA & KAHN, PLLC Attorneys for Plaintiff Office & P. O. Address 1250 Waters Place, Ste. 901 Bronx, New York 10461 (718) 585-6551 Our File No.: 07572 By: J NATHAN O. MICHAELS