Preview
FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------x
STEVEN JIMENEZ,
Index No.: 153982/2021
Plaintiff,
AFFIRMATION IN SUPPORT
- against - OF DEFENDANTS MAXWELL-
KATES, INC. AND THE 315
MAXWELL KATES, INC., 315 SEVENTH AVENUE SEVENTH AVENUE
RESIDENTIAL, L.L.C., THE 315 SEVENTH CONDOMINIUM’S MOTION
AVENUE CONDOMINIUM and T-MOBILE USA, TO STRIKE AND COMPEL
INC.,
Defendants.
---------------------------------------------------------------x
William C. Neves, an attorney duly licensed to practice law before the Courts of
the State of New York, hereby affirms the following under the penalties of perjury:
1. I am a member of the law firm Sjoquist & Baer, attorneys for Defendants
Maxwell-Kates, Inc. s/h/a Maxwell Kates, Inc. and The 315 Seventh Avenue Condominium
(“Defendants”).
2. I have knowledge of the facts set forth below through my representation of
Defendants in this matter and my review of my firm’s file and the electronically filed documents
in this matter.
3. I respectfully submit this Affirmation in support of the within motion,
through which Defendants seeks an Order, pursuant to CPLR 3126:
(a) striking Plaintiff Steven Jimenez’s summons
and complaint with prejudice and precluding
Plaintiff from offering any evidence at trial or
in support of, or opposition to, a dispositive
motion in this matter; or
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(b) compelling Plaintiff to provide full and
complete responses to Defendants’ discovery
demands; and
(c) granting such other relief as this Court deems
just and proper.
PRELIMINARY STATEMENT
4. Plaintiff in this personal injury action alleges that on March 22, 2019, he
was struck by an unsecured A-Frame sign on the sidewalk adjacent to Co-Defendant T-Mobile
USA, Inc.’s storefront at 315 Seventh Avenue, New York, New York.
5. Plaintiff has failed to provide a bill of particulars, discovery responses or
authorizations, despite already receiving an extension as per the proposed Preliminary Conference
Order. Since his refusal to provide discovery for seven months is both willful and ongoing,
sanctions are appropriate.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
6. Plaintiff commenced this action by electronically filing a summons and
complaint on April 24, 2021. (Exhibit A hereto).
7. Defendants electronically filed their answer on June 12, 2021. (Exhibit B
hereto).
8. Defendant T-Mobile USA, Inc. electronically filed its answer on June 24,
2021. (Exhibit C hereto).
9. Defendants electronically filed their discovery demands on June 12, 2021.
(Exhibit D hereto). Plaintiff has failed to respond to Defendants’ demands.
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10. The parties corresponded by electronic mail in October 2021 in regard to
outstanding discovery and stipulated to a proposed Preliminary Conference Order. (Exhibit E
hereto). Plaintiff counsel agreed to provide discovery responses within 30 days. (Exh. E.).
11. Co-Defendant T-Mobile USA, Inc. electronically filed the proposed Order
on October 27, 2021. (Exhibit F hereto). Plaintiff has still provided no discovery in this matter.
12. On January 7, 2022 the undersigned spoke to Jalissa of Liakas Law, P.C.
about the outstanding discovery. Jalissa advised Plaintiff’s counsel would return the call promptly.
The undersigned then left a phone message for Plaintiff’s counsel that same day.
13. Defendants then electronically filed their good faith correspondence
seeking a Section 202.20-f telephone conference with Plaintiff counsel on January 7, 2022.
(Exhibit G hereto).
14. The Defendants have left multiple messages with Plaintiff counsel (both
verbal and written), yet no discovery has been provided. Plaintiff counsel has ignored both the
proposed Order and Defendants’ correspondence and phone calls regarding Plaintiff’s outstanding
discovery.
ARGUMENT
15. Plaintiff’s has willfully disregarded this the proposed Order, Defendants’
demands, and Plaintiff’s basic discovery obligations. Given Plaintiff’s multiple failures to provide
discovery and Plaintiff’s complete refusal to comply with the stipulation/proposed order, sanctions
are fully warranted here.
16. CPLR 3126 allows the Court to preclude a plaintiff from offering testimony
or evidence at trial, which would effectively result in dismissal, where it has been “clearly shown
that [plaintiff’s] nondisclosure was willful, contumacious or due to bad faith.” Commerce & Indus.
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Ins. Co. v. Lib-Com Ltd., 266 A.D.2d 142, 145 (1st Dep’t 1999). See also Sanchez v. City of New
York, 266 A.D.2d 127, 127 (1st Dep’t 1999) (affirming preclusion for party’s failure to comply
with outstanding discovery obligations). It is clear that “[c]hronic noncompliance with deadlines
breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases
can linger for years without resolution.” Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81 (2010).
17. Where a party fails to respond to a demand for a bill of particulars, the party
seeking the bill of particulars may move to compel compliance pursuant to CPLR 3016. Further,
if the failure to provide particulars is deemed to be willful, “the court may make such final or
conditional order with regard to the failure or refusal as is just, including such relief as is set forth
in CPLR 3126.” Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81 (2010).
18. Here, Plaintiff’s discovery responses have been outstanding for months,
despite Defendants’ multiple good faith efforts to resolve this issue and the discovery
stipulation/proposed order to which Plaintiff agreed. There is no reason why Plaintiff should be
permitted to sue Defendants, at significant cost to Defendants, and then abdicate his basic
discovery obligations. This chronic noncompliance with deadlines and refusal to provide the
basics pillars of discovery is willful and contumacious conduct and warrants striking Plaintiff’s
complaint, preclusion, or some other remedy.
WHEREFORE, for all the foregoing reasons, Defendants respectfully request that
this Court issue an Order, pursuant to CPLR 3126:
(a) striking Plaintiff Steven Jimenez’s summons
and complaint with prejudice and precluding
Plaintiff from offering any evidence at trial or
in support of, or opposition to, a dispositive
motion in this matter; or
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(b) compelling Plaintiff to provide full and
complete responses to Defendants’ discovery
demands; and
(c) granting such other relief as this Court deems
just and proper.
Dated: New York, New York
January 12, 2022
SJOQUIST & BAER
____________________________
By: William C. Neves
Attorneys for Defendants
Maxwell-Kates, Inc. and
The 315 Seventh Avenue Condominium
757 Third Avenue, Tenth Floor
New York, New York 10017
(212) 497-3749
To: All parties via NYSCEF
No appearance by Defendant 315 Seventh Avenue Residential, L.L.C.
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Certification Pursuant to Uniform Rule 202.8-b(c)
The undersigned hereby certifies that the moving affirmation and good faith
affirmation were prepared using a proportionally spaced/ monospaced typeface.
Name of typeface: Times New Roman
Point size: 12
Line spacing: Double (except for block quotes, headings and footnotes)
The total number of words inclusive of headings and footnotes and exclusive of the
caption in the affirmations is 1,142.
Dated: New York, New York
January 12, 2022
SJOQUIST & BAER
____________________________
By: William C. Neves
Attorneys for Defendants
Maxwell-Kates, Inc. and
The 315 Seventh Avenue Condominium
757 Third Avenue, Tenth Floor
New York, New York 10017
(212) 497-3749
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NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------x
STEVEN JIMENEZ,
Index No.: 153982/2021
Plaintiff,
- against -
MAXWELL KATES, INC., 315 SEVENTH AVENUE
RESIDENTIAL, L.L.C., THE 315 SEVENTH
AVENUE CONDOMINIUM and T-MOBILE USA,
INC.,
Defendants.
---------------------------------------------------------------x
MOTION TO STRIKE AND COMPEL
SJOQUIST & BAER
Attorneys for Defendants
Maxwell-Kates, Inc. and
The 315 Seventh Avenue Condominium
757 Third Avenue, Tenth Floor
New York, New York 10017
(212) 497-3749
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Preview
FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------x STEVEN JIMENEZ, Index No.: 153982/2021 Plaintiff, AFFIRMATION IN SUPPORT - against - OF DEFENDANTS MAXWELL- KATES, INC. AND THE 315 MAXWELL KATES, INC., 315 SEVENTH AVENUE SEVENTH AVENUE RESIDENTIAL, L.L.C., THE 315 SEVENTH CONDOMINIUM’S MOTION AVENUE CONDOMINIUM and T-MOBILE USA, TO STRIKE AND COMPEL INC., Defendants. ---------------------------------------------------------------x William C. Neves, an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am a member of the law firm Sjoquist & Baer, attorneys for Defendants Maxwell-Kates, Inc. s/h/a Maxwell Kates, Inc. and The 315 Seventh Avenue Condominium (“Defendants”). 2. I have knowledge of the facts set forth below through my representation of Defendants in this matter and my review of my firm’s file and the electronically filed documents in this matter. 3. I respectfully submit this Affirmation in support of the within motion, through which Defendants seeks an Order, pursuant to CPLR 3126: (a) striking Plaintiff Steven Jimenez’s summons and complaint with prejudice and precluding Plaintiff from offering any evidence at trial or in support of, or opposition to, a dispositive motion in this matter; or 1 of 7 FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 (b) compelling Plaintiff to provide full and complete responses to Defendants’ discovery demands; and (c) granting such other relief as this Court deems just and proper. PRELIMINARY STATEMENT 4. Plaintiff in this personal injury action alleges that on March 22, 2019, he was struck by an unsecured A-Frame sign on the sidewalk adjacent to Co-Defendant T-Mobile USA, Inc.’s storefront at 315 Seventh Avenue, New York, New York. 5. Plaintiff has failed to provide a bill of particulars, discovery responses or authorizations, despite already receiving an extension as per the proposed Preliminary Conference Order. Since his refusal to provide discovery for seven months is both willful and ongoing, sanctions are appropriate. PROCEDURAL HISTORY AND STATEMENT OF FACTS 6. Plaintiff commenced this action by electronically filing a summons and complaint on April 24, 2021. (Exhibit A hereto). 7. Defendants electronically filed their answer on June 12, 2021. (Exhibit B hereto). 8. Defendant T-Mobile USA, Inc. electronically filed its answer on June 24, 2021. (Exhibit C hereto). 9. Defendants electronically filed their discovery demands on June 12, 2021. (Exhibit D hereto). Plaintiff has failed to respond to Defendants’ demands. 2 of 7 FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 10. The parties corresponded by electronic mail in October 2021 in regard to outstanding discovery and stipulated to a proposed Preliminary Conference Order. (Exhibit E hereto). Plaintiff counsel agreed to provide discovery responses within 30 days. (Exh. E.). 11. Co-Defendant T-Mobile USA, Inc. electronically filed the proposed Order on October 27, 2021. (Exhibit F hereto). Plaintiff has still provided no discovery in this matter. 12. On January 7, 2022 the undersigned spoke to Jalissa of Liakas Law, P.C. about the outstanding discovery. Jalissa advised Plaintiff’s counsel would return the call promptly. The undersigned then left a phone message for Plaintiff’s counsel that same day. 13. Defendants then electronically filed their good faith correspondence seeking a Section 202.20-f telephone conference with Plaintiff counsel on January 7, 2022. (Exhibit G hereto). 14. The Defendants have left multiple messages with Plaintiff counsel (both verbal and written), yet no discovery has been provided. Plaintiff counsel has ignored both the proposed Order and Defendants’ correspondence and phone calls regarding Plaintiff’s outstanding discovery. ARGUMENT 15. Plaintiff’s has willfully disregarded this the proposed Order, Defendants’ demands, and Plaintiff’s basic discovery obligations. Given Plaintiff’s multiple failures to provide discovery and Plaintiff’s complete refusal to comply with the stipulation/proposed order, sanctions are fully warranted here. 16. CPLR 3126 allows the Court to preclude a plaintiff from offering testimony or evidence at trial, which would effectively result in dismissal, where it has been “clearly shown that [plaintiff’s] nondisclosure was willful, contumacious or due to bad faith.” Commerce & Indus. 3 of 7 FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 Ins. Co. v. Lib-Com Ltd., 266 A.D.2d 142, 145 (1st Dep’t 1999). See also Sanchez v. City of New York, 266 A.D.2d 127, 127 (1st Dep’t 1999) (affirming preclusion for party’s failure to comply with outstanding discovery obligations). It is clear that “[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution.” Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81 (2010). 17. Where a party fails to respond to a demand for a bill of particulars, the party seeking the bill of particulars may move to compel compliance pursuant to CPLR 3016. Further, if the failure to provide particulars is deemed to be willful, “the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in CPLR 3126.” Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81 (2010). 18. Here, Plaintiff’s discovery responses have been outstanding for months, despite Defendants’ multiple good faith efforts to resolve this issue and the discovery stipulation/proposed order to which Plaintiff agreed. There is no reason why Plaintiff should be permitted to sue Defendants, at significant cost to Defendants, and then abdicate his basic discovery obligations. This chronic noncompliance with deadlines and refusal to provide the basics pillars of discovery is willful and contumacious conduct and warrants striking Plaintiff’s complaint, preclusion, or some other remedy. WHEREFORE, for all the foregoing reasons, Defendants respectfully request that this Court issue an Order, pursuant to CPLR 3126: (a) striking Plaintiff Steven Jimenez’s summons and complaint with prejudice and precluding Plaintiff from offering any evidence at trial or in support of, or opposition to, a dispositive motion in this matter; or 4 of 7 FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 (b) compelling Plaintiff to provide full and complete responses to Defendants’ discovery demands; and (c) granting such other relief as this Court deems just and proper. Dated: New York, New York January 12, 2022 SJOQUIST & BAER ____________________________ By: William C. Neves Attorneys for Defendants Maxwell-Kates, Inc. and The 315 Seventh Avenue Condominium 757 Third Avenue, Tenth Floor New York, New York 10017 (212) 497-3749 To: All parties via NYSCEF No appearance by Defendant 315 Seventh Avenue Residential, L.L.C. 5 of 7 FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 Certification Pursuant to Uniform Rule 202.8-b(c) The undersigned hereby certifies that the moving affirmation and good faith affirmation were prepared using a proportionally spaced/ monospaced typeface. Name of typeface: Times New Roman Point size: 12 Line spacing: Double (except for block quotes, headings and footnotes) The total number of words inclusive of headings and footnotes and exclusive of the caption in the affirmations is 1,142. Dated: New York, New York January 12, 2022 SJOQUIST & BAER ____________________________ By: William C. Neves Attorneys for Defendants Maxwell-Kates, Inc. and The 315 Seventh Avenue Condominium 757 Third Avenue, Tenth Floor New York, New York 10017 (212) 497-3749 6 of 7 FILED: NEW YORK COUNTY CLERK 01/12/2022 04:36 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 01/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------x STEVEN JIMENEZ, Index No.: 153982/2021 Plaintiff, - against - MAXWELL KATES, INC., 315 SEVENTH AVENUE RESIDENTIAL, L.L.C., THE 315 SEVENTH AVENUE CONDOMINIUM and T-MOBILE USA, INC., Defendants. ---------------------------------------------------------------x MOTION TO STRIKE AND COMPEL SJOQUIST & BAER Attorneys for Defendants Maxwell-Kates, Inc. and The 315 Seventh Avenue Condominium 757 Third Avenue, Tenth Floor New York, New York 10017 (212) 497-3749 7 of 7