Preview
FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
______________________________ _____________________..--------------
X
Jamel Vargas, Index No. 154212/17
Plaintiff,
-against-
AFFIRMATION IN SUPPORT
EAN Holdings, LLC, Claudia Cristal Cintron and
Lanette B. Woodard,
Defendants.
-------------------------- --------------------------------X
BRIAN R. BERGER, an attorney duly admitted to practice law in the Courts of
the State of New York, affirms the following to be true under the peñâlties of perjury:
1. I am an associate of the law firm of CARMAN, CALLAHAN &
INGHAM, LLP attorneys for the Defeñdâñts EAN HOLDINGS, LLC and CLAUDIA
CRISTAL CINTRON in the above-captioned action. In this regard, I am fully familiar
with the facts and circumstances of this matter by virtue of the file m±iñtâiñêd in our
office in connection with the same.
2. This Affirmation is being made upon information and belief, the source
being the file maintained in my office and a study of the applicable law.
3. I submit this Affirmation in support of the within cross-motion for an
Order:
Plaintiffs'
i) pursuant to CPLR §3126, dismissing the action; or
alternatively,
ii) pursuant to CPLR §3126, deeming resolved in accordance with the
claims/defenses of Defendant, those issues which are relevant with
respect to the information the Plaintiffs have failed to disclose; or
alternatively,
iii) pursuant to CPLR §3126, precluding Plaintiffs from offering into
evidence at the time of trial,any information that he has willfully failed
and/or refused to provide Defendant as requested or Ordered herein,
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iv) pursuant to CPLR §3124, compelling Plaintiffs to comply with
Defendant's discovery demands and,
v) granting such other and further relief as to this Court may
seem just, proper and equitable.
PROCEDURAL HISTORY
4. This action is for personal injuries stemming from an accident which
allegedly occurred on December 28, 2015. A copy of Plaintiff's Summons and
"A."
Complaint is annexed hereto as Exhibit
5. On or about May 31, 2017, the cross-moving Defendants served an
Answer along with Combined Discovery Demands, including a Demand for
authorizations for Plaintiff s medical providers. A copy of moving Defendant's Answer
"B."
and Combined Discovery Demands are collectively annexed hereto as Exhibit
6. On August 16, 2017, movants conducted a telephone conference with
Lisandro Diaz at Plaintiff's counsel regarding outstanding discovery responses including
authorizations. Mr. Diaz indicated he would exchange discovery responses shortly.
7. On September 8, 2017, movants conducted a further telephone conference
with Lisandro Diaz at Plaintiff's counsel regarding outstanding discovery responses
including authorizations. Mr. Diaz again indicated he would exchange discovery
responses shortly.
8. On October 16, 2017, the Honorable Paul A. Goetz served allparties with
a Case Scheduling Order. A copy of the Order, which directed all authorizations to be
"C."
provided by December 5, 2017, is annexed as Exhibit
9. On October 30, 2017, good faith correspondence was sent to Plaintiff's
counsel advising that we had not yet received authorizations. Same also requested that
"D."
Plaintiff
specify the dates of confinement. A copy of same is annexed as Exhibit
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10. On or about October 30, 2017, your affirmant's office served a First
Supplemental Notice for Discovery and Inspection. A copy of same is annexed as
"E."
Exhibit
I1. Additional good faith correspoñdeñce was issued to Plaintiff's counsel on
or about December 1, 2017 and January 2, 2018 requesting responses to our discovery
"F."
demands. Copies of same are collectively annexed as Exhibit
12. There has been one prior request for the relief requested herein. Said
motion was denied as the Good Faith Affirmation did not specify the "time, place and
discussed."
nature of the consültâtion and the issues A copy of the Order is annexed as
"G."
Exhibit
13. On August 16, 2018, movants sent additional correspondence to Plaintiff's
"H."
coüñsel requesting responses to our discovery demâñds. Exhibit
14. At 1:56 PM on August 16, 2018, your affirmant called and spoke with
Lissandro Diaz at Plaintiff's counsel's office and advised him again of the outstanding
discovery, and asked that he provide same so we can avoid the costs of making the
motion.
15. To date, the discovery referenced herein remains outstanding.
16. There has been no note of issue filed in this matter.
PLAINTIFFS'
CLAIMS SHOULD BE DISMISSED FOR
FAILING TO PROVIDE DISCOVERY IN VIOLATION OF
THIS HONORABLE COURT'S PRIOR ORDER
Plaintiffs' Defendants'
17. It isobvious that failure to comply with discovery
demands and this Honorable Court's prior Order is willful and calcülãted to frustrate or
thwart disclosure and Defendant's efforts to prepare a defense. It isin this regard that
Plaintiffs'
this Court should dismiss action, or alternatively, deem resolved, in accordance
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with the claims of Defendants EAN and CINTRON, those issues that are relevant with
respect to the information the Plaintiffs have failed to disclose. Alternatively, the Court
should preclude Plaintiffs from offering into evidence at the time of trial,any information
which they have willfully failed and/or refused to provide movant Defendants as
requested. In the further alternative, the Court should compel Plaintiff to provide
outstanding discovery responses.
18. The nature and degree of the penalty to be imposed pursuant to CPLR
§3126 is generally a matter left to the sound discretion of the trial court. h, Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Global Strat Inc., 22 N.Y.3d 877, 976 N.Y.S.2d
678, 999 N.E.2d 156 (2013). CPLR §3126 sets out an illustrative listof sanctions for
failure to disclose. The Court of Appeals has held that the dismissal of a Plaintiff's
complaint is warranted where the Plaintiff failed to comply with discovery demands and
prior Court Orders. Ld. The First Department has also held that where a Plaintiff fails to
comply with discovery, willful and contumacious character of a Plaintiff can be inferred
and dismissal of the Complaint is warranted. h, Jones v Green, 34 AD3d 260 (1st Dept
2006) (The motion court providently exercised itsdiscretion in dismissing the complaint
plaintiffs'
because of long continued pattern of noncompliance with court orders and
discovery demands (CPLR 3126), which gave rise to an inference of willful and
coñtumacious conduct.) The foregoing case law illustrates exactly the situations in the
case at bar.
19. The Defendant's initial discovery demañds included demands, in relevant
part, for authorizations for Plaintiff's treatment providers. The case scheduling Order
reiterated our need and entitlement to the discovery requested therein. To date, Plaintiffs
have ignored these demands, as they have with our First Supplemental Notice for
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Discovery and Inspection.
20. The moving Defendants will be irreconcilably prejudiced in its to
ability
defend this action should Plaintiff fail to exchange even the most basic discovery.
21. In sum, while the Defendants have done their utmost to move this action
forward toward a resolution, this case has languished due to the ongoing contumacious
behavior of the Plaintiffs in failing to provide responses to outstanding discovery. This
Defendants'
failure to comply with the various discovery demands and the preliminary
conference order warrants dismissal of this action.
Plaintiffs'
22. While the moving Defeñdant submits that a dismissal of
Plaintiffs'
Complaint is warranted due to repeated willful and contumacious behavior and
violation of a prior Court Order, if the Court is not inclined to order a dismissal
Defendant submits that Plaintiff should be precluded from offering evidence which they
have failed to disclose at the time of trial,or in the further alternative, compelled to
provide discovery.
23. In good faith your affirmant's office has attempted, on a number of
occasions, to resolve the within motion, but Plaintiff has willfully failed and/or refused to
cooperate, leaving your affirmant with no choice but to make this motion.
WHEREFORE, Defendants EAN HOLDINGS, LLC and CLAUDI CRISTAL
CINTRON respectfully request that this Court issue an Order: i) pursuant to CPLR
Plaintiffs'
§3126, dismiccing action; or alternatively, (ii)pursuant to CPLR §3126,
deeming resolved, in accordance with the claims and/or defenses of Defendant, those
issues which are relevant with respect to the information the Plaintiffs have failed to
disclose; or alternatively, (iii)pursuant to CPLR §3126, precluding Plaintiffs from
offering into evidence at the time of trial,any information which she has willfully failed
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and/or refused to provide Defendant as requested or Ordered herein; or, (iv) pursuant to
CPLR §3124, compelling Plaintiffs to comply with the Defendant's discovery demands
and, (v) granting such other and further relief as to this Court may seem just, proper, and
equitable.
Dated: Farmingdale, New York
September 18, 2018
BR AN R. B ER
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Preview
FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______________________________ _____________________..-------------- X Jamel Vargas, Index No. 154212/17 Plaintiff, -against- AFFIRMATION IN SUPPORT EAN Holdings, LLC, Claudia Cristal Cintron and Lanette B. Woodard, Defendants. -------------------------- --------------------------------X BRIAN R. BERGER, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following to be true under the peñâlties of perjury: 1. I am an associate of the law firm of CARMAN, CALLAHAN & INGHAM, LLP attorneys for the Defeñdâñts EAN HOLDINGS, LLC and CLAUDIA CRISTAL CINTRON in the above-captioned action. In this regard, I am fully familiar with the facts and circumstances of this matter by virtue of the file m±iñtâiñêd in our office in connection with the same. 2. This Affirmation is being made upon information and belief, the source being the file maintained in my office and a study of the applicable law. 3. I submit this Affirmation in support of the within cross-motion for an Order: Plaintiffs' i) pursuant to CPLR §3126, dismissing the action; or alternatively, ii) pursuant to CPLR §3126, deeming resolved in accordance with the claims/defenses of Defendant, those issues which are relevant with respect to the information the Plaintiffs have failed to disclose; or alternatively, iii) pursuant to CPLR §3126, precluding Plaintiffs from offering into evidence at the time of trial,any information that he has willfully failed and/or refused to provide Defendant as requested or Ordered herein, 1 of 6 FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018 iv) pursuant to CPLR §3124, compelling Plaintiffs to comply with Defendant's discovery demands and, v) granting such other and further relief as to this Court may seem just, proper and equitable. PROCEDURAL HISTORY 4. This action is for personal injuries stemming from an accident which allegedly occurred on December 28, 2015. A copy of Plaintiff's Summons and "A." Complaint is annexed hereto as Exhibit 5. On or about May 31, 2017, the cross-moving Defendants served an Answer along with Combined Discovery Demands, including a Demand for authorizations for Plaintiff s medical providers. A copy of moving Defendant's Answer "B." and Combined Discovery Demands are collectively annexed hereto as Exhibit 6. On August 16, 2017, movants conducted a telephone conference with Lisandro Diaz at Plaintiff's counsel regarding outstanding discovery responses including authorizations. Mr. Diaz indicated he would exchange discovery responses shortly. 7. On September 8, 2017, movants conducted a further telephone conference with Lisandro Diaz at Plaintiff's counsel regarding outstanding discovery responses including authorizations. Mr. Diaz again indicated he would exchange discovery responses shortly. 8. On October 16, 2017, the Honorable Paul A. Goetz served allparties with a Case Scheduling Order. A copy of the Order, which directed all authorizations to be "C." provided by December 5, 2017, is annexed as Exhibit 9. On October 30, 2017, good faith correspondence was sent to Plaintiff's counsel advising that we had not yet received authorizations. Same also requested that "D." Plaintiff specify the dates of confinement. A copy of same is annexed as Exhibit 2 of 6 FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018 10. On or about October 30, 2017, your affirmant's office served a First Supplemental Notice for Discovery and Inspection. A copy of same is annexed as "E." Exhibit I1. Additional good faith correspoñdeñce was issued to Plaintiff's counsel on or about December 1, 2017 and January 2, 2018 requesting responses to our discovery "F." demands. Copies of same are collectively annexed as Exhibit 12. There has been one prior request for the relief requested herein. Said motion was denied as the Good Faith Affirmation did not specify the "time, place and discussed." nature of the consültâtion and the issues A copy of the Order is annexed as "G." Exhibit 13. On August 16, 2018, movants sent additional correspondence to Plaintiff's "H." coüñsel requesting responses to our discovery demâñds. Exhibit 14. At 1:56 PM on August 16, 2018, your affirmant called and spoke with Lissandro Diaz at Plaintiff's counsel's office and advised him again of the outstanding discovery, and asked that he provide same so we can avoid the costs of making the motion. 15. To date, the discovery referenced herein remains outstanding. 16. There has been no note of issue filed in this matter. PLAINTIFFS' CLAIMS SHOULD BE DISMISSED FOR FAILING TO PROVIDE DISCOVERY IN VIOLATION OF THIS HONORABLE COURT'S PRIOR ORDER Plaintiffs' Defendants' 17. It isobvious that failure to comply with discovery demands and this Honorable Court's prior Order is willful and calcülãted to frustrate or thwart disclosure and Defendant's efforts to prepare a defense. It isin this regard that Plaintiffs' this Court should dismiss action, or alternatively, deem resolved, in accordance 3 of 6 FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018 with the claims of Defendants EAN and CINTRON, those issues that are relevant with respect to the information the Plaintiffs have failed to disclose. Alternatively, the Court should preclude Plaintiffs from offering into evidence at the time of trial,any information which they have willfully failed and/or refused to provide movant Defendants as requested. In the further alternative, the Court should compel Plaintiff to provide outstanding discovery responses. 18. The nature and degree of the penalty to be imposed pursuant to CPLR §3126 is generally a matter left to the sound discretion of the trial court. h, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Global Strat Inc., 22 N.Y.3d 877, 976 N.Y.S.2d 678, 999 N.E.2d 156 (2013). CPLR §3126 sets out an illustrative listof sanctions for failure to disclose. The Court of Appeals has held that the dismissal of a Plaintiff's complaint is warranted where the Plaintiff failed to comply with discovery demands and prior Court Orders. Ld. The First Department has also held that where a Plaintiff fails to comply with discovery, willful and contumacious character of a Plaintiff can be inferred and dismissal of the Complaint is warranted. h, Jones v Green, 34 AD3d 260 (1st Dept 2006) (The motion court providently exercised itsdiscretion in dismissing the complaint plaintiffs' because of long continued pattern of noncompliance with court orders and discovery demands (CPLR 3126), which gave rise to an inference of willful and coñtumacious conduct.) The foregoing case law illustrates exactly the situations in the case at bar. 19. The Defendant's initial discovery demañds included demands, in relevant part, for authorizations for Plaintiff's treatment providers. The case scheduling Order reiterated our need and entitlement to the discovery requested therein. To date, Plaintiffs have ignored these demands, as they have with our First Supplemental Notice for 4 of 6 FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018 Discovery and Inspection. 20. The moving Defendants will be irreconcilably prejudiced in its to ability defend this action should Plaintiff fail to exchange even the most basic discovery. 21. In sum, while the Defendants have done their utmost to move this action forward toward a resolution, this case has languished due to the ongoing contumacious behavior of the Plaintiffs in failing to provide responses to outstanding discovery. This Defendants' failure to comply with the various discovery demands and the preliminary conference order warrants dismissal of this action. Plaintiffs' 22. While the moving Defeñdant submits that a dismissal of Plaintiffs' Complaint is warranted due to repeated willful and contumacious behavior and violation of a prior Court Order, if the Court is not inclined to order a dismissal Defendant submits that Plaintiff should be precluded from offering evidence which they have failed to disclose at the time of trial,or in the further alternative, compelled to provide discovery. 23. In good faith your affirmant's office has attempted, on a number of occasions, to resolve the within motion, but Plaintiff has willfully failed and/or refused to cooperate, leaving your affirmant with no choice but to make this motion. WHEREFORE, Defendants EAN HOLDINGS, LLC and CLAUDI CRISTAL CINTRON respectfully request that this Court issue an Order: i) pursuant to CPLR Plaintiffs' §3126, dismiccing action; or alternatively, (ii)pursuant to CPLR §3126, deeming resolved, in accordance with the claims and/or defenses of Defendant, those issues which are relevant with respect to the information the Plaintiffs have failed to disclose; or alternatively, (iii)pursuant to CPLR §3126, precluding Plaintiffs from offering into evidence at the time of trial,any information which she has willfully failed 5 of 6 FILED: NEW YORK COUNTY CLERK 09/18/2018 04:29 PM INDEX NO. 154212/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/18/2018 and/or refused to provide Defendant as requested or Ordered herein; or, (iv) pursuant to CPLR §3124, compelling Plaintiffs to comply with the Defendant's discovery demands and, (v) granting such other and further relief as to this Court may seem just, proper, and equitable. Dated: Farmingdale, New York September 18, 2018 BR AN R. B ER 6 of 6