Preview
FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------- ¬----------------------X
DAJ REALTY, LLC
AFFIRMATION OF
Plaintiff '
JAMES H. ROWLAND
- against -
37 CROSBY REALTY LLC, NEW YORK
CONSTRUCTION & RENOVATION, INC.,
ENGINEERING GROUP ASSOCIATES, P.C.,
GENNADY SARATOVSKY, P.E., INTEGRITY
CONSULTING SERVICE, INC., ALEKSANDER
LEVIN, P.E., BRENT M. PORTER ARCHITECTS
AND ASSOCIATES, BRENT M. PORTER
ARCHITECT, PLLC and BRENT PORTER, R.A.,
Defendants
---- -------------- X
BRENT M. PORTER ARCHITECTS AND
ASSOCIATES, BRENT M. PORTER ARCHITECT,
PLLC and BRENT PORTER, R.A.,
- against -
ISSAC & STERN ARCHITECTS, P.C.,
Third-Party Defendant.
------------------------------ ----------------------------X
JAMES H. ROWLAND, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following to be true with full knowledge of the penalties of
perjury:
1. I am a partner at the law firm of Zetlin & DeChiara, LLP, attorneys for Plaintiff
DAJ Realty, LLC ("DAJ"), in the above-referenced action. I am fully familiar with the facts
contained in this affirmation which is submitted in support of DAJ's motion, pursuant to CPLR §
2004, for an Order: (a) extending the time for Plaintiff to file a Note of Issue for an additional 120
days from the date of the Court's Order and directing the parties to complete all depositions and
discovery within the period of the extension; or in the alternative, (b) directing Plaintiff to file a
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Note of Issue and directing the parties to complete all outstanding discovery within 120 days of
the filing of the Note of Issue.
2. Pursuant to the Court's January 7, 2020 Order, Plaintiff was expressly permitted to
file a motion to extend the Note of Issue deadline of February 29, 2020 and compel discovery.
(Exhibit A)
3. DAJ is the owner of the property located at 35 Crosby Street, New York, New York
("35 Crosby"). In this action, DAJ seeks recovery for significant damage caused to 35 Crosby as
a result of construction performed at the adjacent building located at 37 Crosby Street, New York,
New York ("37 Crosby")(the "37 Crosby Project").
4. Plaintiff filed itsAmended Complaint in this action on August 11, 2017 (Exhibit B
hereto). The Amended Complaint asserted claims against: (a) defendant 37 Crosby Realty LLC
("37 Crosby Realty") who was the owner of 37 Crosby at the time that 35 Crosby was damaged
as a result of the 37 Crosby Project; (b) New York Construction & Renovation, Inc. ("NYC&R"),
the general contractor for the 37 Crosby Project; (c) Gennady Saratovsky. P.E. and Engineering
Group Associates, P.C. ("EGA"), the engineer for the 37 Crosby Project; (d) Alexansandr Levin,
P.E. and Integrity Consulting Service, Inc. ("IGS"), the engineer retained to perform certain
controlled inspections at the 37 Crosby Project; and (e) Brent M. Porter Architects and Associates,
Brent M. Porter Architect, PLLC and Brent Porter, RA (collectively "Porter"), the architect for the
37 Crosby Project.
5. Counsel for Porter filed a request for a preliminary conference on November 20,
2017.
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Plaintiff's Efforts to Secure Appearances of Certain Dcfcndants
6. Defendants Gennady Saratovsky, EGA and NYC&R were served with the
Amended Complaint through the Secretary of State on August 17, 2017.
7. On December 18, 2017, in conformance with CPLR § 3215(g), Plaintiff served
Notices of Additional Mailings on defendants Gennady Saratovsky, EGA and NYC&R had not
yet appeared in the action. They were sent to the address listed by the New York State Department
of State website as the address for service of process. (Exhibit C)
8. In February 2018, your affirmant did an internet search and discovered that, on
21st
EGA's website, they provided a different office address for EGA and Saratovsky at 19 West
Street, Suite 1103, New York, New York 10010.
9. A similar internet search revealed a different address for NYC&R at 992 Coney
Island Avenue, Brooklyn, New York 11230.
10. Neither of these address were the address on record at the Department of State.
11. In an effort to have the Defaulting Defendants respond and appear in the action, on
February 23, 2018, your affirmant served additional Notices of Additional Mailing on NYC&R,
Gennady Saratovsky and EGA at the address obtained from its internet sites. (Exhibit D hereto)
12. A preliminary conference was held in this matter on February 26, 2018. At the
conference, your affirmant advised the Court that the defendants Gennady Saratovsky, EGA and
NYC&R had not yet appeared in the action, that we had sent out Notices of Additional Mailing
and requested that the conference be adjourned to allow for either a response to the second Notice
of Additional Mailing sent out on February 23, 2018 or to allow my office to file a default motion.
The Court did not grant the request and instead directed the appearing parties to enter into a
preliminary conference order. (Exhibit E)
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13. Defendants Gennady Saratovsky, P.E. and EGA appeared in the action by filing
their answer on June 4, 2018.
14. Defendant NYC&R appeared in the action by filing its answer on July 13, 2018.
15. The first discovery conference in which all defendants appeared was held on
November 5, 2018. (Exhibit F)
16. Following the November 5, 2018 conference, Plaintiff produced over 50,000 pages
defendants'
of Bates Stamped documents in response to the discovery requests.
17. Pursuant to the February 25, 2019 compliance conference order, Plaintiff was to be
produced for deposition on April 11, 2019. (Exhibit G)
18. On April 26, 2019, Porter commenced a third-party action against third-party
defendant Issac & Stern Architects, P.C. ("Issac & Stern"). In itsthird-party complaint, Porter
alleged that Issac and Stern was the architect for the 37 Crosby Project and that Porter was an
employee of Issac & Stern in connection with the 37 Crosby Project. (Exhibit H)
19. Given the commencement of the third-party action, the parties agreed not to go
forward with depositions until Issac & Stern appeared to avoid having to conduct multiple
depositions of the same parties.
20. Issac and Stern did not appear in response to the third-party action and Porter filed
a motion for a default judgment on August 14, 2019. (Exhibit I)
21. The default motion, which was returnable in Room 130 on September 16, 2019.
22. At the September 16, 2019 conference, the Court was advised of the pending
motion for default judgment against Issac and Stern, which had not yet been scheduled for oral
argument. The September 16, 2019 conference order provided that Plaintiff was to appear for
deposition on or before December 16, 2019, as the parties believe the default motion would be
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argued and decided by then, and all other depositions would be scheduled at the December 23,
2019 conference. (Exhibit J)
23. The default judgment motion was scheduled for oral argument on December 23,
2019. Prior to the that date, your affirmant reached out to Issac and Stern, which is still
a practicing
architectural firm, to advise of the third-party action and pending default motion. (Exhibit K)
24. I also advised counsel for Porter about my communications and provided his
contact information to Issac and Stern.
25. On December 20, 2019, counsel for Porter advised that he had spoken with
someone from Issac and Stern and that he had agreed to adjourn the motion in order to allow Issac
and Stern to respond.
26. On December 23, 2019, the parties appeared for a conference and the default
motion. The Court was advised of the communications between Porter's counsel and Issac and
Stern and the parties requested an adjournment of the conference and the motion.
27. The Court agreed to adjourn both the conference and motion to January 9, 2020.
28. Apparently, in the period between December 23, 2019 and January 9, 2020, Issac
and Stern spoke to defendant Brent Porter directly and Mr. Porter agreed, without consulting
counsel, to sign a general release in favor of Issac and Stern.
29. As a result, Porter's counsel had to withdraw the default motion against Issac and
Stern. To date, however, there has been no discontimmnce of the third-party action filed with the
Court.
30. By Order dated January 7, 2020, the Court directed Plaintiff to file a Note of Issue
by February 29, 2020. The Order also expressly provided that Plaintiff may move to extend the
Note of Issue date or compel discovery if necessary. (Exhibit A)
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The Court Should Extend Plaintiff's Time to File a Note of Issue
31. CPLR § 2004 provides that, except where otherwise prescribed by law, the Court
may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may
be just and upon good cause shown, whether the application is made before or after the expiration
of the time fixed.
32. In its decision in Tewari v. Tsoutsouras, 75 N.Y.2d 1 (1989), the Court of Appeals
held that CPLR § 2004 vests the trial court with the discretion to extend time to perform any act.
The Tewari Court further noted that the court may properly consider factors such as the length of
delay, whether the opposing party has been prejudiced by the delay and the reason given for the
delay. Tewari, 75 NY 2d at 577.
33. In this case, Plaintiff made multiple good faith efforts to ensure the appearances of
all defendants in this action as evidenced by Exhibits C and D. Plaintiff also took efforts to seek
the appearance of third-party defendant in this action. (Ex. K)
34. NYC&R filed an answer in this action on July 13, 2018 and as of that date, all
defendants had appeared in the action,
35. The first court discovery conference conducted with all defendants occurred on
November 8, 2018. The parties exchanged discovery and document productions, including over
50,000 pages of documents produced by Plaintiff, following the November 8, 2018 conference.
36. Pursuant to the February 25, 2019 compliance conference order, Plaintiff was to
appear for a deposition by April 11, 2019. However, prior to that date, defendant Porter
commenced a third-party action against Issac and Stern.
37. The parties agreed that depositions would be adjourned pending an appearañce by
Issac and Stern or a resolution of the default judgement motion.
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38. The parties advised the Court's law secretary of the third-party action and the
motion for a default judgment at the September 16, 2019 conference. Anticipating that the motion
would be heard within a few weeks of its submission in Room 130 on September 16, 2019, the
parties agreed that Plaintiff would appear for deposition by December 16, 2019 and the deposition
of the defendants would be scheduled at the December 23, 2019 conference. (Ex. J)
39. The motion default judgment motion was schedule for oral argument on December
23, 2019.
40. In an effort to move the matter forward, your affirmant reached out to Issac and
Stern directly to determine ifthey were aware of the third-party action and the motion for a default.
(Ex. K) I also provided Issac and Stern with counsel for Porter's contact information.
41. Plaintiff and the defendants had not yet been produced for deposition to avoid the
need for multiple depositions of parties. This was discussed with allcounsel and the Court's Law
Clerk at the Court conferences and no one ever objected to the parties agreemeñt to allow for Issac
and Stern to either appear or the default motion to be resolved prior to scheduling depositions.
Plaintiff's Counsel Cannot Execute a Certificate of Readiness at this Time
42. As this Court is aware, a Certificate of Readiness is required to be filed with a Note
of Issue.
43. The Certificate of Readiness form (Exhibit L) requires an attorney to affirm that all
discovery proceedings now known to be necessary are completed or waived, that there are no
outstanding requests for discovery and that there has been compliance will allprior orders issued.
44. Your affirmant is unable to execute a Certificate of Readiness in this matter at this
time as I cannot affirm that: (a) discovery is complete and or has been waived by other parties;
(b) that there are no outstanding discovery requests as the parties have served deposition notices;
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and (c) that there has been compliance with allprior orders. Any such claim would be false and
would result in the striking of any accompanying Note of Issue.
45. Neither Plaintiff nor the Defendants have waived their rights to complete discovery
and conduct depositions in this matter.
46. As evidenced by this affirmation and the attached documents, Plaintiff has always
sought to have this litigation proceed forward with all necessary parties participation to avoid
duplicity of discovery and delays in the matter.
47. As it now appears that the third-party claims against Issac and Stern have been
resolved and the Plaintiff and defeñdañts can proceed with depositions and complete discovery.
48. As such, and as permitted by the Court's January 7, 2020 Order, Plaintiff seeks an
extension of time to file a Note of Issue for 120 days from the date of the Court's determination of
this motion and to compel the parties to complete discovery and depositions within the 120 days.
49. In the alternative, Plaintiff seeks and Order from this Court directing that Plaintiff
file a Note of Issue and further directing the parties to complete all discovery within 120 days of
the filing of the Note of Issue.
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WHEREFORE, it is respectfully requested that an Order be issued: (a) for an Order,
pursuant to § 2004 of the Civil Practice Law and Rules, for an order extending the time for Plaintiff
to file a Note of Issue for an additional 120 days and directing the parties to complete depositions
and discovery within the period of time of such extension; or (b) in the alternative, directing
Plaintiff to file a Note of Issue and directing the parties to complete all outstanding discovery
within 120 days of the filing of the Note of Issue, and (c) for such further relief as may be deemed
just and proper.
Dated: New York, New York
February 27, 2020
James H. Rowland
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FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------- ¬----------------------X DAJ REALTY, LLC AFFIRMATION OF Plaintiff ' JAMES H. ROWLAND - against - 37 CROSBY REALTY LLC, NEW YORK CONSTRUCTION & RENOVATION, INC., ENGINEERING GROUP ASSOCIATES, P.C., GENNADY SARATOVSKY, P.E., INTEGRITY CONSULTING SERVICE, INC., ALEKSANDER LEVIN, P.E., BRENT M. PORTER ARCHITECTS AND ASSOCIATES, BRENT M. PORTER ARCHITECT, PLLC and BRENT PORTER, R.A., Defendants ---- -------------- X BRENT M. PORTER ARCHITECTS AND ASSOCIATES, BRENT M. PORTER ARCHITECT, PLLC and BRENT PORTER, R.A., - against - ISSAC & STERN ARCHITECTS, P.C., Third-Party Defendant. ------------------------------ ----------------------------X JAMES H. ROWLAND, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true with full knowledge of the penalties of perjury: 1. I am a partner at the law firm of Zetlin & DeChiara, LLP, attorneys for Plaintiff DAJ Realty, LLC ("DAJ"), in the above-referenced action. I am fully familiar with the facts contained in this affirmation which is submitted in support of DAJ's motion, pursuant to CPLR § 2004, for an Order: (a) extending the time for Plaintiff to file a Note of Issue for an additional 120 days from the date of the Court's Order and directing the parties to complete all depositions and discovery within the period of the extension; or in the alternative, (b) directing Plaintiff to file a 1 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 Note of Issue and directing the parties to complete all outstanding discovery within 120 days of the filing of the Note of Issue. 2. Pursuant to the Court's January 7, 2020 Order, Plaintiff was expressly permitted to file a motion to extend the Note of Issue deadline of February 29, 2020 and compel discovery. (Exhibit A) 3. DAJ is the owner of the property located at 35 Crosby Street, New York, New York ("35 Crosby"). In this action, DAJ seeks recovery for significant damage caused to 35 Crosby as a result of construction performed at the adjacent building located at 37 Crosby Street, New York, New York ("37 Crosby")(the "37 Crosby Project"). 4. Plaintiff filed itsAmended Complaint in this action on August 11, 2017 (Exhibit B hereto). The Amended Complaint asserted claims against: (a) defendant 37 Crosby Realty LLC ("37 Crosby Realty") who was the owner of 37 Crosby at the time that 35 Crosby was damaged as a result of the 37 Crosby Project; (b) New York Construction & Renovation, Inc. ("NYC&R"), the general contractor for the 37 Crosby Project; (c) Gennady Saratovsky. P.E. and Engineering Group Associates, P.C. ("EGA"), the engineer for the 37 Crosby Project; (d) Alexansandr Levin, P.E. and Integrity Consulting Service, Inc. ("IGS"), the engineer retained to perform certain controlled inspections at the 37 Crosby Project; and (e) Brent M. Porter Architects and Associates, Brent M. Porter Architect, PLLC and Brent Porter, RA (collectively "Porter"), the architect for the 37 Crosby Project. 5. Counsel for Porter filed a request for a preliminary conference on November 20, 2017. 2 2 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 Plaintiff's Efforts to Secure Appearances of Certain Dcfcndants 6. Defendants Gennady Saratovsky, EGA and NYC&R were served with the Amended Complaint through the Secretary of State on August 17, 2017. 7. On December 18, 2017, in conformance with CPLR § 3215(g), Plaintiff served Notices of Additional Mailings on defendants Gennady Saratovsky, EGA and NYC&R had not yet appeared in the action. They were sent to the address listed by the New York State Department of State website as the address for service of process. (Exhibit C) 8. In February 2018, your affirmant did an internet search and discovered that, on 21st EGA's website, they provided a different office address for EGA and Saratovsky at 19 West Street, Suite 1103, New York, New York 10010. 9. A similar internet search revealed a different address for NYC&R at 992 Coney Island Avenue, Brooklyn, New York 11230. 10. Neither of these address were the address on record at the Department of State. 11. In an effort to have the Defaulting Defendants respond and appear in the action, on February 23, 2018, your affirmant served additional Notices of Additional Mailing on NYC&R, Gennady Saratovsky and EGA at the address obtained from its internet sites. (Exhibit D hereto) 12. A preliminary conference was held in this matter on February 26, 2018. At the conference, your affirmant advised the Court that the defendants Gennady Saratovsky, EGA and NYC&R had not yet appeared in the action, that we had sent out Notices of Additional Mailing and requested that the conference be adjourned to allow for either a response to the second Notice of Additional Mailing sent out on February 23, 2018 or to allow my office to file a default motion. The Court did not grant the request and instead directed the appearing parties to enter into a preliminary conference order. (Exhibit E) 3 3 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 13. Defendants Gennady Saratovsky, P.E. and EGA appeared in the action by filing their answer on June 4, 2018. 14. Defendant NYC&R appeared in the action by filing its answer on July 13, 2018. 15. The first discovery conference in which all defendants appeared was held on November 5, 2018. (Exhibit F) 16. Following the November 5, 2018 conference, Plaintiff produced over 50,000 pages defendants' of Bates Stamped documents in response to the discovery requests. 17. Pursuant to the February 25, 2019 compliance conference order, Plaintiff was to be produced for deposition on April 11, 2019. (Exhibit G) 18. On April 26, 2019, Porter commenced a third-party action against third-party defendant Issac & Stern Architects, P.C. ("Issac & Stern"). In itsthird-party complaint, Porter alleged that Issac and Stern was the architect for the 37 Crosby Project and that Porter was an employee of Issac & Stern in connection with the 37 Crosby Project. (Exhibit H) 19. Given the commencement of the third-party action, the parties agreed not to go forward with depositions until Issac & Stern appeared to avoid having to conduct multiple depositions of the same parties. 20. Issac and Stern did not appear in response to the third-party action and Porter filed a motion for a default judgment on August 14, 2019. (Exhibit I) 21. The default motion, which was returnable in Room 130 on September 16, 2019. 22. At the September 16, 2019 conference, the Court was advised of the pending motion for default judgment against Issac and Stern, which had not yet been scheduled for oral argument. The September 16, 2019 conference order provided that Plaintiff was to appear for deposition on or before December 16, 2019, as the parties believe the default motion would be 4 4 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 argued and decided by then, and all other depositions would be scheduled at the December 23, 2019 conference. (Exhibit J) 23. The default judgment motion was scheduled for oral argument on December 23, 2019. Prior to the that date, your affirmant reached out to Issac and Stern, which is still a practicing architectural firm, to advise of the third-party action and pending default motion. (Exhibit K) 24. I also advised counsel for Porter about my communications and provided his contact information to Issac and Stern. 25. On December 20, 2019, counsel for Porter advised that he had spoken with someone from Issac and Stern and that he had agreed to adjourn the motion in order to allow Issac and Stern to respond. 26. On December 23, 2019, the parties appeared for a conference and the default motion. The Court was advised of the communications between Porter's counsel and Issac and Stern and the parties requested an adjournment of the conference and the motion. 27. The Court agreed to adjourn both the conference and motion to January 9, 2020. 28. Apparently, in the period between December 23, 2019 and January 9, 2020, Issac and Stern spoke to defendant Brent Porter directly and Mr. Porter agreed, without consulting counsel, to sign a general release in favor of Issac and Stern. 29. As a result, Porter's counsel had to withdraw the default motion against Issac and Stern. To date, however, there has been no discontimmnce of the third-party action filed with the Court. 30. By Order dated January 7, 2020, the Court directed Plaintiff to file a Note of Issue by February 29, 2020. The Order also expressly provided that Plaintiff may move to extend the Note of Issue date or compel discovery if necessary. (Exhibit A) 5 5 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 The Court Should Extend Plaintiff's Time to File a Note of Issue 31. CPLR § 2004 provides that, except where otherwise prescribed by law, the Court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application is made before or after the expiration of the time fixed. 32. In its decision in Tewari v. Tsoutsouras, 75 N.Y.2d 1 (1989), the Court of Appeals held that CPLR § 2004 vests the trial court with the discretion to extend time to perform any act. The Tewari Court further noted that the court may properly consider factors such as the length of delay, whether the opposing party has been prejudiced by the delay and the reason given for the delay. Tewari, 75 NY 2d at 577. 33. In this case, Plaintiff made multiple good faith efforts to ensure the appearances of all defendants in this action as evidenced by Exhibits C and D. Plaintiff also took efforts to seek the appearance of third-party defendant in this action. (Ex. K) 34. NYC&R filed an answer in this action on July 13, 2018 and as of that date, all defendants had appeared in the action, 35. The first court discovery conference conducted with all defendants occurred on November 8, 2018. The parties exchanged discovery and document productions, including over 50,000 pages of documents produced by Plaintiff, following the November 8, 2018 conference. 36. Pursuant to the February 25, 2019 compliance conference order, Plaintiff was to appear for a deposition by April 11, 2019. However, prior to that date, defendant Porter commenced a third-party action against Issac and Stern. 37. The parties agreed that depositions would be adjourned pending an appearañce by Issac and Stern or a resolution of the default judgement motion. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 38. The parties advised the Court's law secretary of the third-party action and the motion for a default judgment at the September 16, 2019 conference. Anticipating that the motion would be heard within a few weeks of its submission in Room 130 on September 16, 2019, the parties agreed that Plaintiff would appear for deposition by December 16, 2019 and the deposition of the defendants would be scheduled at the December 23, 2019 conference. (Ex. J) 39. The motion default judgment motion was schedule for oral argument on December 23, 2019. 40. In an effort to move the matter forward, your affirmant reached out to Issac and Stern directly to determine ifthey were aware of the third-party action and the motion for a default. (Ex. K) I also provided Issac and Stern with counsel for Porter's contact information. 41. Plaintiff and the defendants had not yet been produced for deposition to avoid the need for multiple depositions of parties. This was discussed with allcounsel and the Court's Law Clerk at the Court conferences and no one ever objected to the parties agreemeñt to allow for Issac and Stern to either appear or the default motion to be resolved prior to scheduling depositions. Plaintiff's Counsel Cannot Execute a Certificate of Readiness at this Time 42. As this Court is aware, a Certificate of Readiness is required to be filed with a Note of Issue. 43. The Certificate of Readiness form (Exhibit L) requires an attorney to affirm that all discovery proceedings now known to be necessary are completed or waived, that there are no outstanding requests for discovery and that there has been compliance will allprior orders issued. 44. Your affirmant is unable to execute a Certificate of Readiness in this matter at this time as I cannot affirm that: (a) discovery is complete and or has been waived by other parties; (b) that there are no outstanding discovery requests as the parties have served deposition notices; 7 7 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 and (c) that there has been compliance with allprior orders. Any such claim would be false and would result in the striking of any accompanying Note of Issue. 45. Neither Plaintiff nor the Defendants have waived their rights to complete discovery and conduct depositions in this matter. 46. As evidenced by this affirmation and the attached documents, Plaintiff has always sought to have this litigation proceed forward with all necessary parties participation to avoid duplicity of discovery and delays in the matter. 47. As it now appears that the third-party claims against Issac and Stern have been resolved and the Plaintiff and defeñdañts can proceed with depositions and complete discovery. 48. As such, and as permitted by the Court's January 7, 2020 Order, Plaintiff seeks an extension of time to file a Note of Issue for 120 days from the date of the Court's determination of this motion and to compel the parties to complete discovery and depositions within the 120 days. 49. In the alternative, Plaintiff seeks and Order from this Court directing that Plaintiff file a Note of Issue and further directing the parties to complete all discovery within 120 days of the filing of the Note of Issue. 8 8 of 9 FILED: NEW YORK COUNTY CLERK 02/27/2020 05:39 PM INDEX NO. 154824/2017 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 02/27/2020 WHEREFORE, it is respectfully requested that an Order be issued: (a) for an Order, pursuant to § 2004 of the Civil Practice Law and Rules, for an order extending the time for Plaintiff to file a Note of Issue for an additional 120 days and directing the parties to complete depositions and discovery within the period of time of such extension; or (b) in the alternative, directing Plaintiff to file a Note of Issue and directing the parties to complete all outstanding discovery within 120 days of the filing of the Note of Issue, and (c) for such further relief as may be deemed just and proper. Dated: New York, New York February 27, 2020 James H. Rowland 9 9 of 9