Preview
FILED: NEW YORK COUNTY CLERK 06/08/2021
07/16/2021 03:00
04:18 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 95
133 RECEIVED NYSCEF: 06/08/2021
07/16/2021
SUPREME COURT OF THE STATE OF NEW YORK
COLTNTY OF NEW YORK
DARRYL NOWAK, Index No.: 154000/2018
Plaintiff, PLAINTIFF'S
AFFIDAVIT IN
-against- OPPOSITION TO
DEFENDANT'S
SEA WOLF MARINE TRANSPORTATION, LLC, MOTION FOR
WITTICH BROTHERS MARINE, INC., ANd WEEKS PENALTIES
MARINE,INC., PURSUANT TO
c.P.L.R. $3126
Defendants
STATE OF NEW YORK )
COUNTY OF NEW YORK) ss:
JOSEPH P. NAPOLI, an attorney duly admitted to practice law before the Courts of the
State of New York, does hereby affirm the following facts under penalty of perjury:
I . I am a senior partner of the firm Napoli Shkolnik PLLC and the attomey for plaintiff
Darryl Nowak.
2. I respectfully submit this affidavit in opposition to the motion dated June 2,2021,
made by attorney RONALD BETANCOURT, attoniey for defendant WEEKS
MARINE,INC ("WEEKS").
3. I am fully familiar with the facts and circumstances surrounding this matter.
4. This motion should be denied because the Plaintiff has already successfully
complied with both this Court's prior orders and the New York Civil Practice Law
and Rules (hereafter "C.P.L.R."). Defendant's Motion for Penalties Pursuant to
C.P.L.R. $3126 serves little practical use and instead further impedes swift
adjudication in this matter.
t NAPOTI
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FILED: NEW YORK COUNTY CLERK 06/08/2021
07/16/2021 03:00
04:18 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 95
133 RECEIVED NYSCEF: 06/08/2021
07/16/2021
5 It has been long been held that bills of particular are not to be employed as a method
of obtaining evidence. Yardarm Club Hotel, Inc. v. Molgan,22 A.D.2d700,253
N.Y.S.2d 920 (2d Dep't 1964). The purpose, instead, of a bill of particulars is to
amplify the pleadings, limit tlre proof, and prevent surprise at trial. (See Miccarelli
v Fleiss,2l9 AD2d 469,410,631 NYS2d 159 (lst Dep't 1995). To reduce
arguments and court applications, the New York State legislature has specifically
codified the items that may be demanded in a bill of particular. C.P.L.R. $ 3043.
Here, an analysis of whether Defendant is entitled to the particulars demanded of
Plaintiff under C.P.L.R. $ 3043 is not necessary because Plaintiff has already
complied with both this Court's orders and the demands made by Defendant.
6. While Defendant may be unsatisfied with the answers plovided in the Supplemental
Bill of Particulars, this alone does not entitle Defendant to relief. In Paragraph 10
of his motion, Mr. Betancourt alleges that Plaintiff has failed to provide requested
authorizations. Movant's Motion. In Paragraph 14 of his motion, Mr. Betancourt
argues that this Court should strike Plaintiff s complaint or, in the alternative, order
Plaintiff to produce the requested authorizations within five (5) days due to alleged
Plaintiff non-cooperation with his demands. Movant's Motion. This is not
necessary as Plaintiff has repeatedly responded to Defendant's demands regarding
authorizations. As requested, Plaintiff has provided authorizations for Plaintiff s
health information pursuant to HIPAA. Movant's Exhibit G.
l In Paraglaph 18 of his motion, Mr. Betancourt argues that Plaintiffs complaint
should be stricken, or in the alternative, plaintiff should be precluded fiom claiming
special damages due to Plaintiffs response regarding lost eat'nings in his
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FILED: NEW YORK COUNTY CLERK 06/08/2021
07/16/2021 03:00
04:18 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 95
133 RECEIVED NYSCEF: 06/08/2021
07/16/2021
Supplemental Bill of Patticulars. Movant's Motion. This rnotion should be denied
because the striking of a party's pleadings should not be imposed except in instances
where the party seeking disclosure demonstrates conclusively that the failure to
disclose was willful, contumacious or due to bad faith." (Hassan v Manhattan &
Bronx Sut''face Tr. Operating Auth., 286 AD2d 303,304,730 N.Y.S.2d 286 [st
Dept 2001]). Here, Mr. Betancourt has produced no such evidence that Plaintiff s
failure to disclose amounts of lost earnings and other expenses was willful,
contumacious, or due to bad faith. Plaintiff is currently in the process of
detennining the amount of earnings lost and as was stated in his Verified Bill of
Particulals, such amount will be provided to Defendant at such time when they have
been determined. Exhibit A.
8 In Paragraph 20 of his motion, Mr. Betancoult argues that Plaintiff s complaint
should be stricken or, in the altemative, Plaintiff should be precluded fi'om claiming
maintenance as an element of his damages due to Plaintiff s response regarding
room and board costs in his Supplemental Bill of Particulars. Movant's Motion.
Once again, the standard that should be applied by the Court is the Hassan standard,
which requires the palty seeking disclosure to demonstrate that the failure to
disclose was willful, contumacious, or due to bad faith. Here, Plaintiff has provided
Defendant with both his daily and monthly costs of room and board in his Verified
Bill of Particular and Supplemental Bill of Particular. Exhibit A and Movant's
Exhibit D. Defendant may demand greater specificity regarding these costs as part
of his discovery demands, but this in no way demonstrates that Plaintiff has
committed a willful, contumacious, bad faith failure to disclose.
t I'lAP0Ll
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FILED: NEW YORK COUNTY CLERK 06/08/2021
07/16/2021 03:00
04:18 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 95
133 RECEIVED NYSCEF: 06/08/2021
07/16/2021
9 In Paragraph 22 of his motion, Mr. Betancourt argues that Plaintiff s complaint
should be stricken or, in the alternative, plaintiff should be precluded fi'onr claiming
damages for Weeks' alleged bad faith refusal to provide maintenance and cure as
am element of his damages. Movant's Motion. Mr. Betancourt bases this argument
on documents that wele attached by Plaintiff to his Verified Bill of Particular.
Exhibit A. Defendant is free to provide the specific authorizations he is demanding
ifhe feels that the information provided by Plaintiff is not relevant to his dernand.
This alone, however, does not prove that Plaintiff has committed a willful,
contumacious, or bad faith failure to disclose.
10 For the foregoing reasons, this Court should deny Mr. Betancourt's motion fol an
order granting penalties pursuant to C.P.L.R. $3126.
11 I certiS, that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to
punishment.
Dated: June 8, 2021
New York, New York
t I'IAPOTI
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FILED: NEW YORK COUNTY CLERK 06/08/2021
07/16/2021 03:00
04:18 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 95
133 RECEIVED NYSCEF: 06/08/2021
07/16/2021
Respectfully,
NAPOLI SHK
Joseph Napoli, Esq
Attorneys for Plaintiff (s)
360 Lexington Avenue, l ltl'Floor
New York, New York 10017
(212) 397-t000
To BETANCOURT, VAN HEMMEN, GRECO & KENYON LLC
Attorneys for Defendant Weeks Marine, Inc.
75 South Broadway - 4'l'Floor
White Plains, New York 10601
MAHONEY & KEANE, LLP
Attorneys for Defendants
Sea Wolf Marine Transportation, LLC
and Wittich Brothers Maline, Inc.
61 Broadway, Suite 905
New York, New York 10005
t NAPOLI
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Preview
FILED: NEW YORK COUNTY CLERK 06/08/2021 07/16/2021 03:00 04:18 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 95 133 RECEIVED NYSCEF: 06/08/2021 07/16/2021 SUPREME COURT OF THE STATE OF NEW YORK COLTNTY OF NEW YORK DARRYL NOWAK, Index No.: 154000/2018 Plaintiff, PLAINTIFF'S AFFIDAVIT IN -against- OPPOSITION TO DEFENDANT'S SEA WOLF MARINE TRANSPORTATION, LLC, MOTION FOR WITTICH BROTHERS MARINE, INC., ANd WEEKS PENALTIES MARINE,INC., PURSUANT TO c.P.L.R. $3126 Defendants STATE OF NEW YORK ) COUNTY OF NEW YORK) ss: JOSEPH P. NAPOLI, an attorney duly admitted to practice law before the Courts of the State of New York, does hereby affirm the following facts under penalty of perjury: I . I am a senior partner of the firm Napoli Shkolnik PLLC and the attomey for plaintiff Darryl Nowak. 2. I respectfully submit this affidavit in opposition to the motion dated June 2,2021, made by attorney RONALD BETANCOURT, attoniey for defendant WEEKS MARINE,INC ("WEEKS"). 3. I am fully familiar with the facts and circumstances surrounding this matter. 4. This motion should be denied because the Plaintiff has already successfully complied with both this Court's prior orders and the New York Civil Practice Law and Rules (hereafter "C.P.L.R."). Defendant's Motion for Penalties Pursuant to C.P.L.R. $3126 serves little practical use and instead further impedes swift adjudication in this matter. t NAPOTI SIIltoLl\JIlt PLLI ill0tfiiltArus 1 of 5 FILED: NEW YORK COUNTY CLERK 06/08/2021 07/16/2021 03:00 04:18 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 95 133 RECEIVED NYSCEF: 06/08/2021 07/16/2021 5 It has been long been held that bills of particular are not to be employed as a method of obtaining evidence. Yardarm Club Hotel, Inc. v. Molgan,22 A.D.2d700,253 N.Y.S.2d 920 (2d Dep't 1964). The purpose, instead, of a bill of particulars is to amplify the pleadings, limit tlre proof, and prevent surprise at trial. (See Miccarelli v Fleiss,2l9 AD2d 469,410,631 NYS2d 159 (lst Dep't 1995). To reduce arguments and court applications, the New York State legislature has specifically codified the items that may be demanded in a bill of particular. C.P.L.R. $ 3043. Here, an analysis of whether Defendant is entitled to the particulars demanded of Plaintiff under C.P.L.R. $ 3043 is not necessary because Plaintiff has already complied with both this Court's orders and the demands made by Defendant. 6. While Defendant may be unsatisfied with the answers plovided in the Supplemental Bill of Particulars, this alone does not entitle Defendant to relief. In Paragraph 10 of his motion, Mr. Betancourt alleges that Plaintiff has failed to provide requested authorizations. Movant's Motion. In Paragraph 14 of his motion, Mr. Betancourt argues that this Court should strike Plaintiff s complaint or, in the alternative, order Plaintiff to produce the requested authorizations within five (5) days due to alleged Plaintiff non-cooperation with his demands. Movant's Motion. This is not necessary as Plaintiff has repeatedly responded to Defendant's demands regarding authorizations. As requested, Plaintiff has provided authorizations for Plaintiff s health information pursuant to HIPAA. Movant's Exhibit G. l In Paraglaph 18 of his motion, Mr. Betancourt argues that Plaintiffs complaint should be stricken, or in the alternative, plaintiff should be precluded fiom claiming special damages due to Plaintiffs response regarding lost eat'nings in his t liAPOLI Slll(OtllII PLtt tmRrit!SlllAll 2 of 5 FILED: NEW YORK COUNTY CLERK 06/08/2021 07/16/2021 03:00 04:18 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 95 133 RECEIVED NYSCEF: 06/08/2021 07/16/2021 Supplemental Bill of Patticulars. Movant's Motion. This rnotion should be denied because the striking of a party's pleadings should not be imposed except in instances where the party seeking disclosure demonstrates conclusively that the failure to disclose was willful, contumacious or due to bad faith." (Hassan v Manhattan & Bronx Sut''face Tr. Operating Auth., 286 AD2d 303,304,730 N.Y.S.2d 286 [st Dept 2001]). Here, Mr. Betancourt has produced no such evidence that Plaintiff s failure to disclose amounts of lost earnings and other expenses was willful, contumacious, or due to bad faith. Plaintiff is currently in the process of detennining the amount of earnings lost and as was stated in his Verified Bill of Particulals, such amount will be provided to Defendant at such time when they have been determined. Exhibit A. 8 In Paragraph 20 of his motion, Mr. Betancoult argues that Plaintiff s complaint should be stricken or, in the altemative, Plaintiff should be precluded fi'om claiming maintenance as an element of his damages due to Plaintiff s response regarding room and board costs in his Supplemental Bill of Particulars. Movant's Motion. Once again, the standard that should be applied by the Court is the Hassan standard, which requires the palty seeking disclosure to demonstrate that the failure to disclose was willful, contumacious, or due to bad faith. Here, Plaintiff has provided Defendant with both his daily and monthly costs of room and board in his Verified Bill of Particular and Supplemental Bill of Particular. Exhibit A and Movant's Exhibit D. Defendant may demand greater specificity regarding these costs as part of his discovery demands, but this in no way demonstrates that Plaintiff has committed a willful, contumacious, bad faith failure to disclose. t I'lAP0Ll Slll(ONIl(PLTI til0fliil5ilHt 3 of 5 FILED: NEW YORK COUNTY CLERK 06/08/2021 07/16/2021 03:00 04:18 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 95 133 RECEIVED NYSCEF: 06/08/2021 07/16/2021 9 In Paragraph 22 of his motion, Mr. Betancourt argues that Plaintiff s complaint should be stricken or, in the alternative, plaintiff should be precluded fi'onr claiming damages for Weeks' alleged bad faith refusal to provide maintenance and cure as am element of his damages. Movant's Motion. Mr. Betancourt bases this argument on documents that wele attached by Plaintiff to his Verified Bill of Particular. Exhibit A. Defendant is free to provide the specific authorizations he is demanding ifhe feels that the information provided by Plaintiff is not relevant to his dernand. This alone, however, does not prove that Plaintiff has committed a willful, contumacious, or bad faith failure to disclose. 10 For the foregoing reasons, this Court should deny Mr. Betancourt's motion fol an order granting penalties pursuant to C.P.L.R. $3126. 11 I certiS, that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: June 8, 2021 New York, New York t I'IAPOTI Slll(ONIIIPLTI tmfliilsITLtlt 4 of 5 FILED: NEW YORK COUNTY CLERK 06/08/2021 07/16/2021 03:00 04:18 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 95 133 RECEIVED NYSCEF: 06/08/2021 07/16/2021 Respectfully, NAPOLI SHK Joseph Napoli, Esq Attorneys for Plaintiff (s) 360 Lexington Avenue, l ltl'Floor New York, New York 10017 (212) 397-t000 To BETANCOURT, VAN HEMMEN, GRECO & KENYON LLC Attorneys for Defendant Weeks Marine, Inc. 75 South Broadway - 4'l'Floor White Plains, New York 10601 MAHONEY & KEANE, LLP Attorneys for Defendants Sea Wolf Marine Transportation, LLC and Wittich Brothers Maline, Inc. 61 Broadway, Suite 905 New York, New York 10005 t NAPOLI 5Hl0tl{il(PLLt fiT0ltiillATnl 5 of 5