On May 01, 2018 a
Motion-Secondary
was filed
involving a dispute between
Darryl Nowak,
and
Sea Wolf Marine Transportation, Llc,
Weeks Marine,Inc.,
Wittich Brothers Marine, Inc,
for Torts - Other (Slip and fall)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/21/2022 03:02 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 10/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DARRYL NOWAK. Index No.: 154000/2018
Plaintiff, AFFIRMATION IN
OPPOSITION
-agalnst-
SEA WOLF MARINE TRANSPORTATION, LLC,
WITTICH BROTHERS MARINE, INC., and WEEKS
MARINE,INC,,
Defendants.
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:
1. I am a senior partner with NAPOLI SHKOLNIK, PLLC, the attorneys for the Plaintiff
herein, and I am familiar with the facts and circumstances of this action. This Affirrnation
is made, upon information and belief, this affirmant's source of knowledge being direct
communications with the client and a review of the litigation file in this matter maintained
by the firm of NAPOLI SHKOLNIK, PLLC., counsel for the Plaintiff.
2. This Affirmation is submitted in opposition of Defendants' SEA WOLF MARINE
TRANSPORTATION, LLC, WITTICH BROTHERS MARINE, INC ("Defendants")
instant motion for an Order permitting de bene esse deposition of non-party witness, Louis
Reyes ("Reyes").
3. This motion should be denied. Pursuant to Court Order dated Augu st l. 2022, a copy of
which is annexed hereto as Exhibit "A", deposition of all non-party \ /itnesses must be
conducted by September 30,2022. Defendants had two months fi'om the date of the Order
to schedule and conduct deposition of Mr. Reyes.
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FILED: NEW YORK COUNTY CLERK 10/21/2022 03:02 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 10/21/2022
4. Def.endants did not provide any reasonable excuse for failing to schedule Mr. Reyes
deposition on a timely manner.
5. Plaintiff has never agreed to extend tirne for non-party witness deposition. Court gave
Defendants plenty of time to do so. Two non-party witnesses, Alan Scott and Eric Langman
were deposed on September 29, and September 30, 2022, in cornpliance with Court's
timelines. Defendants' refemal to plaintiff s attorney email from October 12 is not accurate.
On October 12, 2022, it was discussed the tug inspection rnay be postponed due to
unexpected allocation of the tug. Plaintiff s attomey agreed to "request more time" only
with regard to the tug inspection and not for conducting the additional non-party witness
depositions. See Selma Moy's email annexed to Defendants' motion as Exhibit "C".
6. Pursuant to Courl Order referenced above plaintiff filed Note of Issue. A copy of Note of
Issue is annexed hereto as Exhibit "B".
l. On October 20,2022, the inspection of the subject vessels was timely conducted.
8. Therefore, all discovery for this matter have been completed in accordance with Court's
schedule and Reyes' deposition should be denied as untimely.
WHERBFORE, Plaintiff respectfully requests that this Court issue an
Older denying Defendant's Motion in its entirety; and for such other and further relief as
this Courl may deem just and proper.
Dated: New York, New York
October 20,2022
a
By: Joseph P. Napoli. Esq
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FILED: NEW YORK COUNTY CLERK 10/21/2022 03:02 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 10/21/2022
TO:
MAHONEY & KEANE, LLP
At t orney for Defendants
SEA WOLF MARINE TRANSPORTATION, LLC ANd WITTICH BROTHERS
MARINE,INC.
6l Broadway, Suite 905
New York, NY 10006
(212) 38s-1422
BETANCOURT, VAN HEMMEN, GRECO & KENYON LLC
Attorneys for Defendant
WEBKS MARINE,INC.
75 S Broadway Fl4
White Plains, NY 10601
(914) 997-1100
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Document Filed Date
October 21, 2022
Case Filing Date
May 01, 2018
Category
Torts - Other (Slip and fall)
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FILED: NEW YORK COUNTY CLERK 10/21/2022 03:02 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 10/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DARRYL NOWAK. Index No.: 154000/2018 Plaintiff, AFFIRMATION IN OPPOSITION -agalnst- SEA WOLF MARINE TRANSPORTATION, LLC, WITTICH BROTHERS MARINE, INC., and WEEKS MARINE,INC,, Defendants. 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: 1. I am a senior partner with NAPOLI SHKOLNIK, PLLC, the attorneys for the Plaintiff herein, and I am familiar with the facts and circumstances of this action. This Affirrnation is made, upon information and belief, this affirmant's source of knowledge being direct communications with the client and a review of the litigation file in this matter maintained by the firm of NAPOLI SHKOLNIK, PLLC., counsel for the Plaintiff. 2. This Affirmation is submitted in opposition of Defendants' SEA WOLF MARINE TRANSPORTATION, LLC, WITTICH BROTHERS MARINE, INC ("Defendants") instant motion for an Order permitting de bene esse deposition of non-party witness, Louis Reyes ("Reyes"). 3. This motion should be denied. Pursuant to Court Order dated Augu st l. 2022, a copy of which is annexed hereto as Exhibit "A", deposition of all non-party \ /itnesses must be conducted by September 30,2022. Defendants had two months fi'om the date of the Order to schedule and conduct deposition of Mr. Reyes. t NAPOLI Stll(ONII(PLLI lll0Rf;t$llU''{ 1 of 3 FILED: NEW YORK COUNTY CLERK 10/21/2022 03:02 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 10/21/2022 4. Def.endants did not provide any reasonable excuse for failing to schedule Mr. Reyes deposition on a timely manner. 5. Plaintiff has never agreed to extend tirne for non-party witness deposition. Court gave Defendants plenty of time to do so. Two non-party witnesses, Alan Scott and Eric Langman were deposed on September 29, and September 30, 2022, in cornpliance with Court's timelines. Defendants' refemal to plaintiff s attorney email from October 12 is not accurate. On October 12, 2022, it was discussed the tug inspection rnay be postponed due to unexpected allocation of the tug. Plaintiff s attomey agreed to "request more time" only with regard to the tug inspection and not for conducting the additional non-party witness depositions. See Selma Moy's email annexed to Defendants' motion as Exhibit "C". 6. Pursuant to Courl Order referenced above plaintiff filed Note of Issue. A copy of Note of Issue is annexed hereto as Exhibit "B". l. On October 20,2022, the inspection of the subject vessels was timely conducted. 8. Therefore, all discovery for this matter have been completed in accordance with Court's schedule and Reyes' deposition should be denied as untimely. WHERBFORE, Plaintiff respectfully requests that this Court issue an Older denying Defendant's Motion in its entirety; and for such other and further relief as this Courl may deem just and proper. Dated: New York, New York October 20,2022 a By: Joseph P. Napoli. Esq t NAPOTI 5llr{0ll'Jll(PLn tTT0nfiiYtAltAn 2 of 3 FILED: NEW YORK COUNTY CLERK 10/21/2022 03:02 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 204 RECEIVED NYSCEF: 10/21/2022 TO: MAHONEY & KEANE, LLP At t orney for Defendants SEA WOLF MARINE TRANSPORTATION, LLC ANd WITTICH BROTHERS MARINE,INC. 6l Broadway, Suite 905 New York, NY 10006 (212) 38s-1422 BETANCOURT, VAN HEMMEN, GRECO & KENYON LLC Attorneys for Defendant WEBKS MARINE,INC. 75 S Broadway Fl4 White Plains, NY 10601 (914) 997-1100 t IIAPOTI 5l{l(0lilil( PrLt fiI0flit$Nil{ 3 of 3