Motion,Ex Parte: Vivett Allen v. Rena Hines, Stevne Gilbert, Metropolitan Transportation Authority, New York City Transit Authority d/b/a MTA NEW YORK CITY TRANSIT (NYCTA)

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                                FILED:         KINGS       COUNTY         CLERK        07/05/2022             01:12       PM                        INDEX    NO.   508521/2021
   NYSCEF     DOC.   NO.   45                                                                                 RECEIVED      NYSCEF:     07/05/2022




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF KINGS
                  ------------------------------------------------------------------------X
                  VIVETT ALLEN,                                                                    Index No.: 508521/2021

                                             Plaintiff(s),                                         AFFIRMATION OF
                                                                                                   GOOD FAITH
                           -against-

                  RENA HINDS, STEVNE GILBERT, METROPOLITAN
                  TRANSPORTATION AUTHORITY, and NEW YORK
                  CITY TRANSIT AUTHORITY d/b/a MTA NEW YORK
                  CITY TRANSIT (NYCTA),
                                             Defendant(s).
                  ------------------------------------------------------------------------X

                  Michael P. O’Brien, an        attorney duly admitted to practice law before the Courts of the State of
                  New York, hereby affirms under the penalties of perjury the truth of the following:
                       1.  I am a member of O’Brien Law Firm, PLLC and am Of Counsel to Anna Ervolina, Esq.,
                           Executive Assistant      General Counsel,      NYCTA      Law Department        – Torts,   attorney(s) for
                           Defendant(s)     METROPOLITAN             TRANSPORTATION               AUTHORITY,          NEW     YORK
                           CITY    TRANSIT       AUTHORITY          (s/h/a  “NEW     YORK      CITY    TRANSIT       AUTHORITY
                           d/b/a  MTA     NEW     YORK      CITY    TRANSIT       (NYCTA)”),      RENA      HINES     and  STEVEN
                           GILBELT (s/h/a “STEVNE GILBERT”) herein, and as such I am fully familiar with the
                           facts and circumstances surrounding the within matter, upon reviewing the associated file.
                       2.  The moving Defendant(s) could not resolve by agreement the issues raised by the within
                           motion.
                       3.  Defendants      served   Combined      Demands      with   the  Answer,    to  which    Plaintiff  did   not
                           respond. Defendants were party to the Preliminary Conference Order, to                    which Plaintiff
                           did not respond. Defendants served demands dated December 21, 2021, to which Plaintiff
                           did not respond. Defendants served demands dated April 29, 2022, to which Plaintiff did
                           not respond.
                       4.  Plaintiff has not appeared for an Examination Before Trial. Plaintiff has not appeared for
                           Independent Medical Examinations.
                       5.  Defendants     have   even   conceded     liability, and   yet  Plaintiff  has   provided    no  discovery
                           whatsoever to move this case forward.




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   FILED:         KINGS       COUNTY         CLERK        07/05/2022             01:12       PM                        INDEX    NO.   508521/2021
   NYSCEF     DOC.   NO.   45                                                                                 RECEIVED      NYSCEF:     07/05/2022




                       6.  Defendants are essentially out of options to obtain this material and necessary discovery,
                           absent court intervention. Hence, the within motion to vacate the Note of Issue / compel
                           discovery.   Therefore,    the  Note   of Issue  must   be  vacated   and   the case   must   be removed
                           from the trial calendar.
                       7.  Further attempts to resolve outstanding discovery were not possible given the strict time
                           limit within which to file a motion to vacate / compel discovery.
                       8.  Significant discovery remains outstanding, so the case must be removed from the calendar.
                  DATED:            New York, New York
                                    July 5, 2022                                 Michael P. O’Brien
                                                                                 Michael P. O’Brien, Esq.




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