Preview
FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021
LEON R. KOWALSKI
WILLIAM N. DEVITO
KOWALSKI & DEVITO
ATTORNEYS-AT-LAW
ALAN I. LAMER
STEVEN A. ADLER
ELIZABETH A. GRIFFIN
STEVEN J. HARKAVY 80 PINE STREET – THIRD FLOOR
HEIDI M. WEISS
MICHAEL J. PEARSALL NEW YORK, NEW YORK 10005
BARRY N. GREENBERG
MARC SILVERSTEIN
(718) 250-1100
SCOTT C. PEREZ FAX (718) 250-1168
BRADLEY J. CORSAIR
JUDY L. BROWN
WILLIAM A. PRINSELL
MARY FRANCES G. MARINO
KEVIN ACHEAMPONG
MARGARET PORCELLI
February 5, 2021
Gregory J. Cannata & Associates, LLP
Attorney for Petitioner
60 East 42nd Street, Suite 932
New York, New York 10005
Attn: Madeline Muniz, Esq
mmuniz@cannatalaw.com
Tyler D. Evans, Esq.
Principal Law Clerk to Hon. Debra Silber, J.S.C.
Supreme Court of the State of New York, Kings County
tdevans@nycourts.gov
Ruth Belfon
rbelfon@nycourts.gov
Re: Rodriguez v Plakos Scrap Processing Inc.
Our File No.: NYNY-33781
Index No.: 523006/2020
Dear Ms. Muniz, Mr. Evans and Ms. Belfon:
I thank Ms. Muniz for sending me a courtesy copy of the improper reply papers. As you know,
reply papers were improper for Order to show causes, under the old Court rules and are still
improper under the new rules of the Court.
Per exhibit T of the new rules of the Court, Regarding Rule 19 dealing with Order to Show
causes:
The Uniform Civil Rules for the Supreme Court and the County Court are amended by adding by
adding new section 202.8-d. Orders to Show cause: “… Absent Advance permission of the
Court, reply papers shall not be submitted on orders to show cause.”
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FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021
Further, per exhibit S of the new rules of the Court, Regarding Rule 18 dealing with Sur-Reply
and post Submission Papers:
The Uniform Civil Rules for the Supreme Court and the County Court are amended by adding by
adding new section 202.8-c. Sur-Reply and Post-Submission Papers: “Absent express
permission in advance, sur-reply papers, including correspondence, addressing the merits of a
motion are not permitted, except that Counsel may inform the Court by letter of the citation of
any post-submission Court decision that is relevant to the pending issues, but there shall be no
additional argument.”
Therefore, I am including the Court on this letter which will be e-filed as well.
The Petitioner is bringing up one new issue in the reply papers. Counsel is alleging that the
machine that Plaintiff submitted photographs, as Petitioners exhibit 1, in their Order to Show
Cause, was not the Gensco DTX4/600 Hydraulic Shear Machine as affirmed by Respondent.
Petitioner’s Counsel is alleging this based on her own opinion, without any affidavit from the
person who took the photographs, from her client, and a professional engineer. In fact, despite
my oral request, when petitioner requested that my client confirm a 2nd time regarding the
machine in question, I request from petitioner’s Counsel, the name of the person who took the
photographs in exhibit 1, the time and date the photographs were taken and who was present
when the photographs were taken.
Petitioner attorney advised me that she had a concern as to whether the subject machine was the
right machine. Petitioner’s counsel wanted a response immediately from Plakos to confirm the
machine in question. I advised Counsel that at 5:30PM this could not be accomplished, by I will
speak to the affirmant for the respondent and have her check the next day based on pictures
submitted as Petitioner’s exhibit 1.
Shortly after, on 2-3-21, I spoke to my client, the manager and the daughter of the President of
Plakos Scrap Processing, Josephine Ditore, who advised me that she looked at the 3 photographs
of exhibit 1 previously. As she indicated in her affidavit that was marked as respondent A:
Paragraph 5 – “After conducting a search of all the above, I was able to provide the attorneys for
PLAKOS SCRAP PROCESSING INC., the make and the model of the machine, a copy of the
receipt of ownership of the machine, a copy of the owner’s manual …” (see Respondant’s
affirmation in Opposition as Exhibit B and C)
Paragraph 6 –“Upon information and belief, the make and model of the machine is a Gensco
DTX4/600 Hydraulic Shear. Please see the owner’s manual which will be provided as an exhibit
in the motion.”
Paragraph 7 – “Upon information and belief, the manufacturer of the machine is Gensco
Equipment, Inc.”
Just as your affirmant has tried to provide whatever records that was in my client’s possession,
where I consented to everything asked for, except for modifications of the inspection, the right
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FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021
for Plakos to still use the machine during the injunction, and an additional week due to covid
restriction imposed on my law firm by AIG, agreed to provide everything that Plakos could
provide.
As Petitioner mentioned in paragraph 4, I agreed that I would have Josephine again review
Plaintiff’s Photographs, and determine what was the machine that was involved with Petitioner’s
alleged accident.
After speaking to Josephine, within the next 3 hours I sent Josephine three emails. (see attached
as Exhibit A, B, and C.
The first Letter was sent to my client, Josephine Don 2-3-21 at 7:37PM, which was sent by
accident not completed. However, Josephine knew what the email was about per our
conversation, which was when send was originally pressed.
The 2nd letter was sent to Ms. Ditore on 2-3-21 at 8:27Pm which was everything the petitioner
request.
The 3rd letter was sent on 2-3-21 to Ms. Ditore at 8:29. That letter was the same as the 2nd letter,
but it also included a copy to my paralegal, Katrina Artist who has done an excellent job, in
aiding me with this file.
Ms. Ditore responded to me on 2 occasions: (see Exhibits D and E)
The first occasion was on 2-4-21 at 8:07 AM. In that email Josephine Ditore again indicated after
reviewing the photograph and looking at the machine, “Upon information and belief, the
manufacturer of the machine is Gensco Equipment, Inc.”
Since Ms. Ditore signed off on the first letter, the email that was cut off, I requested that she
sign the 2nd email based on the request that I gave her per petitioner’s counsel at 5:22 and
5:28PM, shortly after I spoke with petitioner’s counsel.
At 6:17, Ms. Ditore again indicated, “Hi Steve Like I said in my prior email that machine is
made by gensco”
Based on the 2nd review of petitioner’s exhibit 1, Ms. Ditore as stated in her affidavit, the make
and model of the machine is a Gensco DTX4/600 Hydraulic Shear. The manufacturer of the
machine is Gensco Equipment, Inc.”
Meanwhile, despite my requests for petitioner’s Counsel when she made her requests,
petitioner’s counsel still has not provide the person who took the photographs listed as Exhibit 1,
who else was present, was an expert present, the date and time when the photographs were taken,
no provided an affidavit from such person
I stipulated with petitioner’s counsel to conduct a D&I of the machine on April 14, 2021, at
9:20am. Making sure that the right machine is inspected in a significant Part of the D&I.
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FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021
Contrary to petitioner’s remarks in Paragraph 8 of her improper reply affirmation, Respondent,
Plakos Scrap Processing, Inc., has already confirmed on 2 occasions the appropriate make,
model or manufacturer nor any records responsive to the stipulation dated February 2, 2021.
If petitioner asks for a 3rd time to confirm the machine, she will be receiving the same response.
The only piece of discovery that is owed to petitioner as indicated in my opposition papers,
paragraph 13, where we are awaiting from Worker’s Compensation the accident report/incident
report that was sent to them. It should be noted that Petitioner can acquire said records on their
own as I provided to petitioner the name of the workers Compensation, WC file#, the WC file
handler.
I do not think that a conference is needed in this matter. Petitioner has complied with discovery
requested. The only problem is petitioner is not happy with the results. A stipulation has been
entered into, which is the order of this case.
However, if the court orders a further conference, as I advised Plaintiff’s counsel earlier this
week, I will be having surgery on February 15, 2021 at St. Peters Hospital. As long as I am
working from home, I will be out for 1-2 weeks. I do not know about travel restrictions, but
physician advised me that there will be no strenuous activities of lifting for 4-6 weeks. If the
Court orders a further conference., I wanted to advise the Court as to my availability.
I thank you for your time in this matter. My intent is to have this document efiled tomorrow.
Thanks again.
Steven Jeffrey Harkavy
SJH
Attchs
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Preview
FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021 LEON R. KOWALSKI WILLIAM N. DEVITO KOWALSKI & DEVITO ATTORNEYS-AT-LAW ALAN I. LAMER STEVEN A. ADLER ELIZABETH A. GRIFFIN STEVEN J. HARKAVY 80 PINE STREET – THIRD FLOOR HEIDI M. WEISS MICHAEL J. PEARSALL NEW YORK, NEW YORK 10005 BARRY N. GREENBERG MARC SILVERSTEIN (718) 250-1100 SCOTT C. PEREZ FAX (718) 250-1168 BRADLEY J. CORSAIR JUDY L. BROWN WILLIAM A. PRINSELL MARY FRANCES G. MARINO KEVIN ACHEAMPONG MARGARET PORCELLI February 5, 2021 Gregory J. Cannata & Associates, LLP Attorney for Petitioner 60 East 42nd Street, Suite 932 New York, New York 10005 Attn: Madeline Muniz, Esq mmuniz@cannatalaw.com Tyler D. Evans, Esq. Principal Law Clerk to Hon. Debra Silber, J.S.C. Supreme Court of the State of New York, Kings County tdevans@nycourts.gov Ruth Belfon rbelfon@nycourts.gov Re: Rodriguez v Plakos Scrap Processing Inc. Our File No.: NYNY-33781 Index No.: 523006/2020 Dear Ms. Muniz, Mr. Evans and Ms. Belfon: I thank Ms. Muniz for sending me a courtesy copy of the improper reply papers. As you know, reply papers were improper for Order to show causes, under the old Court rules and are still improper under the new rules of the Court. Per exhibit T of the new rules of the Court, Regarding Rule 19 dealing with Order to Show causes: The Uniform Civil Rules for the Supreme Court and the County Court are amended by adding by adding new section 202.8-d. Orders to Show cause: “… Absent Advance permission of the Court, reply papers shall not be submitted on orders to show cause.” 1 of 4 FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021 Further, per exhibit S of the new rules of the Court, Regarding Rule 18 dealing with Sur-Reply and post Submission Papers: The Uniform Civil Rules for the Supreme Court and the County Court are amended by adding by adding new section 202.8-c. Sur-Reply and Post-Submission Papers: “Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motion are not permitted, except that Counsel may inform the Court by letter of the citation of any post-submission Court decision that is relevant to the pending issues, but there shall be no additional argument.” Therefore, I am including the Court on this letter which will be e-filed as well. The Petitioner is bringing up one new issue in the reply papers. Counsel is alleging that the machine that Plaintiff submitted photographs, as Petitioners exhibit 1, in their Order to Show Cause, was not the Gensco DTX4/600 Hydraulic Shear Machine as affirmed by Respondent. Petitioner’s Counsel is alleging this based on her own opinion, without any affidavit from the person who took the photographs, from her client, and a professional engineer. In fact, despite my oral request, when petitioner requested that my client confirm a 2nd time regarding the machine in question, I request from petitioner’s Counsel, the name of the person who took the photographs in exhibit 1, the time and date the photographs were taken and who was present when the photographs were taken. Petitioner attorney advised me that she had a concern as to whether the subject machine was the right machine. Petitioner’s counsel wanted a response immediately from Plakos to confirm the machine in question. I advised Counsel that at 5:30PM this could not be accomplished, by I will speak to the affirmant for the respondent and have her check the next day based on pictures submitted as Petitioner’s exhibit 1. Shortly after, on 2-3-21, I spoke to my client, the manager and the daughter of the President of Plakos Scrap Processing, Josephine Ditore, who advised me that she looked at the 3 photographs of exhibit 1 previously. As she indicated in her affidavit that was marked as respondent A: Paragraph 5 – “After conducting a search of all the above, I was able to provide the attorneys for PLAKOS SCRAP PROCESSING INC., the make and the model of the machine, a copy of the receipt of ownership of the machine, a copy of the owner’s manual …” (see Respondant’s affirmation in Opposition as Exhibit B and C) Paragraph 6 –“Upon information and belief, the make and model of the machine is a Gensco DTX4/600 Hydraulic Shear. Please see the owner’s manual which will be provided as an exhibit in the motion.” Paragraph 7 – “Upon information and belief, the manufacturer of the machine is Gensco Equipment, Inc.” Just as your affirmant has tried to provide whatever records that was in my client’s possession, where I consented to everything asked for, except for modifications of the inspection, the right 2 of 4 FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021 for Plakos to still use the machine during the injunction, and an additional week due to covid restriction imposed on my law firm by AIG, agreed to provide everything that Plakos could provide. As Petitioner mentioned in paragraph 4, I agreed that I would have Josephine again review Plaintiff’s Photographs, and determine what was the machine that was involved with Petitioner’s alleged accident. After speaking to Josephine, within the next 3 hours I sent Josephine three emails. (see attached as Exhibit A, B, and C. The first Letter was sent to my client, Josephine Don 2-3-21 at 7:37PM, which was sent by accident not completed. However, Josephine knew what the email was about per our conversation, which was when send was originally pressed. The 2nd letter was sent to Ms. Ditore on 2-3-21 at 8:27Pm which was everything the petitioner request. The 3rd letter was sent on 2-3-21 to Ms. Ditore at 8:29. That letter was the same as the 2nd letter, but it also included a copy to my paralegal, Katrina Artist who has done an excellent job, in aiding me with this file. Ms. Ditore responded to me on 2 occasions: (see Exhibits D and E) The first occasion was on 2-4-21 at 8:07 AM. In that email Josephine Ditore again indicated after reviewing the photograph and looking at the machine, “Upon information and belief, the manufacturer of the machine is Gensco Equipment, Inc.” Since Ms. Ditore signed off on the first letter, the email that was cut off, I requested that she sign the 2nd email based on the request that I gave her per petitioner’s counsel at 5:22 and 5:28PM, shortly after I spoke with petitioner’s counsel. At 6:17, Ms. Ditore again indicated, “Hi Steve Like I said in my prior email that machine is made by gensco” Based on the 2nd review of petitioner’s exhibit 1, Ms. Ditore as stated in her affidavit, the make and model of the machine is a Gensco DTX4/600 Hydraulic Shear. The manufacturer of the machine is Gensco Equipment, Inc.” Meanwhile, despite my requests for petitioner’s Counsel when she made her requests, petitioner’s counsel still has not provide the person who took the photographs listed as Exhibit 1, who else was present, was an expert present, the date and time when the photographs were taken, no provided an affidavit from such person I stipulated with petitioner’s counsel to conduct a D&I of the machine on April 14, 2021, at 9:20am. Making sure that the right machine is inspected in a significant Part of the D&I. 3 of 4 FILED: KINGS COUNTY CLERK 02/05/2021 01:44 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/05/2021 Contrary to petitioner’s remarks in Paragraph 8 of her improper reply affirmation, Respondent, Plakos Scrap Processing, Inc., has already confirmed on 2 occasions the appropriate make, model or manufacturer nor any records responsive to the stipulation dated February 2, 2021. If petitioner asks for a 3rd time to confirm the machine, she will be receiving the same response. The only piece of discovery that is owed to petitioner as indicated in my opposition papers, paragraph 13, where we are awaiting from Worker’s Compensation the accident report/incident report that was sent to them. It should be noted that Petitioner can acquire said records on their own as I provided to petitioner the name of the workers Compensation, WC file#, the WC file handler. I do not think that a conference is needed in this matter. Petitioner has complied with discovery requested. The only problem is petitioner is not happy with the results. A stipulation has been entered into, which is the order of this case. However, if the court orders a further conference, as I advised Plaintiff’s counsel earlier this week, I will be having surgery on February 15, 2021 at St. Peters Hospital. As long as I am working from home, I will be out for 1-2 weeks. I do not know about travel restrictions, but physician advised me that there will be no strenuous activities of lifting for 4-6 weeks. If the Court orders a further conference., I wanted to advise the Court as to my availability. I thank you for your time in this matter. My intent is to have this document efiled tomorrow. Thanks again. Steven Jeffrey Harkavy SJH Attchs 4 of 4