Preview
FILED: BRONX COUNTY CLERK 11/04/2021 02:13 PM INDEX NO. 31551/2020E
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/04/2021
PJS/gf #15881
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------ x
JUAN BONAPARTE, Index No.: 31551/2020E
Plaintiffs, AFFIRMATION
-against- Returnable: 11/12/2021
CUBESMART MANAGEMENT, LLC,
Defendants.
---------------------------------------------------------------------- x
PATRICK J. SHELLEY, ESQ., an attorney duly licensed to practice law before the
Courts of the State of New York, hereby affirms the following statements to be true under the
penalties of perjury:
1. I am a member of the law firm of KERLEY, WALSH, MATERA &
CINQUEMANI, P.C., attorneys for the defendant, CUBESMART MANAGEMENT, LLC. As
such and from a review of the file maintained by this office, I am fully familiar with the facts and
circumstances of this matter.
2. This Affirmation is submitted in support of the instant cross-motion which
seeks directing the entry of a Judgment of default on the counter-claims set forth by defendant in
their Answer, setting the matter down for an inquest as to damages, ordering the costs,
disbursements, and reasonable attorney’s fees to abide this motion and for such other and further
relief as this Court deems proper and equitable; the instant application also sets forth the basis for
the Affirmation in Opposition to plaintiff’s instant application.
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PROCEDURAL HISTORY
3. This case alleges claims of personal injury. The case was initiated by
service of the Summons and Complaint on or about October 8, 2020. (Exhibit “A”/NYSCEF
Docket#1).
4. An Answer was interposed on behalf of the defendant on or about December
11, 2020. (Exhibit “B”/NYSCEF Docket#8). Along with the Answer, a Notice to Deposition
Upon Oral Examination was served upon plaintiff’s counsel on or about December 11, 2020. A
copy of the Notice of Deposition Upon Oral Examination and Affidavit of Service is annexed
hereto as Exhibit C.
LEGAL ARGUMENT
5. As indicated above, as part of the Answer interposed on behalf of the
defendant, a counter-claim was raised with regard to unpaid bills. The time to appear and interpose
an Answer to the counter-claim has now expired.
6. The plaintiff has not served an Answer to the counter-claim or moved with
respect to the counter-claim herein, and the time having now expired, the plaintiff is now in default.
No previous application for the relief sought in this motion has ever been made, and due to the
foregoing, a default judgment should be granted as to the counter-claim in favor of the defendant.
PLAINTIFF’S APPLICATION WITH REGARD TO
DEFENDANT’S ANSWER SHOULD BE DENIED IN ITS
ENTIRETY
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7. At the outset, it should be noted that plaintiff’s motion which seeks a default
to strike the Answer of the defendant should be denied in its entirety. Plaintiff’s alleged
Affirmation of Good Faith does not set forth anything that is in line with the Court’s statutory
requirements. Plaintiff’s counsel never contacted the undersigned to discuss outstanding discovery
issues. Any Affirmation to the contrary is clearly not true. The undersigned actually had a
conversation with plaintiff’s counsel once the motion was made to advise him that he has not
complied with the Affirmation of Good Faith and advised during multiple conversations with
plaintiff’s son, who is a former associate at his office, regarding discovery issues that were never
addressed by plaintiff’s counsel’s office.
8. Additionally, plaintiff’s motion does not comply with the new meet and
confer provisions of NYCRR 202.20-f, which requires under subsection (b) that:
“prior to contacting the Court regard disclosure dispute, counsel
must first consult with each other in a good faith effort to resolve all
disputes about disclosure. Such consultation must take place by an
in person or telephonic conference. In the event that a discovery
dispute cannot be resolved other than through motion practice, each
such discovery motion shall be supported by an Affidavit or
Affirmation from counsel attesting to counsel having conducted an
in person or telephonic conference, setting forth the date and time of
such conference, persons participating and the length of time of that
conference. “
As indicated previously, such conference never took place.
9. Additionally, as the Court will note from plaintiff’s application, the only
portion of discovery that the plaintiff could potentially rightfully be owed, is a Bill of Particulars
as to affirmative defenses. Plaintiff claims that they have priority as to deposition, however, a
copy of the Notice of Deposition served along with defendant’s Answer is annexed hereto as
Exhibit C. Clearly, defendant has priority of deposition in that the plaintiff had not produced his
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client for a deposition. Striking of the defendant’s Answer cannot be based upon the plaintiff’s
failure to provide a deposition to plaintiff’s counsel.
10. Also, there has been no preliminary conference in this action or any other
Court Order relating to discovery. Without any such Order, or any attempt by plaintiff’s counsel
to resolve the outstanding discovery dispute pursuant to the meet and confer provision, plaintiff’s
counsel cannot set forth any record of willful and contumacious conduct by the defendant which
would be required for the instant application to be granted. The Bill of Particulars as to affirmative
defenses really cannot be responded to by defense counsel at this time. However, we have
provided what information is available to us in a response. Exhibit “D”/NYSCEF Docket #25.
The defendants will make every attempt to respond to plaintiff’s Demand for a Verified Bill of
Particulars as additional information is available and discovery progresses.
11. However, based upon the foregoing, it is clear that the defendant’s cross-
motion should be granted in all respects and plaintiff’s application to strike the Answer of the
defendant should be denied based upon the foregoing.
WHEREFORE, it is respectfully requested that this Court issue an Order granting
the within application in all aspects and denying plaintiff’s motion in its entirety, together with
such other and further relief as this Court may deem just, proper, and equitable.
Dated: Seaford, New York
November 3, 2021
____________________________________
PATRICK J. SHELLEY
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CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b(c)
I hereby certify that the foregoing Affirmation in Support complies with the word count limit
pursuant to 22 NYCRR 202.8-b(c) as the total number of words in this Affirmation in Support is
929.
Dated: Seaford, New York
November 3, 2021
Respectfully submitted,
KERLEY, WALSH, MATERA
& CINQUEMANI, P.C.
_______________________________
PATRICK J. SHELLEY
Attorneys for Defendant
CUBESMART MANAGEMENT, LLC
2174 Jackson Avenue
Seaford, NY 11783
(516) 409-6200
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Preview
FILED: BRONX COUNTY CLERK 11/04/2021 02:13 PM INDEX NO. 31551/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/04/2021 PJS/gf #15881 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------ x JUAN BONAPARTE, Index No.: 31551/2020E Plaintiffs, AFFIRMATION -against- Returnable: 11/12/2021 CUBESMART MANAGEMENT, LLC, Defendants. ---------------------------------------------------------------------- x PATRICK J. SHELLEY, ESQ., an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1. I am a member of the law firm of KERLEY, WALSH, MATERA & CINQUEMANI, P.C., attorneys for the defendant, CUBESMART MANAGEMENT, LLC. As such and from a review of the file maintained by this office, I am fully familiar with the facts and circumstances of this matter. 2. This Affirmation is submitted in support of the instant cross-motion which seeks directing the entry of a Judgment of default on the counter-claims set forth by defendant in their Answer, setting the matter down for an inquest as to damages, ordering the costs, disbursements, and reasonable attorney’s fees to abide this motion and for such other and further relief as this Court deems proper and equitable; the instant application also sets forth the basis for the Affirmation in Opposition to plaintiff’s instant application. 1 of 5 FILED: BRONX COUNTY CLERK 11/04/2021 02:13 PM INDEX NO. 31551/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/04/2021 PROCEDURAL HISTORY 3. This case alleges claims of personal injury. The case was initiated by service of the Summons and Complaint on or about October 8, 2020. (Exhibit “A”/NYSCEF Docket#1). 4. An Answer was interposed on behalf of the defendant on or about December 11, 2020. (Exhibit “B”/NYSCEF Docket#8). Along with the Answer, a Notice to Deposition Upon Oral Examination was served upon plaintiff’s counsel on or about December 11, 2020. A copy of the Notice of Deposition Upon Oral Examination and Affidavit of Service is annexed hereto as Exhibit C. LEGAL ARGUMENT 5. As indicated above, as part of the Answer interposed on behalf of the defendant, a counter-claim was raised with regard to unpaid bills. The time to appear and interpose an Answer to the counter-claim has now expired. 6. The plaintiff has not served an Answer to the counter-claim or moved with respect to the counter-claim herein, and the time having now expired, the plaintiff is now in default. No previous application for the relief sought in this motion has ever been made, and due to the foregoing, a default judgment should be granted as to the counter-claim in favor of the defendant. PLAINTIFF’S APPLICATION WITH REGARD TO DEFENDANT’S ANSWER SHOULD BE DENIED IN ITS ENTIRETY 2 of 5 FILED: BRONX COUNTY CLERK 11/04/2021 02:13 PM INDEX NO. 31551/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/04/2021 7. At the outset, it should be noted that plaintiff’s motion which seeks a default to strike the Answer of the defendant should be denied in its entirety. Plaintiff’s alleged Affirmation of Good Faith does not set forth anything that is in line with the Court’s statutory requirements. Plaintiff’s counsel never contacted the undersigned to discuss outstanding discovery issues. Any Affirmation to the contrary is clearly not true. The undersigned actually had a conversation with plaintiff’s counsel once the motion was made to advise him that he has not complied with the Affirmation of Good Faith and advised during multiple conversations with plaintiff’s son, who is a former associate at his office, regarding discovery issues that were never addressed by plaintiff’s counsel’s office. 8. Additionally, plaintiff’s motion does not comply with the new meet and confer provisions of NYCRR 202.20-f, which requires under subsection (b) that: “prior to contacting the Court regard disclosure dispute, counsel must first consult with each other in a good faith effort to resolve all disputes about disclosure. Such consultation must take place by an in person or telephonic conference. In the event that a discovery dispute cannot be resolved other than through motion practice, each such discovery motion shall be supported by an Affidavit or Affirmation from counsel attesting to counsel having conducted an in person or telephonic conference, setting forth the date and time of such conference, persons participating and the length of time of that conference. “ As indicated previously, such conference never took place. 9. Additionally, as the Court will note from plaintiff’s application, the only portion of discovery that the plaintiff could potentially rightfully be owed, is a Bill of Particulars as to affirmative defenses. Plaintiff claims that they have priority as to deposition, however, a copy of the Notice of Deposition served along with defendant’s Answer is annexed hereto as Exhibit C. Clearly, defendant has priority of deposition in that the plaintiff had not produced his 3 of 5 FILED: BRONX COUNTY CLERK 11/04/2021 02:13 PM INDEX NO. 31551/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/04/2021 client for a deposition. Striking of the defendant’s Answer cannot be based upon the plaintiff’s failure to provide a deposition to plaintiff’s counsel. 10. Also, there has been no preliminary conference in this action or any other Court Order relating to discovery. Without any such Order, or any attempt by plaintiff’s counsel to resolve the outstanding discovery dispute pursuant to the meet and confer provision, plaintiff’s counsel cannot set forth any record of willful and contumacious conduct by the defendant which would be required for the instant application to be granted. The Bill of Particulars as to affirmative defenses really cannot be responded to by defense counsel at this time. However, we have provided what information is available to us in a response. Exhibit “D”/NYSCEF Docket #25. The defendants will make every attempt to respond to plaintiff’s Demand for a Verified Bill of Particulars as additional information is available and discovery progresses. 11. However, based upon the foregoing, it is clear that the defendant’s cross- motion should be granted in all respects and plaintiff’s application to strike the Answer of the defendant should be denied based upon the foregoing. WHEREFORE, it is respectfully requested that this Court issue an Order granting the within application in all aspects and denying plaintiff’s motion in its entirety, together with such other and further relief as this Court may deem just, proper, and equitable. Dated: Seaford, New York November 3, 2021 ____________________________________ PATRICK J. SHELLEY 4 of 5 FILED: BRONX COUNTY CLERK 11/04/2021 02:13 PM INDEX NO. 31551/2020E NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/04/2021 CERTIFICATION PURSUANT TO 22 NYCRR 202.8-b(c) I hereby certify that the foregoing Affirmation in Support complies with the word count limit pursuant to 22 NYCRR 202.8-b(c) as the total number of words in this Affirmation in Support is 929. Dated: Seaford, New York November 3, 2021 Respectfully submitted, KERLEY, WALSH, MATERA & CINQUEMANI, P.C. _______________________________ PATRICK J. SHELLEY Attorneys for Defendant CUBESMART MANAGEMENT, LLC 2174 Jackson Avenue Seaford, NY 11783 (516) 409-6200 5 of 5