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FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
PRISCILLA MARTINEZ,
Index No: 154062/2020
Plaintiff(s),
GOOD FAITH AFFIRMATION
- against -
RITE AID OF NEW YORK CITY INC., and CATS 3531
BROADWAY, LLC,
Defendant(s).
-----------------------------------------------------------------------X
SETH B. RUBINE, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am a partner at Rubine + Cha, LLC, attorneys for defendants, RITE AID OF
NEW YORK, INC. incorrectly sued herein as RITE AID OF NEW YORK CITY, INC. and R.A.
REAL ESTATE, INC. sued herein as CATS 3531 BROADWAY, LLC. As such, I am fully familiar
with the facts and circumstances set forth herein.
2. I make this affirmation after having reviewed the contents of the file for the
defense of this action maintained by my office.
3. This Affirmation is submitted pursuant to 22 NYCRR 202.7(a)(2) requiring that
a good faith effort be made prior to making a discovery-related motion.
4. On February 7, 2021, your affirmant sent an email to plaintiff’s counsel
requesting a signed HIPAA authorization to obtain records from “Town Drug & Surgical”
and signed HIPAA authorizations to obtain records related to plaintiff’s recent lumbar
surgery. See Exhibit “G.”
5. As no reply was received, your affirmant sent a follow-up email to plaintiff’s
counsel on February 15, 2021. See Exhibit “H.”
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6. On March 22, 2021, your affirmant sent a good faith letter to plaintiff’s
counsel to request compliance with your affirmant’s February 7, 2021 supplemental
demands. See Exhibit “I.”
7. On May 13, 2021, your affirmant sent a second good faith letter to plaintiff’s
counsel again requesting compliance with your affirmant’s February 7, 2021
supplemental demands. Said letter also informed plaintiff’s counsel of specific medical
providers involved in plaintiff’s lumbar surgery (NYU Tisch Hospital and Lenox Hill
Radiology). Said letter also asked for an update on plaintiff’s “diligent search” for
information regarding her prior motor vehicle accident and left knee surgery. See Exhibit
“J.”
8. On June 7, 2021, your affirmant sent a third good faith letter to plaintiff’s
counsel again requesting that plaintiff provide all outstanding discovery. Said letter
informed counsel that defendants would be forced to file a motion if plaintiff did not reply
to the demands by June 11, 2021. See Exhibit “K.”
9. To date, no response from the plaintiff has been received and the plaintiff’s
discovery remains outstanding.
10. Despite your affirmant’s good faith efforts to obtain discovery from the
plaintiff, this issue remains unresolved.
11. On November 19, 2020, defendants electronically filed the Request for
Judicial Intervention and Request for Preliminary Conference. See Exhibit “L.”
12. To date, the Preliminary Conference has not yet been scheduled.
Telephone calls to the Court to expedite scheduling of a Preliminary Conference have
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been unsuccessful. As such, defendants have no choice but to address plaintiff’s
continued failure to provide discovery through motion practice.
13. Therefore, judicial intervention in the form of a Motion to Dismiss, Preclude,
and/or Compel is warranted and necessary.
14. To your affirmant’s knowledge and belief, there are no prior applications
for the relief sought in the instant motion.
Dated: Glen Rock, New Jersey
June 17, 2021 RUBINE + CHA, LLC
BY: ___________________________
SETH B. RUBINE, ESQ.
Attorneys for Defendants,
RITE AID OF NEW YORK, INC. i/s/h/a
sued herein as RITE AID OF NEW YORK
CITY, INC., and R.A. REAL ESTATE, INC.
s/h/a CATS 3531BROADWAY, LLC
65 Harristown Road, Suite 203
Glen Rock, New Jersey 07452
(201) 857-5815
TO:
Maria Zieher, Esq.
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff,
PRISCILLA MARTINEZ
150 Broadway
New York, New York 10038
(212) 285-3800
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Preview
FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X PRISCILLA MARTINEZ, Index No: 154062/2020 Plaintiff(s), GOOD FAITH AFFIRMATION - against - RITE AID OF NEW YORK CITY INC., and CATS 3531 BROADWAY, LLC, Defendant(s). -----------------------------------------------------------------------X SETH B. RUBINE, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am a partner at Rubine + Cha, LLC, attorneys for defendants, RITE AID OF NEW YORK, INC. incorrectly sued herein as RITE AID OF NEW YORK CITY, INC. and R.A. REAL ESTATE, INC. sued herein as CATS 3531 BROADWAY, LLC. As such, I am fully familiar with the facts and circumstances set forth herein. 2. I make this affirmation after having reviewed the contents of the file for the defense of this action maintained by my office. 3. This Affirmation is submitted pursuant to 22 NYCRR 202.7(a)(2) requiring that a good faith effort be made prior to making a discovery-related motion. 4. On February 7, 2021, your affirmant sent an email to plaintiff’s counsel requesting a signed HIPAA authorization to obtain records from “Town Drug & Surgical” and signed HIPAA authorizations to obtain records related to plaintiff’s recent lumbar surgery. See Exhibit “G.” 5. As no reply was received, your affirmant sent a follow-up email to plaintiff’s counsel on February 15, 2021. See Exhibit “H.” 1 of 3 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2021 6. On March 22, 2021, your affirmant sent a good faith letter to plaintiff’s counsel to request compliance with your affirmant’s February 7, 2021 supplemental demands. See Exhibit “I.” 7. On May 13, 2021, your affirmant sent a second good faith letter to plaintiff’s counsel again requesting compliance with your affirmant’s February 7, 2021 supplemental demands. Said letter also informed plaintiff’s counsel of specific medical providers involved in plaintiff’s lumbar surgery (NYU Tisch Hospital and Lenox Hill Radiology). Said letter also asked for an update on plaintiff’s “diligent search” for information regarding her prior motor vehicle accident and left knee surgery. See Exhibit “J.” 8. On June 7, 2021, your affirmant sent a third good faith letter to plaintiff’s counsel again requesting that plaintiff provide all outstanding discovery. Said letter informed counsel that defendants would be forced to file a motion if plaintiff did not reply to the demands by June 11, 2021. See Exhibit “K.” 9. To date, no response from the plaintiff has been received and the plaintiff’s discovery remains outstanding. 10. Despite your affirmant’s good faith efforts to obtain discovery from the plaintiff, this issue remains unresolved. 11. On November 19, 2020, defendants electronically filed the Request for Judicial Intervention and Request for Preliminary Conference. See Exhibit “L.” 12. To date, the Preliminary Conference has not yet been scheduled. Telephone calls to the Court to expedite scheduling of a Preliminary Conference have 2 of 3 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/17/2021 been unsuccessful. As such, defendants have no choice but to address plaintiff’s continued failure to provide discovery through motion practice. 13. Therefore, judicial intervention in the form of a Motion to Dismiss, Preclude, and/or Compel is warranted and necessary. 14. To your affirmant’s knowledge and belief, there are no prior applications for the relief sought in the instant motion. Dated: Glen Rock, New Jersey June 17, 2021 RUBINE + CHA, LLC BY: ___________________________ SETH B. RUBINE, ESQ. Attorneys for Defendants, RITE AID OF NEW YORK, INC. i/s/h/a sued herein as RITE AID OF NEW YORK CITY, INC., and R.A. REAL ESTATE, INC. s/h/a CATS 3531BROADWAY, LLC 65 Harristown Road, Suite 203 Glen Rock, New Jersey 07452 (201) 857-5815 TO: Maria Zieher, Esq. SUBIN ASSOCIATES, LLP Attorneys for Plaintiff, PRISCILLA MARTINEZ 150 Broadway New York, New York 10038 (212) 285-3800 3 of 3