Preview
FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020
NYSCEF DOC. NO. 37 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),
AFFIRMATION IN SUPPORT
- 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:
INTRODUCTION
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, and I am fully familiar with
the facts and circumstances as set forth herein.
2. This Affirmation is submitted in support of the defendants’ Motion for an
Order: (1) Dismissing the plaintiff, PRISCILLA MARTINEZ’S, Verified Complaint pursuant to
CPLR §3126(3) for failure to respond to discovery; (2) Precluding plaintiff from introducing
any evidence or testimony on the issues of liability and damages at the time of trial
pursuant to CPLR §3126(2), or in the alternative (3) Compelling plaintiff’s full and
complete responses to defendants’ supplemental requests for discovery and signed
HIPAA authorizations by correspondence dated February 7, 2021, February 15, 2021,
March 22, 2021, May 13, 2021, and June 7, 2021 pursuant to CPLR §3124; and; (4) For such
other and further relief as this Court deems just, proper and equitable.
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PROCEDURAL HISTORY
3. This personal injury action arises out of an alleged incident that occurred
on December 18, 2017 on the sidewalk adjacent to the Rite Aid store located at 3539
Broadway in Manhattan.
4. The plaintiff, by and through her attorneys, commenced this action through
the electronic filing of a Summons and Verified Complaint on or about June 8, 2020, true
and correct copies of which are attached as Exhibit “A.”
5. On July 15, 2020, defendants electronically filed and served its Verified
Answer to Plaintiff’s Complaint with Affirmative Defenses, a true and correct copy of
which is attached as Exhibit “B.”
6. On July 16, 2020, defendants served their Demand for a Verified Billof
Particulars and Combined Discovery Demands upon the plaintiff, true and correct copies
of which are collectively attached as Exhibit “C.”
7. On September 25, 2020, defendants received plaintiff’s Bill of Particulars
and responses to Combined Discovery Demands, true and correct copies of which are
attached as Exhibit “D.”
8. On October 1, 2020, your affirmant sent a letter to plaintiff’s counsel to
request missing information from the plaintiff’s discovery, including:
• Properly initialed and executed HIPAA authorizations for plaintiff’s
records from any and all physicians and medical facilities that treated the
plaintiff for her motor vehicle accident as referenced in the January 22,
2018 physical therapy note from All Boro Medical Rehabilitation (see
enclosed)
• Properly initialed and executed HIPAA authorizations for plaintiff’s
records from any and all physicians and medical facilities that treated the
plaintiff for her prior left knee condition and surgery in 2017 as referenced
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in the January 22, 2018 physical therapy note from All Boro Medical
Rehabilitation (see enclosed)
A true and correct copy of your affirmant’s letter dated October 1, 2020 is attached as
Exhibit “E.”
9. As plaintiff failed to provide this additional information, defendants were
forced to file a Motion to Compel. In response to the Motion, plaintiff’s counsel finally
provided the supplemental discovery replies on January 6, 2021, a true and correct copy
of which is attached hereto as Exhibit “F.”
10. In said reply, plaintiff indicated that she was “diligently searching her
records” for information regarding her prior motor vehicle accident and left knee
condition/surgery. Plaintiff stated that she “will provide authorizations under separate
cover, if applicable.”
11. Upon receipt of additional medical records, your affirmant learned that
plaintiff’s pharmacy at the time of this incident was “Town Drug & Surgical”. Your
affirmant also learned that plaintiff had a recent, and to date undisclosed, lumbar
surgery. Your affirmant therefore sent plaintiff’s counsel an email on February 7, 2021
requesting a signed HIPAA authorization to obtain records from “Town Drug & Surgical”
and signed HIPAA authorizations to obtain records related to the lumbar surgery. A true
and correct copy of your affirmant’s email is attached hereto as Exhibit “G.”
12. As no reply was received, your affirmant sent a follow-up email to plaintiff’s
counsel on February 15, 2021, a true and correct of which is attached hereto as Exhibit
“H.”
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13. 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, a true and correct copy of which is attached as Exhibit “I.”
14. 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 condition/surgery.
A true and correct copy of your affirmant’s letter is attached hereto as Exhibit “J.”
15. 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. A true and correct copy of your affirmant’s letter is
attached hereto as Exhibit “K.”
16. To date, no response to your affirmant’s correspondence dated February
7, 2021, February 15, 2021, March 22, 2021, May 13, 2021, and June 7, 2021 has been
received and the plaintiff’s discovery pursuant to said letters remains outstanding.
17. On November 19, 2020, defendants electronically filed the Request for
Judicial Intervention and Request for Preliminary Conference, true and correct copies of
which are collectively attached as Exhibit “L.”
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18. To date, the Preliminary Conference has not yet been scheduled.
Telephone calls to the Court to expedite scheduling of a Preliminary Conference have
been unsuccessful. As such, defendants have no choice but to address plaintiff’s
continued failure to provide discovery through motion practice.
19. Without the foregoing outstanding discovery, the defendants are
prejudiced in their ability to properly defend the claims brought by the plaintiff against
them in this action.
20. The foregoing demonstrates the defendants’ good faith efforts to obtain
the plaintiff’s outstanding discovery, albeit without success, thereby necessitating the
instant Motion to Dismiss.
LEGAL ARGUMENT
21. CPLR §3126(3) provides that a Court may impose penalties against a party
that “willfully fails to disclose information which the Court determines ought to have been
disclosed pursuant to this article” and permits the Court to issue an Order “striking out
pleadings or parts thereof or staying further proceedings until the order is obeyed or
dismissing the action or any party thereof or rendering a judgment by default against the
disobedient party.”
22. Pursuant to CPLR §3126(2), the Court is permitted to issue an Order
“prohibiting the disobedient party from supporting or opposing designated claims or
defenses, from producing in evidence designated things or items of testimony, or from
introducing any evidence of the physical, mental or blood condition sought to be
determined, or from using certain witnesses.”
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23. The Courts have held that where a party willfully ignores and fails to respond
to discovery, the Court is justified in dismissing the pleading of the defaulting party.
Scharlack v. Richmond Memorial Hospital, 127 AD2d 580, 511 NYS2d 380 (2nd Dept. 1997).
A party to an action may not simply refuse to comply with another party’s discovery
demands. Grueling v. Breakey, 56 AD2d 540, 391 NYS2d 585 (1st Dept. 1977).
24. Once it has been demonstrated that a party’s failure to provide disclosure
is willful, contumacious or in bad faith, the burden then shifts to the nonmoving party to
demonstrate a reasonable excuse for their failure to fulfilltheir discovery obligations.
Tejada v. 750 Gerard Properties Corp., 272 AD2d 124, 707 NYS2d 174 (1st Dept. 2000). See
also Harris v. City of New York, 211 AD2d 663, 622 NYS2d 289 (2nd Dept. 1995). In Berman
v. Szpilzinger, 180 AD2d 612, 580 NYS2d 324 (1st Dept. 1992), the Court reasoned that the
nature and extent of the penalty to be imposed pursuant to CPLR §3126 lies within its
sound discretion.
25. To date, plaintiff’s counsel has not responded to the defendants’ continued
good faith efforts to avoid motion practice. Moreover, no reasonable excuse has been
offered for the continued delay.
26. In the alternative, CPLR §3124 states, “If a person fails to respond to or
comply with any request, notice, interrogatory, demand, question or order under this
article, except a notice to admit under section 3123, the party seeking disclosure may
move to compel compliance or a response.”
WHEREFORE, 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, respectfully requests that this Honorable Court grant the defendants’
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021
Motion in its entirety and enter an Order:
(1) Dismissing the plaintiff, PRISCILLA MARTINEZ’S, Verified Complaint pursuant to
CPLR §3126(3) for failure to respond to discovery;
(2) Precluding plaintiff from introducing any evidence or testimony on the issues of
liability and damages at the time of trial pursuant to CPLR §3126(2), or in the alternative
(3) Compelling plaintiff’s full and complete responses to defendants’
supplemental requests for discovery and signed HIPAA authorizations by
correspondence dated February 7, 2021, February 15, 2021, March 22, 2021, May 13,
2021, and June 7, 2021 pursuant to CPLR §3124; and
(4) For such other and further relief as this Court deems just, proper and equitable.
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. 37 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), AFFIRMATION IN SUPPORT - 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: INTRODUCTION 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, and I am fully familiar with the facts and circumstances as set forth herein. 2. This Affirmation is submitted in support of the defendants’ Motion for an Order: (1) Dismissing the plaintiff, PRISCILLA MARTINEZ’S, Verified Complaint pursuant to CPLR §3126(3) for failure to respond to discovery; (2) Precluding plaintiff from introducing any evidence or testimony on the issues of liability and damages at the time of trial pursuant to CPLR §3126(2), or in the alternative (3) Compelling plaintiff’s full and complete responses to defendants’ supplemental requests for discovery and signed HIPAA authorizations by correspondence dated February 7, 2021, February 15, 2021, March 22, 2021, May 13, 2021, and June 7, 2021 pursuant to CPLR §3124; and; (4) For such other and further relief as this Court deems just, proper and equitable. 1 1 of 7 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021 PROCEDURAL HISTORY 3. This personal injury action arises out of an alleged incident that occurred on December 18, 2017 on the sidewalk adjacent to the Rite Aid store located at 3539 Broadway in Manhattan. 4. The plaintiff, by and through her attorneys, commenced this action through the electronic filing of a Summons and Verified Complaint on or about June 8, 2020, true and correct copies of which are attached as Exhibit “A.” 5. On July 15, 2020, defendants electronically filed and served its Verified Answer to Plaintiff’s Complaint with Affirmative Defenses, a true and correct copy of which is attached as Exhibit “B.” 6. On July 16, 2020, defendants served their Demand for a Verified Billof Particulars and Combined Discovery Demands upon the plaintiff, true and correct copies of which are collectively attached as Exhibit “C.” 7. On September 25, 2020, defendants received plaintiff’s Bill of Particulars and responses to Combined Discovery Demands, true and correct copies of which are attached as Exhibit “D.” 8. On October 1, 2020, your affirmant sent a letter to plaintiff’s counsel to request missing information from the plaintiff’s discovery, including: • Properly initialed and executed HIPAA authorizations for plaintiff’s records from any and all physicians and medical facilities that treated the plaintiff for her motor vehicle accident as referenced in the January 22, 2018 physical therapy note from All Boro Medical Rehabilitation (see enclosed) • Properly initialed and executed HIPAA authorizations for plaintiff’s records from any and all physicians and medical facilities that treated the plaintiff for her prior left knee condition and surgery in 2017 as referenced 2 2 of 7 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021 in the January 22, 2018 physical therapy note from All Boro Medical Rehabilitation (see enclosed) A true and correct copy of your affirmant’s letter dated October 1, 2020 is attached as Exhibit “E.” 9. As plaintiff failed to provide this additional information, defendants were forced to file a Motion to Compel. In response to the Motion, plaintiff’s counsel finally provided the supplemental discovery replies on January 6, 2021, a true and correct copy of which is attached hereto as Exhibit “F.” 10. In said reply, plaintiff indicated that she was “diligently searching her records” for information regarding her prior motor vehicle accident and left knee condition/surgery. Plaintiff stated that she “will provide authorizations under separate cover, if applicable.” 11. Upon receipt of additional medical records, your affirmant learned that plaintiff’s pharmacy at the time of this incident was “Town Drug & Surgical”. Your affirmant also learned that plaintiff had a recent, and to date undisclosed, lumbar surgery. Your affirmant therefore sent plaintiff’s counsel an email on February 7, 2021 requesting a signed HIPAA authorization to obtain records from “Town Drug & Surgical” and signed HIPAA authorizations to obtain records related to the lumbar surgery. A true and correct copy of your affirmant’s email is attached hereto as Exhibit “G.” 12. As no reply was received, your affirmant sent a follow-up email to plaintiff’s counsel on February 15, 2021, a true and correct of which is attached hereto as Exhibit “H.” 3 3 of 7 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021 13. 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, a true and correct copy of which is attached as Exhibit “I.” 14. 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 condition/surgery. A true and correct copy of your affirmant’s letter is attached hereto as Exhibit “J.” 15. 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. A true and correct copy of your affirmant’s letter is attached hereto as Exhibit “K.” 16. To date, no response to your affirmant’s correspondence dated February 7, 2021, February 15, 2021, March 22, 2021, May 13, 2021, and June 7, 2021 has been received and the plaintiff’s discovery pursuant to said letters remains outstanding. 17. On November 19, 2020, defendants electronically filed the Request for Judicial Intervention and Request for Preliminary Conference, true and correct copies of which are collectively attached as Exhibit “L.” 4 4 of 7 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021 18. To date, the Preliminary Conference has not yet been scheduled. Telephone calls to the Court to expedite scheduling of a Preliminary Conference have been unsuccessful. As such, defendants have no choice but to address plaintiff’s continued failure to provide discovery through motion practice. 19. Without the foregoing outstanding discovery, the defendants are prejudiced in their ability to properly defend the claims brought by the plaintiff against them in this action. 20. The foregoing demonstrates the defendants’ good faith efforts to obtain the plaintiff’s outstanding discovery, albeit without success, thereby necessitating the instant Motion to Dismiss. LEGAL ARGUMENT 21. CPLR §3126(3) provides that a Court may impose penalties against a party that “willfully fails to disclose information which the Court determines ought to have been disclosed pursuant to this article” and permits the Court to issue an Order “striking out pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or any party thereof or rendering a judgment by default against the disobedient party.” 22. Pursuant to CPLR §3126(2), the Court is permitted to issue an Order “prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses.” 5 5 of 7 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021 23. The Courts have held that where a party willfully ignores and fails to respond to discovery, the Court is justified in dismissing the pleading of the defaulting party. Scharlack v. Richmond Memorial Hospital, 127 AD2d 580, 511 NYS2d 380 (2nd Dept. 1997). A party to an action may not simply refuse to comply with another party’s discovery demands. Grueling v. Breakey, 56 AD2d 540, 391 NYS2d 585 (1st Dept. 1977). 24. Once it has been demonstrated that a party’s failure to provide disclosure is willful, contumacious or in bad faith, the burden then shifts to the nonmoving party to demonstrate a reasonable excuse for their failure to fulfilltheir discovery obligations. Tejada v. 750 Gerard Properties Corp., 272 AD2d 124, 707 NYS2d 174 (1st Dept. 2000). See also Harris v. City of New York, 211 AD2d 663, 622 NYS2d 289 (2nd Dept. 1995). In Berman v. Szpilzinger, 180 AD2d 612, 580 NYS2d 324 (1st Dept. 1992), the Court reasoned that the nature and extent of the penalty to be imposed pursuant to CPLR §3126 lies within its sound discretion. 25. To date, plaintiff’s counsel has not responded to the defendants’ continued good faith efforts to avoid motion practice. Moreover, no reasonable excuse has been offered for the continued delay. 26. In the alternative, CPLR §3124 states, “If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” WHEREFORE, 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, respectfully requests that this Honorable Court grant the defendants’ 6 6 of 7 FILED: NEW YORK COUNTY CLERK 06/17/2021 03:39 PM INDEX NO. 154062/2020 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/17/2021 Motion in its entirety and enter an Order: (1) Dismissing the plaintiff, PRISCILLA MARTINEZ’S, Verified Complaint pursuant to CPLR §3126(3) for failure to respond to discovery; (2) Precluding plaintiff from introducing any evidence or testimony on the issues of liability and damages at the time of trial pursuant to CPLR §3126(2), or in the alternative (3) Compelling plaintiff’s full and complete responses to defendants’ supplemental requests for discovery and signed HIPAA authorizations by correspondence dated February 7, 2021, February 15, 2021, March 22, 2021, May 13, 2021, and June 7, 2021 pursuant to CPLR §3124; and (4) For such other and further relief as this Court deems just, proper and equitable. 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 7 7 of 7