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FILED: JEFFERSON COUNTY CLERK 02/06/2019 02:50 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/06/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
AFFIRMATION
Plaintiff,
Index No. EF2018-00001369
v. RJI No.
CHARLES PETER HUNKELE, JR., and
DAVID STROTHERS,
Defendants.
Robert J. Slye, under penalties of perjury, affirms:
1. I am an attorney at law, duly admitted to practice in the State of New
York, and a shareholder in Slye Law Offices, P.C., attorneys for Defendant David Strothers in
this action. I am fully familiar with the facts and circumstances of this case.
2. This affirmation is submitted in support of a motion to vacate Plaintiff's
Trial Note of Issue and Certificate of Readiness pursuant to 22 NYCRR §202.21(e) on the
grounds that the case is not ready for trialand, contrary to the Certificate of Readiness discovery
is not complete, together with such other and further relief as the Court deems just and proper.
3. A copy of the Trial Note of Issue and Certificate of Readiness, which were
served upon the attorneys for the Defendants on January 25, 2019, is attached as Exhibit "A".
4. Although the Certificate of Readiness states that all pleadings have been
served and all discovery proceedings now known to be necessary have been completed, the
statement is not accurate. For example, although Attorney David A. Renzi, Esq., on behalf of
Defendant Charles Peter Hunkele, Jr., served a Notice to take the deposition of Plaintiff Kenneth
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FILED: JEFFERSON COUNTY CLERK 02/06/2019 02:50 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/06/2019
Miller, that deposition has not yet taken place. A copy of the Notice to Take Deposition Upon
Oral Examination, as served by Attorney Renzi, is attached as Exhibit "B".
5. Moreover, during the examinations before trial which did take place in late
Defendants'
November 2018, Plaintiff's attorney provided attorneys with an "Amended
Complaint,"
which has not yet even been answered by the Defendants. A copy of the Amended
Complaint is attached as Exhibit "C". Because the Certificate of Readiness for Trial claims that
all pleadings have been served, and neither Attorney Renzi nor I have served an Answer to the
Amended Complaint, the Certificate of Readiness is incorrect in that respect, as well.
6. One of my discovery demands required Plaintiff to provide a copy of his
abstract of title. The response to the demand was "at this time, Plaintiff does not have an abstract
of the property. Enclosed and labeled Exhibit A are the documents forwarded by the title
property."
company which relate to the A copy of the Plaintiff's response to the Notice for
Production of Documents is attached as Exhibit "D".
"D"
7. I followed the response at Exhibit with a letter to Attorney Givas on
December 10, 2018. The letter stated: "I think itis appropriate at thistime to require the
Plaintiff to produce his abstract of title. This will reflect whether Plaintiff knew, or should have
area"
known, that the "recreation was extinguished in 1996. He certainly had a copy of the 1996
Complaint."
survey showing that, given the fact that itwas attached to the A copy of my letter
of December 10, 2018 is attached as Exhibit "E".
8. Although I had not yet moved to compel the production of an abstract, my
"E"
letter at Exhibit made clear that, if the abstract reflects that there is no recordation of the
Strothers'
discontinuance of the recreation area, I would be moving to amend Mr. Answer to
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reflect that the actions taken by a predecessor in titleserved to adversely possess against any
interest that the Plaintiff may have had. Please See Exhibit "E".
9. I respectfully submit that this matter is not ready for trial,nor can itbe
made ready for trial within the next 60 days. Mr. Miller needs to be deposed; an abstract of title
needs to be produced; amended pleadings need to be served; and motion practice may be
necessary.
10. I respectfully ask, therefore, that due to inaccuracies in the Certificate of
Readiness, the Note of Issue be stricken.
WHEREFORE, your affirmant respectfully requests an Order and Judgment of this
Court striking the Trial Note of Issue, together with judgment for the costs and disbursements of
this motion and such other and further relief as the Court deems just and proper.
Dated: February 5, 2019
Rctext&flye, Esq.
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FILED: JEFFERSON COUNTY CLERK 02/06/2019 02:50 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/06/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, AFFIRMATION Plaintiff, Index No. EF2018-00001369 v. RJI No. CHARLES PETER HUNKELE, JR., and DAVID STROTHERS, Defendants. Robert J. Slye, under penalties of perjury, affirms: 1. I am an attorney at law, duly admitted to practice in the State of New York, and a shareholder in Slye Law Offices, P.C., attorneys for Defendant David Strothers in this action. I am fully familiar with the facts and circumstances of this case. 2. This affirmation is submitted in support of a motion to vacate Plaintiff's Trial Note of Issue and Certificate of Readiness pursuant to 22 NYCRR §202.21(e) on the grounds that the case is not ready for trialand, contrary to the Certificate of Readiness discovery is not complete, together with such other and further relief as the Court deems just and proper. 3. A copy of the Trial Note of Issue and Certificate of Readiness, which were served upon the attorneys for the Defendants on January 25, 2019, is attached as Exhibit "A". 4. Although the Certificate of Readiness states that all pleadings have been served and all discovery proceedings now known to be necessary have been completed, the statement is not accurate. For example, although Attorney David A. Renzi, Esq., on behalf of Defendant Charles Peter Hunkele, Jr., served a Notice to take the deposition of Plaintiff Kenneth 1 of 3 FILED: JEFFERSON COUNTY CLERK 02/06/2019 02:50 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/06/2019 Miller, that deposition has not yet taken place. A copy of the Notice to Take Deposition Upon Oral Examination, as served by Attorney Renzi, is attached as Exhibit "B". 5. Moreover, during the examinations before trial which did take place in late Defendants' November 2018, Plaintiff's attorney provided attorneys with an "Amended Complaint," which has not yet even been answered by the Defendants. A copy of the Amended Complaint is attached as Exhibit "C". Because the Certificate of Readiness for Trial claims that all pleadings have been served, and neither Attorney Renzi nor I have served an Answer to the Amended Complaint, the Certificate of Readiness is incorrect in that respect, as well. 6. One of my discovery demands required Plaintiff to provide a copy of his abstract of title. The response to the demand was "at this time, Plaintiff does not have an abstract of the property. Enclosed and labeled Exhibit A are the documents forwarded by the title property." company which relate to the A copy of the Plaintiff's response to the Notice for Production of Documents is attached as Exhibit "D". "D" 7. I followed the response at Exhibit with a letter to Attorney Givas on December 10, 2018. The letter stated: "I think itis appropriate at thistime to require the Plaintiff to produce his abstract of title. This will reflect whether Plaintiff knew, or should have area" known, that the "recreation was extinguished in 1996. He certainly had a copy of the 1996 Complaint." survey showing that, given the fact that itwas attached to the A copy of my letter of December 10, 2018 is attached as Exhibit "E". 8. Although I had not yet moved to compel the production of an abstract, my "E" letter at Exhibit made clear that, if the abstract reflects that there is no recordation of the Strothers' discontinuance of the recreation area, I would be moving to amend Mr. Answer to 2 2 of 3 FILED: JEFFERSON COUNTY CLERK 02/06/2019 02:50 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/06/2019 reflect that the actions taken by a predecessor in titleserved to adversely possess against any interest that the Plaintiff may have had. Please See Exhibit "E". 9. I respectfully submit that this matter is not ready for trial,nor can itbe made ready for trial within the next 60 days. Mr. Miller needs to be deposed; an abstract of title needs to be produced; amended pleadings need to be served; and motion practice may be necessary. 10. I respectfully ask, therefore, that due to inaccuracies in the Certificate of Readiness, the Note of Issue be stricken. WHEREFORE, your affirmant respectfully requests an Order and Judgment of this Court striking the Trial Note of Issue, together with judgment for the costs and disbursements of this motion and such other and further relief as the Court deems just and proper. Dated: February 5, 2019 Rctext&flye, Esq. 3 3 of 3