Party Statement: Paula Decola v. Razzano Homes & Remodelers, Inc.

On September 20, 2021 a Party Statement was filed involving a dispute between Paula Decola, and Razzano Homes & Remodelers, Inc., for Commercial - Contract in the District Court of Rensselaer County.

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FILED: RENSSELAER COUNTY CLERK 03/12/2022 09:27 AM INDEX NO. EF2021-270027
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/12/2022

STATE OF NEW YORK SUPREME COURT
COUNTY OF RENSSELAER

PAULA DECOLA,

Plaintiff,
Index No. EF2021-270027
-against-

RAZZANO HOMES & REMODELERS,
INC.
Defendant.

MARIO DAVID COMETTI, Esq. an attorney duly licensed to practice law in the
State of New York under penalty of perjury affirms as follows.
1. I am the founder of the Cometti Law Firm, attorneys for defendant

RAZZANO HOMES & REMODELERS, INC. (hereinafter “Defendant” or

Razzano Homes & Builders”) I make this affirmation in support of a motion

seeking an Order:

a. Pursuant to CPLR § 3214 (d) compelling Plaintiff to fully comply

with outstanding discovery demands.

b. And/or a conditional order striking the reply of the Plaintiff as to

counterclaims brought by the Defendant if these documents are not

disclosed.

c. For such other and further relief as deemed just and proper.

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2. As set forth hereinafter, Plaintiff is withholding documents crucial to the

defense against Plaintiff’s claims and in support of Defendant’s own

counterclaim for breach of the contract at issue in this lawsuit.

Summary of claims

3. This lawsuit arises out of contracts into between Defendant with Ms. Paula

DeCola, (hereinafter “Plaintiff”) on March 11th, 2021, (hereinafter “3/11/21

Design Agreement”) (attached as Exhibit D to the Plaintiff’s complaint, Docket

# 2); and thereafter on April 21,2021, a Construction contract (attached as

Exhibit F to Plaintiff’s Complaint) (hereinafter “4/21/2021 Construction

Agreement”).

4. These contracts sought to hire the services of the Defendant to do remodeling

for a home located at 52 Loon Creek Lane, Averill Park, NY (hereinafter

“Subject property”). Under the terms and conditions of the 4/21/2021

Construction Agreement, a completion date of September 24 th, 2021, was set

)hereinafter the “9/24/2021 Completion Date”) . (See for example paragraph 36

of the Complaint).

5. Plaintiff unilaterally canceled the contract on June 14th, 2022, (See paragraph 78

of Complaint, Doc. #2) under the pretense that the remodeling could not be

finished by the 9/24/2021 Completion Date

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6. It is the Defendant’s contention that Plaintiff canceled, and thus breached the

4/21/2021 Construction Agreement, because she had purchased another home

and that she invented a pretense to avoid the ramifications of that breach.

7. The Defendant has a good faith basis for this contention. It is what was told to

the Defendant by the Plaintiff herself. (See paragraph 17, of Aff. of Daniel

Razzano, Docket #10):

At the 6/14/2021 Meeting Ms. DeCola advised me that she was canceling the
contract. However, that “cancellation” had nothing to do with our services.
Instead, I was informed that she had, over the weekend, (the 14th was a
Monday) she had signed a contract to purchase another home. She explicitly
told me that this was a better solution for her, towards her goal of moving
her daughter in with her. In other words, she had no intention at that point
whatsoever to proceed with any project whatsoever at the location of the
Subject Property. (Id.)

8. Also, Plaintiff never attempted to finish the remodeling with another contractor

and instead had moved to 162 Methodist Farm Road, Averill Park, New York,

12018 (hereinafter “Plaintiff’s New Residence”). (See Plaintiff’s response to

CPLR 3118 demand, attached as Exhibit A)

9. Further, Plaintiff did not contest this factual claim during the recently resolved

motion to vacate. Indeed, Defendant pointed out in its motion papers that the

failure to acknowledge the fact that Plaintiff had moved was indicative of an

intent to mislead the court as to the true intentions pertaining to the decision to

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cancel the 4/21/2021 Construction Agreement. (See e.g. Attorney affirmation,

paragraphs 34-36, Docket #20)

Discovery issue

10.Defendant served a demand requesting all documents (including emails,

contracts etc.) related to Plaintiff’s sale of her home, the Subject Property,

AND her acquisition of Plaintiff’s New Residence. (See demands #6 and #8,

Exhibit B):

6. Copies of and deeds, surveys, contracts for sale or purchase with respect
to real property located at 52 Loon Creek Lane, Sand Lake, NY
(hereinafter “Subject Property”).

-and-

8. Copies of any records that depict, demonstrate, or otherwise pertain
to any real property that Plaintiff contracted to purchase in the year 2021 or
2022. Including but not limited to:
a. Copies of any contracts entered into; and
b. Copies of any communications between the Plaintiff and any
seller (or their representative) of such real property contracted for.

11.Plaintiff objected. (Id)

12.In my good faith attempts to resolve the issue, Plaintiff’s attorney has not

identified any legitimate basis to withhold any documents pertaining to these

requests and has not clarified whether all documents related to Plaintiff’s

former home and present residence will be disclosed. (See emails, Exhibit C).

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13.As the Court is aware, I sought intervention and assistance from the court. (See

letter dated 3/06/2022. Docket #28) I had asked for a conference call.

14.In response the Court stated that these issues would be addressed at the time of

the next Court conference, scheduled for March 21st, 2022. However, the

Court made clear its standard for discovery requests, stating:

Here, the Court would be remiss if it did not note, absent a protective order,
CPLR 3101(a) mandates the "full disclosure of all matter material and
necessary in the prosecution or defense of an action"; and that material and
necessary are to be interpreted liberally and particularly including "any
facts bearing on the controversy"(Allen v Crowell-Collier Publ. Co, 21
NY2d 403, 406. So Ordered! March 7, 2022. (Docket #29)
15.After the Order, Plaintiff submitted a supplemental response to the demand for

documents.

16.Once again, Plaintiff was non-responsive and evasive about complying with

the demand. (hereinafter “3/09/2022 Supplemental Demand” attached as

Exhibit D)

“Document Demand: In the February 24, 2021 [sic] letter of Mario David
Cometti, Esq. Defendant requested ‘information as to whether or not
plaintiff entered into a contract for the sale of her property before canceling
the contract at issue.’”

17.It is submitted that this response and supplementation was made in bad faith.

18.First, it does not fully comply with the documents requested as to the sale of

the Subject property. It contains legal documents such as a listing notification

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form dated July 21/2021. (See bates stamped page 203, Ex. D) However, it

does not include any indication, one way or the other, as to whether emails

exist between the Plaintiff and her realtor, which it strains reason did not occur.

19.Further, 3/09/2022 Supplemental Demand completely ignores Demand #8 –

pertaining to “Plaintiff’s New Residence.” No documentation whatsoever has

been provided as to when this property was contracted for.

20.The documents recently disclosed do, however, further substantiate that the

Defendant has a good faith defense and meritorious counter claim:

a. Plaintiff signed a listing agreement on July 21st, 2021 – again, strongly

suggesting that she had abandoned any intention of honoring the

Construction Contract. (See Bates No. 203, Exhibit D)

b. Further, it appears that the Plaintiff entered a contract to sell the

Subject Property on August 1st, 2021. (See Bates No. 233- 235,

Exhibit D)

21.It is clear that Plaintiff is deliberately and continuously withholding documents

and information that, not only demonstrates that her claims are frivolous, but

also which strongly support Defendant’s counterclaims alleging that it was the

Plaintiff who breached the contract.

22. Once the documentation is obtained, Defendant intends, amongst other

actions, to move for a dismissal.

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23.Defendant has been served with a bevy of discovery demands that are

unnecessary given the fact that Plaintiff’s claims will be potentially subject to

immediate dismissal.

24.It is submitted that the Defendant has conferred with counsel for the opposing

party in a good-faith effort to resolve the issues raised by the motion in

accordance with 22 N.Y.C.R.R. 202.7(a)(2).

25.It is also clear that documents pertaining to the Subject Property and Plaintiff’s

New Residence are material and necessary to this action

26.Opposing counsel hasn’t attempted to articulate any basis for withholding the

information.

WHEREFORE, Defendant requests:

a. An order pursuant to CPLR § 3214 (d) compelling Plaintiff to fully

comply with outstanding discovery demands.

b. And/or a conditional order striking the answer of the Plaintiff as to

counterclaims if these documents are not disclosed.

c. For such other and further relief as deemed just and proper.

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Dated: March 11, 2022 COMETTI LAW FIRM

BY:
MARIO DAVID COMETTI, ESQ.
Attorney for Defendant
PO Box 132
Delmar, NY 12054
518.852.8413
MDC@comettilawfirm.

To:
John, Ducharme, Esq.
Attorney for Plaintiff
DuCharme Clark, LLP
646 Plank Road - Suite 204
Clifton Park, New York 12065

CERTIFICATION AS TO WORD COUNT

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Pursuant to 22 NYCRR §202.8-b(c)
The foregoing affidavit was prepared on a computer. The total number of words in
the document, inclusive of point headings and footnotes and exclusive of signature
blocks and this certification is 1302 words.

Dated March 11th, 2022

__________________________
Mario David Cometti, Esq.

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Case Info

Judge

Henry F. Zwack Track Judge’s New Case

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Document Filed Date

March 12, 2022

Case Filing Date

September 20, 2021

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Party Statement: Paula Decola v. Razzano Homes & Remodelers, Inc.

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