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FILED: DUTCHESS COUNTY CLERK 12/06/2022 02:03 PM INDEX NO. 2021-51999
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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LINDA HITE, Index No.: 2021-51999
Plaintiff,
AFFIRMATION IN REPLY
-against-
ALDI INC.,
Defendant.
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Carmen L. Borbon, an attorney duly admitted to practice law in the courts of the State of
New York, hereby affirms the following under the penalties of perjury:
1. I am an associate with the law firm of Stonberg Moran, LLP, attorneys for the
defendant, ALDI, INC. (NEW YORK), s/h/a ALDI, INC., in this matter. I am fully familiar with the
facts and circumstances set forth herein.
2. This affirmation is submitted in reply to plaintiff’s opposition to defendant’s motion,
which seeks an order pursuant to 22 NYCRR §202.21(e) vacating plaintiff’s Note of Issue and
Certificate of Readiness on the grounds that all discovery proceedings are not complete, and for
such other and further relief as this Court may deem just and proper.
ARGUMENT
3. Contrary to what plaintiff argues in her opposition, discovery in this action is not
complete as of November 21, 2022. Defendant acknowledges that plaintiff responded to
defendant’s letter of October 12, 2022. See defendant’s Exhibit M. However, defendant served
plaintiff with a letter on November 21, 2022, regarding a Notice for Discovery and Inspection that
remained outstanding. See attached a copy of defendant’s letter to plaintiff, dated November 21,
2022, annexed as Exhibit P and a copy of the remaining Notice for Discovery and Inspection,
dated October 27, 2022, annexed as Exhibit Q. This demand was inadvertently not included in
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the original motion papers; however, defendant reached out to plaintiff in an attempt to resolve
the outstanding discovery. See Exhibit P.
4. This remaining discovery demand deals with plaintiff’s prior accidents, where she
injured the lower back. See Exhibit P. Plaintiff is alleging aggravation of pre-existing degenerative
changes to the lumbar spine in this action. See Exhibit P and Exhibit C. Overall, the information
sought and stilloutstanding deals with the extent of plaintiff’s damages and defendant will be
substantially prejudice if not allowed to obtain the remaining discovery. See Exhibit P and Exhibit
Q.
WHEREFORE, defendant, ALDI, INC. (NEW YORK), respectfully requests that the
Court grant the within motion in its entirety and issue an Order:
a. An Order pursuant to 22 NYCRR §202.21(e) vacating the Note of Issue and
striking this action from the trial calendar, because all pre-trial discovery has
not been completed
b. Extending defendants’ time within which to move for Summary Judgement; and
c. For such other and further relief as this Court may deem just, proper and
equitable.
Dated: New York, New York
December 5, 2022
STONBERG MORAN, LLP
Attorneys for Defendant
By: ___________________________________
Carmen L. Borbon, Esq.
505 Eighth Avenue, Suite 2302
New York, New York 10018
(212) 231-2220
Our File No.: ALD 30904
TO:
ROSENBAUM & ROSENBAUM, P.C.
Attorneys for Plaintiff
100 Wall Street, 15th Floor
New York, New York 10005
Attn: Kurt A. Doiron, Esq.
(212) 514-5007
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FILED: DUTCHESS COUNTY CLERK 12/06/2022 02:03 PM INDEX NO. 2021-51999 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ---------------------------------------------------------------------X LINDA HITE, Index No.: 2021-51999 Plaintiff, AFFIRMATION IN REPLY -against- ALDI INC., Defendant. ---------------------------------------------------------------------X Carmen L. Borbon, an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an associate with the law firm of Stonberg Moran, LLP, attorneys for the defendant, ALDI, INC. (NEW YORK), s/h/a ALDI, INC., in this matter. I am fully familiar with the facts and circumstances set forth herein. 2. This affirmation is submitted in reply to plaintiff’s opposition to defendant’s motion, which seeks an order pursuant to 22 NYCRR §202.21(e) vacating plaintiff’s Note of Issue and Certificate of Readiness on the grounds that all discovery proceedings are not complete, and for such other and further relief as this Court may deem just and proper. ARGUMENT 3. Contrary to what plaintiff argues in her opposition, discovery in this action is not complete as of November 21, 2022. Defendant acknowledges that plaintiff responded to defendant’s letter of October 12, 2022. See defendant’s Exhibit M. However, defendant served plaintiff with a letter on November 21, 2022, regarding a Notice for Discovery and Inspection that remained outstanding. See attached a copy of defendant’s letter to plaintiff, dated November 21, 2022, annexed as Exhibit P and a copy of the remaining Notice for Discovery and Inspection, dated October 27, 2022, annexed as Exhibit Q. This demand was inadvertently not included in 1 of 3 FILED: DUTCHESS COUNTY CLERK 12/06/2022 02:03 PM INDEX NO. 2021-51999 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/06/2022 the original motion papers; however, defendant reached out to plaintiff in an attempt to resolve the outstanding discovery. See Exhibit P. 4. This remaining discovery demand deals with plaintiff’s prior accidents, where she injured the lower back. See Exhibit P. Plaintiff is alleging aggravation of pre-existing degenerative changes to the lumbar spine in this action. See Exhibit P and Exhibit C. Overall, the information sought and stilloutstanding deals with the extent of plaintiff’s damages and defendant will be substantially prejudice if not allowed to obtain the remaining discovery. See Exhibit P and Exhibit Q. WHEREFORE, defendant, ALDI, INC. (NEW YORK), respectfully requests that the Court grant the within motion in its entirety and issue an Order: a. An Order pursuant to 22 NYCRR §202.21(e) vacating the Note of Issue and striking this action from the trial calendar, because all pre-trial discovery has not been completed b. Extending defendants’ time within which to move for Summary Judgement; and c. For such other and further relief as this Court may deem just, proper and equitable. Dated: New York, New York December 5, 2022 STONBERG MORAN, LLP Attorneys for Defendant By: ___________________________________ Carmen L. Borbon, Esq. 505 Eighth Avenue, Suite 2302 New York, New York 10018 (212) 231-2220 Our File No.: ALD 30904 TO: ROSENBAUM & ROSENBAUM, P.C. Attorneys for Plaintiff 100 Wall Street, 15th Floor New York, New York 10005 Attn: Kurt A. Doiron, Esq. (212) 514-5007 2 of 3 FILED: DUTCHESS COUNTY CLERK 12/06/2022 02:03 PM INDEX NO. 2021-51999 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/06/2022 3 of 3