Preview
FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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DORIS KONIG Index: 526939/19
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION
NEW YORK CITY TRANSIT AUTHORITY,
Defendants.
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ELIAS FALCON, an attorney duly admitted and licensed to practice law before
the Courts of the State of New York, hereby affirms the following under the penalties of
perjury:
1. I am associated with ANNA ERVOLINA, counsel of record for the defendant
NEW YORK CITY TRANSIT AUTHORITY, (hereinafter referred to as “NYCTA”)
in this matter and am fully familiar with the facts and circumstances surrounding
this action.
2. This affirmation is submitted in opposition to Plaintiff’s motion to strike
defendant’s answer, compelling a response to Plaintiff’s post- EBT discovery
demand and precluding the defendant from proffering defenses and evidence at
time of trial.
3. This action stems from an alleged trip and fall on staircase P-13 at the
Sheepshead Bay Avenue station, on August 25, 2019.
4. A preliminary conference was held on February 1, 2021.
5. Defendant served its response to the P.C. order on or about March 3, 2021, and
a copy of said response is attached hereto as Exhibit “A”.
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6. The parties have appeared for their respective depositions, with Plaintiff being
deposed on June 21, 2021 and Defendant being deposed on April 4, 2022.
7. Plaintiff thereafter served a notice for post deposition demands on April 5, 2022
and moved this court for the relief sought herein on June 15, 2022.
8. Defendant mailed its response to Plaintiff’s demands on December 13, 2022 and
a copy of its response is attached hereto as Exhibit “B”. Defendant objected to
some of the demands, but it is also conducting a search for records sought as
well.
9. In the instant case, the Defendant has deposed Plaintiff, has appeared for its
own examination before trial, has provided incident reports in its possession
regarding the subject occurrence and is conducting additional investigations as
stated in its response to Plaintiff’s post- EBT demands.
10. CPLR § 3126 allows for penalties against a party for refusal to comply with an
order or for failure to disclose. However, before sanctions against a non-
complying party will attach, there must be a clear showing that the non-complying
party’s behavior was willful. Mylonas v. Town of Brookhaven, 305 A.D.2d 561 (2d
Dept. 2003). See also, Jean v. City of New York, 29 A.D.3d 524 (2d Dept. 2006);
Castellano v. Mainco Elevator & Elec., Corp., 292A.D.2d 556 (2d Dept. 2002);
Foncette v. LA Express, 295 A.D.2d 471 (2d Dept. 2002); Martignetti v. Ricevuto,
271 A.D.2d 508 (2d Dept. 2000); Fellin v. Sahgal, 268 A.D.2d 456 (2d Dept.
2000). The moving party bears the burden of establishing a sufficient showing of
willfulness. Read v. Dickson, 150 A.D.2d 543 92 (2d Dept. 1999). The burden
then shifts to the non-complying party to provide a reasonable excuse. Id. Where
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the moving party fails to establish willfulness conclusively, an application for an
Order for sanctions is properly denied. Queens Farms Dairy, Inc. v.
Consolidated Edison Co., 63 A.D.2d 69 (2d Dept. 1978).
11. Further, the mere fact that a defendant is in default with respect to some of its
disclosure obligations at the time an application to strike is made does warrant
the imposition of sanctions. A.F.C. Enters, Inc. v. New York City School Constr.
Auth., 33 A.D.3d 737 (2d Dept. 2006). Rather, the Court should examine
whether the defaulting party has substantially complied with its disclosure
obligations to date, and if it has, an application for sanctions should be denied.
Id. See also, Guzetti v. City of New York, 32 A.D.3d 234 (1st Dept. 2006)
(affirming denial of application to strike and finding defendant substantially
complied with disclosure orders).
WHEREFORE, it is respectfully requested that the Court deny the relief
requested.
Dated: December 13, 2022
Brooklyn, New York
Yours, etc.
______________________
Elias Falcon, Esq.
ANNA ERVOLINA, ESQ.
Attorney for Defendants
NEW YORK CITY TRANSIT AUTHORITY,
130 Livingston Street, 11th Floor
Brooklyn, NY 11201
Tel: (718) 694-3965
TO: Greenberg Law P.C.
370 Lexington Ave., suite 1100
New York, NY 10017
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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DORIS KONIG, Index No.: 526939/19
Plaintiff,
-against-
NEW YORK CITY TRANSIT AUTHORITY,
Defendant.
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Affirmation in Opposition
ANNA ERVOLINA, ESQ.
Attorney for Defendant
NEW YORK CITY TRANSIT AUTHORITY
130 Livingston Street, 11th Floor
Brooklyn, New York 11201
(7l8) 694-3965
____________________________
By: ELIAS FALCON
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VERIFICATION AFFIRMATION
The undersigned, an attorney associated with Lawrence Heisler,
attorney for defendants, New York City Transit Authority herein, states that
he has read the foregoing Affirmation in Opposition and the same is true
to his knowledge except as to matters therein stated to be alleged on
information and belief, and as to those matters he believes to be true.
Deponent further states that the sources of his information and the grounds
of his belief are books, records and papers of the said defendant relating to
the matter in issue and/or statements made by officers, agents and
employees of the defendant and that the reason why this verification is not
made by the defendant is that the defendant is a public corporation.
The undersigned affirms that the foregoing statements are true, under
penalties of perjury.
Dated: Brooklyn, New York
December 13, 2022
______________________
Elias Falcon
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Preview
FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X DORIS KONIG Index: 526939/19 Plaintiff, -against- AFFIRMATION IN OPPOSITION NEW YORK CITY TRANSIT AUTHORITY, Defendants. --------------------------------------------------------------------X ELIAS FALCON, an attorney duly admitted and licensed to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am associated with ANNA ERVOLINA, counsel of record for the defendant NEW YORK CITY TRANSIT AUTHORITY, (hereinafter referred to as “NYCTA”) in this matter and am fully familiar with the facts and circumstances surrounding this action. 2. This affirmation is submitted in opposition to Plaintiff’s motion to strike defendant’s answer, compelling a response to Plaintiff’s post- EBT discovery demand and precluding the defendant from proffering defenses and evidence at time of trial. 3. This action stems from an alleged trip and fall on staircase P-13 at the Sheepshead Bay Avenue station, on August 25, 2019. 4. A preliminary conference was held on February 1, 2021. 5. Defendant served its response to the P.C. order on or about March 3, 2021, and a copy of said response is attached hereto as Exhibit “A”. 1 of 7 FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 6. The parties have appeared for their respective depositions, with Plaintiff being deposed on June 21, 2021 and Defendant being deposed on April 4, 2022. 7. Plaintiff thereafter served a notice for post deposition demands on April 5, 2022 and moved this court for the relief sought herein on June 15, 2022. 8. Defendant mailed its response to Plaintiff’s demands on December 13, 2022 and a copy of its response is attached hereto as Exhibit “B”. Defendant objected to some of the demands, but it is also conducting a search for records sought as well. 9. In the instant case, the Defendant has deposed Plaintiff, has appeared for its own examination before trial, has provided incident reports in its possession regarding the subject occurrence and is conducting additional investigations as stated in its response to Plaintiff’s post- EBT demands. 10. CPLR § 3126 allows for penalties against a party for refusal to comply with an order or for failure to disclose. However, before sanctions against a non- complying party will attach, there must be a clear showing that the non-complying party’s behavior was willful. Mylonas v. Town of Brookhaven, 305 A.D.2d 561 (2d Dept. 2003). See also, Jean v. City of New York, 29 A.D.3d 524 (2d Dept. 2006); Castellano v. Mainco Elevator & Elec., Corp., 292A.D.2d 556 (2d Dept. 2002); Foncette v. LA Express, 295 A.D.2d 471 (2d Dept. 2002); Martignetti v. Ricevuto, 271 A.D.2d 508 (2d Dept. 2000); Fellin v. Sahgal, 268 A.D.2d 456 (2d Dept. 2000). The moving party bears the burden of establishing a sufficient showing of willfulness. Read v. Dickson, 150 A.D.2d 543 92 (2d Dept. 1999). The burden then shifts to the non-complying party to provide a reasonable excuse. Id. Where 2 of 7 FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 the moving party fails to establish willfulness conclusively, an application for an Order for sanctions is properly denied. Queens Farms Dairy, Inc. v. Consolidated Edison Co., 63 A.D.2d 69 (2d Dept. 1978). 11. Further, the mere fact that a defendant is in default with respect to some of its disclosure obligations at the time an application to strike is made does warrant the imposition of sanctions. A.F.C. Enters, Inc. v. New York City School Constr. Auth., 33 A.D.3d 737 (2d Dept. 2006). Rather, the Court should examine whether the defaulting party has substantially complied with its disclosure obligations to date, and if it has, an application for sanctions should be denied. Id. See also, Guzetti v. City of New York, 32 A.D.3d 234 (1st Dept. 2006) (affirming denial of application to strike and finding defendant substantially complied with disclosure orders). WHEREFORE, it is respectfully requested that the Court deny the relief requested. Dated: December 13, 2022 Brooklyn, New York Yours, etc. ______________________ Elias Falcon, Esq. ANNA ERVOLINA, ESQ. Attorney for Defendants NEW YORK CITY TRANSIT AUTHORITY, 130 Livingston Street, 11th Floor Brooklyn, NY 11201 Tel: (718) 694-3965 TO: Greenberg Law P.C. 370 Lexington Ave., suite 1100 New York, NY 10017 3 of 7 FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------------- X DORIS KONIG, Index No.: 526939/19 Plaintiff, -against- NEW YORK CITY TRANSIT AUTHORITY, Defendant. ---------------------------------------------------------------------------- X Affirmation in Opposition ANNA ERVOLINA, ESQ. Attorney for Defendant NEW YORK CITY TRANSIT AUTHORITY 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (7l8) 694-3965 ____________________________ By: ELIAS FALCON 4 of 7 FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 VERIFICATION AFFIRMATION The undersigned, an attorney associated with Lawrence Heisler, attorney for defendants, New York City Transit Authority herein, states that he has read the foregoing Affirmation in Opposition and the same is true to his knowledge except as to matters therein stated to be alleged on information and belief, and as to those matters he believes to be true. Deponent further states that the sources of his information and the grounds of his belief are books, records and papers of the said defendant relating to the matter in issue and/or statements made by officers, agents and employees of the defendant and that the reason why this verification is not made by the defendant is that the defendant is a public corporation. The undersigned affirms that the foregoing statements are true, under penalties of perjury. Dated: Brooklyn, New York December 13, 2022 ______________________ Elias Falcon 5 of 7 FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 6 of 7 FILED: KINGS COUNTY CLERK 12/13/2022 05:51 PM INDEX NO. 526939/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/13/2022 7 of 7