Preview
FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
AFFIRMATION
COUNTY OF BRONX
____..-..---- ....-- _____________________ x
Index No.: 812616/2021E
JAMES D. JETER
Plaintiff,
-against-
Y VIZCAINOMARTE AND AVELYS HERNANDEZ
Defendants.
ALEXANDER YAKAITIS, an attorney duly admitted to practice law in the State of New
York, affirms the following to be true under the penalty of perjury:
1. I am associated with the law office of BADER & YAKAITIS, LLP, attorneys for
plaintiff and as such I am fully familiar with the facts and circumstances of this matter.
2. This affirmation and the affidavit ofmy calendar clerk, Shelly Lalchand, are submitted
in support of the within motion for an Order pursuant to CPLR Section 3126 striking the answer of
defendants, based upon their failure to comply with the preliminary conference order, for failing to
appear for a court-ordered deposition and for willfully, contumaciously and systematically
frustrating the discovery process; (2) in the alternative, precluding defendants from testifying at
the time of trial.
3. This is an action to recover monetary damages for personal injuries suffered by the
plaintiff as the result of a motor vehicle accident that occurred on June 19, 2021 at South East
Corner, East 180 Street and Morris Park Avenue, Bronx, New York. A copy of the pleadings are
"A."
attached hereto as Exhibit
Defendants'
4. answer should be stricken as the defendants have failed to comply with
the preliminary conference order and have failed to appear for a court-ordered deposition.
5. On January 6, 2022 the court issued a Preliminary Conference Order. Pursuant to
preliminary conference order, depositions must be completed by May 26, 2022. A copy of the
Order is attached hereto as Exhibit "B".
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defendants'
6. Pursuant to this order, my calendar clerk reach out to office to schedule
set dates for plaintiff and defendants deposition. Plaintiff's deposition was schedule for March 29,
defendants'
2022 and deposition was scheduled for March 31, 2022. Plaintiff's deposition was
defendants' defendants'
held on June 13, 2022. Pursuant to request, the deposition was adjourned
to June 28, then August 30, 2022, then to October 27, 2022 and then to January 6, 2022.
defendants'
7. Defendants were not ready to proceed with deposition on any of the
"C"
adjourned dates. (Attached hereto as Exhibit is a copy of the email chain with my calendar
defendants' defendants'
clerk, Shelly Lalchand, and office confirming requests for adjournments).
Furthermore, Ms. Lalchand has executed an affidavit attesting to the communications with the
defendants'
office, a copy of which is submitted in support of this motion.
defendants'
8. Based on the procedural history, itis clear that the unexplained failure
to produce a witness for deposition is both willful and contumacious. The sanctions for non
disclosure are provided by CPLR Section 3126, as follows:
If any party,...refuses to obey an Order for disclosure or willfully fails to
disclose information which the court finds ought to have been disclosed, the
Court may make such orders with regard to the failure or refusal as are just,
among them:
3. an order striking out pleadings,...
9. The New York State Court of Appeals has stated that where a party disobeys a court
order and by his conduct frustrates the disclosure scheme provided by the C.P.L.R., itis within the
discretion of the trialcourt to strike the pleading of the defaulting party. See Zletz v Wetanson, 67
N.Y.2d 711, 490 N.E.2d 852, 499 N.Y.S.2d 933, (1986).
10. The First Department has followed the decisions in Zletz and Kihl, consistently
contumacious"
holding that "willful and behavior, which warrants the sanctions of C.P.L.R.
§3126, can be inferred from "his repeated failures to appear for an examination before trial,
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defaults."
coupled with inadequate excuses for the (Seamon v Apel, 191 AD2d 406, 595 NYS2d
(1st
202 Dept. 1993). Further, defendant's disobedience with court orders directing appearance at
a deposition "constitutes precisely the sort of dilatory and obstructive, and thus contumacious
answer."
conduct warranting the striking of their (Kutner v Feiden, 223 AD2d 488, 637 NYS2d
(13t
15 Dept. 1996). In the absence of an adequate excuse for the failure, "a court may reasonably
infer that a party's repeated failure to appear for court ordered depositions . .. constitutes willful
behavior." (1st
and contumacious (Johnson v City of New York, 188 AD2d 302, 590 NYS2d 485
Dept. 1992). Further, "Unconditionally striking a pleading pursuant to CPLR 3126 is appropriate
where the resisting party's default is deliberate and contumacious. Disobedience of a court order
and frustration of the disclosure scheme provided for by the CPLR warrant imposition of the
sanction." (13t
(Pimental v City of New York, 246 AD2d 467, 668 NYS2d 187 Dept. 1998).
11. A court may strike pleadings as a sanction against a party who refuses to obey an
order of disclosure or willfully fails to disclose information which the court fmds out to have been
disclosed, while the nature and degree of the penalty to be imposed pursuant to C.P.L.R. §3126 is
(1st
a matter of discretion. Spira v Antoine, 191 A.D.2d 219, 596 N.Y.S.2d Dept. 1993). While the
lower courts have traditionally applied a more lax standard of sanctions against the defendants for
failure to disclose, i.e., greater time limits to produce documents and witnesses and issuance of
repeated order to produce, the First Department has not been as tolerant.
12. In Seamon v Apel & Abbas, supra, the defendant failed to comply with two prior
orders directing him to produce a witness. The lower court struck defendant's motion, and the
First Department affirmed the order. The Court held that "The IAS Court did not abuse its
discretion in striking appellant's answer for failure to comply with two prior orders directing him
to appear for a deposition. When a discovery order is disobeyed, the court, in itsdiscretion, may
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pleading."
strike a relevant Id. The Court further noted that "The willful and contumacious
character of a party's conduct can be inferred from his repeated failures to appear for examinations
defaults."
before trial,coupled with inadequate excuses for these (Citing Mills v Ducille, 170 Ad2d
657.) Id.
(13t
13. In Varvitsiotes v. Pierre, 260 AD2d 297, 689 NYS2d 52 Dept. 1999), the lower
court granted plaintiff's motion to strike the answer of the defendant for failing to appear for
depositions. The First Department affirmed the order, stating that defendant's "repeated and
unexplained failures to attend court ordered depositions warranted the striking of his answer
15)."
pursuant to C.P.L.R. §3126 (see, Kutner v Feiden, 223 AD2d 488, 637 NYS2d
14. In Kutner v Feiden, supra, the lower court granted plaintiff's motion to strike the
answer of the defendant. The First Department affirmed the order, holding that "Defendant's
disobedience of a series of court orders directing . .. the appearance of the individual defendant
for deposition constituted precisely the sort of dilatory and obstructive, and thus contumacious,
(c.o.)"
conduct warranting the striking of their answers Id. at 489.
(1S'
15. In Levy v Salkind, 276 AD2d 283, 713 NYS2d 863 Dept. 2000), the First
Department stated that "Defendant's failure to appear for deposition, as directed by the IAS court,
in the New York offices of plaintiff's counsel, was not excused by the fact that he faced arrest on
a bench warrant issued by the same court for his failure to appear at a different deposition, and the
court, accordingly, properly struck defendant's answer pursuant to CPLR 3126 by reason of his
(c.o.)."
contumacious and willful conduct Id.
16. In Johnson v City of New York, supra, the lower court struck the answer of the
defendant for failure to produce a witness for a deposition. The First Department affirmed the
order, holding that "In the absence of an adequate excuse therefore, a court may reasonably infer
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that a party's repeated failure to appear for court ordered depositions or to comply with disclosure
(c.o.)."
requests constitutes willful and contumacious conduct Id. at 303.
(1st
17. In Langer v Miller, 281 AD2d 338, 722 NYS2d Dept. 2001), the lower court
granted plaintiff's motion to strike defendant's answer, and the First Department affirmed the
order, finding that the defendants had not complied with the preliminary conference and
compliance conference orders. "Defendant's failure to comply with a preliminary conference
contumacious."
order and two compliance orders . . . was willful and Id_at 338. "Under the
circumstances, the extreme sanction of striking defendant's answer, and precluding them from
warranted."
putting in any affirmative proof is Id.
18. As can be seen from the above cases, both the New York State Court of Appeals
and the Appellate Division, First Department no longer tolerate a situation where a defendant has
failed to respond adequately to discovery demands in a timely fashion, and hence frustrates the
discovery scheduled issued by the court. Here defendant's failure to produce a witness in
accordance with court orders clearly fits into the above described situations. When this situation
occurs, the proper remedy according to both Courts is to strike the answer of the defaulting
defendants.
Defendants'
19. answer should be stricken for failure to comply with court ordered
defendants'
deposition. The answer should be stricken for failing to produce for an examination
before trialeven ifdefendants claim that there are no witnesses available to be produced. The First
Department no longer tolerates a situation where a defendant has disappeared or has made [himself]
unavailable to testify at an examination before trial, and, has issued several decisions striking a
defendant's answer where they have failed to appear in these circumstances. Thus, according to a
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line of decisions from the First Department, the fact that a defendant has disappeared or made
[himself] unavailable provides no basis for denying a motion to strike [his] answer.
20. The procedural history of this case outlined above clearly illustrates the pattem of
willful and contumacious conduct exhibited by the defendants. The cases cited above clearly
support the argument that the Courts do not tolerate a situation like the above and the striking of
defendants'
the answer is clearly the appropriate remedy.
WHEREFORE, Plaintiff respectfully requests the within motion be granted in all respects
and that this Court grant such other and further relief as to this Court deems just and proper.
Dated: New York, NY
January 10, 2023
7
ALE DER A TIS, SQ.
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Preview
FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023 SUPREME COURT OF THE STATE OF NEW YORK AFFIRMATION COUNTY OF BRONX ____..-..---- ....-- _____________________ x Index No.: 812616/2021E JAMES D. JETER Plaintiff, -against- Y VIZCAINOMARTE AND AVELYS HERNANDEZ Defendants. ALEXANDER YAKAITIS, an attorney duly admitted to practice law in the State of New York, affirms the following to be true under the penalty of perjury: 1. I am associated with the law office of BADER & YAKAITIS, LLP, attorneys for plaintiff and as such I am fully familiar with the facts and circumstances of this matter. 2. This affirmation and the affidavit ofmy calendar clerk, Shelly Lalchand, are submitted in support of the within motion for an Order pursuant to CPLR Section 3126 striking the answer of defendants, based upon their failure to comply with the preliminary conference order, for failing to appear for a court-ordered deposition and for willfully, contumaciously and systematically frustrating the discovery process; (2) in the alternative, precluding defendants from testifying at the time of trial. 3. This is an action to recover monetary damages for personal injuries suffered by the plaintiff as the result of a motor vehicle accident that occurred on June 19, 2021 at South East Corner, East 180 Street and Morris Park Avenue, Bronx, New York. A copy of the pleadings are "A." attached hereto as Exhibit Defendants' 4. answer should be stricken as the defendants have failed to comply with the preliminary conference order and have failed to appear for a court-ordered deposition. 5. On January 6, 2022 the court issued a Preliminary Conference Order. Pursuant to preliminary conference order, depositions must be completed by May 26, 2022. A copy of the Order is attached hereto as Exhibit "B". 1 of 6 FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023 defendants' 6. Pursuant to this order, my calendar clerk reach out to office to schedule set dates for plaintiff and defendants deposition. Plaintiff's deposition was schedule for March 29, defendants' 2022 and deposition was scheduled for March 31, 2022. Plaintiff's deposition was defendants' defendants' held on June 13, 2022. Pursuant to request, the deposition was adjourned to June 28, then August 30, 2022, then to October 27, 2022 and then to January 6, 2022. defendants' 7. Defendants were not ready to proceed with deposition on any of the "C" adjourned dates. (Attached hereto as Exhibit is a copy of the email chain with my calendar defendants' defendants' clerk, Shelly Lalchand, and office confirming requests for adjournments). Furthermore, Ms. Lalchand has executed an affidavit attesting to the communications with the defendants' office, a copy of which is submitted in support of this motion. defendants' 8. Based on the procedural history, itis clear that the unexplained failure to produce a witness for deposition is both willful and contumacious. The sanctions for non disclosure are provided by CPLR Section 3126, as follows: If any party,...refuses to obey an Order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, the Court may make such orders with regard to the failure or refusal as are just, among them: 3. an order striking out pleadings,... 9. The New York State Court of Appeals has stated that where a party disobeys a court order and by his conduct frustrates the disclosure scheme provided by the C.P.L.R., itis within the discretion of the trialcourt to strike the pleading of the defaulting party. See Zletz v Wetanson, 67 N.Y.2d 711, 490 N.E.2d 852, 499 N.Y.S.2d 933, (1986). 10. The First Department has followed the decisions in Zletz and Kihl, consistently contumacious" holding that "willful and behavior, which warrants the sanctions of C.P.L.R. §3126, can be inferred from "his repeated failures to appear for an examination before trial, 2 of 6 FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023 defaults." coupled with inadequate excuses for the (Seamon v Apel, 191 AD2d 406, 595 NYS2d (1st 202 Dept. 1993). Further, defendant's disobedience with court orders directing appearance at a deposition "constitutes precisely the sort of dilatory and obstructive, and thus contumacious answer." conduct warranting the striking of their (Kutner v Feiden, 223 AD2d 488, 637 NYS2d (13t 15 Dept. 1996). In the absence of an adequate excuse for the failure, "a court may reasonably infer that a party's repeated failure to appear for court ordered depositions . .. constitutes willful behavior." (1st and contumacious (Johnson v City of New York, 188 AD2d 302, 590 NYS2d 485 Dept. 1992). Further, "Unconditionally striking a pleading pursuant to CPLR 3126 is appropriate where the resisting party's default is deliberate and contumacious. Disobedience of a court order and frustration of the disclosure scheme provided for by the CPLR warrant imposition of the sanction." (13t (Pimental v City of New York, 246 AD2d 467, 668 NYS2d 187 Dept. 1998). 11. A court may strike pleadings as a sanction against a party who refuses to obey an order of disclosure or willfully fails to disclose information which the court fmds out to have been disclosed, while the nature and degree of the penalty to be imposed pursuant to C.P.L.R. §3126 is (1st a matter of discretion. Spira v Antoine, 191 A.D.2d 219, 596 N.Y.S.2d Dept. 1993). While the lower courts have traditionally applied a more lax standard of sanctions against the defendants for failure to disclose, i.e., greater time limits to produce documents and witnesses and issuance of repeated order to produce, the First Department has not been as tolerant. 12. In Seamon v Apel & Abbas, supra, the defendant failed to comply with two prior orders directing him to produce a witness. The lower court struck defendant's motion, and the First Department affirmed the order. The Court held that "The IAS Court did not abuse its discretion in striking appellant's answer for failure to comply with two prior orders directing him to appear for a deposition. When a discovery order is disobeyed, the court, in itsdiscretion, may 3 of 6 FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023 pleading." strike a relevant Id. The Court further noted that "The willful and contumacious character of a party's conduct can be inferred from his repeated failures to appear for examinations defaults." before trial,coupled with inadequate excuses for these (Citing Mills v Ducille, 170 Ad2d 657.) Id. (13t 13. In Varvitsiotes v. Pierre, 260 AD2d 297, 689 NYS2d 52 Dept. 1999), the lower court granted plaintiff's motion to strike the answer of the defendant for failing to appear for depositions. The First Department affirmed the order, stating that defendant's "repeated and unexplained failures to attend court ordered depositions warranted the striking of his answer 15)." pursuant to C.P.L.R. §3126 (see, Kutner v Feiden, 223 AD2d 488, 637 NYS2d 14. In Kutner v Feiden, supra, the lower court granted plaintiff's motion to strike the answer of the defendant. The First Department affirmed the order, holding that "Defendant's disobedience of a series of court orders directing . .. the appearance of the individual defendant for deposition constituted precisely the sort of dilatory and obstructive, and thus contumacious, (c.o.)" conduct warranting the striking of their answers Id. at 489. (1S' 15. In Levy v Salkind, 276 AD2d 283, 713 NYS2d 863 Dept. 2000), the First Department stated that "Defendant's failure to appear for deposition, as directed by the IAS court, in the New York offices of plaintiff's counsel, was not excused by the fact that he faced arrest on a bench warrant issued by the same court for his failure to appear at a different deposition, and the court, accordingly, properly struck defendant's answer pursuant to CPLR 3126 by reason of his (c.o.)." contumacious and willful conduct Id. 16. In Johnson v City of New York, supra, the lower court struck the answer of the defendant for failure to produce a witness for a deposition. The First Department affirmed the order, holding that "In the absence of an adequate excuse therefore, a court may reasonably infer 4 of 6 FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023 that a party's repeated failure to appear for court ordered depositions or to comply with disclosure (c.o.)." requests constitutes willful and contumacious conduct Id. at 303. (1st 17. In Langer v Miller, 281 AD2d 338, 722 NYS2d Dept. 2001), the lower court granted plaintiff's motion to strike defendant's answer, and the First Department affirmed the order, finding that the defendants had not complied with the preliminary conference and compliance conference orders. "Defendant's failure to comply with a preliminary conference contumacious." order and two compliance orders . . . was willful and Id_at 338. "Under the circumstances, the extreme sanction of striking defendant's answer, and precluding them from warranted." putting in any affirmative proof is Id. 18. As can be seen from the above cases, both the New York State Court of Appeals and the Appellate Division, First Department no longer tolerate a situation where a defendant has failed to respond adequately to discovery demands in a timely fashion, and hence frustrates the discovery scheduled issued by the court. Here defendant's failure to produce a witness in accordance with court orders clearly fits into the above described situations. When this situation occurs, the proper remedy according to both Courts is to strike the answer of the defaulting defendants. Defendants' 19. answer should be stricken for failure to comply with court ordered defendants' deposition. The answer should be stricken for failing to produce for an examination before trialeven ifdefendants claim that there are no witnesses available to be produced. The First Department no longer tolerates a situation where a defendant has disappeared or has made [himself] unavailable to testify at an examination before trial, and, has issued several decisions striking a defendant's answer where they have failed to appear in these circumstances. Thus, according to a 5 of 6 FILED: BRONX COUNTY CLERK 01/10/2023 03:48 PM INDEX NO. 812616/2021E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/10/2023 line of decisions from the First Department, the fact that a defendant has disappeared or made [himself] unavailable provides no basis for denying a motion to strike [his] answer. 20. The procedural history of this case outlined above clearly illustrates the pattem of willful and contumacious conduct exhibited by the defendants. The cases cited above clearly support the argument that the Courts do not tolerate a situation like the above and the striking of defendants' the answer is clearly the appropriate remedy. WHEREFORE, Plaintiff respectfully requests the within motion be granted in all respects and that this Court grant such other and further relief as to this Court deems just and proper. Dated: New York, NY January 10, 2023 7 ALE DER A TIS, SQ. 6 of 6