Preview
FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------------------------------x Index No.: 618130/2020
LISA MASI, Individually and as Administrator for the Estate
of DONALD MASI,
Plaintiff,
-against- AFFIRMATION IN
SUPPORT OF MOTION
THE NURSING CARE CENTER AT MEDFORD, INC.
d/b/a MEDFORD MULTICARE CENTER FOR LIVING,
INC., MEDFORD MULTICARE MANAGEMENT
COMPANY, LLC, MARTIN RAUSMAN, NORMAN
RAUSMAN, HENRY RAUSMAN, MICHAEL RAUSMAN
MORDECHAI KLEIN, FELDMAN-MEDFORD
DEVELOPMENT, L.L.C., ROCKHALL FUNDING CORP.,
DAVID E. MARX,
Defendants.
------------------------------------------------------------------------x
TAMMY A. TREES, an attorney duly admitted to practice law before the Courts of the
State of New York, herein affirms the truth of the following, upon information and belief, under
penalties of perjury, pursuant to the CPLR:
1. I am a member of the law firm of VIGORITO, BARKER, PATTERSON,
NICHOLS & PORTER, LLP, attorneys for the defendants, Attorneys for Defendants, THE
NURSING CARE CENTER AT MEDFORD, INC. d/b/a MEDFORD MULTICARE CENTER
FOR LIVING, INC., MEDFORD MULTICARE MANAGEMENT COMPANY, LLC, MARTIN
RAUSMAN, NORMAN RAUSMAN, HENRY RAUSMAN, MICHAEL RAUSMAN
MORDECHAI KLEIN, FELDMAN-MEDFORD DEVELOPMENT, L.L.C., ROCKHALL
FUNDING CORP., DAVID E. MARX herein and, as such, I am fully familiar with the facts and
proceedings heretofore and herein.
2. This Affirmation is respectfully submitted in support of the within Motion seeking
an Order pursuant to CPLR 3126 dismissing plaintiff’s Complaint in its entirety due to plaintiff’s
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willful failure to provide discovery; or alternatively, pursuant to CPLR 3124 compelling plaintiff
to produce the outstanding discovery by a date certain and precluding plaintiff from offering any
evidence at trial relating to such discovery if such discovery is not timely served; and together with
such other and further relief as to this Court may deem just and proper.
3. Unless otherwise stated, this Affirmation is made upon information and belief,
based upon the file maintained by your affirmant’s office in connection with the above entitled
action. Your affirmant has reviewed that file and, on that basis, is fully familiar with the pleadings
and proceedings heretofore had herein.
BACKGROUND & PROCEDURAL HISTORY
4. Plaintiff commenced this action by filing a Summons and Verified Complaint on
or about May 3, 2021. Annexed hereto as Exhibit “A” is a copy of the Summons and Complaint.
5. Issue was joined on behalf of all defendants by service of an Answer on or about
November 23, 2021. Annexed hereto as Exhibit “B” is a copy of the Answer for defendants.
6. Along with our Answer, defendants served a Demand for a Bill of Particulars dated
November 23, 2021. Annexed hereto as Exhibit “C” is a copy of the Demand for a Bill of
Particulars.
7. Along with our Answer, defendants also served our Combined Demands dated
November 23, 2021. Annexed hereto as Exhibit “D” is a copy of our Combined Demands.
8. On November 30, 2021, defendants served a Demand for Authorizations. Annexed
hereto as Exhibit “E” is a copy of the Demand for a Bill of Particulars.
9. Having received no response to the foregoing extensive discovery, on or about
March 16, 2022, affirmant sent plaintiff correspondence in good faith delineating all the discovery
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outstanding. Annexed hereto as Exhibit “F” is a copy of said correspondence dated March 16,
2022.
10. Five months later, after still having received no response to the foregoing extensive
discovery, on or about March 16, 2022, affirmant sent plaintiff a second correspondence in good
faith delineating all the discovery outstanding. Annexed hereto as Exhibit “G” is a copy of said
correspondence dated August 11, 2022.
11. It has been over 10 months since we served plaintiff with the foregoing discovery
demands, and to date, plaintiff has not responded to any of our requests. There has not even been
a Preliminary Conference on this matter.
ARGUMENT
12. CPLR 3101(a) states that “There shall be full disclosure of all evidence material
and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The
phrase “material and necessary” has been liberally interpreted to require disclosure upon request
of any facts bearing on a controversy which will assist in preparation for trial by sharpening the
issues and reducing the delay and prolixity. Allen v. Crowell-Collier Publishing Company, 21
N.Y.2d 403, 288 N.Y.S.2d 499 (1960).
13. “If there is any possibility that the information sought in good faith for possible use
as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence
material in the prosecution or defense.” Id at 452. Thus, the test is one of usefulness and reason.
Id at 452. “Material and necessary” was held to mean needful and not indispensable. Id., citing
Taylor v. Smith & Corona Typewriters, 388 N.Y.S2d 864, 866 aff’d 266 App Div. 903, 43
N.Y.S.2d 745 (1943).
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14. The failure of the plaintiff to comply with written discovery requests, even after
receiving good faith letters, constitutes a violation of the discovery rules that justifies the
preclusion of evidence.
15. It is axiomatic that CPLR §3126 sanctions apply to a willful disregard of legitimate
demands for discovery as well as to a disregard of Court orders, and in the presence of such
disregard, the Court has discretion to “make such orders as are just, including dismissal of an
action.” Kihl v. Pfeffer, 94 N.Y.2d 118 (1999); see also Santini v. Alexander Grant, Co., 245
A.D.2d 30 (1st Dept 1997). Specifically, CPLR § 3126(2), in relevant part, states:
If any party … willfully fails to disclose information which the court
finds ought to have been disclosed pursuant to this article, the court may
make such orders with regard to the failure or refusal as are just, among
them:
(2) an order prohibiting the disobedient party from
supporting or opposing designated claims or defenses, from
producing in evidence designated things or items of testimony, or
from introducing any evidence of the physical, mental or blood
condition sought to be determined, or from using certain witnesses;
or
(3) an order striking out the pleadings or parts thereof,
or staying further proceedings until the order is obeyed, or
dismissing the action or any party thereof, or rendering a judgment
by default against the disobedient party.
16. The Kihl court noted that “compliance with a disclosure order requires both a timely
response and one that evinces a good-faith effort to address the requests meaningfully.” Id at 123.
In the absence of an adequate excuse, a court may reasonably infer that a party’s repeated failure
to appear for court ordered depositions or to comply with disclosure requests constitutes willful
and contumacious conduct. See Johnson v. City of New York, 188 A.D.2d 302, 303 (1st Dept
1992); Mills v. Ducille, 170 A.D.2d 657 (2d Dept 1991); Chase Manhattan Bank v. Abad, 131
A.D.2d 312 (1st Dept 1987).
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17. The First Department, in Sanchez v. City of New York, 266 A.D.2d 127 (1st Dep’t
1999), affirmed a decision in which defendant sought an order precluding plaintiff from offering
photographs at trial to prove negligence or from introducing evidence as to any claim for special
damages against defendant. In granting defendant’s request, the Court found, “plaintiff’s
numerous and unexplained failures to comply with longstanding and still outstanding discovery
obligations justify the inference that her noncompliance with discovery has been willful and
contumacious.” Id. There, the Court found preclusion was an appropriate remedy in light of
plaintiff’s failure to support a claim with disclosure of evidence and production of witnesses during
the discovery process. Id. See also Glasburg v. Port Auth., 193 A.D.2d 441 (1st Dept 1993) (“The
willful and contumacious character of appellant’s failure to disclose can be inferred from its year-
long noncompliance with three separate court orders directing depositions and document
production, coupled with inadequate excuses for these defaults.”).
18. Plaintiff’s failure in producing any of the foregoing extensive discovery, with no
excuse at all for same, after two good faith letters, amounts to the kind of willful and contumacious
conduct for which the CPLR 3126 sanction of dismissing the action applies.
19. Plaintiff’s numerous and unexplained failures to comply with his discovery
obligations justify the inference that his noncompliance with discovery has been willful and
contumacious, thus violating CPLR §3126 and deserving of sanctions under that provision.
20. Alternatively, it is requested that this Honorable Court issue an Order compelling
plaintiff to produce all outstanding discovery by a date certain and if plaintiff fails to comply,
precluding plaintiff from offering any evidence relating to such discovery at further proceedings
of this action, including trial.
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21. CPLR §3124 provides that “if a person fails to respond to or comply with any
request, notice, interrogatory, demand, question or order under that article, except a notice to admit
under section 3123, the party seeking disclosure may move to compel compliance or a response.”
CPLR §3124.
22. Compelling the outstanding discovery is warranted in order to provide Moving
Defendant with a “full and fair opportunity” to obtain “full disclosure of all matter material and
necessary” in his defense of all claims. See CPLR §3101. The phrase “material and necessary is
to be interpreted liberally to require disclosure, upon request, of any facts bearing on the
controversy which will assist preparation for trial by sharpening the issues and reducing delay and
prolixity. The test is one of usefulness and reason.” See Kooper v. Kooper, 74 A.D.3d 6, 901
N.Y.S.2d 312, 317 (2d Dept. 2010).
23. In the case at issue, plaintiff has not provided any discovery over the last 10 months
since our Answer was filed in November of 2021.
24. Thus, in the event that this Honorable Court order plaintiff to respond to the
outstanding discovery, it is respectfully requested that the Court further Order that he is to respond
within 30 days and any failure to response in 30 days will result in preclusion of evidence for
which discovery has not been provided.
WHEREFORE, it is respectfully requested that this Court issue an Order pursuant to
CPLR 3126, dismissing plaintiff’s Complaint in its entirety due to plaintiff’s willful failure to
provide discovery; or alternatively, pursuant to CPLR 3124, compelling plaintiff to produce the
outstanding discovery by a date certain and precluding plaintiff from offering any evidence at
trial relating to such discovery if such discovery is not timely served; and together with such
other and further relief as to this Court may deem just and proper.
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Dated: Garden City, New York
September 23, 2022
By:
TAMMY A. TREES
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Preview
FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------x Index No.: 618130/2020 LISA MASI, Individually and as Administrator for the Estate of DONALD MASI, Plaintiff, -against- AFFIRMATION IN SUPPORT OF MOTION THE NURSING CARE CENTER AT MEDFORD, INC. d/b/a MEDFORD MULTICARE CENTER FOR LIVING, INC., MEDFORD MULTICARE MANAGEMENT COMPANY, LLC, MARTIN RAUSMAN, NORMAN RAUSMAN, HENRY RAUSMAN, MICHAEL RAUSMAN MORDECHAI KLEIN, FELDMAN-MEDFORD DEVELOPMENT, L.L.C., ROCKHALL FUNDING CORP., DAVID E. MARX, Defendants. ------------------------------------------------------------------------x TAMMY A. TREES, an attorney duly admitted to practice law before the Courts of the State of New York, herein affirms the truth of the following, upon information and belief, under penalties of perjury, pursuant to the CPLR: 1. I am a member of the law firm of VIGORITO, BARKER, PATTERSON, NICHOLS & PORTER, LLP, attorneys for the defendants, Attorneys for Defendants, THE NURSING CARE CENTER AT MEDFORD, INC. d/b/a MEDFORD MULTICARE CENTER FOR LIVING, INC., MEDFORD MULTICARE MANAGEMENT COMPANY, LLC, MARTIN RAUSMAN, NORMAN RAUSMAN, HENRY RAUSMAN, MICHAEL RAUSMAN MORDECHAI KLEIN, FELDMAN-MEDFORD DEVELOPMENT, L.L.C., ROCKHALL FUNDING CORP., DAVID E. MARX herein and, as such, I am fully familiar with the facts and proceedings heretofore and herein. 2. This Affirmation is respectfully submitted in support of the within Motion seeking an Order pursuant to CPLR 3126 dismissing plaintiff’s Complaint in its entirety due to plaintiff’s 1 of 7 FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 willful failure to provide discovery; or alternatively, pursuant to CPLR 3124 compelling plaintiff to produce the outstanding discovery by a date certain and precluding plaintiff from offering any evidence at trial relating to such discovery if such discovery is not timely served; and together with such other and further relief as to this Court may deem just and proper. 3. Unless otherwise stated, this Affirmation is made upon information and belief, based upon the file maintained by your affirmant’s office in connection with the above entitled action. Your affirmant has reviewed that file and, on that basis, is fully familiar with the pleadings and proceedings heretofore had herein. BACKGROUND & PROCEDURAL HISTORY 4. Plaintiff commenced this action by filing a Summons and Verified Complaint on or about May 3, 2021. Annexed hereto as Exhibit “A” is a copy of the Summons and Complaint. 5. Issue was joined on behalf of all defendants by service of an Answer on or about November 23, 2021. Annexed hereto as Exhibit “B” is a copy of the Answer for defendants. 6. Along with our Answer, defendants served a Demand for a Bill of Particulars dated November 23, 2021. Annexed hereto as Exhibit “C” is a copy of the Demand for a Bill of Particulars. 7. Along with our Answer, defendants also served our Combined Demands dated November 23, 2021. Annexed hereto as Exhibit “D” is a copy of our Combined Demands. 8. On November 30, 2021, defendants served a Demand for Authorizations. Annexed hereto as Exhibit “E” is a copy of the Demand for a Bill of Particulars. 9. Having received no response to the foregoing extensive discovery, on or about March 16, 2022, affirmant sent plaintiff correspondence in good faith delineating all the discovery 2 of 7 FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 outstanding. Annexed hereto as Exhibit “F” is a copy of said correspondence dated March 16, 2022. 10. Five months later, after still having received no response to the foregoing extensive discovery, on or about March 16, 2022, affirmant sent plaintiff a second correspondence in good faith delineating all the discovery outstanding. Annexed hereto as Exhibit “G” is a copy of said correspondence dated August 11, 2022. 11. It has been over 10 months since we served plaintiff with the foregoing discovery demands, and to date, plaintiff has not responded to any of our requests. There has not even been a Preliminary Conference on this matter. ARGUMENT 12. CPLR 3101(a) states that “There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The phrase “material and necessary” has been liberally interpreted to require disclosure upon request of any facts bearing on a controversy which will assist in preparation for trial by sharpening the issues and reducing the delay and prolixity. Allen v. Crowell-Collier Publishing Company, 21 N.Y.2d 403, 288 N.Y.S.2d 499 (1960). 13. “If there is any possibility that the information sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material in the prosecution or defense.” Id at 452. Thus, the test is one of usefulness and reason. Id at 452. “Material and necessary” was held to mean needful and not indispensable. Id., citing Taylor v. Smith & Corona Typewriters, 388 N.Y.S2d 864, 866 aff’d 266 App Div. 903, 43 N.Y.S.2d 745 (1943). 3 of 7 FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 14. The failure of the plaintiff to comply with written discovery requests, even after receiving good faith letters, constitutes a violation of the discovery rules that justifies the preclusion of evidence. 15. It is axiomatic that CPLR §3126 sanctions apply to a willful disregard of legitimate demands for discovery as well as to a disregard of Court orders, and in the presence of such disregard, the Court has discretion to “make such orders as are just, including dismissal of an action.” Kihl v. Pfeffer, 94 N.Y.2d 118 (1999); see also Santini v. Alexander Grant, Co., 245 A.D.2d 30 (1st Dept 1997). Specifically, CPLR § 3126(2), in relevant part, states: If any party … willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: (2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or (3) an order striking out the pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any party thereof, or rendering a judgment by default against the disobedient party. 16. The Kihl court noted that “compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.” Id at 123. In the absence of an adequate excuse, a court may reasonably infer that a party’s repeated failure to appear for court ordered depositions or to comply with disclosure requests constitutes willful and contumacious conduct. See Johnson v. City of New York, 188 A.D.2d 302, 303 (1st Dept 1992); Mills v. Ducille, 170 A.D.2d 657 (2d Dept 1991); Chase Manhattan Bank v. Abad, 131 A.D.2d 312 (1st Dept 1987). 4 of 7 FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 17. The First Department, in Sanchez v. City of New York, 266 A.D.2d 127 (1st Dep’t 1999), affirmed a decision in which defendant sought an order precluding plaintiff from offering photographs at trial to prove negligence or from introducing evidence as to any claim for special damages against defendant. In granting defendant’s request, the Court found, “plaintiff’s numerous and unexplained failures to comply with longstanding and still outstanding discovery obligations justify the inference that her noncompliance with discovery has been willful and contumacious.” Id. There, the Court found preclusion was an appropriate remedy in light of plaintiff’s failure to support a claim with disclosure of evidence and production of witnesses during the discovery process. Id. See also Glasburg v. Port Auth., 193 A.D.2d 441 (1st Dept 1993) (“The willful and contumacious character of appellant’s failure to disclose can be inferred from its year- long noncompliance with three separate court orders directing depositions and document production, coupled with inadequate excuses for these defaults.”). 18. Plaintiff’s failure in producing any of the foregoing extensive discovery, with no excuse at all for same, after two good faith letters, amounts to the kind of willful and contumacious conduct for which the CPLR 3126 sanction of dismissing the action applies. 19. Plaintiff’s numerous and unexplained failures to comply with his discovery obligations justify the inference that his noncompliance with discovery has been willful and contumacious, thus violating CPLR §3126 and deserving of sanctions under that provision. 20. Alternatively, it is requested that this Honorable Court issue an Order compelling plaintiff to produce all outstanding discovery by a date certain and if plaintiff fails to comply, precluding plaintiff from offering any evidence relating to such discovery at further proceedings of this action, including trial. 5 of 7 FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 21. CPLR §3124 provides that “if a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under that article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” CPLR §3124. 22. Compelling the outstanding discovery is warranted in order to provide Moving Defendant with a “full and fair opportunity” to obtain “full disclosure of all matter material and necessary” in his defense of all claims. See CPLR §3101. The phrase “material and necessary is to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” See Kooper v. Kooper, 74 A.D.3d 6, 901 N.Y.S.2d 312, 317 (2d Dept. 2010). 23. In the case at issue, plaintiff has not provided any discovery over the last 10 months since our Answer was filed in November of 2021. 24. Thus, in the event that this Honorable Court order plaintiff to respond to the outstanding discovery, it is respectfully requested that the Court further Order that he is to respond within 30 days and any failure to response in 30 days will result in preclusion of evidence for which discovery has not been provided. WHEREFORE, it is respectfully requested that this Court issue an Order pursuant to CPLR 3126, dismissing plaintiff’s Complaint in its entirety due to plaintiff’s willful failure to provide discovery; or alternatively, pursuant to CPLR 3124, compelling plaintiff to produce the outstanding discovery by a date certain and precluding plaintiff from offering any evidence at trial relating to such discovery if such discovery is not timely served; and together with such other and further relief as to this Court may deem just and proper. 6 of 7 FILED: SUFFOLK COUNTY CLERK 09/26/2022 05:53 PM INDEX NO. 618130/2020 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/26/2022 Dated: Garden City, New York September 23, 2022 By: TAMMY A. TREES 7 of 7