Preview
FILED: ONONDAGA COUNTY CLERK 03/13/2019 04:23 PM INDEX NO. 008588/2018
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/13/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
BRIAN C. PRUSIK
Plaintiff,
vs.
Index No.: EGû8588/2018
LIBERTY MUTUAL INSURANCE GROUP INC.,
GEDDES FEDERAL SAVINGS AND LOAN Judge Deborah H. Kara!unas
ASSOCIATION,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO GEDDES FEDERAL SAVINGS AND
LOAN ASSOCIATION'S MOTION TO COMPEL
DATED: March 13, 2019
Rochester, New York
WOODS OVIATT GILMAN LLP
Andrew J. Ryan, Esq.
Stephen P. Burke, Esq.
Attorneys for Plaintiff
700 Crossroads Building
2 State Street
Rochester, New York 14614
585.987.2800
aryan@woodsoviatt.com
stephenburke(fdwoodsoviatt.com
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PRELIMINARY STATEMENT
Plaintiff Brian C. Prusik submits this Memorandum of Law in opposition to Defendant
Geddes'
Geddes Federal Savings and Loan Association's ("Geddes") motion to compel. motion
seeks information in response to certain interrogatories. The information demanded by Geddes is
not presently known by Plaintiff and would require Plaintiff to speculate as to the responses.
Geddes' faith"
Additionally, "good efforts amounted solely to vague letter correspondence rejecting
inadequate." Geddes'
the entirety of Plaintiffs responses and alleging that they are "woefully
counsel made no attempts to meet and confer regarding the alleged outstanding discovery, did not
make a single telephone call and did not send a single email in an attempt to resolve the alleged
Geddes'
dispute. motion is completely unnecessary and should be dismissed where Plaintiff has
already provided all of the information within his present knowledge and possession
BACKGROUND FACTS
The facts of this case are set forth in the Affidavit of Stephen P. Burke, Esq., sworn to on the
13d'
day of March, 2019, together with exhibits annexed thereto.
ARGUMENT
GEDDES'
MOTION SEEKS INFORMATION THAT
IS NOT IN PLAINTIFF'S POSSESSION
It is well established that "party may not be compelled to produce information that does not
possess." (2nd
exist or which he or she does not Romeo v. City of New York, 261 A.D.2d 379 Dep't
(2nd
1999); Castillo v. Henry Schein, Inc., 259 A.D.2d 651 ,t 1999); Rosatto v. Mercedes Benz
(2nd
of North America, Inc., 103 A.D.2d 395 Dep't 1984)( "Only presently existing items within a
party's possession, custody or control are susceptible to an application for production."); DeGourney
(2nd
v. Mulzac, 287 A.D.2d 680 Dep't 2001)( "Appellant's motion to compel was properly denied
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by the trial court where the plaintiff established that the piece of paper was no longer in her
possession.").
Geddes'
Here, all of the items that are the subject of demands have been wrongfully
removed from the home by Geddes and are not in Plaintiffs possession. Furthermore, included in
that wrongful removal were all of Plaintiffs files, receipts, and other documentation. As such,
Geddes'
demands requesting specific serial numbers, purchase prices, dates of purchase or other
information that is not in Plaintiffs possession, and are therefore not able to be accurately answered.
GEDDES HAS NOT MADE A GOOD FAITH EFFORT TO RESOLVE THIS DISPUTE
Additionally, "summary denial of a motion to compel is mandated when it is made without a
202.7(a)."
proper affirmation of good faith as required by 22 NYCRR Matter of Overstock.com v.
Morgan Stanley & Co., Inc., 2012 N.Y. Misc. LEXIS 77, *5 (N.Y. Sup. Ct. 2012), citing Sixty Six
(13t
Crosby Assocs. V Berger & Kramer, LLP., 256 A.D.2d 26 Dept. 1998). 22 N.Y.C.R.R. §
- requires "with respect to a motion to disclosure... an affirmation that
202.7(a) (c) that, relating
counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues
motion"
raised by the and that :
The affirmation of the good faith effort to resolve the issues raised
by the motion shall indicate the time, place and nature of the
consultation and the issues discussed and any resolutions, or shall
indicate good cause why no such conferral with counsel for
opposing parties was held.
See 22. N.Y.C.R.R. §202.7(c).
Geddes'
counsel's sending written correspondence, rejecting Plaintiffs entire responses
outright and calling them "woefully inadequate", without any effort to meet and confer to resolve the
dispute either by telephone, in person, or by email, cannot be considered the necessary "good faith
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effort."
This is particularly the case where Plaintiff has already notified Geddes that the information
it seeks is simply not presently known or in the possession of Plaintiff.
Finally, even if Plaintiff did have knowledge of the outstanding information demanded by
Geddes, Geddes has not demonstrated to the Court that such information is material and necessary to
its claims or defenses. "[O]n a motion to compel discovery, the proponents bear the burden to show
demanded."
their entitlement to the discovery Essex Ins. Co. v. Fuscaldo Enters., Ltd, 2014 N.Y.
Misc. LEXIS 5085 (N.Y. Sup. Ct. 2014). Where Plaintiff has already provided, to the best of his
knowledge, the identity, owner, value, manufacturer, place of purchase, location in the Premises, and
condition of each and every item, Geddes has not demonstrated to the Court why the alleged
outstanding requests are material and necessary.
CONCLUSION
Geddes'
Defendant motion to compel seeks information that Plaintiff does not possess and
therefore should be denied. Further, where Geddes has not made a good-faith effort to resolve this
issue, the motion to conipel should be denied outright.
DATED: March 13, 2019
Rochester, New York WOODS OVIATT GILMAN LLP
By:
An e J. R sq.
Stephen P. Burke, Esq.
Attorneys for Plaintiff
700 Crossroads Building
2 State Street
Rochester, New York 14614
(585) 987-2800
arvan@woodsoviatt.com
stephenburke@woodsoviatt.com
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Preview
FILED: ONONDAGA COUNTY CLERK 03/13/2019 04:23 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/13/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA BRIAN C. PRUSIK Plaintiff, vs. Index No.: EGû8588/2018 LIBERTY MUTUAL INSURANCE GROUP INC., GEDDES FEDERAL SAVINGS AND LOAN Judge Deborah H. Kara!unas ASSOCIATION, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO GEDDES FEDERAL SAVINGS AND LOAN ASSOCIATION'S MOTION TO COMPEL DATED: March 13, 2019 Rochester, New York WOODS OVIATT GILMAN LLP Andrew J. Ryan, Esq. Stephen P. Burke, Esq. Attorneys for Plaintiff 700 Crossroads Building 2 State Street Rochester, New York 14614 585.987.2800 aryan@woodsoviatt.com stephenburke(fdwoodsoviatt.com {7095056: } 1 of 4 FILED: ONONDAGA COUNTY CLERK 03/13/2019 04:23 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/13/2019 PRELIMINARY STATEMENT Plaintiff Brian C. Prusik submits this Memorandum of Law in opposition to Defendant Geddes' Geddes Federal Savings and Loan Association's ("Geddes") motion to compel. motion seeks information in response to certain interrogatories. The information demanded by Geddes is not presently known by Plaintiff and would require Plaintiff to speculate as to the responses. Geddes' faith" Additionally, "good efforts amounted solely to vague letter correspondence rejecting inadequate." Geddes' the entirety of Plaintiffs responses and alleging that they are "woefully counsel made no attempts to meet and confer regarding the alleged outstanding discovery, did not make a single telephone call and did not send a single email in an attempt to resolve the alleged Geddes' dispute. motion is completely unnecessary and should be dismissed where Plaintiff has already provided all of the information within his present knowledge and possession BACKGROUND FACTS The facts of this case are set forth in the Affidavit of Stephen P. Burke, Esq., sworn to on the 13d' day of March, 2019, together with exhibits annexed thereto. ARGUMENT GEDDES' MOTION SEEKS INFORMATION THAT IS NOT IN PLAINTIFF'S POSSESSION It is well established that "party may not be compelled to produce information that does not possess." (2nd exist or which he or she does not Romeo v. City of New York, 261 A.D.2d 379 Dep't (2nd 1999); Castillo v. Henry Schein, Inc., 259 A.D.2d 651 ,t 1999); Rosatto v. Mercedes Benz (2nd of North America, Inc., 103 A.D.2d 395 Dep't 1984)( "Only presently existing items within a party's possession, custody or control are susceptible to an application for production."); DeGourney (2nd v. Mulzac, 287 A.D.2d 680 Dep't 2001)( "Appellant's motion to compel was properly denied {7095056: } 2 of 4 FILED: ONONDAGA COUNTY CLERK 03/13/2019 04:23 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/13/2019 by the trial court where the plaintiff established that the piece of paper was no longer in her possession."). Geddes' Here, all of the items that are the subject of demands have been wrongfully removed from the home by Geddes and are not in Plaintiffs possession. Furthermore, included in that wrongful removal were all of Plaintiffs files, receipts, and other documentation. As such, Geddes' demands requesting specific serial numbers, purchase prices, dates of purchase or other information that is not in Plaintiffs possession, and are therefore not able to be accurately answered. GEDDES HAS NOT MADE A GOOD FAITH EFFORT TO RESOLVE THIS DISPUTE Additionally, "summary denial of a motion to compel is mandated when it is made without a 202.7(a)." proper affirmation of good faith as required by 22 NYCRR Matter of Overstock.com v. Morgan Stanley & Co., Inc., 2012 N.Y. Misc. LEXIS 77, *5 (N.Y. Sup. Ct. 2012), citing Sixty Six (13t Crosby Assocs. V Berger & Kramer, LLP., 256 A.D.2d 26 Dept. 1998). 22 N.Y.C.R.R. § - requires "with respect to a motion to disclosure... an affirmation that 202.7(a) (c) that, relating counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues motion" raised by the and that : The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. See 22. N.Y.C.R.R. §202.7(c). Geddes' counsel's sending written correspondence, rejecting Plaintiffs entire responses outright and calling them "woefully inadequate", without any effort to meet and confer to resolve the dispute either by telephone, in person, or by email, cannot be considered the necessary "good faith (7095056: } 2 3 of 4 FILED: ONONDAGA COUNTY CLERK 03/13/2019 04:23 PM INDEX NO. 008588/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 03/13/2019 effort." This is particularly the case where Plaintiff has already notified Geddes that the information it seeks is simply not presently known or in the possession of Plaintiff. Finally, even if Plaintiff did have knowledge of the outstanding information demanded by Geddes, Geddes has not demonstrated to the Court that such information is material and necessary to its claims or defenses. "[O]n a motion to compel discovery, the proponents bear the burden to show demanded." their entitlement to the discovery Essex Ins. Co. v. Fuscaldo Enters., Ltd, 2014 N.Y. Misc. LEXIS 5085 (N.Y. Sup. Ct. 2014). Where Plaintiff has already provided, to the best of his knowledge, the identity, owner, value, manufacturer, place of purchase, location in the Premises, and condition of each and every item, Geddes has not demonstrated to the Court why the alleged outstanding requests are material and necessary. CONCLUSION Geddes' Defendant motion to compel seeks information that Plaintiff does not possess and therefore should be denied. Further, where Geddes has not made a good-faith effort to resolve this issue, the motion to conipel should be denied outright. DATED: March 13, 2019 Rochester, New York WOODS OVIATT GILMAN LLP By: An e J. R sq. Stephen P. Burke, Esq. Attorneys for Plaintiff 700 Crossroads Building 2 State Street Rochester, New York 14614 (585) 987-2800 arvan@woodsoviatt.com stephenburke@woodsoviatt.com {7095056: } 3 4 of 4