Preview
FILED: KINGS COUNTY CLERK 09/01/2022 11:22 PM INDEX NO. 521636/2020
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No.: 521636/2020
MIRIAM GONZALEZ AGUILAR,
Plaintiff, AFFIRMATION IN
-against- OPPOSITION
ALBA LIMO TRANSPORTATION CORP., J.C.
HIRALDO-POLANCO and AMY T. GAVILANES,
Defendants.
NOEL DALY, an attorney duly admitted to practice before all the Courts of the State of New
York affirms under the penalty of perjury:
1. I am an associate of LAW OFFICES OF ROTHENBERG & BURNS, attorney of
record for defendant AMY T. GAVILANES.
2. This Affirmation is submitted in opposition to the instant motion compelling
defendant AMY T. GAVILANES to appear for an examination before trial and respond to
plaintiff’s discovery demands or, alternatively, be precluded pursuant to CPLR §3126.
DEFENDANT AMY T. GAVILANES HAS RESPONDED TO PLAINTIFF’S
DISCOVERY DEMANDS
3. Annexed hereto as Exhibit “A” is copy of Defendant GAVILANES’ response to
plaintiff’s discovery demands. Accordingly, that portion of plaintiff’s motion is moot and should
be denied.
PLAINTIFF’S MOTION IS DEFECTIVE AS IT FAILS TO FULLY COMPLY WITH
UNIFORM RULE 202.20-f
4. As noted in co-defendants’ affirmation in opposition (see Stacy Seldin, Esq.,
Affirmation-page 1, par. 3), the plaintiff’s counsel fails to provide detailed information as to the
good faith efforts made to resolve the discovery issues in their motion without resorting to motion
practice. This good faith effort must include evidence of an “in-person or telephonic
Proprietary
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conference(s).” If a party deems motion practice as necessary, then the moving party must
provide an affidavit or affirmation from counsel reflecting details of the in-person or
telephonic conference that sets forth the date and time of such conference, persons
participating, and the length of time of the conference. See Uniform Rule 202.20-f.
Plaintiff’s counsel’s papers provide no such evidence or affirmation and, thereby, fail to
comply with the requirements of the statute. Accordingly, inasmuch as plaintiff’s papers fail to
comply with the statute, their motion should be denied.
DEFENDANT GAVILANES IS READY, WILLING AND ABLE TO APPEAR
FOR HER DEPOSITION ON A MUTUALLY AGREEABLE DATE AND TIME
5. In the event that the Court entertains the Plaintiff’s motion despite the failure to
comply with the statute, it should be noted that Defendant GAVILANES was ready, willing and
able to appear for each of her previously scheduled deposition dates. However, inasmuch as
Defendant GAVILANES is the last-named defendant in the caption, she never appeared for any
of her previously scheduled appearances due to adjournment requests from the other parties that
pushed the depositions to later dates.
6. However, Defendant GAVILANES is still ready, willing and able to appear for a
mutually agreeable date and time for a virtually conducted deposition even if it requires her to
appear out of caption order. Accordingly, the instant motion must be denied on the basis that
Plaintiff has failed to claim or submit any evidence to substantiate a claim that Defendant acted in
a willful or contumacious manner.
7. The Court has interpreted a willful and contumacious failure to mean an outright
expressed intention to not participate in discovery. Cantos v Castle Abatement Corp., 251 AD2d
40 (1st Dept., 1998); Valmar Enterprises v. Rutigliano, 520 NYS2d 436 (2d Dept. 1987). Based
on the above, defendant GAVILANES has no such intention. Instead, defendant is prepared to
Proprietary
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appear for her virtual deposition at a mutually agreeable date and time.
8. It is respectfully requested that this Honorable Court allow Defendants another
opportunity to appear for a deposition without being faced with the harsh penalty of preclusion. It
must always be remembered that the overriding goal of Article 31 of the CPLR is not punitive but
rather the liberal and full disclosure of all evidence material, necessary or relevant to the issues to
be tried. CPLR §3101; Andon v 302-304 Mott St. Assocs., 94 NY2d 740 (2000); Allen v. Crowell
Collier Pub. Co., 21 NY2d 403 (1968).
9. In light of the foregoing, it is respectfully submitted that the instant motion should
be denied in its entirety as a matter of law.
WHEREFORE, Defendants respectfully request that the instant motion be denied in all
respects together with such relief as this Honorable Court finds to be necessary and proper.
Dated: Garden City, New York
September 1, 2022
By: NOEL DALY
Mailing Address
P.O. Box 258829
Oklahoma City OK 73125-8829
Virtual Office by Appointment Only:
200 Garden City Plaza, Suite 400
Garden City NY 11530-9250
(917) 344-6806
Proprietary
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WORD COUNT CERTIFICATION
Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the
word count limit of 7,000 words set forth therein. The total number of words in this Affirmation,
exclusive of any captions, tables of contents, tables of authorities and signature blocks, is 659
pursuant to the word count in Microsoft Word, the word processing system used to prepare the
document.
Dated: Garden City, New York
September 1, 2022
LAW OFFICES OF ROTHENBERG &
BURNS
By: NOEL DALY
Attorney for Defendant
Mailing Address
P.O. Box 258829
Oklahoma City OK 73125-8829
Virtual Office by Appointment Only:
200 Garden City Plaza, Suite 400
Garden City NY 11530-9250
(917) 344-6806
Our File No.: 21-583607
Proprietary
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INDEX NO.: 521636/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
MIRIAM GONZALEZ AGUILAR,
Plaintiff(s),
- against -
ALBA LIMO TRANSPORTATION CORP., J.C. HIRALDO-POLANCO and AMY T. GAVILANES,
Defendant(s).
AFFIRMATION IN OPPOSITION & WORD COUNT CERTIFICATION
LAW OFFICES OF ROTHENBERG & BURNS
ATTORNEYS AND COUNSELORS AT LAW
ATTORNEYS FOR DEFENDANT –
AMY T. GAVILANES
MAILING ADDRESS
P.O. BOX 258829
OKLAHOMA CITY OK 73125-8829
VIRTUAL OFFICE BY APPOINTMENT ONLY:
200 GARDEN CITY PLAZA, SUITE 400
GARDEN CITY NY 11530-9250
(917) 344-6800
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State,
certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document
are not frivolous.
Dated: September 1, 2022
Signature...................................................................
Print Signer’s Name: NOEL DALY
Service of a copy of the within is
hereby admitted.
Dated: .....................................................................
Attorney(s) for Defendant
Dated: Garden City, New York
September 1, 2022
LAW OFFICES OF ROTHENBERG & BURNS
ATTORNEYS FOR DEFENDANT
MAILING ADDRESS
P.O. BOX 258829
OKLAHOMA CITY OK 73125-8829
VIRTUAL OFFICE BY APPOINTMENT
ONLY:
200 GARDEN CITY PLAZA, SUITE 400
GARDEN CITY NY 11530-9250
(917) 344-6800
Proprietary
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Preview
FILED: KINGS COUNTY CLERK 09/01/2022 11:22 PM INDEX NO. 521636/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.: 521636/2020 MIRIAM GONZALEZ AGUILAR, Plaintiff, AFFIRMATION IN -against- OPPOSITION ALBA LIMO TRANSPORTATION CORP., J.C. HIRALDO-POLANCO and AMY T. GAVILANES, Defendants. NOEL DALY, an attorney duly admitted to practice before all the Courts of the State of New York affirms under the penalty of perjury: 1. I am an associate of LAW OFFICES OF ROTHENBERG & BURNS, attorney of record for defendant AMY T. GAVILANES. 2. This Affirmation is submitted in opposition to the instant motion compelling defendant AMY T. GAVILANES to appear for an examination before trial and respond to plaintiff’s discovery demands or, alternatively, be precluded pursuant to CPLR §3126. DEFENDANT AMY T. GAVILANES HAS RESPONDED TO PLAINTIFF’S DISCOVERY DEMANDS 3. Annexed hereto as Exhibit “A” is copy of Defendant GAVILANES’ response to plaintiff’s discovery demands. Accordingly, that portion of plaintiff’s motion is moot and should be denied. PLAINTIFF’S MOTION IS DEFECTIVE AS IT FAILS TO FULLY COMPLY WITH UNIFORM RULE 202.20-f 4. As noted in co-defendants’ affirmation in opposition (see Stacy Seldin, Esq., Affirmation-page 1, par. 3), the plaintiff’s counsel fails to provide detailed information as to the good faith efforts made to resolve the discovery issues in their motion without resorting to motion practice. This good faith effort must include evidence of an “in-person or telephonic Proprietary 1 of 5 FILED: KINGS COUNTY CLERK 09/01/2022 11:22 PM INDEX NO. 521636/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2022 conference(s).” If a party deems motion practice as necessary, then the moving party must provide an affidavit or affirmation from counsel reflecting details of the in-person or telephonic conference that sets forth the date and time of such conference, persons participating, and the length of time of the conference. See Uniform Rule 202.20-f. Plaintiff’s counsel’s papers provide no such evidence or affirmation and, thereby, fail to comply with the requirements of the statute. Accordingly, inasmuch as plaintiff’s papers fail to comply with the statute, their motion should be denied. DEFENDANT GAVILANES IS READY, WILLING AND ABLE TO APPEAR FOR HER DEPOSITION ON A MUTUALLY AGREEABLE DATE AND TIME 5. In the event that the Court entertains the Plaintiff’s motion despite the failure to comply with the statute, it should be noted that Defendant GAVILANES was ready, willing and able to appear for each of her previously scheduled deposition dates. However, inasmuch as Defendant GAVILANES is the last-named defendant in the caption, she never appeared for any of her previously scheduled appearances due to adjournment requests from the other parties that pushed the depositions to later dates. 6. However, Defendant GAVILANES is still ready, willing and able to appear for a mutually agreeable date and time for a virtually conducted deposition even if it requires her to appear out of caption order. Accordingly, the instant motion must be denied on the basis that Plaintiff has failed to claim or submit any evidence to substantiate a claim that Defendant acted in a willful or contumacious manner. 7. The Court has interpreted a willful and contumacious failure to mean an outright expressed intention to not participate in discovery. Cantos v Castle Abatement Corp., 251 AD2d 40 (1st Dept., 1998); Valmar Enterprises v. Rutigliano, 520 NYS2d 436 (2d Dept. 1987). Based on the above, defendant GAVILANES has no such intention. Instead, defendant is prepared to Proprietary 2 of 5 FILED: KINGS COUNTY CLERK 09/01/2022 11:22 PM INDEX NO. 521636/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2022 appear for her virtual deposition at a mutually agreeable date and time. 8. It is respectfully requested that this Honorable Court allow Defendants another opportunity to appear for a deposition without being faced with the harsh penalty of preclusion. It must always be remembered that the overriding goal of Article 31 of the CPLR is not punitive but rather the liberal and full disclosure of all evidence material, necessary or relevant to the issues to be tried. CPLR §3101; Andon v 302-304 Mott St. Assocs., 94 NY2d 740 (2000); Allen v. Crowell Collier Pub. Co., 21 NY2d 403 (1968). 9. In light of the foregoing, it is respectfully submitted that the instant motion should be denied in its entirety as a matter of law. WHEREFORE, Defendants respectfully request that the instant motion be denied in all respects together with such relief as this Honorable Court finds to be necessary and proper. Dated: Garden City, New York September 1, 2022 By: NOEL DALY Mailing Address P.O. Box 258829 Oklahoma City OK 73125-8829 Virtual Office by Appointment Only: 200 Garden City Plaza, Suite 400 Garden City NY 11530-9250 (917) 344-6806 Proprietary 3 of 5 FILED: KINGS COUNTY CLERK 09/01/2022 11:22 PM INDEX NO. 521636/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2022 WORD COUNT CERTIFICATION Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the word count limit of 7,000 words set forth therein. The total number of words in this Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature blocks, is 659 pursuant to the word count in Microsoft Word, the word processing system used to prepare the document. Dated: Garden City, New York September 1, 2022 LAW OFFICES OF ROTHENBERG & BURNS By: NOEL DALY Attorney for Defendant Mailing Address P.O. Box 258829 Oklahoma City OK 73125-8829 Virtual Office by Appointment Only: 200 Garden City Plaza, Suite 400 Garden City NY 11530-9250 (917) 344-6806 Our File No.: 21-583607 Proprietary 4 of 5 FILED: KINGS COUNTY CLERK 09/01/2022 11:22 PM INDEX NO. 521636/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2022 INDEX NO.: 521636/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MIRIAM GONZALEZ AGUILAR, Plaintiff(s), - against - ALBA LIMO TRANSPORTATION CORP., J.C. HIRALDO-POLANCO and AMY T. GAVILANES, Defendant(s). AFFIRMATION IN OPPOSITION & WORD COUNT CERTIFICATION LAW OFFICES OF ROTHENBERG & BURNS ATTORNEYS AND COUNSELORS AT LAW ATTORNEYS FOR DEFENDANT – AMY T. GAVILANES MAILING ADDRESS P.O. BOX 258829 OKLAHOMA CITY OK 73125-8829 VIRTUAL OFFICE BY APPOINTMENT ONLY: 200 GARDEN CITY PLAZA, SUITE 400 GARDEN CITY NY 11530-9250 (917) 344-6800 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: September 1, 2022 Signature................................................................... Print Signer’s Name: NOEL DALY Service of a copy of the within is hereby admitted. Dated: ..................................................................... Attorney(s) for Defendant Dated: Garden City, New York September 1, 2022 LAW OFFICES OF ROTHENBERG & BURNS ATTORNEYS FOR DEFENDANT MAILING ADDRESS P.O. BOX 258829 OKLAHOMA CITY OK 73125-8829 VIRTUAL OFFICE BY APPOINTMENT ONLY: 200 GARDEN CITY PLAZA, SUITE 400 GARDEN CITY NY 11530-9250 (917) 344-6800 Proprietary 5 of 5