On June 15, 2021 a
Motion-Secondary
was filed
involving a dispute between
Bajram Dombalic,
Samuel Garcia,
and
James Cornelius,
Yevgeni Kaniayev,
for Torts - Other Negligence (205-e)
in the District Court of Richmond County.
Preview
FILED: RICHMOND COUNTY CLERK 03/14/2023 12:18 PM INDEX NO. 151145/2021
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
- - ···------ -------------- - - - - -x AFFIRMATION IN
BAJRAM DOMBALIC and SAMUEL GARCIA, REPLY
Plaintiffs,
v. index No. 151145/21
JAMES CORNELlUS and YEVGENI KANIAYEV,
Defendants.
_________----------------x
DEBORAH C. ZACHARY, an attorney duly licensed to practice law in the State of
New York, states the following under penalty of perjury:
1. I am a partner with the law firm of Zachary & Zachary PC, attomeys for the
defendant Yevgeni Kaniayev in the above captioned matter, and as such am fully
familiar with the facts and circumstances of this action. I make this affirmation in reply
to plaintiff's affidavit in opposition to defendant's motion to reargue and in further
support of that motion.
2. Despite plaintiff's allegation that the defendant did not advise what facts were
misapprehended by the court, the motion is quite clear that the issue is whether the
Court properly took judicial notice of a sealed court file.
3. Plaintiff further argues that the defendant at oral argument "failed to raise any
issue"
regarding the dismissal and sealed records. Ms. Canzoneri was not present at
oral argument and apparently is not aware that I specifically argued that there is no
Cornelius'
indication in the record as to the basis for granting Mr. motion to dismiss as
the record is sealed. Defendant further argued that the dismissal could be based upon
procedural issue or substantive defect in the prosecution of the case, such as the lack
1 of 3
FILED: RICHMOND COUNTY CLERK 03/14/2023 12:18 PM INDEX NO. 151145/2021
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/14/2023
of a proper information or failure to abide by the speedy trial statute. Defendant argued
that a determination by the court that the dismissal was on the merits was pure
speculation.
4. The court in its decision stated that the New York Bench tool used as the
basis to deny the motion is a "computer program with the ability to look up a case
status."
However, this tool does not give the court the ability to see the facts in a
sealed record. The taking of judicial notice of a sealed record is, most respectfully,
error. Just as a court does not generally have the power to unseal a record, it can not
take judicial notice of the sealed order the contained within that file. People v. Stephen
C., 2011 N.Y. Slip Op 52087 (County Court, Suffolk County, 2011).
4. The defendant set forth his prima facie entitlement to summary judgment.
And, as the court cannot take judicial notice of information in a sealed record, and
there are no facts in admissible form with which to oppose the motion, defendant's
motion to dismiss this matter must be granted. Zuckerman v. City of New York, 49
NY2d 557 (N.Y. 1980).
WHEREFORE, it is respectfully requested that the instant motion to reargue and
renew the court's February 3, 2023 order be granted, and that upon reargument and
renewal, the defendant's motion for summary judgment be granted in it's entirety and
for such other and further relief as to this court deems just and proper.
ORAH C. ZA ARY
Dated: Staten Island, New York
March 13, 2023
2 of 3
FILED: RICHMOND COUNTY CLERK 03/14/2023 12:18 PM INDEX NO. 151145/2021
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/14/2023
Index No. 151145/2021
________________.---------------__________________.____________
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____--.________________.......------...______.____......._____.-_______.___
BAJRAM DOMBALIC and SAMUEL GARCIA,
Plaintiff(s),
-against-
JAMES CORNELIUS and YEVGENI KANIAYEV
Defendant(s).
AFFIRMATION IN REPLY
MIIMM NN M IIN14
HB4
..
ZACHARY & ZACHARY, P.C.
Attomeys for Defendants
Office & P.O. Address
75 Little Clove Road
Staten Island, New York 10301
(718) 442-2828
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney ad itted to practice in the courts of
New York State, certifies that, upon information and belief and r ona le inquiry, the contentions
contained in the annexed document are not frivolous.
Dated: March 14, 2023 . .............. ......... . . . . . . . .
Debo ah C. Zachary
Service of a copy of the within is hereby admitted
Dated:
.. .... .. . .. . . . . . . .... . . . . . .. ... .. .. . . .. . ...
Attorneys for
PLEASE TAKE NOTICE
NOTICE OF that the within is a (certified) copy of
ENTRY entered in the office of the clerk of the within named Court on
NOTICE OF that a of which the within is a true copy will be presented for
SETTLEMENT settlement to the of the within named Couit.
ZACHARY & ZACHARY, P .C .
Attomeys for
75 Little Clove Road
Staten Island, New York 10301
To:
Index No. 151544/2016
3 of 3
Document Filed Date
March 14, 2023
Case Filing Date
June 15, 2021
Category
Torts - Other Negligence (205-e)
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: RICHMOND COUNTY CLERK 03/14/2023 12:18 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND - - ···------ -------------- - - - - -x AFFIRMATION IN BAJRAM DOMBALIC and SAMUEL GARCIA, REPLY Plaintiffs, v. index No. 151145/21 JAMES CORNELlUS and YEVGENI KANIAYEV, Defendants. _________----------------x DEBORAH C. ZACHARY, an attorney duly licensed to practice law in the State of New York, states the following under penalty of perjury: 1. I am a partner with the law firm of Zachary & Zachary PC, attomeys for the defendant Yevgeni Kaniayev in the above captioned matter, and as such am fully familiar with the facts and circumstances of this action. I make this affirmation in reply to plaintiff's affidavit in opposition to defendant's motion to reargue and in further support of that motion. 2. Despite plaintiff's allegation that the defendant did not advise what facts were misapprehended by the court, the motion is quite clear that the issue is whether the Court properly took judicial notice of a sealed court file. 3. Plaintiff further argues that the defendant at oral argument "failed to raise any issue" regarding the dismissal and sealed records. Ms. Canzoneri was not present at oral argument and apparently is not aware that I specifically argued that there is no Cornelius' indication in the record as to the basis for granting Mr. motion to dismiss as the record is sealed. Defendant further argued that the dismissal could be based upon procedural issue or substantive defect in the prosecution of the case, such as the lack 1 of 3 FILED: RICHMOND COUNTY CLERK 03/14/2023 12:18 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/14/2023 of a proper information or failure to abide by the speedy trial statute. Defendant argued that a determination by the court that the dismissal was on the merits was pure speculation. 4. The court in its decision stated that the New York Bench tool used as the basis to deny the motion is a "computer program with the ability to look up a case status." However, this tool does not give the court the ability to see the facts in a sealed record. The taking of judicial notice of a sealed record is, most respectfully, error. Just as a court does not generally have the power to unseal a record, it can not take judicial notice of the sealed order the contained within that file. People v. Stephen C., 2011 N.Y. Slip Op 52087 (County Court, Suffolk County, 2011). 4. The defendant set forth his prima facie entitlement to summary judgment. And, as the court cannot take judicial notice of information in a sealed record, and there are no facts in admissible form with which to oppose the motion, defendant's motion to dismiss this matter must be granted. Zuckerman v. City of New York, 49 NY2d 557 (N.Y. 1980). WHEREFORE, it is respectfully requested that the instant motion to reargue and renew the court's February 3, 2023 order be granted, and that upon reargument and renewal, the defendant's motion for summary judgment be granted in it's entirety and for such other and further relief as to this court deems just and proper. ORAH C. ZA ARY Dated: Staten Island, New York March 13, 2023 2 of 3 FILED: RICHMOND COUNTY CLERK 03/14/2023 12:18 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/14/2023 Index No. 151145/2021 ________________.---------------__________________.____________ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _____--.________________.......------...______.____......._____.-_______.___ BAJRAM DOMBALIC and SAMUEL GARCIA, Plaintiff(s), -against- JAMES CORNELIUS and YEVGENI KANIAYEV Defendant(s). AFFIRMATION IN REPLY MIIMM NN M IIN14 HB4 .. ZACHARY & ZACHARY, P.C. Attomeys for Defendants Office & P.O. Address 75 Little Clove Road Staten Island, New York 10301 (718) 442-2828 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney ad itted to practice in the courts of New York State, certifies that, upon information and belief and r ona le inquiry, the contentions contained in the annexed document are not frivolous. Dated: March 14, 2023 . .............. ......... . . . . . . . . Debo ah C. Zachary Service of a copy of the within is hereby admitted Dated: .. .... .. . .. . . . . . . .... . . . . . .. ... .. .. . . .. . ... Attorneys for PLEASE TAKE NOTICE NOTICE OF that the within is a (certified) copy of ENTRY entered in the office of the clerk of the within named Court on NOTICE OF that a of which the within is a true copy will be presented for SETTLEMENT settlement to the of the within named Couit. ZACHARY & ZACHARY, P .C . Attomeys for 75 Little Clove Road Staten Island, New York 10301 To: Index No. 151544/2016 3 of 3