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FILED: QUEENS COUNTY CLERK 08/26/2020 10:55 AM INDEX NO. 711448/2015
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 08/26/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
__________________________________________________________________.·X
FERNANDO PINOS CABRERA, Index No.: 711448/2015
Plaintiff, AFFIRMATION IN SUPPORT
-against-
EMILY M. RUSSELL, EMPIRE TODAY and
PETER LUGER CONSTRUCTION, INC.,
Defendants.
-----------------------------------------------------------------X
EMPIRE TODAY, LLC,
Third-Party Plaintiff,
-against-
JANNELLY FLOORING & CARPETING, INC.,
Third-Party Defendant.
------------------------------------------------------------------X
Richard J. Calabrese, Esq., an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true under penalties of perjury:
1. I am a member of the law firm of CASCONE & KLUEPFEL, LLP, attorneys for
the defendant, A PETER LUGER CONSTRUCTION, INC. i/s/h/a PETER LUGER
CONSTRUCTION, INC., and as such, I am fully familiar with the facts and circumstances of
this matter.
2. I make this affirmation in support of defendant's cross-motion for an Order(1)
pursuant to CPLR §3126, striking plaintiff's Complaint for failing to comply with Court ordered
Discovery Stipulation dated November 12, 2019; (2) pursuant to CPLR §3124, compelling
plaintiff to provide responses to all outstanding discovery demands and submit to a deposition on
a date certain or be precluded from testifying or offering any evidence at trial; and (3) granting
such other and further relief as this Court may deem just and proper.
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3. defendant moves for dismissal on identical grounds as that of co-
Cross-moving
defendants, EMILY M. RUSSELL and EMPIRE TODAY, LLC, and hereby adopts and
incorporates by reference the arguments, exhibits, and proofs put forth in their motions to strike
plaintiff's Complaint with the same force and affect.
4. In addition to the discovery owed by plaintiff pursuant to the Discovery
Stipulation dated November 12, 2019, your affirmant has requested discovery from plaintiff and
co-defendants which is outlined in our correspondence dated January 29, 2020 and our follow-up
"A"
request dated July 10, 2020 which remain outstanding. Annexed as Exhibit are copies of
the correspondence.
5. Remaining outstanding from plaintiff is the following:
a) An Authorization to obtain Mr. Cabrera's primary care physician records. (As so
noted in our goof faith letters, in the March 2016 records of Dr. McCulloch, it is
referenced that Mr. Cabrera treated with his primary care physician in relation to the
complaints stemming from this accident in June 2015. Therefore, the authorization is
certainly relevant and not improper, overly broad nor seeking privileged formation).
b) An Authorization to obtain Mr. Cabrera's IRS and Tax records, along with copies of
W-2 for a period of two-years prior to the date of accident to the present. (As
indicated in our April 29, 2020 and June 9, 2020 letters regarding demand for
authorizations to obtain Mr. Cabrera's tax records, our office has been unable to
obtain any records form Janelly Flooring and Carpeting pursuant to the authorizations
provided by plaintiff. Several attempts have been made to secure Mr. Cabrera's
earnings records from plaintiff's employer, but to no avail despite our efforts. Based
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NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 08/26/2020
on the lost wages claim asserting by plaintiff, we are entitled to obtain his W-2s and
earning statements in defense of the list wages claim.
6. At this point, the continued failure to provide discovery can be considered willful,
thereby warranting the dismissal of plaintiff's complaint. S_ee Zletz v. Wetanson, 67 N.Y.2d 711,
499 N.Y.S.2d 933 (1986); Re v. Ernst & Whinney, 654 N.Y.S.2d 585, 585 (2d Dep't 1997)
(plaintiffs'
willful refusal to provide discovery warranted dismissal of their complaint); Brady v.
County of Nassau, 650 N.Y.S.2d 802, 802 (2d Dep't 1996) (absence of excuse for failure to
provide discovery supports motion to dismiss).
7. At present, defendants are in the unenviable position of defending a lost-wages
claim and are unable to obtain earnings records from plaintiff's employer. We have repeatedly
endeavored to obtain them but to no avail. Moreover, plaintiff has repeatedly refused to provide
us with authorizations to obtain IRS and tax records.
8. Therefore, we urge this Court to issue an Order dismissing plaintiff's complaint,
or precluding plaintiff from giving evidence at trial in support of their claims or, in the
alternative, resolving the issues to which the information sought is relevant in favor of our client.
9. If the Court finds an Order of dismissal or preclusion unwarranted, we
respectfully request the Court to issue an Order, pursuant to CPLR 3124, compelling plaintiff to
immediately provide responses to our discovery demands.
WHEREFORE, it is respectfully requested that this Court grant the instant motion in all
respects, along with such other and further relief as this Court may deem just and proper.
Dated: Garden City, New York
August 24, 2020
RICH1RD J. CALABRESE, ESQ.
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FILED: QUEENS COUNTY CLERK 08/26/2020 10:55 AM INDEX NO. 711448/2015 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 08/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS __________________________________________________________________.·X FERNANDO PINOS CABRERA, Index No.: 711448/2015 Plaintiff, AFFIRMATION IN SUPPORT -against- EMILY M. RUSSELL, EMPIRE TODAY and PETER LUGER CONSTRUCTION, INC., Defendants. -----------------------------------------------------------------X EMPIRE TODAY, LLC, Third-Party Plaintiff, -against- JANNELLY FLOORING & CARPETING, INC., Third-Party Defendant. ------------------------------------------------------------------X Richard J. Calabrese, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am a member of the law firm of CASCONE & KLUEPFEL, LLP, attorneys for the defendant, A PETER LUGER CONSTRUCTION, INC. i/s/h/a PETER LUGER CONSTRUCTION, INC., and as such, I am fully familiar with the facts and circumstances of this matter. 2. I make this affirmation in support of defendant's cross-motion for an Order(1) pursuant to CPLR §3126, striking plaintiff's Complaint for failing to comply with Court ordered Discovery Stipulation dated November 12, 2019; (2) pursuant to CPLR §3124, compelling plaintiff to provide responses to all outstanding discovery demands and submit to a deposition on a date certain or be precluded from testifying or offering any evidence at trial; and (3) granting such other and further relief as this Court may deem just and proper. 1 of 3 FILED: QUEENS COUNTY CLERK 08/26/2020 10:55 AM INDEX NO. 711448/2015 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 08/26/2020 3. defendant moves for dismissal on identical grounds as that of co- Cross-moving defendants, EMILY M. RUSSELL and EMPIRE TODAY, LLC, and hereby adopts and incorporates by reference the arguments, exhibits, and proofs put forth in their motions to strike plaintiff's Complaint with the same force and affect. 4. In addition to the discovery owed by plaintiff pursuant to the Discovery Stipulation dated November 12, 2019, your affirmant has requested discovery from plaintiff and co-defendants which is outlined in our correspondence dated January 29, 2020 and our follow-up "A" request dated July 10, 2020 which remain outstanding. Annexed as Exhibit are copies of the correspondence. 5. Remaining outstanding from plaintiff is the following: a) An Authorization to obtain Mr. Cabrera's primary care physician records. (As so noted in our goof faith letters, in the March 2016 records of Dr. McCulloch, it is referenced that Mr. Cabrera treated with his primary care physician in relation to the complaints stemming from this accident in June 2015. Therefore, the authorization is certainly relevant and not improper, overly broad nor seeking privileged formation). b) An Authorization to obtain Mr. Cabrera's IRS and Tax records, along with copies of W-2 for a period of two-years prior to the date of accident to the present. (As indicated in our April 29, 2020 and June 9, 2020 letters regarding demand for authorizations to obtain Mr. Cabrera's tax records, our office has been unable to obtain any records form Janelly Flooring and Carpeting pursuant to the authorizations provided by plaintiff. Several attempts have been made to secure Mr. Cabrera's earnings records from plaintiff's employer, but to no avail despite our efforts. Based 2 of 3 FILED: QUEENS COUNTY CLERK 08/26/2020 10:55 AM INDEX NO. 711448/2015 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 08/26/2020 on the lost wages claim asserting by plaintiff, we are entitled to obtain his W-2s and earning statements in defense of the list wages claim. 6. At this point, the continued failure to provide discovery can be considered willful, thereby warranting the dismissal of plaintiff's complaint. S_ee Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933 (1986); Re v. Ernst & Whinney, 654 N.Y.S.2d 585, 585 (2d Dep't 1997) (plaintiffs' willful refusal to provide discovery warranted dismissal of their complaint); Brady v. County of Nassau, 650 N.Y.S.2d 802, 802 (2d Dep't 1996) (absence of excuse for failure to provide discovery supports motion to dismiss). 7. At present, defendants are in the unenviable position of defending a lost-wages claim and are unable to obtain earnings records from plaintiff's employer. We have repeatedly endeavored to obtain them but to no avail. Moreover, plaintiff has repeatedly refused to provide us with authorizations to obtain IRS and tax records. 8. Therefore, we urge this Court to issue an Order dismissing plaintiff's complaint, or precluding plaintiff from giving evidence at trial in support of their claims or, in the alternative, resolving the issues to which the information sought is relevant in favor of our client. 9. If the Court finds an Order of dismissal or preclusion unwarranted, we respectfully request the Court to issue an Order, pursuant to CPLR 3124, compelling plaintiff to immediately provide responses to our discovery demands. WHEREFORE, it is respectfully requested that this Court grant the instant motion in all respects, along with such other and further relief as this Court may deem just and proper. Dated: Garden City, New York August 24, 2020 RICH1RD J. CALABRESE, ESQ. 3 of 3