Preview
FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018
'l'111.'
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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NOVELLA LIFSHITS,
AFFIRMATION
Plaintiff,
-against- Index No.: 151082/2017
ELVIS A. NECKLES and ANDREW NECKLES,
Defendants.
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YURIY PRAKHIN, ESQ., an attorney admitted to practice before the Courts of this State
affirms the truth of the following under the penalty of perjury:
1. I am the principal of the LAW OFFICE OF YURIY PRAKHIN, P. C., attorneys for
the plaintiff herein and, as such, I am fully familiar with the facts and circumstances of this action
based upon a review of the case file and the investigation materials contained therein.
2. This affirmation is submitted in connection with the plaintiffs application seeking an
Order pursuant to CPLR §3126 precluding defendants from testifying at trial and striking the
defendants'4
Answer.
3. This is a negligence action to recover damages for serious injuries sustained by
defendants'
plaintiff as a result of the negligence which occurred on September 23, 2016.
4. That an action has been commenced against defendants ELVIS A. NECKLES and
DOE"
"JOHN on February 2, 2017 by filing a Summons and Complaint and purchasing an Index
Number. That on or about May 10, 2017 defendant ELVIS A. NECKLES interposed an Answer.
Copies of the Summons and Complaint and Answer are annexed hereto collectively as Exhibit "A".
5. On July 14, 2017, a Stipulation Amending Caption was filed, adding ANDREW
NECKLES as a defendant driver instead of "JOHN DOE". A copy of the stipulation is annexed
hereto as Exhibit "B".
6. That plaintiff served discovery responses and on August 7, 2017 a conference was
held which resulted in a Case Scheduling Order mandating the depositions of all parties to be
completed 2018. A of'the
of the Order is annexccl
annexed hcrcto
hereto as I'xhibit
Exhibit C".
"C".
by January 17, copy
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NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018
7. That on January 16, 2018, my office tried 10 confirm the depositions but attorneys for
plilintlII'
defendants requested an adjournment 10 March 1, 2018 for plaintiff and April 2, 2018 for defendants.
8. That plaintiff's examination before trial was held on March 1, 2018.
9. That on March 30, 2018, defendants once again did not confirm their client's
deposition and requested an adjournment to May 1 1,2018.
defendants'
10. That on May 10, 2018, attorneys advised that new deposition dates will
be picked at the Compliance Conference scheduled for May 14, 2018.
1 1. That on May 14, 2018 a Compliance Conference was held resulting in a Stipulation
directing defendants to appear for an Examination Before Trial on June 20, 2018 and that there are
"no adjournment of EBT dates absent prior Court Order upon good cause shown". A copy of
the Stipulation is annexed hereto as Exhibit "D".
defendants'
12. That on June 19, 2018, my office called to confirm deposition but were
defendants'
advised by the counsel's deposition clerk that they did not have the date on the calendar
and once again, adjourned without a further date.
13. Defendants are now in default of several Orders of this Court and are delaying
discovery in this matter without any good cause.
defendants'
14. That given the failure to comply with the orders of this Court, plaintiff,
defendants'
clef'endants'
NOVELLA LIFSHITS, seeks an Order striking the Answer and precluding defendants
from testifying at trial.
15. CPLR § 3126 states in pertinent parts:
"If any party [ ...]refuses to obey an order for disclosure or willfully
fails to disclose information [...] 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
01' ol'
determined, or from using certain witnesses; or
3. an order striking pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or any
part thereof, 01 rendering a judgment of default against the
disobedient party.
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FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018
McKinney's CPLR § 3126.
16. In itsdecision of December 6, 2011, „ the Appellate Division, Second Department once
again held that the striking of a pleading may be appropriate where there is a clear showing that the
failure to comply with discovery demands is willful and contumacious. Quinones v. Long Island
Jewish Medical Center, N.Y.A.D.90 A.D.3d 632, 933 N.Y.S.2d 907 (2 Dept. 2011), citing Workman
v. Town of Southampton, 69 A.D.3d 619, 620, 892 N.Y.S.2d 481; Northfield Ins. Co. v. Model
Towing 4 Recovery, 63 A.D.3d 808, 809, 881 N.Y.S.2d 135. The willful and contumacious
character of a party's conduct can be inferred from the party's repeated failure to respond to demands
and/or to comply with discovery orders. .~55
Howe v. Jeremiah, 51 ..d9
A.D.3d 975, .II8858
N.Y.S.2d 788 (2
' '
Dept., 2008); Horne v. .
Swimquip, Inc., .36 AD3d 859 (2d Dept 2007); Sowerby v. .
Camarda, 20
AD3d 411 (2dDept 2005); Bodine v. Ladivardi, 284 A.D.2d 351, 352 (2d Dept 2001); Town of
Southampton v. Salten, 186 A.D.2d 796 (2d Dept 1992). In Quinones, the party's willful and
defendants'
contumacious conduct was to be inferred from her repeated failures, despite the requests,
to provide authorizations for trial and expert witness disclosure, and the absence of any reasonable
excuse for these failures. Id. at 908. In Howe, the willful or contumacious character ofthe conduct at
issue was properly inferred by the court from the party's repeated failures to comply with the
discovery demands of the other party and the court's discovery orders to provide certain disclosure
without an adequate excuse. Id. at 975.
17. In the case at bar, the willful and contumacious conduct of the defendants and
defendants'
counsel is exhibited in their constant failure to appear for Court-ordered depositions
plaintiff"
without giving any reasonable excuse for such actions and notwithstanding the plaintiff's repeated
good-faith attempts to complete discovery.
18. The plaintiff has responded to written discovery requests, complied with the
directives of this Court's orders and made good faith attempts to obtain outstanding discovery from
the defendants. Clearly, the foregoing demonstrates the plaintiff's willingness to work with
defendants to ensure that all necessary discovery is completed. It isthe defendants in the instant
ma(ter
matter who have willfully and contumaciously refused to complcic
complete discovery and comply with (hc
the
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FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018
directives of this Court.
defendants'
19. In light of the dcfcnclants thwarting the resolution of this action by failing 10 conduct
Court-ordered depositions, it would be a provident exercise of this Court's discretion to grant the
defendants'
instant motion in its entirety, strike the Answer and preclude the defendants from
testifying at trial,Horne v. Swimquip, Inc., 36 A.D.3d 859, 830 N.Y.S.2d 218; cf. Redmond v.
Jamaica Hosp. Med. Ctr., 62 A.D.3d 854, 878 N.Y.S.2d 624; Canaan v. Costco Wholesale
Membership, Inc., 49 A.D.3d 583, 854 N.Y.S.2d 442.
20. That no previous application for the relief herein prayed for has been made.
WHEREFORE, Plaintiff respectfully requests the within motion be granted in allrespects
and that this Court grant such other and further relief as it deems just and proper.
Dated: Brooklyn, New York
June 20, 2018
YURIY P I<.HIN, ESQ.
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Preview
FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018 'l'111.' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — — ——— ———— ——— X ----------------------------------------------------------------------X NOVELLA LIFSHITS, AFFIRMATION Plaintiff, -against- Index No.: 151082/2017 ELVIS A. NECKLES and ANDREW NECKLES, Defendants. — —--— — --------------------------------------------------------------------X YURIY PRAKHIN, ESQ., an attorney admitted to practice before the Courts of this State affirms the truth of the following under the penalty of perjury: 1. I am the principal of the LAW OFFICE OF YURIY PRAKHIN, P. C., attorneys for the plaintiff herein and, as such, I am fully familiar with the facts and circumstances of this action based upon a review of the case file and the investigation materials contained therein. 2. This affirmation is submitted in connection with the plaintiffs application seeking an Order pursuant to CPLR §3126 precluding defendants from testifying at trial and striking the defendants'4 Answer. 3. This is a negligence action to recover damages for serious injuries sustained by defendants' plaintiff as a result of the negligence which occurred on September 23, 2016. 4. That an action has been commenced against defendants ELVIS A. NECKLES and DOE" "JOHN on February 2, 2017 by filing a Summons and Complaint and purchasing an Index Number. That on or about May 10, 2017 defendant ELVIS A. NECKLES interposed an Answer. Copies of the Summons and Complaint and Answer are annexed hereto collectively as Exhibit "A". 5. On July 14, 2017, a Stipulation Amending Caption was filed, adding ANDREW NECKLES as a defendant driver instead of "JOHN DOE". A copy of the stipulation is annexed hereto as Exhibit "B". 6. That plaintiff served discovery responses and on August 7, 2017 a conference was held which resulted in a Case Scheduling Order mandating the depositions of all parties to be completed 2018. A of'the of the Order is annexccl annexed hcrcto hereto as I'xhibit Exhibit C". "C". by January 17, copy 1 of 4 FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018 7. That on January 16, 2018, my office tried 10 confirm the depositions but attorneys for plilintlII' defendants requested an adjournment 10 March 1, 2018 for plaintiff and April 2, 2018 for defendants. 8. That plaintiff's examination before trial was held on March 1, 2018. 9. That on March 30, 2018, defendants once again did not confirm their client's deposition and requested an adjournment to May 1 1,2018. defendants' 10. That on May 10, 2018, attorneys advised that new deposition dates will be picked at the Compliance Conference scheduled for May 14, 2018. 1 1. That on May 14, 2018 a Compliance Conference was held resulting in a Stipulation directing defendants to appear for an Examination Before Trial on June 20, 2018 and that there are "no adjournment of EBT dates absent prior Court Order upon good cause shown". A copy of the Stipulation is annexed hereto as Exhibit "D". defendants' 12. That on June 19, 2018, my office called to confirm deposition but were defendants' advised by the counsel's deposition clerk that they did not have the date on the calendar and once again, adjourned without a further date. 13. Defendants are now in default of several Orders of this Court and are delaying discovery in this matter without any good cause. defendants' 14. That given the failure to comply with the orders of this Court, plaintiff, defendants' clef'endants' NOVELLA LIFSHITS, seeks an Order striking the Answer and precluding defendants from testifying at trial. 15. CPLR § 3126 states in pertinent parts: "If any party [ ...]refuses to obey an order for disclosure or willfully fails to disclose information [...] 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 01' ol' determined, or from using certain witnesses; or 3. an order striking pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, 01 rendering a judgment of default against the disobedient party. 2 of 4 FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018 McKinney's CPLR § 3126. 16. In itsdecision of December 6, 2011, „ the Appellate Division, Second Department once again held that the striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. Quinones v. Long Island Jewish Medical Center, N.Y.A.D.90 A.D.3d 632, 933 N.Y.S.2d 907 (2 Dept. 2011), citing Workman v. Town of Southampton, 69 A.D.3d 619, 620, 892 N.Y.S.2d 481; Northfield Ins. Co. v. Model Towing 4 Recovery, 63 A.D.3d 808, 809, 881 N.Y.S.2d 135. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands and/or to comply with discovery orders. .~55 Howe v. Jeremiah, 51 ..d9 A.D.3d 975, .II8858 N.Y.S.2d 788 (2 ' ' Dept., 2008); Horne v. . Swimquip, Inc., .36 AD3d 859 (2d Dept 2007); Sowerby v. . Camarda, 20 AD3d 411 (2dDept 2005); Bodine v. Ladivardi, 284 A.D.2d 351, 352 (2d Dept 2001); Town of Southampton v. Salten, 186 A.D.2d 796 (2d Dept 1992). In Quinones, the party's willful and defendants' contumacious conduct was to be inferred from her repeated failures, despite the requests, to provide authorizations for trial and expert witness disclosure, and the absence of any reasonable excuse for these failures. Id. at 908. In Howe, the willful or contumacious character ofthe conduct at issue was properly inferred by the court from the party's repeated failures to comply with the discovery demands of the other party and the court's discovery orders to provide certain disclosure without an adequate excuse. Id. at 975. 17. In the case at bar, the willful and contumacious conduct of the defendants and defendants' counsel is exhibited in their constant failure to appear for Court-ordered depositions plaintiff" without giving any reasonable excuse for such actions and notwithstanding the plaintiff's repeated good-faith attempts to complete discovery. 18. The plaintiff has responded to written discovery requests, complied with the directives of this Court's orders and made good faith attempts to obtain outstanding discovery from the defendants. Clearly, the foregoing demonstrates the plaintiff's willingness to work with defendants to ensure that all necessary discovery is completed. It isthe defendants in the instant ma(ter matter who have willfully and contumaciously refused to complcic complete discovery and comply with (hc the 3 of 4 FILED: NEW YORK COUNTY CLERK 06/21/2018 10:14 AM INDEX NO. 151082/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/21/2018 directives of this Court. defendants' 19. In light of the dcfcnclants thwarting the resolution of this action by failing 10 conduct Court-ordered depositions, it would be a provident exercise of this Court's discretion to grant the defendants' instant motion in its entirety, strike the Answer and preclude the defendants from testifying at trial,Horne v. Swimquip, Inc., 36 A.D.3d 859, 830 N.Y.S.2d 218; cf. Redmond v. Jamaica Hosp. Med. Ctr., 62 A.D.3d 854, 878 N.Y.S.2d 624; Canaan v. Costco Wholesale Membership, Inc., 49 A.D.3d 583, 854 N.Y.S.2d 442. 20. That no previous application for the relief herein prayed for has been made. WHEREFORE, Plaintiff respectfully requests the within motion be granted in allrespects and that this Court grant such other and further relief as it deems just and proper. Dated: Brooklyn, New York June 20, 2018 YURIY P I<.HIN, ESQ. 4 of 4