Preview
FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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KATHY MORGAN, Index No.: 150610/2017
Plaintiff(s),
AFFIRMATION IN
-against- SUPPORT
2699 FDR, LLC and DOUGLAS 99 CENT INC.,
Defendant(s).
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KEITH A. RAVEN an attorney duly admitted to practice in the Courts of the State of
New York affirms the following under the penalty of perjury.
1. Your affirmant is a member of the firm of RAVEN & KOLBE, LLP, attorneys for
defendants, 2699 FDR, LLC and DOUGLAS 99 CENT INC. (hereinafter referred to as
"defendants"), in the above captioned matter.
2. Your affirmant is fully familiar with the allof the facts and circumstances herein
set forth and submits this Affirmation in Support of the instant application seeking an Order
defendants'
precluding and/or compelling the plaintiff to comply with outstanding Demand for a
Verified Bill of Particulars, Combined Discovery Demands, and Demand Pursuant to Medicare
Medicaid and Schip Extension Act of 2007, and for such other and further relief as to this Court
deems just and proper.
PROCEDURAL HISTORY/FACTS
1. The within action seeks damages for personal injuries allegedly sustained by the
plaintiff, KATHY MORGAN, on January 20, 2016, as a result of an alleged trip and fall
incident.
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2. Consequently, on or about January 19, 2017, plaintiff filed her Summons and
Verified Complaint with this Honorable Court. Further, on or about June 9, 2017, plaintiff filed
her Supplemental Summons and Amended Verified Complaint. Copies of plaintiff's Summons
and Verified Complaint and Supplemental Summons and Amended Verified Complaint are
"A."
annexed hereto collectively as Exhibit
3. Defendant 2699 FDR, LLC's Verified Answer to plaintiff s Verified Complaint
was served on or about February 23, 2017; Defendant DOUGLAS 99 CENT INC's Verified
Answer to Plaintiff's Amended Verified Complaint was served on or about September 12, 2017;
and, Defendant 2699 FDR, LLC's Verified Answer to Plaintiff's Amended Verified Complaint
was served on or about April 12, 2018; copies of which are annexed hereto collectively as
Exhibit "B".
4. Consecutively with the service of our Answers, plaintiff's counsel was also served
with Defendant 2699 FDR, LLC's Demand for a Verified Bill of Particulars together with
various Discovery Demands on or about February 23, 2017; and, Defendant DOUGLASS 99
CENT INC's Demand for a Verified Bill of Particulars together with various Discovery
Demands on or about September 15, 2017; copies of which are annexed hereto collectively as
Exhibit "C".
defendants'
5. Plaintiff, to date, has not moved to modify or vacate demands. Nor,
defendants'
has plaintiff responded to Demand for a Verified Bill of Particulars or various
Combined Discovery Demands, notwithstanding the time to so has long since expired.
6. Therefore, by letter dated June 20, 2018, your affirmant wrote plaintiff's counsel,
defendants' defendants'
via email, in good faith effort to obtain plaintiffs compliance with
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FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017
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defendants'
outstanding Combined Discovery Demands. A copy of letter is annexed hereto as
Exhibit "D".
7. Plaintiff has not responded to the aforesaid letter and, as mentioned above,
continues to remain in default of their discovery obligations.
DEFENDANTS'
PLAINTIFF'S FAILURE TO RESPOND TO DEMAND FOR A
VERIFIED BILL OF PARTICULARS, DEMAND PURSUANT TO MEDICARE
MEDICAID AND SCHIP EXTENSION ACT OF 2007, VARIOUS DISCOVERY
DEMANDS AND GOOD FAITH LETTER IS WILLFUL AND CONTUMACIOUS
BEHAVIOR WARRANTING DISMISSAL OF PLAINTIFF'S VERIFIED COMPLAINT
8. It is well settled that a Court may impose sanctions pursuant to CPLR §3126 in
the event of a party's willful and contumacious failure to comply with discovery. In determining
party'
the severity of the sanction to impose, the Courts generally look to the gravity of the party's
nonfeasance. See Lavi v. Lavi, 256 A.D.2d 602 (2d Dept. 1998); Kubacka v. Town of N.
Hempstead, 240 A.D.2d 374 (2d Dept. 1997). Accordingly, in a personal injury action, when a
party repeatedly fails to provide outstanding discovery, the appropriate remedy is dismissal of
the Complaint. Dacey v. Horror Café, Inc., 293 A.D.2d 511 (2d Dept. 2002); Nowak v. Veira,
289 A.D.2d 383 (2d Dept. 2001); Polanco v Duran, 278 AD2d 397 (2d Dept. 2000); Frias v
Fortini, 240 AD2d 467 (2d Dept. 1997).
9. Indeed, under such circumstances, the Court has broad discretion pursuant to
C.P.L.R. §3126 to impose an appropriate sanction, including dismissal. See DiDomenico v. C &
S Aeromatik Supplies, Inc., 252 A.D.2d 41 (2d Dept. 1998); Argenio v. Cushman & Wakefield,
Inc, 227 A.D.2d 578 (2d Dept. 1996); Porreco v. Selway, 225 A.D.2d 752; Polito v. DeTomaso,
neglect"
208 A.D.2d 912 (2d Dept. 1994). Moreover, a "pattern of willful default and should not
be excused. See Titan Realty Corp. v. Schlem, 283 A.D.2d 568 (2d Dept. 2001); Wynne v.
Wagner, 262 A.D.2d 556 (2d Dept. 1999); Roussodimou v. Zafiriadis, 238 A.D.2d 568 (2d Dept.
1997).
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defendants'
10. Thus, plaintiff's failure here to provide a response to Demand for a
Bill of Particulars, Demand Pursuant to Medicare Medicaid and Schip Extension Act Of 2007
neglect"
and Combined Discovery Demands is arguendo, part of a pattern of "repeated rather
than an "isolated, inadvertent mistake". See North Fork Bank v. Martin, 257 A.D.2d 613 (2d
defendants' faith"
Dept. 1999). Moreover, plaintiff's failure to respond to "good attempt at
obtaining the discovery in question is yet another example that plaintiff's behavior is nothing
contumacious"
short of "willful and warranting judicial intervention.
WHEREFORE, itis respectfully requested that the Court issue an order:
1. Precluding the plaintiff from giving evidence at the trial of this action as to the
defendants'
items contained in Demand for Verified Bill of Particulars collectively dated
February 23, 2017 and September 15, 2017.
2. Compelling the plaintiff to comply with the outstanding Combined Discovery
Demands, and Demand Pursuant to Medicare Medicaid and Schip Extension Act of 2007,
collectively dated February 23, 2017 and September 15, 2017, and for such other and further
relief as to this Court deems just and proper.
Dated: New York, New York
June 29, 2018
Keith A. Raven
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------X
KATHY MORGAN, Index No.: 150610/2017
Plaintiff(s),
-against-
2699 FDR, LLC and DOUGLAS 99 CENT INC.,
Defendant(s).
------------------------------------------------------------------X
REQUEST FOR JUDICIAL INTERVENTION, NOTICE OF MOTION,
GOOD FAITH AFFIRMATION, AFFIRMATION IN SUPPORT AND EXHIBITS
____________ ___________________________________ _-______________
RAVEN & KOLBE, LLP
Attorneys for Defendant
2699 FDR, LLC
56*
126 East 56 Street, Suite 202
New York, New York 10022
Tel. (212) 759-7466
Fax (212) 759-0166
________________________ _ _ __ _ _ _ _ _ _ __
______ ____---_______________
To: All Parties
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Preview
FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X KATHY MORGAN, Index No.: 150610/2017 Plaintiff(s), AFFIRMATION IN -against- SUPPORT 2699 FDR, LLC and DOUGLAS 99 CENT INC., Defendant(s). ------------------------------------------------------------------X KEITH A. RAVEN an attorney duly admitted to practice in the Courts of the State of New York affirms the following under the penalty of perjury. 1. Your affirmant is a member of the firm of RAVEN & KOLBE, LLP, attorneys for defendants, 2699 FDR, LLC and DOUGLAS 99 CENT INC. (hereinafter referred to as "defendants"), in the above captioned matter. 2. Your affirmant is fully familiar with the allof the facts and circumstances herein set forth and submits this Affirmation in Support of the instant application seeking an Order defendants' precluding and/or compelling the plaintiff to comply with outstanding Demand for a Verified Bill of Particulars, Combined Discovery Demands, and Demand Pursuant to Medicare Medicaid and Schip Extension Act of 2007, and for such other and further relief as to this Court deems just and proper. PROCEDURAL HISTORY/FACTS 1. The within action seeks damages for personal injuries allegedly sustained by the plaintiff, KATHY MORGAN, on January 20, 2016, as a result of an alleged trip and fall incident. 1 of 5 FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018 2. Consequently, on or about January 19, 2017, plaintiff filed her Summons and Verified Complaint with this Honorable Court. Further, on or about June 9, 2017, plaintiff filed her Supplemental Summons and Amended Verified Complaint. Copies of plaintiff's Summons and Verified Complaint and Supplemental Summons and Amended Verified Complaint are "A." annexed hereto collectively as Exhibit 3. Defendant 2699 FDR, LLC's Verified Answer to plaintiff s Verified Complaint was served on or about February 23, 2017; Defendant DOUGLAS 99 CENT INC's Verified Answer to Plaintiff's Amended Verified Complaint was served on or about September 12, 2017; and, Defendant 2699 FDR, LLC's Verified Answer to Plaintiff's Amended Verified Complaint was served on or about April 12, 2018; copies of which are annexed hereto collectively as Exhibit "B". 4. Consecutively with the service of our Answers, plaintiff's counsel was also served with Defendant 2699 FDR, LLC's Demand for a Verified Bill of Particulars together with various Discovery Demands on or about February 23, 2017; and, Defendant DOUGLASS 99 CENT INC's Demand for a Verified Bill of Particulars together with various Discovery Demands on or about September 15, 2017; copies of which are annexed hereto collectively as Exhibit "C". defendants' 5. Plaintiff, to date, has not moved to modify or vacate demands. Nor, defendants' has plaintiff responded to Demand for a Verified Bill of Particulars or various Combined Discovery Demands, notwithstanding the time to so has long since expired. 6. Therefore, by letter dated June 20, 2018, your affirmant wrote plaintiff's counsel, defendants' defendants' via email, in good faith effort to obtain plaintiffs compliance with 2 of 5 FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018 defendants' outstanding Combined Discovery Demands. A copy of letter is annexed hereto as Exhibit "D". 7. Plaintiff has not responded to the aforesaid letter and, as mentioned above, continues to remain in default of their discovery obligations. DEFENDANTS' PLAINTIFF'S FAILURE TO RESPOND TO DEMAND FOR A VERIFIED BILL OF PARTICULARS, DEMAND PURSUANT TO MEDICARE MEDICAID AND SCHIP EXTENSION ACT OF 2007, VARIOUS DISCOVERY DEMANDS AND GOOD FAITH LETTER IS WILLFUL AND CONTUMACIOUS BEHAVIOR WARRANTING DISMISSAL OF PLAINTIFF'S VERIFIED COMPLAINT 8. It is well settled that a Court may impose sanctions pursuant to CPLR §3126 in the event of a party's willful and contumacious failure to comply with discovery. In determining party' the severity of the sanction to impose, the Courts generally look to the gravity of the party's nonfeasance. See Lavi v. Lavi, 256 A.D.2d 602 (2d Dept. 1998); Kubacka v. Town of N. Hempstead, 240 A.D.2d 374 (2d Dept. 1997). Accordingly, in a personal injury action, when a party repeatedly fails to provide outstanding discovery, the appropriate remedy is dismissal of the Complaint. Dacey v. Horror Café, Inc., 293 A.D.2d 511 (2d Dept. 2002); Nowak v. Veira, 289 A.D.2d 383 (2d Dept. 2001); Polanco v Duran, 278 AD2d 397 (2d Dept. 2000); Frias v Fortini, 240 AD2d 467 (2d Dept. 1997). 9. Indeed, under such circumstances, the Court has broad discretion pursuant to C.P.L.R. §3126 to impose an appropriate sanction, including dismissal. See DiDomenico v. C & S Aeromatik Supplies, Inc., 252 A.D.2d 41 (2d Dept. 1998); Argenio v. Cushman & Wakefield, Inc, 227 A.D.2d 578 (2d Dept. 1996); Porreco v. Selway, 225 A.D.2d 752; Polito v. DeTomaso, neglect" 208 A.D.2d 912 (2d Dept. 1994). Moreover, a "pattern of willful default and should not be excused. See Titan Realty Corp. v. Schlem, 283 A.D.2d 568 (2d Dept. 2001); Wynne v. Wagner, 262 A.D.2d 556 (2d Dept. 1999); Roussodimou v. Zafiriadis, 238 A.D.2d 568 (2d Dept. 1997). 3 of 5 FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018 defendants' 10. Thus, plaintiff's failure here to provide a response to Demand for a Bill of Particulars, Demand Pursuant to Medicare Medicaid and Schip Extension Act Of 2007 neglect" and Combined Discovery Demands is arguendo, part of a pattern of "repeated rather than an "isolated, inadvertent mistake". See North Fork Bank v. Martin, 257 A.D.2d 613 (2d defendants' faith" Dept. 1999). Moreover, plaintiff's failure to respond to "good attempt at obtaining the discovery in question is yet another example that plaintiff's behavior is nothing contumacious" short of "willful and warranting judicial intervention. WHEREFORE, itis respectfully requested that the Court issue an order: 1. Precluding the plaintiff from giving evidence at the trial of this action as to the defendants' items contained in Demand for Verified Bill of Particulars collectively dated February 23, 2017 and September 15, 2017. 2. Compelling the plaintiff to comply with the outstanding Combined Discovery Demands, and Demand Pursuant to Medicare Medicaid and Schip Extension Act of 2007, collectively dated February 23, 2017 and September 15, 2017, and for such other and further relief as to this Court deems just and proper. Dated: New York, New York June 29, 2018 Keith A. Raven 4 of 5 FILED: NEW YORK COUNTY CLERK 06/29/2018 11:28 AM INDEX NO. 150610/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/29/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X KATHY MORGAN, Index No.: 150610/2017 Plaintiff(s), -against- 2699 FDR, LLC and DOUGLAS 99 CENT INC., Defendant(s). ------------------------------------------------------------------X REQUEST FOR JUDICIAL INTERVENTION, NOTICE OF MOTION, GOOD FAITH AFFIRMATION, AFFIRMATION IN SUPPORT AND EXHIBITS ____________ ___________________________________ _-______________ RAVEN & KOLBE, LLP Attorneys for Defendant 2699 FDR, LLC 56* 126 East 56 Street, Suite 202 New York, New York 10022 Tel. (212) 759-7466 Fax (212) 759-0166 ________________________ _ _ __ _ _ _ _ _ _ __ ______ ____---_______________ To: All Parties 5 of 5