Preview
FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
——————————————————————X
NICHOLAS GRANT,
Plaintiffs, AFFIRMATION IN
SUPPORT
-against-
Index No.: 510433/2019
147-02/12 LIBERTY AVE., LLC., JOUVAY NY, INC.
d/b/a JOUVAY NIGHT CLUB, ISAAC J. RIOS, and
PROFESSIONAL CORPORATE SECURITY
SERVICES, INC.,
Defendants.
——————————————————————X
MATTHEW B. STEIN, an attorney duly licensed to practice before the Courts of this State,
hereby affirms the following to be true under penalties of perjury:
1. I am associated with the law firm of GOETZ SCHENKER BLEE & WIEDERHORN,
attorneys for defendant PROFESSIONAL CORPORATE SECURITY SERVICES, INC. (“PCSS”)
in the above-captioned action, and as such I am fully familiar with the facts and circumstances of this
matter, the source of my knowledge being the file maintained by my office.
2. I submit this affirmation in support of the within motion that seeks an order, pursuant
to CPLR §§ 3124 and 3126, striking plaintiff’s complaint for his contumacious refusal to appear for
deposition as required by the court’s Case Scheduling and Central Compliance Part Conference
orders; or in the alternative, a conditional order, striking the plaintiff’s complaint should he fail to
appear for deposition by a date certain.
3. Plaintiff claims damages arising out of injuries caused by a gunshot wound he
sustained on October 20, 2018, during an argument with defendant ISAAC J. RIOS (“Rios”) outside
defendant JOUVAY NY, INC.’s establishment, which is a tavern or nightclub known as Jouvay Night
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Club (“Jouvay”). Jouvay is located in Jamaica, New York (Queens County), within a demised
premises owned by defendant 147-02/12 LIBERTY AVE., LLC (“147-02”). Rios, who at all relevant
times and upon information and belief was a disabled army veteran and New York State licensed
security guard, had been working for PCSS, a security services company, as an unarmed security
guard. Rios had been assigned by PCSS to check identification at the door of the Jouvay Night Club
on the same evening he shot the plaintiff. Upon information and belief, Rios was subsequently
arrested for assaulting the plaintiff, discharging a firearm and for illegal possession of a firearm and
prosecuted.
4. Plaintiff brought suit against 147-02, Jouvay and PCSS, but according to plaintiff’s
affidavit of service electronically filed March 10, 2021 (NYSCEF Doc No. 20), Rios could not be
effectively served with the complaint. Subsequent efforts by your affirmant’s investigators to
interview Rios were not successful.
5. Unfortunately little is known about the actual occurrence. There are no known
eyewitnesses other than the plaintiff and Rios. It was learned that the NYPD investigated the
occurrence involving plaintiff and Rios and that Rios was eventually prosecuted. Naturally, your
affirmant and upon information and belief plaintiff’s counsel sought the NYPD’s and District
Attorney’s files that upon information and belief contained security video footage of the occurrence
and events leading thereto; however, the NYPD and District Attorney’s offices eventually advised
they would not disclose documents or information about Rios’s arrest and prosecution because their
files were sealed.
6. In the interim, the court issued a Case Management Order dated June 6, 2022 and
Central Compliance Part Conference Order dated December 1, 2022, requiring completion of
depositions; however, plaintiff’s counsel advised your affirmant that plaintiff would not participate it
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court-ordered depositions until the NYPD and/or District Attorney’s offices disclosed their files.
7. Your affirmant agreed early in the litigation to adjourn depositions in order to give the
NYPD and DA’s offices time to reply to respective requests for files that at the time were believed to
be the only source of a security video that captured the shooting and perhaps events leading up to it.
After it became clear the NYPD and DA’s offices were not expected to disclose their files and several
adjournments of plaintiff’s deposition, the plaintiff agreed to produce his client for deposition on July
21, 2023, during a course of back and forth Emails from February to April 2023.
8. Also in the interim, defendant Jouvay disclosed a complete copy of the security video
that had been turned over to NYPD in response to your affirmant’s Notice of Motion to compel
discovery electronically filed December 29, 2022. Also in that time, your affirmant received a firm
refusal from the NYPD to their request for records. The NYPD Criminal Record’s Section
Verification Unit in a form letter dated May 10, 2023, refused your affirmant’s authorized request for
its files because the record is “sealed.”
9. Regardless and without just cause, plaintiff’s counsel ignored your affirmant’s Emails
beginning July 17, 2023, regarding arrangements for plaintiff’s scheduled July 21st deposition and
continued to do so until your affirmant finally received a telephone call from an attorney handling
aspects of the plaintiff’s case for the attorney of record on July 20, 2023, advising the deposition
would not go forward because of the DA’s refusal to turn over its sealed file. It was not until July 20,
2023 that it was revealed to your affirmant that plaintiff filed a duplicate action against defendant
Rios on May 20, 2023, entitled Nicholas Grant v Isaac Rios Jr., Kings Co. Index No. 515418/2023.
It appears from the pleadings that plaintiff filed suit against Rios using a different name (Isaac Rios
Jr. instead of Isaac J. Rios) presumably to hide the fact that plaintiff brought two identical lawsuits
against the same defendant arising out of the same transaction and occurrence. It was also revealed
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at that plaintiff’s counsel intended to file a motion to consolidate both of Rios’s lawsuits and thereafter
a motion for the DA’s file to be unsealed, which can only be done if Rios is a viable defendant.
10. Following the telephone call, your affirmant on July 20, 2023, wrote to plaintiff’s
counsel, the attorney of record, to confirm what he’d learned and to again demanded plaintiff’s
production for deposition. Plaintiff’s counsel did not reply.
11. The defendants are now stuck within a morass of procedure created by plaintiff’s
dilatory tactics without any indication of when or if plaintiff intends to appear for deposition. The
situation is made more complicated by PCSS’s material witness, who is Mr. Rios’s former supervisor,
because he is suffering from a serious illness that may limit his ability to testify, which was revealed
to all parties in February 2023.
PROCEDURAL HISTORY
12. Plaintiff commenced this action by electronically filing a summons and verified
complaint on or about May 10, 2019 and a supplemental summons with an amended complaint on
December 22, 2020 (Exhibit A). Issue was joined by service of answers with cross-claims in
response to the plaintiff’s complaint on behalf of 147-02/12 Liberty Avenue, LLC, Jouvay Night Club
and PCSS (Exhibit B). PCSS served all parties with their combined demands dated August 30, 2021
(Exhibit C). According to an affidavit of service electronically filed March 10, 2021 (Exhibit D),
Rios was not served with the complaint.
13. The Court generated and issued electronically its Preliminary Conference Order dated
June 6, 2022 (Exhibit E) and then a Compliance Conference Order dated December 1, 2022 (Exhibit
F) requiring completion of document disclosures within 20-days.
14. PCSS moved to compel Jouvay to produce discovery to include a copy of its security
video from the night of the occurrence alleged in the complaint that upon information and belief had
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been turned over to NYPD investigators under notice of motion electronically filed December 29,
2022 (Mot. Seq. #2, NYSCEF Doc. No. 69) and filed notice withdrawing the motion on January 31,
2023, shortly after Jouvay provided the video footage and other discovery.
15. On July 20, 2023 under NYSCEF Doc No. 88, plaintiff filed his Notice of Motion
(Mot. Seq. #3) to consolidate the above-captioned action with a second lawsuit against Rios (infra)
filed May 20, 2023.
ARGUMENT
16. It is well settled that to strike a pleading for noncompliance with an order pursuant
to CPLR 3126, it must be shown that the default was ‘deliberate and contumacious’ (citations
omitted).” Scharlack v. Richmond Memorial Hospital, 127 A.D.2d 580, 581 (2nd Dept 1987). “[A]
trial court is given broad discretion to oversee the discovery process (citations omitted). Although
actions should be resolved on the merits wherever possible (citations omitted), a court may strike the
pleadings or parts thereof (CPLR 3126 [3]) as a sanction against a party who refuses to obey an order
for disclosure or willfully fails to disclose information which the court finds ought to have been
disclosed (CPLR 3126). While the nature and degree of the sanction to be imposed on a motion
pursuant to CPLR 3126 is a matter of discretion with the motion court (citations omitted), striking [a
pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands
is willful [and] contumacious (citations omitted).” Roug Kang Wang v. Chien-Tsang Lin, 94 A.D.3d
850, 851-852 (2nd Dept. 2012).
17. Here, plaintiff’s willful and contumacious conduct cannot only be inferred by their
failure to communicate adequately with defendants, which is described within your affirmant’s
Affirmation of Good-Faith, dated July 28, 2023, it is clearly demonstrated by their refusal to appear
for deposition without just cause. Id.
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18. Your affirmant agreed to work with plaintiff’s counsel after they eventually explained
their reluctance to appear for deposition without Jouvay’s video footage of the occurrence or the
NYPD’s and/or District Attorney’s files; however, their continued refusal to appear for deposition
months after Jouvay disclosed the security video and the NYPD and District Attorney made clear
they would not release their sealed files warrants sanctions that include dismissal of the complaint.
Furthermore, plaintiff’s failure to advise defendants until a day before his re-scheduled deposition
that they’d filed a second lawsuit two months prior, intended to file a motion to consolidate and still
refused to appear for deposition until the District Attorney agreed to unseal and disclose its file is
further example of their willful and contumacious disregard for the court’s orders and dilatory tactics.
19. However, should this court decide that striking the plaintiff’s complaint is not yet
warranted, the defendant respectfully requests the court order the plaintiff to appear for deposition
forthwith without regard to the status of their second action against Mr. Rios or their efforts to obtain
sealed files from the NYPD or District Attorney.
CONCLUSION
20. Since the plaintiff is unable to demonstrate good cause for failing to appear for
deposition, it is respectfully submitted this court dismiss the complaint, or in the alternative, compel
the plaintiff to finally appear for deposition by date certain.
21. No prior application for the relief requested has heretofore been made.
WHEREFORE, for the aforementioned reasons, the undersigned respectfully requests the
Court grant the motion in its entirety, along with such other and further relief as this Court deems
just, proper and equitable.
Dated: New York, New York
July 31, 2023
Yours, etc.
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NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023
/s/ Matthew B. Stein
GOETZ SCHENKER BLEE & WIEDERHORN
By: Matthew B. Stein Esq.
Attorneys for Defendant
PROFESSIONAL CORPORATE SECURITY
SERVICES, INC.
101 Greenwich Street, 20th Floor
New York, New York 10006
(212) 363-6900 Ex. 62
(914) 621-2886 – cellular
mstein@gsbwlaw.com
Our File No.: 18233-NW
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Preview
FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ——————————————————————X NICHOLAS GRANT, Plaintiffs, AFFIRMATION IN SUPPORT -against- Index No.: 510433/2019 147-02/12 LIBERTY AVE., LLC., JOUVAY NY, INC. d/b/a JOUVAY NIGHT CLUB, ISAAC J. RIOS, and PROFESSIONAL CORPORATE SECURITY SERVICES, INC., Defendants. ——————————————————————X MATTHEW B. STEIN, an attorney duly licensed to practice before the Courts of this State, hereby affirms the following to be true under penalties of perjury: 1. I am associated with the law firm of GOETZ SCHENKER BLEE & WIEDERHORN, attorneys for defendant PROFESSIONAL CORPORATE SECURITY SERVICES, INC. (“PCSS”) in the above-captioned action, and as such I am fully familiar with the facts and circumstances of this matter, the source of my knowledge being the file maintained by my office. 2. I submit this affirmation in support of the within motion that seeks an order, pursuant to CPLR §§ 3124 and 3126, striking plaintiff’s complaint for his contumacious refusal to appear for deposition as required by the court’s Case Scheduling and Central Compliance Part Conference orders; or in the alternative, a conditional order, striking the plaintiff’s complaint should he fail to appear for deposition by a date certain. 3. Plaintiff claims damages arising out of injuries caused by a gunshot wound he sustained on October 20, 2018, during an argument with defendant ISAAC J. RIOS (“Rios”) outside defendant JOUVAY NY, INC.’s establishment, which is a tavern or nightclub known as Jouvay Night 1 1 of 7 FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 Club (“Jouvay”). Jouvay is located in Jamaica, New York (Queens County), within a demised premises owned by defendant 147-02/12 LIBERTY AVE., LLC (“147-02”). Rios, who at all relevant times and upon information and belief was a disabled army veteran and New York State licensed security guard, had been working for PCSS, a security services company, as an unarmed security guard. Rios had been assigned by PCSS to check identification at the door of the Jouvay Night Club on the same evening he shot the plaintiff. Upon information and belief, Rios was subsequently arrested for assaulting the plaintiff, discharging a firearm and for illegal possession of a firearm and prosecuted. 4. Plaintiff brought suit against 147-02, Jouvay and PCSS, but according to plaintiff’s affidavit of service electronically filed March 10, 2021 (NYSCEF Doc No. 20), Rios could not be effectively served with the complaint. Subsequent efforts by your affirmant’s investigators to interview Rios were not successful. 5. Unfortunately little is known about the actual occurrence. There are no known eyewitnesses other than the plaintiff and Rios. It was learned that the NYPD investigated the occurrence involving plaintiff and Rios and that Rios was eventually prosecuted. Naturally, your affirmant and upon information and belief plaintiff’s counsel sought the NYPD’s and District Attorney’s files that upon information and belief contained security video footage of the occurrence and events leading thereto; however, the NYPD and District Attorney’s offices eventually advised they would not disclose documents or information about Rios’s arrest and prosecution because their files were sealed. 6. In the interim, the court issued a Case Management Order dated June 6, 2022 and Central Compliance Part Conference Order dated December 1, 2022, requiring completion of depositions; however, plaintiff’s counsel advised your affirmant that plaintiff would not participate it 2 2 of 7 FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 court-ordered depositions until the NYPD and/or District Attorney’s offices disclosed their files. 7. Your affirmant agreed early in the litigation to adjourn depositions in order to give the NYPD and DA’s offices time to reply to respective requests for files that at the time were believed to be the only source of a security video that captured the shooting and perhaps events leading up to it. After it became clear the NYPD and DA’s offices were not expected to disclose their files and several adjournments of plaintiff’s deposition, the plaintiff agreed to produce his client for deposition on July 21, 2023, during a course of back and forth Emails from February to April 2023. 8. Also in the interim, defendant Jouvay disclosed a complete copy of the security video that had been turned over to NYPD in response to your affirmant’s Notice of Motion to compel discovery electronically filed December 29, 2022. Also in that time, your affirmant received a firm refusal from the NYPD to their request for records. The NYPD Criminal Record’s Section Verification Unit in a form letter dated May 10, 2023, refused your affirmant’s authorized request for its files because the record is “sealed.” 9. Regardless and without just cause, plaintiff’s counsel ignored your affirmant’s Emails beginning July 17, 2023, regarding arrangements for plaintiff’s scheduled July 21st deposition and continued to do so until your affirmant finally received a telephone call from an attorney handling aspects of the plaintiff’s case for the attorney of record on July 20, 2023, advising the deposition would not go forward because of the DA’s refusal to turn over its sealed file. It was not until July 20, 2023 that it was revealed to your affirmant that plaintiff filed a duplicate action against defendant Rios on May 20, 2023, entitled Nicholas Grant v Isaac Rios Jr., Kings Co. Index No. 515418/2023. It appears from the pleadings that plaintiff filed suit against Rios using a different name (Isaac Rios Jr. instead of Isaac J. Rios) presumably to hide the fact that plaintiff brought two identical lawsuits against the same defendant arising out of the same transaction and occurrence. It was also revealed 3 3 of 7 FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 at that plaintiff’s counsel intended to file a motion to consolidate both of Rios’s lawsuits and thereafter a motion for the DA’s file to be unsealed, which can only be done if Rios is a viable defendant. 10. Following the telephone call, your affirmant on July 20, 2023, wrote to plaintiff’s counsel, the attorney of record, to confirm what he’d learned and to again demanded plaintiff’s production for deposition. Plaintiff’s counsel did not reply. 11. The defendants are now stuck within a morass of procedure created by plaintiff’s dilatory tactics without any indication of when or if plaintiff intends to appear for deposition. The situation is made more complicated by PCSS’s material witness, who is Mr. Rios’s former supervisor, because he is suffering from a serious illness that may limit his ability to testify, which was revealed to all parties in February 2023. PROCEDURAL HISTORY 12. Plaintiff commenced this action by electronically filing a summons and verified complaint on or about May 10, 2019 and a supplemental summons with an amended complaint on December 22, 2020 (Exhibit A). Issue was joined by service of answers with cross-claims in response to the plaintiff’s complaint on behalf of 147-02/12 Liberty Avenue, LLC, Jouvay Night Club and PCSS (Exhibit B). PCSS served all parties with their combined demands dated August 30, 2021 (Exhibit C). According to an affidavit of service electronically filed March 10, 2021 (Exhibit D), Rios was not served with the complaint. 13. The Court generated and issued electronically its Preliminary Conference Order dated June 6, 2022 (Exhibit E) and then a Compliance Conference Order dated December 1, 2022 (Exhibit F) requiring completion of document disclosures within 20-days. 14. PCSS moved to compel Jouvay to produce discovery to include a copy of its security video from the night of the occurrence alleged in the complaint that upon information and belief had 4 4 of 7 FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 been turned over to NYPD investigators under notice of motion electronically filed December 29, 2022 (Mot. Seq. #2, NYSCEF Doc. No. 69) and filed notice withdrawing the motion on January 31, 2023, shortly after Jouvay provided the video footage and other discovery. 15. On July 20, 2023 under NYSCEF Doc No. 88, plaintiff filed his Notice of Motion (Mot. Seq. #3) to consolidate the above-captioned action with a second lawsuit against Rios (infra) filed May 20, 2023. ARGUMENT 16. It is well settled that to strike a pleading for noncompliance with an order pursuant to CPLR 3126, it must be shown that the default was ‘deliberate and contumacious’ (citations omitted).” Scharlack v. Richmond Memorial Hospital, 127 A.D.2d 580, 581 (2nd Dept 1987). “[A] trial court is given broad discretion to oversee the discovery process (citations omitted). Although actions should be resolved on the merits wherever possible (citations omitted), a court may strike the pleadings or parts thereof (CPLR 3126 [3]) as a sanction against a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed (CPLR 3126). While the nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the motion court (citations omitted), striking [a pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful [and] contumacious (citations omitted).” Roug Kang Wang v. Chien-Tsang Lin, 94 A.D.3d 850, 851-852 (2nd Dept. 2012). 17. Here, plaintiff’s willful and contumacious conduct cannot only be inferred by their failure to communicate adequately with defendants, which is described within your affirmant’s Affirmation of Good-Faith, dated July 28, 2023, it is clearly demonstrated by their refusal to appear for deposition without just cause. Id. 5 5 of 7 FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 18. Your affirmant agreed to work with plaintiff’s counsel after they eventually explained their reluctance to appear for deposition without Jouvay’s video footage of the occurrence or the NYPD’s and/or District Attorney’s files; however, their continued refusal to appear for deposition months after Jouvay disclosed the security video and the NYPD and District Attorney made clear they would not release their sealed files warrants sanctions that include dismissal of the complaint. Furthermore, plaintiff’s failure to advise defendants until a day before his re-scheduled deposition that they’d filed a second lawsuit two months prior, intended to file a motion to consolidate and still refused to appear for deposition until the District Attorney agreed to unseal and disclose its file is further example of their willful and contumacious disregard for the court’s orders and dilatory tactics. 19. However, should this court decide that striking the plaintiff’s complaint is not yet warranted, the defendant respectfully requests the court order the plaintiff to appear for deposition forthwith without regard to the status of their second action against Mr. Rios or their efforts to obtain sealed files from the NYPD or District Attorney. CONCLUSION 20. Since the plaintiff is unable to demonstrate good cause for failing to appear for deposition, it is respectfully submitted this court dismiss the complaint, or in the alternative, compel the plaintiff to finally appear for deposition by date certain. 21. No prior application for the relief requested has heretofore been made. WHEREFORE, for the aforementioned reasons, the undersigned respectfully requests the Court grant the motion in its entirety, along with such other and further relief as this Court deems just, proper and equitable. Dated: New York, New York July 31, 2023 Yours, etc. 6 6 of 7 FILED: KINGS COUNTY CLERK 07/31/2023 03:07 PM INDEX NO. 510433/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/31/2023 /s/ Matthew B. Stein GOETZ SCHENKER BLEE & WIEDERHORN By: Matthew B. Stein Esq. Attorneys for Defendant PROFESSIONAL CORPORATE SECURITY SERVICES, INC. 101 Greenwich Street, 20th Floor New York, New York 10006 (212) 363-6900 Ex. 62 (914) 621-2886 – cellular mstein@gsbwlaw.com Our File No.: 18233-NW 7 7 of 7