Preview
INDEX NO. 155570/2016
FILED: NEW, YORK COUNTY CLERK 01712/2017 01:53 PM
NYSCEF DOC. NO|l 23 RECEIVED NYSCEF: 01/12/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
wane nee. aannnn nnn. ——-X
ANTHONY MAGNI, Index No.:155570/16E
Plaintiff, AFFIRMATION IN
SUPPORT
-against-
THIRD AVENUE TOWER OWNER, LLC, POLSINELLI
PC and CLUNE CONSTRUCTION COMPANY, L.P.,
Defendants.
ane a. aan. aan. anne. X
SEAN A. LATELLA, an attorney duly admitted to practice law in the State of New
York, hereby affirms the following under the penalties of perjury:
1 | am an associate of the law office of O; CONNOR REDD LLP, attorneys for
defendant, THIRD AVENUE TOWER OWNER, LLC, herein, and as such, am familiar
with the facts and circumstances of all prior proceedings heretofore had herein.
2 This NYS Labor Law action stems from a work related accident that
occurred on February 10, 2016 at a job-site located at 600 Third Avenue, New York, NY.
The instant personal injury action was commenced by plaintiff by the filing ofa Summons
and Verified Complaint with the New York County Clerk on July 5, 2016. A copy of
plaintiff's Verified Complaint is annexed hereto and made a part hereof as Exhibit “A”.
3 A copy of defendant THIRD AVENUE TOWER OWNER, LLC’s, Answer to
Plaintiff's Verified Complaint With Cross-Claims and Demand to Answer is annexed
hereto and made part hereof as Exhibit “B”. Also, a copy of defendant CLUNE
CONSTRUCTION COMPANY, L.P.’s Verified Answer With Cross-Claims is annexed
hereto and made part hereof as Exhibit “B”. Additionally, a copy of defendant
POLSINELLI PC’s Verified Answer to Complaint is annexed hereto and made part hereof
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as Exhibit “B.”
4 On or about August 25, 2016, defendant served their Notice to Take
Deposition, Demand for Verified Bill of Particulars, Combined Demands, Revocation of
Consent
to Service by Fax and Demand for Medicare/Medicaid Information upon plaintiff.
Next, on or about September 22, 2016, defendant served same upon defendant CLUNE
CONSTRUCTION COMPANY, L.P. Last, on or about October 26, 2016, defendant
served same upon defendant POLSINELLI PC. A copy of defendant's aforementioned
Demands are annexed hereto as Exhibit “C”.
5 Copies of all other discovery demands and responses are annexed hereto
and made part hereof as Exhibit “D”.
6 As of the date of this Motion, counsel for plaintiff and defendants have yet
to respond to the aforementioned outstanding discovery demands despite our “good faith”
attempts.
7 Pursuant to CPLR § 3042, plaintiff, ANTHONY MAGN is required to provide
a Bill of Particulars when demanded:
§ 3042. Procedure for a bill of particulars.
(a) Demand. A Demand for a Bill of particulars shall be made by
serving a written demand stating the items concerning which
particulars are desired. Within thirty days of service of ademand for
a bill of particulars, the party on whom the demand is made shall
serve a bill of particulars complying with each item of the demand,
except any item to which the party objects, in which event the
reasons for the objection shall be stated with reasonable
particularity.
(c) Failure to respond to or comply with a demand. Ifa party fails
to respond to a demand in a timely fashion or fails to comply fully
with a demand, the party seeking the bill of particulars may move to
compel compliance, or, if such failure is willful, for the imposition of
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penalties pursuant to subdivision (d) of this rule.
(d) Penalties for refusal to comply. If a party served with a
demand for a bill of particulars willfully fails to provide particulars
which the court finds ought to have been provided pursuant to this
rule, the court may make such final or conditional order with regard
to the failure or refusal as is just, including such relief as is set forth
in section thirty-one hundred twenty-six of this chapter.
8 Failure to serve a Bill of Particulars when demanded results in penalties set
forth in CPLR § 3042 (d) and CPLR § 3126. Pursuant to CPLR § 3126 (c), plaintiff may
be precluded from offering any medical evidence at the time of trial in support of his
damages claim. “If a party neglects or refuses to respond to a demand for a Bill of
Particulars, the court may enter a preclusion order (CPLR §3042(c)). This bars the
recalcitrant party from proving allegations it has failed to amplify and relieves the
adversary from having to meet a claim which has not yet been clearly explained or
defined.” Northway Engineering, Inc._\V. Felix Industries, Inc., 77 N.Y.2d 332, 567
N.Y.S.2d 634 (2d Dept. 1991); CPLR § 3042 (c).
9 Therefore, it is respectfully requested that this Court issue an Order
compelling plaintiff to furnish a respective Verified Bill of Particulars within 30 days or in
the alternative be precluded from offering any evidence at the time of trial.
10. Pursuant to CPLR §3124, plaintiff, ANTHONY MAGNI, and defendants,
POLSINELLI PC and CLUNE CONSTRUCTION COMPANY, L.P., are required to
respond to all standard outstanding discovery demands.
§ 3124. Failure to disclose; motion to compel disclosure
If a person fails to respond to or comply with any request, notice,
interrogatory, demand, questions or order under this article, except a notice
to admit under section 3123, the party seeking disclosure may move to
compel compliance or a response.
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11. Approximately four (4) months have elapsed since the annexed discovery
demands were served upon plaintiff, approximately three (3) months have elapsed since
the annexed discovery demands were served upon defendant CLUNE CONSTRUCTION
COMPANY, L.P., and approximately two (2) months have elapsed since the annexed
discovery demands were served upon defendant POLSINELLI PC. Yet the foregoing
discovery remains outstanding. Neither plaintiff nor defendants have served any
response, let alone a response specifying with any reasonable particularity any objections
to production of any of the discovery demanded. The failure to serve objections within
the time prescribed by CPLR Rule 3122 forecloses all inquiry into the propriety of the
documents and information requested therein where, as here, neither plaintiff nor
defendants have shown that the requests are palpably improper or seek privileged
information. See, Muller v. Sorensen, 138 A.D.2nd 683 (2 Dept. 1988).
12. The information and materials requested are essential to preparinga
defense to plaintiffs action.
13. Tosum up, plaintiffs attorney and defendants’ attorneys still owe responses
to the following Demands of the moving defendant:
a. Demand for Verified Bill of Particulars;
b. Combined Demands; and
c. Demand for Medicare/Medicaid Information.
14. In view of the failure of plaintiff and defendants to respond to our discovery
demands or to timely serve objections thereto, your affirmant requests that this Court
issue an Order directing that plaintiff and defendants are hereby precluded from offering
any evidence at the time of trial as to the matters demanded, unless within 30 days they
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provide full responses.
WHEREFORE, it is respectfully requested that an Order be issued: (1)
compelling plaintiff, ANTHONY MAGNI, and defendants POLSINELLI PC and CLUNE
CONSTRUCTION COMPANY, L.P., to fully comply with defendant's outstanding
discovery demands by a date certain (circa 30 days from the date of this court’s order);
and (2) for such further relief as to this Court may deem to be just, proper and equitable.
Dated: Port Chester, New York
January 12, 2017
he Ci. GE &
SEAN A. LATELLA
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Preview
INDEX NO. 155570/2016 FILED: NEW, YORK COUNTY CLERK 01712/2017 01:53 PM NYSCEF DOC. NO|l 23 RECEIVED NYSCEF: 01/12/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wane nee. aannnn nnn. ——-X ANTHONY MAGNI, Index No.:155570/16E Plaintiff, AFFIRMATION IN SUPPORT -against- THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC and CLUNE CONSTRUCTION COMPANY, L.P., Defendants. ane a. aan. aan. anne. X SEAN A. LATELLA, an attorney duly admitted to practice law in the State of New York, hereby affirms the following under the penalties of perjury: 1 | am an associate of the law office of O; CONNOR REDD LLP, attorneys for defendant, THIRD AVENUE TOWER OWNER, LLC, herein, and as such, am familiar with the facts and circumstances of all prior proceedings heretofore had herein. 2 This NYS Labor Law action stems from a work related accident that occurred on February 10, 2016 at a job-site located at 600 Third Avenue, New York, NY. The instant personal injury action was commenced by plaintiff by the filing ofa Summons and Verified Complaint with the New York County Clerk on July 5, 2016. A copy of plaintiff's Verified Complaint is annexed hereto and made a part hereof as Exhibit “A”. 3 A copy of defendant THIRD AVENUE TOWER OWNER, LLC’s, Answer to Plaintiff's Verified Complaint With Cross-Claims and Demand to Answer is annexed hereto and made part hereof as Exhibit “B”. Also, a copy of defendant CLUNE CONSTRUCTION COMPANY, L.P.’s Verified Answer With Cross-Claims is annexed hereto and made part hereof as Exhibit “B”. Additionally, a copy of defendant POLSINELLI PC’s Verified Answer to Complaint is annexed hereto and made part hereof lof5 as Exhibit “B.” 4 On or about August 25, 2016, defendant served their Notice to Take Deposition, Demand for Verified Bill of Particulars, Combined Demands, Revocation of Consent to Service by Fax and Demand for Medicare/Medicaid Information upon plaintiff. Next, on or about September 22, 2016, defendant served same upon defendant CLUNE CONSTRUCTION COMPANY, L.P. Last, on or about October 26, 2016, defendant served same upon defendant POLSINELLI PC. A copy of defendant's aforementioned Demands are annexed hereto as Exhibit “C”. 5 Copies of all other discovery demands and responses are annexed hereto and made part hereof as Exhibit “D”. 6 As of the date of this Motion, counsel for plaintiff and defendants have yet to respond to the aforementioned outstanding discovery demands despite our “good faith” attempts. 7 Pursuant to CPLR § 3042, plaintiff, ANTHONY MAGN is required to provide a Bill of Particulars when demanded: § 3042. Procedure for a bill of particulars. (a) Demand. A Demand for a Bill of particulars shall be made by serving a written demand stating the items concerning which particulars are desired. Within thirty days of service of ademand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand, except any item to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity. (c) Failure to respond to or comply with a demand. Ifa party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of -2- 2 0f 5 penalties pursuant to subdivision (d) of this rule. (d) Penalties for refusal to comply. If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule, the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in section thirty-one hundred twenty-six of this chapter. 8 Failure to serve a Bill of Particulars when demanded results in penalties set forth in CPLR § 3042 (d) and CPLR § 3126. Pursuant to CPLR § 3126 (c), plaintiff may be precluded from offering any medical evidence at the time of trial in support of his damages claim. “If a party neglects or refuses to respond to a demand for a Bill of Particulars, the court may enter a preclusion order (CPLR §3042(c)). This bars the recalcitrant party from proving allegations it has failed to amplify and relieves the adversary from having to meet a claim which has not yet been clearly explained or defined.” Northway Engineering, Inc._\V. Felix Industries, Inc., 77 N.Y.2d 332, 567 N.Y.S.2d 634 (2d Dept. 1991); CPLR § 3042 (c). 9 Therefore, it is respectfully requested that this Court issue an Order compelling plaintiff to furnish a respective Verified Bill of Particulars within 30 days or in the alternative be precluded from offering any evidence at the time of trial. 10. Pursuant to CPLR §3124, plaintiff, ANTHONY MAGNI, and defendants, POLSINELLI PC and CLUNE CONSTRUCTION COMPANY, L.P., are required to respond to all standard outstanding discovery demands. § 3124. Failure to disclose; motion to compel disclosure If a person fails to respond to or comply with any request, notice, interrogatory, demand, questions or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response. 3+ 3 0f 5 11. Approximately four (4) months have elapsed since the annexed discovery demands were served upon plaintiff, approximately three (3) months have elapsed since the annexed discovery demands were served upon defendant CLUNE CONSTRUCTION COMPANY, L.P., and approximately two (2) months have elapsed since the annexed discovery demands were served upon defendant POLSINELLI PC. Yet the foregoing discovery remains outstanding. Neither plaintiff nor defendants have served any response, let alone a response specifying with any reasonable particularity any objections to production of any of the discovery demanded. The failure to serve objections within the time prescribed by CPLR Rule 3122 forecloses all inquiry into the propriety of the documents and information requested therein where, as here, neither plaintiff nor defendants have shown that the requests are palpably improper or seek privileged information. See, Muller v. Sorensen, 138 A.D.2nd 683 (2 Dept. 1988). 12. The information and materials requested are essential to preparinga defense to plaintiffs action. 13. Tosum up, plaintiffs attorney and defendants’ attorneys still owe responses to the following Demands of the moving defendant: a. Demand for Verified Bill of Particulars; b. Combined Demands; and c. Demand for Medicare/Medicaid Information. 14. In view of the failure of plaintiff and defendants to respond to our discovery demands or to timely serve objections thereto, your affirmant requests that this Court issue an Order directing that plaintiff and defendants are hereby precluded from offering any evidence at the time of trial as to the matters demanded, unless within 30 days they -4- 4o0f 5 provide full responses. WHEREFORE, it is respectfully requested that an Order be issued: (1) compelling plaintiff, ANTHONY MAGNI, and defendants POLSINELLI PC and CLUNE CONSTRUCTION COMPANY, L.P., to fully comply with defendant's outstanding discovery demands by a date certain (circa 30 days from the date of this court’s order); and (2) for such further relief as to this Court may deem to be just, proper and equitable. Dated: Port Chester, New York January 12, 2017 he Ci. GE & SEAN A. LATELLA -5- 5 of 5