Motion-Secondary: Maria Urena v. Jp Morgan Chase, William Li, Melissa Mathey, Sherri Fitzgerald, William Berdini

On June 30, 2016 a Motion-Secondary was filed involving a dispute between Maria Urena, and Jp Morgan Chase, Melissa Mathey, Sherri Fitzgerald, William Berdini, William Li, for Commercial - Other (employment discrimination) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 03/07/2018 07:48 PM INDEX NO. 511145/2016
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/07/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------x
:
MARIA URENA, :
:

Plaintiff, : Index No. 511145/2016
:
-against- :

AFFIRMATION IN OPPOSITION
JP MORGAN CHASE
TO MOTION TO STRIKE,
WILLIAM LI,
PRECLUDE, AND/OR COMPEL
MELISSA MATHEY, AND OF GOOD FAITH IN
SHERRI FITZJARRALD, and SUPPORT OF CROSS-MOTION
WILLIAM BERDINI FOR SANCTIONS

Defendants.

---------------------------------------------------------------x

NICOLE A. WELCH, an attorney duly admitted to practice law in the Courts of the State

of New York, hereby affirms under penalties of perjury:

1. I am an attorney with the firm of Ogletree, Deakins, Nash, Smoak & Stewart,

P.C., attorneys for Defendants in this action. I submit this Affirmation in opposition to

Plaintiff's motion to strike the pleadings of Defendants William Berdini ("Berdini") and Melissa

Mathey ("Mathey") and/or to preclude them from offering any testimony or evidence in this

case, or in the alternative, to compel them to appear for their depositions. I also submit this

Defendants'
Affirmation as an Affirmation of Good Faith in support of Defendants cross-motion to compel

discovery and for sanctions for Plaintiff's frivolous conduct and obstinate failure to comply with

her discovery obligations.

2. The Court should deny the entirety of Plaintiff's motion and sanction Plaintiff for

frivolous motion practice because, as set forth below, there is no legitimate basis to strike

Defendants'
pleadings, or to preclude them from offering testimony or evidence and no basis to

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compel Berdini or Mathey to appear for depositions: 1) Berdini's deposition already has been

scheduled for March 12, 2018, so that issue is moot; and 2) Plaintiff has not sought to schedule

Mathey's deposition, and any effort to do so now would be untimely and made solely to prolong

the litigation and harass Defendants.

Defendants'
3. The Court should also grant cross-motion and impose sanctions for

Defendants'
Plaintiff's willful failure to respond in any way to discovery demands.

PLAINTIFF'S MOTION TO STRIKE PLEADINGS OR
PRECLUDE TESTIMONY OR EVIDENCE IS FRIVIOLOUS.

4. On October 25, 2017, Plaintiff moved to compel the depositions of Defendant

Sheri Fitzjarrald and a Chase corporate representative. (Dkt. No. 42.) On November 15, 2017,

the Court issued an Interim Order setting a January 19, 2018 deadline for the completion of

Defendants'
depositions. (Dkt. No. 58.)

5. Due to her own delay, Plaintiff subsequently moved to extend the January 19

deadline, which Defendants opposed. (Dkt. Nos. 54, 57.) By Order dated January 2, 2018, the

Court granted Plaintiff's motion and directed Defendants to appear for their depositions on or

(" Order"
before February 20, 2018 ("January 2 Order"). (Dkt. No. 61.)

6. At no time, in either Plaintiff's motions to compel or for an extension of the

January 19 deadline to depose Defendants or in the Court conferences on those motions did

Plaintiff in any way indicate her intention to depose two more witnesses in addition to Fitzjarrald

and a corporate representative. Fitzjarrald and a Chase corporate representative were deposed on

February 5 and 13, respectively.

7. In fact, by Plaintiff's counsel's own admission, he chose not to schedule Berdini's

all."
deposition because "there was the possibility that Berdini would not need to be deposed at

(Exhibit A.)

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8. On Friday evening, February 16, 2018, after regular business hours, at the start of

Presidents'
the Day weekend and on the virtual eve of the February 20 deadline set in the Court's

January 2 Order for Defendants to appear for their depositions, Plaintiff served a Notice of

Deposition of William Berdini, scheduling his deposition for March 9. (Exhibit B.) (Plaintiff

served no similar Notice of Deposition as to Melissa Mathey.)

9. We objected to Plaintiff's untimely Notice of Deposition of Berdini, but, in an

effort to avoid motion practice and resolve the issue amicably, we informed Plaintiff's counsel

twice in - before counsel had filed the instant motion - that we would be back in touch
writing

with him and provide dates for Berdini's deposition. (Thus, the final paragraph of Plaintiff's

Defendants'
counsel's Affirmation of Good Faith, averring that he sent a copy of it to counsel,

but that "[i]t had no effect", is false.) Nonetheless, Plaintiff's counsel refused to wait for

possible dates and proceeded to file his motion purely to harass and force Defendants to incur

additional costs.

10. Berdini's deposition has been scheduled for March 12, 2018 by mutual agreement

of the parties, rendering Plaintiff's motion moot. As such, Defendants requested that Plaintiff's

counsel withdraw the motion. However, Plaintiff's counsel refused without any legitimate

reason to withdraw the instant motion, insisting that he would only withdraw the motion after

Berdini appeared for his deposition on March 12.

11. With respect to Mathey's deposition, Plaintiff's counsel has made no effort in at

least the last eight (8) months to schedule it. Indeed, the instant motion is the firsttime since

July 2017 (when Mathey's deposition was originally scheduled) that Plaintiff's counsel indicated

that he intended to pursue Mathey's deposition.

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12. Therefore, Defendants requested that Plaintiff withdraw her motion as it related to

Defendants'
Mathey's deposition. In response, Plaintiff's counsel conditioned his withdrawal on

agreement not to cross-move to compel or for sanctions for Plaintiff's own discovery violations.

When Defendants declined to give Plaintiff a free pass for her repeated failures to respond to

discovery requests (as discussed below), Plaintiff's counsel insisted on taking Mathey's

deposition in retaliation: "[U]nder these circumstances ifwe are going forward with the motions

well."
I am insisting on Mathey's deposition as (Exhibit C, emphasis added.)

13. Plaintiff's counsel's response makes clear that his recent interest in deposing

Mathey is solely for the purpose of gaining leverage in motion practice, harassing Defendants

and yet again forcing Defendants to incur unnecessary costs and fees in both opposing the

motion and defending Mathey's deposition.

14. As such, the Court should deny Plaintiff's motion in allrespects.

15. Further, because Plaintiff's motion is completely without merit and has been

made solely to delay this litigation and harass Defendants, pursuant to N.Y.C.R.R. 130-1.1, the

Court should impose sanctions on Plaintiff's counsel for his frivolous conduct and award

Defendants the costs incurred for to oppose Plaintiff's motion. See N.Y.C.R.R. §130-
having

1.1.

DEFENDANTS ARE ENTITLED TO SANCTIONS FOR PLAINTIFF'S
WILLFUL FAILURE TO RESPOND TO DISCOVERY DEMANDS.

16. Defendants requested that Plaintiff produce certain relevant documents during

Plaintiff's depositions on June 20, 2017 and January 19, 2018. Defendants also followed up in

writing on February 8, 2018 and requested that the documents be produced by February 22,

2018. (Exhibit D.) Among the documents requested were those related to Plaintiff's mitigation

of damages, including travel documents and passport pages showing her travel to and from the

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Dominican Republic, where Plaintiff testified she frequently spent time visiting family before

doctors'
and after the termination of her employment; alleged notes relating to Plaintiff's

unexcused absences from work and alleged requests for accommodations for her pregnancy; and

Defendants'
various communications. Most, if not all, of these requests were covered by Defendants First

Request for Production of Documents, served on Plaintiff in September 2016.

17. When Plaintiff still had not responded, objected or produced the documents by

March 1, 2018, Defendants made another good faith effort to resolve the issue and again

requested that the documents be produced by March 6, 2018, or Defendants intended to file a

cross-motion to compel and/or for sanctions. (Exhibit E.) Nonetheless, Plaintiff has willfully

Defendants'
refused to provide the requested documents or even to respond to requests.

18. The Court may, among other things, issue an order "'striking out pleadings or

thereof'
parts (CPLR 3126[3]) when a party '.. . willfully fails to disclose information which the

disclosed' 3126)."
court finds ought to have been (CPLR Xiao Yang Chen v. Fischer, 73 A.D.3d

1167, 1168 (2d Dep't 2010) (quoting Ingoglia v. Barnes & Noble College Booksellers, Inc., 48

A.D.3d 636, 636-37 (2d Dep't 2008)); see also C.P.L.R. § 3126(3).

19. In the alternative, the Court may preclude a party from offering proof to support

her claims. See C.P.L.R. § 3126(2); Matusewicz v. Jo Jo's Auto Parts, Inc., 18 A.D.3d 828, 830

(2d Dep't 2005) (precluding plaintiffs from offering any proof as to injuries for plaintiff's failure

to attend two separate appointments for an independent medical examination).

20. Accordingly, Plaintiff's Complaint should be dismissed for her willful failure to

provide discovery or even to respond to five separate requests, three of which were in writing,

over a 17-month period and continuing. . See, e.g., Lavi, 256 A.D.2d 602; Ordonez v. Guerra,

295 A.D.2d 325, 326 (2002) (dismissing the complaint for plaintiff's failure to comply with

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discovery orders over two years). In the alternative, the Court should preclude Plaintiff from

offering into evidence any support for her allegations in this action. See Matusewicz, 18 A.D.3d

828.

Defendants'
21. Lastly, should the Court deny request that Plaintiff's complaint be

dismissed and she be precluded from offering any evidence in support of her claims, Defendants

attorneys'
request that the Court impose reasonable fees to compensate Defendants for the time

and expense incurred in seeking this relief and in opposing Plaintiff's frivolous motion.

CONCLUSION

22. Based on the foregoing, Defendants respectfully request that the Court deny

Defendants'
Plaintiff's motion in itsentirety and grant Defendants cross-motion for sanctions and to compel

discovery. Defendants also respectfully request that the Court award such other and further

relief as the Court deems appropriate.

Dated: March 7, 2018
New York, New York

s/ Nicole A. Welch
Nicole A. Welch

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CERTIFICATE OF SERVICE

I, Nicole A. Welch, hereby certify that on March 7, 2018, the foregoing Affirmation of

Nicole A. Welch Esq. in Opposition to Motion to Strike, Preclude, and/or Compel and of Good

Faith in Support of Cross-motion for Sanctions was electronically filed with the Court's

Electronic Case Filing system, which sent notification of such filing to counsel of record for

Plaintiff:

Jared M. Lefkowitz
Law Offices of Jared M. Lefkowitz
1001 Avenue of the Americas, Suite 1114
New York, New York 10601

Attorneys for Plaintiff

s/ Nicole A. Welch
Nicole A. Welch

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Case Info

Judge

Larry D Track Judge’s New Case

Case No.

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Document Filed Date

March 07, 2018

Case Filing Date

June 30, 2016

County

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