Preview
FILED: ONONDAGA COUNTY CLERK 05/11/2021 03:48 PM INDEX NO. 008543/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
WAYNE NORTON,
Plaintiff,
MEMORANDUM OF LAW
v.
Index No. 008543/2020
ROBERT NORTON and BRUCE NORTON,
Defendants.
Plaintiff, Wayne Norton, ("Plaintiff") by and through its attorneys Melvin & Melvin,
PLLC, respectfully offer this memorandum of law in support of Plaintiff's motion for an Order:
(a) Pursuant to CPLR § 3124 compelling Defendant Robert Norton to comply with the
outstanding discovery demands annexed to the Tyreman Affirmation as Exhibit E
within 20 days of entry of the Court's Order; and
(b) Pursuant to CPLR § 3126 directing that Defendant Robert Norton shall be precluded
from presenting evidence regarding items or information demanded in discovery
which Defendant Robert Norton fails to comply with and/or produce within 20 days
of entry of the Court's Order; and
(c) Pursuant to CPLR § 3126 striking Defendant Robert Norton's Answer and
Counterclaims should Defendant Robert Norton fail to comply with the discovery
demands within 20 days of entry of the Court's Order; and
(d) Awarding costs and disbursements associated with this motion to the Plaintiff; and
(e) For such other, further, and different relief as this Court deems just and proper.
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ARGUMENT
I. Defendant Robert Norton has failed and refused to provide complete
responses to Plaintiff's demands for discovery and Plaintiff therefore seeks
Defendants'
an Order pursuant to CPLR § 3124 directing compliance.
Section 3101 of the New York Civil Practice Law and Rules requires "full disclosure of
action."
all matter material and necessary in the prosecution or defense of an Material and
necessary information is defined as "that which is required to be disclosed because it bears upon
the controversy at issue and will assist the requesting party in preparing for trial . . . [and] courts
disclosure."
are to interpret discovery requests liberally in favor of Greco v. Wellington Leasing
Ltd. Partnership, 144 AD3d 981, 982 (2d Dept. 2016) (internal quotations and citations omitted);
see also Yoshida v. Hsueh-Chih Chin, 111 AD3d 704, 705 (2d Dept. 2013) ("The phrase
necessary'
'material and is to be interpreted liberally to require disclosure, upon request, of any
facts bearing on the controversy which will assist preparation for trial by sharpening the issues
reason."
and reducing delay and prolixity. The test is one of usefulness and (internal citations
and quotations omitted)). Evidence will be considered material "if there is any possibility that
the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for
cross-examination."
Allen v. Cromwell-Collier Publ. Co., 21 NY2d 403, 407 (1968) (internal
burden"
citations and quotations omitted). "The party seeking to prevent disclosure has a heavy
(Marten v. Eden Park Health Services, Inc., 205 AD2d 44, 46 (3d Dept. 1998)) and, "in
opposing a motion to compel discovery, a party must establish that the requests for information
are unduly burdensome, or that they may cause unreasonable annoyance, expense,
courts"
embarrassment, disadvantage, or other prejudice to any person or the (Rawlins ex rel.
Rawlins v. St. Joseph's Hosp. Health Center, 108 AD3d 1191, 1192 (4th Dept. 2013) (internal
citations and quotations omitted)).
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The documents and information requested in Plaintiff's discovery demand is material and
relevant to Plaintiff's causes of action and to the affirmative defenses and counterclaims raised
by Defendants. The information sought in the interrogatories to Defendant Robert Norton is
information which is solely in the purview and knowledge of Defendant and cannot be obtained
from any other source. The documents demanded in the Notice to Produce are documents which
are necessary to establish that partition of the subject property is necessary, that Defendant has
breached the promissory note by failing to remit payment and to refute Defendant's
counterclaims that Plaintiff owes him money for upkeep and maintenance of the property and
utility bills. Plaintiff is entitled to explore the alleged affirmative defenses and counterclaims set
forth by Defendants.
Plaintiff's counsel has made several good faith efforts to resolve the outstanding
discovery issues to no avail. Judicial intervention has therefore become necessary. For these
reasons, Plaintiff seeks an Order pursuant to CPLR § 3124 requiring disclosure of the
outstanding items of discovery. Furthermore, because Defendant Robert Norton's discovery
responses are now almost two months overdue, Plaintiff seeks an Order that should Defendant
Robert Norton fail to produce the outstanding items of discovery as set forth in this motion
within 20 days of entry of this Court's Order, that Defendant Robert Norton be precluded from
entering evidence at trial with respect to the information and documents demanded and that
Defendant Robert Norton's Answer and Counterclaims be dismissed with prejudice pursuant to
CPLR § 3126, without further motion of the Plaintiff.
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CONCLUSION
For the foregoing reasons, Plaintiff seeks an Order of this Court (a) granting Plaintiff's
motion to compel discovery pursuant to CPLR § 3124 and directing Defendant Robert Norton to
produce the outstanding items of discovery within 20 days of entry of the Court's Order; and (b)
directing that if Defendant Robert Norton fails to comply and fail to produce the outstanding
items of discovery within 20 days of entry of the Order, that Defendant Robert Norton shall be
precluded from presenting evidence at trial regarding the same and that Defendant Robert
Norton's Answer and Counterclaims be stricken pursuant to CPLR § 3126 without further
motion from the Plaintiff; and (c) granting to Plaintiff the costs and disbursements of this
motion; and (d) for such other, further, and different relief which as this Court deems just and
proper.
Date: May 11, 2021
Syracuse, NY Y\
Erm M. Tyreman, Esq.
MELVIN & MELVIN, PLLC
Attorneys for Plaintiff
217 South Salina Street
Syracuse, New York 13202
Telephone: (315) 422-1311
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Certification of Word Count Pursuant to Rule 202.8-b(c)
I, Erin M. Tyreman, Esq., attorney for the Plaintiff herein, certify that this Attorney
Affirmation has a total word count, excluding the case caption and signature block, of 1,006. I
further certify to this Court that this Attorney Affirmation's word count complies with the word
count limit of 7,000 as set forth in Rule 202.8-b(a)(i).
Erlif M. Tyreman
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Preview
FILED: ONONDAGA COUNTY CLERK 05/11/2021 03:48 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA WAYNE NORTON, Plaintiff, MEMORANDUM OF LAW v. Index No. 008543/2020 ROBERT NORTON and BRUCE NORTON, Defendants. Plaintiff, Wayne Norton, ("Plaintiff") by and through its attorneys Melvin & Melvin, PLLC, respectfully offer this memorandum of law in support of Plaintiff's motion for an Order: (a) Pursuant to CPLR § 3124 compelling Defendant Robert Norton to comply with the outstanding discovery demands annexed to the Tyreman Affirmation as Exhibit E within 20 days of entry of the Court's Order; and (b) Pursuant to CPLR § 3126 directing that Defendant Robert Norton shall be precluded from presenting evidence regarding items or information demanded in discovery which Defendant Robert Norton fails to comply with and/or produce within 20 days of entry of the Court's Order; and (c) Pursuant to CPLR § 3126 striking Defendant Robert Norton's Answer and Counterclaims should Defendant Robert Norton fail to comply with the discovery demands within 20 days of entry of the Court's Order; and (d) Awarding costs and disbursements associated with this motion to the Plaintiff; and (e) For such other, further, and different relief as this Court deems just and proper. 1 of 5 FILED: ONONDAGA COUNTY CLERK 05/11/2021 03:48 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/11/2021 ARGUMENT I. Defendant Robert Norton has failed and refused to provide complete responses to Plaintiff's demands for discovery and Plaintiff therefore seeks Defendants' an Order pursuant to CPLR § 3124 directing compliance. Section 3101 of the New York Civil Practice Law and Rules requires "full disclosure of action." all matter material and necessary in the prosecution or defense of an Material and necessary information is defined as "that which is required to be disclosed because it bears upon the controversy at issue and will assist the requesting party in preparing for trial . . . [and] courts disclosure." are to interpret discovery requests liberally in favor of Greco v. Wellington Leasing Ltd. Partnership, 144 AD3d 981, 982 (2d Dept. 2016) (internal quotations and citations omitted); see also Yoshida v. Hsueh-Chih Chin, 111 AD3d 704, 705 (2d Dept. 2013) ("The phrase necessary' 'material and is to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues reason." and reducing delay and prolixity. The test is one of usefulness and (internal citations and quotations omitted)). Evidence will be considered material "if there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination." Allen v. Cromwell-Collier Publ. Co., 21 NY2d 403, 407 (1968) (internal burden" citations and quotations omitted). "The party seeking to prevent disclosure has a heavy (Marten v. Eden Park Health Services, Inc., 205 AD2d 44, 46 (3d Dept. 1998)) and, "in opposing a motion to compel discovery, a party must establish that the requests for information are unduly burdensome, or that they may cause unreasonable annoyance, expense, courts" embarrassment, disadvantage, or other prejudice to any person or the (Rawlins ex rel. Rawlins v. St. Joseph's Hosp. Health Center, 108 AD3d 1191, 1192 (4th Dept. 2013) (internal citations and quotations omitted)). 2 2 of 5 FILED: ONONDAGA COUNTY CLERK 05/11/2021 03:48 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/11/2021 The documents and information requested in Plaintiff's discovery demand is material and relevant to Plaintiff's causes of action and to the affirmative defenses and counterclaims raised by Defendants. The information sought in the interrogatories to Defendant Robert Norton is information which is solely in the purview and knowledge of Defendant and cannot be obtained from any other source. The documents demanded in the Notice to Produce are documents which are necessary to establish that partition of the subject property is necessary, that Defendant has breached the promissory note by failing to remit payment and to refute Defendant's counterclaims that Plaintiff owes him money for upkeep and maintenance of the property and utility bills. Plaintiff is entitled to explore the alleged affirmative defenses and counterclaims set forth by Defendants. Plaintiff's counsel has made several good faith efforts to resolve the outstanding discovery issues to no avail. Judicial intervention has therefore become necessary. For these reasons, Plaintiff seeks an Order pursuant to CPLR § 3124 requiring disclosure of the outstanding items of discovery. Furthermore, because Defendant Robert Norton's discovery responses are now almost two months overdue, Plaintiff seeks an Order that should Defendant Robert Norton fail to produce the outstanding items of discovery as set forth in this motion within 20 days of entry of this Court's Order, that Defendant Robert Norton be precluded from entering evidence at trial with respect to the information and documents demanded and that Defendant Robert Norton's Answer and Counterclaims be dismissed with prejudice pursuant to CPLR § 3126, without further motion of the Plaintiff. 3 3 of 5 FILED: ONONDAGA COUNTY CLERK 05/11/2021 03:48 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/11/2021 CONCLUSION For the foregoing reasons, Plaintiff seeks an Order of this Court (a) granting Plaintiff's motion to compel discovery pursuant to CPLR § 3124 and directing Defendant Robert Norton to produce the outstanding items of discovery within 20 days of entry of the Court's Order; and (b) directing that if Defendant Robert Norton fails to comply and fail to produce the outstanding items of discovery within 20 days of entry of the Order, that Defendant Robert Norton shall be precluded from presenting evidence at trial regarding the same and that Defendant Robert Norton's Answer and Counterclaims be stricken pursuant to CPLR § 3126 without further motion from the Plaintiff; and (c) granting to Plaintiff the costs and disbursements of this motion; and (d) for such other, further, and different relief which as this Court deems just and proper. Date: May 11, 2021 Syracuse, NY Y\ Erm M. Tyreman, Esq. MELVIN & MELVIN, PLLC Attorneys for Plaintiff 217 South Salina Street Syracuse, New York 13202 Telephone: (315) 422-1311 4 4 of 5 FILED: ONONDAGA COUNTY CLERK 05/11/2021 03:48 PM INDEX NO. 008543/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/11/2021 Certification of Word Count Pursuant to Rule 202.8-b(c) I, Erin M. Tyreman, Esq., attorney for the Plaintiff herein, certify that this Attorney Affirmation has a total word count, excluding the case caption and signature block, of 1,006. I further certify to this Court that this Attorney Affirmation's word count complies with the word count limit of 7,000 as set forth in Rule 202.8-b(a)(i). Erlif M. Tyreman 5 5 of 5