Preview
FILED: NEW YORK COUNTY CLERK 03/05/2021 04:47 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/05/2021
SUPRMEME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------------X Index No.: 154454/2014
JOSEPH ITARA and TABETHA ITARA,
Plaintiffs,
ATTORNEYS
- against - AFFIRMATION
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
Defendants.
---------------------------------------------------------------------------X
BRETT J. NOMBERG, an attorney duly admitted to practice law before all of the Courts
of the State of New York, hereby affirms the following statements to be true under the penalties
of perjury and upon information and belief:
1. I am a partner of the law firm of BRAND BRAND NOMBERG & ROSENBAUM,
LLP attorneys for the plaintiffs herein and I am fully familiar with the facts and circumstances
surrounding this action.
2. I submit this affirmation in support of the within motion seeking an Order pursuant
to CPLR 3126 a) Striking the Answers and affirmative defenses of the defendant MASARYK
TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT for failing to provide
duly demanded discovery; b) Conditionally Striking the Answers and affirmative defenses of the
defendant MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT if they do not provide the outstanding discovery within 10 days; c)Compelling
the defendant MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT to provide the outstanding discovery within 10 days; d) Granting any further
relief this Court deems just and proper.
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3. This case is a personal injury action for an accident occurring on August 13, 2019.
The pleadings and Bill of Particulars are collectively annexed hereto as Exhibit A. It is alleged
that the plaintiff, an elevator repairman lawfully on the premises performing his duties, was
walking up the exterior stairs on the roof when the metal step fell off and the plaintiff fell through
the stairs onto the ground, sustaining personal injuries. Photographs showed the step was corroded
with rust and improperly maintained.
4. Plaintiff served a Notice For Discovery & Inspection and Demand for a Bill of
Particulars as to Affirmative Defenses on October 28, 2020 (Annexed as Exhibit B). No response
was received and a good faith letter was sent to defense counsel dated November 25, 2020. (Good
faith letter annexed as Exhibit C).
5. Plaintiff’s counsel also spoke with defense counsel by phone sometime in
December, 2020 and was told the discovery would be forthcoming in January. No discovery was
provided and plaintiff sent another good faith letter to defense counsel on January 29, 2021
(Annexed as Exhibit D).
6. Plaintiff sent a final good faith letter to defense counsel on February 18, 2021
(Annexed as Exhibit E). To date, the defendant has failed to provide the outstanding discovery,
compelling this motion.
CPLR 3126 provides:
If any party, or a person who at the time a deposition is taken or an examination or
inspection is made is an officer, director, member, employee or agent of a party or
otherwise under a party's control, refuses to obey an order for disclosure or willfully
fails to disclose information which the court finds ought to have been disclosed
pursuant to this article, the court may make such orders with regard to the failure
or refusal as are just, among them:
3. an order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or any part thereof,
or rendering a judgment by default against the disobedient party. (emphasis added).
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7. The defendant has had over four months’ time to respond to discovery demands
and has failed to do so. In the absence of a reasonable excuse, the court will presume the
defendant’s conduct was both willful and contumacious. “The willful and contumacious character
of a party's conduct can be inferred from the party's repeated failure to comply with discovery
demands or orders without a reasonable excuse.” Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d
201, 210 [2d Dept 2012]. There is no reasonable excuse for disregarding plaintiff’s discovery
demands for four months. While the Covid 19 virus has affected all litigants allowing reasonable
accommodation, extensions, and courtesies, there is no excuse for not providing any of the
outstanding discovery for over four (4) months.
8. The information sought in the demands is material, necessary, and discoverable.
Plaintiff’s demands for discovery include, but are not limited to, a demand for the names and
addresses of witnesses, a demand for accident/ incident reports involving the accident alleged in
the plaintiff’s complaint, any other similar accidents or incidents as complained of for a three year
period prior to, and including, the alleged date of accident, a demand for prior complaints in the
three years prior to the accident made about the exterior rooftop stairs at issue leading to the motor
room, a demand for photographs, films, and videotapes depicting the scene of the accident, a
demand for work contracts, records, and correspondence pertaining to maintenance, repairs, and
modifications, and a demand for maintenance and repair records concerning the exterior stairs.
9. Any objections to the demands by defendant were waived as a matter of law after
four months of receiving no response or objections. See CPLR Section 3122. “The motion court
providently deemed the appealing parties' objections waived under CPLR 3122 as a result of their
failure to respond timely to Mazal's demands for production.” Demurjian v Demurjian, 184 AD3d
505, 505 [1st Dept 2020].
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10. Our office has been amenable to reasonable extensions due to the covid-19 virus.
However, the defendant’s failure to provide the discovery at this point in time demonstrates the
failure is both willful and contumacious, warranting the striking of defendant’s answer and
affirmative defenses.
The failure to comply with deadlines and provide good-faith responses to
discovery demands "impairs the efficient functioning of the courts and the
adjudication of claims" (see Gibbs v St. Barnabas Hosp., 16 NY3d at 81; Kihl v
Pfeffer, 94 NY2d at 123). The Court of Appeals has also pointed out that HN4
"[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the
Civil Practice Law and Rules" (Gibbs v St. Barnabas Hosp., 16 NY3d at 81), and
has declared that HN5 "[i]f the credibility of court orders and the integrity of our
judicial system are to be maintained, a litigant cannot ignore court orders with
impunity" (Kihl v Pfeffer, 94 NY2d at 123; see generally Cadichon v Facelle, 18
NY3d 230, 961 NE2d 623, 938 NYS2d 232 [2011]).
Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207 [2d Dept 2012].
WHEREFORE, for all the aforementioned reasons it is respectfully requested that the
plaintiff’s motion be granted in its entirety, along with any further relief that the Court deems
just and proper.
Dated: New York, New York
March 5, 2021
Brett Nomberg, electronically signed
BRETT J. NOMBERG
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Preview
FILED: NEW YORK COUNTY CLERK 03/05/2021 04:47 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/05/2021 SUPRMEME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X Index No.: 154454/2014 JOSEPH ITARA and TABETHA ITARA, Plaintiffs, ATTORNEYS - against - AFFIRMATION MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Defendants. ---------------------------------------------------------------------------X BRETT J. NOMBERG, an attorney duly admitted to practice law before all of the Courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury and upon information and belief: 1. I am a partner of the law firm of BRAND BRAND NOMBERG & ROSENBAUM, LLP attorneys for the plaintiffs herein and I am fully familiar with the facts and circumstances surrounding this action. 2. I submit this affirmation in support of the within motion seeking an Order pursuant to CPLR 3126 a) Striking the Answers and affirmative defenses of the defendant MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT for failing to provide duly demanded discovery; b) Conditionally Striking the Answers and affirmative defenses of the defendant MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT if they do not provide the outstanding discovery within 10 days; c)Compelling the defendant MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT to provide the outstanding discovery within 10 days; d) Granting any further relief this Court deems just and proper. 1 of 4 FILED: NEW YORK COUNTY CLERK 03/05/2021 04:47 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/05/2021 3. This case is a personal injury action for an accident occurring on August 13, 2019. The pleadings and Bill of Particulars are collectively annexed hereto as Exhibit A. It is alleged that the plaintiff, an elevator repairman lawfully on the premises performing his duties, was walking up the exterior stairs on the roof when the metal step fell off and the plaintiff fell through the stairs onto the ground, sustaining personal injuries. Photographs showed the step was corroded with rust and improperly maintained. 4. Plaintiff served a Notice For Discovery & Inspection and Demand for a Bill of Particulars as to Affirmative Defenses on October 28, 2020 (Annexed as Exhibit B). No response was received and a good faith letter was sent to defense counsel dated November 25, 2020. (Good faith letter annexed as Exhibit C). 5. Plaintiff’s counsel also spoke with defense counsel by phone sometime in December, 2020 and was told the discovery would be forthcoming in January. No discovery was provided and plaintiff sent another good faith letter to defense counsel on January 29, 2021 (Annexed as Exhibit D). 6. Plaintiff sent a final good faith letter to defense counsel on February 18, 2021 (Annexed as Exhibit E). To date, the defendant has failed to provide the outstanding discovery, compelling this motion. CPLR 3126 provides: If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. (emphasis added). 2 of 4 FILED: NEW YORK COUNTY CLERK 03/05/2021 04:47 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/05/2021 7. The defendant has had over four months’ time to respond to discovery demands and has failed to do so. In the absence of a reasonable excuse, the court will presume the defendant’s conduct was both willful and contumacious. “The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.” Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210 [2d Dept 2012]. There is no reasonable excuse for disregarding plaintiff’s discovery demands for four months. While the Covid 19 virus has affected all litigants allowing reasonable accommodation, extensions, and courtesies, there is no excuse for not providing any of the outstanding discovery for over four (4) months. 8. The information sought in the demands is material, necessary, and discoverable. Plaintiff’s demands for discovery include, but are not limited to, a demand for the names and addresses of witnesses, a demand for accident/ incident reports involving the accident alleged in the plaintiff’s complaint, any other similar accidents or incidents as complained of for a three year period prior to, and including, the alleged date of accident, a demand for prior complaints in the three years prior to the accident made about the exterior rooftop stairs at issue leading to the motor room, a demand for photographs, films, and videotapes depicting the scene of the accident, a demand for work contracts, records, and correspondence pertaining to maintenance, repairs, and modifications, and a demand for maintenance and repair records concerning the exterior stairs. 9. Any objections to the demands by defendant were waived as a matter of law after four months of receiving no response or objections. See CPLR Section 3122. “The motion court providently deemed the appealing parties' objections waived under CPLR 3122 as a result of their failure to respond timely to Mazal's demands for production.” Demurjian v Demurjian, 184 AD3d 505, 505 [1st Dept 2020]. 3 of 4 FILED: NEW YORK COUNTY CLERK 03/05/2021 04:47 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/05/2021 10. Our office has been amenable to reasonable extensions due to the covid-19 virus. However, the defendant’s failure to provide the discovery at this point in time demonstrates the failure is both willful and contumacious, warranting the striking of defendant’s answer and affirmative defenses. The failure to comply with deadlines and provide good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims" (see Gibbs v St. Barnabas Hosp., 16 NY3d at 81; Kihl v Pfeffer, 94 NY2d at 123). The Court of Appeals has also pointed out that HN4 "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules" (Gibbs v St. Barnabas Hosp., 16 NY3d at 81), and has declared that HN5 "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d at 123; see generally Cadichon v Facelle, 18 NY3d 230, 961 NE2d 623, 938 NYS2d 232 [2011]). Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207 [2d Dept 2012]. WHEREFORE, for all the aforementioned reasons it is respectfully requested that the plaintiff’s motion be granted in its entirety, along with any further relief that the Court deems just and proper. Dated: New York, New York March 5, 2021 Brett Nomberg, electronically signed BRETT J. NOMBERG 4 of 4