Preview
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------------X
JOSEPH ITARA and TABETHA ITARA,
Index No.: 152948/2020
Plaintiffs,
AFFIRMATION IN
-against- OPPOSITION TO
PLAINTIFFS’ MOTION
MASARYK TOWERS CORPORATION d/b/a PURSUANT TO
MASARYK TOWERS MANAGEMENT, CPLR § 3126 AND §1010
AND IN SUPPORT OF
Defendant. DEFENDANT’S CROSS-
-------------------------------------------------------------------------X MOTION FOR COSTS
MASARYK TOWERS CORPORATION i/s/h/a MASARYK AND SANCTIONS
TOWERS CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT, Return Date: 9/13/21
Third-Party Plaintiff, Judge: Hon. W. Franc Perry
- against –
Third-Party Index No.
CENTENNIAL ELEVATOR INDUSTRIES, INC., 595639/2021
Third-Party Defendant.
-------------------------------------------------------------------------X
SUSAN J. STROMBERG, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true under the penalty of perjury:
1. I am a partner with the law firm of Milber Makris Plousadis & Seiden LLP,
attorneys for Defendant/Third-Party Plaintiff MASARYK TOWERS CORPORATION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT
(hereinafter referred to as “Defendant” or “Masaryk”). As such, I am fully familiar with the facts
and proceedings had herein based upon the examination of the file maintained by this office.
2. This Affirmation is submitted in support if Defendant’s cross-motion for costs
and sanctions against the Plaintiffs, JOSEPH ITARA (“Plaintiff”) and TABETHA ITARA
(collectively, “Plaintiffs”), and in opposition to Plaintiffs’ motion seeking an Order:
1 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
i. Pursuant to CPLR § 3126 striking the pleadings of Defendant;
ii. Pursuant to CPLR § 1010 dismissing the Defendant’s Third-Party action;
iii. Pursuant to CPLR § 603 severing the Defendant’s Third-Party action; and
iv. For such other and further relief as this Court deems just and proper.
3. For the reasons set forth below, it is respectfully submitted that this
Honorable Court issue an Order:
i. Granting Defendant’s motion pursuant to 22 N.Y.C.R.R. 130-1.1 for
costs and sanctions against the Plaintiffs on the grounds that Plaintiffs’
filing of this motion to strike Defendant’s pleadings and/or to dismiss/sever
the Third-Party action is frivolous, contumacious, harassing, petty,
violative of the Court’s rules, and a complete waste of the Court’s time and
resources; and
ii. Denying Plaintiffs’ motion in its entirety, on the grounds that
a. Masaryk has not delayed discovery, and has in fact served all
required responses to Plaintiffs’ discovery demands, and is ready,
willing, and able to proceed with depositions;
b. Plaintiffs failed to establish a willful failure to disclose discovery
sufficient to support the drastic remedy of striking a pleading; and
c. Masaryk’s Third-Party action has a good faith basis, and should
not be dismissed or severed.
FACTS and PROCEDURAL HISTORY
4. This case involved an alleged slip/trip and fall on August 13, 2019, on the exterior
stairs on the roof of the premises located at 65 Columbia Street, New York, New York.
5. On March 19, 2020, two days after the New York State Courts, and my office,
closed at the beginning of the COVID-19 Pandemic, Plaintiffs commenced this action against
Masaryk, via the filing of a Summons and “Verified” Complaint, dated March 19, 2020, a copy
of which is annexed hereto collectively as Exhibit “A.” The “Verification” was signed by
2
2 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
Plaintiffs’ counsel, who claimed that his office was in another county than Plaintiffs, even
though they are both located in New York County. This Verification was never revised, nor was
a new Verification signed by the Plaintiffs ever provided to Defendant’s counsel. This is simply
an introduction into Plaintiffs’ counsel’s willingness to attack Defendants’ counsel, while
ignoring his own procedural failures.
6. On or about August 7, 2020, Masaryk served its Verified Answer to Plaintiffs’
Verified Complaint and discovery demands, all of which are annexed hereto as Exhibit “B.”
7. On or about October 28, 2020, Plaintiffs served Defendant with a “Verified” Bill
of Particulars, and a Notice for Discovery and Inspection. Copies of these documents are
attached collectively as Exhibit “C.” As can be seen from a cursory view of the Bill of
Particulars, Plaintiffs objected to many of the requests, and refused to answer them.
8. The Bill of Particulars, like Plaintiffs’ Complaint, was “verified” by Plaintiffs’
counsel, who claimed that during the pandemic, his office was located in Westchester County,
and thus, his office was in a different county than where Plaintiffs reside. This was so
notwithstanding that Plaintiffs’ counsel signed this document above his address block, which
remained in New York City. At no time did Plaintiffs change his office address with the Court,
again misleading the Court, the parties, and trying to get away without obtaining a proper
verification, even though there were rules put into place during COVID for virtual notarization.
9. In Plaintiffs’ Notice for Discovery and Inspection, Plaintiffs sought, among other
things, repair and maintenance records, inspection records, and maintenance records/repair
contracts, relating specifically to the exterior stairway at issue. Defendant served a full response
to Plaintiffs’ Notice for Discovery and Inspection on March 22, 2021. A copy of this response is
annexed hereto as Exhibit “D.”
3
3 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
10. On May 3, 2021, a Preliminary Conference Order was issued by the Court,
wherein depositions of the Plaintiffs and Defendant were scheduled for June 16, 2021, and June
17, 2021, respectively. A copy of the Preliminary Conference Order is annexed hereto as Exhibit
“E.”
11. On or about May 7, 2021, Masaryk served a Response to the Preliminary
Conference Order, wherein Masaryk provided all of the requested discovery. A copy of
Masaryk’s response to the Preliminary Conference Order is annexed hereto as Exhibit “F.”
12. On June 2, 2021, approximately one month after the Preliminary Conference
Order was issued and two weeks before the court-ordered deposition of Plaintiffs, Plaintiffs’
counsel provided Masaryk with a Response to Demands for Discovery and Inspection, wherein
Plaintiffs provided Masaryk with three additional medical authorizations (as well as an
incomplete employment authorization), which were processed shortly thereafter. A copy of
Plaintiffs’ June 2, 2021 discovery response, as well as the attached authorizations, are annexed
collectively hereto as Exhibit “G.”
13. As it was clear that Masaryk could not process the authorizations and receive
records prior to the scheduled depositions just two weeks later, Masaryk emailed Plaintiffs on
June 14, 2021, requesting that the depositions of the parties (that were scheduled for June 16-17,
2021) be rescheduled, to which Plaintiffs agreed. Accordingly, the depositions of Plaintiffs and
Defendant were rescheduled for July 21, 2021, and July 22, 2021, respectively. A copy of this
correspondence is annexed hereto as “Exhibit “H.”
14. Pursuant to Paragraph 8 of the Preliminary Conference Order, Impleader actions
are to be commenced within 45 days of Defendants’ last deposition. See Exhibit “H.” On July
14, 2021, prior to any depositions taking place, Masaryk timely filed a Third-Party Action
4
4 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
against Third-Party Defendant Centennial Elevator Industries, Inc. (hereinafter “Third-Party
Defendant” or “Centennial”). In its Third-Party Complaint, Masaryk alleges general causes of
action against Centennial, including but not limited to contribution, contractual indemnification,
common law indemnification and breach of contract. A copy of the Third-Party Summons and
Complaint is annexed hereto as Exhibit “I.”
15. On July 20, 2021, Masaryk wrote to Plaintiffs’ counsel, explaining that the
depositions scheduled for July 21 and 22 could not go forward for numerous reasons, including
but not limited to the following: (1) Plaintiffs provided authorizations to Masaryk in June, which
had been processed, but Masaryk had not yet received all of the records pursuant to those
authorizations; (2) Plaintiffs had failed to provide all discovery responses required by the
Preliminary Conference Order, and had not provided a response to the Order itself; and (3)
Masaryk had recently filed a third-party action against Centennial Elevator Industries, Inc., who
still needed to appear and participate in the deposition process to avoid conducting an additional
set of depositions. On the same day, in accordance with the Preliminary Conference Order and
Justice Perry’s Court Rules, the undersigned contacted the Court via email, explaining why the
depositions could not be held at that time. Plaintiffs’ counsel responded to that email with a
highly contentious email to the Court. A copy of this correspondence is annexed collectively as
Exhibit “J.”
16. After a lengthy telephone conference with Justice Perry, and after it was
explained to the Court that Masaryk had not received all of Plaintiffs’ records (due to Plaintiffs
having only provided authorization for same approximately six weeks earlier), the Court
adjourned the depositions and stated that same must be held by September 30, 2021, and issued
5
5 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
an Order to this effect, dated July 21, 2021. A copy of this Ordered is annexed hereto as Exhibit
“K.”
17. Since that time, counsel for Masaryk and Plaintiffs have exchanged
correspondence to schedule the depositions of the parties. On July 26, 2021, Masaryk provided
Plaintiffs with correspondence confirming Plaintiffs’ depositions on September 21, 2021 and
22 if necessary, and stating that Masaryk was waiting to hear back regarding availability for the
deposition of Defendant for either September 24 or 28, which is within the court-ordered
deadline for depositions. A copy this correspondence is annexed collectively as Exhibit “L.”
18. Evidently upset that he was not successful in forcing depositions to go forward
notwithstanding missing medical records, Plaintiffs served Masaryk with a Notice to Admit,
dated July 27, 2021, as well as an additional Notice for Discovery & Inspection, dated July 21,
2021. In the Notice for Discovery & Inspection, Plaintiffs demanded a copy of the elevator
contract referred to in Masaryk’ Third-Party Complaint against Centennial Elevator, as well as a
maintenance contract with “METRO MANAGEMENT & DEVELOPMENT, INC.” Copies of
these discovery demands are annexed hereto as Exhibit “M” and Exhibit “N,”, respectively.
19. On August 2, 2021, Defendant provided a timely response to Plaintiffs’ Notice to
Admit, Exhibit “O” hereto. On August 20, 2021, Defendant provided a response to Plaintiffs’
additional Notice for Discovery & Inspection, and provided Plaintiffs with the Managing Agent
Agreement between Masaryk Towers Corporation and Metro Management Devel, Inc. and the
relevant Extension Agreements, as well as the Vertical Transportation Maintenance Full
Coverage Contract and Specifications between Centennial Elevator Industries, Inc. and Masaryk,
Exhibit “P.” As such, Masaryk has fully and completely responded to all of Plaintiffs’
discovery demands, more than a month prior to the scheduled depositions.
6
6 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
MASARYK’S ARGUMENTS IN OPPOSITION TO
PLAINTIFFS’ MOTION TO STRIKE, DISMISS OR SEVER
I.
PLAINTIFFS’ MOTION MUST BE DENIED IN ITS ENTIRETY
AS PLAINTIFF FAILED TO ESTABLISH
A WILLFUL FAILURE TO DISCLOSE DISCOVERY
20. Plaintiffs’ motion to strike the pleadings of Masaryk pursuant to CPLR § 3126 is
nonsensical, misguided, paranoid and petulant. The motion is a complete waste of the Court’s
resources and violates Judge W. Franc Perry’s Court Rules. Specifically, and on its face,
Plaintiffs’ motion is brought pursuant to CPLR section 3126. This Section falls within Article 31,
entitled “Disclosure.”
21. Although Plaintiffs claim that this is not a discovery motion – most likely because
Plaintiffs knew that if they followed the correct protocol and approached the Court with the
attempt to bring this motion, the Court would have seen it as the frivolous motion that it is and
denied Plaintiffs’ request – it is, beyond a doubt, a discovery motion. Indeed, when Plaintiffs’
counsel first threatened this motion back in July, 2021, the undersigned informed Plaintiffs’
counsel that any attempt to bring a motion to strike needed Court approval. See Exhibit ”J.”
Ignoring this specific requirement, Plaintiffs brought this motion anyway, attempting to
circumvent the Court’s rules by claiming that this is not a discovery motion. This is blatantly
improper, and as discussed below, sanctionable. Plaintiffs’ improper motion has forced Masaryk
to defend itself against false and malicious attacks, which would not have been before the Court
had Plaintiffs followed the rules.
7
7 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
22. In the event that this Court decides entertain Plaintiffs’ discovery motion
notwithstanding their failure to comply with the Court Rules, Defendant submits that this motion
is baseless and should be denied in its entirety.
23. Under discovery statute 3126, if a party “refuses to obey an order for disclosure
or willfully fails to disclose information which the court finds ought to have been disclosed…”
then the Court may strike a pleading. See CPLR Rule 3126 (emphasis supplied).
24. It is well settled that a Court will not resort to such a drastic sanction of striking a
pleading for failure to comply with discovery directives unless non-compliance is clearly
established to be willful, contumacious and in bad faith. See, e.g., Catarine v. Beth Israel Med.
Ctr., 290 A.D.2d 213, 735 N.Y.S.2d 520 (1st Dept. 2001). Such holdings are rooted in the oft-
stated policy that litigants should have the opportunity to fully litigate their claims and actions
should be resolved on the merits. Shure v. New York Cruise Lines, Inc., 59 A.D.3d 292, 874
N.Y.S.2d 42 (1st Dept. 2009); Corsini v. U-Haul Intl., 212 A.D.2d 288, 291, 630 N.Y.S.2d 45 (1st
Dept. 1995), lv. dismissed in part and denied in part,87 N.Y.2d 964, 642 N.Y.S.2d 192, 664
N.E.2d 1254 (1996); Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193, 672
N.Y.S.2d 95 (1st Dept. 1998); Frye v. City of New York, 228 A.D.2d 182, 182-183, 643
N.Y.S.2d 90 (1st Dept. 1996).
25. Courts have consistently held that striking the answer of a defendant for an
alleged failure to comply with a discovery request is a drastic, extreme and punitive measure.
As such, it is only warranted “where a clear showing has been made that the noncompliance
with the discovery order was willful, contumacious, or due to bad faith.” Corner Realty 30/7 v.
Bernstein Mgt. Corp., 249 A.D.2d 191, 193, 672 N.Y.S.2d 95 (1st Dept. 1998)(emphasis
supplied);see also Pezhman v. Department of Education and City of New York, 95 A.D.3d 625,
8
8 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
944 N.Y.S.2d 128 (1st Dept. 2012); Colucci v. Jennifer Convertibles, Inc., 283 A.D.2d 224, 724
N.Y.S.2d 840 (1st Dept. 2001).
26. In Christian v. City of New York, (269 A.D.2d 135, 703 N.Y.S.2d 5 (1st Dept.
2000), the First Department held that “the drastic sanction of striking pleadings is only justified
when the moving party shows conclusively [emphasis added] that the failure to disclose was
willful, contumacious or in bad faith.” Courts have interpreted a willful and contumacious failure
to mean an outright expressed intention not to participate in discovery. Valmar Enterprises v.
Rutigliano, 134 A.D.2d 250, 520 N.Y.S.2d 436 (2d Dept. 1987). The movant, in this case the
Plaintiffs, bear the burden of coming forward with sufficient showing. It is respectfully
submitted that Plaintiff has not established that Masaryk acted willfully, contumaciously, or in
bad faith.
27. As noted above, specifically with regard to Plaintiffs’ original Notice for
Discovery and Inspection (dated October 28, 2020), Plaintiff had a separate heading demanding
documents specifically related to the exterior stairs. See, Exhibit “C,” unnumbered page 5,
“Demand For Records Concerning the Exterior Stairs.” Masaryk fully and sufficiently
responded to Plaintiffs’ demands as written. See Exhibit “D,” page 7, wherein Masaryk
responded to each of Plaintiffs’ seventeen demands with regard to the exterior stairs.
28. Masaryk has also provided responses to both Plaintiffs’ Notice to Admit,
additional Notices for Discovery and Inspection, and the Preliminary Conference Order. See
Exhibits “F,” “O,” and “P.”
29. Plaintiff arguments that Masaryk failed to properly respond to their demands, and
“had no intention of ever complying until they were about to be caught,” is not only false, but is
disingenuous and sanctionable.
9
9 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
30. It must be noted that Plaintiffs’ original Notice for Discovery and Inspection
regarding the documents sought are vague, overbroad and subject to numerous interpretations.
For example, with regard to Plaintiffs’ “Demand for Work/Repair Records,” Plaintiff makes a
demand for “all work contracts, work records, and correspondence concerning maintenance,
paintings, alterations, repairs, modifications, cleaning, and any other work performed on, or to
the exterior stairs at issue for a period of 3 years prior to and including the date of the
accident.” (See Defendant’s Exhibit “C”). Similarly, in Plaintiffs’ “Demand for Records
Concerning the Exterior Stairs,” Plaintiff defines “records” as “papers of any kind including but
not limited to invoices, contracts, receipts, estimates, warranties, and purchase orders.”
31. Accordingly, in its response, Masaryk objected to Plaintiffs’ demands to the
extent that they were vague, broad, and/or ambiguous, and responded accordingly with
information and knowledge that was in the possession of Masaryk at the time that Plaintiffs’
demands were made.
32. Indeed, when Plaintiffs served Masaryk with the additional Notice for Discovery
and Inspection (dated July 21, 2021), Plaintiff pointedly requested, among others, “[a]ll contracts
and agreements for the maintenance and management of 65 Columbia Street, New York, New
York with METRO MANAGEMENT & DEVELOPMENT, INC. in effect at the time of the
accident, and five years prior,” as well as “[a]ll contracts with CENTENNIAL INDUSTRIES,
INC. concerning 65 Columbia Street New York, New York in effect at the time of the accident.
As such, Masaryk was able to respond accordingly, and willingly provided the requested
documentation.
33. Plaintiff is attempting to frame Masaryk’s response to Plaintiffs’ original Notice
for Discovery and Inspection as improper, when it was Plaintiffs’ failure to draft a coherent
10
10 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
demand that caused Masaryk to respond as it did. In no way did Masaryk ever intend to hide the
existence of the agreements with Centennial Elevator and Metro Management Development, Inc.
Indeed, Masaryk produced those documents when they were properly demanded. There is no
evidence that Masaryk intended to mislead Plaintiffs or the Court.
34. It is respectfully submitted that Plaintiffs’ Motion be denied, as Masaryk has not
disobeyed any of this Court’s orders, nor has Masaryk willfully failed to disclose information.
There are no Orders from this Court to which Masaryk has failed to respond, and indeed, other
than the Court’s Order adjourning depositions to the end of September, no Court Orders have
been entered into since the Third-Party action was commenced. As such, there are no Court
Orders in which Masaryk was ordered to provide discovery to Plaintiff, and to which Masaryk
failed to comply.
35. As Plaintiff has shown neither willful nor contumacious behavior on the part of
Masaryk, and Masaryk has served all discovery responses, including proper response to both of
Plaintiffs’ Notices for Discovery and Inspection as well as the Notice to Admit, it is respectfully
submitted that Plaintiffs’ motion be denied with prejudice and in its entirety.
II.
PLAINTIFFS’ MOTION MUST BE DENIED
AS PLAINTIFFS FAILED TO ESTABLISH THAT
THE THIRD-PARTY ACTION IS IMPROPER
36. Plaintiff also attempts to frame Masaryk’ Third-Party action against Centennial
Elevator as a frivolous attempt to delay depositions and discovery. This is demonstrably false,
especially in light of the fact that Plaintiffs have specifically stated in their rambling motion that
11
11 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
they will now be bringing in Metro Management Development, Inc. as a defendant to this
action. See, Plaintiff’s Affirmation in Support of Motion, ¶ 39. 1
37. In attempting to characterize Masaryk’ Third-Party Action as frivolous, Plaintiff
first attempts to use Masaryk’ refusal to go forward with the previously rescheduled July 2021
depositions as proof of the frivolousness of Masaryk’s’ Third-Party action, and points to
Masaryk’s’ correspondence from July 20, 2021, wherein Masaryk explained why it would not be
able to go forward with such depositions.
38. In their moving papers, Plaintiffs allege that “[o]n July 20, 2021, the day before
plaintiff’s deposition, defense counsel finally responded by email and advised that they would
not proceed forward with the court ordered depositions with the first reason being the Third-
party action they just filed.” (See Plaintiffs’ Affirmation in Support of Motion to Strike
Pleadings, paragraph 13).
39. What Plaintiffs fail to mention is that the initiation of the Third-Party action on
behalf of Masaryk is one of several reasons given by Masaryk as to why it would not be able to
move forward with depositions in July 2021.
40. Most pertinently, Plaintiffs omit from this argument that counsel’s office (1) had
only provided several authorizations to Masaryk in June 2021 (which typically take several
months to process and for the parties to received records) and (2) had failed to provide all
discovery responses required by the Preliminary Conference Order (as well as a response to the
Preliminary Conference Order itself).
1
We note that nowhere in Plaintiffs’ Motion do they seek to amend the complaint to add this party. Clearly,
Plaintiffs have no consideration for the Court’s time or resources, as now it appears that Plaintiffs will have to make
yet a third motion to the Court, notwithstanding their constant complaints that it is the Defendant that is delaying
these proceedings.
12
12 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
41. Indeed, Plaintiffs correctly point out in their moving papers that when Masaryk
explained on a conference call with the Court that it had not yet received Plaintiffs’ records
pursuant to the authorizations, the Court adjourned the depositions and stated that same must be
held before September 30, 2021.
42. In further attempting to mischaracterize Masaryk’s’ Third-Party action against
Centennial Elevator as a frivolous attempt to delay depositions, Plaintiffs attempts to argue that
since the contract between Masaryk and Centennial Elevator does not contain explicit language
pointing to a duty on the part of Centennial Elevator to maintain any area of the building other
than the elevator system, it follows that the Third-Party Action must be frivolous. This is
presumptuous, erroneous, and does not take into account Masaryk’s ability to keep its litigation
strategy to itself and conduct its defense in a way that it sees fit, while keeping within the rules of
discovery, which is exactly what Masaryk did here.
43. Had Plaintiffs’ counsel properly reviewed Masaryk’s Third-Party Summons and
Complaint, he would have seen that Masaryk has alleged multiple theories of liability against
Third-Party Defendant, including but not limited to an implied contract between Centennial
Elevator and Masaryk, wherein Centennial Elevator was required to inspect, maintain, repair and
upkeep the premises, including, but not limited to the exterior stairway where the alleged
accident occurred. (See Defendant’s/Third-Party Plaintiffs’ Exhibit “I”).
44. Masaryk also seeks common law indemnification from Third-Party Defendant in
its Complaint, wherein it alleges that “if and in the event that Plaintiffs sustained any injuries or
damages as alleged in the Verified Complaint, through negligence, carelessness or recklessness
other than Plaintiffs’ own, said damages were caused solely by the primary, active and
affirmative negligence, reckless, and/or culpable conduct of Third-Party Defendant.”
13
13 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
45. There is also a cause of action in the Third-Party Complaint for breach of
contract, in that Centennial had “agreed to purchase, obtain and maintain primary and/or
excess/umbrella policies of liability insurance, including contractual liability coverage, and to
name MASARYK as additional insured on those policies, on a primary & non-contributory
basis, covering any accidents or injuries to any persons arising out of or in connection with any
and all work performed by or on behalf of Third-Party Defendant CENTENNIAL ELEVATOR
INDUSTRIES, INC. at the premises.”
46. Ignoring these causes of action and additional theories of liability contained
within Masaryk’s’ Third-Party Complaint, Plaintiffs presents the false dichotomy that “[e]ither
the Third-Party action is frivolous, or the defendant gave another false response when stating
there were no records/contracts showing any ‘outside contractor or company responsible for
maintaining the stairway.” Plaintiffs bases this conclusion on the fact that Masaryk’s’ discovery
responses indicated that there were no records showing any “outside contractors hired to perform
maintenance or repair of the exterior metal stairs in the 3 years prior to the time and date of the
accident,” and no “records showing the names of any person or company who has performed any
repair or maintenance in the 3 years prior to the accident.”
47. As noted above, Masaryk properly and sufficiently responded to Plaintiffs’ initial
Notice for Discovery and Inspection as written, with the documents and information in its
possession at the time that the demand was served.
48. Plaintiffs also repeatedly argue that Masaryk waited over a year to commence the
Third-Party action against Centennial Elevator and that the only inference to draw from this
choice by Masaryk is a blatant attempt to further delay depositions. Please note that Masaryk has
fully cooperated with Plaintiffs in scheduling deposition of the parties before the court-ordered
14
14 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
deadline of September 30, 2021. Plaintiffs’ deposition is currently scheduled for September 21,
2021, and Masaryk has provided tentative dates for its own deposition. (See Defendant’s Exhibit
“L.” Moreover, Plaintiffs have stated on more than one occasion that Plaintiff Joseph Itara will
eventually undergo surgery for his injuries (although that still has not taken place, over two years
post-accident). Yet Plaintiffs continue to push forward with depositions, knowing full well that
his client will be subject to a further deposition after said surgery. Plaintiffs’ inexplicably
intense need to barrel forward with depositions, when surgery is allegedly on the horizon and
new parties are being added to this case is bizarre.
49. Plaintiffs’ additional argument, that Masaryk’s’ decision to wait “over a year” to
file a Third-Party action against Centennial Elevator is somehow proof of the frivolousness of
that action, is completely without merit, and this Court should disregard this argument outright.
The Preliminary Conference Order permits impleader “within 45 days of the defendant’s last
deposition.” Since no depositions have taken place, this impleader is not only timely, it was
commenced prior to any depositions, in an effort to keep the discovery process moving forward
without duplicative depositions.
50. Plaintiffs argue that Masaryk’s intent was “made known” when it argued to the
Court that the Third-Party action necessitated adjourning the depositions, and once again chooses
to omit from this argument the additional reasons that the depositions needed to be adjourned,
namely Plaintiffs’ failure to provide discovery in a timely fashion (the authorizations that were
not provided by Plaintiffs until June 2021), or Plaintiffs’ failure to provide discovery responses
at all (Plaintiffs’ outstanding response to the Preliminary Conference Order). As noted above,
the Court found Plaintiffs’ failure to provide authorizations in a timely fashion to be ground to
15
15 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
adjourn the depositions of the parties, and issued an Order to this effect on July 21, 2021 (See
Defendant’s Exhibit “K”)
51. Masaryk was well within its right to initiate a timely Third-Party action against
Centennial Elevator at any time prior to the limitations set forth in the Preliminary Conference
Order that it saw fit to do so, and Plaintiffs’ attempt to draw the conclusion that this was a willful
attempt on the part of Masaryk to obstruct discovery and delay depositions should not be given
any weight by this Court. As such, Plaintiffs’ motion to dismiss or sever the Third-Party Action
is without merit.
MASARYK’S ARGUMENTS IN SUPPORT OF ITS CROSS-MOTION
I.
MASARYK IS ENTITLED TO
COSTS AND SANCTIONS
52. It is well-settled that "a court may award costs and financial sanctions against an
attorney or party resulting from frivolous conduct." Kamen v. Diaz-Kamen, 40 A.D.3d 937, 837
N.Y.S.2d 666 (2d Dept. 2007). Conduct during litigation is frivolous and subject to sanctions
and/or award of costs, including attorney's fees, when "(1) it is completely without merit in law
or fact and cannot be supported by a reasonable argument for an extension, modification or
reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the
litigation, or to harass or maliciously injure another.; or (3) it asserts material factual statements
that are false." See, 22 N.Y.C.R.R. 130-1.1(c).
53. Masaryk adds that additional reason supporting sanctions – Plaintiffs’ continued
intentional ignorance of this Court’s rules regarding discovery motions – as a basis to award
sanctions. Not only have Plaintiffs failed to seek permission from the Court to bring this motion,
16
16 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
they also submitted a frivolous “Affirmation of Good Faith” in support to this motion, which is
full of falsehoods and is made in anything other than “good faith.” Moreover, Plaintiffs did not
have the courtesy to meet and confer in good faith with the undersigned, bringing this motion
without any warning, notice, or attempt to work things out. It is absurd that Plaintiffs continue to
flout the rules of this Court, yet believe that they are entitled to relief. It is time for Plaintiffs to
litigate this case in a respectful and mature way, play by the rules, and continue with discovery.
54. In this action, costs and sanctions are warranted as Plaintiffs have undertaken to
delay, prolong and frustrate discovery of this action by filing a frivolous motion to strike
Masaryk’s pleadings. Plaintiffs filed this motion against Masaryk due to their own baseless and
inaccurate inferences drawn from Masaryk’s decisions to initiate a Third-Party action based on
an implied contract between itself and Centennial Elevator, and Masaryk’s objections to
Plaintiffs’ intentionally vague discovery demands. In so doing, Plaintiffs also attempts to
deliberately mischaracterize these decisions as causes for delay of discovery and depositions in
this matter, rather his own failure to adequately and timely provide requested discovery. See,
e.g., Exhibit “C” hereto. As such, costs and sanctions are warranted.
55. Moreover, Plaintiffs brought this motion when Plaintiffs themselves have stated
that they will be bringing an additional party into this action – to wit the management company.
Plaintiffs cannot have it both ways. As is obvious, Plaintiffs’ motion is “completely without
merit in law and cannot be supported by a reasonable argument,” was “undertaken primarily to
delay or prolong the resolution of the litigation,” was made primarily to harass or maliciously
injure the defendants, and asserts “material factual statements that are false.” As all of the
elements of 22 N.Y.C.R.R. § 130-1.1(c)(1), (2) and (3) are met, sanctions against the Plaintiffs
should be issued forthwith.
17
17 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
CONCLUSION
56. For all the foregoing reasons, it is respectfully submitted that this Honorable
Court issue an Order:
i. Granting Defendant’s cross motion for costs and sanctions, on the
ground that Plaintiffs’ motion is frivolous, contumacious, harassing, petty,
violative of the Court’s rules, and a complete waste of the Court’s time and
resources; and
ii. Denying Plaintiffs’ motion in its entirety, on the grounds that
a. Masaryk has not delayed discovery, and has in fact served all
required responses to Plaintiffs’ discovery demands, and is ready,
willing, and able to proceed with depositions;
b. Plaintiffs failed to establish a willful failure to disclose discovery
sufficient to support the drastic remedy of striking a pleading; and
c. Masaryk’s Third-Party action has a good faith basis, and should
therefore not be dismissed or severed.
Dated: Woodbury, New York
September 7, 2021
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
________________________________________
Susan J. Stromberg
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
Attorneys for Defendant/Third-Party Plaintiff
MASARYK TOWERS CORPORATION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(516) 712-4000
File No.: 667-19159
SStromberg@MilberMakris.com
18
18 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
TO: Brett J. Nomberg, Esq.
BRAND NOMBERG &
ROSENBAUM, LLP
Attorney for Plaintiffs
JOSEPH ITARA and TABETHA ITARA
622 3RD Avenue, 7TH Floor
New York, New York 10017
(212) 808-0448
bnomberg@bbnrlaw.com
Sasha Robins, Esq.
BABCHIK & YOUNG, LLP
Attorneys for Third-Party Defendant
CENTENNIAL ELEVATOR INDUSTRIES, INC.
245 Main Street, Suite 880
White Plains, New York 10601
(914) 470-0001 x31
sasha.robins@babchikyoung.com
19
19 of 20
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021
CERTIFICATION STATEMENT
PURSUANT TO 22 NYCRR § 202.8-b
The total number of words in the Affirmation in Support of Cross Motion for Costs and
Sanctions, inclusive of point headings and footnotes, and exclusive of pages containing the
Certification Statement, proof of service, or any authorized addendum containing statutes, rules
and regulations, is 5,122. The foregoing Affirmation in Support of Cross Motion to Dismiss
complies with the word count limit of 7,000 pursuant to 22 NYCRR 202.8-b(a).
Respectfully submitted,
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
By: ___________________________________
Susan J. Stromberg
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
Attorneys for Defendant/Third-Party Plaintiff
Preview
FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X JOSEPH ITARA and TABETHA ITARA, Index No.: 152948/2020 Plaintiffs, AFFIRMATION IN -against- OPPOSITION TO PLAINTIFFS’ MOTION MASARYK TOWERS CORPORATION d/b/a PURSUANT TO MASARYK TOWERS MANAGEMENT, CPLR § 3126 AND §1010 AND IN SUPPORT OF Defendant. DEFENDANT’S CROSS- -------------------------------------------------------------------------X MOTION FOR COSTS MASARYK TOWERS CORPORATION i/s/h/a MASARYK AND SANCTIONS TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Return Date: 9/13/21 Third-Party Plaintiff, Judge: Hon. W. Franc Perry - against – Third-Party Index No. CENTENNIAL ELEVATOR INDUSTRIES, INC., 595639/2021 Third-Party Defendant. -------------------------------------------------------------------------X SUSAN J. STROMBERG, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalty of perjury: 1. I am a partner with the law firm of Milber Makris Plousadis & Seiden LLP, attorneys for Defendant/Third-Party Plaintiff MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT (hereinafter referred to as “Defendant” or “Masaryk”). As such, I am fully familiar with the facts and proceedings had herein based upon the examination of the file maintained by this office. 2. This Affirmation is submitted in support if Defendant’s cross-motion for costs and sanctions against the Plaintiffs, JOSEPH ITARA (“Plaintiff”) and TABETHA ITARA (collectively, “Plaintiffs”), and in opposition to Plaintiffs’ motion seeking an Order: 1 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 i. Pursuant to CPLR § 3126 striking the pleadings of Defendant; ii. Pursuant to CPLR § 1010 dismissing the Defendant’s Third-Party action; iii. Pursuant to CPLR § 603 severing the Defendant’s Third-Party action; and iv. For such other and further relief as this Court deems just and proper. 3. For the reasons set forth below, it is respectfully submitted that this Honorable Court issue an Order: i. Granting Defendant’s motion pursuant to 22 N.Y.C.R.R. 130-1.1 for costs and sanctions against the Plaintiffs on the grounds that Plaintiffs’ filing of this motion to strike Defendant’s pleadings and/or to dismiss/sever the Third-Party action is frivolous, contumacious, harassing, petty, violative of the Court’s rules, and a complete waste of the Court’s time and resources; and ii. Denying Plaintiffs’ motion in its entirety, on the grounds that a. Masaryk has not delayed discovery, and has in fact served all required responses to Plaintiffs’ discovery demands, and is ready, willing, and able to proceed with depositions; b. Plaintiffs failed to establish a willful failure to disclose discovery sufficient to support the drastic remedy of striking a pleading; and c. Masaryk’s Third-Party action has a good faith basis, and should not be dismissed or severed. FACTS and PROCEDURAL HISTORY 4. This case involved an alleged slip/trip and fall on August 13, 2019, on the exterior stairs on the roof of the premises located at 65 Columbia Street, New York, New York. 5. On March 19, 2020, two days after the New York State Courts, and my office, closed at the beginning of the COVID-19 Pandemic, Plaintiffs commenced this action against Masaryk, via the filing of a Summons and “Verified” Complaint, dated March 19, 2020, a copy of which is annexed hereto collectively as Exhibit “A.” The “Verification” was signed by 2 2 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 Plaintiffs’ counsel, who claimed that his office was in another county than Plaintiffs, even though they are both located in New York County. This Verification was never revised, nor was a new Verification signed by the Plaintiffs ever provided to Defendant’s counsel. This is simply an introduction into Plaintiffs’ counsel’s willingness to attack Defendants’ counsel, while ignoring his own procedural failures. 6. On or about August 7, 2020, Masaryk served its Verified Answer to Plaintiffs’ Verified Complaint and discovery demands, all of which are annexed hereto as Exhibit “B.” 7. On or about October 28, 2020, Plaintiffs served Defendant with a “Verified” Bill of Particulars, and a Notice for Discovery and Inspection. Copies of these documents are attached collectively as Exhibit “C.” As can be seen from a cursory view of the Bill of Particulars, Plaintiffs objected to many of the requests, and refused to answer them. 8. The Bill of Particulars, like Plaintiffs’ Complaint, was “verified” by Plaintiffs’ counsel, who claimed that during the pandemic, his office was located in Westchester County, and thus, his office was in a different county than where Plaintiffs reside. This was so notwithstanding that Plaintiffs’ counsel signed this document above his address block, which remained in New York City. At no time did Plaintiffs change his office address with the Court, again misleading the Court, the parties, and trying to get away without obtaining a proper verification, even though there were rules put into place during COVID for virtual notarization. 9. In Plaintiffs’ Notice for Discovery and Inspection, Plaintiffs sought, among other things, repair and maintenance records, inspection records, and maintenance records/repair contracts, relating specifically to the exterior stairway at issue. Defendant served a full response to Plaintiffs’ Notice for Discovery and Inspection on March 22, 2021. A copy of this response is annexed hereto as Exhibit “D.” 3 3 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 10. On May 3, 2021, a Preliminary Conference Order was issued by the Court, wherein depositions of the Plaintiffs and Defendant were scheduled for June 16, 2021, and June 17, 2021, respectively. A copy of the Preliminary Conference Order is annexed hereto as Exhibit “E.” 11. On or about May 7, 2021, Masaryk served a Response to the Preliminary Conference Order, wherein Masaryk provided all of the requested discovery. A copy of Masaryk’s response to the Preliminary Conference Order is annexed hereto as Exhibit “F.” 12. On June 2, 2021, approximately one month after the Preliminary Conference Order was issued and two weeks before the court-ordered deposition of Plaintiffs, Plaintiffs’ counsel provided Masaryk with a Response to Demands for Discovery and Inspection, wherein Plaintiffs provided Masaryk with three additional medical authorizations (as well as an incomplete employment authorization), which were processed shortly thereafter. A copy of Plaintiffs’ June 2, 2021 discovery response, as well as the attached authorizations, are annexed collectively hereto as Exhibit “G.” 13. As it was clear that Masaryk could not process the authorizations and receive records prior to the scheduled depositions just two weeks later, Masaryk emailed Plaintiffs on June 14, 2021, requesting that the depositions of the parties (that were scheduled for June 16-17, 2021) be rescheduled, to which Plaintiffs agreed. Accordingly, the depositions of Plaintiffs and Defendant were rescheduled for July 21, 2021, and July 22, 2021, respectively. A copy of this correspondence is annexed hereto as “Exhibit “H.” 14. Pursuant to Paragraph 8 of the Preliminary Conference Order, Impleader actions are to be commenced within 45 days of Defendants’ last deposition. See Exhibit “H.” On July 14, 2021, prior to any depositions taking place, Masaryk timely filed a Third-Party Action 4 4 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 against Third-Party Defendant Centennial Elevator Industries, Inc. (hereinafter “Third-Party Defendant” or “Centennial”). In its Third-Party Complaint, Masaryk alleges general causes of action against Centennial, including but not limited to contribution, contractual indemnification, common law indemnification and breach of contract. A copy of the Third-Party Summons and Complaint is annexed hereto as Exhibit “I.” 15. On July 20, 2021, Masaryk wrote to Plaintiffs’ counsel, explaining that the depositions scheduled for July 21 and 22 could not go forward for numerous reasons, including but not limited to the following: (1) Plaintiffs provided authorizations to Masaryk in June, which had been processed, but Masaryk had not yet received all of the records pursuant to those authorizations; (2) Plaintiffs had failed to provide all discovery responses required by the Preliminary Conference Order, and had not provided a response to the Order itself; and (3) Masaryk had recently filed a third-party action against Centennial Elevator Industries, Inc., who still needed to appear and participate in the deposition process to avoid conducting an additional set of depositions. On the same day, in accordance with the Preliminary Conference Order and Justice Perry’s Court Rules, the undersigned contacted the Court via email, explaining why the depositions could not be held at that time. Plaintiffs’ counsel responded to that email with a highly contentious email to the Court. A copy of this correspondence is annexed collectively as Exhibit “J.” 16. After a lengthy telephone conference with Justice Perry, and after it was explained to the Court that Masaryk had not received all of Plaintiffs’ records (due to Plaintiffs having only provided authorization for same approximately six weeks earlier), the Court adjourned the depositions and stated that same must be held by September 30, 2021, and issued 5 5 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 an Order to this effect, dated July 21, 2021. A copy of this Ordered is annexed hereto as Exhibit “K.” 17. Since that time, counsel for Masaryk and Plaintiffs have exchanged correspondence to schedule the depositions of the parties. On July 26, 2021, Masaryk provided Plaintiffs with correspondence confirming Plaintiffs’ depositions on September 21, 2021 and 22 if necessary, and stating that Masaryk was waiting to hear back regarding availability for the deposition of Defendant for either September 24 or 28, which is within the court-ordered deadline for depositions. A copy this correspondence is annexed collectively as Exhibit “L.” 18. Evidently upset that he was not successful in forcing depositions to go forward notwithstanding missing medical records, Plaintiffs served Masaryk with a Notice to Admit, dated July 27, 2021, as well as an additional Notice for Discovery & Inspection, dated July 21, 2021. In the Notice for Discovery & Inspection, Plaintiffs demanded a copy of the elevator contract referred to in Masaryk’ Third-Party Complaint against Centennial Elevator, as well as a maintenance contract with “METRO MANAGEMENT & DEVELOPMENT, INC.” Copies of these discovery demands are annexed hereto as Exhibit “M” and Exhibit “N,”, respectively. 19. On August 2, 2021, Defendant provided a timely response to Plaintiffs’ Notice to Admit, Exhibit “O” hereto. On August 20, 2021, Defendant provided a response to Plaintiffs’ additional Notice for Discovery & Inspection, and provided Plaintiffs with the Managing Agent Agreement between Masaryk Towers Corporation and Metro Management Devel, Inc. and the relevant Extension Agreements, as well as the Vertical Transportation Maintenance Full Coverage Contract and Specifications between Centennial Elevator Industries, Inc. and Masaryk, Exhibit “P.” As such, Masaryk has fully and completely responded to all of Plaintiffs’ discovery demands, more than a month prior to the scheduled depositions. 6 6 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 MASARYK’S ARGUMENTS IN OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE, DISMISS OR SEVER I. PLAINTIFFS’ MOTION MUST BE DENIED IN ITS ENTIRETY AS PLAINTIFF FAILED TO ESTABLISH A WILLFUL FAILURE TO DISCLOSE DISCOVERY 20. Plaintiffs’ motion to strike the pleadings of Masaryk pursuant to CPLR § 3126 is nonsensical, misguided, paranoid and petulant. The motion is a complete waste of the Court’s resources and violates Judge W. Franc Perry’s Court Rules. Specifically, and on its face, Plaintiffs’ motion is brought pursuant to CPLR section 3126. This Section falls within Article 31, entitled “Disclosure.” 21. Although Plaintiffs claim that this is not a discovery motion – most likely because Plaintiffs knew that if they followed the correct protocol and approached the Court with the attempt to bring this motion, the Court would have seen it as the frivolous motion that it is and denied Plaintiffs’ request – it is, beyond a doubt, a discovery motion. Indeed, when Plaintiffs’ counsel first threatened this motion back in July, 2021, the undersigned informed Plaintiffs’ counsel that any attempt to bring a motion to strike needed Court approval. See Exhibit ”J.” Ignoring this specific requirement, Plaintiffs brought this motion anyway, attempting to circumvent the Court’s rules by claiming that this is not a discovery motion. This is blatantly improper, and as discussed below, sanctionable. Plaintiffs’ improper motion has forced Masaryk to defend itself against false and malicious attacks, which would not have been before the Court had Plaintiffs followed the rules. 7 7 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 22. In the event that this Court decides entertain Plaintiffs’ discovery motion notwithstanding their failure to comply with the Court Rules, Defendant submits that this motion is baseless and should be denied in its entirety. 23. Under discovery statute 3126, if a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed…” then the Court may strike a pleading. See CPLR Rule 3126 (emphasis supplied). 24. It is well settled that a Court will not resort to such a drastic sanction of striking a pleading for failure to comply with discovery directives unless non-compliance is clearly established to be willful, contumacious and in bad faith. See, e.g., Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 735 N.Y.S.2d 520 (1st Dept. 2001). Such holdings are rooted in the oft- stated policy that litigants should have the opportunity to fully litigate their claims and actions should be resolved on the merits. Shure v. New York Cruise Lines, Inc., 59 A.D.3d 292, 874 N.Y.S.2d 42 (1st Dept. 2009); Corsini v. U-Haul Intl., 212 A.D.2d 288, 291, 630 N.Y.S.2d 45 (1st Dept. 1995), lv. dismissed in part and denied in part,87 N.Y.2d 964, 642 N.Y.S.2d 192, 664 N.E.2d 1254 (1996); Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193, 672 N.Y.S.2d 95 (1st Dept. 1998); Frye v. City of New York, 228 A.D.2d 182, 182-183, 643 N.Y.S.2d 90 (1st Dept. 1996). 25. Courts have consistently held that striking the answer of a defendant for an alleged failure to comply with a discovery request is a drastic, extreme and punitive measure. As such, it is only warranted “where a clear showing has been made that the noncompliance with the discovery order was willful, contumacious, or due to bad faith.” Corner Realty 30/7 v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193, 672 N.Y.S.2d 95 (1st Dept. 1998)(emphasis supplied);see also Pezhman v. Department of Education and City of New York, 95 A.D.3d 625, 8 8 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 944 N.Y.S.2d 128 (1st Dept. 2012); Colucci v. Jennifer Convertibles, Inc., 283 A.D.2d 224, 724 N.Y.S.2d 840 (1st Dept. 2001). 26. In Christian v. City of New York, (269 A.D.2d 135, 703 N.Y.S.2d 5 (1st Dept. 2000), the First Department held that “the drastic sanction of striking pleadings is only justified when the moving party shows conclusively [emphasis added] that the failure to disclose was willful, contumacious or in bad faith.” Courts have interpreted a willful and contumacious failure to mean an outright expressed intention not to participate in discovery. Valmar Enterprises v. Rutigliano, 134 A.D.2d 250, 520 N.Y.S.2d 436 (2d Dept. 1987). The movant, in this case the Plaintiffs, bear the burden of coming forward with sufficient showing. It is respectfully submitted that Plaintiff has not established that Masaryk acted willfully, contumaciously, or in bad faith. 27. As noted above, specifically with regard to Plaintiffs’ original Notice for Discovery and Inspection (dated October 28, 2020), Plaintiff had a separate heading demanding documents specifically related to the exterior stairs. See, Exhibit “C,” unnumbered page 5, “Demand For Records Concerning the Exterior Stairs.” Masaryk fully and sufficiently responded to Plaintiffs’ demands as written. See Exhibit “D,” page 7, wherein Masaryk responded to each of Plaintiffs’ seventeen demands with regard to the exterior stairs. 28. Masaryk has also provided responses to both Plaintiffs’ Notice to Admit, additional Notices for Discovery and Inspection, and the Preliminary Conference Order. See Exhibits “F,” “O,” and “P.” 29. Plaintiff arguments that Masaryk failed to properly respond to their demands, and “had no intention of ever complying until they were about to be caught,” is not only false, but is disingenuous and sanctionable. 9 9 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 30. It must be noted that Plaintiffs’ original Notice for Discovery and Inspection regarding the documents sought are vague, overbroad and subject to numerous interpretations. For example, with regard to Plaintiffs’ “Demand for Work/Repair Records,” Plaintiff makes a demand for “all work contracts, work records, and correspondence concerning maintenance, paintings, alterations, repairs, modifications, cleaning, and any other work performed on, or to the exterior stairs at issue for a period of 3 years prior to and including the date of the accident.” (See Defendant’s Exhibit “C”). Similarly, in Plaintiffs’ “Demand for Records Concerning the Exterior Stairs,” Plaintiff defines “records” as “papers of any kind including but not limited to invoices, contracts, receipts, estimates, warranties, and purchase orders.” 31. Accordingly, in its response, Masaryk objected to Plaintiffs’ demands to the extent that they were vague, broad, and/or ambiguous, and responded accordingly with information and knowledge that was in the possession of Masaryk at the time that Plaintiffs’ demands were made. 32. Indeed, when Plaintiffs served Masaryk with the additional Notice for Discovery and Inspection (dated July 21, 2021), Plaintiff pointedly requested, among others, “[a]ll contracts and agreements for the maintenance and management of 65 Columbia Street, New York, New York with METRO MANAGEMENT & DEVELOPMENT, INC. in effect at the time of the accident, and five years prior,” as well as “[a]ll contracts with CENTENNIAL INDUSTRIES, INC. concerning 65 Columbia Street New York, New York in effect at the time of the accident. As such, Masaryk was able to respond accordingly, and willingly provided the requested documentation. 33. Plaintiff is attempting to frame Masaryk’s response to Plaintiffs’ original Notice for Discovery and Inspection as improper, when it was Plaintiffs’ failure to draft a coherent 10 10 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 demand that caused Masaryk to respond as it did. In no way did Masaryk ever intend to hide the existence of the agreements with Centennial Elevator and Metro Management Development, Inc. Indeed, Masaryk produced those documents when they were properly demanded. There is no evidence that Masaryk intended to mislead Plaintiffs or the Court. 34. It is respectfully submitted that Plaintiffs’ Motion be denied, as Masaryk has not disobeyed any of this Court’s orders, nor has Masaryk willfully failed to disclose information. There are no Orders from this Court to which Masaryk has failed to respond, and indeed, other than the Court’s Order adjourning depositions to the end of September, no Court Orders have been entered into since the Third-Party action was commenced. As such, there are no Court Orders in which Masaryk was ordered to provide discovery to Plaintiff, and to which Masaryk failed to comply. 35. As Plaintiff has shown neither willful nor contumacious behavior on the part of Masaryk, and Masaryk has served all discovery responses, including proper response to both of Plaintiffs’ Notices for Discovery and Inspection as well as the Notice to Admit, it is respectfully submitted that Plaintiffs’ motion be denied with prejudice and in its entirety. II. PLAINTIFFS’ MOTION MUST BE DENIED AS PLAINTIFFS FAILED TO ESTABLISH THAT THE THIRD-PARTY ACTION IS IMPROPER 36. Plaintiff also attempts to frame Masaryk’ Third-Party action against Centennial Elevator as a frivolous attempt to delay depositions and discovery. This is demonstrably false, especially in light of the fact that Plaintiffs have specifically stated in their rambling motion that 11 11 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 they will now be bringing in Metro Management Development, Inc. as a defendant to this action. See, Plaintiff’s Affirmation in Support of Motion, ¶ 39. 1 37. In attempting to characterize Masaryk’ Third-Party Action as frivolous, Plaintiff first attempts to use Masaryk’ refusal to go forward with the previously rescheduled July 2021 depositions as proof of the frivolousness of Masaryk’s’ Third-Party action, and points to Masaryk’s’ correspondence from July 20, 2021, wherein Masaryk explained why it would not be able to go forward with such depositions. 38. In their moving papers, Plaintiffs allege that “[o]n July 20, 2021, the day before plaintiff’s deposition, defense counsel finally responded by email and advised that they would not proceed forward with the court ordered depositions with the first reason being the Third- party action they just filed.” (See Plaintiffs’ Affirmation in Support of Motion to Strike Pleadings, paragraph 13). 39. What Plaintiffs fail to mention is that the initiation of the Third-Party action on behalf of Masaryk is one of several reasons given by Masaryk as to why it would not be able to move forward with depositions in July 2021. 40. Most pertinently, Plaintiffs omit from this argument that counsel’s office (1) had only provided several authorizations to Masaryk in June 2021 (which typically take several months to process and for the parties to received records) and (2) had failed to provide all discovery responses required by the Preliminary Conference Order (as well as a response to the Preliminary Conference Order itself). 1 We note that nowhere in Plaintiffs’ Motion do they seek to amend the complaint to add this party. Clearly, Plaintiffs have no consideration for the Court’s time or resources, as now it appears that Plaintiffs will have to make yet a third motion to the Court, notwithstanding their constant complaints that it is the Defendant that is delaying these proceedings. 12 12 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 41. Indeed, Plaintiffs correctly point out in their moving papers that when Masaryk explained on a conference call with the Court that it had not yet received Plaintiffs’ records pursuant to the authorizations, the Court adjourned the depositions and stated that same must be held before September 30, 2021. 42. In further attempting to mischaracterize Masaryk’s’ Third-Party action against Centennial Elevator as a frivolous attempt to delay depositions, Plaintiffs attempts to argue that since the contract between Masaryk and Centennial Elevator does not contain explicit language pointing to a duty on the part of Centennial Elevator to maintain any area of the building other than the elevator system, it follows that the Third-Party Action must be frivolous. This is presumptuous, erroneous, and does not take into account Masaryk’s ability to keep its litigation strategy to itself and conduct its defense in a way that it sees fit, while keeping within the rules of discovery, which is exactly what Masaryk did here. 43. Had Plaintiffs’ counsel properly reviewed Masaryk’s Third-Party Summons and Complaint, he would have seen that Masaryk has alleged multiple theories of liability against Third-Party Defendant, including but not limited to an implied contract between Centennial Elevator and Masaryk, wherein Centennial Elevator was required to inspect, maintain, repair and upkeep the premises, including, but not limited to the exterior stairway where the alleged accident occurred. (See Defendant’s/Third-Party Plaintiffs’ Exhibit “I”). 44. Masaryk also seeks common law indemnification from Third-Party Defendant in its Complaint, wherein it alleges that “if and in the event that Plaintiffs sustained any injuries or damages as alleged in the Verified Complaint, through negligence, carelessness or recklessness other than Plaintiffs’ own, said damages were caused solely by the primary, active and affirmative negligence, reckless, and/or culpable conduct of Third-Party Defendant.” 13 13 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 45. There is also a cause of action in the Third-Party Complaint for breach of contract, in that Centennial had “agreed to purchase, obtain and maintain primary and/or excess/umbrella policies of liability insurance, including contractual liability coverage, and to name MASARYK as additional insured on those policies, on a primary & non-contributory basis, covering any accidents or injuries to any persons arising out of or in connection with any and all work performed by or on behalf of Third-Party Defendant CENTENNIAL ELEVATOR INDUSTRIES, INC. at the premises.” 46. Ignoring these causes of action and additional theories of liability contained within Masaryk’s’ Third-Party Complaint, Plaintiffs presents the false dichotomy that “[e]ither the Third-Party action is frivolous, or the defendant gave another false response when stating there were no records/contracts showing any ‘outside contractor or company responsible for maintaining the stairway.” Plaintiffs bases this conclusion on the fact that Masaryk’s’ discovery responses indicated that there were no records showing any “outside contractors hired to perform maintenance or repair of the exterior metal stairs in the 3 years prior to the time and date of the accident,” and no “records showing the names of any person or company who has performed any repair or maintenance in the 3 years prior to the accident.” 47. As noted above, Masaryk properly and sufficiently responded to Plaintiffs’ initial Notice for Discovery and Inspection as written, with the documents and information in its possession at the time that the demand was served. 48. Plaintiffs also repeatedly argue that Masaryk waited over a year to commence the Third-Party action against Centennial Elevator and that the only inference to draw from this choice by Masaryk is a blatant attempt to further delay depositions. Please note that Masaryk has fully cooperated with Plaintiffs in scheduling deposition of the parties before the court-ordered 14 14 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 deadline of September 30, 2021. Plaintiffs’ deposition is currently scheduled for September 21, 2021, and Masaryk has provided tentative dates for its own deposition. (See Defendant’s Exhibit “L.” Moreover, Plaintiffs have stated on more than one occasion that Plaintiff Joseph Itara will eventually undergo surgery for his injuries (although that still has not taken place, over two years post-accident). Yet Plaintiffs continue to push forward with depositions, knowing full well that his client will be subject to a further deposition after said surgery. Plaintiffs’ inexplicably intense need to barrel forward with depositions, when surgery is allegedly on the horizon and new parties are being added to this case is bizarre. 49. Plaintiffs’ additional argument, that Masaryk’s’ decision to wait “over a year” to file a Third-Party action against Centennial Elevator is somehow proof of the frivolousness of that action, is completely without merit, and this Court should disregard this argument outright. The Preliminary Conference Order permits impleader “within 45 days of the defendant’s last deposition.” Since no depositions have taken place, this impleader is not only timely, it was commenced prior to any depositions, in an effort to keep the discovery process moving forward without duplicative depositions. 50. Plaintiffs argue that Masaryk’s intent was “made known” when it argued to the Court that the Third-Party action necessitated adjourning the depositions, and once again chooses to omit from this argument the additional reasons that the depositions needed to be adjourned, namely Plaintiffs’ failure to provide discovery in a timely fashion (the authorizations that were not provided by Plaintiffs until June 2021), or Plaintiffs’ failure to provide discovery responses at all (Plaintiffs’ outstanding response to the Preliminary Conference Order). As noted above, the Court found Plaintiffs’ failure to provide authorizations in a timely fashion to be ground to 15 15 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 adjourn the depositions of the parties, and issued an Order to this effect on July 21, 2021 (See Defendant’s Exhibit “K”) 51. Masaryk was well within its right to initiate a timely Third-Party action against Centennial Elevator at any time prior to the limitations set forth in the Preliminary Conference Order that it saw fit to do so, and Plaintiffs’ attempt to draw the conclusion that this was a willful attempt on the part of Masaryk to obstruct discovery and delay depositions should not be given any weight by this Court. As such, Plaintiffs’ motion to dismiss or sever the Third-Party Action is without merit. MASARYK’S ARGUMENTS IN SUPPORT OF ITS CROSS-MOTION I. MASARYK IS ENTITLED TO COSTS AND SANCTIONS 52. It is well-settled that "a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct." Kamen v. Diaz-Kamen, 40 A.D.3d 937, 837 N.Y.S.2d 666 (2d Dept. 2007). Conduct during litigation is frivolous and subject to sanctions and/or award of costs, including attorney's fees, when "(1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.; or (3) it asserts material factual statements that are false." See, 22 N.Y.C.R.R. 130-1.1(c). 53. Masaryk adds that additional reason supporting sanctions – Plaintiffs’ continued intentional ignorance of this Court’s rules regarding discovery motions – as a basis to award sanctions. Not only have Plaintiffs failed to seek permission from the Court to bring this motion, 16 16 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 they also submitted a frivolous “Affirmation of Good Faith” in support to this motion, which is full of falsehoods and is made in anything other than “good faith.” Moreover, Plaintiffs did not have the courtesy to meet and confer in good faith with the undersigned, bringing this motion without any warning, notice, or attempt to work things out. It is absurd that Plaintiffs continue to flout the rules of this Court, yet believe that they are entitled to relief. It is time for Plaintiffs to litigate this case in a respectful and mature way, play by the rules, and continue with discovery. 54. In this action, costs and sanctions are warranted as Plaintiffs have undertaken to delay, prolong and frustrate discovery of this action by filing a frivolous motion to strike Masaryk’s pleadings. Plaintiffs filed this motion against Masaryk due to their own baseless and inaccurate inferences drawn from Masaryk’s decisions to initiate a Third-Party action based on an implied contract between itself and Centennial Elevator, and Masaryk’s objections to Plaintiffs’ intentionally vague discovery demands. In so doing, Plaintiffs also attempts to deliberately mischaracterize these decisions as causes for delay of discovery and depositions in this matter, rather his own failure to adequately and timely provide requested discovery. See, e.g., Exhibit “C” hereto. As such, costs and sanctions are warranted. 55. Moreover, Plaintiffs brought this motion when Plaintiffs themselves have stated that they will be bringing an additional party into this action – to wit the management company. Plaintiffs cannot have it both ways. As is obvious, Plaintiffs’ motion is “completely without merit in law and cannot be supported by a reasonable argument,” was “undertaken primarily to delay or prolong the resolution of the litigation,” was made primarily to harass or maliciously injure the defendants, and asserts “material factual statements that are false.” As all of the elements of 22 N.Y.C.R.R. § 130-1.1(c)(1), (2) and (3) are met, sanctions against the Plaintiffs should be issued forthwith. 17 17 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 CONCLUSION 56. For all the foregoing reasons, it is respectfully submitted that this Honorable Court issue an Order: i. Granting Defendant’s cross motion for costs and sanctions, on the ground that Plaintiffs’ motion is frivolous, contumacious, harassing, petty, violative of the Court’s rules, and a complete waste of the Court’s time and resources; and ii. Denying Plaintiffs’ motion in its entirety, on the grounds that a. Masaryk has not delayed discovery, and has in fact served all required responses to Plaintiffs’ discovery demands, and is ready, willing, and able to proceed with depositions; b. Plaintiffs failed to establish a willful failure to disclose discovery sufficient to support the drastic remedy of striking a pleading; and c. Masaryk’s Third-Party action has a good faith basis, and should therefore not be dismissed or severed. Dated: Woodbury, New York September 7, 2021 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP ________________________________________ Susan J. Stromberg MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for Defendant/Third-Party Plaintiff MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 (516) 712-4000 File No.: 667-19159 SStromberg@MilberMakris.com 18 18 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 TO: Brett J. Nomberg, Esq. BRAND NOMBERG & ROSENBAUM, LLP Attorney for Plaintiffs JOSEPH ITARA and TABETHA ITARA 622 3RD Avenue, 7TH Floor New York, New York 10017 (212) 808-0448 bnomberg@bbnrlaw.com Sasha Robins, Esq. BABCHIK & YOUNG, LLP Attorneys for Third-Party Defendant CENTENNIAL ELEVATOR INDUSTRIES, INC. 245 Main Street, Suite 880 White Plains, New York 10601 (914) 470-0001 x31 sasha.robins@babchikyoung.com 19 19 of 20 FILED: NEW YORK COUNTY CLERK 09/07/2021 05:17 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/07/2021 CERTIFICATION STATEMENT PURSUANT TO 22 NYCRR § 202.8-b The total number of words in the Affirmation in Support of Cross Motion for Costs and Sanctions, inclusive of point headings and footnotes, and exclusive of pages containing the Certification Statement, proof of service, or any authorized addendum containing statutes, rules and regulations, is 5,122. The foregoing Affirmation in Support of Cross Motion to Dismiss complies with the word count limit of 7,000 pursuant to 22 NYCRR 202.8-b(a). Respectfully submitted, MILBER MAKRIS PLOUSADIS & SEIDEN, LLP By: ___________________________________ Susan J. Stromberg MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for Defendant/Third-Party Plaintiff