Preview
FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------------X
JOSEPH ITARA and TABETHA ITARA,
Index No.: 152948/2020
Plaintiffs,
REPLY AFFIRMATION
-against- IN FURTHER SUPPORT
OF DEFENDANT’S
MASARYK TOWERS CORPORATION d/b/a CROSS-MOTION FOR
MASARYK TOWERS MANAGEMENT, COSTS AND SANCTIONS
Defendant. Return Date: 9/13/21
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MASARYK TOWERS CORPORATION i/s/h/a MASARYK Judge: Hon. W. Franc Perry
TOWERS CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT, Third-Party Index No.
595639/2021
Third-Party Plaintiff,
- against –
CENTENNIAL ELEVATOR INDUSTRIES, INC.,
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 heretofore had herein based upon the examination of the file maintained by this
office.
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2. This Reply Affirmation is submitted in further support of Defendant’s cross-
motion for costs and sanctions against the Plaintiffs, JOSEPH ITARA (“Plaintiff”) and
TABETHA ITARA (collectively, “Plaintiffs”).
3. For the reasons set forth below, and in Masaryk’s opposition and cross-motion
papers dated September 7, 2021, it is respectfully submitted that this Honorable Court issue an
Order:
i. Granting Defendant’s cross-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 therefore not be dismissed or severed.
FACTS and PROCEDURAL HISTORY
4. The facts and procedural history of this matter were set forth in Masaryk’s
opposition/cross-motion papers dated September 7, 2021, and are incorporated herein by
reference.
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ARGUMENT
COSTS AND SANCTIONS ARE WARRANTED HERE, AS PLAINTIFFS HAVE
FAILED TO OPPOSE MASARYK’S CROSS-MOTION, INSTEAD CHOOSING
TO ARGUE IN FURTHER SUPPORT OF THEIR FRIVOLOUS MOTION TO DISMISS
5. Rather than address each and every false, misleading, and sanctionable argument
raised in Plaintiff’s papers (which Masaryk can certainly do), we instead focus on the most
egregious aspects.
6. At first blush, it appears that Plaintiffs opposed Masaryk’s motion, as the
document is titled “Reply Affirmation and Opposition.” However, a close look at Plaintiffs’
papers reveals that what Plaintiffs actually filed was a “Reply Affirmation and More Arguments
in Reply.” The five numbered arguments are all in further support of Plaintiffs’ original
arguments, and do not address or oppose the arguments set forth in Masaryk’s cross-motion.
Even in Point V., which would be the natural point to oppose the cross-motion, Plaintiffs argue
that the cross-motion “further evinces” Defendant’s intent, and does not legally or factually
oppose Masaryk’s cross-motion. Nor does it set forth any argument as to why Defendant is not
entitled to costs and sanctions. By failing to oppose the cross-motion, Plaintiffs have waived
their right to do so. See Sancino v. MTA, 184 A.D.3d 534, 535, 124 N.Y.S.3d 534, 535 (1st Dept.
2020). As such, Masaryk’s arguments should be submitted unopposed, its motion granted, and
costs and sanctions granted.
7. As was set forth in Masaryk’s moving papers, the Court may exercise its
discretion to grant a defendant’s cross-motion for costs and sanctions due to a plaintiff’s
frivolous motion practice. See Raghavendra v. Brill, 135 A.D.3d 531, 532, 23 N.Y.S.3d 214, 215
(1st Dept. 2016). See also Kamen v. Diaz-Kamen, 40 A.D.3d 937, 837 N.Y.S.2d 666 (2d Dept.
2007). As is statutorily, conduct is considered frivolous and subject to sanctions and/or costs,
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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). As set
forth in Masaryk’s cross-motion papers, Plaintiffs have engaged in all three of the above, and has
also failed to abide by the Court’s rules. As such, Masaryk is entitled to costs and sanctions.
8. The list of Plaintiffs’ offenses is long, and the claims they make against Masaryk
are actually those that were committed by Plaintiffs. For example, Plaintiffs complain that
Masaryk adjourned the June 2021 depositions on its own, and “unilaterally violated the
Preliminary Conference Order.” See Plaintiff’s Opposition dated September 10, 2021, para. 60.
However, as was shown in Masaryk’s cross-motion, authorizations had just been provided to
Masaryk two weeks prior, and the records had not been received. As such, the parties,
including Plaintiffs, jointly agreed to adjourn the depositions in June, 2021. See Exhibit
“H” to Masaryk’s cross-motion.
9. In fact, when my office contacted Plaintiffs’ counsel’s office to propose
adjourning the June depositions in light of the recently received authorizations, it took Plaintiffs’
office a whopping 14 minutes to read, respond and agree to the proposal. There was no
objection, no argument that there was a violation of the Preliminary Conference Order, and no
attempt to contact the Court to complain. There was utter and immediate agreement, and new
dates were selected. Indeed, this alleged “unilateral violation” was anything but. As the ancient
proverb goes, “people who live in glass houses shouldn’t throw stones.” Plaintiffs should have
heeded this wise advice. Their failure to do so is ruinous to their motion, and warrants costs and
sanctions against them.
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10. It is unfortunate that Plaintiffs continue to squawk that Masaryk has withheld
information, when it is Plaintiffs who continue to make misleading arguments and bring
frivolous motions, warranting costs and sanctions against them.
11. Additional examples of Plaintiffs’ wrongdoing include their disingenuous claims
that somehow Masaryk intended to withhold the identity of its managing agent, Metro
Management Development, Inc. (“Metro Management”). This is another misleading argument,
and further supports Masaryk’s cross-motion. First, Plaintiffs never requested the management
agreement until their July 21, 2021 Notice for Discovery & Inspection. Once it was demanded,
it was provided.
12. Moreover, Metro Management’s affiliation with Masaryk is no secret. Metro
Management is listed as the Principal Executive Office and the Registered Agent for Masaryk on
the New York State Department of State website, a copy of which is attached hereto as Exhibit
“A.” Clearly, had Plaintiffs done their due diligence prior to commencing this lawsuit, and
researched Masaryk on the Department of State website, they would have known that Masaryk
and Metro Management were affiliated.
13. Moreover, it cannot be argued that Plaintiff Joseph Itara did not know the identity
of the property manager, Metro Management. Not only did he know the property manager,
Mitchell Magidson, but each time Joseph Itara walked into the building to service the elevator on
the roof, he should have seen the sign on the wall notifying anyone that enters the building that
Metro Management is the managing agent of the property. See, Photos, Exhibit “B” hereto.
14. Finally, and most importantly, Plaintiffs actually served the summons and
complaint in this case directly into the hands of property manager Mitchell Magidson in
the management office located in the same building. Id. Plaintiffs never filed the Affidavit
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of Service with the Court, as is required to under the CPLR, so that we could attach the
Affidavit of Service to this motion. 1 This would show conclusively that Plaintiffs knew that
Metro Management was the property manager for Masaryk.
15. Plaintiffs’ continued complaints against Masaryk are unfounded. The only parties
misleading the Court here are Plaintiffs. Their failure to seek to resolve these discovery issues
with Masaryk prior to bringing their motion precludes their motion in its entirety. Their failure
to read their discovery demands with an unbiased eye has resulted in their distorted perception
that the demands are clear and coherent. They are neither. Their cries that discovery has been
delayed is due to their own failures to identify the property manager and timely provide
authorizations.
16. Depositions are currently scheduled for September 21, 22, 24 and/or 28. It is
Plaintiffs who now complain that they must bring in another party to this action, to wit, Metro
Management, who Plaintiffs served with the Summons and Complaint on behalf of Masaryk over
a year ago. For Plaintiffs to now cry over discovery delays for their own failure to know who
they served is another setback caused entirely by the Plaintiffs themselves.
17. As noted above, Masaryk could go line by line through Plaintiffs’ papers and take
issue with virtually every statement. The bottom line is that it is the Plaintiffs that caused the
delay in their epiphany that Metro Management was the property manager for Masaryk. Their
failure to know who they served, failure to see the signs on the wall, failure to draft a proper
discovery demand, and failure to comprehend the basis of Masaryk’s Third-Party Action
apparently caused them to reach the point of such frustration that they lashed out and brought
1
This is yet another example of Plaintiffs failing to follow the rules of Court. We also take this opportunity to
point out that Plaintiffs failed to attach a Certification Statement Pursuant to 22 N.Y.C.R.R. § 202.8-b to either their
moving papers or their Reply/Opposition. How Plaintiffs can continue to seek to punish Masaryk while flouting the
rules of Court is beyond comprehension.
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their motion. This type of litigation practice flies in the face of the rules of discovery, motion
practice and civility.
18. As noted above, and in Masaryk’s motion papers, 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 such, Masaryk has shown that all of the elements of 22 N.Y.C.R.R. § 130-1.1(c)(1),
(2) and (3) are met, and costs and sanctions against the Plaintiffs are warranted.
CONCLUSION
19. For the foregoing reasons, and the reasons set forth in Masaryk’s opposition and
cross-motion papers, it is respectfully submitted that this Honorable Court issue an Order:
i. Granting Defendant’s cross-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
therefore not be dismissed or severed.
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Dated: Woodbury, New York
September 12, 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
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
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CERTIFICATION STATEMENT
PURSUANT TO 22 NYCRR § 202.8-b
The total number of words in the Reply Affirmation in Further Support of Defendant’s 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 2028. The foregoing Reply Affirmation in Further
Support of Defendant’s Cross-Motion to Dismiss for Costs and Sanctions complies with the
word count limit of 4,200 pursuant to 22 NYCRR 202.8-b(a).
Dated: Woodbury, New York
September 12, 2021
Respectfully submitted,
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
By: ___________________________________
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
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Preview
FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X JOSEPH ITARA and TABETHA ITARA, Index No.: 152948/2020 Plaintiffs, REPLY AFFIRMATION -against- IN FURTHER SUPPORT OF DEFENDANT’S MASARYK TOWERS CORPORATION d/b/a CROSS-MOTION FOR MASARYK TOWERS MANAGEMENT, COSTS AND SANCTIONS Defendant. Return Date: 9/13/21 -------------------------------------------------------------------------X MASARYK TOWERS CORPORATION i/s/h/a MASARYK Judge: Hon. W. Franc Perry TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Third-Party Index No. 595639/2021 Third-Party Plaintiff, - against – CENTENNIAL ELEVATOR INDUSTRIES, INC., 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 heretofore had herein based upon the examination of the file maintained by this office. 1 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 2. This Reply Affirmation is submitted in further support of Defendant’s cross- motion for costs and sanctions against the Plaintiffs, JOSEPH ITARA (“Plaintiff”) and TABETHA ITARA (collectively, “Plaintiffs”). 3. For the reasons set forth below, and in Masaryk’s opposition and cross-motion papers dated September 7, 2021, it is respectfully submitted that this Honorable Court issue an Order: i. Granting Defendant’s cross-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 therefore not be dismissed or severed. FACTS and PROCEDURAL HISTORY 4. The facts and procedural history of this matter were set forth in Masaryk’s opposition/cross-motion papers dated September 7, 2021, and are incorporated herein by reference. 2 2 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 ARGUMENT COSTS AND SANCTIONS ARE WARRANTED HERE, AS PLAINTIFFS HAVE FAILED TO OPPOSE MASARYK’S CROSS-MOTION, INSTEAD CHOOSING TO ARGUE IN FURTHER SUPPORT OF THEIR FRIVOLOUS MOTION TO DISMISS 5. Rather than address each and every false, misleading, and sanctionable argument raised in Plaintiff’s papers (which Masaryk can certainly do), we instead focus on the most egregious aspects. 6. At first blush, it appears that Plaintiffs opposed Masaryk’s motion, as the document is titled “Reply Affirmation and Opposition.” However, a close look at Plaintiffs’ papers reveals that what Plaintiffs actually filed was a “Reply Affirmation and More Arguments in Reply.” The five numbered arguments are all in further support of Plaintiffs’ original arguments, and do not address or oppose the arguments set forth in Masaryk’s cross-motion. Even in Point V., which would be the natural point to oppose the cross-motion, Plaintiffs argue that the cross-motion “further evinces” Defendant’s intent, and does not legally or factually oppose Masaryk’s cross-motion. Nor does it set forth any argument as to why Defendant is not entitled to costs and sanctions. By failing to oppose the cross-motion, Plaintiffs have waived their right to do so. See Sancino v. MTA, 184 A.D.3d 534, 535, 124 N.Y.S.3d 534, 535 (1st Dept. 2020). As such, Masaryk’s arguments should be submitted unopposed, its motion granted, and costs and sanctions granted. 7. As was set forth in Masaryk’s moving papers, the Court may exercise its discretion to grant a defendant’s cross-motion for costs and sanctions due to a plaintiff’s frivolous motion practice. See Raghavendra v. Brill, 135 A.D.3d 531, 532, 23 N.Y.S.3d 214, 215 (1st Dept. 2016). See also Kamen v. Diaz-Kamen, 40 A.D.3d 937, 837 N.Y.S.2d 666 (2d Dept. 2007). As is statutorily, conduct is considered frivolous and subject to sanctions and/or costs, 3 3 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 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). As set forth in Masaryk’s cross-motion papers, Plaintiffs have engaged in all three of the above, and has also failed to abide by the Court’s rules. As such, Masaryk is entitled to costs and sanctions. 8. The list of Plaintiffs’ offenses is long, and the claims they make against Masaryk are actually those that were committed by Plaintiffs. For example, Plaintiffs complain that Masaryk adjourned the June 2021 depositions on its own, and “unilaterally violated the Preliminary Conference Order.” See Plaintiff’s Opposition dated September 10, 2021, para. 60. However, as was shown in Masaryk’s cross-motion, authorizations had just been provided to Masaryk two weeks prior, and the records had not been received. As such, the parties, including Plaintiffs, jointly agreed to adjourn the depositions in June, 2021. See Exhibit “H” to Masaryk’s cross-motion. 9. In fact, when my office contacted Plaintiffs’ counsel’s office to propose adjourning the June depositions in light of the recently received authorizations, it took Plaintiffs’ office a whopping 14 minutes to read, respond and agree to the proposal. There was no objection, no argument that there was a violation of the Preliminary Conference Order, and no attempt to contact the Court to complain. There was utter and immediate agreement, and new dates were selected. Indeed, this alleged “unilateral violation” was anything but. As the ancient proverb goes, “people who live in glass houses shouldn’t throw stones.” Plaintiffs should have heeded this wise advice. Their failure to do so is ruinous to their motion, and warrants costs and sanctions against them. 4 4 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 10. It is unfortunate that Plaintiffs continue to squawk that Masaryk has withheld information, when it is Plaintiffs who continue to make misleading arguments and bring frivolous motions, warranting costs and sanctions against them. 11. Additional examples of Plaintiffs’ wrongdoing include their disingenuous claims that somehow Masaryk intended to withhold the identity of its managing agent, Metro Management Development, Inc. (“Metro Management”). This is another misleading argument, and further supports Masaryk’s cross-motion. First, Plaintiffs never requested the management agreement until their July 21, 2021 Notice for Discovery & Inspection. Once it was demanded, it was provided. 12. Moreover, Metro Management’s affiliation with Masaryk is no secret. Metro Management is listed as the Principal Executive Office and the Registered Agent for Masaryk on the New York State Department of State website, a copy of which is attached hereto as Exhibit “A.” Clearly, had Plaintiffs done their due diligence prior to commencing this lawsuit, and researched Masaryk on the Department of State website, they would have known that Masaryk and Metro Management were affiliated. 13. Moreover, it cannot be argued that Plaintiff Joseph Itara did not know the identity of the property manager, Metro Management. Not only did he know the property manager, Mitchell Magidson, but each time Joseph Itara walked into the building to service the elevator on the roof, he should have seen the sign on the wall notifying anyone that enters the building that Metro Management is the managing agent of the property. See, Photos, Exhibit “B” hereto. 14. Finally, and most importantly, Plaintiffs actually served the summons and complaint in this case directly into the hands of property manager Mitchell Magidson in the management office located in the same building. Id. Plaintiffs never filed the Affidavit 5 5 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 of Service with the Court, as is required to under the CPLR, so that we could attach the Affidavit of Service to this motion. 1 This would show conclusively that Plaintiffs knew that Metro Management was the property manager for Masaryk. 15. Plaintiffs’ continued complaints against Masaryk are unfounded. The only parties misleading the Court here are Plaintiffs. Their failure to seek to resolve these discovery issues with Masaryk prior to bringing their motion precludes their motion in its entirety. Their failure to read their discovery demands with an unbiased eye has resulted in their distorted perception that the demands are clear and coherent. They are neither. Their cries that discovery has been delayed is due to their own failures to identify the property manager and timely provide authorizations. 16. Depositions are currently scheduled for September 21, 22, 24 and/or 28. It is Plaintiffs who now complain that they must bring in another party to this action, to wit, Metro Management, who Plaintiffs served with the Summons and Complaint on behalf of Masaryk over a year ago. For Plaintiffs to now cry over discovery delays for their own failure to know who they served is another setback caused entirely by the Plaintiffs themselves. 17. As noted above, Masaryk could go line by line through Plaintiffs’ papers and take issue with virtually every statement. The bottom line is that it is the Plaintiffs that caused the delay in their epiphany that Metro Management was the property manager for Masaryk. Their failure to know who they served, failure to see the signs on the wall, failure to draft a proper discovery demand, and failure to comprehend the basis of Masaryk’s Third-Party Action apparently caused them to reach the point of such frustration that they lashed out and brought 1 This is yet another example of Plaintiffs failing to follow the rules of Court. We also take this opportunity to point out that Plaintiffs failed to attach a Certification Statement Pursuant to 22 N.Y.C.R.R. § 202.8-b to either their moving papers or their Reply/Opposition. How Plaintiffs can continue to seek to punish Masaryk while flouting the rules of Court is beyond comprehension. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 their motion. This type of litigation practice flies in the face of the rules of discovery, motion practice and civility. 18. As noted above, and in Masaryk’s motion papers, 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 such, Masaryk has shown that all of the elements of 22 N.Y.C.R.R. § 130-1.1(c)(1), (2) and (3) are met, and costs and sanctions against the Plaintiffs are warranted. CONCLUSION 19. For the foregoing reasons, and the reasons set forth in Masaryk’s opposition and cross-motion papers, it is respectfully submitted that this Honorable Court issue an Order: i. Granting Defendant’s cross-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 therefore not be dismissed or severed. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 Dated: Woodbury, New York September 12, 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 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 8 8 of 9 FILED: NEW YORK COUNTY CLERK 09/12/2021 01:24 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/12/2021 CERTIFICATION STATEMENT PURSUANT TO 22 NYCRR § 202.8-b The total number of words in the Reply Affirmation in Further Support of Defendant’s 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 2028. The foregoing Reply Affirmation in Further Support of Defendant’s Cross-Motion to Dismiss for Costs and Sanctions complies with the word count limit of 4,200 pursuant to 22 NYCRR 202.8-b(a). Dated: Woodbury, New York September 12, 2021 Respectfully submitted, MILBER MAKRIS PLOUSADIS & SEIDEN, LLP By: ___________________________________ 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 9 9 of 9