Motion-Secondary: Fernando Pinos Cabrera v. Emily M Russell, Empire Today

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                                FILED:         QUEENS        COUNTY         CLERK        06/30/2020             04:19       PM                      INDEX    NO.   711448/2015
   NYSCEF     DOC.   NO.   77                                                                                 RECEIVED      NYSCEF:     06/30/2020




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF QUEENS
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                  FERNANDO PINOS CABRERA,
                                                                                            Index No. 711448/15
                                                        Plaintiff,
                                                                                            ATTORNEY AFFIRMATION
                              -against-
                  EMILY M. RUSSELL, EMPIRE TODAY and
                  PETER LUGER CONSTRUCTION, INC.,

                                                        Defendant.
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                  EMPIRE TODAY, LLC,

                                                        Third Party Plaintiff,
                             -against-

                  JANNELLY FLOORING & CARPETING, INC.,
                                                        Third Party Defendant.
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                           KEVIN P. SLATTERY, an attorney admitted to practice in the Courts of this State,

                  associated with the firm of LAW OFFICES OF TROMELLO & FISHMAN attorneys for the

                  defendant    Empire Today, LLC , herein, affirms under the penalties of perjury that the following

                  facts are true:

                           That I am fully familiar with all the facts and circumstances hereinafter contained, based

                  on investigation and information contained in the records and file maintained in affirmant's

                  office and submits this affirmation in support of the within motion for an order dismissing the

                  plaintiff's complaint for failure to comply with the Court ordered Discovery Stipulation of

                  11/12/20.

                           That this is an action brought on behalf of the plaintiff to recover for damages brought

                  about as a result of personal injuries sustained on 6/15/15.           The court-ordered discovery

                  stipulation of 11/12/19 directed that the plaintiff appear for a deposition on 2/12/20. To date, the

                  plaintiff has not appeared for a deposition.        The plaintiff was also directed to serve all of the


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   FILED:         QUEENS        COUNTY         CLERK        06/30/2020             04:19       PM                      INDEX    NO.   711448/2015
   NYSCEF     DOC.   NO.   77                                                                                 RECEIVED      NYSCEF:     06/30/2020
                  defendants with an authorization to obtain the plaintiff’s treatment records from his primary care

                  physician within 30 days of the date of the stipulation. The plaintiff has also failed to provide this

                  authorization. The plaintiff was further directed to respond to the demand of defendant Peter

                  Luger and provide all of the defendants with authorizations to obtain the plaintiff’s employment

                  and wage records from Janelly Flooring within 30 days of the date of the so ordered stipulation.

                  The plaintiff has failed to do so.      The plaintiff has failed to comply with the court’s so-ordered

                  discovery stipulation for seven months, which is attached as Exhibit “A”.

                           I have discharged my obligation under Uniform Rule 202.7 to resolve in good faith the

                  discovery disputes raised herein without the need for judicial intervention.               My specific good

                  faith effort was a letter sent to the plaintiff’s attorneys on 6/4/20 requesting compliance with the

                  stipulation, which is attached as Exhibit “B”.

                           I hereby certify this affirmation is not frivolous as defined in NYCRR Section 130-1.1(c).

                           WHEREFORE, it is prayed that an Order be entered pursuant to CPLR 3126 dismissing

                  the plaintiff’s complaint together with such other and further relief as to this Court may seem just

                  and proper.

                  Dated:   Melville, New York
                           June 27, 2020




                                                                        __________________________________________
                                                                                       KEVIN P. SLATTERY




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