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FILED: NASSAU COUNTY CLERK 02/16/2016 11:46 AM INDEX NO. 605604/2015
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/16/2016
SUPREME COURT OF THE STATE OF NE,W YORK
COUNTY OF NASSAU
X
GINA MIANULLI, AFFIRMATION IN SUPPORT
Plaintiff,
Index No.: 605604/15
-agatnst-
JANE BROWN,
Defendant.
X
an attomey duly admitted to practice law before the coutls
JENNA L. CALDARELLA,
upon information and belief, under
of the State of New york, affirms the truth of the following,
the penalties of PerjurY:
firm of MARKS, O'NEILL, O'BRIEN, DOHERTY
i. I am an associate at the law
for the defendant, JANE BRO\ilN, and, as such, I am fully familiar
& KELLY, P.C., attorneys
of this matter as reflected in the file maintained in this offrce'
with the facts and circumstances
in support of the instant motion pursuant to CPLR
2. This affirmation is submitted
complaint or, inthe alternative; pursuant to CPLR $3043 and $3124
$3126 to strike Plaintiffls
compelling plaintifîto fully respond to defendant's Demand for a verif,red Bill of Particulars and
various di scovery requests herein.
FAC TS AND P CED AL HIS RY
}y'ray 22,2015, she tripped and fell on a sidewalk
3. Plaintiff alleges that on or about
New York. Plaintiff commenced the within action
in front of l g pleasant Avenue, Farmingdale,
on August 3I,2OI5' A copy of the summons and
by the filing of a summons and complaint
Complaint is attached hereto as Exhibit'oA"'
{NC0741101}
4. On October 16,2015, defendant interposed an Answer together with a Demand for
o6B" is
a Verified Bill of Particulars and various Discovery Demands. Attached hereto as Exhibit
a copy of Defendant's Verified Answer and various Discovery l)emands.
5. A good faith letter was sent to plaintiff s counsel on November 19, 201 5 requesting
a response to Defendant's Discovery Demands. A copy of the good faith letter is annexed hereto
ooC".
as Exhibit
6. Plaintiff provided a Bill of Particulars that was not fully responsive to our Demand
for a Verified Bill of particulars. A copy of Plaintiff s Bill of Particulars is annexed hereto as
ooD".
Exhibit
7. On l)ecember 1,2015, a Preliminary Conference was held in Nassau County
Supreme Court. A copy of the Preliminary Conference order is attached hereto as Exhibit "8".
pursuant to the preiiminary Conierence Order, ihe Piaintiff was to piovidc an Amended Bill of
Parliculars and authorizations by December 30, 2015.
g. On January 11,2016, a good faith letter was sent to plaintiffls counsel to avoid the
instant motion practice and obtain responses to defendant's various discovery demands without
ooF"'
the need for Court intervention. A copy of our good faith letter is attached hereto as Exhibit
g. Rather than serving a response, Plaintifls counsel faxed a letter indicating that
responses would be served on January 26,2016. A copy of the Plaintiffs fax is annexed hereto
as Exhibit 0,G". out of professional courtesy, Defendant has waited two weeks for the responses
prior to making this motion.
10. To date, plaintiff s counsel has failed to provide a complete response to defendant's
Demand for a Verified Bill of Particulars and various Discovery Demands. Defendant has made
a good faith effort to resolve these issues by sending a good faith letter to plaintiff s counsel' Se¿
{NC074ll0,l} 2
Exhibit ooF". Plaintiffs counsel has not responded to the good faith letter or served a Bill of
Particulars
11 . There has been no prior application for the relief requested herein.
ARGUMENT
12. Pursuant to CPLR $3126 if plaintiff "...willfully failsto disclose information which
ought to have been disclosed,. . ." then defendant is entitled to a dismissal of the action. Plaintiff
was served with good faith letters to resolve our entitled demands for a Verified Bill of Parliculars
and various discovery demands. Therefore, plaintiff s Complaint should be dismissed pursuant to
CPLR $3126(3).
13. Alternatively, pursuant to CPLR $30a3(a) "in an action to recover for personal
injuries" a Verified Bill of Particulars is required. This action involves inter alia the alleged
personal injury of plaintiff and thus CPLR g30a3(a) applies. Therefore, plaintiffis in violation of
CpLR and plaintiff should be required to respond to defendant's Demand for a Verified
$30a3(a)
Bill of Particulars and other various discovery demands.
14. Additionally, it is cerlainly within this Courl's discretion to strike the pleadings of
a pafty or take whatever action is deemed appropriate in matters where a patty fails to comply with
discovery and such failure is willful, contumacious or done in bad faith. Novice v' Benes. 268
A.D.2d 464, 701 N.Y.S.2d 914 (2d Dep't 2000); Town Hem 240
A.D.2d 374,657 N.Y.S.2d 770 (2d Dep't 1997).
15. In Sower bvv Camarada. 20 A.D.3d 411 ,4r1,798 N.Y.S.2d r25, r25 (2d Dep',t
2005), the Second Department stated that "Ihe willful and contumacious character of the
fplaintiffs']....failure to respond to discovery demands can be inferred from ...ftheir] repeated
failures to comply with the Couft's orders, as well as the absence of any explanation offered to
a
{NC074l r0 l} -')
excuse their failures to comply." In accordance withL2 NYCRR 202.7, Defendant's counsel has
made a good faith attempt to resolve these outstanding discovery issues, by sending a good faith
letter to plaintiff s counsel.
1,6. Due to plaintiff s inaction, defendant has been unable to properly defend herself in
this case as plaintiff has failed to respond to any of the defendant's discovery demands. Thus, this
Court should infer, based on Plaintiffs failure to respond to the good faith effort made by
defendant, that Plaintifls inaction is willful and contumacious, and Plaintiff s Complaint should
be dismissed pursuant to CPLR $3 126(3); See Frost Line Refrigeration. Inc. v. Frunzi, 18 A.D.3d
701,702,795 N.Y.S.2d741,741 (2dDep't 2005)(holding that plaintiffs' behavior was willful and
contumacious when they refused to comply with the defendant's discovery request for over three
years after the date set forth in the preliminary conference order and when plaintiffs offered an
inadequate excuse for failing to comply); Conch Associates. inc. v. PMCC ivforigage Corp., 303
A.D.2d 538, 538, 756 N.Y.S.2d 456,457 (2d Dep't 2O03)(dismissing plaintiffls Complaint due to
plaintiff s willful and contumacious conduct which was inferred from plaintiff s repeated failure
to comply with Court orders directing disclosure and plaintiff s inadequate explanation for these
failures). In the alternative, Plaintiff should be compelled to respond to defendant's Demand for
a Verified Bill of Particulars and Combined Demands served on Plaintiff pursuant to CPLR
$30a3(a).
WHEREFORE, it is respectfully requested that the within motion be granted in its
entirety, and for such other and further relief as this Court may deem just and proper.
Dated: New York, New York
February 15,2016
AL. DARBLLA
{NC074lr0,l} 4
Preview
FILED: NASSAU COUNTY CLERK 02/16/2016 11:46 AM INDEX NO. 605604/2015 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/16/2016 SUPREME COURT OF THE STATE OF NE,W YORK COUNTY OF NASSAU X GINA MIANULLI, AFFIRMATION IN SUPPORT Plaintiff, Index No.: 605604/15 -agatnst- JANE BROWN, Defendant. X an attomey duly admitted to practice law before the coutls JENNA L. CALDARELLA, upon information and belief, under of the State of New york, affirms the truth of the following, the penalties of PerjurY: firm of MARKS, O'NEILL, O'BRIEN, DOHERTY i. I am an associate at the law for the defendant, JANE BRO\ilN, and, as such, I am fully familiar & KELLY, P.C., attorneys of this matter as reflected in the file maintained in this offrce' with the facts and circumstances in support of the instant motion pursuant to CPLR 2. This affirmation is submitted complaint or, inthe alternative; pursuant to CPLR $3043 and $3124 $3126 to strike Plaintiffls compelling plaintifîto fully respond to defendant's Demand for a verif,red Bill of Particulars and various di scovery requests herein. FAC TS AND P CED AL HIS RY }y'ray 22,2015, she tripped and fell on a sidewalk 3. Plaintiff alleges that on or about New York. Plaintiff commenced the within action in front of l g pleasant Avenue, Farmingdale, on August 3I,2OI5' A copy of the summons and by the filing of a summons and complaint Complaint is attached hereto as Exhibit'oA"' {NC0741101} 4. On October 16,2015, defendant interposed an Answer together with a Demand for o6B" is a Verified Bill of Particulars and various Discovery Demands. Attached hereto as Exhibit a copy of Defendant's Verified Answer and various Discovery l)emands. 5. A good faith letter was sent to plaintiff s counsel on November 19, 201 5 requesting a response to Defendant's Discovery Demands. A copy of the good faith letter is annexed hereto ooC". as Exhibit 6. Plaintiff provided a Bill of Particulars that was not fully responsive to our Demand for a Verified Bill of particulars. A copy of Plaintiff s Bill of Particulars is annexed hereto as ooD". Exhibit 7. On l)ecember 1,2015, a Preliminary Conference was held in Nassau County Supreme Court. A copy of the Preliminary Conference order is attached hereto as Exhibit "8". pursuant to the preiiminary Conierence Order, ihe Piaintiff was to piovidc an Amended Bill of Parliculars and authorizations by December 30, 2015. g. On January 11,2016, a good faith letter was sent to plaintiffls counsel to avoid the instant motion practice and obtain responses to defendant's various discovery demands without ooF"' the need for Court intervention. A copy of our good faith letter is attached hereto as Exhibit g. Rather than serving a response, Plaintifls counsel faxed a letter indicating that responses would be served on January 26,2016. A copy of the Plaintiffs fax is annexed hereto as Exhibit 0,G". out of professional courtesy, Defendant has waited two weeks for the responses prior to making this motion. 10. To date, plaintiff s counsel has failed to provide a complete response to defendant's Demand for a Verified Bill of Particulars and various Discovery Demands. Defendant has made a good faith effort to resolve these issues by sending a good faith letter to plaintiff s counsel' Se¿ {NC074ll0,l} 2 Exhibit ooF". Plaintiffs counsel has not responded to the good faith letter or served a Bill of Particulars 11 . There has been no prior application for the relief requested herein. ARGUMENT 12. Pursuant to CPLR $3126 if plaintiff "...willfully failsto disclose information which ought to have been disclosed,. . ." then defendant is entitled to a dismissal of the action. Plaintiff was served with good faith letters to resolve our entitled demands for a Verified Bill of Parliculars and various discovery demands. Therefore, plaintiff s Complaint should be dismissed pursuant to CPLR $3126(3). 13. Alternatively, pursuant to CPLR $30a3(a) "in an action to recover for personal injuries" a Verified Bill of Particulars is required. This action involves inter alia the alleged personal injury of plaintiff and thus CPLR g30a3(a) applies. Therefore, plaintiffis in violation of CpLR and plaintiff should be required to respond to defendant's Demand for a Verified $30a3(a) Bill of Particulars and other various discovery demands. 14. Additionally, it is cerlainly within this Courl's discretion to strike the pleadings of a pafty or take whatever action is deemed appropriate in matters where a patty fails to comply with discovery and such failure is willful, contumacious or done in bad faith. Novice v' Benes. 268 A.D.2d 464, 701 N.Y.S.2d 914 (2d Dep't 2000); Town Hem 240 A.D.2d 374,657 N.Y.S.2d 770 (2d Dep't 1997). 15. In Sower bvv Camarada. 20 A.D.3d 411 ,4r1,798 N.Y.S.2d r25, r25 (2d Dep',t 2005), the Second Department stated that "Ihe willful and contumacious character of the fplaintiffs']....failure to respond to discovery demands can be inferred from ...ftheir] repeated failures to comply with the Couft's orders, as well as the absence of any explanation offered to a {NC074l r0 l} -') excuse their failures to comply." In accordance withL2 NYCRR 202.7, Defendant's counsel has made a good faith attempt to resolve these outstanding discovery issues, by sending a good faith letter to plaintiff s counsel. 1,6. Due to plaintiff s inaction, defendant has been unable to properly defend herself in this case as plaintiff has failed to respond to any of the defendant's discovery demands. Thus, this Court should infer, based on Plaintiffs failure to respond to the good faith effort made by defendant, that Plaintifls inaction is willful and contumacious, and Plaintiff s Complaint should be dismissed pursuant to CPLR $3 126(3); See Frost Line Refrigeration. Inc. v. Frunzi, 18 A.D.3d 701,702,795 N.Y.S.2d741,741 (2dDep't 2005)(holding that plaintiffs' behavior was willful and contumacious when they refused to comply with the defendant's discovery request for over three years after the date set forth in the preliminary conference order and when plaintiffs offered an inadequate excuse for failing to comply); Conch Associates. inc. v. PMCC ivforigage Corp., 303 A.D.2d 538, 538, 756 N.Y.S.2d 456,457 (2d Dep't 2O03)(dismissing plaintiffls Complaint due to plaintiff s willful and contumacious conduct which was inferred from plaintiff s repeated failure to comply with Court orders directing disclosure and plaintiff s inadequate explanation for these failures). In the alternative, Plaintiff should be compelled to respond to defendant's Demand for a Verified Bill of Particulars and Combined Demands served on Plaintiff pursuant to CPLR $30a3(a). WHEREFORE, it is respectfully requested that the within motion be granted in its entirety, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York February 15,2016 AL. DARBLLA {NC074lr0,l} 4