Preview
(FILED: BRONX COUNTY CLERK 1272372015 11:23 AM INDEX NO. 23435/2015E
NYSCEF DOC. NQ, 10 RECEIVED NYSCEF: 12/23/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
eaten nnn et nena nennameneanmnnnnn nme nen nn XK Index No.:23435/2015E
VERENICE SOSA and CARLOS SOSA,
NOTICE OF MOTION
Plaintiffs,
RESPECTFULLY REFER
-against- TO THE HONORABLE
JUSTICE ALEXANDER W.
RODRICK MURRAY and SALEM TRUCK LEASING HUNTER, JR
INC.
LAS, Part 217
Defendants.
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SIRS/MADAMS:
PLEASE TAKE NOTICE, that upon the annexed affirmation of Christopher F. Holbrook,
dated December 21, 2015, and upon all the pleadings and prior proceedings had herein, the
undersigned will move this Court at an IAS Part Room 217 of the Supreme Court of the State of
New York, County of Bronx, at the Courthouse located at 851 Grand Concourse, Bronx, New
York 10451 on the 25th day of January 2016, at 9:30 o’clock in the forenoon of that day, or as
soon thereafter as counsel can be heard for an Order pursuant to CPLR Section §3126 striking
defendant(s)’s Answer and imposing sanctions for its failure to appear for Court-Ordered
examinations before trial and failure to comply with an Order of this Court and for such other
and further relief as this Court deems just and proper.
Dated: Jericho, New York
December 21, 2015
Yours, efc,
Christopher F, Holbrook, Esq.
SCHWARTZAPFEL LAWYERS P.C.
Attorneys for Plaintiff
300 Jericho Quadrangle, Suite 180
Jericho, NY 11753
(516) 342-2200
To:
Galvano & Xanthakis, P.C.
Attorney for Defendant(s)
Rodrick Murray
150 Broadway, Suite 1502
New York, NY 10038
(212) 349-5150
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF BRONX
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‘VERENICE SOSA and CARLOS SOSA, Index No.:23435/2015E
Plaintiffs, ATTORNEY’S
AFFIRMATION
-against-
RODRICK MURRAY and SALEM TRUCK LEASING
INC.
Defendants.
mane ne
et ne mm eee X
Christopher F. Holbrook, an attorney duly licensed to practice law before the Courts of
the State of New York, pursuant to CPLR §2106 affirms as follows:
1 I am a Partner with the law firm of SCHWARTZAPFEL LAWYERS P.C.,
attorneys for the Plaintiffs in the above captioned action, and as such I am fully familiar with the
facts and circumstances of this action.
2 This affirmation is submitted in support of the instant motion, pursuant to CPLR
Section 3126, striking defendant(s)’s Answer and imposing costs and sanctions for its failure to
appear for Court-Ordered examinations before trial and failure to comply with an Order of this
Court. This action is for personal injuries sustained by Plaintiffs, VERENICE SOSA and
CARLOS SOSA, and arises out of an automobile accident which occurred on December 29,
2015, on the Cross Bronx Expressway near the intersection with Marmion Avenue Bronx, New
York.
3 This action was commenced against the defendants, RODRICK MURRAY and
SALEM TRUCK LEASING INC., on June 24, 2015 by filing a Summons and Complaint and
served RODRICK MURRAY and SALEM TRUCK LEASING with a true copy of same on July
21, 2015. Annexed hereto as Exhibit “A” is a copy of the Summons and Verified Complaint.
4 Issued was joined by the defendants, RODRICK MURRAY and SALEM
TRUCK LEASING INC., by service of the Verified Answer on or about July 16, 2015. Annexed
hereto as Exhibit “B” is a copy of the Verified Answer.
5 Plaintiffs served a Verified Bill of Particulars on August 7, 2014. Annexed hereto
as Exhibit “C” is a copy of the Verified Bill of Particulars.
6 On September 1, 2015, a Preliminary Conference was held, which resulted in an
Order directing the examination before trial of all parties to be held on October 14, 2015,
7 Prior to the aforesaid scheduled date for defendants Court-Ordered examination
before trial, your affirmant’s office called to confirm defendants Court-Ordered examination
before trial and was informed the defendants were not ready and would not be producing a
witness on said day and requested an adjournment. Plaintiff, in good faith, agreed to reschedule
defendants examination before trial until November 17, 2015. Once again prior to November 17,
2015, your affirmant’s office called defendants and was informed that they did not have
sufficient coverage and the examination before trial would not move forward.
8 The Preliminary Conference Order of September 1, 2015 clearly outlined the
discovery schedule of the action up to and including Plaintiff's time to file a Note of Issue,
9 Defendants have delayed this case for 3 months by failing to appear for its
Noticed examination before trial.
10. Plaintiffs have been ready, willing and able to proceed with the deposition of the
defendants for a 3 month period and have complied with all of the defendant’s discovery
requests and the Order of this Court,
11. Plaintiffs now make this motion to strike defendants answer due to the willful and
contumacious lack of compliance with an Order of this Court and defendants continuous delay of
this action.
12. The Plaintiffs request that the Court strike defendants answer and permit plaintiff
to immediately place this action on the trial calendar.
13. Striking the defendant’s answer under the circumstances herein, is a proper and
necessary exercise of this Court’s discretion. In Mills v. Ducille, 567 N.Y.S.2d 79, 170 A.D.2d
657 (2™ Dept, 1991), where defendant(s) failed to appear for a Court-Ordered Examination
Before Trial, the Appellate Division held that the trial court was properly within its discretion to
strike the defendant(s)’s answer. See, Kibl v, Pfeiffer, 94 N,Y.2d 118, (1 999), (“if the credibility
of court orders and integrity of our judicial system are to be maintained, a litigant cannot ignore
court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to
command compliance within disclosure directives, has specifically provided that a “court may
make sure orders...as are just”), including dismissal of an action (CPLR 3126). Finally, we
underscore that compliance with a disclosure order requires both a timely response and one that
evinces a good-faith effort to address the requests both a timely response and one that evinces a
good-faith effort to address the requests meaningfully.”). See also, Zletz v, Wetanson, 67 N.Y2d
711 (1986), (when a party in these circumstances disobeys a court order and by his conduct
frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the
broad discretion of the trial courts”), Additional citations omitted,
WHEREFORE, plaintiff respectfully requests the within motion be granted in all respects
and that this Court grant such other and further relief as it deems just and proper.
Dated: Jericho, New York
December 21, 2015
contumacious lack of compliance with an Order of this Court and defendants continuous delay of
this action.
12, The Plaintiffs request that the Court strike defendants answer and permit plaintiff
to immediately place this action on the trial calendar.
13. Striking the defendant’s answer under the circumstances herein, is a proper and
necessary exercise of this Court’s discretion. In Mills v. Ducille, 567 N.Y.S.2d 79, 170 A.D.2d
657 (2™ Dept, 1991), where defendant(s) failed to appear for a Court-Ordered Examination
Before Trial, the Appellate Division held that the trial court was properly within its discretion to
strike the defendant(s)’s answer. See, Kihl v. Pfeiffer, 94 N.Y.2d 118, (1999), (“if the credibility
of court orders and integrity of our judicial system are to be maintained, a litigant cannot ignore
court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to
command compliance within disclosure directives, has specifically provided that a “court may
make sure orders...as are just”), including dismissal of an action (CPLR 3126). Finally, we
underscore that compliance with a disclosure order requires both a timely response and one that
evinces a good-faith effort to address the requests both a timely response and one that evinces a
good-faith effort to address the requests meaningfillly.”), See also, Zletz _v. Wetanson, 67 N.Y2d
711 (1986), (“when a party in these circumstances disobeys a court order and by his conduct
frustrates the disclosure scheme provided by the CPLR, dismissal of the-complaint is within the
broad discretion of the trial courts”), Additional citations omitted.
WHEREFORE, plaintiff respectfully requests the within motion be granted in all respects
and that this Court grant such other and further relief as it deems just and proper.
Dated: Jericho, New York
December 21, 2015
Christopher F. Holbrook, Esq.
SUPREME COURT OF THE STATE OF NEW YORK. Index No,:23435/2015E
COUNTY OF BRONX
meet en eee -X AFFIRMATION OF
‘VERENICE SOSA and CARLOS SOSA, GOOD FAITH
Plaintiffs,
-against-
RODRICK MURRAY and SALEM TRUCK LEASING
INC.
Defendants.
nee neem tenn ene ttn ener nnn neiennen amen nn,
Christopher F. Hotbrook, an attomey admitted to practice before the Courts of this State
affirms the truth of the following under the penalty of perjury:
1 Tam a Partner at the law firm of SCHWARTZAPFEL LAWYERS P.C., attorneys
for the Plaintiffs,
2 Defendants deposition was scheduled by an Order of this Court and Plaintiff was
teady, willing and able to proceed, but defendant(s) refused.
3 Plaintiffs have made several attempts, in good faith, to reschedule defendant(s)’s
examination before trial but defendant(s) have continually refused to appear and continually
request further adjournments.
4 Thus, all good faith attempts to avoid judicial intervention have been made by
your deponent.
DATED: Jericho, New York
December 21, 2015
Christopher F, Holbrook, Esq.
AFFIDAVIT OF SERVICE
STATE OF NEW YORK }
}sst
COUNTY OF NASSAU }
Our File # 4023125
Mallory Aragona, being duly sworn deposes and says that (s)he is not a party to this
action,(s)he is over the age of eighteen and that (s)he resides in Nassau, New York and that
on December 23, 2015, (s)he served the within NOTICE OF MOTION on:
Galvano & Xanthakis, P.C.
Attorney for Defendant(s)
Rodrick Murray
150 Broadway, Suite 1502
New York, NY 10038
(212) 349-5150
the address designated by said attorney(s) for that purpose by depositing a true copy of
same enclosed in a postpaid properly addressed wrapper, in a post office or official
depository under the exclusive care and custody of the United States Postal Service with
New York State.
CA
Mallory Aragona
Sworn to before me this
23rd day of December, 2015
JACQUELINE ELYSE VUOLO.
‘ublle, State of New York
No. 6
Qualitied
in Suttoik Gow
Ls (Commisston Expires October i20 |
et RY PUBLIC
Preview
(FILED: BRONX COUNTY CLERK 1272372015 11:23 AM INDEX NO. 23435/2015E NYSCEF DOC. NQ, 10 RECEIVED NYSCEF: 12/23/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX eaten nnn et nena nennameneanmnnnnn nme nen nn XK Index No.:23435/2015E VERENICE SOSA and CARLOS SOSA, NOTICE OF MOTION Plaintiffs, RESPECTFULLY REFER -against- TO THE HONORABLE JUSTICE ALEXANDER W. RODRICK MURRAY and SALEM TRUCK LEASING HUNTER, JR INC. LAS, Part 217 Defendants. waste een nnn nen nn eennanenmnnnnecnnnenne K SIRS/MADAMS: PLEASE TAKE NOTICE, that upon the annexed affirmation of Christopher F. Holbrook, dated December 21, 2015, and upon all the pleadings and prior proceedings had herein, the undersigned will move this Court at an IAS Part Room 217 of the Supreme Court of the State of New York, County of Bronx, at the Courthouse located at 851 Grand Concourse, Bronx, New York 10451 on the 25th day of January 2016, at 9:30 o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard for an Order pursuant to CPLR Section §3126 striking defendant(s)’s Answer and imposing sanctions for its failure to appear for Court-Ordered examinations before trial and failure to comply with an Order of this Court and for such other and further relief as this Court deems just and proper. Dated: Jericho, New York December 21, 2015 Yours, efc, Christopher F, Holbrook, Esq. SCHWARTZAPFEL LAWYERS P.C. Attorneys for Plaintiff 300 Jericho Quadrangle, Suite 180 Jericho, NY 11753 (516) 342-2200 To: Galvano & Xanthakis, P.C. Attorney for Defendant(s) Rodrick Murray 150 Broadway, Suite 1502 New York, NY 10038 (212) 349-5150 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF BRONX ee enem enema teen emeneonnnnnen K ‘VERENICE SOSA and CARLOS SOSA, Index No.:23435/2015E Plaintiffs, ATTORNEY’S AFFIRMATION -against- RODRICK MURRAY and SALEM TRUCK LEASING INC. Defendants. mane ne et ne mm eee X Christopher F. Holbrook, an attorney duly licensed to practice law before the Courts of the State of New York, pursuant to CPLR §2106 affirms as follows: 1 I am a Partner with the law firm of SCHWARTZAPFEL LAWYERS P.C., attorneys for the Plaintiffs in the above captioned action, and as such I am fully familiar with the facts and circumstances of this action. 2 This affirmation is submitted in support of the instant motion, pursuant to CPLR Section 3126, striking defendant(s)’s Answer and imposing costs and sanctions for its failure to appear for Court-Ordered examinations before trial and failure to comply with an Order of this Court. This action is for personal injuries sustained by Plaintiffs, VERENICE SOSA and CARLOS SOSA, and arises out of an automobile accident which occurred on December 29, 2015, on the Cross Bronx Expressway near the intersection with Marmion Avenue Bronx, New York. 3 This action was commenced against the defendants, RODRICK MURRAY and SALEM TRUCK LEASING INC., on June 24, 2015 by filing a Summons and Complaint and served RODRICK MURRAY and SALEM TRUCK LEASING with a true copy of same on July 21, 2015. Annexed hereto as Exhibit “A” is a copy of the Summons and Verified Complaint. 4 Issued was joined by the defendants, RODRICK MURRAY and SALEM TRUCK LEASING INC., by service of the Verified Answer on or about July 16, 2015. Annexed hereto as Exhibit “B” is a copy of the Verified Answer. 5 Plaintiffs served a Verified Bill of Particulars on August 7, 2014. Annexed hereto as Exhibit “C” is a copy of the Verified Bill of Particulars. 6 On September 1, 2015, a Preliminary Conference was held, which resulted in an Order directing the examination before trial of all parties to be held on October 14, 2015, 7 Prior to the aforesaid scheduled date for defendants Court-Ordered examination before trial, your affirmant’s office called to confirm defendants Court-Ordered examination before trial and was informed the defendants were not ready and would not be producing a witness on said day and requested an adjournment. Plaintiff, in good faith, agreed to reschedule defendants examination before trial until November 17, 2015. Once again prior to November 17, 2015, your affirmant’s office called defendants and was informed that they did not have sufficient coverage and the examination before trial would not move forward. 8 The Preliminary Conference Order of September 1, 2015 clearly outlined the discovery schedule of the action up to and including Plaintiff's time to file a Note of Issue, 9 Defendants have delayed this case for 3 months by failing to appear for its Noticed examination before trial. 10. Plaintiffs have been ready, willing and able to proceed with the deposition of the defendants for a 3 month period and have complied with all of the defendant’s discovery requests and the Order of this Court, 11. Plaintiffs now make this motion to strike defendants answer due to the willful and contumacious lack of compliance with an Order of this Court and defendants continuous delay of this action. 12. The Plaintiffs request that the Court strike defendants answer and permit plaintiff to immediately place this action on the trial calendar. 13. Striking the defendant’s answer under the circumstances herein, is a proper and necessary exercise of this Court’s discretion. In Mills v. Ducille, 567 N.Y.S.2d 79, 170 A.D.2d 657 (2™ Dept, 1991), where defendant(s) failed to appear for a Court-Ordered Examination Before Trial, the Appellate Division held that the trial court was properly within its discretion to strike the defendant(s)’s answer. See, Kibl v, Pfeiffer, 94 N,Y.2d 118, (1 999), (“if the credibility of court orders and integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance within disclosure directives, has specifically provided that a “court may make sure orders...as are just”), including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests both a timely response and one that evinces a good-faith effort to address the requests meaningfully.”). See also, Zletz v, Wetanson, 67 N.Y2d 711 (1986), (when a party in these circumstances disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the trial courts”), Additional citations omitted, WHEREFORE, plaintiff respectfully requests the within motion be granted in all respects and that this Court grant such other and further relief as it deems just and proper. Dated: Jericho, New York December 21, 2015 contumacious lack of compliance with an Order of this Court and defendants continuous delay of this action. 12, The Plaintiffs request that the Court strike defendants answer and permit plaintiff to immediately place this action on the trial calendar. 13. Striking the defendant’s answer under the circumstances herein, is a proper and necessary exercise of this Court’s discretion. In Mills v. Ducille, 567 N.Y.S.2d 79, 170 A.D.2d 657 (2™ Dept, 1991), where defendant(s) failed to appear for a Court-Ordered Examination Before Trial, the Appellate Division held that the trial court was properly within its discretion to strike the defendant(s)’s answer. See, Kihl v. Pfeiffer, 94 N.Y.2d 118, (1999), (“if the credibility of court orders and integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance within disclosure directives, has specifically provided that a “court may make sure orders...as are just”), including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests both a timely response and one that evinces a good-faith effort to address the requests meaningfillly.”), See also, Zletz _v. Wetanson, 67 N.Y2d 711 (1986), (“when a party in these circumstances disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the-complaint is within the broad discretion of the trial courts”), Additional citations omitted. WHEREFORE, plaintiff respectfully requests the within motion be granted in all respects and that this Court grant such other and further relief as it deems just and proper. Dated: Jericho, New York December 21, 2015 Christopher F. Holbrook, Esq. SUPREME COURT OF THE STATE OF NEW YORK. Index No,:23435/2015E COUNTY OF BRONX meet en eee -X AFFIRMATION OF ‘VERENICE SOSA and CARLOS SOSA, GOOD FAITH Plaintiffs, -against- RODRICK MURRAY and SALEM TRUCK LEASING INC. Defendants. nee neem tenn ene ttn ener nnn neiennen amen nn, Christopher F. Hotbrook, an attomey admitted to practice before the Courts of this State affirms the truth of the following under the penalty of perjury: 1 Tam a Partner at the law firm of SCHWARTZAPFEL LAWYERS P.C., attorneys for the Plaintiffs, 2 Defendants deposition was scheduled by an Order of this Court and Plaintiff was teady, willing and able to proceed, but defendant(s) refused. 3 Plaintiffs have made several attempts, in good faith, to reschedule defendant(s)’s examination before trial but defendant(s) have continually refused to appear and continually request further adjournments. 4 Thus, all good faith attempts to avoid judicial intervention have been made by your deponent. DATED: Jericho, New York December 21, 2015 Christopher F, Holbrook, Esq. AFFIDAVIT OF SERVICE STATE OF NEW YORK } }sst COUNTY OF NASSAU } Our File # 4023125 Mallory Aragona, being duly sworn deposes and says that (s)he is not a party to this action,(s)he is over the age of eighteen and that (s)he resides in Nassau, New York and that on December 23, 2015, (s)he served the within NOTICE OF MOTION on: Galvano & Xanthakis, P.C. Attorney for Defendant(s) Rodrick Murray 150 Broadway, Suite 1502 New York, NY 10038 (212) 349-5150 the address designated by said attorney(s) for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service with New York State. CA Mallory Aragona Sworn to before me this 23rd day of December, 2015 JACQUELINE ELYSE VUOLO. ‘ublle, State of New York No. 6 Qualitied in Suttoik Gow Ls (Commisston Expires October i20 | et RY PUBLIC