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NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
KALLIOPI E. HALKIAS,
Index No.: 507651/2015
Plai ntiff,
AFFIRMATION IN
SUPPORT
THE CITY OF NEW YORK,
Defendant.
-X
Anthony Mangona, an attorney at law, duly admitted to practice law before the
Courts of the State of New York, and associated with GEORGAKLIS & MALLAS PLLC,
attorneys for the Plaintiff herein, affirms the following to be true under the penalties of
perjury.
l. Your affirmant, fully familiar with the facts and circumstances surrounding the
within issues, submits this affirmation in support for an Order:
a) pursuant to CPLR )5015, vacating this Honorable Court's Order dated
October 30, 2019;
Plaintiff"
b) pursuant to CPLR.( 2221 granting renewal and re-argument of s
motion dated September 20, 2019 for an Order pursuant to CPLR ( 3126
striking the defendants Answer for their failure to comply with this
Honorable Court's Orders; or in the alternative, for an Order precluding the
defendant from offering any proof at trial in the form of testimony or
otherwise, regarding the issue of liability; or in the alternative, an Order
pursuant to CPLR(3106(d) compelling the defendant to produce a witness
searches"
with knowledge of "bridge for deposition and pursuant to
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CPLR§3124 compelling the defendant produce records of a "highway
search;"
and/or
c) in the alternative, striking the language, "The City does not maintain or own
bridge;"
this from the October 30, 2019 Order;
d) together with such other, further, and different relief as this Honorable Court
may deem just and proper.
2. As will be shown in detail below, it is respectfully submitted that this Honorable
bridge;"
Court improperly allowed the language, "The City does not maintain or own this
into the October 30, 2019 Order and the same should be stricken from said Order. The issue
of ownership and maintenance, both material issues herein, were not before this Court on
October 30, 2019. The Court has now made itthe law of the case the defendant did not own
or maintain the area where Plaintiff tripped and fell. These issues should be adjudicated
only
in a dispositive motion, which was never made, or at trial. The Plaintiff has not had an
opportunity to be heard on the issues of ownership and maintenance of the subject location.
RELEVANT FACTS
3. The within action is one for serious and severe permañent personal injuries suffered
by the Plaintiff as the result of the defendant's alleged negligence in causing her to fallto the
ground as a result of, inter alia, a defective, unsafe, hazardous and/or dangerous condition
79th 7th
on a sidewalk located on Street between its intersections with Avenue and Fort
Hamilton Parkway.
PROCEDURAL HISTORY
4. As a result of the defendant's alleged negligence, the Plaintiff commenced the within
action by the purchase of index number 507651/2015 and filing of the annexed Summons and
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Verified Complaint with the Kings County Clerk on or about June 22, 2015. Issue was joined
by the service of an Answer on or about July 30, 2015. (A copy of these pleadings are
annexed hereto as Exhibit A.) On or about March 17, 2017, Plaintiff filed a Motion to, inter
alia, amend the Summons and Complaint and Bill of Particulars in this action with said
Summons and Complaint to be served upon the defendant nunc pro tune. (A of this
copy
Motion and the amended pleadings are annexed hereto as Exhibit On or about
B.) May 19,
2017 an Order was issued by this Honorable Court granting Plaintiff's March 17, 2017
motion. (A copy of said Order is annexed hereto as Exhibit C.) To date, the defendant has
failed to Answer the Amended Summons and Complaint.
5. On or about June 20, 2016, the parties appeared for a Preliminary Conference
wherein an Order was issued that, inter alia, ordered the defendant to exchange within 90
days after the date of the order, the results of a DOT (Department of Transportation)
bridges search for a pedestrian walkway at the subject location for 2 years prior to the date
of incident. (A copy of this Order is annexed hereto as Exhibit D.) On or about January 4,
2017, the defendant served a response upon the Plaintiff which alleged, inter alia, that no
records were generated after a DOT Bridges/Pedestrian Walkway search for the subject
location. (A copy of this response is annexed hereto as Exhibit E.) On or about May 9,
2018, the defendant provide a response to Plaintiff's July 28, 2016 demands for discovery
and inspection wherein they refused to produce a Notice of Claim that was marked found
for the subject location during their search alleged to have been conducted on September
18, 2015 by New York City department of transportation employee, GRACE
AITCHESON. (A copy of the memorandum from said employee is annexed hereto as
Exhibit F.)
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6. On or about June 14, 2019, as the defendant refused and continued to fail to produce
documents responsive to this Court's Orders, the Plaintiff filed a motion seeking to compel
the production of bridge search records maintained by the New York City Department of
transportation. On July 24, 2019, the parties appeared before this Honorable Court wherein
witness"
an Order was issued that ordered, inter alia, (1) the deposition of a "Bridge on
September 16, 2019; (2) further ordered defendant to conduct a highway/arterial search at
the subject location for two years prior to the subject accident; and (3) extended the time to
file Note of Issue to December 6, 2019. (A copy of said Order is annexed hereto as Exhibit
G.)
7. The defendant did in fact produce a witness on July 24, 2019, however, the
defendant failed to produce any records prior to said deposition. The defendant did produce
report"
a record of a "general bridge inventory at the aforesaid deposition, however, the
defendant's witness had no knowledge of how a search was done for such document and in
his eleven (11) years testifying to record searches for the New York City Law Department
had never came across a record of this nature. (see defendant witness's, Omar Codling's
deposition transcript annexed hereto as Exhibit H, specifically page X, lines x-x)
8. As the defendant had once again failed to produce records or a witness with
knowledge for deposition, Plaintiff was forced to seek judicial intervention and brought the
underlying Motion to Strike on or about September 23, 2019. (A copy of this motion is
annexed hereto as Exhibit L) The parties appeared before this Honorable Court on October
30, 2019, wherein the Order subject to this within motion was issued. (A copy of the
October 30, 2019 Order is annexed herto as Exhibit J.)
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9. It is respectfully submitted that the Order issued on October 30, 2019,
misapprehended the facts, contains errors, or is otherwise defective and must be vacated.
Inasmuch, the within motion is ripe for this Honorable Court's review.
APPLICABL_E STANDARD FOR A MOTION FOR LEAVE TO REARGUE
10. CPLR § 2221(d) specifies that a motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion, but shall not
include any matters of fact not offered on the prior motion; and
3. shall be made within thirty days after service of a copy of the order
determining the prior motion and written notice of itsentry.
11. On a motion to reargue, the movant must show that the Court "allegedly
misapprehended" law"
overlooked or certain "matters of fact or considered on the prior
motion. CPLR § 2221(d)(2) Every court retains continuing jurisdiction to reconsider its
action"
prior interlocutory orders during the pendency of the (Liss v. Trans Auto Sg, 68
N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986]; see also Kleinser v. Astarita, 61
A.D.3d 597, 598, 878 N.Y.S.2d 28 [1st Dept. 2009] ). Profita v Diaz, 100 AD3d 481 [1st
Dept 2012].
12. The within Motion has been specifically identified as a motion to renew and
reargue pursuant to CPLR § 2221.
13. Plaintiff has served the within Motion twenty-nine (29) days after a service of a
copy of the order determining the prior motion and written notice of its entry, as such the
within Motion is timely. (A copy of said Order with Notice of Entry is annexed hereto as
Plaintiff's Exhibit K)
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Matters of fact or law ä|legedly overlooked or misapprehended by the Court in
determining the prior motion
14. It is respectfully submitted that this Honorable Court erred and/or overlooked or
misapprehended certain matters of fact or law in its Order dated October 30, 2019.
Pursuant to CPLR §5019(a), a trial Court may not, sua sponte, vacate its own Order
15. First, the original Order dated July 24, 2019, that is the subject of the underlying
motion herein was issued by the Honorable Katherine A. Levine.
16. Second, no motion or other prayer for relief was made by the defendant to vacate
the aforesaid July 24, 2019 Order.
17. Thus, it is respectfully submitted that this Honorable Court erred when reversing
the Order of another judge, sua sponte.
18. In Adams v. Fellingham, 52 A.D.3d 443, 444-45, 859 N.Y.S.2d 484, 486 (2008) the
Court held that:
Pursuant to CPLR 5019(a), a trial court has the discretion
to correct an order or judgment which contains a
mistake, defect, or irregularity not affecting a substantial
right of a party, or is inconsistent with the decision upon
which itis based (citations omitted). However, a trial court
has no revisory or appellate jurisdiction, sua sponte,
to vacate its own order or judgmêñt (citations omitted).
19. Here, the issue of ownership and maintenance of the subject bridge is paramount in
the litigation of this matter and clearly and substantially affects the right of the Plaintiff un
prosecuting her case.
20. Additionally, the Court may not revise or vacate a prior order or judgement of the
Court absent a mistake, defect, or irregularity not affecting a substantial right of a party.
or when it isinconsistent with the decision upon which itis based.
21. In this case, there was no mistake, defect, or irregularity in Judge Levine's July 24,
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2019 Order, nor was it inconsistent with the decision upon which it was based. However,
the October 30, 2019 Order essentially vacates the July 24, 2019 Order by denying
Plaintiff the prior relief which was Court ordered; specifically, Plaintiff's entitlement to
depose a witness with knowledge of the discovery that was produced.
22. Therefore, it is respectfully submitted that this Honorable Court erred when
issuing its October 30, 2019 Orders as it had no authority to sua sponte vacate the July
24, 2019 Order of the Court.
Def ndant's counsel made misrepresert:&ns to this Honorable Court
23. It is also respectfully submitted that this Honorable Court was misled and/or
misapprehended oral arguments made on October 30, 2019.
24. Specifically, those arguments made by the City as to the disputes raised in the
motion and the misleading arguments regarding Plaintiff counsel's oral statements
previously made to the judicial referee in this Court.
25. The underlying motion was to Strike the defendant's Answer for their willful and
contumacious behavior in delaying the prosecution of this action by failing and refusing
to comply with this Honorable Court's Orders.
26. More specifically, the defendant, in its opposition to Plaintiff's Motion to Strike,
admitted it was not in compliance with prior Court Orders and attempted to cure such
non-compliance by partially responding to the sought-after discovery. (see defendant's
Affirmation in Opposition to Plaintiff's Motion to Strike annexed hereto as Exhibit L.)
27. Now, nearly three (3) years after the demand for production of Court-ordered
discovery, the Plaintiff sought to depose a witness with knowledge sufficient to interpret
the newly produced evidence.
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28. At the October 30, 2019 Court appearance, in light of the newly produced
discovery, the City agreed to produce another witness for deposition on January 7, 2020.
However, the City represented that the witness to be produced would once again only be
a record searcher that happened to be doing record search depositions that day and
"highway/arterial"
refused to produce a witness with knowledge of the newly produced
"bridge"
search records and previously produced, search records.
29. As the parties could not reach an agreement, they went before the judicial referee
who recommended they enter into an Order that required the defendant to produce a
witness with knowledge of bridge searches, specifically, knowledge of Exhibit 6,
report"
identified as a "general bridge inventory at the September 16, 2019 deposition of
record searcher, OMAR CODLING; and for defendant to produce a witness on January
7, 2020 to interpret the highway/arterial records produced in response to the underlying
motion.
30. After Plaintiff's counsel wrote a proposed Order in compliance with the judicial
referee's instructions, defense cousnel would not agree to its submission and demanded
to see the Honorable Lizette Colon to resolve the matter.
31. Upon conferencing the case with Judge Colon, defense counsel made misleading
assertions to the Court regarding testimony given at the last deposition of a defendant
record searcher witness on September 23, 2019. A deposition that defense counsel neither
attended nor had a transcript thereof prior to making said statements. The misleading
assertions were that Plaintiff's counsel misrepresented facts to the judicial referee in
order to convince him to agree to the language in the proposed Order.
32. In spite of defense counsel's misleading assertions and in a good faith effort to
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resolve the discovery dispute, your affirmant, whom had attended the September 23,
2019 deposition, agreed to move forward with the January 7, 2020 deposition of a
defendant witness and make a new application to the Court if additional issues were to
arise regarding outstanding discovery.
33. Unsatisfied with this proposition, defense counsel demanded that additional
language be inserted into the Order denying Plaintiff s request for the defendant to
produce a witness with knowledge of bridge searches and their records.
34. Defense counsel proceeded to write the language "The City does not maintain or
bridge"
own this into the Order and presented the same to Judge Colon for her signature
over Plaintiff's objection.
35. It is important to reiterate that the issue of ownership and maintenance of the
bridge was not the basis for the underlying motion, this was simply a discovery dispute
over the defendant's calculated and repeated failures to comply with prior Court Orders.
Inasmuch, it was improper to allow the ownership and maintenance language into the
Order as that issue had yet to be fully adjudicated and amounts to a sua sponte dismissal
of Plaintiff s action.
36. The issues of ownership and maintenance of the subject bridge are material issues
of this case and were not properly before this Court on October 30, 2019. Those issues may
only be adjudicated in a dispositive motion, which was never made, or at trial.Further, the
Plaintiff has not had an opportunity to be heard on the issues of ownership and maintenance
of the subject location. As such, it is respectfully submitted that this Court's sua sponte
ruling on October 30, 2019 should be stricken.
37. Therefore, it is respectfully submitted that this Honorable Court erred and/or
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overlooked or misapprehended certain matters of fact and law when determining the prior
motion and as such Plaintiff's motion to reargue must be granted, the October 30, 2019
Order must be vacated, and a new Order be issued.
APPLICABLE STANDARD FOR A MOTION FOR LEAVE TO RENEW
38. CPLR § 2221(e) specifies that a motion to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that would change
the prior determination or shall demonstrate that there has been a change in the law
that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the
prior motion.
39. Here, the within Motion has been specifically identified as a Motion to Renew and
has been served twenty-nine (29) days after a service of a copy of the order detennining
the prior motion and written notice of itsentry. As such, the within Motion is timely. (see
Exhibit K)
40. Defendant has presented new evidence in this motion by way of the deposition
transcript of defendant witness, OMAR CODLING. (see Exhibit H)
41. The deposition transcript was not available to Plaintiff upon the filing of its motion
as it took place only a few days prior to Plaintiff's application to this Honorable Court. In
fact, the deposition transcript was received and processed by Plaintiff's counsel on the retum
date of the underlying motion and promptly emailed to defendant's counsel, Ms. Sapson,
upon receipt.
42. The aforesaid deposition transcript is further evidence of defendant's disregard for
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this Honorable Court's Orders. Despite being ordered to produce a witness with knowledge„
the defendant willfully and deliberately produced a record searcher without the specific
knowledge being sought.
43. The defendant's conduct in continuously violating Court Orders; failing, refiising,
and withholding discovery within their exclusive possession and control; and producing
witnesses without knowledge of the documents they are being deposed about amounts to
willful and contumacious behavior which should result in defendant's Answer heing
stricken.
44. Therefore, as new facts have been presented that, if considered, would alter the prior
determination and Order of this Honorable Court, Plaintiffs motion to renew must be
granted and this Honorable Court's Order must be changed to reflect the new evidence
presented.
APPLICABLE STANDARD FOR A MOTION FOR RELIEF
FROM JUDGMENT OR ORDER
45. CPLR ) 5015 specifies that in a motion for Relief from jud~.-ice.«or order:
The court which rendered a judgment or order may relieve a party from it
upon such terms as may be just, on motion of any interested person with such
notice as the court may direct, upon the ground of:
1. excusable defa Jt, if such motion is made within one year aAcr
service of a copy of the judgment or order with written notice
of its entry upon the moving party, or, if the moving party has
entered the judgment or order, within one year aAer such entry;
or
2. newly-discovered evidence which, if introduced at the trial,
would probably have produced a different result and which
could not have been discovered in time to move for a new tiial
under section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse
party; or
4. lack of jurisdiction to render the judgment or order; or
5. reversal, modification or vacatur of a prior judgment or order
upon which itis based.
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46. Here, the within Motion has been filed the same day as service of a of the
copy
Order detennining the prior Motion and written notice of its entry. As such, the within
Motion is timely.
53. Additionally, newly presented facts and arguments that were not introduced at the
October 30, 2019 motion appearance have been presented.
54. Specifically, the defendant failed to pray for the relief that was granted. The
underlying motion was made by the Plaintiff to address the defendant's willful and
contumacious behavior in continuously disregarding and refusing to comply with Court
Orders; not to determine the ownership or maintenance of the bridge in question.
55. Furthermore, the issues of ownership and maintenance of the subject bridge have not
been fully adjudicated, thus any order determining these issues is premature and/or
improper.
56. In Merriwether v. Osborne, 66 A.D.3d 851, 852, 886 N.Y.S.2d 606, 607 (2009), the
2nd
Department held that the trial court exceeded its power when it,sua sponte, vacated a
prior order and re-decided summary judgment issues. In that action, the Plaintiff had prayed
for such relief, asking the Court to re-consider the previously decided summary judgment
motions.
57. Here, in our case, the defendant's have been granted relief that they neither prayed
for nor were entitled to as a matter of law. It is respectfully submitted that this Honorable
Court improperly, sua sponte, decided the issues of ownership and maintenance of the
bridge and sidewalk that is the subject of this litigation.
58. It iswell settled that "[a] court's power to dismiss a complaint, sua sponte, is to be
dismissal"
used sparingly and only when extraordinary circumstances exist to warrant
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(see Henning v. 17 Murray Rest Corp., 137 A.D.3d 1216, 1217, 28 N.Y.S.3d 421, 422
(N.Y. App. Div. 2016); U.S. Bank. N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921
N.Y.S.2d 320; see also Nationstar Mtge., LLC v. Wong, 132 A.D.3d 825, 18 N.Y.S.3d
669; Onewest Bank, FSB v. Prince, 130 A.D.3d 700, 701, 14 N.Y.S.3d 66; Rienzi v.
Rienzi, 23 A.D.3d 450, 808 N.Y.S.2d 116). The exercise of such power in this case was
improper because no extraordinary circumstances were present to warrant
dismissal (see U.S. Bank N.A. v. Polanco, 126 A.D.3d 883, 7 N.Y.S.3d 156; Oak Hollow
Nursing Ctr. v. Stumbo, 117 A.D.3d 698, 985 N.Y.S.2d 269; Dossous v. Corporate
Owners Bayridge Nissan, Inc., 101 A.D.3d 937, 956 N.Y.S.2d 174; Bank of Am., N.A. v.
Bah, 95 A.D.3d 1150, 945 N.Y.S.2d 704; Atkins-Payne v. Branch, 95 A.D.3d 912, 944
N.Y.S.2d 269).
59. Here, no extraordinary circumstances existed that would allow this Honorable
Court to dismiss Plaintiff's action. Establishing ownership and maintenance of the
bridge's sidewalk subject to this litigation would have been more appropriate for a
summary judgment motion. By inserting into its Order that the defendant did not own or
maintain the subject bridge, it essentially dismissed portions of Plaintiff's Complaint.
60. Further, the defendant was not the movant on the underlying motion nor made any
cross-motion for summary judgment herein. The Plaintiff was not afforded the
opportunity to dispute the defendant's oral allegations regarding ownership and
maintenance of the subject bridge. Additionally, the interest of justice would not be
served by the dismissal of Plaintiff's action
61. Therefore, as Plaintiff has moved timely, no extraordinary circumstances existed to
warrant the partial dismissal of Plaintiff's action, and as newly presented evidence and
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arguments show that this Honorable Court's Order dated October 30, 2019 was based upon
misleading and/or inaccurate information, the Order must be vacated.
WHEREFORE, it isrespectfully requested that an Order be issued: (1) pursuant
to CPLR.§ 2221 granting renewal and re-argument of Plaintiff's motion dated September
20, 2019 and filed with this Honorable Court on or about September 23, 2019 for an Order
striking the defendant's Answer for their failure to ceiiiply with this Honorable Court's
Orders; or in the alternative, for an Order precluding the defendant from offering any proof
at trial in the form of testimony or otherwise, regarding the issue of liability; or at the very
least, an Order pursuant to CPLR§3106(d) compelling the defendant to produce a witness
with knowledge for deposition; pursuant to CPLR §5015, (2) vacating this Honorable
Court's Order dated October 30, 2019; and/or in the altemative, striking the language, "The
bridge;"
City does not maintain or own this from the October 30, 2019 Order;
together with such other, further, and different relief as this Honorable Court may
deem just and proper.
Dated: BROOKLYN, NEW YORK
November 29, 2019
Yours, etc.
thony Mangona, Esq.
Preview
FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X KALLIOPI E. HALKIAS, Index No.: 507651/2015 Plai ntiff, AFFIRMATION IN SUPPORT THE CITY OF NEW YORK, Defendant. -X Anthony Mangona, an attorney at law, duly admitted to practice law before the Courts of the State of New York, and associated with GEORGAKLIS & MALLAS PLLC, attorneys for the Plaintiff herein, affirms the following to be true under the penalties of perjury. l. Your affirmant, fully familiar with the facts and circumstances surrounding the within issues, submits this affirmation in support for an Order: a) pursuant to CPLR )5015, vacating this Honorable Court's Order dated October 30, 2019; Plaintiff" b) pursuant to CPLR.( 2221 granting renewal and re-argument of s motion dated September 20, 2019 for an Order pursuant to CPLR ( 3126 striking the defendants Answer for their failure to comply with this Honorable Court's Orders; or in the alternative, for an Order precluding the defendant from offering any proof at trial in the form of testimony or otherwise, regarding the issue of liability; or in the alternative, an Order pursuant to CPLR(3106(d) compelling the defendant to produce a witness searches" with knowledge of "bridge for deposition and pursuant to 1 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 CPLR§3124 compelling the defendant produce records of a "highway search;" and/or c) in the alternative, striking the language, "The City does not maintain or own bridge;" this from the October 30, 2019 Order; d) together with such other, further, and different relief as this Honorable Court may deem just and proper. 2. As will be shown in detail below, it is respectfully submitted that this Honorable bridge;" Court improperly allowed the language, "The City does not maintain or own this into the October 30, 2019 Order and the same should be stricken from said Order. The issue of ownership and maintenance, both material issues herein, were not before this Court on October 30, 2019. The Court has now made itthe law of the case the defendant did not own or maintain the area where Plaintiff tripped and fell. These issues should be adjudicated only in a dispositive motion, which was never made, or at trial. The Plaintiff has not had an opportunity to be heard on the issues of ownership and maintenance of the subject location. RELEVANT FACTS 3. The within action is one for serious and severe permañent personal injuries suffered by the Plaintiff as the result of the defendant's alleged negligence in causing her to fallto the ground as a result of, inter alia, a defective, unsafe, hazardous and/or dangerous condition 79th 7th on a sidewalk located on Street between its intersections with Avenue and Fort Hamilton Parkway. PROCEDURAL HISTORY 4. As a result of the defendant's alleged negligence, the Plaintiff commenced the within action by the purchase of index number 507651/2015 and filing of the annexed Summons and 2 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 Verified Complaint with the Kings County Clerk on or about June 22, 2015. Issue was joined by the service of an Answer on or about July 30, 2015. (A copy of these pleadings are annexed hereto as Exhibit A.) On or about March 17, 2017, Plaintiff filed a Motion to, inter alia, amend the Summons and Complaint and Bill of Particulars in this action with said Summons and Complaint to be served upon the defendant nunc pro tune. (A of this copy Motion and the amended pleadings are annexed hereto as Exhibit On or about B.) May 19, 2017 an Order was issued by this Honorable Court granting Plaintiff's March 17, 2017 motion. (A copy of said Order is annexed hereto as Exhibit C.) To date, the defendant has failed to Answer the Amended Summons and Complaint. 5. On or about June 20, 2016, the parties appeared for a Preliminary Conference wherein an Order was issued that, inter alia, ordered the defendant to exchange within 90 days after the date of the order, the results of a DOT (Department of Transportation) bridges search for a pedestrian walkway at the subject location for 2 years prior to the date of incident. (A copy of this Order is annexed hereto as Exhibit D.) On or about January 4, 2017, the defendant served a response upon the Plaintiff which alleged, inter alia, that no records were generated after a DOT Bridges/Pedestrian Walkway search for the subject location. (A copy of this response is annexed hereto as Exhibit E.) On or about May 9, 2018, the defendant provide a response to Plaintiff's July 28, 2016 demands for discovery and inspection wherein they refused to produce a Notice of Claim that was marked found for the subject location during their search alleged to have been conducted on September 18, 2015 by New York City department of transportation employee, GRACE AITCHESON. (A copy of the memorandum from said employee is annexed hereto as Exhibit F.) 3 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 6. On or about June 14, 2019, as the defendant refused and continued to fail to produce documents responsive to this Court's Orders, the Plaintiff filed a motion seeking to compel the production of bridge search records maintained by the New York City Department of transportation. On July 24, 2019, the parties appeared before this Honorable Court wherein witness" an Order was issued that ordered, inter alia, (1) the deposition of a "Bridge on September 16, 2019; (2) further ordered defendant to conduct a highway/arterial search at the subject location for two years prior to the subject accident; and (3) extended the time to file Note of Issue to December 6, 2019. (A copy of said Order is annexed hereto as Exhibit G.) 7. The defendant did in fact produce a witness on July 24, 2019, however, the defendant failed to produce any records prior to said deposition. The defendant did produce report" a record of a "general bridge inventory at the aforesaid deposition, however, the defendant's witness had no knowledge of how a search was done for such document and in his eleven (11) years testifying to record searches for the New York City Law Department had never came across a record of this nature. (see defendant witness's, Omar Codling's deposition transcript annexed hereto as Exhibit H, specifically page X, lines x-x) 8. As the defendant had once again failed to produce records or a witness with knowledge for deposition, Plaintiff was forced to seek judicial intervention and brought the underlying Motion to Strike on or about September 23, 2019. (A copy of this motion is annexed hereto as Exhibit L) The parties appeared before this Honorable Court on October 30, 2019, wherein the Order subject to this within motion was issued. (A copy of the October 30, 2019 Order is annexed herto as Exhibit J.) 4 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 9. It is respectfully submitted that the Order issued on October 30, 2019, misapprehended the facts, contains errors, or is otherwise defective and must be vacated. Inasmuch, the within motion is ripe for this Honorable Court's review. APPLICABL_E STANDARD FOR A MOTION FOR LEAVE TO REARGUE 10. CPLR § 2221(d) specifies that a motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of itsentry. 11. On a motion to reargue, the movant must show that the Court "allegedly misapprehended" law" overlooked or certain "matters of fact or considered on the prior motion. CPLR § 2221(d)(2) Every court retains continuing jurisdiction to reconsider its action" prior interlocutory orders during the pendency of the (Liss v. Trans Auto Sg, 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986]; see also Kleinser v. Astarita, 61 A.D.3d 597, 598, 878 N.Y.S.2d 28 [1st Dept. 2009] ). Profita v Diaz, 100 AD3d 481 [1st Dept 2012]. 12. The within Motion has been specifically identified as a motion to renew and reargue pursuant to CPLR § 2221. 13. Plaintiff has served the within Motion twenty-nine (29) days after a service of a copy of the order determining the prior motion and written notice of its entry, as such the within Motion is timely. (A copy of said Order with Notice of Entry is annexed hereto as Plaintiff's Exhibit K) 5 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 Matters of fact or law ä|legedly overlooked or misapprehended by the Court in determining the prior motion 14. It is respectfully submitted that this Honorable Court erred and/or overlooked or misapprehended certain matters of fact or law in its Order dated October 30, 2019. Pursuant to CPLR §5019(a), a trial Court may not, sua sponte, vacate its own Order 15. First, the original Order dated July 24, 2019, that is the subject of the underlying motion herein was issued by the Honorable Katherine A. Levine. 16. Second, no motion or other prayer for relief was made by the defendant to vacate the aforesaid July 24, 2019 Order. 17. Thus, it is respectfully submitted that this Honorable Court erred when reversing the Order of another judge, sua sponte. 18. In Adams v. Fellingham, 52 A.D.3d 443, 444-45, 859 N.Y.S.2d 484, 486 (2008) the Court held that: Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which itis based (citations omitted). However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgmêñt (citations omitted). 19. Here, the issue of ownership and maintenance of the subject bridge is paramount in the litigation of this matter and clearly and substantially affects the right of the Plaintiff un prosecuting her case. 20. Additionally, the Court may not revise or vacate a prior order or judgement of the Court absent a mistake, defect, or irregularity not affecting a substantial right of a party. or when it isinconsistent with the decision upon which itis based. 21. In this case, there was no mistake, defect, or irregularity in Judge Levine's July 24, 6 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 2019 Order, nor was it inconsistent with the decision upon which it was based. However, the October 30, 2019 Order essentially vacates the July 24, 2019 Order by denying Plaintiff the prior relief which was Court ordered; specifically, Plaintiff's entitlement to depose a witness with knowledge of the discovery that was produced. 22. Therefore, it is respectfully submitted that this Honorable Court erred when issuing its October 30, 2019 Orders as it had no authority to sua sponte vacate the July 24, 2019 Order of the Court. Def ndant's counsel made misrepresert:&ns to this Honorable Court 23. It is also respectfully submitted that this Honorable Court was misled and/or misapprehended oral arguments made on October 30, 2019. 24. Specifically, those arguments made by the City as to the disputes raised in the motion and the misleading arguments regarding Plaintiff counsel's oral statements previously made to the judicial referee in this Court. 25. The underlying motion was to Strike the defendant's Answer for their willful and contumacious behavior in delaying the prosecution of this action by failing and refusing to comply with this Honorable Court's Orders. 26. More specifically, the defendant, in its opposition to Plaintiff's Motion to Strike, admitted it was not in compliance with prior Court Orders and attempted to cure such non-compliance by partially responding to the sought-after discovery. (see defendant's Affirmation in Opposition to Plaintiff's Motion to Strike annexed hereto as Exhibit L.) 27. Now, nearly three (3) years after the demand for production of Court-ordered discovery, the Plaintiff sought to depose a witness with knowledge sufficient to interpret the newly produced evidence. 7 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 28. At the October 30, 2019 Court appearance, in light of the newly produced discovery, the City agreed to produce another witness for deposition on January 7, 2020. However, the City represented that the witness to be produced would once again only be a record searcher that happened to be doing record search depositions that day and "highway/arterial" refused to produce a witness with knowledge of the newly produced "bridge" search records and previously produced, search records. 29. As the parties could not reach an agreement, they went before the judicial referee who recommended they enter into an Order that required the defendant to produce a witness with knowledge of bridge searches, specifically, knowledge of Exhibit 6, report" identified as a "general bridge inventory at the September 16, 2019 deposition of record searcher, OMAR CODLING; and for defendant to produce a witness on January 7, 2020 to interpret the highway/arterial records produced in response to the underlying motion. 30. After Plaintiff's counsel wrote a proposed Order in compliance with the judicial referee's instructions, defense cousnel would not agree to its submission and demanded to see the Honorable Lizette Colon to resolve the matter. 31. Upon conferencing the case with Judge Colon, defense counsel made misleading assertions to the Court regarding testimony given at the last deposition of a defendant record searcher witness on September 23, 2019. A deposition that defense counsel neither attended nor had a transcript thereof prior to making said statements. The misleading assertions were that Plaintiff's counsel misrepresented facts to the judicial referee in order to convince him to agree to the language in the proposed Order. 32. In spite of defense counsel's misleading assertions and in a good faith effort to 8 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 resolve the discovery dispute, your affirmant, whom had attended the September 23, 2019 deposition, agreed to move forward with the January 7, 2020 deposition of a defendant witness and make a new application to the Court if additional issues were to arise regarding outstanding discovery. 33. Unsatisfied with this proposition, defense counsel demanded that additional language be inserted into the Order denying Plaintiff s request for the defendant to produce a witness with knowledge of bridge searches and their records. 34. Defense counsel proceeded to write the language "The City does not maintain or bridge" own this into the Order and presented the same to Judge Colon for her signature over Plaintiff's objection. 35. It is important to reiterate that the issue of ownership and maintenance of the bridge was not the basis for the underlying motion, this was simply a discovery dispute over the defendant's calculated and repeated failures to comply with prior Court Orders. Inasmuch, it was improper to allow the ownership and maintenance language into the Order as that issue had yet to be fully adjudicated and amounts to a sua sponte dismissal of Plaintiff s action. 36. The issues of ownership and maintenance of the subject bridge are material issues of this case and were not properly before this Court on October 30, 2019. Those issues may only be adjudicated in a dispositive motion, which was never made, or at trial.Further, the Plaintiff has not had an opportunity to be heard on the issues of ownership and maintenance of the subject location. As such, it is respectfully submitted that this Court's sua sponte ruling on October 30, 2019 should be stricken. 37. Therefore, it is respectfully submitted that this Honorable Court erred and/or 9 of 15 II INDEX NO. 507651/2015 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 overlooked or misapprehended certain matters of fact and law when determining the prior motion and as such Plaintiff's motion to reargue must be granted, the October 30, 2019 Order must be vacated, and a new Order be issued. APPLICABLE STANDARD FOR A MOTION FOR LEAVE TO RENEW 38. CPLR § 2221(e) specifies that a motion to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion. 39. Here, the within Motion has been specifically identified as a Motion to Renew and has been served twenty-nine (29) days after a service of a copy of the order detennining the prior motion and written notice of itsentry. As such, the within Motion is timely. (see Exhibit K) 40. Defendant has presented new evidence in this motion by way of the deposition transcript of defendant witness, OMAR CODLING. (see Exhibit H) 41. The deposition transcript was not available to Plaintiff upon the filing of its motion as it took place only a few days prior to Plaintiff's application to this Honorable Court. In fact, the deposition transcript was received and processed by Plaintiff's counsel on the retum date of the underlying motion and promptly emailed to defendant's counsel, Ms. Sapson, upon receipt. 42. The aforesaid deposition transcript is further evidence of defendant's disregard for 10 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 this Honorable Court's Orders. Despite being ordered to produce a witness with knowledge„ the defendant willfully and deliberately produced a record searcher without the specific knowledge being sought. 43. The defendant's conduct in continuously violating Court Orders; failing, refiising, and withholding discovery within their exclusive possession and control; and producing witnesses without knowledge of the documents they are being deposed about amounts to willful and contumacious behavior which should result in defendant's Answer heing stricken. 44. Therefore, as new facts have been presented that, if considered, would alter the prior determination and Order of this Honorable Court, Plaintiffs motion to renew must be granted and this Honorable Court's Order must be changed to reflect the new evidence presented. APPLICABLE STANDARD FOR A MOTION FOR RELIEF FROM JUDGMENT OR ORDER 45. CPLR ) 5015 specifies that in a motion for Relief from jud~.-ice.«or order: The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable defa Jt, if such motion is made within one year aAcr service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year aAer such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new tiial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which itis based. 11 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 46. Here, the within Motion has been filed the same day as service of a of the copy Order detennining the prior Motion and written notice of its entry. As such, the within Motion is timely. 53. Additionally, newly presented facts and arguments that were not introduced at the October 30, 2019 motion appearance have been presented. 54. Specifically, the defendant failed to pray for the relief that was granted. The underlying motion was made by the Plaintiff to address the defendant's willful and contumacious behavior in continuously disregarding and refusing to comply with Court Orders; not to determine the ownership or maintenance of the bridge in question. 55. Furthermore, the issues of ownership and maintenance of the subject bridge have not been fully adjudicated, thus any order determining these issues is premature and/or improper. 56. In Merriwether v. Osborne, 66 A.D.3d 851, 852, 886 N.Y.S.2d 606, 607 (2009), the 2nd Department held that the trial court exceeded its power when it,sua sponte, vacated a prior order and re-decided summary judgment issues. In that action, the Plaintiff had prayed for such relief, asking the Court to re-consider the previously decided summary judgment motions. 57. Here, in our case, the defendant's have been granted relief that they neither prayed for nor were entitled to as a matter of law. It is respectfully submitted that this Honorable Court improperly, sua sponte, decided the issues of ownership and maintenance of the bridge and sidewalk that is the subject of this litigation. 58. It iswell settled that "[a] court's power to dismiss a complaint, sua sponte, is to be dismissal" used sparingly and only when extraordinary circumstances exist to warrant 12 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 (see Henning v. 17 Murray Rest Corp., 137 A.D.3d 1216, 1217, 28 N.Y.S.3d 421, 422 (N.Y. App. Div. 2016); U.S. Bank. N.A. v. Emmanuel, 83 A.D.3d 1047, 1048, 921 N.Y.S.2d 320; see also Nationstar Mtge., LLC v. Wong, 132 A.D.3d 825, 18 N.Y.S.3d 669; Onewest Bank, FSB v. Prince, 130 A.D.3d 700, 701, 14 N.Y.S.3d 66; Rienzi v. Rienzi, 23 A.D.3d 450, 808 N.Y.S.2d 116). The exercise of such power in this case was improper because no extraordinary circumstances were present to warrant dismissal (see U.S. Bank N.A. v. Polanco, 126 A.D.3d 883, 7 N.Y.S.3d 156; Oak Hollow Nursing Ctr. v. Stumbo, 117 A.D.3d 698, 985 N.Y.S.2d 269; Dossous v. Corporate Owners Bayridge Nissan, Inc., 101 A.D.3d 937, 956 N.Y.S.2d 174; Bank of Am., N.A. v. Bah, 95 A.D.3d 1150, 945 N.Y.S.2d 704; Atkins-Payne v. Branch, 95 A.D.3d 912, 944 N.Y.S.2d 269). 59. Here, no extraordinary circumstances existed that would allow this Honorable Court to dismiss Plaintiff's action. Establishing ownership and maintenance of the bridge's sidewalk subject to this litigation would have been more appropriate for a summary judgment motion. By inserting into its Order that the defendant did not own or maintain the subject bridge, it essentially dismissed portions of Plaintiff's Complaint. 60. Further, the defendant was not the movant on the underlying motion nor made any cross-motion for summary judgment herein. The Plaintiff was not afforded the opportunity to dispute the defendant's oral allegations regarding ownership and maintenance of the subject bridge. Additionally, the interest of justice would not be served by the dismissal of Plaintiff's action 61. Therefore, as Plaintiff has moved timely, no extraordinary circumstances existed to warrant the partial dismissal of Plaintiff's action, and as newly presented evidence and 13 of 15 FILED: KINGS COUNTY CLERK 12/02/2019 07:07 PM INDEX NO. 507651/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/02/2019 arguments show that this Honorable Court's Order dated October 30, 2019 was based upon misleading and/or inaccurate information, the Order must be vacated. WHEREFORE, it isrespectfully requested that an Order be issued: (1) pursuant to CPLR.§ 2221 granting renewal and re-argument of Plaintiff's motion dated September 20, 2019 and filed with this Honorable Court on or about September 23, 2019 for an Order striking the defendant's Answer for their failure to ceiiiply with this Honorable Court's Orders; or in the alternative, for an Order precluding the defendant from offering any proof at trial in the form of testimony or otherwise, regarding the issue of liability; or at the very least, an Order pursuant to CPLR§3106(d) compelling the defendant to produce a witness with knowledge for deposition; pursuant to CPLR §5015, (2) vacating this Honorable Court's Order dated October 30, 2019; and/or in the altemative, striking the language, "The bridge;" City does not maintain or own this from the October 30, 2019 Order; together with such other, further, and different relief as this Honorable Court may deem just and proper. Dated: BROOKLYN, NEW YORK November 29, 2019 Yours, etc. thony Mangona, Esq.