Preview
FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
__------------___________________-------------------X
MICHAEL MESSINA,
Index No.:
Plaintiff, 604204/14
-against- AMENDED REPLY
AFFIRMATION
MORTON VILLAGE REALTY, INC. and
PHILLIPS INTERNATIONAL REALTY, INC.,
Defendants. Relief Sought:
-----------------------------------------------------x Vacating Note of Issue
l MORTON VILLAGE REALTY, INC. and
PHILLIPS INTERNATIONAL REALTY, INC.,
,
Judge Assigned:
Third-Party Plaintiffs, Hon. George R. Peck
-against-
Return Date:
MR. JOE'S PIZZERIA 5 RESTAURANTE, 7/3/2018
RUAGO, LLC d/b/a PIZZA DELIGHT, INC.,
ANTO, INC., GUISEPPE FRANZELLA,
,
JOSEPH LOGLISCI, MICHAEL RUGGIERO,
DIG ENTERPRISE, INC. and PETE LAMARIANA,
Third-Party Defendants.
-------------------------------------------------------X
KATHY S. LEYDEN, being an attorney duly admitted to the practice of
law in the State of New York affirms as follows under the penalties of
perjury:
1. I am a partner in the law firm of CONGDON, FLAHERTY,
O'CALLAGHAN, REID, DONLON, TRAVIS 5 FISHLINGER, attorneys for
defendant, DIG ENTERPRISE, INC. and PETE LAMARIANA. As such I am
familiar with the litigation history of this action based both upon my
1 of 4
FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018
reading of the papers and documents comprising our office file and my
personal handling of this matter to date.
2. I submit this amended affirmation in reply to the arguments
plaintiff raised in opposition to this motion and in further support of DIG
ENTERPRISE'S and LAMARIANA's application for an extension of time in
which to serve their motion for summary judgment. At the time plaintiff
filed the note of issue on April 18, 2018 this case was not trial ready; there
remained outstanding discovery as set forth in my original affirmation
including receipt of authorizations, authorizations with notarized signatures
Radiology)1
(for Medical Arts and the neuropsychiatric physical exam which
were to be completed, per stipulated agreement, PRIOR to plaintiff's filing
the note of issue. However, plaintiff's counsel blatantly disregarded its
agreement to wait to file.
3. Putting this aside as we may now concede that the physical
examination which was required due to the amendment of plaintiff's BP to
add new psychological and vascular injuries, which also required the further
EBT of plaintiff which has now taken place, our motion in chief also sought
additional time in which to serve and file any motion for summary
judgment. This issue has not been addressed by plaintiff in opposition to
this motion.
¹ the there remain
Albeit HIPPA does not require notarized signatures on release; however,
,
providers who will not release records absent them.
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FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018
4. Since the date of the stipulation defendants and third-party
defendants have also sought the deposition of plaintiff's son, a non-party,
who was with plaintiff at the time of the accident. This remains
outstanding.
5. Your Honor's court rule is dispositive motions must be served
'
within 60 days of the filing of plaintiff's note of issue. The note of issue is
to be filed upon completion of discovery, regardless of what the
outstanding discovery is or pertains to.
6. As testimony elicited by plaintiff's son may affect the viability of
defendants' defendants'
and third-party dispositive motions, it should be
held and defense be permitted to serve their motions after.
7. However, since plaintiff has now complied with the outstanding
party discovery, it is respectfully requested that DIG ENTERPRISES and
PETE LAMARIANA, third-party defendants, be granted 30 days in which to
serve their motion for summary judgment. Doing so will prevent prejudice
to DIG and LAMARIANA as these third-party defendants were entitled to
rely on the language plaintiff agreed to in the stipulation that he would wait
to file his note of issue until discovery was complete.
WHEREFORE, it is respectfully requested that this cross-motion be
granted in all respects and an order be entered vacating plaintiff's Note of
defendants'
Issue, permitting the completion of discovery and extending
time to serve and file its motion for summary judgment together with such
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FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018
other and further relief as to which this court deems just and fair.
Dated: Uniondale, New York
July 2, 2018
I f
KATHY S. EYDEN
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Preview
FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU __------------___________________-------------------X MICHAEL MESSINA, Index No.: Plaintiff, 604204/14 -against- AMENDED REPLY AFFIRMATION MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., Defendants. Relief Sought: -----------------------------------------------------x Vacating Note of Issue l MORTON VILLAGE REALTY, INC. and PHILLIPS INTERNATIONAL REALTY, INC., , Judge Assigned: Third-Party Plaintiffs, Hon. George R. Peck -against- Return Date: MR. JOE'S PIZZERIA 5 RESTAURANTE, 7/3/2018 RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GUISEPPE FRANZELLA, , JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC. and PETE LAMARIANA, Third-Party Defendants. -------------------------------------------------------X KATHY S. LEYDEN, being an attorney duly admitted to the practice of law in the State of New York affirms as follows under the penalties of perjury: 1. I am a partner in the law firm of CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS 5 FISHLINGER, attorneys for defendant, DIG ENTERPRISE, INC. and PETE LAMARIANA. As such I am familiar with the litigation history of this action based both upon my 1 of 4 FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018 reading of the papers and documents comprising our office file and my personal handling of this matter to date. 2. I submit this amended affirmation in reply to the arguments plaintiff raised in opposition to this motion and in further support of DIG ENTERPRISE'S and LAMARIANA's application for an extension of time in which to serve their motion for summary judgment. At the time plaintiff filed the note of issue on April 18, 2018 this case was not trial ready; there remained outstanding discovery as set forth in my original affirmation including receipt of authorizations, authorizations with notarized signatures Radiology)1 (for Medical Arts and the neuropsychiatric physical exam which were to be completed, per stipulated agreement, PRIOR to plaintiff's filing the note of issue. However, plaintiff's counsel blatantly disregarded its agreement to wait to file. 3. Putting this aside as we may now concede that the physical examination which was required due to the amendment of plaintiff's BP to add new psychological and vascular injuries, which also required the further EBT of plaintiff which has now taken place, our motion in chief also sought additional time in which to serve and file any motion for summary judgment. This issue has not been addressed by plaintiff in opposition to this motion. ¹ the there remain Albeit HIPPA does not require notarized signatures on release; however, , providers who will not release records absent them. 2 of 4 FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018 4. Since the date of the stipulation defendants and third-party defendants have also sought the deposition of plaintiff's son, a non-party, who was with plaintiff at the time of the accident. This remains outstanding. 5. Your Honor's court rule is dispositive motions must be served ' within 60 days of the filing of plaintiff's note of issue. The note of issue is to be filed upon completion of discovery, regardless of what the outstanding discovery is or pertains to. 6. As testimony elicited by plaintiff's son may affect the viability of defendants' defendants' and third-party dispositive motions, it should be held and defense be permitted to serve their motions after. 7. However, since plaintiff has now complied with the outstanding party discovery, it is respectfully requested that DIG ENTERPRISES and PETE LAMARIANA, third-party defendants, be granted 30 days in which to serve their motion for summary judgment. Doing so will prevent prejudice to DIG and LAMARIANA as these third-party defendants were entitled to rely on the language plaintiff agreed to in the stipulation that he would wait to file his note of issue until discovery was complete. WHEREFORE, it is respectfully requested that this cross-motion be granted in all respects and an order be entered vacating plaintiff's Note of defendants' Issue, permitting the completion of discovery and extending time to serve and file its motion for summary judgment together with such 3 of 4 FILED: NASSAU COUNTY CLERK 07/02/2018 01:10 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 07/02/2018 other and further relief as to which this court deems just and fair. Dated: Uniondale, New York July 2, 2018 I f KATHY S. EYDEN 4 of 4