Preview
(FILED{ KINGS COUNTY CLERK 0971672014 12:20 PM INDEX NO. 508343/2013
NYSCEF MOC. NO. 15 RECEIVED NYSCEF: 09/16/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
sete ee nent
ee nnn nemnnenneneneme,
ANA PADILLA, MIGUEL MARTEL, HUMBERTO Index No.: 508343/13
CALERO and MADELINE PADILLA,
Plaintiffs, AFFIRMATION IN
SUPPORT
-against-
L. RISO & SONS CO., INC,,
Defendant.
torte eee enna eee eneeeceneee,
L. RISO & SONS CO., INC.,
Third-Party Plaintiff.
-against-
T&D ASSOCIATES AND MARINE BULKHEADING >
Third-Party Defendants.
KEVIN J. DONNELLY, an attorney admitted to practice law in the Courts of the
State of New York, affirms the following under the penalty of perjury:
1 I am a partner with the law firm of Litchfield Cavo LLP, attorneys for
Defendant/Third-Party Plaintiff, L, RISO & SONS CO., INC., in the above-captioned
action, Thus, I am fully familiar with the facts and circumstances contained herein. I
submit this affirmation in support of Defendant/Third-Party Plaintiff, L. RISO & SONS
CO., INC.’s motion pursuant to C.P.L.R. §3126 as a result of the failure by the plaintiffs L
to provide disclosure and a Bill of Particulars.
2. Defendant/Third-Party Plaintiff, L, RISO & SONS CO., INC. commenced
this action by the filing and service of a Summons and Complaint on or about December
30, 2013. A copy of the Summons and Verified Complaint in this action is attached
-5-
hereto as Exhibit “A”. A copy of Defendant/Third-Party Plaintiff, L. RISO & SONS
CO., INC.’s answer is attached hereto as Exhibit “B”.
3 On or about January 31, 2014 Defendant/Third-Party Plaintiff, L. RISO &
SONS CO., INC. served their demand for a Verified Bill of Particulars and various
disclosure demands, including a Notice to Produce and other combined demands, upon
the plaintiff. See Exhibit “C”, attached hereto.
4 On April 10, 2014 and June 25, 2014 this office corresponded with
counsel for the plaintiffs indicating that responses to the aforementioned demands were
overdue, See Exhibit “D”, attached hereto. The letter also advised counsel that if the Bill
of Particulars and disclosure sought were not provided, then the within motion would be
filed. To date, plaintiffs have not provided the requested disclosure, including a Bill of
Particulars, nor have plaintiffs requested an extension of time to further respond, nor has
he responded in any way whatsoever to the December 3, 2012 letter.
5 C.P.L.R. §3126 provides in relevant part that “[i]f any party...refuses to
obey an order for disclosure or willfully fails to disclose information which the Court
finds ought to have been disclosed, pursuant to this Article, the court may make such
orders with regard to the failure or refusal as are just, among them: (1) an order that
issues to which the information is relevant shall be deemed resolved for purposes of the
action in accordance with the claims of the party obtaining the order; or (2) an order
prohibiting the disobedient party from supporting or opposing designated claims or
defenses, from producing in evidence designated things or items of testimony, or from
introducing any evidence of the physical, mental or blood condition sought to be
determined, or from using certain witnesses; or (3) an order striking out pleadings or
-6-
parts thereof, or staying of further proceedings until the order is obeyed, or dismissing the
action or any part thereof, or rendering a judgment by default against the disobedient
party”.
6. Pursuant to C.P.L.R §3126, Defendant/Third-Party Plaintiff, L. RISO & SONS
CO., INC. hereby request that the Court enter an Order striking the Complaint for his
failure to provide a Bill of Particulars and other disclosure.
7 In the alternative, Defendant/Third-Party Plaintiff, L. RISO & SONS CO.,
INC. requests that the Court enter an Order, pursuant to C.P.L.R. §3124, compelling the
plaintiff to provide a Bill of Particulars, to respond to disclosure demands previously
served, and for such other and further legal and equitable relief as the Court deems just
and proper.
WHEREFORE, it is respectfully requested that the Court issue an order striking
the complaint and/or a conditional order of preclusion along with such other relief as is
just and proper.
Ai. 10
Dated: New York, New York
September 10, 2014
KEVIN J. DONNELLY
-7-
Preview
(FILED{ KINGS COUNTY CLERK 0971672014 12:20 PM INDEX NO. 508343/2013 NYSCEF MOC. NO. 15 RECEIVED NYSCEF: 09/16/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS sete ee nent ee nnn nemnnenneneneme, ANA PADILLA, MIGUEL MARTEL, HUMBERTO Index No.: 508343/13 CALERO and MADELINE PADILLA, Plaintiffs, AFFIRMATION IN SUPPORT -against- L. RISO & SONS CO., INC,, Defendant. torte eee enna eee eneeeceneee, L. RISO & SONS CO., INC., Third-Party Plaintiff. -against- T&D ASSOCIATES AND MARINE BULKHEADING > Third-Party Defendants. KEVIN J. DONNELLY, an attorney admitted to practice law in the Courts of the State of New York, affirms the following under the penalty of perjury: 1 I am a partner with the law firm of Litchfield Cavo LLP, attorneys for Defendant/Third-Party Plaintiff, L, RISO & SONS CO., INC., in the above-captioned action, Thus, I am fully familiar with the facts and circumstances contained herein. I submit this affirmation in support of Defendant/Third-Party Plaintiff, L. RISO & SONS CO., INC.’s motion pursuant to C.P.L.R. §3126 as a result of the failure by the plaintiffs L to provide disclosure and a Bill of Particulars. 2. Defendant/Third-Party Plaintiff, L, RISO & SONS CO., INC. commenced this action by the filing and service of a Summons and Complaint on or about December 30, 2013. A copy of the Summons and Verified Complaint in this action is attached -5- hereto as Exhibit “A”. A copy of Defendant/Third-Party Plaintiff, L. RISO & SONS CO., INC.’s answer is attached hereto as Exhibit “B”. 3 On or about January 31, 2014 Defendant/Third-Party Plaintiff, L. RISO & SONS CO., INC. served their demand for a Verified Bill of Particulars and various disclosure demands, including a Notice to Produce and other combined demands, upon the plaintiff. See Exhibit “C”, attached hereto. 4 On April 10, 2014 and June 25, 2014 this office corresponded with counsel for the plaintiffs indicating that responses to the aforementioned demands were overdue, See Exhibit “D”, attached hereto. The letter also advised counsel that if the Bill of Particulars and disclosure sought were not provided, then the within motion would be filed. To date, plaintiffs have not provided the requested disclosure, including a Bill of Particulars, nor have plaintiffs requested an extension of time to further respond, nor has he responded in any way whatsoever to the December 3, 2012 letter. 5 C.P.L.R. §3126 provides in relevant part that “[i]f any party...refuses to obey an order for disclosure or willfully fails to disclose information which the Court finds ought to have been disclosed, pursuant to this Article, the court may make such orders with regard to the failure or refusal as are just, among them: (1) an order that issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or (2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or (3) an order striking out pleadings or -6- parts thereof, or staying of further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party”. 6. Pursuant to C.P.L.R §3126, Defendant/Third-Party Plaintiff, L. RISO & SONS CO., INC. hereby request that the Court enter an Order striking the Complaint for his failure to provide a Bill of Particulars and other disclosure. 7 In the alternative, Defendant/Third-Party Plaintiff, L. RISO & SONS CO., INC. requests that the Court enter an Order, pursuant to C.P.L.R. §3124, compelling the plaintiff to provide a Bill of Particulars, to respond to disclosure demands previously served, and for such other and further legal and equitable relief as the Court deems just and proper. WHEREFORE, it is respectfully requested that the Court issue an order striking the complaint and/or a conditional order of preclusion along with such other relief as is just and proper. Ai. 10 Dated: New York, New York September 10, 2014 KEVIN J. DONNELLY -7-