Preview
INDEX NO. 20564/2013E
(FILED: BRONX COUNTY CLERK 0871672013)
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/16/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
GISELA FOBAR
REPLY
Plaintiff(s), AFFIRMATION
Index No.: 20564/13
-against-
MAJESTIC REALTY CORP. AND EDEL FAMILY
MANAGEMENT CORP., ARCO ELEVATOR CO.
IN, AND “ABC COMPANY”, A FICTICIOIUS NAME
USED TO DENOTE AND UNKNOWN DEFENDANT
Defendant(s).
PeiKeN SESS RSUURUE SSSR CTU CSAS ERIC TEEEE ECON
STEVEN B. DRELICH, an attorney duly admitted to practice law before the
Courts of the State of New York makes this affirmation pursuant to CPLR § 2106:
1 I am of counsel to law firm of Bruce Montague and Partners the attorneys
for the Plaintiff, Gisela Fobar and make this reply affirmation in further support of the
Plaintiff's Order to Show Cause for an Order:
a) Ordering a video deposition of the Plaintiff, GISELLA FOBAR, on a date certain
for preserving her testimony for use at trial pursuant to CPLR §3101(a)(3) at
wherever she is located at that time, which would be considered her temporary
location; and
b) For any further relief that this Court deems just and proper.
2 The following facts are undisputed: (a) The Plaintiff, Gisela Fobar is NINETY-
EIGHT YEARS OLD; and (b) She is temporarily a patient at the Hebrew Home for the
Aged, a Skilled Nursing Facility located in Riverdale, New York. The defendant has failed
to set forth any articulable opposition or prejudice, either real or imagined, that warrants
the denial by the Court for the relief sought by the plaintiff.
3 This affirmation is made in response to the Affirmation in Opposition of
Defendant, ARCO Elevator Co., dated August 9, 2013. The Defendant has
mischaracterized the relief sought by the Plaintiff, Gisela Fobar. In fact, Defendant Arco,
is “entirely unopposed to the preserving and perpetuating Plaintiff's testimony.” (See.,
Par. 5, Affirmation in Opp of Defendant Arco.) However, the confusion arises because the
Defendant has miscast the Plaintiff's Order to Show Cause as a deposition dispute arising
either under CPLR § 3124 or CPLR § 3126, rather than a action pursuant to §3101(a)(3)
of the CPLR. The Plaintiff is not seeking a Court Order for a deposition, but an Order to
preserve the trial testimony of the Plaintiff. However, the confusion is telling because it
lays bare the Defendant’s apparent stalling tactics.
4. Defendant has candidly admitted its lack of co-operation. Defendant avers in their
opposition papers that although they are “...willing to work with Plaintiff in regards to
holding the deposition at an unconventional location, Elevator (Defendant ARCO) will not
concede to an in-home deposition.” (See., Par. 3, Affirmation in Opp of Defendant Arco )
Defendant further states, “Elevator (Defendant ARCO) was ready and willing to take
Plaintiffs deposition at a different location” Supra. Just not at the location she presently
resides. Most disturbing is the fact that Defendant has not offered a factual, material, or
evidentiary argument as to why they cannot participate in a proceeding held in the County
where the action is venued.
5 Defendant conveniently states that they would conduct the deposition at Co-
Defendant’s office, which is located 15.2 miles from the proposed location, or at the
Supreme Court, which is located 9.1 miles from the Hebrew Home for the Aged. (See,
Exhibit “A”). Defendant “graciously” offers this courtesy knowing that the Plaintiff is
aged and temporarily confined to a skilled nursing facility. They are clearly cognizant that
she cannot attend a deposition at either the Courthouse or the Co-Defendant’s offices.
Therefore, their offers are hollow. The defendant has not set forth any reason as to why
they agree to have the deposition in New York County, the Courthouse, or a Court
Reporter’s office, but not at a location a mere 9.1 miles from the Courthouse. Each
location proposed by the Defendant requires travel by the parties. Hence, it can reasonably
be surmised that the opposition is more about gaining an unfair advantage than complying
with the rules of discovery. It is well understood that Defendants prefer deceased
Plaintiffs to live ones.
6 Again, the issue before the Court is the preservation of the testimony of the
Plaintiff, not a deposition of the Plaintiff by the Defendant. A new date of August 29,
2013 has been selected for the deposition of the Plaintiff, Gisela Fobar. However, as
evidenced by Defendant’s opposition papers they are not going to proceed on the agreed
upon adjourned date. The Defendant should consider that its delaying tactics may
“backfire”. If they are unable to take a deposition of the Plaintiff, then they will be
responsible for jeopardizing their client’s interest in failing to take a deposition when they
had a reasonable opportunity to do so.
7 The Plaintiff should not be prejudiced because of her advanced age and condition,
therefore, this Court should grant the relief requested.
WHEREFORE it is respectfully requested that the within motion for an Order:
a) Ordering a video deposition of the Plaintiff, GISELLA FOBAR on a date certain
for preserving her testimony for use at trial pursuant to CPLR §3101(a)(3) at
wherever she is located at that time, which would be considered her temporary
location; and
b) For any further relief that this Court deems just and proper.
DATED: Bayside, NY
August 13, 2013
b.
STEVEN B. DRELICH, ESQ.
Our File No: 133297P
Exhibit A
e213 Bronx Supreme Court to Hebrew Home At Riverdale- Google Maps
Google Directions to Hebrew Home At Riverdale
5901 Palisade Ave, New York, NY 10471
9.1 mi — about 16 mins
Bronx Supreme Court
851 Grand Concourse #111, Bronx, NY 10451
1. Head southwest on Grand Concourse toward E 158th St go 240 8
total 240 ft
P 2. Take the 1st right onto E 158th St go 417 ft
total 0.1 mi
Tum left onto Walton Ave go 0.3 mi
About 58 secs total 0.4 mi
Take the 2nd right onto E 153rd St go 0.3 mi
About 1 min total 0.7 mi
E 153rd St turns slightly left and becomes E 157th St go 276 ft
total 0.8 mi
Tum right toward Sedgwick Ave go 0.2 mi
total 1.0 mi
Continue straight onto Sedgwick Ave go 499 ft
total 1.1 mi
Take the I-87 N/Major Deegan Expressway ramp on the left to Albany go 0.1 mi
total 1.2 mi
Merge onto 1-87 N go 4.5 mi
About 5 mins total 5.7 mi
10. Take exit 12 toward H Hudson Pkwy S/Saw Mill Pkwy N go 0.2 mi
total 6.0 mi
11 Merge onto Mosholu Pkwy go 1.0 mi
About 4 min total 6.9 mi
12. Keep right at the fork, follow signs for New York 9A S/H Hudson Pkwy and merge go 0.9 mi
onto Henry Hudson Pkwy total 7.9 mi
About 1 min
13. Continue onto New York 9A S/Henry Hudson Pkwy go 0.2 mi
total 8.1 mi
14. Take exit 22 for W 254 St toward Riverdale Ave/College of Mt St Vincent go 374 ft
total 8.2 mi
4 15, Tum left onto W 254th St go 0.4 mi
About 2 mins total 8.6 mi
Pr 16. com right onto Palisade Ave go 0.5 mi
total 9.1 mi
About 4 min
© Hebrew Home At Riverdale
5901 Palisade Ave, New York, NY 10471
These directions are for planning purposes only. You may find that construction projects, traffic, w eather, or other events may cause
your route.
conditions to differ fromthe map results, and you should plan your route accordingly. You must obey all signs or notices regarding
Map data ©2013 Google
[ Directions weren't right? Please find your route on maps.google.com and click "Report a problem” at the bottom left.
d&saddr=Bronx+ Supreme+ Court &daddr=Hebrew+ Home+ Att Riverdale. Palisade+ Avenue.+Bronx+NY&hl=en... 1/2
httos://mans.aooale.con/mans ?f=d&source=s
8/1213 200 Madison Ave, New York, NY 10173 to Hebrew Home At Riverdale - Google Maps
Google Directions to Hebrew Home At Riverdale
5901 Palisade Ave, New York, NY 10471
15.2 mi — about 27 mins
200 Madison Ave, New York, NY 10173
le as
1 Head northeast on Madison Ave toward E 36th St / go 0.3 mi
About 49 secs total 0.3 mi
Pr Tum right onto E 42nd St
About 3 mins
go 0.6 mi
total 0.9 mi
4 Tum left onto 1st Avenue
About 1 min
go 0.2 mi
total 1.1 mi
Keep right to stay on 1st Avenue go 253 ft
total 1.1 mi
Slight right toward FDR Drive go 187 ft
total 1.2 mi
Slight right onto the FDR Drive N ramp go 0.3 mi
total 1.4 mi
Merge onto FDR Drive go 3.7 mi
About 5 mins total 5.1 mi
Continue onto Harlem River Dr go 2.9 mi
About 4 mins total 8.1 mi
Take exit 24 on the left for 1-95 S/Geo Washington Bridge go 0.6 mi
About 56 secs total 8.7 mi
10. Follow signs for Henry Hudson Parkway/George Washington Bridge Lower Level go 0.4 mi
and merge onto Interstate 95 Lower Level S total 9.2 mi
11 Take exit 1 for New York 9A S go 0.5 mi
About 1 min total 9,7 mi
12. Follow signs for New York 9A N and merge onto New York 9A N go 3.9 mi
Partial toll road total 13.6 mi
About 5 mins
13. Take exit 21 toward W 246 St/W 250 St go 308 ft
total 13.6 mi
14 Merge onto Henry Hudson Parkway East go 0.7 mi
About 1 min total 14.3 mi
4 15. Tum left onto W 254th St
About 2 mins
go 0.4 mi
total 14.7 mi
er * Tum right onto Balleade Ave go 0.5 mi
i total 15.2 mi
About 4 min
Hebrew Home At Riverdale
5901 Palisade Ave, New York, NY 10471
These directions are for planning purposes only. You may find that construction projects, traffic, w eather, or other events may cause
conditions to differ from the map results, and you should plan your route accordingly. You must obey all signs or notices regarding your route.
Map data ©2013 Google, Sanborn
[ Directions weren't right? Please find your route on maps.google.com and click “Report a problem" at the bottom left.
httos://maps.acoale.com/mans=d&source=s 135.-73.9380219+ to:Herbrewt Homet for+ the. ..
York +N Y&daddr=40.7877enue.+New+
d&saddr=200+Madison+Av 12
STATE OF NEW YORK :
SS.
COUNTY OF QUEENS:
STEVEN B. DRELICH, an attorney duly admitted to practice law in the State of New York
affirms the truth of the following under penalty of perjury:
Iam not a party to the action, am over the age of eighteen (18) years and reside in Suffolk,
New York. On August 13, 2013, I served the within
REPLY AFFIRMATION
by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive
care and custody of the U.S. Postal Service within New York State, addressed to each of the
following persons at the last known address set forth after each name:
Gottlieb Siegel & Schwartz, LLP
Attorneys for Defendant
ARCO ELEVATOR
207 East 94th Street
Mezzanine Level
New York, NY 10128
Margaret Klein & Associates
Attorneys for Defendants
MAJESTIC REALTY and EDEL MANAGEMENT
200 Madison Avenue, oC FL
New York, NY 10016
Dated: BAYSIDE, NY
August 13, 2013
7
bi STEVEN B. DRELICH
Index No. 20564/13
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
GISELA FOBAR,
Plaintiff,
-against-
MAJESTIC REALTY CORP., EDEL FAMILY
MANAGEMENT CORP., ARCO ELEVATOR CO. INC.
AND “ABC COMPANY”, a fictitious name used to denote
an unknown defendant,
Defendants.
REPLY AFFIRMATION
—
Bruce Montague & Partners
Attorneys for Plaintiff(s)
212-45 26th Avenue
Bayside, NY 11360
718-279-7555
Preview
INDEX NO. 20564/2013E (FILED: BRONX COUNTY CLERK 0871672013) NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 08/16/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX GISELA FOBAR REPLY Plaintiff(s), AFFIRMATION Index No.: 20564/13 -against- MAJESTIC REALTY CORP. AND EDEL FAMILY MANAGEMENT CORP., ARCO ELEVATOR CO. IN, AND “ABC COMPANY”, A FICTICIOIUS NAME USED TO DENOTE AND UNKNOWN DEFENDANT Defendant(s). PeiKeN SESS RSUURUE SSSR CTU CSAS ERIC TEEEE ECON STEVEN B. DRELICH, an attorney duly admitted to practice law before the Courts of the State of New York makes this affirmation pursuant to CPLR § 2106: 1 I am of counsel to law firm of Bruce Montague and Partners the attorneys for the Plaintiff, Gisela Fobar and make this reply affirmation in further support of the Plaintiff's Order to Show Cause for an Order: a) Ordering a video deposition of the Plaintiff, GISELLA FOBAR, on a date certain for preserving her testimony for use at trial pursuant to CPLR §3101(a)(3) at wherever she is located at that time, which would be considered her temporary location; and b) For any further relief that this Court deems just and proper. 2 The following facts are undisputed: (a) The Plaintiff, Gisela Fobar is NINETY- EIGHT YEARS OLD; and (b) She is temporarily a patient at the Hebrew Home for the Aged, a Skilled Nursing Facility located in Riverdale, New York. The defendant has failed to set forth any articulable opposition or prejudice, either real or imagined, that warrants the denial by the Court for the relief sought by the plaintiff. 3 This affirmation is made in response to the Affirmation in Opposition of Defendant, ARCO Elevator Co., dated August 9, 2013. The Defendant has mischaracterized the relief sought by the Plaintiff, Gisela Fobar. In fact, Defendant Arco, is “entirely unopposed to the preserving and perpetuating Plaintiff's testimony.” (See., Par. 5, Affirmation in Opp of Defendant Arco.) However, the confusion arises because the Defendant has miscast the Plaintiff's Order to Show Cause as a deposition dispute arising either under CPLR § 3124 or CPLR § 3126, rather than a action pursuant to §3101(a)(3) of the CPLR. The Plaintiff is not seeking a Court Order for a deposition, but an Order to preserve the trial testimony of the Plaintiff. However, the confusion is telling because it lays bare the Defendant’s apparent stalling tactics. 4. Defendant has candidly admitted its lack of co-operation. Defendant avers in their opposition papers that although they are “...willing to work with Plaintiff in regards to holding the deposition at an unconventional location, Elevator (Defendant ARCO) will not concede to an in-home deposition.” (See., Par. 3, Affirmation in Opp of Defendant Arco ) Defendant further states, “Elevator (Defendant ARCO) was ready and willing to take Plaintiffs deposition at a different location” Supra. Just not at the location she presently resides. Most disturbing is the fact that Defendant has not offered a factual, material, or evidentiary argument as to why they cannot participate in a proceeding held in the County where the action is venued. 5 Defendant conveniently states that they would conduct the deposition at Co- Defendant’s office, which is located 15.2 miles from the proposed location, or at the Supreme Court, which is located 9.1 miles from the Hebrew Home for the Aged. (See, Exhibit “A”). Defendant “graciously” offers this courtesy knowing that the Plaintiff is aged and temporarily confined to a skilled nursing facility. They are clearly cognizant that she cannot attend a deposition at either the Courthouse or the Co-Defendant’s offices. Therefore, their offers are hollow. The defendant has not set forth any reason as to why they agree to have the deposition in New York County, the Courthouse, or a Court Reporter’s office, but not at a location a mere 9.1 miles from the Courthouse. Each location proposed by the Defendant requires travel by the parties. Hence, it can reasonably be surmised that the opposition is more about gaining an unfair advantage than complying with the rules of discovery. It is well understood that Defendants prefer deceased Plaintiffs to live ones. 6 Again, the issue before the Court is the preservation of the testimony of the Plaintiff, not a deposition of the Plaintiff by the Defendant. A new date of August 29, 2013 has been selected for the deposition of the Plaintiff, Gisela Fobar. However, as evidenced by Defendant’s opposition papers they are not going to proceed on the agreed upon adjourned date. The Defendant should consider that its delaying tactics may “backfire”. If they are unable to take a deposition of the Plaintiff, then they will be responsible for jeopardizing their client’s interest in failing to take a deposition when they had a reasonable opportunity to do so. 7 The Plaintiff should not be prejudiced because of her advanced age and condition, therefore, this Court should grant the relief requested. WHEREFORE it is respectfully requested that the within motion for an Order: a) Ordering a video deposition of the Plaintiff, GISELLA FOBAR on a date certain for preserving her testimony for use at trial pursuant to CPLR §3101(a)(3) at wherever she is located at that time, which would be considered her temporary location; and b) For any further relief that this Court deems just and proper. DATED: Bayside, NY August 13, 2013 b. STEVEN B. DRELICH, ESQ. Our File No: 133297P Exhibit A e213 Bronx Supreme Court to Hebrew Home At Riverdale- Google Maps Google Directions to Hebrew Home At Riverdale 5901 Palisade Ave, New York, NY 10471 9.1 mi — about 16 mins Bronx Supreme Court 851 Grand Concourse #111, Bronx, NY 10451 1. Head southwest on Grand Concourse toward E 158th St go 240 8 total 240 ft P 2. Take the 1st right onto E 158th St go 417 ft total 0.1 mi Tum left onto Walton Ave go 0.3 mi About 58 secs total 0.4 mi Take the 2nd right onto E 153rd St go 0.3 mi About 1 min total 0.7 mi E 153rd St turns slightly left and becomes E 157th St go 276 ft total 0.8 mi Tum right toward Sedgwick Ave go 0.2 mi total 1.0 mi Continue straight onto Sedgwick Ave go 499 ft total 1.1 mi Take the I-87 N/Major Deegan Expressway ramp on the left to Albany go 0.1 mi total 1.2 mi Merge onto 1-87 N go 4.5 mi About 5 mins total 5.7 mi 10. Take exit 12 toward H Hudson Pkwy S/Saw Mill Pkwy N go 0.2 mi total 6.0 mi 11 Merge onto Mosholu Pkwy go 1.0 mi About 4 min total 6.9 mi 12. Keep right at the fork, follow signs for New York 9A S/H Hudson Pkwy and merge go 0.9 mi onto Henry Hudson Pkwy total 7.9 mi About 1 min 13. Continue onto New York 9A S/Henry Hudson Pkwy go 0.2 mi total 8.1 mi 14. Take exit 22 for W 254 St toward Riverdale Ave/College of Mt St Vincent go 374 ft total 8.2 mi 4 15, Tum left onto W 254th St go 0.4 mi About 2 mins total 8.6 mi Pr 16. com right onto Palisade Ave go 0.5 mi total 9.1 mi About 4 min © Hebrew Home At Riverdale 5901 Palisade Ave, New York, NY 10471 These directions are for planning purposes only. You may find that construction projects, traffic, w eather, or other events may cause your route. conditions to differ fromthe map results, and you should plan your route accordingly. You must obey all signs or notices regarding Map data ©2013 Google [ Directions weren't right? Please find your route on maps.google.com and click "Report a problem” at the bottom left. d&saddr=Bronx+ Supreme+ Court &daddr=Hebrew+ Home+ Att Riverdale. Palisade+ Avenue.+Bronx+NY&hl=en... 1/2 httos://mans.aooale.con/mans ?f=d&source=s 8/1213 200 Madison Ave, New York, NY 10173 to Hebrew Home At Riverdale - Google Maps Google Directions to Hebrew Home At Riverdale 5901 Palisade Ave, New York, NY 10471 15.2 mi — about 27 mins 200 Madison Ave, New York, NY 10173 le as 1 Head northeast on Madison Ave toward E 36th St / go 0.3 mi About 49 secs total 0.3 mi Pr Tum right onto E 42nd St About 3 mins go 0.6 mi total 0.9 mi 4 Tum left onto 1st Avenue About 1 min go 0.2 mi total 1.1 mi Keep right to stay on 1st Avenue go 253 ft total 1.1 mi Slight right toward FDR Drive go 187 ft total 1.2 mi Slight right onto the FDR Drive N ramp go 0.3 mi total 1.4 mi Merge onto FDR Drive go 3.7 mi About 5 mins total 5.1 mi Continue onto Harlem River Dr go 2.9 mi About 4 mins total 8.1 mi Take exit 24 on the left for 1-95 S/Geo Washington Bridge go 0.6 mi About 56 secs total 8.7 mi 10. Follow signs for Henry Hudson Parkway/George Washington Bridge Lower Level go 0.4 mi and merge onto Interstate 95 Lower Level S total 9.2 mi 11 Take exit 1 for New York 9A S go 0.5 mi About 1 min total 9,7 mi 12. Follow signs for New York 9A N and merge onto New York 9A N go 3.9 mi Partial toll road total 13.6 mi About 5 mins 13. Take exit 21 toward W 246 St/W 250 St go 308 ft total 13.6 mi 14 Merge onto Henry Hudson Parkway East go 0.7 mi About 1 min total 14.3 mi 4 15. Tum left onto W 254th St About 2 mins go 0.4 mi total 14.7 mi er * Tum right onto Balleade Ave go 0.5 mi i total 15.2 mi About 4 min Hebrew Home At Riverdale 5901 Palisade Ave, New York, NY 10471 These directions are for planning purposes only. You may find that construction projects, traffic, w eather, or other events may cause conditions to differ from the map results, and you should plan your route accordingly. You must obey all signs or notices regarding your route. Map data ©2013 Google, Sanborn [ Directions weren't right? Please find your route on maps.google.com and click “Report a problem" at the bottom left. httos://maps.acoale.com/mans=d&source=s 135.-73.9380219+ to:Herbrewt Homet for+ the. .. York +N Y&daddr=40.7877enue.+New+ d&saddr=200+Madison+Av 12 STATE OF NEW YORK : SS. COUNTY OF QUEENS: STEVEN B. DRELICH, an attorney duly admitted to practice law in the State of New York affirms the truth of the following under penalty of perjury: Iam not a party to the action, am over the age of eighteen (18) years and reside in Suffolk, New York. On August 13, 2013, I served the within REPLY AFFIRMATION by depositing a true copy thereof in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: Gottlieb Siegel & Schwartz, LLP Attorneys for Defendant ARCO ELEVATOR 207 East 94th Street Mezzanine Level New York, NY 10128 Margaret Klein & Associates Attorneys for Defendants MAJESTIC REALTY and EDEL MANAGEMENT 200 Madison Avenue, oC FL New York, NY 10016 Dated: BAYSIDE, NY August 13, 2013 7 bi STEVEN B. DRELICH Index No. 20564/13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX GISELA FOBAR, Plaintiff, -against- MAJESTIC REALTY CORP., EDEL FAMILY MANAGEMENT CORP., ARCO ELEVATOR CO. INC. AND “ABC COMPANY”, a fictitious name used to denote an unknown defendant, Defendants. REPLY AFFIRMATION — Bruce Montague & Partners Attorneys for Plaintiff(s) 212-45 26th Avenue Bayside, NY 11360 718-279-7555