Preview
FILED: BRONX COUNTY CLERK 01/02/2018 03:16 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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-XX
LAZARO SANCHEZ, :
: Index No.: 24105/2013e
Plaintiff, :
-against- :
: REPLY AFFIRMATION
EXTRA SPACE STORAGE, INC., GABRIEL :
CASTANO, JERILYNN HORTON, CHI HUNG AND :
CHAN YING :
:
Defendants. :
:
:
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-XX
:
EXTRA SPACE MANAGEMENT, INC., :
: Third Party Index No.: 43205/2015e
Third Party :
Plaintiff, :
:
-against- :
:
JR BUILDING SERVICE, INC. :
Third Party Defendant. :
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Scott H. Goldstein, Esq., an attorney duly admitted to practice law before the Court of the
State of New York, hereby affirms the following statements to be true under the penalties of perjury:
1. I am an attorney at the law firm of BONNER KIERNAN TREBACH &
CROCIATA, LLP, attorneys for defendant/third-party plaintiff EXTRA SPACE MANAGEMENT,
Space"
INC. (hereinafter referred to as "Extra Space") in the above entitled action. As such, I am fully
familiar with the facts and circumstances as set forth herein, the source of my knowledge being the
file maintained by my office in the course of handling this matter.
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NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018
2. This affirmation is respectfully submitted in reply to plaintiff's untimely opposition
dated December 31, 2017 and in further support of Extra Space's motion for an Order pursuant to 22
NYCRR 202.21(e) vacating plaintiff's premature Note of Issue and Certificate of Readiness, striking
the case from the trial calendar on the grounds that significant discovery is incomplete, and granting
such and other relief that the Court deems to be just, proper and equitable.
3. First, plaintiff's opposition was untimely submitted on December 31, 2017 despite
this motion and the other pending motion to extend the note of issue having been filed back in
October, 2017 and having original return dates of November 20, 2017 and October 30, 2017,
respectively.
4. CPLR 2214(b) provides as follows:
Motion papers; service; time
(b) Time for service of notice and affidavits. A notice of motion and
supporting affidavits shall be served at least eight (8) days before the
time at which the motion is noticed to be heard. Answering affidavits
and any notice of cross-motion, with supporting papers, if any, shall be
served at least seven days before such time if a notice of motion was
served at least sixteen (16) days before such time so
demands...[emphasis added].
5. Pursuant to the CPLR, since the notice of the underlying motion was served on
October 24, 2017 and originally made returnable on November 20, 2017, plaintiff's opposition
papers were required to be served at least seven days before the return date. Notwithstanding,
counsel filed opposition a mere three days prior to the return date (on a Sunday and
New Year's Eve no less). As such, plaintiff's opposition was untimely served and should not be
given any consideration by the Court in determining how the underlying motion is decided.
6. Furthermore, despite plaintiff's inaccurate contentions in his opposition, the
certificate of readiness contains incorrect material representations regarding discovery. Plaintiff's
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FILED: BRONX COUNTY CLERK 01/02/2018 03:16 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018
Note of Issue and Certificate of Readiness inaccurately represents that all discovery is complete
and that the matter is now ready for trial despite the fact that a new party is in the process of being
added to the case, that a significant amount of post-deposition discovery still remains, and that a
motion to extend the Note of Issue is also pending.
7. More specifically, Extra Space has not received responses to its Second Notice for
Discovery and Inspection dated January 7, 2017, which contains several post-deposition demands.
See Exhibit A attached hereto.
8. Additionally, site inspections of the properties neighboring Extra Space have not
yet been completed.
9. Furthermore, a third-party complaint was filed against Long Island Landscapes,
Ltd ("LIL") the landscaper that last cut the bamboo, on June 5, 2017 and again due to an e-filing
error on December 20, 2017.
10. As such, a new party has been added to the case and a significant amount of
discovery stillremains, including, but not limited to: 1) the appearance of third-party defendant
Long Island Landscapes, Ltd.; 2) production of discovery to the new party LIL; 3) depositions of
a representative from LIL; and 4) any necessary non-party depositions.
11. Although LIL has not yet filed an Answer, movant has been in contact with LIL's
retained counsel on several occasions, and thus has the understanding that LIL is aware of the suit
and has retained counsel with the intention of filing an Answer. Therefore, movant has not felt it
necessary to incur the costs of filing a motion for default judgment against LIL at the present time.
12. Regardless, there is no procedural or legal requirement necessitating that Extra
Space file a motion for default judgment against LIL, and Extra Space's choice to not file a
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motion for default judgment against LIL does not negate the fact that significant outstanding
discovery stillremains in this case warranting an Order vacating the Note of Issue.
13. As such, discovery in not complete, and the outstanding discovery is relevant and
necessary to the proper defense of this action. In that regard, Extra Space would be severely
prejudiced should it be constrained to proceed to trial without having the necessary discovery.
Notably, in that regard, plaintiff's opposition is absent of any showing of prejudice that plaintiff
would suffer should the note of issue be vacated at this stage in litigation.
14. Therefore, Extra Space respectfully requests that plaintiff's inaccurate and
premature Note of Issue and Certificate of Readiness is vacated pursuant to 22 NYCRR 201.21
and that this matter is stricken from the trial calendar.
15. Should this Court decide not to vacate plaintiffs Note of Issue, we request a
discovery scheduling Order to address the completion of the remaining discovery, including the
significant amount of discovery that will be required once the third-party defendant, LIL answers
the Third Party Complaint and is added to the case.
16. Furthermore, we respectfully request that the time in which to move for summary
judgment be extended ninety (90) days after all discovery is completed. Without this extension,
defendant/third-party plaintiff will be severely prejudiced and without sufficient time to move for
summary judgment.
WHEREFORE itis respectfully requested that the within motion be granted in itsentirety,
and that this Court fashion such other and further relief as may be deemed just and proper under the
circumstances.
DATED: New York, New York
January 2, 2018
~~ '"
ji-L6
Scott H. Goldstein
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Preview
FILED: BRONX COUNTY CLERK 01/02/2018 03:16 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------------------------------ -XX LAZARO SANCHEZ, : : Index No.: 24105/2013e Plaintiff, : -against- : : REPLY AFFIRMATION EXTRA SPACE STORAGE, INC., GABRIEL : CASTANO, JERILYNN HORTON, CHI HUNG AND : CHAN YING : : Defendants. : : : ------------------------------------------------------------------ -XX : EXTRA SPACE MANAGEMENT, INC., : : Third Party Index No.: 43205/2015e Third Party : Plaintiff, : : -against- : : JR BUILDING SERVICE, INC. : Third Party Defendant. : ------------------------------------------------------------------ X Scott H. Goldstein, Esq., an attorney duly admitted to practice law before the Court of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1. I am an attorney at the law firm of BONNER KIERNAN TREBACH & CROCIATA, LLP, attorneys for defendant/third-party plaintiff EXTRA SPACE MANAGEMENT, Space" INC. (hereinafter referred to as "Extra Space") in the above entitled action. As such, I am fully familiar with the facts and circumstances as set forth herein, the source of my knowledge being the file maintained by my office in the course of handling this matter. 1 1 of 4 FILED: BRONX COUNTY CLERK 01/02/2018 03:16 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018 2. This affirmation is respectfully submitted in reply to plaintiff's untimely opposition dated December 31, 2017 and in further support of Extra Space's motion for an Order pursuant to 22 NYCRR 202.21(e) vacating plaintiff's premature Note of Issue and Certificate of Readiness, striking the case from the trial calendar on the grounds that significant discovery is incomplete, and granting such and other relief that the Court deems to be just, proper and equitable. 3. First, plaintiff's opposition was untimely submitted on December 31, 2017 despite this motion and the other pending motion to extend the note of issue having been filed back in October, 2017 and having original return dates of November 20, 2017 and October 30, 2017, respectively. 4. CPLR 2214(b) provides as follows: Motion papers; service; time (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight (8) days before the time at which the motion is noticed to be heard. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion was served at least sixteen (16) days before such time so demands...[emphasis added]. 5. Pursuant to the CPLR, since the notice of the underlying motion was served on October 24, 2017 and originally made returnable on November 20, 2017, plaintiff's opposition papers were required to be served at least seven days before the return date. Notwithstanding, counsel filed opposition a mere three days prior to the return date (on a Sunday and New Year's Eve no less). As such, plaintiff's opposition was untimely served and should not be given any consideration by the Court in determining how the underlying motion is decided. 6. Furthermore, despite plaintiff's inaccurate contentions in his opposition, the certificate of readiness contains incorrect material representations regarding discovery. Plaintiff's 2 2 of 4 FILED: BRONX COUNTY CLERK 01/02/2018 03:16 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018 Note of Issue and Certificate of Readiness inaccurately represents that all discovery is complete and that the matter is now ready for trial despite the fact that a new party is in the process of being added to the case, that a significant amount of post-deposition discovery still remains, and that a motion to extend the Note of Issue is also pending. 7. More specifically, Extra Space has not received responses to its Second Notice for Discovery and Inspection dated January 7, 2017, which contains several post-deposition demands. See Exhibit A attached hereto. 8. Additionally, site inspections of the properties neighboring Extra Space have not yet been completed. 9. Furthermore, a third-party complaint was filed against Long Island Landscapes, Ltd ("LIL") the landscaper that last cut the bamboo, on June 5, 2017 and again due to an e-filing error on December 20, 2017. 10. As such, a new party has been added to the case and a significant amount of discovery stillremains, including, but not limited to: 1) the appearance of third-party defendant Long Island Landscapes, Ltd.; 2) production of discovery to the new party LIL; 3) depositions of a representative from LIL; and 4) any necessary non-party depositions. 11. Although LIL has not yet filed an Answer, movant has been in contact with LIL's retained counsel on several occasions, and thus has the understanding that LIL is aware of the suit and has retained counsel with the intention of filing an Answer. Therefore, movant has not felt it necessary to incur the costs of filing a motion for default judgment against LIL at the present time. 12. Regardless, there is no procedural or legal requirement necessitating that Extra Space file a motion for default judgment against LIL, and Extra Space's choice to not file a 3 3 of 4 FILED: BRONX COUNTY CLERK 01/02/2018 03:16 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/02/2018 motion for default judgment against LIL does not negate the fact that significant outstanding discovery stillremains in this case warranting an Order vacating the Note of Issue. 13. As such, discovery in not complete, and the outstanding discovery is relevant and necessary to the proper defense of this action. In that regard, Extra Space would be severely prejudiced should it be constrained to proceed to trial without having the necessary discovery. Notably, in that regard, plaintiff's opposition is absent of any showing of prejudice that plaintiff would suffer should the note of issue be vacated at this stage in litigation. 14. Therefore, Extra Space respectfully requests that plaintiff's inaccurate and premature Note of Issue and Certificate of Readiness is vacated pursuant to 22 NYCRR 201.21 and that this matter is stricken from the trial calendar. 15. Should this Court decide not to vacate plaintiffs Note of Issue, we request a discovery scheduling Order to address the completion of the remaining discovery, including the significant amount of discovery that will be required once the third-party defendant, LIL answers the Third Party Complaint and is added to the case. 16. Furthermore, we respectfully request that the time in which to move for summary judgment be extended ninety (90) days after all discovery is completed. Without this extension, defendant/third-party plaintiff will be severely prejudiced and without sufficient time to move for summary judgment. WHEREFORE itis respectfully requested that the within motion be granted in itsentirety, and that this Court fashion such other and further relief as may be deemed just and proper under the circumstances. DATED: New York, New York January 2, 2018 ~~ '" ji-L6 Scott H. Goldstein 4 4 of 4