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FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012
NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No # 504087/2012
NIDAL ABOU TRABAH
Plaintiff(s) AFFIRMATION IN
-Against- SUPPORT OF
PLAINTIFFS'
Z & N HILLSIDE/SUTPHIN LLC, ZANE MOTION
MUNASSA, SHEMSAN GROCERY A/K/A DELI
& GRILL IAS/Part 84
Defendant (s) , Hon. Carolyn E.
Wade
J. S.C.
I, Durga Prasad Bhurtel, Esq. an attorney-at-law duly
admitted to the practice of law in the State of New York, hereby
affirm under the penalty of perjury, that:
1. I am a Member of Bhurtel Law Firm PLLC, and I am fully familiar
with the facts and all of the proceedings had herein by
files'
reviewing documents.
2. I make this affirmation in support of motion of plaintiffs
NIDAL ABOU TRABAH for an order granting relief sought in this
motion.
3. The due date to file Note of Issue was on March 13, 2019
pursuant to Court orders dated November 30, 2018 and March 6,
2019. Plaintiff inadvertently missed one day and filed Note
of Issue on March 14, 2019 enclosing an Affirmation requesting
time to extend one day to file Note of Issue, but the court
rejected the Plaintiff's Note of Issue and marked off this
action from calendar. Now Plaintiff moves for restoration of
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this action in calendar and request the Court one day
extension for filing Note of Issue non pro tunc.
RELEVANT PROCEDURAL HISTORY
4. On December 3, 2012 Plaintiff filed the initial Complaint,
herein attached as Exhibit 1. See also NY courts e filing
doc. No. 1.
5. On February 27, 2013 Defendant filed an Answer herein
attached as Exhibit 2. See also NY courts e filing doc. No.
6.
6. Plaintiff's Verified Bill of Particulars has been served and
filed and is herein attached as Exhibit 3.
7. Plaintiff made demand for discovery of various records is
herein attached as Exhibit 4.
8. Plaintiff discovery demand after defendant deposition is
herein attached as Exhibit 5.
9. Pursuant to court order dated November 30, 2018 Mohammed
Munassa's deposition was scheduled for February 11, 2019,
but Defendant was unable to produce on the date scheduled by
the court order. Therefore, again by the court order dated
March 6, 2019 the deposition date has been scheduled for
April 19, 2019. Copy of court orders are herein attached as
Exhibit-6 See also NY courts e filing doc no. 238 and 240.
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10. Plaintiff filed Note of Issue and Certificate of
Readiness of trial on March 14, 2019. Copy of Note of Issue
is herein attached as Exhibit-7. See also NY courts e filing
doc no. 241.
STATEMENT OF FACTS
11. Now Plaintiff moves for restoration of calendar and will file
note of issues upon restoration of this action in calendar.
ARGUMENT
PLAINTIFFS'
I. MATTER SHOULD BE RESTORED TO CALENDAR
12. This case was not dismissed pursuant to CPLR § 3404, nor was
it dismissed pursuant to the Uniform Rules for the New York
State Trial Courts (22NYCRR 202.27) or CPLR 3216.
13. CPLR § 3404 applies only to after note of issue is filed. CPLR
3404 should be reserved strictly for cases that have reached
the trial calendar. Lopez v Imperial Delivery Serv., Inc., 282
AD2d 190, 199 [2d Dept 2001]. CPLR § 3216 does not apply
because defendant has not serviced 90 day notice.
14. "[W]hile the failure to comply with a court order directing
the filing of a note of issue can, in the proper circumstances,
provide the basis for dismissal of a complaint under CPLR
3216, courts are prohibited from dismissing an action based
on neglect to prosecute unless the CPLR 3216 statutory
met" 90-
preconditions to dismissal are [citing omitted] ... A
day demand to file a note of issue is one of the statutory
preconditions. Neary v Tower Ins., 94 AD3d 723, 724 [2d Dept
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2012]. Banik v Evy Realty, LLC, 84 AD3d 994, 996 [2d Dept
2011]
15. This Honorable Court extended time to file note of issue to
February 28, 2017. The Court then extended time to file note
of issue to October 6, 2017, then Court extended time to file
to June 29, 2018. Again, the court extended time to file for
March 13, 2019. This order superseded the any prior order. The
Orders do not have the condition that it will serve 90-day
notice under CPLR § 3116. See Id.
16. CPLR 2004 gives courts discretion to "extend the time fixed
by any statute, rule, or order for doing any act, upon such
shown."
terms as may be just upon good cause This statute
permits an extension of a plaintiff's time to serve and file
a note of issue following service of a 90-day notice. Grant
v City of New York, 17 AD3d 215, 217 [1st Dept 2005]
17. Plaintiff is only required to show good cause for failure to
file note of issue. Plaintiff could not file note of issue on
or before March 13, 2019 because the plaintiff inadvertently
missed to file on the due date. However, the plaintiff filed
the next day on March 14, 2019 enclosing an Affirmation for
late filing. Please see Exhibit-8.
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18. Plaintiff respectfully reguest extension of time for one day
to file note of issue from the date this matter is restored
in active status.
3. Plaintiff is not required to show meritorious claim in this
action to restoring this action. However, Plaintiff does have
meritorious claim. EXHIBIT 1 and 6. Defendants were doing
construction renovation work in the subject location. The
plaintiffs have been receiving medical treatment since the
date of accident. The defendant created, caused and permitted
defective, hazardous and dangerous condition in his business
premises located the premises known as 8768 Supthin Boulevard,
Jamaica New York 11435, where defendant negligently maintain
Basement and/or cellar entrance where plaintiff fell from
first floor to basement. Defendant also violated New York
Labor Law section 240 and section 241(6) promulgated
regulations and section 200.
19. Plaintiffs are entitled to the restoration of this action in
active status of this action.
Defendant deposition has not been completed therefore
defendant should appear for deposition
20. Defendant Zane Munassa testified that Mohammed Munassa was
member of the defendant LLC. Further, Mr. Zane Munassa
testified that his son Mohammed Munassa was in the subject
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location at the time of alleged plaintiff's fall and injury.
Mr. Munassa was served notice of Deposition via defendant's
counsel and he was required to appear on February 11, 2019 at
10 AM. See attached court order dated November 30, 2018 as
Exhibit 7. By the new court order dated March 6, 2019 the
deposition of Munassa has been scheduled for April 19, 2019.
21. For the foregoing reasons it is respectfully requested
that The Court must grant extension of time for one day for
plaintiff to file the note of issue.
CONCLUSION
22. Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an
attorney admitted to practice in the courts of New York
State, certifies that upon information and belief, and after
reasonable inquiry, the contentions contained in the annexed
documents (s) are not frivolous.
23. Plaintiff has not made motion for restore in calendar
prior to this motion. Plaintiffs have previously requested
extensions of time for filing the note of issue.
24. WHEREFORE, the Plaintiffs pray the Court grant the
following reliefs:
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a. Vacating alleged disposed and Restoring this action pre
note of .issue status;
b. Extension of time to file note of issue non pro tunc;
c. Compelling to the defendant under CPLR 3124 and 3126 to
appear in deposition;
d. Such other relief should be granted as this court deems
just, and proper.
Dated, Queens, New York BHURTEL LAW FIRM PLLC
March 25, 2019
Durga Yrasad Bhurtel, Esq.
Attorney for Plaintiffs
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FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No # 504087/2012 NIDAL ABOU TRABAH Plaintiff(s) AFFIRMATION IN -Against- SUPPORT OF PLAINTIFFS' Z & N HILLSIDE/SUTPHIN LLC, ZANE MOTION MUNASSA, SHEMSAN GROCERY A/K/A DELI & GRILL IAS/Part 84 Defendant (s) , Hon. Carolyn E. Wade J. S.C. I, Durga Prasad Bhurtel, Esq. an attorney-at-law duly admitted to the practice of law in the State of New York, hereby affirm under the penalty of perjury, that: 1. I am a Member of Bhurtel Law Firm PLLC, and I am fully familiar with the facts and all of the proceedings had herein by files' reviewing documents. 2. I make this affirmation in support of motion of plaintiffs NIDAL ABOU TRABAH for an order granting relief sought in this motion. 3. The due date to file Note of Issue was on March 13, 2019 pursuant to Court orders dated November 30, 2018 and March 6, 2019. Plaintiff inadvertently missed one day and filed Note of Issue on March 14, 2019 enclosing an Affirmation requesting time to extend one day to file Note of Issue, but the court rejected the Plaintiff's Note of Issue and marked off this action from calendar. Now Plaintiff moves for restoration of 1 of 7 FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 this action in calendar and request the Court one day extension for filing Note of Issue non pro tunc. RELEVANT PROCEDURAL HISTORY 4. On December 3, 2012 Plaintiff filed the initial Complaint, herein attached as Exhibit 1. See also NY courts e filing doc. No. 1. 5. On February 27, 2013 Defendant filed an Answer herein attached as Exhibit 2. See also NY courts e filing doc. No. 6. 6. Plaintiff's Verified Bill of Particulars has been served and filed and is herein attached as Exhibit 3. 7. Plaintiff made demand for discovery of various records is herein attached as Exhibit 4. 8. Plaintiff discovery demand after defendant deposition is herein attached as Exhibit 5. 9. Pursuant to court order dated November 30, 2018 Mohammed Munassa's deposition was scheduled for February 11, 2019, but Defendant was unable to produce on the date scheduled by the court order. Therefore, again by the court order dated March 6, 2019 the deposition date has been scheduled for April 19, 2019. Copy of court orders are herein attached as Exhibit-6 See also NY courts e filing doc no. 238 and 240. 2 2 of 7 FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 10. Plaintiff filed Note of Issue and Certificate of Readiness of trial on March 14, 2019. Copy of Note of Issue is herein attached as Exhibit-7. See also NY courts e filing doc no. 241. STATEMENT OF FACTS 11. Now Plaintiff moves for restoration of calendar and will file note of issues upon restoration of this action in calendar. ARGUMENT PLAINTIFFS' I. MATTER SHOULD BE RESTORED TO CALENDAR 12. This case was not dismissed pursuant to CPLR § 3404, nor was it dismissed pursuant to the Uniform Rules for the New York State Trial Courts (22NYCRR 202.27) or CPLR 3216. 13. CPLR § 3404 applies only to after note of issue is filed. CPLR 3404 should be reserved strictly for cases that have reached the trial calendar. Lopez v Imperial Delivery Serv., Inc., 282 AD2d 190, 199 [2d Dept 2001]. CPLR § 3216 does not apply because defendant has not serviced 90 day notice. 14. "[W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory met" 90- preconditions to dismissal are [citing omitted] ... A day demand to file a note of issue is one of the statutory preconditions. Neary v Tower Ins., 94 AD3d 723, 724 [2d Dept 3 3 of 7 FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 2012]. Banik v Evy Realty, LLC, 84 AD3d 994, 996 [2d Dept 2011] 15. This Honorable Court extended time to file note of issue to February 28, 2017. The Court then extended time to file note of issue to October 6, 2017, then Court extended time to file to June 29, 2018. Again, the court extended time to file for March 13, 2019. This order superseded the any prior order. The Orders do not have the condition that it will serve 90-day notice under CPLR § 3116. See Id. 16. CPLR 2004 gives courts discretion to "extend the time fixed by any statute, rule, or order for doing any act, upon such shown." terms as may be just upon good cause This statute permits an extension of a plaintiff's time to serve and file a note of issue following service of a 90-day notice. Grant v City of New York, 17 AD3d 215, 217 [1st Dept 2005] 17. Plaintiff is only required to show good cause for failure to file note of issue. Plaintiff could not file note of issue on or before March 13, 2019 because the plaintiff inadvertently missed to file on the due date. However, the plaintiff filed the next day on March 14, 2019 enclosing an Affirmation for late filing. Please see Exhibit-8. 4 4 of 7 FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 18. Plaintiff respectfully reguest extension of time for one day to file note of issue from the date this matter is restored in active status. 3. Plaintiff is not required to show meritorious claim in this action to restoring this action. However, Plaintiff does have meritorious claim. EXHIBIT 1 and 6. Defendants were doing construction renovation work in the subject location. The plaintiffs have been receiving medical treatment since the date of accident. The defendant created, caused and permitted defective, hazardous and dangerous condition in his business premises located the premises known as 8768 Supthin Boulevard, Jamaica New York 11435, where defendant negligently maintain Basement and/or cellar entrance where plaintiff fell from first floor to basement. Defendant also violated New York Labor Law section 240 and section 241(6) promulgated regulations and section 200. 19. Plaintiffs are entitled to the restoration of this action in active status of this action. Defendant deposition has not been completed therefore defendant should appear for deposition 20. Defendant Zane Munassa testified that Mohammed Munassa was member of the defendant LLC. Further, Mr. Zane Munassa testified that his son Mohammed Munassa was in the subject 5 5 of 7 FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 location at the time of alleged plaintiff's fall and injury. Mr. Munassa was served notice of Deposition via defendant's counsel and he was required to appear on February 11, 2019 at 10 AM. See attached court order dated November 30, 2018 as Exhibit 7. By the new court order dated March 6, 2019 the deposition of Munassa has been scheduled for April 19, 2019. 21. For the foregoing reasons it is respectfully requested that The Court must grant extension of time for one day for plaintiff to file the note of issue. CONCLUSION 22. Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that upon information and belief, and after reasonable inquiry, the contentions contained in the annexed documents (s) are not frivolous. 23. Plaintiff has not made motion for restore in calendar prior to this motion. Plaintiffs have previously requested extensions of time for filing the note of issue. 24. WHEREFORE, the Plaintiffs pray the Court grant the following reliefs: 6 6 of 7 FILED: KINGS COUNTY CLERK 03/25/2019 07:27 PM INDEX NO. 504087/2012 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 03/25/2019 a. Vacating alleged disposed and Restoring this action pre note of .issue status; b. Extension of time to file note of issue non pro tunc; c. Compelling to the defendant under CPLR 3124 and 3126 to appear in deposition; d. Such other relief should be granted as this court deems just, and proper. Dated, Queens, New York BHURTEL LAW FIRM PLLC March 25, 2019 Durga Yrasad Bhurtel, Esq. Attorney for Plaintiffs 7 7 of 7