Preview
FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CAROLYN DISBROW,
AFFIRMATION
Plaintiff, IN SUPPORT
-against- Index No.: 651602/2020
THE NORMANDIE CONDOMINIUM, THE
BOARD OF MANAGERS OF THE NORMANDIE
CONDOMINIUM, METRO MANAGEMENT &
DEVELOPMENT, INC., GLOBAL SOLUTIONS
APPLIANCE REPAIR INC., GLOBAL
SOLUTIONS APPLIANCE REPAIR NYC LLC,
HADAS A. JACOBI, BRIAN STRONG, AND
KERI STRONG,
Defendants.
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PAUL F. LAGATTUTA III, an attorney duly admitted to practice law before the Courts
of the State of New York, affirms the truth of the following, upon information and belief, under
the penalties of perjury:
1. I am an member of the law firm of FIXLER & LAGATTUTA, LLP, attorneys for
the defendants, THE NORMANDIE CONDOMINIUM, THE BOARD OF MANAGERS OF
THE NORMANDIE CONDOMINIUM and METRO MANAGEMENT &
DEVELOPMENT, INC. (hereafter referred to collectively as “NORMANDIE”) and, as such, I
am fully familiar with the facts and circumstances heretofore had herein pursuant to a review of
the file maintained in this office.
2. I submit this affirmation in support of the instant motion for an order: (a)
compelling plaintiffto provide responses to defendants’ Demand for a Verified Bill of Particulars and
Combined Demands dated May 14, 2020, discovery demands and good faith requests; (b) in the
alternative, directing that plaintiff be precluded from offering any evidence upon the trial of this
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matter in support of her claims and allegations or, in the alternative, compelling her outstanding
discovery responses within a prescribed time period; and (c) for such other and; further relief as
this Court may deem just and proper.
3. This is an action for property damage that occurred to plaintiff’s condominium
unit located within NORMANDIE’s building located at 100 West 199th Street, New York, New
York that occurred as a result of two (2) separate incidents. The first leak incident occurred on
May 25, 2018 and the second leak incident occurred on or about November 2019. See,
plaintiff’s Summons and Complaint dated March 10, 2020 attached hereto as Exhibit “A”.
4. Issue was joined by service of NORMANDIE’s Verified Answer dated May 14,
2020. Attached with the Answer were a Demand for a Verified Bill of Particulars and other
discovery demands. See, Verified Answer and various discovery demands collectively attached
hereto as Exhibit “B”.
5. On May 26, 2020, plaintiff filed a Request for Preliminary Conference although
discovery has yet to be exchanged. See, Request for Preliminary Conference dated May 26,
2020, attached hereto as Exhibit “C”.
6. On May 26, 2020, plaintiff also filed a Notice of Rejection. See, Notice of
Rejection dated May 26, 2020 attached hereto as Exhibit “D”. This Notice of Rejection
essentially rejected NORMANDIE’s demand for a Verified Bill of Particulars and Discovery
Demands for various arbitrary reasons.
7. After plaintiff filed for a Preliminary Conference NORMANDIE wrote to plaintiff
and advised that it would like to have plaintiff’s Verified Bill of Particulars and discovery
responses before proceeding with a Preliminary Conference. See, email exchange from May 27,
2020 attached hereto as Exhibit “E”. Plaintiff responded to defendants’ request for responses to
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the outstanding demands that she “will not respond to [defendants’] discovery until a discovery
scheduling order has been entered after the Preliminary Conference”. Plaintiff incorrectly claims
that she does not have to respond to the discovery demands because she served an arbitrary
Notice of Rejection. Thereafter, plaintiff proposed that defendants incur additional cost and
reserve their demands after the discovery schedule had been entered into at the Preliminary
Conference. See, Exhibit “E”.
8. Defendants attempt to resolve this discovery dispute in good-faith by advising
that the Notice of Rejection was not based on any type of substantive defect.
9. Plaintiff’s Notice of Rejection is based on CPLR 2101(f), but this provision of the
CPLR states:
(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right
of a party is not prejudiced, shall be disregarded by the court, and leave to correct
shall be freely given. The party on whom a paper is served shall be deemed to
have waived objection to any defect in form unless, within fifteen days after the
receipt thereof, the party on whom the paper is served returns the paper to the
party serving it with a statement of particular objections.
See, CPLR 2101(f).
10. The alleged defect with respect to the form of the papers did not result in
prejudice affecting a substantial right of plaintiff. The Court can disregard a defect, unless
plaintiff can demonstrate that a substantial right of hers has been rejected. As no prejudice has
been shown by plaintiff, CAROLYN DISBROW, the alleged defects should be disregarded.
See, Global Liberty Ins. Co. v. Tyrell, 172 A.D.3d 489 (1st Dept. 2019); Bank of America, Nat.
Ass’n v. Brannon, 156 A.D.3d 1 (1st Dept. 2017). There is no evidence that plaintiff or her
counsel were confused or prejudiced by these alleged defects. See, Matter of Green v. Tierney,
59 A.D.3d 900 (3rd Dept. 2009).
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11. Plaintiff claims that she does not have to respond to the Verified Bill of
Particulars because itstates that the response was due within twenty (20) days and it did not
comply with CPLR 3042(a) which provides that a party upon whom the demand is served to
respond within thirty (30) days. See, Exhibit “B”. A typographical error in the Demand for a
Verified Bill of Particulars states that a response is due within twenty (20) days, but this error
does not nullify the demand and plaintiff is still obligated to serve a response pursuant to CPLR
3042. CPLR 3042 states:
(a) Demand. A demand for a bill of particulars shall be made by serving a written
demand stating the items concerning which particulars are desired. Within thirty
days of service of a demand for a bill of particulars, the party on whom the
demand is made shall serve a bill of particulars complying with each item of the
demand, except any item to which the party objects, in which event the reasons
for the objection shall be stated with reasonable particularity. The assertion of an
objection to one or more of the items in the demand shall not relieve the party on
whom the demand is made from the obligation to respond in full within thirty
days of service of the demand to the items of the demand to which no objection
has been made.
See, Rule 3042.
12. Defendants did not even need to put in the section stating that a response was due
within twenty (20) days because plaintiff’s time to response is governed by CPLR 3042. At this
time more than thirty (30) days have eliminated and plaintiff has specifically stated that a
response would not be forthcoming. Plaintiff is obligated to respond within the time prescribed
by the CPLR, regardless of the typographical error contained within defendants’ Demand for a
Verified Bill of Particulars.
13. Plaintiff’s refusal to respond to defendants’ demand pursuant to CPLR 3101(d)(1)
is also based on the same twenty (20) days response section within said demand. See, Exhibit
“D”. Defendants acknowledge that a response is not due at this time, unless plaintiff has already
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retained an expert, but this does not establish a proper basis to reject said demand and refusal to
respond at any point in time.
14. Plaintiff’s rejection of defendants’ Combined Demands is based on plaintiff’s
claim that said demands “contain interrogatories”, but this is not the case. See, Exhibit “D”.
Plaintiff essentially refuses to respond to defendants’ discovery demands because she mistakenly
believes they contain interrogatories. Nowhere in said demands do they ask for a verification by
plaintiff, said Combined Demands demand the production of documents, proof of loss material
and other items associated with the claims being made herein.
15. Plaintiff needs to respond to the Combined Demands as written and can state her
objects to each demand that she deems improper, but a blanket object is clearly a delay tactic.
16. Plaintiff recently settled her claims against defendants associated with the
November 2019 leak. See, Exhibit “F”. This settlement was directly with defendants and did
not involve your affiant, which means that plaintiff clearly has materials and information
permitting her to conclude that a settlement of $2,721.88 was warranted.
17. The lack of discovery produced by plaintiff and the arbitrary rejection of said
items are prejudicial to defendants herein. Furthermore, plaintiff’s belief that discovery only
needs to be provided after a Preliminary Conference runs afoul of the CPLR and its discovery
provisions.
18. To date, defendants have yet to receive any responses to the May 14, 2020
Discovery Demands.
19. In the case at bar, plaintiff has failed to respond to defendants’ demands and good
faith requests and has specifically stated that plaintiff will not be responding to the demands.
20. Responses to discovery demands are vital and provide much needed insight into
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the facts and circumstances surrounding the incidents and the resulting damages. Furthermore,
given plaintiff’s refusal to provide this outstanding discovery, defendants have been unable to
prepare their defense to these claims.
21. There has been no prior application for the relief requested herein.
WHEREFORE, it is respectfully requested that the Court grant the within requested relief
together with such other and further relief as this Court may deem just and proper.
Dated: New York, New York
June 19, 2020
______________________________
PAUL F. LAGATTUTA II
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Preview
FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------------x CAROLYN DISBROW, AFFIRMATION Plaintiff, IN SUPPORT -against- Index No.: 651602/2020 THE NORMANDIE CONDOMINIUM, THE BOARD OF MANAGERS OF THE NORMANDIE CONDOMINIUM, METRO MANAGEMENT & DEVELOPMENT, INC., GLOBAL SOLUTIONS APPLIANCE REPAIR INC., GLOBAL SOLUTIONS APPLIANCE REPAIR NYC LLC, HADAS A. JACOBI, BRIAN STRONG, AND KERI STRONG, Defendants. ----------------------------------------------------------------------------------x PAUL F. LAGATTUTA III, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following, upon information and belief, under the penalties of perjury: 1. I am an member of the law firm of FIXLER & LAGATTUTA, LLP, attorneys for the defendants, THE NORMANDIE CONDOMINIUM, THE BOARD OF MANAGERS OF THE NORMANDIE CONDOMINIUM and METRO MANAGEMENT & DEVELOPMENT, INC. (hereafter referred to collectively as “NORMANDIE”) and, as such, I am fully familiar with the facts and circumstances heretofore had herein pursuant to a review of the file maintained in this office. 2. I submit this affirmation in support of the instant motion for an order: (a) compelling plaintiffto provide responses to defendants’ Demand for a Verified Bill of Particulars and Combined Demands dated May 14, 2020, discovery demands and good faith requests; (b) in the alternative, directing that plaintiff be precluded from offering any evidence upon the trial of this 1 of 6 FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020 matter in support of her claims and allegations or, in the alternative, compelling her outstanding discovery responses within a prescribed time period; and (c) for such other and; further relief as this Court may deem just and proper. 3. This is an action for property damage that occurred to plaintiff’s condominium unit located within NORMANDIE’s building located at 100 West 199th Street, New York, New York that occurred as a result of two (2) separate incidents. The first leak incident occurred on May 25, 2018 and the second leak incident occurred on or about November 2019. See, plaintiff’s Summons and Complaint dated March 10, 2020 attached hereto as Exhibit “A”. 4. Issue was joined by service of NORMANDIE’s Verified Answer dated May 14, 2020. Attached with the Answer were a Demand for a Verified Bill of Particulars and other discovery demands. See, Verified Answer and various discovery demands collectively attached hereto as Exhibit “B”. 5. On May 26, 2020, plaintiff filed a Request for Preliminary Conference although discovery has yet to be exchanged. See, Request for Preliminary Conference dated May 26, 2020, attached hereto as Exhibit “C”. 6. On May 26, 2020, plaintiff also filed a Notice of Rejection. See, Notice of Rejection dated May 26, 2020 attached hereto as Exhibit “D”. This Notice of Rejection essentially rejected NORMANDIE’s demand for a Verified Bill of Particulars and Discovery Demands for various arbitrary reasons. 7. After plaintiff filed for a Preliminary Conference NORMANDIE wrote to plaintiff and advised that it would like to have plaintiff’s Verified Bill of Particulars and discovery responses before proceeding with a Preliminary Conference. See, email exchange from May 27, 2020 attached hereto as Exhibit “E”. Plaintiff responded to defendants’ request for responses to 2 of 6 FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020 the outstanding demands that she “will not respond to [defendants’] discovery until a discovery scheduling order has been entered after the Preliminary Conference”. Plaintiff incorrectly claims that she does not have to respond to the discovery demands because she served an arbitrary Notice of Rejection. Thereafter, plaintiff proposed that defendants incur additional cost and reserve their demands after the discovery schedule had been entered into at the Preliminary Conference. See, Exhibit “E”. 8. Defendants attempt to resolve this discovery dispute in good-faith by advising that the Notice of Rejection was not based on any type of substantive defect. 9. Plaintiff’s Notice of Rejection is based on CPLR 2101(f), but this provision of the CPLR states: (f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections. See, CPLR 2101(f). 10. The alleged defect with respect to the form of the papers did not result in prejudice affecting a substantial right of plaintiff. The Court can disregard a defect, unless plaintiff can demonstrate that a substantial right of hers has been rejected. As no prejudice has been shown by plaintiff, CAROLYN DISBROW, the alleged defects should be disregarded. See, Global Liberty Ins. Co. v. Tyrell, 172 A.D.3d 489 (1st Dept. 2019); Bank of America, Nat. Ass’n v. Brannon, 156 A.D.3d 1 (1st Dept. 2017). There is no evidence that plaintiff or her counsel were confused or prejudiced by these alleged defects. See, Matter of Green v. Tierney, 59 A.D.3d 900 (3rd Dept. 2009). 3 of 6 FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020 11. Plaintiff claims that she does not have to respond to the Verified Bill of Particulars because itstates that the response was due within twenty (20) days and it did not comply with CPLR 3042(a) which provides that a party upon whom the demand is served to respond within thirty (30) days. See, Exhibit “B”. A typographical error in the Demand for a Verified Bill of Particulars states that a response is due within twenty (20) days, but this error does not nullify the demand and plaintiff is still obligated to serve a response pursuant to CPLR 3042. CPLR 3042 states: (a) Demand. A demand for a bill of particulars shall be made by serving a written demand stating the items concerning which particulars are desired. Within thirty days of service of a demand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand, except any item to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity. The assertion of an objection to one or more of the items in the demand shall not relieve the party on whom the demand is made from the obligation to respond in full within thirty days of service of the demand to the items of the demand to which no objection has been made. See, Rule 3042. 12. Defendants did not even need to put in the section stating that a response was due within twenty (20) days because plaintiff’s time to response is governed by CPLR 3042. At this time more than thirty (30) days have eliminated and plaintiff has specifically stated that a response would not be forthcoming. Plaintiff is obligated to respond within the time prescribed by the CPLR, regardless of the typographical error contained within defendants’ Demand for a Verified Bill of Particulars. 13. Plaintiff’s refusal to respond to defendants’ demand pursuant to CPLR 3101(d)(1) is also based on the same twenty (20) days response section within said demand. See, Exhibit “D”. Defendants acknowledge that a response is not due at this time, unless plaintiff has already 4 of 6 FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020 retained an expert, but this does not establish a proper basis to reject said demand and refusal to respond at any point in time. 14. Plaintiff’s rejection of defendants’ Combined Demands is based on plaintiff’s claim that said demands “contain interrogatories”, but this is not the case. See, Exhibit “D”. Plaintiff essentially refuses to respond to defendants’ discovery demands because she mistakenly believes they contain interrogatories. Nowhere in said demands do they ask for a verification by plaintiff, said Combined Demands demand the production of documents, proof of loss material and other items associated with the claims being made herein. 15. Plaintiff needs to respond to the Combined Demands as written and can state her objects to each demand that she deems improper, but a blanket object is clearly a delay tactic. 16. Plaintiff recently settled her claims against defendants associated with the November 2019 leak. See, Exhibit “F”. This settlement was directly with defendants and did not involve your affiant, which means that plaintiff clearly has materials and information permitting her to conclude that a settlement of $2,721.88 was warranted. 17. The lack of discovery produced by plaintiff and the arbitrary rejection of said items are prejudicial to defendants herein. Furthermore, plaintiff’s belief that discovery only needs to be provided after a Preliminary Conference runs afoul of the CPLR and its discovery provisions. 18. To date, defendants have yet to receive any responses to the May 14, 2020 Discovery Demands. 19. In the case at bar, plaintiff has failed to respond to defendants’ demands and good faith requests and has specifically stated that plaintiff will not be responding to the demands. 20. Responses to discovery demands are vital and provide much needed insight into 5 of 6 FILED: NEW YORK COUNTY CLERK 06/19/2020 11:13 AM INDEX NO. 651602/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 06/19/2020 the facts and circumstances surrounding the incidents and the resulting damages. Furthermore, given plaintiff’s refusal to provide this outstanding discovery, defendants have been unable to prepare their defense to these claims. 21. There has been no prior application for the relief requested herein. WHEREFORE, it is respectfully requested that the Court grant the within requested relief together with such other and further relief as this Court may deem just and proper. Dated: New York, New York June 19, 2020 ______________________________ PAUL F. LAGATTUTA II 6 of 6