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Filing # 102541657 E-Filed 01/31/2020 09:51:46 AM
IN THE CIRCUIT COURT OF THE 17"
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
LAWRENCE HERZOG,
Plaintiff, Case No. CACE18-000943 (14)
vs.
SEQUOIA GARDENS CONDOMINIUM
ASSOCIATION, INC. and CITY OF
DEERFIELD BEACH, a political
subdivision of the State of Florida,
Defendants.
/
PLAINTIFF’S MOTION TO COMPEL, MOTION TO
STRIKE AND MOTION TO CONTINUE
The Plaintiff, LAWRENCE HERZOG, files this his Motion to Compel, Motion to Strike
and Motion to Continue:
1. This action arises out of a slip and fall in the parking lot of the condominium where
the Plaintiff is a resident.
2. The Defendant, SEQUOIA GARDENS CONDOMINIUM ASSOCIATION, INC. ,
has filed a Motion for Summary Judgment on liability based on a lack of notice.
3. The Defendant has filed the affidavit of Sheila O’Neil, the property manager with
Davenport Professional Property Management, in support of its Motion for Summary Judgment
asserting that she is the property manager for the subject property and had no notice of the alleged
condition of the property.
4. Counsel for the Plaintiff previously attempted to set the deposition of Sheila O’Neil
Page I of 5
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/31/2020 09:51:46 AM.****and was forced to file a Motion to Continue Motion for Summary Judgment which resulted in an
agreed order on December 3, 2019 in which the parties were to depose their respective witnesses
withing sixty (60) days.
5. The deposition of Sheila O’Neil was scheduled to take place on January 28, 2020 but
was cancelled the day before by defense counsel due to illness. Counsel for the Defendant has failed
to provide the Plaintiff with new deposition dates and is, or will be, in violation of said order.
6. The hearing on the Motion for Summary Judgment had been reset for March 5, 2020,
pursuant to the aforementioned order.
7. The deposition of Derek Roddy, who executed an affidavit filed in opposition to the
Motion for Summary Judgement, was taken on January 23, 2020 by defense counsel at which time
he testified to the presence of personnel from the property management company, Davenport
Professional Property Management, on the property on a regular basis. This was the first time
counsel for the Plaintiff became aware of the presence of personnel from the property management
company on the subject property performing maintenance.
8. Ata minimum the deposition of Sheila O’ Neil needs to be taken prior to the hearing
on the Motion for Summary Judgment on March 5, 2020.
9. Further, in the event the deposition can not take place the affidavit of Sheila O’Neil
should be struck by this Court as inadmissible in support of Defendant’s Motion for Summary
Judgment. Further, the Plaintiff seeks an order for the deposition of the person with the most
knowledge in the event the affiant is unavailable.
10. Additionally, in light of the recent testimony that Davenport Professional Property
Management was actively involved in the maintenance of the property, the Plaintiff will have no
Page 2 of 5choice but to amend the complaint to add the company as a defendant in this action.
11. As such, the Defendant’s Motion for Summary Judgment is still premature at this
time and should be continued until discovery in this matter can be completed.
12. The Plaintiff will be greatly prejudiced if forced to defend a summary judgment
without deposing the affiant of a supporting affidavit, completing discovery in this action and being
able to amend the complaint to bring in a recently discovered potentially culpable party.
13. The Plaintiff, therefore, requests an order compelling the deposition of the witness,
Sheila O’Neil, or alternatively, an order striking her affidavit and compelling the deposition of the
person with the most knowledge of the maintenance of the property. Further, the Plaintiff requests
an order continuing the hearing on the Motion for Summary Judgement until such a time as
discovery can be completed by the parties.
WHEREFORE, the Plaintiff, LAWRENCE HERZOG, requests that this Court enter an order
granting his Motion to Compel, Motion to Strike and Motion to Continue.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was served on January 31, 2020 on the attached Service
List via email/E-Filing Portal.
Frank J. Taddeo
Fla. Bar No. 729388
fjtaddeo@bellsouth.net
7390 NW 5" Avenue, Suite 10
Plantation, Florida 33317
(954) 452-9500
(954) 791-4480 (facsimile)
-and-
Page 3 of 5COLLIER & ASSOCIATES
7390 NW 5" Avenue, Suite 10
Plantation, Florida 33317
(954) 452-9500
(954) 791-4480 (facsimile)
By: /s Robert Collier
Robert E. Collier, II
Fla. Bar No. 854440
rob@flaattorneys.com
Page 4 of 5SERVICE LIST
Matthew H. Mandel, Esq.
Justin D. Luger, Esq.
WEISS SEROTA HELFMAN COLE & BIERMAN, P.L.
Attorneys for Defendant City of Deerfield Beach
200 E. Broward Blvd, Suite 1900, Ft. Lauderdale, FL 33301
Phone: 954-763-4242
Facsimile: 954-764-7770
Primary Email: mmandel@wsh-law.com
jluger@wsh-law.com
Secondary Email: Ibrewley@wsh-law.com
jmesa@wsh-law.com
Lonni D. Tessler, Esq.
Sanaz Alempour, Esq.
COLE, SCOTT & KISSANE, P.A.
Attorneys for Defendant Sequoia Gardens Condominium Association, Inc.
600 N. Pine Island Rd, Lakeside Office Center, Suite 500, Plantation, FL 33324
Phone: 954-343-3902
Facsimile: 954-474-7979
Primary Email: lonni.tessler@csklegal.com
sanaz.alempour@esklegal.com
Secondary Email: debbie.arencibia@csklegal.com
jenniferl.smith@csklegal.com
Page 5 of 5
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Filing # 102541657 E-Filed 01/31/2020 09:51:46 AM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA LAWRENCE HERZOG, Plaintiff, Case No. CACE18-000943 (14) vs. SEQUOIA GARDENS CONDOMINIUM ASSOCIATION, INC. and CITY OF DEERFIELD BEACH, a political subdivision of the State of Florida, Defendants. / PLAINTIFF’S MOTION TO COMPEL, MOTION TO STRIKE AND MOTION TO CONTINUE The Plaintiff, LAWRENCE HERZOG, files this his Motion to Compel, Motion to Strike and Motion to Continue: 1. This action arises out of a slip and fall in the parking lot of the condominium where the Plaintiff is a resident. 2. The Defendant, SEQUOIA GARDENS CONDOMINIUM ASSOCIATION, INC. , has filed a Motion for Summary Judgment on liability based on a lack of notice. 3. The Defendant has filed the affidavit of Sheila O’Neil, the property manager with Davenport Professional Property Management, in support of its Motion for Summary Judgment asserting that she is the property manager for the subject property and had no notice of the alleged condition of the property. 4. Counsel for the Plaintiff previously attempted to set the deposition of Sheila O’Neil Page I of 5 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/31/2020 09:51:46 AM.****and was forced to file a Motion to Continue Motion for Summary Judgment which resulted in an agreed order on December 3, 2019 in which the parties were to depose their respective witnesses withing sixty (60) days. 5. The deposition of Sheila O’Neil was scheduled to take place on January 28, 2020 but was cancelled the day before by defense counsel due to illness. Counsel for the Defendant has failed to provide the Plaintiff with new deposition dates and is, or will be, in violation of said order. 6. The hearing on the Motion for Summary Judgment had been reset for March 5, 2020, pursuant to the aforementioned order. 7. The deposition of Derek Roddy, who executed an affidavit filed in opposition to the Motion for Summary Judgement, was taken on January 23, 2020 by defense counsel at which time he testified to the presence of personnel from the property management company, Davenport Professional Property Management, on the property on a regular basis. This was the first time counsel for the Plaintiff became aware of the presence of personnel from the property management company on the subject property performing maintenance. 8. Ata minimum the deposition of Sheila O’ Neil needs to be taken prior to the hearing on the Motion for Summary Judgment on March 5, 2020. 9. Further, in the event the deposition can not take place the affidavit of Sheila O’Neil should be struck by this Court as inadmissible in support of Defendant’s Motion for Summary Judgment. Further, the Plaintiff seeks an order for the deposition of the person with the most knowledge in the event the affiant is unavailable. 10. Additionally, in light of the recent testimony that Davenport Professional Property Management was actively involved in the maintenance of the property, the Plaintiff will have no Page 2 of 5choice but to amend the complaint to add the company as a defendant in this action. 11. As such, the Defendant’s Motion for Summary Judgment is still premature at this time and should be continued until discovery in this matter can be completed. 12. The Plaintiff will be greatly prejudiced if forced to defend a summary judgment without deposing the affiant of a supporting affidavit, completing discovery in this action and being able to amend the complaint to bring in a recently discovered potentially culpable party. 13. The Plaintiff, therefore, requests an order compelling the deposition of the witness, Sheila O’Neil, or alternatively, an order striking her affidavit and compelling the deposition of the person with the most knowledge of the maintenance of the property. Further, the Plaintiff requests an order continuing the hearing on the Motion for Summary Judgement until such a time as discovery can be completed by the parties. WHEREFORE, the Plaintiff, LAWRENCE HERZOG, requests that this Court enter an order granting his Motion to Compel, Motion to Strike and Motion to Continue. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was served on January 31, 2020 on the attached Service List via email/E-Filing Portal. Frank J. Taddeo Fla. Bar No. 729388 fjtaddeo@bellsouth.net 7390 NW 5" Avenue, Suite 10 Plantation, Florida 33317 (954) 452-9500 (954) 791-4480 (facsimile) -and- Page 3 of 5COLLIER & ASSOCIATES 7390 NW 5" Avenue, Suite 10 Plantation, Florida 33317 (954) 452-9500 (954) 791-4480 (facsimile) By: /s Robert Collier Robert E. Collier, II Fla. Bar No. 854440 rob@flaattorneys.com Page 4 of 5SERVICE LIST Matthew H. Mandel, Esq. Justin D. Luger, Esq. WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. Attorneys for Defendant City of Deerfield Beach 200 E. Broward Blvd, Suite 1900, Ft. Lauderdale, FL 33301 Phone: 954-763-4242 Facsimile: 954-764-7770 Primary Email: mmandel@wsh-law.com jluger@wsh-law.com Secondary Email: Ibrewley@wsh-law.com jmesa@wsh-law.com Lonni D. Tessler, Esq. Sanaz Alempour, Esq. COLE, SCOTT & KISSANE, P.A. Attorneys for Defendant Sequoia Gardens Condominium Association, Inc. 600 N. Pine Island Rd, Lakeside Office Center, Suite 500, Plantation, FL 33324 Phone: 954-343-3902 Facsimile: 954-474-7979 Primary Email: lonni.tessler@csklegal.com sanaz.alempour@esklegal.com Secondary Email: debbie.arencibia@csklegal.com jenniferl.smith@csklegal.com Page 5 of 5