Preview
FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
CHAVA MUSIKANT OHANA and JACOB OHANA '
Index No.: 519039/2019
Plaintiffs '
AFFIRMATION IN
SUPPOR_T
-agamst-
RANDOLPH WITHERSPOON,
Defendant.
X
David P. Feehan, an attorney duly admitted to practice law before the Courts of the State
of New York affirms, under the penalties of perjury the following:
1. I am a member of the law firm of Hannum Feretic Prendergast & Merlino, LLC
attorneys for the defend ant RANDOLPH WITHERSPOON, and as such I am familiar with
fully
the facts and circumstances of this matter from a review of the filemaintained by this office.
2. This affirmation is in support of the motion for rearguement, for a protective order,
and for the extension of the discovery deadline. This case was commenced in August 2019. Issue
was joined in late September 2019. A preliminary conference was held November 2019. The
plaintiff made a motion to compel from the defendant in 2020, when the case
discovery January
.
was just 3 ½ months old. The defendmta complied with the discovery demands and interposed
opposition to the motion. An interim order was issued which sought clarification and additional
information that was not in the initialdemands exchanged by plaintiff. Basically, itwanted a phone
number for the nonparty witness and color photographs instead of the black and white photos of
damage to a car that were provided. The interim order did not contain any preclusion language and
the motion was adjourned to March 27, 2020. The courts closed on March 20, 2020 and we awaited
the motion to be re-calendared. In the meanwhile, plaintiff and defendant continued to exchange
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discovery and agreed that some information may need to be subject to motion practice, namely the
phone number of the nonparty witness secured by our pre-suit investigation. Everything else was
resolved. On July 14, 2020 an order was filed on theCourt's e-filing system, which was essentially
a conditional preclusion order which required compliance with a deadline 4 months in the past!
The order is unfair, and does not take into account that the case was only 4 months old when the
motion was made, discovery was moving forward with no delays, there was no willful or
contumacious activity to ignore court orders and that the end discovery date was November 2020.
It also basically precludes the defendant from testifying for exchanging black and white photos
instead of color and protecting a phone number of a nonparty witness when we already provided
a name and address.
3. Therefore, this motion seeks (1) an Order for leave to reargue the decision of Justice
Knipel in response to plaintiff's motion to strike; (2) a Protective Order with respect to the Court's
Order dated July 8, 2019 as itrelates to the production of information obtained by.our investigator
during the course of his investigation in anticipation of litigation, pursuant to CPLR §3103 and
3101 (d); (3) to extend discovery for the Ex amination Before Trial of the defendant and
Independent Medical Examinations of the plaintiff Chava Musikant Ohana; and (4) for such other
and further relief as the Court deems just, necessary and proper. Please find, annexed hereto as
plaintiffs'
Exhibit "A", January 10, 2020 motion to strike the defendant's Answer due to
outstanding discovery and the exhibits. The defendant's Affirmation in Opposition to plaintiff's
. .
motion, affirming that complete responses had been provided to all of the plaintiff's outstanding
"C"
demands and exhibits are annexed hereto as Exhibit "B". Annexed hereto as Exhibit is the
February 10, 2020 Interim Order, containing no preclusionary language, requesting the defendant
to provide additional information and adjourning the plaintiff's motion to March 27, 2020.
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Annexed hereto as Edebit "D", please find the Order dated July 8, 2020 and electronically filed
on July 14, 2020, incorrectly deciding the plaintiff's motion and misapprehending law as to willful
and contumacious activity as well as the relevant facts of the case.
PRELIMINARY STATEMENT
4. This lawsuit seeks recovery for personal injuries arising from a claim by
plaintiff/pedestrian, CHAVA OHANA, who states that on June 26, 2018, she was struck by the
vehicle operated by defendant, RANDOLPH WITHERSPOON, on East New York Avenue in
Brooklyn, New York. This is a very serious, atypical motor vehicle case, wherein the vehicle
owned and operated by the defendant struck plaintiff Chava Ohana when the plaintiff darted out
mid-block and attempted to cross the street in front of him. Defense counsel performed an
investigation and found a non-party witness to the event, Nina Gibson, and has shared information
plaintiffs'
for the witness with counsel. This case is defensible on liability and will be the subject
of a =mmary judgmeñt motion based on the testimony of Mr. Witherspoon and Ms. Gibson, who
both say that plaintiff attempted to cross the street midblock without warning entering the moving
lane of traffic directly into the moving vehicle. Please find, annexed hereto as Exhibit "E", the
Police Accident Report regarding the incident. This case is also unusual in that there is a significant
amount of insurance coverage available, $2,500,000.00, which requires every effort to be fair to
both sides and not to issue preclusion of a defense based on duplicate color photos and a phone
number when preclusion was not even part of the order directing the exchange of the additional
material.
5. As more thoroughly discussed below, this Court should provide the requested relief
as (1) this Court denied the defendant the opportunity to argue the plaintiff s motion before the
motion was marked "fully submitted"; (2) as the plaintiff is wrongly seeking information procured
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by an investigator in anticipation of litigation pursuant to CPLR §3103 and 3101(d); and (3)
because directives of the Court's July 8, 2020 Order are moot since the plaintiff served a further
demand for the requested information which was responded to and we proceeded forward with the
litigation following receipt of the requested information from defense counsel.
RELEVANT PROCEDURAL HISTORY
6. The plaintiffs, Chava Musikant Ohana and Jacob Ohana, commenced this action
for the June 26, 2018 accident (Police Accident Report annexed hereto as Exhibit "E") with the
filing of a Summons and Complaint on August 28, 2019, The Summons and Complaint is annexed
hereto as Exhibit "F". The defedant, Itandolph Witherspoon, joined issue with the filing of an
Answer on September 20, 2019. The Answer is annexed hereto as Exhibit "G".
7. On November 18, 2019, a Preliminary Conference was held regarding this matter
and a Preliminary Conference was entered into. Please find, annexed hereto as Exhibit "H", a
copy of the Preliminary Conference Order. As a point of clarification defense counsel was involved
in a lengthy trial in Supreme Court New York County with jury selection starting in October 2019
and a verdict rendered the first week of December 2019 of $102,000,000.00 in the case of Perez v
Beach Concerts which consumed his ability to respond to the preliminary conference immediately. .
8. On January 10, 2020, plaintiff's counsel filed a motion to strike the defendant's
Answer due to outstanding discovery. On February 7, 2020, the defendant filed an Affirmation in
Opposition to plaintiff's motion affirming that complete responses had been provided to all of the
plaintiffs' "A"
plaintiff's outstanding demands. The motion is annexed above as Exhibit and the
defendant's opposition is annexed above as Exhibit "B".
9.. On February 4, 2020, we conducted the deposition of plaintiff, Chava Ohana, at her
home to accommodate the plaintiff's needs.
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plaintiffs'
10. In its opposition, defense counsel responded to all of the demañds.
Plaintiffs'
counsel reviewed our responses and then made additional demands at the return date,
"C"
that resulted in an Interim Order. On February 10, 2020, an Interim Order (Exhibit above) was
entered into whereby the defendant was requested (in addition to the responses provided on
February 7, 2020), (1) to p1ovide information for witness, Nina Gibson, including an address and
phone number (ifin the possession of coüñsel); (2)to provide color photographs of the defendant's
vehicle; (3) to provide plaintiff with copies of damages estimates, invoices, and repair bills for the
defendant's vehicle; and (4) to provide a deposition date for the defendant after the completion of
the deposition of plaintiff Jacob Ohana. This Interim Order also adjourned the plaintiff's motion
to March 27, 2020. Importantly, the Interim Order contains no preclusionary language or threats
of striking an answer.
11. The February 10, 2020 Interim Order set forth demands in addition to the demands
plaintiffs'
previously served by counsel, as defense counsel had fully responded to those demands
in the responses contained in the Affirmation in Opposition annexed above as Exhibit "B", in
plaintiffs'
response to motion to preclude responses.
12. As previously explained, the defendanthas since responded to all of these demands.
The new requests contained in the Interim Order were followed up on during the COVID-19
plaintiffs'
quarantine period with demands served by counsel in April 2020 and responded to by
plaintiffs'
defense counsel in May 2020. In addition, defense coüñsel spoke with counsel and
plaintiffs'
advised counsel that some of the requested information (the phone number for witness
Nina Gibson) was qualified as investigation in preparation of litigation, which is further discussed
in Point 2 of this motion.
13. It isour position that a failure to provide color photographs and minor details by a
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date certain (especially without providing defense counsel with an opportunity to make arguments
plaintiffs'
on the merits, and considering that counsel has since received this information and has
pmceeded to litigate the case with this information available to him), is trivial and not worthy of
such a drastic measure as preclusion from testifying and does not evince a callous or renegade
attitude towards discovery obligations,
14. Electronic filing was closed and Court appearances were halted on March 22, 2020
pursuant to the state's Executive order andA dministrative Order AO/78/20. Please find the
Administrative Order annexed hereto as Exhibit "I". Although the Part Rules for the Central
Compliance Part in Supreme Court, Kings County state that oral argument must be heard on every
motion, the motion was adjourned without a date and a decision rendered without the opportunity
to appear and argue on the motion.
15. On July 8, 2020, Hon. Lawrence Knipel drafted an Order (annexed above as Exhibit
"D") deciding the plaintiff s motion. The Order states (1) that the defendant is precluded from
testifying at trialif the defeñdaat diêÍiot provide responses to the directives of the Interim Order
by March 10, 2020 (although the Interim Order contained no preclusionary language); and (2) any
that has not been deposed August 2020 is precluded from at trial.This self-
party by 14, testifying
executing Order, decided without providing defense counsel an opportunity to cure any
..
deficiencies, was entered in the office of the County Clerk and electronically filed on July 14,
2020.
ARGUMENT
POINT 1
PLAINTIFFS'
THE MOTION SHO__ULD BE REARGUED AS THE COURT
MISAPPREHENDED THE RELEVANT FACTS AND MISAPPLIED THE
CONTROLLING PRINCIPLES OF LAW IN ITS DECISION
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16. A motion for rearguement is addressed to the sound discretion of the court and may
be granted upon a showing that the court. overlooked or misapprehended the relevant facts or
misapplied any controlling principle of law. Rizzotto v. Allstate Ins. Co., 300 A.D.2d 562, 752
(2nd
N.Y.S/2d 538 Dept. 2002).
17: Plaintiff's motion was originally returnable in Supreme Court, Kings County in the
Central Compliance Part on February 10, 2020. Pursuant to the Part Rules of the Kings County
Central Compliance Part, oral argument is required on all motions Despite the defendants
providing complete responses to alldemands served by the plaintiffs before that date, plaintiff's
counsel refused to withdraw their motlon. Instead, plaintiff's counsel demanded further responses
(without serving new demands), and had the motion adjourned to March 27, 2020 in the Interim
order annexed above as Exhibit "C". A junior associate was taken advantage of at the conference,
and agreed to provide some discovery that was not discoverable. The Interim Order also directed
the defendants to provide additional information by March 10, 2020, ahead of the March 27, 2020
return date. As the State of New York was put on PAUSE pursuant to Executive Order on March
22, 2020, the courts closed and motion appearances were impossible. As such, defense counsel
was not provided with the mandatory opportunity to present its arguments regarding the plaintiff's
motion, the overreach, and the mistake made by a first-year associate.
18. Due to inadvertent law office failure, the handling attorney did not become aware
of the Interim Order until the time to respond had already passed, as the handling attorney was in
the midst of preparing for an imminent trial in Supreme Court, Queens County, Valdivia v W&L
Group (Index Number 710797/2015), that was assigned to me at the last minute prior to the time
the Interim Order was entered into. This trial abscoñded nearly every hour of every day for the
month of February 2020. The handling attorney never saw the Interim Order, and never knew we
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owed a supplemental response to our discovery.
19. It iswell-established that a motion to reargue will be granted only "upon a showing
that the court overlooked or misapprehended the relevant facts or misapplied any controlling
law." (2nd
principle of McGill v. Goldman, 261 A.D.2d 593, at 594, 691 N.Y.S.2d 75 Dept. 1999)
(emphasis supplied); see also, CPLR §2221; Wechsler v. First Unum Life Insurance Company,
(2nd
295 A.D.2d 340, 742 N.Y.S.2d 668 Dept. 2002). In Mcgill, the Appellate Division, Second
Department went on to state that a motion to reargue is not designed to provide an unsuccessful
party with successive opportunities to reargue issues previously decided, or to present argamêñts
presented."
different from those originally I.d.
20. By the deadline provided for discovery in the Interim Order, the nation had already
risk"
begun to suffer from the effects of COVID-19. I am "high with respect to COVID-19, and
was instructed by my doctors to stop working in order to decrease the likelihood of contracting
COVID-19. The last full day I worked was Friday March 13, 2020 when I stopped working and
did not return to the office. By the following Monday, March 23, 2020, the law office was closed
due to the State's Executive Order, and the Interim Order was inadvertently lost in the shuffle. It
would have been dealt with on the March 27, 2020 in person return date in CCP and worked out.
21. Notwithstanding the above, responses to those demands have since been provided
to plaintiff's counsel, and the case has been moving forward. Plaintiff's counsel has not been
prejudiced, and had in fact been working with the requested information for several months before
the Order precluding the defendants from testifying at trial was decided. The defendant has
plaintiffs'
provided complete responses to all of demâñds. It isour position that we complied with
all demanded discovery, until on July 14, 2020, we received a shocking Order declaring preclusion
as of March 11, 2020 without providing defense counsel with an opportunity to be heard on the
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merits. As previously mentioned, all motions in Supreme Court, Kings County are orally argued.
Defense counsel never had the opportunity to present the merits of our arguments in court before
this Order was handed down.
22. At the time of the filing of plaintiff's motion, only a Preliminary Conference had
been held in this matter. A Compliance Conference was held later on. Issue was joined by the
plaintiffs'
defendant on September 20, 2019, only three-and-a-half months before counsel filed
the Motion to Compel that resulted in the Interim Order and the preclusionary Order uploaded on
July 14, 2020. Despite the fact that this is still a relatively new case, all discovery has been
exchanged and counsel was in the process of scheduling depositions before the decision was made
to preclude the defendant from testifying at trial.Despite nationwide closures of offices and courts
due to the global pandemic, despite the handling attorney being unaware of the Interim Order until
the time had passed to respond, and despite the fact that defense coundwas not provided with
plaintiffs'
the opportunity to present its argument regarding motion in court, all pre-deposition
paper discovery has been completed, in a matter that was filed less than one year ago. A
Compliance Conference, administratively adjourned due to COVID-19 from May 20, 2020, is now
scheduled for October 13, 2020, more than two months from the filing of the instañt motion. The
note of issue date is October 16, 2020 and this has never been extended. This case was moving
forward without delay until COVID came. We could have stillcompleted all discovery even with
the Court closures by October 16, 2020 but for this clearly erroneous order and unnecessary motion
practice and appeal of the order.
23. Since the decision on the motion, there have been multiple tcicphane conversations
between plaintiff's counsel and defense counsel. In fact, on a phone call on July 16, 2020, two
days after Judge Knipel's Order was entered in the office of the County Clerk and electronically
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decision."
filed, plaintiff's counsel admitted that the Order constituted a "bad in furtherance of the
argument that this decision was unfair to defense counsel and drastic, especially for a case under
a year old, plaintiff's counsel also remarked "Never did I think they would preclude your client
responses."
from testifying; I just wanted my Once again, plaintiff's counsel has received all
responses, and the case has continued to progress with no further discovery issues.
24. . The order of preclusion should never have been issued as there was no display of
any willful or contmñacious behavior of the part of the defendants. The case was 3 ½-MONTHS
old, counsel had a lengthy trial in October and November 2019, the holiday season took over the
remaining time and a response was issued before the return date of the motion. The case was
moving forward with discovery. We had a number of calls and emails with plaintiff's counsel.
We agreed to conduct the plaintiff's deposition at her home to accommodate her condition and the
family in order not to inconvenience them and there is nothing involved in this case which
establishes any pattern of disobedience or neglect to discovery obligations. It has long been held
that striking the Answer of a party based on discovery violations is an extreme and drastic penalty
which is warranted only where the conduct is clearly deliberate and contumacious. Henry
(1"
Rosenfield, Inc.v. Bower & Gardner, 161 A.D.2d 374, 555, N.Y.S.2d 312 Dept. 1990); Hunter
(1"
Mechanical Corp. v Salkind, 237 A.D.2d 180, 654 N.Y.S.2d 381 Dept. 1987). The plaintiffs
have failed to clearly demonstrate that the defendant's failure to comply with disclosure
obligations was willful, contumacious or in bad faith. See Pezhman v. Department of Educ. Of
(1st
City of New York, 79 A.D.3d 543, 911 N.Y.S.2d 906 Dept. 2010) [Plaintiff's motion denied
because itfailed to meet burden demonstrating willful, contumacious or bad faith by defendants].
25. It iswell settled that a motion seeking the extraordinary remedy of the striking of a
pleading is rarely granted, and is considered only in those instances where "the moving party shows
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faith."
conclusively that the failure to disclose was willful, contümacious or in bad Roman c. Coty
(1"
of New York, 38 A.D.442, 821 N.Y.S.2d 528 Dept. 2007). For that reason, "[t]he drastic
sanction of striking pleadings is only justified in response to a failure to comply with a discovery
order when the moving party shows conclusively that the failure to disclose was willful,
faith."
contumacious or in bad Christian v. City of New York, 269 A.D.2d 135, 703 N.Y.S.2d 5
(18"
Dept. 2000).
26. The decisions above plainly turn on the interpretation of the term "willful",-and the
jurisprudence of the First Department of the Appellate Division demonstrates that the operative
"willful"
term is to be construed very narrowly indeed. In Mann v. Cooper Tire Co., 33 A.D.3d
(1"
24, 816 N.Y.S.2d 45 Dept. 2006), the First Department examined the term in more detail, and
delineated the nature of the required conduct that, unlike simple law office failure, can in fact
constitute a finding of willfulness. Specifically, the Appellate Division announced that willful
conduct consists of "improperly withholding documents; willfully concealing evidence; willfully
concealing the existence of discoverable information; and destroying documents itknew or should
have known would become material in litigation". Mann..33 A.D.3d at 30. In short, willful conduct
is that which deliberately attempts to conceal pertinent materials for the purpose of frustrating the
discovery process. Id.
plaintiffs'
27. The settled jurisprudence controlling the relief sought in motion
"harshest"
explicitly holds that the striking of the defendant's Answer is the penalty, and it is
showing"
therefore incumbent on the plaintiff to demonstrate with a "clear that the defendants
acted willfully. To make such a showing, there must be evidence of an outward attempt to
"withhold" "conceal"
or discoverable information that causes prejudice to the plaintiff in its
absence. The case should be resolved on merits and not on procedural grounds like a conditional
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preclusion order which demands compliance 4 months before the order is issued with no history
of bad faith and seven months left on the discovery standards and goals date. There is was a clear
misapprehension of the facts and the law by this court in issuing this order and itmust be remedied.
28. Moreover, the fact that the interim order was not seen by the handling attorney since
he works in the Mineola office and the case was handled by a first year associate in the New York
City office also constitutes a reasonable excuse of law office failure and another ground to remedy
the order that was issued even though preclusion was not in the interim order. I was preparing full
time,for a traumatic injury injury trialthat was dropped on my lap the firstweek of February kept
. my focus on the trialpreparations and motions. Itis axiomatic that the deteññination of what
constitutes a reasüñable excuse lies within the court's discretion (see, Young Su Hwañgbo v.
Nastro, 153 AD3d 963 [2d Dept., 2006]). The relevant factors for the Court to consider include
"the extent ofthe delay, whether there has been prejudice to the opposing party, whether there has
been willfulness, and the strong public policy in favor of resolving cases on the merits (Young Su
Hwangbo v. Na_s_tro, 153 AD3d 963, 965, supra; se_e. also,Lyubomirsky v. Lubov Arulin, PLLC,
125 AD3d 614 [2d Dept., 2014]).
29. In the instant matter, the minor delay in responding to these requests (the Interim
Order stated the defendants responses to the additional requests were due by March 11, 2020 and
plaintiff exchanged an entirely new demand for the material in April that was properly and timely
responded to in did not prejudice plaintiff's counsel - in as stated plaintiff's
May 2020) fact, above,
counsel had the requested information in his possession for several months before the Order dated
July 8, 2020 and uploaded and received on July 14, 2020 was decided, and the case has been
moving forward. During the Court closures, plaintiff counsel and I were trying.to schedule the
testimony of Jacob Ohana and then the defendant as we were both concerned about the impact of
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COVID on us and our clients. A Compliañcê Conference was held in this matter within a few days
plaintiffs'
of the first appearance on the motion. The Preliminary Conference was held in
November 2019, and Court conferences have been adjourned since that time. A further
Compliance Conference in this matter, originally scheduled for May 20, 2020, has been adjourned
Plaintiffs'
to October 13, 2020. counsel has had responses to alldemands for months, and has been
able to locate the ñouparty witness with the information defense counsel provided. Defense
counsel is ready, willing, and able to continue with depositions.
30. Significantly, clerical oversight and law office failure may constitute a reasonable
excuse for default, particularly where, as here, there is a lack of willfulness (s_ee,De Bartolo v. De
46 AD3d supra - that "the failure of a law office paralegal to
Bartolo, 739, holding properly diary
served"
the date for the opposition... to be constituted a reasonable excuse for defaulting; Valure
v. 35 AD3d supra - where defendant failed to fileopposition to plaintiff's
Century 21, 591, timely
motion for summary judgment as a consequence of inadvertent law office failure, the court vacated
the default and remitted the matter to the mation court for a new determination on the merits).
31. Moreover, the Court has specifically instructed that law office failure is more likely
to be deemed a reasonable excuse where it issupported by a detailed and credible explanation of
the default (Rocco v. Family Foot Cen_ten supra; Valure v. Century 21, supra).
32. The facts of Rocco v. Family Foot Center (supra) are directly on point. In that case,
motion"
the Court reasoned that "the failure of [her] attorney's firm to diary the return date of [the]
constituted a reasonable excuse for the default, particularly where her attorney's default was
inadvertent (Rocco, supra at 1079).
33. Here, the law office inadvertently failed to calendar the directives contained within
the Interim Order, I was preparing for a trial that had just been assigned to me as a prtner was
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leaving the firm, I worked in the Long Island office and the motion was covered by a first year
associate in the New York office and for these reasons failed to respond to the directives of the
Interim Order within the directed time period. Once again, once defense counsel was served with
new demands by plaintiff's counsel for the information requested in the Interim Order, served after
the deadline in the Interim Order had passed, defense counsel responded to the plaintiff's
already
plaintiffs'
demands. Please find, annexed collectively hereto as Exhibit "J", second set of
discovery demands and the defendant's responses.
plaintiffs'
34. In the Court's Order, dated July 8, 2020, the Court granted the motion.
In doing so, the Court failed to provide the defendants with the opportunity to argue the motion,
as would have been provided ifthe Court
Preview
FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X CHAVA MUSIKANT OHANA and JACOB OHANA ' Index No.: 519039/2019 Plaintiffs ' AFFIRMATION IN SUPPOR_T -agamst- RANDOLPH WITHERSPOON, Defendant. X David P. Feehan, an attorney duly admitted to practice law before the Courts of the State of New York affirms, under the penalties of perjury the following: 1. I am a member of the law firm of Hannum Feretic Prendergast & Merlino, LLC attorneys for the defend ant RANDOLPH WITHERSPOON, and as such I am familiar with fully the facts and circumstances of this matter from a review of the filemaintained by this office. 2. This affirmation is in support of the motion for rearguement, for a protective order, and for the extension of the discovery deadline. This case was commenced in August 2019. Issue was joined in late September 2019. A preliminary conference was held November 2019. The plaintiff made a motion to compel from the defendant in 2020, when the case discovery January . was just 3 ½ months old. The defendmta complied with the discovery demands and interposed opposition to the motion. An interim order was issued which sought clarification and additional information that was not in the initialdemands exchanged by plaintiff. Basically, itwanted a phone number for the nonparty witness and color photographs instead of the black and white photos of damage to a car that were provided. The interim order did not contain any preclusion language and the motion was adjourned to March 27, 2020. The courts closed on March 20, 2020 and we awaited the motion to be re-calendared. In the meanwhile, plaintiff and defendant continued to exchange 1 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 discovery and agreed that some information may need to be subject to motion practice, namely the phone number of the nonparty witness secured by our pre-suit investigation. Everything else was resolved. On July 14, 2020 an order was filed on theCourt's e-filing system, which was essentially a conditional preclusion order which required compliance with a deadline 4 months in the past! The order is unfair, and does not take into account that the case was only 4 months old when the motion was made, discovery was moving forward with no delays, there was no willful or contumacious activity to ignore court orders and that the end discovery date was November 2020. It also basically precludes the defendant from testifying for exchanging black and white photos instead of color and protecting a phone number of a nonparty witness when we already provided a name and address. 3. Therefore, this motion seeks (1) an Order for leave to reargue the decision of Justice Knipel in response to plaintiff's motion to strike; (2) a Protective Order with respect to the Court's Order dated July 8, 2019 as itrelates to the production of information obtained by.our investigator during the course of his investigation in anticipation of litigation, pursuant to CPLR §3103 and 3101 (d); (3) to extend discovery for the Ex amination Before Trial of the defendant and Independent Medical Examinations of the plaintiff Chava Musikant Ohana; and (4) for such other and further relief as the Court deems just, necessary and proper. Please find, annexed hereto as plaintiffs' Exhibit "A", January 10, 2020 motion to strike the defendant's Answer due to outstanding discovery and the exhibits. The defendant's Affirmation in Opposition to plaintiff's . . motion, affirming that complete responses had been provided to all of the plaintiff's outstanding "C" demands and exhibits are annexed hereto as Exhibit "B". Annexed hereto as Exhibit is the February 10, 2020 Interim Order, containing no preclusionary language, requesting the defendant to provide additional information and adjourning the plaintiff's motion to March 27, 2020. 2 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 Annexed hereto as Edebit "D", please find the Order dated July 8, 2020 and electronically filed on July 14, 2020, incorrectly deciding the plaintiff's motion and misapprehending law as to willful and contumacious activity as well as the relevant facts of the case. PRELIMINARY STATEMENT 4. This lawsuit seeks recovery for personal injuries arising from a claim by plaintiff/pedestrian, CHAVA OHANA, who states that on June 26, 2018, she was struck by the vehicle operated by defendant, RANDOLPH WITHERSPOON, on East New York Avenue in Brooklyn, New York. This is a very serious, atypical motor vehicle case, wherein the vehicle owned and operated by the defendant struck plaintiff Chava Ohana when the plaintiff darted out mid-block and attempted to cross the street in front of him. Defense counsel performed an investigation and found a non-party witness to the event, Nina Gibson, and has shared information plaintiffs' for the witness with counsel. This case is defensible on liability and will be the subject of a =mmary judgmeñt motion based on the testimony of Mr. Witherspoon and Ms. Gibson, who both say that plaintiff attempted to cross the street midblock without warning entering the moving lane of traffic directly into the moving vehicle. Please find, annexed hereto as Exhibit "E", the Police Accident Report regarding the incident. This case is also unusual in that there is a significant amount of insurance coverage available, $2,500,000.00, which requires every effort to be fair to both sides and not to issue preclusion of a defense based on duplicate color photos and a phone number when preclusion was not even part of the order directing the exchange of the additional material. 5. As more thoroughly discussed below, this Court should provide the requested relief as (1) this Court denied the defendant the opportunity to argue the plaintiff s motion before the motion was marked "fully submitted"; (2) as the plaintiff is wrongly seeking information procured 3 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 by an investigator in anticipation of litigation pursuant to CPLR §3103 and 3101(d); and (3) because directives of the Court's July 8, 2020 Order are moot since the plaintiff served a further demand for the requested information which was responded to and we proceeded forward with the litigation following receipt of the requested information from defense counsel. RELEVANT PROCEDURAL HISTORY 6. The plaintiffs, Chava Musikant Ohana and Jacob Ohana, commenced this action for the June 26, 2018 accident (Police Accident Report annexed hereto as Exhibit "E") with the filing of a Summons and Complaint on August 28, 2019, The Summons and Complaint is annexed hereto as Exhibit "F". The defedant, Itandolph Witherspoon, joined issue with the filing of an Answer on September 20, 2019. The Answer is annexed hereto as Exhibit "G". 7. On November 18, 2019, a Preliminary Conference was held regarding this matter and a Preliminary Conference was entered into. Please find, annexed hereto as Exhibit "H", a copy of the Preliminary Conference Order. As a point of clarification defense counsel was involved in a lengthy trial in Supreme Court New York County with jury selection starting in October 2019 and a verdict rendered the first week of December 2019 of $102,000,000.00 in the case of Perez v Beach Concerts which consumed his ability to respond to the preliminary conference immediately. . 8. On January 10, 2020, plaintiff's counsel filed a motion to strike the defendant's Answer due to outstanding discovery. On February 7, 2020, the defendant filed an Affirmation in Opposition to plaintiff's motion affirming that complete responses had been provided to all of the plaintiffs' "A" plaintiff's outstanding demands. The motion is annexed above as Exhibit and the defendant's opposition is annexed above as Exhibit "B". 9.. On February 4, 2020, we conducted the deposition of plaintiff, Chava Ohana, at her home to accommodate the plaintiff's needs. 4 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 plaintiffs' 10. In its opposition, defense counsel responded to all of the demañds. Plaintiffs' counsel reviewed our responses and then made additional demands at the return date, "C" that resulted in an Interim Order. On February 10, 2020, an Interim Order (Exhibit above) was entered into whereby the defendant was requested (in addition to the responses provided on February 7, 2020), (1) to p1ovide information for witness, Nina Gibson, including an address and phone number (ifin the possession of coüñsel); (2)to provide color photographs of the defendant's vehicle; (3) to provide plaintiff with copies of damages estimates, invoices, and repair bills for the defendant's vehicle; and (4) to provide a deposition date for the defendant after the completion of the deposition of plaintiff Jacob Ohana. This Interim Order also adjourned the plaintiff's motion to March 27, 2020. Importantly, the Interim Order contains no preclusionary language or threats of striking an answer. 11. The February 10, 2020 Interim Order set forth demands in addition to the demands plaintiffs' previously served by counsel, as defense counsel had fully responded to those demands in the responses contained in the Affirmation in Opposition annexed above as Exhibit "B", in plaintiffs' response to motion to preclude responses. 12. As previously explained, the defendanthas since responded to all of these demands. The new requests contained in the Interim Order were followed up on during the COVID-19 plaintiffs' quarantine period with demands served by counsel in April 2020 and responded to by plaintiffs' defense counsel in May 2020. In addition, defense coüñsel spoke with counsel and plaintiffs' advised counsel that some of the requested information (the phone number for witness Nina Gibson) was qualified as investigation in preparation of litigation, which is further discussed in Point 2 of this motion. 13. It isour position that a failure to provide color photographs and minor details by a 5 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 date certain (especially without providing defense counsel with an opportunity to make arguments plaintiffs' on the merits, and considering that counsel has since received this information and has pmceeded to litigate the case with this information available to him), is trivial and not worthy of such a drastic measure as preclusion from testifying and does not evince a callous or renegade attitude towards discovery obligations, 14. Electronic filing was closed and Court appearances were halted on March 22, 2020 pursuant to the state's Executive order andA dministrative Order AO/78/20. Please find the Administrative Order annexed hereto as Exhibit "I". Although the Part Rules for the Central Compliance Part in Supreme Court, Kings County state that oral argument must be heard on every motion, the motion was adjourned without a date and a decision rendered without the opportunity to appear and argue on the motion. 15. On July 8, 2020, Hon. Lawrence Knipel drafted an Order (annexed above as Exhibit "D") deciding the plaintiff s motion. The Order states (1) that the defendant is precluded from testifying at trialif the defeñdaat diêÍiot provide responses to the directives of the Interim Order by March 10, 2020 (although the Interim Order contained no preclusionary language); and (2) any that has not been deposed August 2020 is precluded from at trial.This self- party by 14, testifying executing Order, decided without providing defense counsel an opportunity to cure any .. deficiencies, was entered in the office of the County Clerk and electronically filed on July 14, 2020. ARGUMENT POINT 1 PLAINTIFFS' THE MOTION SHO__ULD BE REARGUED AS THE COURT MISAPPREHENDED THE RELEVANT FACTS AND MISAPPLIED THE CONTROLLING PRINCIPLES OF LAW IN ITS DECISION 6 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 16. A motion for rearguement is addressed to the sound discretion of the court and may be granted upon a showing that the court. overlooked or misapprehended the relevant facts or misapplied any controlling principle of law. Rizzotto v. Allstate Ins. Co., 300 A.D.2d 562, 752 (2nd N.Y.S/2d 538 Dept. 2002). 17: Plaintiff's motion was originally returnable in Supreme Court, Kings County in the Central Compliance Part on February 10, 2020. Pursuant to the Part Rules of the Kings County Central Compliance Part, oral argument is required on all motions Despite the defendants providing complete responses to alldemands served by the plaintiffs before that date, plaintiff's counsel refused to withdraw their motlon. Instead, plaintiff's counsel demanded further responses (without serving new demands), and had the motion adjourned to March 27, 2020 in the Interim order annexed above as Exhibit "C". A junior associate was taken advantage of at the conference, and agreed to provide some discovery that was not discoverable. The Interim Order also directed the defendants to provide additional information by March 10, 2020, ahead of the March 27, 2020 return date. As the State of New York was put on PAUSE pursuant to Executive Order on March 22, 2020, the courts closed and motion appearances were impossible. As such, defense counsel was not provided with the mandatory opportunity to present its arguments regarding the plaintiff's motion, the overreach, and the mistake made by a first-year associate. 18. Due to inadvertent law office failure, the handling attorney did not become aware of the Interim Order until the time to respond had already passed, as the handling attorney was in the midst of preparing for an imminent trial in Supreme Court, Queens County, Valdivia v W&L Group (Index Number 710797/2015), that was assigned to me at the last minute prior to the time the Interim Order was entered into. This trial abscoñded nearly every hour of every day for the month of February 2020. The handling attorney never saw the Interim Order, and never knew we 7 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 owed a supplemental response to our discovery. 19. It iswell-established that a motion to reargue will be granted only "upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling law." (2nd principle of McGill v. Goldman, 261 A.D.2d 593, at 594, 691 N.Y.S.2d 75 Dept. 1999) (emphasis supplied); see also, CPLR §2221; Wechsler v. First Unum Life Insurance Company, (2nd 295 A.D.2d 340, 742 N.Y.S.2d 668 Dept. 2002). In Mcgill, the Appellate Division, Second Department went on to state that a motion to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present argamêñts presented." different from those originally I.d. 20. By the deadline provided for discovery in the Interim Order, the nation had already risk" begun to suffer from the effects of COVID-19. I am "high with respect to COVID-19, and was instructed by my doctors to stop working in order to decrease the likelihood of contracting COVID-19. The last full day I worked was Friday March 13, 2020 when I stopped working and did not return to the office. By the following Monday, March 23, 2020, the law office was closed due to the State's Executive Order, and the Interim Order was inadvertently lost in the shuffle. It would have been dealt with on the March 27, 2020 in person return date in CCP and worked out. 21. Notwithstanding the above, responses to those demands have since been provided to plaintiff's counsel, and the case has been moving forward. Plaintiff's counsel has not been prejudiced, and had in fact been working with the requested information for several months before the Order precluding the defendants from testifying at trial was decided. The defendant has plaintiffs' provided complete responses to all of demâñds. It isour position that we complied with all demanded discovery, until on July 14, 2020, we received a shocking Order declaring preclusion as of March 11, 2020 without providing defense counsel with an opportunity to be heard on the 8 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 merits. As previously mentioned, all motions in Supreme Court, Kings County are orally argued. Defense counsel never had the opportunity to present the merits of our arguments in court before this Order was handed down. 22. At the time of the filing of plaintiff's motion, only a Preliminary Conference had been held in this matter. A Compliance Conference was held later on. Issue was joined by the plaintiffs' defendant on September 20, 2019, only three-and-a-half months before counsel filed the Motion to Compel that resulted in the Interim Order and the preclusionary Order uploaded on July 14, 2020. Despite the fact that this is still a relatively new case, all discovery has been exchanged and counsel was in the process of scheduling depositions before the decision was made to preclude the defendant from testifying at trial.Despite nationwide closures of offices and courts due to the global pandemic, despite the handling attorney being unaware of the Interim Order until the time had passed to respond, and despite the fact that defense coundwas not provided with plaintiffs' the opportunity to present its argument regarding motion in court, all pre-deposition paper discovery has been completed, in a matter that was filed less than one year ago. A Compliance Conference, administratively adjourned due to COVID-19 from May 20, 2020, is now scheduled for October 13, 2020, more than two months from the filing of the instañt motion. The note of issue date is October 16, 2020 and this has never been extended. This case was moving forward without delay until COVID came. We could have stillcompleted all discovery even with the Court closures by October 16, 2020 but for this clearly erroneous order and unnecessary motion practice and appeal of the order. 23. Since the decision on the motion, there have been multiple tcicphane conversations between plaintiff's counsel and defense counsel. In fact, on a phone call on July 16, 2020, two days after Judge Knipel's Order was entered in the office of the County Clerk and electronically 9 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 decision." filed, plaintiff's counsel admitted that the Order constituted a "bad in furtherance of the argument that this decision was unfair to defense counsel and drastic, especially for a case under a year old, plaintiff's counsel also remarked "Never did I think they would preclude your client responses." from testifying; I just wanted my Once again, plaintiff's counsel has received all responses, and the case has continued to progress with no further discovery issues. 24. . The order of preclusion should never have been issued as there was no display of any willful or contmñacious behavior of the part of the defendants. The case was 3 ½-MONTHS old, counsel had a lengthy trial in October and November 2019, the holiday season took over the remaining time and a response was issued before the return date of the motion. The case was moving forward with discovery. We had a number of calls and emails with plaintiff's counsel. We agreed to conduct the plaintiff's deposition at her home to accommodate her condition and the family in order not to inconvenience them and there is nothing involved in this case which establishes any pattern of disobedience or neglect to discovery obligations. It has long been held that striking the Answer of a party based on discovery violations is an extreme and drastic penalty which is warranted only where the conduct is clearly deliberate and contumacious. Henry (1" Rosenfield, Inc.v. Bower & Gardner, 161 A.D.2d 374, 555, N.Y.S.2d 312 Dept. 1990); Hunter (1" Mechanical Corp. v Salkind, 237 A.D.2d 180, 654 N.Y.S.2d 381 Dept. 1987). The plaintiffs have failed to clearly demonstrate that the defendant's failure to comply with disclosure obligations was willful, contumacious or in bad faith. See Pezhman v. Department of Educ. Of (1st City of New York, 79 A.D.3d 543, 911 N.Y.S.2d 906 Dept. 2010) [Plaintiff's motion denied because itfailed to meet burden demonstrating willful, contumacious or bad faith by defendants]. 25. It iswell settled that a motion seeking the extraordinary remedy of the striking of a pleading is rarely granted, and is considered only in those instances where "the moving party shows 10 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 faith." conclusively that the failure to disclose was willful, contümacious or in bad Roman c. Coty (1" of New York, 38 A.D.442, 821 N.Y.S.2d 528 Dept. 2007). For that reason, "[t]he drastic sanction of striking pleadings is only justified in response to a failure to comply with a discovery order when the moving party shows conclusively that the failure to disclose was willful, faith." contumacious or in bad Christian v. City of New York, 269 A.D.2d 135, 703 N.Y.S.2d 5 (18" Dept. 2000). 26. The decisions above plainly turn on the interpretation of the term "willful",-and the jurisprudence of the First Department of the Appellate Division demonstrates that the operative "willful" term is to be construed very narrowly indeed. In Mann v. Cooper Tire Co., 33 A.D.3d (1" 24, 816 N.Y.S.2d 45 Dept. 2006), the First Department examined the term in more detail, and delineated the nature of the required conduct that, unlike simple law office failure, can in fact constitute a finding of willfulness. Specifically, the Appellate Division announced that willful conduct consists of "improperly withholding documents; willfully concealing evidence; willfully concealing the existence of discoverable information; and destroying documents itknew or should have known would become material in litigation". Mann..33 A.D.3d at 30. In short, willful conduct is that which deliberately attempts to conceal pertinent materials for the purpose of frustrating the discovery process. Id. plaintiffs' 27. The settled jurisprudence controlling the relief sought in motion "harshest" explicitly holds that the striking of the defendant's Answer is the penalty, and it is showing" therefore incumbent on the plaintiff to demonstrate with a "clear that the defendants acted willfully. To make such a showing, there must be evidence of an outward attempt to "withhold" "conceal" or discoverable information that causes prejudice to the plaintiff in its absence. The case should be resolved on merits and not on procedural grounds like a conditional 11 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 preclusion order which demands compliance 4 months before the order is issued with no history of bad faith and seven months left on the discovery standards and goals date. There is was a clear misapprehension of the facts and the law by this court in issuing this order and itmust be remedied. 28. Moreover, the fact that the interim order was not seen by the handling attorney since he works in the Mineola office and the case was handled by a first year associate in the New York City office also constitutes a reasonable excuse of law office failure and another ground to remedy the order that was issued even though preclusion was not in the interim order. I was preparing full time,for a traumatic injury injury trialthat was dropped on my lap the firstweek of February kept . my focus on the trialpreparations and motions. Itis axiomatic that the deteññination of what constitutes a reasüñable excuse lies within the court's discretion (see, Young Su Hwañgbo v. Nastro, 153 AD3d 963 [2d Dept., 2006]). The relevant factors for the Court to consider include "the extent ofthe delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits (Young Su Hwangbo v. Na_s_tro, 153 AD3d 963, 965, supra; se_e. also,Lyubomirsky v. Lubov Arulin, PLLC, 125 AD3d 614 [2d Dept., 2014]). 29. In the instant matter, the minor delay in responding to these requests (the Interim Order stated the defendants responses to the additional requests were due by March 11, 2020 and plaintiff exchanged an entirely new demand for the material in April that was properly and timely responded to in did not prejudice plaintiff's counsel - in as stated plaintiff's May 2020) fact, above, counsel had the requested information in his possession for several months before the Order dated July 8, 2020 and uploaded and received on July 14, 2020 was decided, and the case has been moving forward. During the Court closures, plaintiff counsel and I were trying.to schedule the testimony of Jacob Ohana and then the defendant as we were both concerned about the impact of 12 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 COVID on us and our clients. A Compliañcê Conference was held in this matter within a few days plaintiffs' of the first appearance on the motion. The Preliminary Conference was held in November 2019, and Court conferences have been adjourned since that time. A further Compliance Conference in this matter, originally scheduled for May 20, 2020, has been adjourned Plaintiffs' to October 13, 2020. counsel has had responses to alldemands for months, and has been able to locate the ñouparty witness with the information defense counsel provided. Defense counsel is ready, willing, and able to continue with depositions. 30. Significantly, clerical oversight and law office failure may constitute a reasonable excuse for default, particularly where, as here, there is a lack of willfulness (s_ee,De Bartolo v. De 46 AD3d supra - that "the failure of a law office paralegal to Bartolo, 739, holding properly diary served" the date for the opposition... to be constituted a reasonable excuse for defaulting; Valure v. 35 AD3d supra - where defendant failed to fileopposition to plaintiff's Century 21, 591, timely motion for summary judgment as a consequence of inadvertent law office failure, the court vacated the default and remitted the matter to the mation court for a new determination on the merits). 31. Moreover, the Court has specifically instructed that law office failure is more likely to be deemed a reasonable excuse where it issupported by a detailed and credible explanation of the default (Rocco v. Family Foot Cen_ten supra; Valure v. Century 21, supra). 32. The facts of Rocco v. Family Foot Center (supra) are directly on point. In that case, motion" the Court reasoned that "the failure of [her] attorney's firm to diary the return date of [the] constituted a reasonable excuse for the default, particularly where her attorney's default was inadvertent (Rocco, supra at 1079). 33. Here, the law office inadvertently failed to calendar the directives contained within the Interim Order, I was preparing for a trial that had just been assigned to me as a prtner was 13 of 19 FILED: KINGS COUNTY CLERK 08/12/2020 01:36 PM INDEX NO. 519039/2019 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2020 leaving the firm, I worked in the Long Island office and the motion was covered by a first year associate in the New York office and for these reasons failed to respond to the directives of the Interim Order within the directed time period. Once again, once defense counsel was served with new demands by plaintiff's counsel for the information requested in the Interim Order, served after the deadline in the Interim Order had passed, defense counsel responded to the plaintiff's already plaintiffs' demands. Please find, annexed collectively hereto as Exhibit "J", second set of discovery demands and the defendant's responses. plaintiffs' 34. In the Court's Order, dated July 8, 2020, the Court granted the motion. In doing so, the Court failed to provide the defendants with the opportunity to argue the motion, as would have been provided ifthe Court