Preview
FILED: NEW YORK COUNTY CLERK 08/11/2020 10:31 PM INDEX NO. 156979/2019
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID MARRERO, Index No.: 156979/2019
Plaintiff, AFFIRMATION OF
ATTORNEY IN SUPPORT
-against- OF MOTION FOR A
DEFAULT JUDGMENT
AS TO DEFENDANT
"JOHN"
CITY OF NEW YORK, THE NEW YORK CITY CAPTAIN
"JOHN"
DEPARTMENT OF CORRECTION, CAPTAIN THOMAS
DOES"
THOMAS Shield #1120 and "JOHN (Correction
Officers whose names are not yet known or identified),
Defendants.
PAMELA S. ROTH, an attorney at law, duly admitted to practice law before the
Courts of the State of New York, and I am the attorney for the Plaintiff herein, affirms the
following to be true under the penalties of perjury.
1. That I am the attorney of record for the Plaintiff in the above-entitled action; and, as
such, I am fully familiar with the facts and circumstances heretofore had herein.
2. This affirmation is respectfully submitted in support of Plaintiff's motion for an
Order, pursuant to §3215 (a) (b), of the Civil Practice Law and Rules, permitting entry of a default
"JOHN"
judgment against the Defendant, CAPTAIN THOMAS Shield #1120; and further,
directing an inquest against said Defendants who are in default, and further placing this matter on
the inquest calendar for assessment of damages, pursuant to CPLR §215, by reason of
Defendants'
failure to furnish an Answer, move or otherwise plead in response to Plaintiff's
Summons and Verified Complaint, or otherwise extend the time to answer or reply to said
pleadings for an extended period of time in excess of thirty (30) days after service of plaintiff's
Summons and Verified Complaint; and, for such further and different relief as this Court may
deem just and proper.
3. This is an action to recover monetary damages for personal injuries sustained by Plaintiff,
DAVID MARRERO, for the following occurrence, to wit: The nature of the action is to recover
money damages against Defendants for committing acts under color of law, assault, battery,
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harassment, intentional infliction of emotional harm, violation of civil rights pursuant to 42
U.S.C. Section 1983, the use of excessive force upon Plaintiff, the failure to supervise and protect
Plaintiff while in the care and custody of the New York City Department of Correction on or
about April 4, 2018, at approximately 12:30 P.M. inside Bellevue Hospital Medical Center,
located at 462 First Avenue, New York, New York, when Plaintiff was transferred from the
19th 16th
prison ward on the floor to a standard hospital wing on the floor, room 42. As Plaintiff
lay in his bed at 16 West Room 42, attached to an intravenous drip line delivering chemotherapy
medicines directly into a pic line in his arm, defendant Captain Thomas entered Plaintiff's room.
Defendant Thomas suddenly and without provocation became enraged, called Plaintiff derogatory
and racial slurs, then set about attacking, assaulting and beating Plaintiff. Plaintiff sustained
serious physical and mental injuries, abrasions, bruise and trauma. Plaintiff was denied medical
attention for many hours and endured pain and suffering. Plaintiff's injuries were serious and
necessitated medical treatment and physical therapy.
4. This action was commenced against the Defendants herein on July 17, 2019, by
electronic filing (e-filing) of Plaintiff's Summons & Verified Complaint at the County Clerk's
Office, New York County, 60 Centre Street, New York , New York. Annexed hereto and made a
"A"
part hereof as Exhibit is a duplicate copy of Plaintiff's Summons and Verified Complaint.
5. Plaintiff's Summons and Verified Complaint was served upon Defendant
"JOHN"
CAPTAIN THOMAS Shield #1120 on August 28, 2019 at Defendant's actual place of
business upon a person of suitable age and discretion named Mr. Cornello as he refused to state
his true first name at the address of NYC Department of Correction at 75-20 Astoria Boulevard,
East Elmhurst, NY 11370 and a true copy of same mailed in a postpaid wrapper properly
"JOHN"
addressed to Defendant CAPTAIN THOMAS Shield #1120 at NYC Department of
Correction at 75-20 Astoria Boulevard, East Elmhurst, NY 11370. The Affidavit of Service was
thereafter filed with the clerk of New York County on July 1, 2020, a copy of which is annexed
hereto as Exhibit "B".
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6. More than one hundred twenty (120) days have elapsed and Defendant CAPTAIN
"JOHN"
THOMAS Shield #1120 has failed to furnish an Answer, plead, move, reply or
otherwise extend the time in which to answer in connection with the above-entitled action.
Defendant is required to respond to Plaintiff's Complaint in a timely manner but, at present, there
has been no service of said Answer or request to extend Defendant's time to serve a responsive
pleading.
"JOHN"
7. That the Defendant CAPTAIN THOMAS Shield #1120 herein is in
default for a prolonged and extended period of time and, in short, the time for Defendant
"JOHN"
CAPTAIN THOMAS Shield #1120 to answer, move, reply or otherwise stipulate has
"JOHN"
expired. Defendant CAPTAIN THOMAS Shield #1120 has failed to respond concerning
this incident of April 4, 2018.
"JOHN" THOMAS'
8. That Defendant CAPTAIN default in furnishing an Answer,
pleading or other reply to Plaintiff's Complaint mandates an Order permitting entry of a default
"JOHN"
judgment against Defendant CAPTAIN THOMAS Shield #1120 in the sum set forth in
"JOHN"
the Summons and Complaint; and in favor of Plaintiff and against Defendant CAPTAIN
THOMAS Shield #1120 herein and/or further directing an inquest against Defendant CAPTAIN
"JOHN"
THOMAS Shield #1120 and placing this matter on the inquest calendar for assessment
"JOHN"
of damages against Defendant CAPTAIN THOMAS Shield #1120 in default, pursuant
to CPLR §3215, in the above-entitled action and for such other, further and different relief as to
this Court may deem just and proper.
9. In spite of the fact that my office has determined the Defendants herein including
"JOHN"
Defendant CAPTAIN THOMAS Shield #1120, to be the proper parties to this action,
and has to date proceeded in the prescribed manner to unveil their role and ultimate culpable
"JOHN"
conduct in the events which led to the within incident, Defendant CAPTAIN THOMAS
Shield #1120 has willfully and deliberately failed to make a timely appearance and defend those
claims asserted against him and, therefore, has defaulted.
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"JOHN" THOMAS'
10. The Defendant CAPTAIN default herein has been intentional
or willful on their part; designed to prejudice and/or hamper Plaintiff's ability to litigate this
action expeditiously.
11. Plaintiff has a meritorious cause of action and it is your affirmant's belief that
sound public policy and judicial equity mandates that the issues involved herein be decided on the
merits. It is in the Court's discretion to grant this Motion as it would greatly prejudice this
Plaintiff if thisMotion and its requested relief is not granted.
12. In view of the foregoing, the within application is made pursuant to CPLR Section
3215(a), which states:
Section 3215. Default Judgment.
(a) Default and entry. When a defendant has failed to appear, plead or proceed
to trialof an action..., the plaintiff may seek a default judgment against him. If
the plaintiff's claim is for a certain sum or for a sum which can by computation be
made certain, application may be made to the clerk within one year after the
default. The clerk, upon submission of the requisite proof, shall enter judgment
for the amount demanded in the complaint or stated in the notice service pursuant
to subdivision (b) of the rule 305, plus costs and interest.
13. For all of the foregoing reasons, itis respectfully requested that in addition to the
specific relief sought herein, that costs, attorney's fees and sanctions be awarded to Plaintiff's
"JOHN"
attorney, to be paid by Defendant CAPTAIN THOMAS Shield #1120 due to his cavalier
disregard exhibited herein, including the necessity of the within application, in the event this
Court sees fit not to enter a default judgment at this time.
14. No previous application for the relief sought herein has ever been made to this or
any other Court.
15. This Motion is being brought within the one (1) year period.
WHEREFORE, itis respectfully requested that an Order be entered, pursuant to CPLR
§3215(a)(b), directing that a default judgment be entered in favor of the Plaintiff against
"JOHN"
Defendant CAPTAIN THOMAS Shield #1120 herein and setting this matter down for
an inquest in favor of the Plaintiff, assessing damages for a sum which can, by computation, be
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attorneys'
made certain, awarding costs, fees and sanctions to Plaintiffs attorney, and for such
other and further relief which to this Court seems just and proper.
Dated: Brooklyn, New York
August 11, 2020
mela S. Roth, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 08/11/2020 10:31 PM INDEX NO. 156979/2019 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/11/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAVID MARRERO, Index No.: 156979/2019 Plaintiff, AFFIRMATION OF ATTORNEY IN SUPPORT -against- OF MOTION FOR A DEFAULT JUDGMENT AS TO DEFENDANT "JOHN" CITY OF NEW YORK, THE NEW YORK CITY CAPTAIN "JOHN" DEPARTMENT OF CORRECTION, CAPTAIN THOMAS DOES" THOMAS Shield #1120 and "JOHN (Correction Officers whose names are not yet known or identified), Defendants. PAMELA S. ROTH, an attorney at law, duly admitted to practice law before the Courts of the State of New York, and I am the attorney for the Plaintiff herein, affirms the following to be true under the penalties of perjury. 1. That I am the attorney of record for the Plaintiff in the above-entitled action; and, as such, I am fully familiar with the facts and circumstances heretofore had herein. 2. This affirmation is respectfully submitted in support of Plaintiff's motion for an Order, pursuant to §3215 (a) (b), of the Civil Practice Law and Rules, permitting entry of a default "JOHN" judgment against the Defendant, CAPTAIN THOMAS Shield #1120; and further, directing an inquest against said Defendants who are in default, and further placing this matter on the inquest calendar for assessment of damages, pursuant to CPLR §215, by reason of Defendants' failure to furnish an Answer, move or otherwise plead in response to Plaintiff's Summons and Verified Complaint, or otherwise extend the time to answer or reply to said pleadings for an extended period of time in excess of thirty (30) days after service of plaintiff's Summons and Verified Complaint; and, for such further and different relief as this Court may deem just and proper. 3. This is an action to recover monetary damages for personal injuries sustained by Plaintiff, DAVID MARRERO, for the following occurrence, to wit: The nature of the action is to recover money damages against Defendants for committing acts under color of law, assault, battery, 1 of 5 FILED: NEW YORK COUNTY CLERK 08/11/2020 10:31 PM INDEX NO. 156979/2019 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/11/2020 harassment, intentional infliction of emotional harm, violation of civil rights pursuant to 42 U.S.C. Section 1983, the use of excessive force upon Plaintiff, the failure to supervise and protect Plaintiff while in the care and custody of the New York City Department of Correction on or about April 4, 2018, at approximately 12:30 P.M. inside Bellevue Hospital Medical Center, located at 462 First Avenue, New York, New York, when Plaintiff was transferred from the 19th 16th prison ward on the floor to a standard hospital wing on the floor, room 42. As Plaintiff lay in his bed at 16 West Room 42, attached to an intravenous drip line delivering chemotherapy medicines directly into a pic line in his arm, defendant Captain Thomas entered Plaintiff's room. Defendant Thomas suddenly and without provocation became enraged, called Plaintiff derogatory and racial slurs, then set about attacking, assaulting and beating Plaintiff. Plaintiff sustained serious physical and mental injuries, abrasions, bruise and trauma. Plaintiff was denied medical attention for many hours and endured pain and suffering. Plaintiff's injuries were serious and necessitated medical treatment and physical therapy. 4. This action was commenced against the Defendants herein on July 17, 2019, by electronic filing (e-filing) of Plaintiff's Summons & Verified Complaint at the County Clerk's Office, New York County, 60 Centre Street, New York , New York. Annexed hereto and made a "A" part hereof as Exhibit is a duplicate copy of Plaintiff's Summons and Verified Complaint. 5. Plaintiff's Summons and Verified Complaint was served upon Defendant "JOHN" CAPTAIN THOMAS Shield #1120 on August 28, 2019 at Defendant's actual place of business upon a person of suitable age and discretion named Mr. Cornello as he refused to state his true first name at the address of NYC Department of Correction at 75-20 Astoria Boulevard, East Elmhurst, NY 11370 and a true copy of same mailed in a postpaid wrapper properly "JOHN" addressed to Defendant CAPTAIN THOMAS Shield #1120 at NYC Department of Correction at 75-20 Astoria Boulevard, East Elmhurst, NY 11370. The Affidavit of Service was thereafter filed with the clerk of New York County on July 1, 2020, a copy of which is annexed hereto as Exhibit "B". 2 of 5 FILED: NEW YORK COUNTY CLERK 08/11/2020 10:31 PM INDEX NO. 156979/2019 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/11/2020 6. More than one hundred twenty (120) days have elapsed and Defendant CAPTAIN "JOHN" THOMAS Shield #1120 has failed to furnish an Answer, plead, move, reply or otherwise extend the time in which to answer in connection with the above-entitled action. Defendant is required to respond to Plaintiff's Complaint in a timely manner but, at present, there has been no service of said Answer or request to extend Defendant's time to serve a responsive pleading. "JOHN" 7. That the Defendant CAPTAIN THOMAS Shield #1120 herein is in default for a prolonged and extended period of time and, in short, the time for Defendant "JOHN" CAPTAIN THOMAS Shield #1120 to answer, move, reply or otherwise stipulate has "JOHN" expired. Defendant CAPTAIN THOMAS Shield #1120 has failed to respond concerning this incident of April 4, 2018. "JOHN" THOMAS' 8. That Defendant CAPTAIN default in furnishing an Answer, pleading or other reply to Plaintiff's Complaint mandates an Order permitting entry of a default "JOHN" judgment against Defendant CAPTAIN THOMAS Shield #1120 in the sum set forth in "JOHN" the Summons and Complaint; and in favor of Plaintiff and against Defendant CAPTAIN THOMAS Shield #1120 herein and/or further directing an inquest against Defendant CAPTAIN "JOHN" THOMAS Shield #1120 and placing this matter on the inquest calendar for assessment "JOHN" of damages against Defendant CAPTAIN THOMAS Shield #1120 in default, pursuant to CPLR §3215, in the above-entitled action and for such other, further and different relief as to this Court may deem just and proper. 9. In spite of the fact that my office has determined the Defendants herein including "JOHN" Defendant CAPTAIN THOMAS Shield #1120, to be the proper parties to this action, and has to date proceeded in the prescribed manner to unveil their role and ultimate culpable "JOHN" conduct in the events which led to the within incident, Defendant CAPTAIN THOMAS Shield #1120 has willfully and deliberately failed to make a timely appearance and defend those claims asserted against him and, therefore, has defaulted. 3 of 5 FILED: NEW YORK COUNTY CLERK 08/11/2020 10:31 PM INDEX NO. 156979/2019 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/11/2020 "JOHN" THOMAS' 10. The Defendant CAPTAIN default herein has been intentional or willful on their part; designed to prejudice and/or hamper Plaintiff's ability to litigate this action expeditiously. 11. Plaintiff has a meritorious cause of action and it is your affirmant's belief that sound public policy and judicial equity mandates that the issues involved herein be decided on the merits. It is in the Court's discretion to grant this Motion as it would greatly prejudice this Plaintiff if thisMotion and its requested relief is not granted. 12. In view of the foregoing, the within application is made pursuant to CPLR Section 3215(a), which states: Section 3215. Default Judgment. (a) Default and entry. When a defendant has failed to appear, plead or proceed to trialof an action..., the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a certain sum or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice service pursuant to subdivision (b) of the rule 305, plus costs and interest. 13. For all of the foregoing reasons, itis respectfully requested that in addition to the specific relief sought herein, that costs, attorney's fees and sanctions be awarded to Plaintiff's "JOHN" attorney, to be paid by Defendant CAPTAIN THOMAS Shield #1120 due to his cavalier disregard exhibited herein, including the necessity of the within application, in the event this Court sees fit not to enter a default judgment at this time. 14. No previous application for the relief sought herein has ever been made to this or any other Court. 15. This Motion is being brought within the one (1) year period. WHEREFORE, itis respectfully requested that an Order be entered, pursuant to CPLR §3215(a)(b), directing that a default judgment be entered in favor of the Plaintiff against "JOHN" Defendant CAPTAIN THOMAS Shield #1120 herein and setting this matter down for an inquest in favor of the Plaintiff, assessing damages for a sum which can, by computation, be T- 4 T1 of 5 FILED: NEW YORK COUNTY CLERK 08/11/2020 10:31 PM INDEX NO. 156979/2019 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/11/2020 attorneys' made certain, awarding costs, fees and sanctions to Plaintiffs attorney, and for such other and further relief which to this Court seems just and proper. Dated: Brooklyn, New York August 11, 2020 mela S. Roth, Esq. 5 of 5