On July 17, 2019 a
Motion-Secondary
was filed
involving a dispute between
Alan Stein,
Dina Stein,
and
David Goldberg,
for Torts - Motor Vehicle
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DINA STEIN and ALAN STEIN,
AFFIRMATION IN
OPPOSITION
Plaintiffs,
-against- Index No. 157010/19
DAVID GOLDBERG, Hon. Adam Silvera
Defendant.
JONATHAN R. RATCHIK, an attorney duly admitted to practice
law before the Courts of the State of New York, affirms the truth of the following
statements under the penalty of perjury:
1. I am a partner with the firm of KRAMER, DUNLEAVY &
RATCHIK, PLLC, attorneys for the plaintiffs DINA STEIN and ALAN STEIN in the
above-captioned action.
2. I am fully familiar with the facts and circumstances
hereinafter set forth, said knowledge been gained through a review of the
having
file on this matter maintained at our offices.
3. This affirmation is submitted in opposition to the
defendant's cross-motion which seeks an Order granting him a protective order
striking items three and four of plaintiff's First Notice to Admit and for such other
relief as the Court may deem just and proper.
4. An order denying the defendant's cross-motion is
warranted on the grounds that itis untimely and arguably moot in light of
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020
plaintiffs'
motion for summary judgment on the issue of liability and the
defendant's own affidavit. Denial of the defendant's cross-motion is further
warranted on the grounds that the matters of fact upon which plaintiff sought
admissions were within the knowledge of the defendant and did not seek
admissions on facts which went to the heart of this controversy.
5. At the outset, the Court should deny the defendant's
cross-motion for a protective order without even considering the merits thereof on
the grounds that it is untimely. Plaintiffs served their First Notice to Admit on
October 4, 2019 (Def. Exhibit "B"). Although defendant timely served a Response
to same (Def. Exhibit "C"), plaintiff subsequently advised the defendant, by letter,
dated October 30, 2019, that his Response was inadequate and that plaintiffs
would deem items 3 and 4 of their First Notice as having been admitted (Def.
"D").1
Exhibit If the defendant was to seek a protective order, he should have
done so, at the latest, by November 24, 2019. Defendant has not set forth any
excuse, no less a reasonable one, for his failure to timely seek a protective order
sooner. it appears defendant's cross-motion is more than a knee-
Rather, nothing
jerk reaction to plaintiff's motion for judgment and a smoke-screen
summary
designed to distract the Court and create a feigned issue of fact where none exists.
6. Denial of the defendant's cross-motion for a protective
order is further warranted on the grounds that itis moot. Plaintiff has moved for
1
Defendant's Response was not sworn to under of the defendant himself but
penalty perjury by
simply signed by defense counsel. defendant objected to certain
Additionally, improperly
matters of fact even though could have been admitted (or denied).
they readily
2
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FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020
summary judgment on the issue of liability. In opposition, defendant did not raise
any material issues of fact or dispute the factual basis upon which plaintiffs sought
96th
summary judgment: that plaintiff Dina Stein was crossing West street within
the crosswalk and with the pedestrian signal in her favor when she was struck by
West 96th
the defendant's vehicle which was making a left turn onto street from
West End Avenue. In his own affidavit, defendant did not dispute that his vehicle
struck plaintiff and even admitted that he was making a left turn at the time of the
incidentT It is puzzling why the defendant would seek a protective order with
respect to facts he has already admitted.
7. Finally, denial of the defendant's cross-motion for a
protective order is warranted on the grounds that the matters upon fact upon
which plaintiff sought admissions were entirely proper and could readily be
answered by the defendant, i.e. that defendant was making a left turn onto West
96th and
Street that his vehicle came in contact with plaintiff while doing so. In
fact, defendant actually admitted item number 3 in the affidavit he submitted in
opposition to plaintiff's motion for summary judgment on the issue of liability
(Goldberg Affidavit, ¶ 10). Both matters of fact could have been admitted
readily
or denied by the defendant and could not be, as defense counsel claimed, subject to
varying interpretations.
8. Nor did the matters of fact upon which plaintiff sought
admissions go to the heart of the controversy in this case. Plaintiff did not ask the
defendant to admit that he was negligent or that he failed to yield the right of way.
3
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020
Such admissions would arguably have been improper as they go to the very
dispute of this action. The matters upon which plaintiff sought admissions were
straightforward factual assertions which the defendant could have readily
admitted or denied. Moreover, inasmuch as there is no dispute that the
defendant's vehicle was making a left turn at the time of the incident and came in
contact with plaintiff while doing so, defendant's refusal to admit same was in bad
faith. Under these circumstances, plaintiffs properly deemed items three and four
of their First Notice to Admit as having been admitted.
WHEREFORE, based upon the foregoing, plaintiffs respectfully
request that the Court deny the defendant's cross-motion for a protective order in
its entirety and for such other relief as the Court may deem just and proper.
Dated: New York, New York
January 30, 2020
J R. RATCHIK
4
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Document Filed Date
January 30, 2020
Case Filing Date
July 17, 2019
Category
Torts - Motor Vehicle
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FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DINA STEIN and ALAN STEIN, AFFIRMATION IN OPPOSITION Plaintiffs, -against- Index No. 157010/19 DAVID GOLDBERG, Hon. Adam Silvera Defendant. JONATHAN R. RATCHIK, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following statements under the penalty of perjury: 1. I am a partner with the firm of KRAMER, DUNLEAVY & RATCHIK, PLLC, attorneys for the plaintiffs DINA STEIN and ALAN STEIN in the above-captioned action. 2. I am fully familiar with the facts and circumstances hereinafter set forth, said knowledge been gained through a review of the having file on this matter maintained at our offices. 3. This affirmation is submitted in opposition to the defendant's cross-motion which seeks an Order granting him a protective order striking items three and four of plaintiff's First Notice to Admit and for such other relief as the Court may deem just and proper. 4. An order denying the defendant's cross-motion is warranted on the grounds that itis untimely and arguably moot in light of 1 of 4 FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020 plaintiffs' motion for summary judgment on the issue of liability and the defendant's own affidavit. Denial of the defendant's cross-motion is further warranted on the grounds that the matters of fact upon which plaintiff sought admissions were within the knowledge of the defendant and did not seek admissions on facts which went to the heart of this controversy. 5. At the outset, the Court should deny the defendant's cross-motion for a protective order without even considering the merits thereof on the grounds that it is untimely. Plaintiffs served their First Notice to Admit on October 4, 2019 (Def. Exhibit "B"). Although defendant timely served a Response to same (Def. Exhibit "C"), plaintiff subsequently advised the defendant, by letter, dated October 30, 2019, that his Response was inadequate and that plaintiffs would deem items 3 and 4 of their First Notice as having been admitted (Def. "D").1 Exhibit If the defendant was to seek a protective order, he should have done so, at the latest, by November 24, 2019. Defendant has not set forth any excuse, no less a reasonable one, for his failure to timely seek a protective order sooner. it appears defendant's cross-motion is more than a knee- Rather, nothing jerk reaction to plaintiff's motion for judgment and a smoke-screen summary designed to distract the Court and create a feigned issue of fact where none exists. 6. Denial of the defendant's cross-motion for a protective order is further warranted on the grounds that itis moot. Plaintiff has moved for 1 Defendant's Response was not sworn to under of the defendant himself but penalty perjury by simply signed by defense counsel. defendant objected to certain Additionally, improperly matters of fact even though could have been admitted (or denied). they readily 2 2 of 4 FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020 summary judgment on the issue of liability. In opposition, defendant did not raise any material issues of fact or dispute the factual basis upon which plaintiffs sought 96th summary judgment: that plaintiff Dina Stein was crossing West street within the crosswalk and with the pedestrian signal in her favor when she was struck by West 96th the defendant's vehicle which was making a left turn onto street from West End Avenue. In his own affidavit, defendant did not dispute that his vehicle struck plaintiff and even admitted that he was making a left turn at the time of the incidentT It is puzzling why the defendant would seek a protective order with respect to facts he has already admitted. 7. Finally, denial of the defendant's cross-motion for a protective order is warranted on the grounds that the matters upon fact upon which plaintiff sought admissions were entirely proper and could readily be answered by the defendant, i.e. that defendant was making a left turn onto West 96th and Street that his vehicle came in contact with plaintiff while doing so. In fact, defendant actually admitted item number 3 in the affidavit he submitted in opposition to plaintiff's motion for summary judgment on the issue of liability (Goldberg Affidavit, ¶ 10). Both matters of fact could have been admitted readily or denied by the defendant and could not be, as defense counsel claimed, subject to varying interpretations. 8. Nor did the matters of fact upon which plaintiff sought admissions go to the heart of the controversy in this case. Plaintiff did not ask the defendant to admit that he was negligent or that he failed to yield the right of way. 3 3 of 4 FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/30/2020 Such admissions would arguably have been improper as they go to the very dispute of this action. The matters upon which plaintiff sought admissions were straightforward factual assertions which the defendant could have readily admitted or denied. Moreover, inasmuch as there is no dispute that the defendant's vehicle was making a left turn at the time of the incident and came in contact with plaintiff while doing so, defendant's refusal to admit same was in bad faith. Under these circumstances, plaintiffs properly deemed items three and four of their First Notice to Admit as having been admitted. WHEREFORE, based upon the foregoing, plaintiffs respectfully request that the Court deny the defendant's cross-motion for a protective order in its entirety and for such other relief as the Court may deem just and proper. Dated: New York, New York January 30, 2020 J R. RATCHIK 4 4 of 4