Motion-Secondary: Michel Abboud v. Madison Kyle Realty Corp., Variety Entertainment Group, Llc

On July 17, 2019 a Motion-Secondary was filed involving a dispute between Michel Abboud, and Madison Kyle Realty Corp., Variety Entertainment Group, Llc, for Torts - Other (premise) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 02/20/2020 02:51 PM INDEX NO. 157006/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/20/2020

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_________________..----------------------------------X
MICHEL ABBOUD, Index No.: 157006/2019

Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
- against - (Motion Seq. No. 001)

MADISON KYLE REALTY CORP. and VARIETY Justice Assigned:
ENTERTAINMENT GROUP, LLC, Hon. David Benjamin Cohen

Defendants. Return Date: 3/11/20
__ _______________------------------X
LORI F. GRAYBOW, an attorney and counselor at law duly admitted to practice in the

State of New York, affirms the truth of the following upon information and belief and under the

penalties of perjury states as follows:

1. I am associated with the law firm of HAVKINS ROSENFELD RITZERT &

VARRIALE, LLP, attorneys for Defendant VARIETY ENTERTAINMENT GROUP, LLC

(hereinafter referred to as "Variety"), and I am fully familiar with all of the pleadings and

proceedings had herein by virtue of a review of the documents contained in the file maintained

by my office.

2. This affirmation is submitted in support of Variety's Motion, seeking: (i) an

Order, pursuant to CPLR 3126(3), striking Plaintiff MICHEL ABBOUD's (hereinafter referred

to as the "Plaintiff") Complaint with prejudice based upon Plaintiff's willful failure to comply

with the Court's January 8, 2020 Preliminary Conference Order, and Variety's January 15, 2020

and February 5, 2020 good faith letters; or in the alternative, (ii) an Order, pursuant to CPLR

3126(2), precluding Plaintiff from offering any evidence in support of his claims of proximate

cause and damages at the time of trial based upon Plaintiff's failure to comply with the Court's

January 8, 2020 Preliminary Conference Order, and Variety's January 15, 2020 and February 5,

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2020 good faith letters; or in the alternative, (iii)a self-executing conditional Order pursuant to

CPLR 3042 and CPLR 3124, compelling Plaintiff to comply with the Court's January 8, 2020

Preliminary Conference Order, and Variety's January 15, 2020 and February 5, 2020 good faith

letters,by a date certain or be precluded without further motion pursuant to CPLR 3124; and (iv)

for such other and further relief as this Court may deem just and proper under the circumstances,

including the costs and expenses of making this Motion.

RELEVANT PROCEDURAL HISTORY

3. Plaintiff filed a Summons and Complaint on or about July 17, 2019, a true and

"A"
complete copy of which is annexed hereto as Exhibit (NYSCEF Doc. No. 1).

4. Variety joined issue by the filing of an Answer on September 14, 2019 (NYSCEF

Doc. No. 4). An Amended Answer was filed on September 16, 2019 (NYSCEF Doc. No. 5).

5. On October 18, 2019, a Consent to Change Attorney was filed, indicating that the

law firm of HAVKINS ROSENFELD RITZERT & VARRIALE, LLP would be taking over the

"B"
representation of Variety, a true and complete copy of which is annexed hereto as Exhibit

(NYSCEF Doc. No. 6).

6. On October 18, 2019, Variety served a Demand for Bill of Particulars and

Combined Demands, true and complete copies of which are annexed hereto collectively as

Exhibit "C".

7. On November 15, 2019, co-defendant MADISON KYLE REALTY CORP. filed

"D"
an Answer, a true and complete copy of which is annexed hereto as Exhibit (NYSCEF Doc.

No. 1 1).

8. On November 15, 2019, a stipulation allowing Variety to file a Second Amended

Answer was filed (NYSCEF Doc. No. 12), and a Second Amended Answer was simultaneously

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filed. A true and complete copy of Variety's Second Amended Answer is annexed hereto as

"E"
Exhibit (NYSCEF Doc. No. 13).

9. On January 8, 2020, a Preliminary Conference was held. At the Preliminary

defendants'
Conference, Plaintiff s counsel handed the attorneys courtesy copies of Plaintiff's

Bill of Particulars and Response to Combined Demands, true and complete copies of which are

annexed hereto collectively as Exhibit "F". To date, we have not received any service of these

documents via mail.

10. The Court's January 8, 2020 Preliminary Conference Order directed Plaintiff to

serve a Bill of Particulars and all previously-demanded authorizations by January 22, 2020. A

true and complete copy of the Court's January 8, 2020 Preliminary Conference Order is annexed

"G"
hereto as Exhibit (NYSCEF Doc. No. 16).

11. On January 15, 2020, Variety sent a good faith letter to Plaintiff s counsel,

detailing the deficiencies contained in Plaintiff s Bill of Particulars and Response to Combined

Demands, a true and complete copy of which is annexed hereto as Exhibit "H".

12. On February 5, 2020, Variety sent a second good faith letter to Plaintiff s counsel,

indicating that our firm still had not received any original authorizations, which were to be

served by January 22, 2020, pursuant to the Court's January 8, 2020 Preliminary Conference

Order, and again requesting a supplemental bill of particulars and supplemental response to

combined demands, a true and complete copy of which is annexed hereto as Exhibit "I".

13. Specifically, as indicated in our aforementioned good faith letters,we continue to

require a supplemental bill of particulars as to demand numbers:

a. 5 (The approximate time of the alleged occurrence was not provided, and
is required pursuant to CPLR 3043.);

b. 7, 8 and 13 (The allegations concerning the happening of the accident and
the allegedly defective condition at issue are vague and itremains unclear

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as to how Plaintiff's accident occurred or what the defect is. As such, we
require further particularization as to how Plaintiff was caused to fall
while on stage and what dangerous or unsafe condition allegedly caused
the alleged incident.);

c. 10 and 12 (Plaintiff claims both actual and constructive notice, but
Plaintiff does not alleged notice witnesses - such information
identify any
should be supplemented within thirty [30] days of the completion of

depositions, pursuant to CPLR 3043.);

d. 18 (Plaintiff indicated that the time of confinement to home and/or bed
was "to be provided", although said information must be provided,
pursuant to CPLR 3043.);

e. 19 (Plaintiff indicated that the time of confinement to hospital or other
health care facilitywas "to be provided".);

f. 20 (Time Plaintiff was totally disabled);

g. 21 (Time Plaintiff was partially disabled);

h. 22(c) (It is unclear whether Plaintiff is claiming a loss of earnings, and, if

so, Plaintiff must provide the amount of lost earnings claimed, his salary,
the dates he was unable to work and the manner in which said loss is

computed.);

i. 23 (It is unclear whether any of the claimed special damages were paid for

by any collateral source.);

j. 24 (Plaintiff stated that he is self-employed as a musician. We had
requested that Plaintiff indicate whether he has held any other jobs in the
five (5) years preceding the underlying occurrence, the name and address
of his employer(s) and his annual earnings for those five years. If Plaintiff
has not held any job other than as a self-employed musician for the five
years preceding the underlying occurrence, we requested Plaintiff's annual
earnings for those years.); and

k. 29 (Plaintiff stated that the defendants violated various Building Code
sections that are unrecognizable as phrased in the Bill of Particulars. As

such, we require Plaintiff to clarify what Building Code sections are being
referenced.).

14. Additionally, as indicated in our aforementioned good faith letters, we require the

following:

a. A duly-executed authorization to receive Plaintiff's self-employment
business records;

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b. A duly-executed authorization to receive Plaintiff's tax records;

c. A duly-executed authorization to receive Plaintiff's records from Bellevue
Medical Center in Lebanon;

d. A duly-executed authorization to receive Plaintiff's pharmacy records;

e. A duly-executed authorization to receive Plaintiff's ambulance/EMS
services records;

f. Duly-executed authorizations to receive Plaintiff's collateral source

records;

g. A duly-executed authorization to receive Plaintiff's physical therapy
records; and

b. A duly-executed authorization to receive Plaintiff's radiology records and
films.

15. Furthermore, as indicated in our aforementioned good faith letters, we require the

following:

a. Supplemental responses to our Notice for Discovery and Inspection as to
the following items: (1) receipts, billing statements and/or invoices related
to the within action, including documentation of special damages; (2) any
and all receipts, credit card statements or proof of payment for any food or
beverages at the defendant's premises on the date of the occurrence
alleged in the complaint and within one (1) week prior to the date of the
occurrence alleged in the complaint; and (3) any contracts or documents

pertaining to plaintiff's appearance at the defendant's premises on the date
of the occurrence alleged in the complaint and within one (1) week prior
to the date ofthe occurrence alleged in the complaint; and

b. A supplemental response to our Demand for Social Media Information.

16. Judicial intervention is required as we have not received any response our January

15, 2020 or February 5, 2020 good faith letters.

ARGUMENT

17. Plaintiff's failure to comply with the Court's January 8, 2020 Preliminary

Conference Order, and Variety's January 15, 2020 and February 5, 2020 good faith letters

warrants the striking of Plaintiff's Complaint. Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 863

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N.Y.S.2d 193 (1st Dep't 2008), aff'd, 12 N.Y.3d 846, 881 N.Y.S.2d 390 (2009); Figiel v. Met

Food, 48 A.D.3d 330 (1st Dep't 2008); Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725,

786 N.Y.S.2d 379 (2004); Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004);

Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999); Couri v. Siebert, 48 A.D.3d 370 (1st

Dep't 2008); Goldstein v. CIBC World Markets Corp., 30 A.D.3d 217 (1st Dep't 2006); Fish &

Richardson, P.C. v. Schindler, 75 A.D.3d 219 (1st Dep't 2010). It isrespectfully requested that

the Court strike Plaintiff's Complaint, pursuant to CPLR 3126(3), based upon Plaintiff's willful

failure to comply with the Court's January 8, 2020 Preliminary Conference Order, and Variety's

January 15, 2020 and February 5, 2020 good faith letters.

18. CPLR § 3126 sets forth in relevant part as follows:

If any person. . .refuses to obey an order for disclosure or willfully
fails to disclose information which the Court finds ought to have
been disclosed, pursuant to notice duly served, the Court may
make such orders with regard to the failure or refusal as are just

among them:

* * * *

(2) An order prohibiting the disobedient party from

supporting or opposing designated claims or defenses, from

producing in evidence designated things or items of testimony, or
from introducing any evidence of the physical, mental or blood
conditions sought to be determined, or from using certain
witnesses: or

(3) An Order striking all pleadings or parts thereof, or

staying further proceedings until the Order is obeyed, or dismissing
the action or any part thereof or rendered a judgment by default
against disobedient party.

19. If party fails to comply with a court's order and thereby frustrates disclosure, itis

within the trial court's discretion to dismiss the Complaint. Citing an earlier Court of Appeals

decision in which the Court of Appeals found that a "plaintiff, through delays and other

strategies, engaged in a course of conduct designed to yield one-sided disclosure in his favor,

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interrogatories,"
culminating in his disregard of an order compelling him to answer [defendant's]

the Kihl court stated "[r]egrettably, it is not only the law but also the scenario that is all too

familiar."
Kihl, supra, citing Zletz v. Wetanson, 67 N.Y.2d 711, 713, 499 N.Y.S.2d 933, 490

N.E.2d 852 (1986). The Kihl court in upholding the dismissal of a pleading continued "if the

credibility of court orders and the integrity of our judicial system are to be maintained, a litigant

cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for

courts to be able to command compliance with their disclosure directives, has specifically

just,' action."
provided that a 'court may make such orders as are including dismissal of an Kihl,

supra. See also Smith v. Eastern Long Island Hosp., 263 A.D.2d 477,692 N.Y.S.2d 726 (2d

Dep't 1999) (motion to strike pleading improperly denied and an improvident exercise of

discretion where plaintiff failed to comply with court-ordered discovery, multiple discovery

demands, offer a valid excuse for her noncompliance, or to object to the discovery demands such

that plaintiff's failure permitted an inference that her noncompliance was willful).

20. Given Plaintiff's lack of compliance with the Court's January 8, 2020 Preliminary

Conference Order, and Variety's January 15, 2020 and February 5, 2020 good faith letters,there

is no need for the Court to provide Plaintiff with merely a warning and allow Plaintiff another

opportunity to comply with outstanding discovery. Under the circumstances herein, Plaintiff's

disregard of his discovery obligations warrants the Court's striking the Complaint and no further

warning is required. Fish & Richardson, P.C., supra.

21. Alternatively, it is respectfully requested that the Court preclude Plaintiff from

offering any evidence in support of his claims of proximate cause and damages at the time of

trial based upon Plaintiff's failure to comply with the Court's January 8, 2020 Preliminary

Conference Order, and Variety's January 15, 2020 and February 5, 2020 good faith letters,

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pursuant to CPLR 3126(2). As such, in the event that the Court does not strike Plaintiff's

Complaint, pursuant to CPLR 3126(3), it is respectfully submitted that this Court should

incorporate preclusion language into an Order which would serve the intended purpose of

punishing Plaintiff, while not prejudicing Variety. The only preclusion language that would

satisfy that purpose would be to preclude Plaintiff from offering any evidence supporting his

proximate cause and damages claims, pursuant to CPLR 3126(2).

22. Alternatively, it is respectfully requested that the Court issue a self-executing

conditional Order pursuant to CPLR 3042 and CPLR 3124, compelling Plaintiff to comply with

the Court's January 8, 2020 Preliminary Conference Order, and Variety's January 15, 2020 and

February 5, 2020 good faith letters,by a date certain or be precluded without further motion

pursuant to CPLR 3124.

23. CPLR R. 3042 provides as follows:

to respond to a demand in a timely fashion or fails to comply fully
with a demand, the party seeking the Bill of Particulars may move

to compel compliance, or, if such failure is willful, for the
imposition of penalties pursuant to subdivision (d) of this rule.

(d) Penalties for Refusal to Comply. If a party served with a
Demand for a Bill of Particulars willfully fails to provide
particulars which the Court finds ought to have been provided

pursuant to this rule, the Courts may make such final or conditional

order with regard to the failure or refusal as is just,including such

relief as set forth in §3126 of this Chapter.

24. The time for Plaintiff to serve proper responses has not been extended or enlarged

by stipulation, motion, order or otherwise and the attorneys for the Plaintiff have not written this

office requesting additional time to serve responses, upon any showing or averment of a

reasonable need therefore. No motion has been made to strike or modify any of the above listed

demands nor has any objection heretofore been made to any item contained in said demands.

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25. As Plaintiff has failed to timely move for a protective order or to vacate or modify

the prior Court Order, Plaintiff has waived any objections to the discovery directed therein.

Burch v. Gould, 149 A.D.2d 784, 539 N.Y.S.2d 577 (3d Dep't 1989); Muller v. Sorensen, 138

A.D.2d 683, 526 N.Y.S.2d 496 (2d Dep't 1988); Zurich Ins. Co. v. State Farm Mut. Auto. Ins.

Co., 137 A.D.2d 401, 524 N.Y.S.2d 202 (1st Dep't 1988). The failure by Plaintiff to timely

move for a protective order, "forecloses all inquiries concerning the propriety of the notice of

discovery and inspection and the information sought...thereunder, except as to matters of

privilege under CPLR §3101". Dallery v. LaGuardia Hosp., 130 A.D.2d 543, 515 N.Y.S.2d

276, 278 (2d Dep't 1987). No such claim has been made by the Plaintiff and it is Plaintiff's

burden of proof that the material sought is privileged. See Liga v. Long Island Railroad, 121

A.D.2d 606, 503 N.Y.S.2d 1001 (2d Dep't 1986); See also Sprague v. International Business

Machines Corp., 114 A.D.2d 1025, 495 N.Y.S.2d 462 (2d Dep't 1985); Cipriano v. Righter, 100

A.D.2d, 923, 474 N.Y.S.2d 839 (2d Dep't 1984).

26. No motion to vacate or modify the demands served to date was ever served by

Plaintiff and their time to make such a motion pursuant to CPLR §3042(1) has expired. Due to

Plaintiff's failure to move for an order vacating or modifying the demands, the validity of the

demands will not be questioned and Plaintiff is precluded from raising such issues at thistime.

Morello v. Saratoga Harness Racing, Inc., 44 A.D.2d 884, 356 N.Y.S.2d 114, 117 (3d Dep't

1974); Helfant v. Rappaport, 14 A.D.2d 764, 220 N.Y.S.2d 285, 286 (1st Dep't 1961); W.R.

Simmons and Associates Research, Inc. v. Ziff-Davis Publishing Co., 37 Misc.2d 62, 234

N.Y.S.2d 991, 997 (Sup. Ct. New York Co. 1962).

27. In the absence of a timely motion to vacate or modify the outstanding discovery

demands, the items requested herein will not be scrutinized and an order of preclusion will be

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granted unless the demand is palpably improper; itis now too late for Plaintiff to complain about

the extensiveness of the demands and Plaintiff must comply with it in its entirety. Coin v.

Lebenokoff 10 A.D.2d 916, 200 N.Y.S.2d 441 (1st Dep't 1960); Tomasino v. Prudential

Westchester Corp., 1 A.D.2d 781, 147 N.Y.S.2d 281, 284 (Sup. Ct. Kings Co. 1967); Lopez v.

Harjac Holding Corp., 218 N.Y.S.2d 282 (Sup. Ct. Kings Co. 1961). Plaintiff must be directed

to fully and completely respond to the discovery items set forth above. Hirschfeld v. Hirschfeld,

14 A.D.2d 1006, 495 N.Y.S2d 445, 446 (2d Dep't 1985), aff'd, 69 N.Y.2d 842, 514 N.Y.S.2d

704 (1987); Bank of Babylon v. Karp., 131 A.D.2d 410, 516 N.Y.S.2d 224, 225 (2d Dep't 1987);

Gargano v. Rosenthal, 100 A.D.2d 534, 473 N.Y.S.2d 225, 226 (2d Dep't 1984).

28. The items of which disclosure have been demanded are relevant and necessary for

the defense of this action. The lack of the disclosure demanded has prejudiced, impeded and

delayed Variety in the defense of this action and shall, if full disclosure is not provided, continue

such prejudice into the future. Moreover, Variety cannot proceed with depositions in this matter

until all of the aforementioned discovery items have been provided, and all records have been

obtained in response to the authorizations that presently remain outstanding.

WHEREFORE, itis respectfully requested that this Court issue: (i) an Order, pursuant to

CPLR 3126(3), striking Plaintiff's Complaint with prejudice based upon Plaintiff's willful failure

to comply with the Court's January 8, 2020 Preliminary Conference Order, and Variety's

January 15, 2020 and February 5, 2020 good faith letters; or in the alternative, (ii)an Order,

pursuant to CPLR 3126(2), precluding Plaintiff from offering any evidence in support of his

claims of proximate cause and damages at the time of trial based upon Plaintiff's failure to

comply with the Court's January 8, 2020 Preliminary Conference Order, and Variety's January

15, 2020 and February 5, 2020 good faith letters; or in the alternative, (iii) a self-executing

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conditional Order pursuant to CPLR 3042 and CPLR 3124, compelling Plaintiff to comply with

the Court's January 8, 2020 Preliminary Conference Order, and Variety's January 15, 2020 and

February 5, 2020 good faith letters,by a date certain or be precluded without further motion

pursuant to CPLR 3124; and (iv) for such other and further relief as this Court may deem just

and proper under the circumstances, including the costs and expenses of making this Motion.

Dated: New York, New York

February 19, 2020
HAVKINS ROSENFELD RITZERT &
VARRIALE, LLP

By:
riF. G , Esq.
Attorneys for Defendant
VARIETY ENTERTAINMENT GROUP, LLC
6*
One Battery Park Plaza, Floor
New York, New York 10004

(914) 290-6341
File No.: 10671-126

TO:
Lambros Y. Lambrou, Esq.
THE LAMBROU LAW FIRM, P.C.
Attorneys for Plaintiff
MICHEL ABBOUD
45 Broadway, Suite 3120
New York, New York 10006

(212) 285-2100

David M. Stein, Esq.
Attorneys for Defendant
MADISON KYLE REALTY CORP.
585 Stewart Avenue, Suite 440
Garden City, New York 11530

(516) 877-0944

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Case Info

Judge

David B Cohen Track Judge’s New Case

Case No.

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Document Filed Date

February 20, 2020

Case Filing Date

July 17, 2019

County

Parties

GERING, GRAHAM MAXWELL Attorney for the Defendants
GRAYBOW, LORI FRAN Attorney for the Defendants
LAMBROU, LAMBROS YIANNAKOU Attorney for the Plaintiff
Madison Kyle Realty Corp. Defendant
Michel Abboud Plaintiff
ROSENFELD, STEVEN H Attorney for the Defendants
SHARMA, RAVI IVAN Attorney for the Defendants
STEIN, JONATHAN A Attorney for the Defendants
Variety Entertainment Group, LLC Defendant
DAVID STEIN Attorneys for Defendants
ALVIN STEIN Attorneys for Defendants
LUCAS FRANKEN Attorney

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Motion-Secondary: Michel Abboud v. Madison Kyle Realty Corp., Variety Entertainment Group, Llc

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