Preview
FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MICHEL ABBOUD, Index No.: 157006/2019
Plaintiff,
REPLY AFFIRMATION
- 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
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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 response to Plaintiff MICHEL ABBOUD’s
(hereinafter referred to as the “Plaintiff”) Affirmation in Opposition (NYSCEF Doc. No. 29) and
in further support of Variety’s Motion (NYSCEF Doc. Nos. 17-28), seeking: (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
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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
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.
3. While Plaintiff has provided some additional discovery in response to Variety’s
filing of the subject motion, there is still discovery which remains outstanding and/or deficient,
contrary to Plaintiff’s counsel’s allegations in his Affirmation in Opposition.
4. To date, we have only received a copy – not an original – of an authorization for
New York Presbyterian Hospital, when it was handed to us at the Preliminary Conference on
January 8, 2020. As such, we still require an original authorization for New York Presbyterian
Hospital.
5. Plaintiff now alleges in his Supplemental Bill of Particulars that he tripped “as a
result of an item of furniture”. See Exhibit “4” at ¶ 8, annexed to Plaintiff’s Affirmation in
Opposition. Said response only raises additional questions, such as what type of furniture did
Plaintiff alleged trip on? In what manner did the furniture constitute an alleged dangerous
condition? Plaintiff should be directed to provide a supplemental response, as the response
remains vague and unclear.
6. Even if Plaintiff is not alleging lost wages, Variety is still entitled to know
whether Plaintiff allegedly missed any time from work and if so, an authorization must be
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provided in order to confirm any time missed, as that goes to the extent of physical damages
being alleged.
7. At paragraph 29 of Plaintiff’s Bill of Particulars, plaintiff states “the defendants
violated the applicable rules, statutes and ordinances, which governed the activates of the
defendant … including Building Codes $ 27-37s(ex1), $ 27-37s(e)(2),5 $ 27-37s(0(1), S 27-
37s(D(2) and g 27-381(a).” See Exhibit “F” (NYSCEF Doc. No. 25). These alleged codes are
unrecognizable as phrased in the Bill of Particulars. As such, we require Plaintiff to clarify what
Building Code sections are being referenced.
8. We also note that the Complaint, Bill of Particulars and Supplemental Bill of
Particulars are all verified by Plaintiff’s counsel, whose office is located in New York County,
despite Plaintiff allegedly residing in New York County. Pursuant to CPLR §3020(d), a
verification “shall be made by…the party”. The only exception to CPLR §3020(d) is found in
CPLR §3020(d)(3), which indicates that, “if the party…is not in the county where the attorney
has his office…the verification may be made by such…attorney.” Given that Plaintiff allegedly
resides in the same county as his attorney, the verifications must be made by Plaintiff himself
and not by his attorney. As such, the verifications are improper and new verifications, made by
Plaintiff himself, should be provided.
9. Plaintiff also still has not provided the following:
a. A duly-executed authorization to receive Plaintiff’s self-employment
business records, if alleging to have missed any time from work;
b. A duly-executed authorization to receive Plaintiff’s pharmacy records;
c. A duly-executed authorization to receive Plaintiff’s ambulance/EMS
services records;
d. A duly-executed authorization to receive Plaintiff’s physical therapy
records; and
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e. A duly-executed authorization to receive Plaintiff’s radiology records and
films.
To the extent that any of the foregoing are not applicable, Plaintiff should provide an affidavit to
that extent.
10. Additionally, although Plaintiff’s counsel claims that a supplemental response to
Variety’s Notice for Discovery and Inspection was provided (see Exhibit “5”, annexed to
Plaintiff’s Affirmation in Opposition), said response fails to actually provide any additional
information and thus, does not constitute a “supplemental response”.
11. For example, Plaintiff indicated that documentation regarding special damages
“will be provided under separate cover”. Id. at response to demand number 1.
12. Plaintiff objected to Variety’s request for “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.” Id. at response to demand number 2. However, we are
entitled to ascertain whether Plaintiff purchased and/or consumed any alcohol during the time he
was at the subject premises on April 13-14, 2019.
13. Plaintiff also indicated that he was not in possession of any contracts or
documents pertaining to plaintiff’s appearance at the defendant’s premises, yet he was allegedly
at the subject premises to perform in a show, so it seems surprising that Plaintiff would not have
any documents pertaining to the event or his participation in the event. Plaintiff should be
required to provide an affidavit should he not be able to locate any related documents after a
diligent search.
14. While we continue to believe that Plaintiff’s response to Variety’s Demand for
Social Media Information is improper, as a compromise, we are willing to ask questions
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regarding social media at Plaintiff’s deposition and reserve the right to renew our demand
seeking authorizations for Plaintiff’s social media accounts. Plaintiff, of course, should preserve
his accounts and not alter or delete anything contained therein.
15. 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, it is 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
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
March 5, 2020
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FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020
HAVKINS ROSENFELD RITZERT &
VARRIALE, LLP
By:
Lori F. Graybow, Esq.
Attorneys for Defendant
VARIETY ENTERTAINMENT GROUP, LLC
One Battery Park Plaza, 6th 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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Preview
FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X MICHEL ABBOUD, Index No.: 157006/2019 Plaintiff, REPLY AFFIRMATION - 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 response to Plaintiff MICHEL ABBOUD’s (hereinafter referred to as the “Plaintiff”) Affirmation in Opposition (NYSCEF Doc. No. 29) and in further support of Variety’s Motion (NYSCEF Doc. Nos. 17-28), seeking: (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 1 of 6 FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020 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 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. 3. While Plaintiff has provided some additional discovery in response to Variety’s filing of the subject motion, there is still discovery which remains outstanding and/or deficient, contrary to Plaintiff’s counsel’s allegations in his Affirmation in Opposition. 4. To date, we have only received a copy – not an original – of an authorization for New York Presbyterian Hospital, when it was handed to us at the Preliminary Conference on January 8, 2020. As such, we still require an original authorization for New York Presbyterian Hospital. 5. Plaintiff now alleges in his Supplemental Bill of Particulars that he tripped “as a result of an item of furniture”. See Exhibit “4” at ¶ 8, annexed to Plaintiff’s Affirmation in Opposition. Said response only raises additional questions, such as what type of furniture did Plaintiff alleged trip on? In what manner did the furniture constitute an alleged dangerous condition? Plaintiff should be directed to provide a supplemental response, as the response remains vague and unclear. 6. Even if Plaintiff is not alleging lost wages, Variety is still entitled to know whether Plaintiff allegedly missed any time from work and if so, an authorization must be 2 2 of 6 FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020 provided in order to confirm any time missed, as that goes to the extent of physical damages being alleged. 7. At paragraph 29 of Plaintiff’s Bill of Particulars, plaintiff states “the defendants violated the applicable rules, statutes and ordinances, which governed the activates of the defendant … including Building Codes $ 27-37s(ex1), $ 27-37s(e)(2),5 $ 27-37s(0(1), S 27- 37s(D(2) and g 27-381(a).” See Exhibit “F” (NYSCEF Doc. No. 25). These alleged codes are unrecognizable as phrased in the Bill of Particulars. As such, we require Plaintiff to clarify what Building Code sections are being referenced. 8. We also note that the Complaint, Bill of Particulars and Supplemental Bill of Particulars are all verified by Plaintiff’s counsel, whose office is located in New York County, despite Plaintiff allegedly residing in New York County. Pursuant to CPLR §3020(d), a verification “shall be made by…the party”. The only exception to CPLR §3020(d) is found in CPLR §3020(d)(3), which indicates that, “if the party…is not in the county where the attorney has his office…the verification may be made by such…attorney.” Given that Plaintiff allegedly resides in the same county as his attorney, the verifications must be made by Plaintiff himself and not by his attorney. As such, the verifications are improper and new verifications, made by Plaintiff himself, should be provided. 9. Plaintiff also still has not provided the following: a. A duly-executed authorization to receive Plaintiff’s self-employment business records, if alleging to have missed any time from work; b. A duly-executed authorization to receive Plaintiff’s pharmacy records; c. A duly-executed authorization to receive Plaintiff’s ambulance/EMS services records; d. A duly-executed authorization to receive Plaintiff’s physical therapy records; and 3 3 of 6 FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020 e. A duly-executed authorization to receive Plaintiff’s radiology records and films. To the extent that any of the foregoing are not applicable, Plaintiff should provide an affidavit to that extent. 10. Additionally, although Plaintiff’s counsel claims that a supplemental response to Variety’s Notice for Discovery and Inspection was provided (see Exhibit “5”, annexed to Plaintiff’s Affirmation in Opposition), said response fails to actually provide any additional information and thus, does not constitute a “supplemental response”. 11. For example, Plaintiff indicated that documentation regarding special damages “will be provided under separate cover”. Id. at response to demand number 1. 12. Plaintiff objected to Variety’s request for “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.” Id. at response to demand number 2. However, we are entitled to ascertain whether Plaintiff purchased and/or consumed any alcohol during the time he was at the subject premises on April 13-14, 2019. 13. Plaintiff also indicated that he was not in possession of any contracts or documents pertaining to plaintiff’s appearance at the defendant’s premises, yet he was allegedly at the subject premises to perform in a show, so it seems surprising that Plaintiff would not have any documents pertaining to the event or his participation in the event. Plaintiff should be required to provide an affidavit should he not be able to locate any related documents after a diligent search. 14. While we continue to believe that Plaintiff’s response to Variety’s Demand for Social Media Information is improper, as a compromise, we are willing to ask questions 4 4 of 6 FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020 regarding social media at Plaintiff’s deposition and reserve the right to renew our demand seeking authorizations for Plaintiff’s social media accounts. Plaintiff, of course, should preserve his accounts and not alter or delete anything contained therein. 15. 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, it is 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 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 March 5, 2020 5 5 of 6 FILED: NEW YORK COUNTY CLERK 03/05/2020 03:43 PM INDEX NO. 157006/2019 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 03/05/2020 HAVKINS ROSENFELD RITZERT & VARRIALE, LLP By: Lori F. Graybow, Esq. Attorneys for Defendant VARIETY ENTERTAINMENT GROUP, LLC One Battery Park Plaza, 6th 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 6 6 of 6