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FILED: NEW YORK COUNTY CLERK 07/20/2016 06:10 PM INDEX NO. 157939/2015
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/20/2016
SUPREME COURT OF THE STATE OF NEV/ YORK
COLINTY OF NEW YOR
X
MICHELLE BOWMAN and TREAVA BOWMAN, AFFIRMATION IN
REPLY
Plaintiff,
Index #. 15193912015
- against - TT#: 2015-037945
MARION GREGG, GILBERT MORALES AND THE Return Date:712212016
CITY OF NEW YORK,
Defendants
X
DIANA MANAKHIMOVA, an attorney admitted to practice before the Courts of
the State of New York affirms, pursuant to Rule 2106 of the CPLR and subject to the penalties for
perjury, that the following facts are true:
1. This reply affirmation is submitted in further support of the motion of
Defendants, THE CITY OF NEW YORK and GILBERT MORALES (hereinafter "the
Defendants"), for an Order pursuant to 22 N.Y.C.R.R. ç202.21 (e), vacating Plaintiffs notice of
trial dated June 22, 2016. The Defendants have shown that discovery in the present matter is
incomplete, and Plaintiffs have failed to comply with Court Order and Compliance Conference
Stipulations requiring them to exchange all pertinent medical and employment authorizations.
2. In Opposition to the Defendants' motion, Plaintiffs assert that all discovery
demands have been complied with. However, Plaintiffs then proceed to state that "depositions of
Co-Defendants are currently scheduled." see Plaintiff Affirmation in Opposition, at fl5. Itappears
as if Plaintiffs are oblivious to the fact that if there are pending depositions, then discovery by
definition cannot be complete. Plaintiffs further go on to discuss the average time between filing of
Notice of Issue to the trial in Kings County Supreme Courl. See Plaintiff Affirmation in Opposition,
at 116. Yet this matter is venued in the New York County Supreme Court. Plaintiffs finish their
opposition, with stating that the "Notice of Issue in this case was filed on June 3, 2414 (sic), which
1 of 4
means that the trial on this case will not take place until after June 4, 2015." As has been previously
noted in the moving papers, the Notice of Trial with the Certificate of Readiness in the present
matter has been filed on June 22,2016. See Notice of Trial, annexed to moving papers as Exhibit I.
Hence, Plaintiffs argument is completely off topic. Therefore, the Defendants' motion should be
granted in its entirety.
3. As previously stated, despite the fact that discovery is incomplete, Plaintiffs
served their notice of trial on June 22, 2016. Plaintiffs filed their notice of trial with a certificate of
readiness for trial, certifying the completion of necessary discovery proceedings. See Notice of
Trial, annexed to the moving papers as Exhibit I. As part of Plaintiffs' notice of trial,Plaintiffs
claim that all discovery is complete and that discovery proceedings now known to be necessary was
completed. Contrary to Plaintiffs' claims, and despite multiple attempts on the Defendants' part,
Plaintiffs have failed to provide a Response to the Compliance Conference Stipulation of March2,
2076, Compliance Conference Stipulation of June 1, 2016 and the Case Scheduling Order dated
October 74, 2015 which required Plaintiffs to exchange all pertinent medical and employment
authorizations. See Case Scheduling Order, annexed to the moving papers as Exhibit J'
4. Plaintifß do not indicate that they received leave of the Court to file their note of
issue, nor did the Defendants stipulate that discovery is complete. Rather, the parties have never
stipulated that discovery is complete, this matter is less than one year old and in fact, pertinent items
of discovery have been outstanding since the Case Scheduling Order's issuance on October 14,
2Ol5. Additionally, the Defendants have not waived the outstanding discovery.
5. A notice of trial and certificate of readiness generally denotes that discovery
between the parties is complete and that there is no outstanding discovery. However, according to
the records maintained at the Office of Corporation Counsel, discovery between the parties is not
complete in this action. Specifically, Plaintiffs have failed to provide a Response to the Compliance
Conference Stipulation of March 2,2016, Compliance Conference Stipulation of June 1,2016 and
2
2 of 4
the Case Scheduling Order dated October 14, 2Ol5 which required Plaintiffs to exchange all
pertinent medical and employment authorizations. The Defendants would be highly prejudiced if
the plaintifß' premature filing of the notice of trial is not withdrawn as this case is not ready for
trial and the Defendants cannot fairly defend against Plaintiffs' claims without first being permitted
to engage in discovery.
6: As set forth above, discovery in this matter is patently incomplete and the filing
of the notice of trial and certificate of readiness is undeniably premature. Therefore, the Court
should strike the note of issue and allow for the completion of discovery'
WHEREFORE, it is respectfully requested that this Court grant Defendants' motion
in its entirety, and for sueh other and further relief that this Court deems proper.
Dated: New York, New York
July 20,2016
DIANA OVA
Assistant-C orporation Counsel
.!
L
TO
LOUIS C. FIABANE
Attorney for the Plaintiffs
304 East 49'r' Street
New York, NY 10017
LAW OFFICES OF JAMES J. TOOMEY
Attorney for Defendant MARION GREGG
485 Lexington Avenue, 7'l'Fl.
New York, NY 10017
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Index No. 15793912015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MICHELLE BOWMAN and TREAVA BOWMAN,
Plaintiff,
-against-
MARION GREGG, GILBERT MORALES AND THE CITY OF
NEW YORK,
Defendants.
AFFIRMATION IN SUPPORT OF MOTION
ZACHARY W. CARTER
Corporation Counsel of the City of New York
100 Church Street
New York, NY 10007
By: Diana Manakhimova
Tel.(2I2) 356-3973
LD File No.2015-037945
Due and timely service is hereby admitted.
New York, N.Y. ., 2016
....Esq.
Attorney for
2 07120/16 (r:06 PM
Rcply
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 07/20/2016 06:10 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/20/2016 SUPREME COURT OF THE STATE OF NEV/ YORK COLINTY OF NEW YOR X MICHELLE BOWMAN and TREAVA BOWMAN, AFFIRMATION IN REPLY Plaintiff, Index #. 15193912015 - against - TT#: 2015-037945 MARION GREGG, GILBERT MORALES AND THE Return Date:712212016 CITY OF NEW YORK, Defendants X DIANA MANAKHIMOVA, an attorney admitted to practice before the Courts of the State of New York affirms, pursuant to Rule 2106 of the CPLR and subject to the penalties for perjury, that the following facts are true: 1. This reply affirmation is submitted in further support of the motion of Defendants, THE CITY OF NEW YORK and GILBERT MORALES (hereinafter "the Defendants"), for an Order pursuant to 22 N.Y.C.R.R. ç202.21 (e), vacating Plaintiffs notice of trial dated June 22, 2016. The Defendants have shown that discovery in the present matter is incomplete, and Plaintiffs have failed to comply with Court Order and Compliance Conference Stipulations requiring them to exchange all pertinent medical and employment authorizations. 2. In Opposition to the Defendants' motion, Plaintiffs assert that all discovery demands have been complied with. However, Plaintiffs then proceed to state that "depositions of Co-Defendants are currently scheduled." see Plaintiff Affirmation in Opposition, at fl5. Itappears as if Plaintiffs are oblivious to the fact that if there are pending depositions, then discovery by definition cannot be complete. Plaintiffs further go on to discuss the average time between filing of Notice of Issue to the trial in Kings County Supreme Courl. See Plaintiff Affirmation in Opposition, at 116. Yet this matter is venued in the New York County Supreme Court. Plaintiffs finish their opposition, with stating that the "Notice of Issue in this case was filed on June 3, 2414 (sic), which 1 of 4 means that the trial on this case will not take place until after June 4, 2015." As has been previously noted in the moving papers, the Notice of Trial with the Certificate of Readiness in the present matter has been filed on June 22,2016. See Notice of Trial, annexed to moving papers as Exhibit I. Hence, Plaintiffs argument is completely off topic. Therefore, the Defendants' motion should be granted in its entirety. 3. As previously stated, despite the fact that discovery is incomplete, Plaintiffs served their notice of trial on June 22, 2016. Plaintiffs filed their notice of trial with a certificate of readiness for trial, certifying the completion of necessary discovery proceedings. See Notice of Trial, annexed to the moving papers as Exhibit I. As part of Plaintiffs' notice of trial,Plaintiffs claim that all discovery is complete and that discovery proceedings now known to be necessary was completed. Contrary to Plaintiffs' claims, and despite multiple attempts on the Defendants' part, Plaintiffs have failed to provide a Response to the Compliance Conference Stipulation of March2, 2076, Compliance Conference Stipulation of June 1, 2016 and the Case Scheduling Order dated October 74, 2015 which required Plaintiffs to exchange all pertinent medical and employment authorizations. See Case Scheduling Order, annexed to the moving papers as Exhibit J' 4. Plaintifß do not indicate that they received leave of the Court to file their note of issue, nor did the Defendants stipulate that discovery is complete. Rather, the parties have never stipulated that discovery is complete, this matter is less than one year old and in fact, pertinent items of discovery have been outstanding since the Case Scheduling Order's issuance on October 14, 2Ol5. Additionally, the Defendants have not waived the outstanding discovery. 5. A notice of trial and certificate of readiness generally denotes that discovery between the parties is complete and that there is no outstanding discovery. However, according to the records maintained at the Office of Corporation Counsel, discovery between the parties is not complete in this action. Specifically, Plaintiffs have failed to provide a Response to the Compliance Conference Stipulation of March 2,2016, Compliance Conference Stipulation of June 1,2016 and 2 2 of 4 the Case Scheduling Order dated October 14, 2Ol5 which required Plaintiffs to exchange all pertinent medical and employment authorizations. The Defendants would be highly prejudiced if the plaintifß' premature filing of the notice of trial is not withdrawn as this case is not ready for trial and the Defendants cannot fairly defend against Plaintiffs' claims without first being permitted to engage in discovery. 6: As set forth above, discovery in this matter is patently incomplete and the filing of the notice of trial and certificate of readiness is undeniably premature. Therefore, the Court should strike the note of issue and allow for the completion of discovery' WHEREFORE, it is respectfully requested that this Court grant Defendants' motion in its entirety, and for sueh other and further relief that this Court deems proper. Dated: New York, New York July 20,2016 DIANA OVA Assistant-C orporation Counsel .! L TO LOUIS C. FIABANE Attorney for the Plaintiffs 304 East 49'r' Street New York, NY 10017 LAW OFFICES OF JAMES J. TOOMEY Attorney for Defendant MARION GREGG 485 Lexington Avenue, 7'l'Fl. New York, NY 10017 3 of 4 Index No. 15793912015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHELLE BOWMAN and TREAVA BOWMAN, Plaintiff, -against- MARION GREGG, GILBERT MORALES AND THE CITY OF NEW YORK, Defendants. AFFIRMATION IN SUPPORT OF MOTION ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 By: Diana Manakhimova Tel.(2I2) 356-3973 LD File No.2015-037945 Due and timely service is hereby admitted. New York, N.Y. ., 2016 ....Esq. Attorney for 2 07120/16 (r:06 PM Rcply 4 of 4