On July 31, 2017 a
Letter,Correspondence
was filed
involving a dispute between
Kerrin Conklin,
and
Board Of Directors Of Cnyspca,
Stacy Laxen,
for Torts - Other (Wrongful Term/Defimation)
in the District Court of Onondaga County.
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BARCLAY DAMON
Robert J. Thorpe
Associate
April 3, 2018
Hon. Deborah H. Karalunas
Justice Supreme Court
New York Supreme Court
Onondaga County Courthouse, Room 401
401 Montgomery Street
Syracuse, new York 13202
Re: Kerrin Conklin v. CNYSPCA, et al.
Index No. 006654/2017
RJI No. 33-18-0269
Re: Kerrin Conklin v. Stacy Laxen, DVM, CNYSPCA Board of Directors
Index No. 2017EF3210
RJI No. 33-18-0276
Dear Judge Karalunas:
Defendants'
Please accept this letter as request that the Court refuse to consider
Defendants'
Plaintiff's Affidavit in Opposition to Motion to Dismiss (Dkt. 76 (2017EF3210)),
or, in the alternative, grant Defendants an extra two (2) days to submit their reply papers.
Defendants filed motions to dismiss the complaints on January 24, 2018. Dkts. 68-73
Defendants'
(2017EF3210); Dkts. 3-12 (006654/2017). On March 8, 2018, with consent,
Plaintiff requested an adjournment of the scheduled March 22, 2018 return date. Dkt. 14
(006654/2017). By letter correspondence dated March 12, 2018, the Court rescheduled the
return date for April 11, 2018 and required that "opposition papers be filed and served 14 days
date."
before the motion return Dkt. 75 (2017EF3210); Dkt. 15 (06654/2017).
Accordingly, Plaintiff's opposition papers were due on March 28, 2018; however,
Plaintiff did not file opposition papers until April 2018 (Dkt. 76 - 2017EF3210). Plaintiff's
2,
failure to timely file opposition papers, particularly under circumstances where Plaintiff had
more than two (2) months to do so, warrant the Court's refusal to consider Plaintiff's Affidavit in
Defendants'
Opposition to Motion to Dismiss. See Risucci v. Zeal Mgmt. Corp., 685 N.Y.S.2d
280, 281 (2d Dep't 1999) (holding lower court did not abuse its discretion by refusing to
consider late opposition papers, despite there being no showing of prejudice, because plaintiff
failed to provide a valid excuse for the untimeliness); Bush v. Haward, 156 A.D.2d 899, 900-01
(3d Dep't 1989) (affirming lower court's refusal to accept late papers was warranted becausethe
Barclay Damon Tower - 125 East JeffersonStreet- Syracuse, New York 13202 barclaydamon.com
rthorpe@barclaydamon.com Direct:315.413.7231 Fax: 315.703.6268
15003317.1
Hon. Deborah H. Karalunas
April 3, 2018
Page 2
papers contained no valid explanation for the untimeliness, and without a valid excuse, the late
papers could not properly be considered).
In the event the Court is nonetheless inclined to consider Plaintiff's opposition papers,
Defendants respectfully request, in the alternative, that the Court grant Defendants an additional
two —
days-from April 4 to April 2018-to— submit their papers.
(2) 6, reply
Thank you for your attention and consideration of these matters.
Respectfully submitted,
Robert J. Thorpe
RJT:ml
cc: All Counsel of Record (via NYCEF)
Edward G. Melvin, Esq.
15003317.1
Document Filed Date
April 03, 2018
Case Filing Date
July 31, 2017
Category
Torts - Other (Wrongful Term/Defimation)
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BARCLAY DAMON Robert J. Thorpe Associate April 3, 2018 Hon. Deborah H. Karalunas Justice Supreme Court New York Supreme Court Onondaga County Courthouse, Room 401 401 Montgomery Street Syracuse, new York 13202 Re: Kerrin Conklin v. CNYSPCA, et al. Index No. 006654/2017 RJI No. 33-18-0269 Re: Kerrin Conklin v. Stacy Laxen, DVM, CNYSPCA Board of Directors Index No. 2017EF3210 RJI No. 33-18-0276 Dear Judge Karalunas: Defendants' Please accept this letter as request that the Court refuse to consider Defendants' Plaintiff's Affidavit in Opposition to Motion to Dismiss (Dkt. 76 (2017EF3210)), or, in the alternative, grant Defendants an extra two (2) days to submit their reply papers. Defendants filed motions to dismiss the complaints on January 24, 2018. Dkts. 68-73 Defendants' (2017EF3210); Dkts. 3-12 (006654/2017). On March 8, 2018, with consent, Plaintiff requested an adjournment of the scheduled March 22, 2018 return date. Dkt. 14 (006654/2017). By letter correspondence dated March 12, 2018, the Court rescheduled the return date for April 11, 2018 and required that "opposition papers be filed and served 14 days date." before the motion return Dkt. 75 (2017EF3210); Dkt. 15 (06654/2017). Accordingly, Plaintiff's opposition papers were due on March 28, 2018; however, Plaintiff did not file opposition papers until April 2018 (Dkt. 76 - 2017EF3210). Plaintiff's 2, failure to timely file opposition papers, particularly under circumstances where Plaintiff had more than two (2) months to do so, warrant the Court's refusal to consider Plaintiff's Affidavit in Defendants' Opposition to Motion to Dismiss. See Risucci v. Zeal Mgmt. Corp., 685 N.Y.S.2d 280, 281 (2d Dep't 1999) (holding lower court did not abuse its discretion by refusing to consider late opposition papers, despite there being no showing of prejudice, because plaintiff failed to provide a valid excuse for the untimeliness); Bush v. Haward, 156 A.D.2d 899, 900-01 (3d Dep't 1989) (affirming lower court's refusal to accept late papers was warranted becausethe Barclay Damon Tower - 125 East JeffersonStreet- Syracuse, New York 13202 barclaydamon.com rthorpe@barclaydamon.com Direct:315.413.7231 Fax: 315.703.6268 15003317.1 Hon. Deborah H. Karalunas April 3, 2018 Page 2 papers contained no valid explanation for the untimeliness, and without a valid excuse, the late papers could not properly be considered). In the event the Court is nonetheless inclined to consider Plaintiff's opposition papers, Defendants respectfully request, in the alternative, that the Court grant Defendants an additional two — days-from April 4 to April 2018-to— submit their papers. (2) 6, reply Thank you for your attention and consideration of these matters. Respectfully submitted, Robert J. Thorpe RJT:ml cc: All Counsel of Record (via NYCEF) Edward G. Melvin, Esq. 15003317.1