Preview
FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---_______________------- --------X
SYLVIA CHAVEZ and DAMIAN CHAVEZ, Index No.: 523105/2016
Plaintiff,
REPLY AFFIRMATION
-against-
BERITO'S II DELI & GROCERY, CORP.,
Defendant.
_----X
JOSHUA S. TALCOVITZ, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under penalty of perjury:
1. I am associated with the law firm of McMANUS ATESHOGLOU AIELLO &
APOSTOLAKOS, PLLC, attorneys for the defendant, BERITO'S II DELI & GROCERY, CORP.,
and as such, I am fully familiar with the facts and circumstances set forth herein from a review of
the filemaintained by my office with regard to this matter.
plaintiffs'
2. This Affirmation is respectfully submitted in reply to opposition and in
further support of the instant motion for: (1) an Order pursuant to Section 202.21 of the Uniform
plaintiffs'
Rules for the New York State Trial Courts (22 NYCRR 202.21) vacating the Note of
plaintiffs'
Issue and Statement of Readiness; (2) striking request for a trialpreference; (3) directing
the plaintiffs to respond to defendant's post depositions demañds; (4) directing the plaintiff to
appear for independent medical examinations; and (5) extending the defendant's time to file a
motion for summary judgment until 120 days following the completion of all outstanding
discovery with regard to this matter, together with such other and further relief as to this Honorable
Court may seem just and proper.
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plaintiffs'
3. While opposition affirms that all discovery is now complete and that this
matter should be placed on the Court's trialcalendar, such is simply untrue.
4. To be sure, plaintiffs have provided a Supplemental Bill of Particulars, additional
medical authorizations and a response to defendant's Post-EBT demands. However, what
plaintiffs'
affirmation in opposition fails to mention is that the Supplemental Bill of Particulars
and additional medical authorizations were necessitated by the fact that plaintiff underwent a left
knee arthroscopy on August 23, 2018, twenty-two (22) days after she filed a Note of Issue.
5. Certainly, given that plaintiff has undergone this surgery post note of issue, which
she claims was as a result of the subject incident, discovery is plainly incomplete necessitating
plaintiffs'
Note of Issue to be vacated.
6. To be sure, defendant is entitled to a further deposition of the plaintiff as to this
newly claimed injury and resultant surgical treatment. There is no way to tell at this point how
much discovery will then become necessary following the completion of plaintiff's further
deposition or how much further medical treatment plaintiff will undergo in the future.
7. To the extent that this issue was not directly raised in your affiants moving papers,
the instant motion was filed on August 17, 2018, six (6) days before plaintiff underwent her surgery
and well over a week before your affiant was aware of such. Accordingly, the Court should
consider plaintiff's recent surgery and supplementation of her Bill of Particulars as a basis to grant
the instant motion.
8. Moreover, as the plaintiff has not yet attended her independent medical
examinations, the matter is clearly not ready for trial. Certainly, the parties cannot be sure that
plaintiff will attend her indepeñdeñt medical examinations as currently scheduled, especially given
her recent surgery.
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9. As defendant is entitled to a further deposition of plaintiff is the receipt
awaiting
of relevant medical records, cannot at this time predict how much future treatment plaintiff will
receive and the fact that plaintiff has not yet submitted to her independent medical examinations,
plaintiffs'
this matter is clearly not ready for trialnecessitating that the Court vacate Note of Issue
and strike this matter from the trialcalendar.
plaintiffs'
10. As to argument that defendant should not be entitled to an extension of
time to file a motion for summary judgment, such an argument is misguided. Plaintiffs cannot
prematurely file a Note of Issue while discovery remains outstanding and at the same time claim
that defendant must move for summary judgment within the time parameters of the CPLR.
cause"
11. Certainly, defendant has shown "good to extend its time to move for
summary judgment in that plaintiff has just underwent a substantial surgical procedure after filing
her Note of Issue, necessitating the need for a further deposition of the plaintiff. Thereafter,
additional discovery may become necessary and plaintiff must also submit to her independent
medical examinations.
12. As the CPLR contemplates that dispositive motions be made within certain time
constraints after discovery has been completed, defendant is certainly entitled to an extension of
time to move in such regard, irrespective of the issues underlying the outstanding discovery.
plaintiffs'
13. Further, to the extent that Note of Issue was only filed due to the direction
of the Court, as plaintiff's counsel admits in her affirmation, defendant should not be prejudiced
by being forced to make a dispositive motion before discovery has truly been completed.
plaintiffs'
14. Based upon the foregoing, Note of Issue and Statement of Readiness is
defective and should be vacated, this matter should be stricken from the Trial Calendar until such
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time as all relevant discovery has been completed, and defendant granted an extension of time to
move for summary judgment until 120 days following the completion of discovery.
WHEREFORE, it isrespectfully requested that the Court grant the instant motion in all
plaintiffs'
respects and issue an Order Vacating Note of Issue and striking the matter from the trial
plaintiffs'
calendar, striking request for a trial prefereñce, directing the plaintiffs to respond to
defendant's post depositions demands, directing the plaintiff to appear for independent medical
examinations, and extending the defendant's time to file a motion for summary judgment until 120
days following the completion of all outstañdiñg discovery with regard to this matter, together
with such other and further relief as to this Honorable Court may seem just and proper.
Dated: New York, New York
September 10, 2018
KfŠHUA S. TALCOVITZ, ESQ.
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FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018
SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.
COUNTY OF KINGS
SYLVIA CHAVEZ and DAMIAN CHAVEZ,
Plaintiff,
-against-
BERITO'S II DELI & GROCERY, CORP.,
Defendant.
REPLY AFFIRMATION
McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS,
Attorneys for Defendant
BERITO'S II DELI & GROCERY, CORP.
48 Wall Street, 25th Floor
New York, New York 10005
(212) 425-3100
Fax: (212) 425-3175
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Preview
FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---_______________------- --------X SYLVIA CHAVEZ and DAMIAN CHAVEZ, Index No.: 523105/2016 Plaintiff, REPLY AFFIRMATION -against- BERITO'S II DELI & GROCERY, CORP., Defendant. _----X JOSHUA S. TALCOVITZ, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under penalty of perjury: 1. I am associated with the law firm of McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS, PLLC, attorneys for the defendant, BERITO'S II DELI & GROCERY, CORP., and as such, I am fully familiar with the facts and circumstances set forth herein from a review of the filemaintained by my office with regard to this matter. plaintiffs' 2. This Affirmation is respectfully submitted in reply to opposition and in further support of the instant motion for: (1) an Order pursuant to Section 202.21 of the Uniform plaintiffs' Rules for the New York State Trial Courts (22 NYCRR 202.21) vacating the Note of plaintiffs' Issue and Statement of Readiness; (2) striking request for a trialpreference; (3) directing the plaintiffs to respond to defendant's post depositions demañds; (4) directing the plaintiff to appear for independent medical examinations; and (5) extending the defendant's time to file a motion for summary judgment until 120 days following the completion of all outstanding discovery with regard to this matter, together with such other and further relief as to this Honorable Court may seem just and proper. 1 of 5 FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018 plaintiffs' 3. While opposition affirms that all discovery is now complete and that this matter should be placed on the Court's trialcalendar, such is simply untrue. 4. To be sure, plaintiffs have provided a Supplemental Bill of Particulars, additional medical authorizations and a response to defendant's Post-EBT demands. However, what plaintiffs' affirmation in opposition fails to mention is that the Supplemental Bill of Particulars and additional medical authorizations were necessitated by the fact that plaintiff underwent a left knee arthroscopy on August 23, 2018, twenty-two (22) days after she filed a Note of Issue. 5. Certainly, given that plaintiff has undergone this surgery post note of issue, which she claims was as a result of the subject incident, discovery is plainly incomplete necessitating plaintiffs' Note of Issue to be vacated. 6. To be sure, defendant is entitled to a further deposition of the plaintiff as to this newly claimed injury and resultant surgical treatment. There is no way to tell at this point how much discovery will then become necessary following the completion of plaintiff's further deposition or how much further medical treatment plaintiff will undergo in the future. 7. To the extent that this issue was not directly raised in your affiants moving papers, the instant motion was filed on August 17, 2018, six (6) days before plaintiff underwent her surgery and well over a week before your affiant was aware of such. Accordingly, the Court should consider plaintiff's recent surgery and supplementation of her Bill of Particulars as a basis to grant the instant motion. 8. Moreover, as the plaintiff has not yet attended her independent medical examinations, the matter is clearly not ready for trial. Certainly, the parties cannot be sure that plaintiff will attend her indepeñdeñt medical examinations as currently scheduled, especially given her recent surgery. 2 of 5 FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018 9. As defendant is entitled to a further deposition of plaintiff is the receipt awaiting of relevant medical records, cannot at this time predict how much future treatment plaintiff will receive and the fact that plaintiff has not yet submitted to her independent medical examinations, plaintiffs' this matter is clearly not ready for trialnecessitating that the Court vacate Note of Issue and strike this matter from the trialcalendar. plaintiffs' 10. As to argument that defendant should not be entitled to an extension of time to file a motion for summary judgment, such an argument is misguided. Plaintiffs cannot prematurely file a Note of Issue while discovery remains outstanding and at the same time claim that defendant must move for summary judgment within the time parameters of the CPLR. cause" 11. Certainly, defendant has shown "good to extend its time to move for summary judgment in that plaintiff has just underwent a substantial surgical procedure after filing her Note of Issue, necessitating the need for a further deposition of the plaintiff. Thereafter, additional discovery may become necessary and plaintiff must also submit to her independent medical examinations. 12. As the CPLR contemplates that dispositive motions be made within certain time constraints after discovery has been completed, defendant is certainly entitled to an extension of time to move in such regard, irrespective of the issues underlying the outstanding discovery. plaintiffs' 13. Further, to the extent that Note of Issue was only filed due to the direction of the Court, as plaintiff's counsel admits in her affirmation, defendant should not be prejudiced by being forced to make a dispositive motion before discovery has truly been completed. plaintiffs' 14. Based upon the foregoing, Note of Issue and Statement of Readiness is defective and should be vacated, this matter should be stricken from the Trial Calendar until such 3 of 5 FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018 time as all relevant discovery has been completed, and defendant granted an extension of time to move for summary judgment until 120 days following the completion of discovery. WHEREFORE, it isrespectfully requested that the Court grant the instant motion in all plaintiffs' respects and issue an Order Vacating Note of Issue and striking the matter from the trial plaintiffs' calendar, striking request for a trial prefereñce, directing the plaintiffs to respond to defendant's post depositions demands, directing the plaintiff to appear for independent medical examinations, and extending the defendant's time to file a motion for summary judgment until 120 days following the completion of all outstañdiñg discovery with regard to this matter, together with such other and further relief as to this Honorable Court may seem just and proper. Dated: New York, New York September 10, 2018 KfŠHUA S. TALCOVITZ, ESQ. 4 of 5 FILED: KINGS COUNTY CLERK 09/10/2018 10:39 AM INDEX NO. 523105/2016 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/10/2018 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. COUNTY OF KINGS SYLVIA CHAVEZ and DAMIAN CHAVEZ, Plaintiff, -against- BERITO'S II DELI & GROCERY, CORP., Defendant. REPLY AFFIRMATION McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS, Attorneys for Defendant BERITO'S II DELI & GROCERY, CORP. 48 Wall Street, 25th Floor New York, New York 10005 (212) 425-3100 Fax: (212) 425-3175 5 of 5