Preview
FILED: KINGS COUNTY CLERK 08/07/2020 10:13 AM INDEX NO. 521588/2018
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-- _______________________________---- ________- -- --X
CELAL SAYI, Index No.: 521588/2018
Plaintiff,
AFFIRMATION IN
OPPOSITION
-against-
AVRAHAM ISRAEL MALKA and
ARI RENT A CAR CORP.,
Defendants.
------- ---- ------------------X
CAROLINE PAPADATOS, ESQ., an attorney duly admitted to practice law in the State
of New York, hereby affirms pursuant to CPLR 2106 under the penalties of perjury:
1. Your affirmant is the managing attorney at CAROLINE PAPADATOS and
ASSOCIATES, attorneys for defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR
CORP., and am familiar with the facts as reflected in the file maintained by this office.
plaintiffs'
2. This affirmation is submitted in opposition to the motion to strike the
defendant's answer or in the alternative to preclude the defendants from testifying at the time of
trial. The defendants do not oppose the plaintiffs request to extend the time to file the Note of
Issue.
3. This office, your affirmant, has made reasonable efforts to contact the driver,
AVRAHAM ISRAEL MALKA, to no avail. Your affirmant has attempted to reach Mr. Malka to
inform him of his court-ordered deposition.
4. Your affirmant was unable to reach Mr. Malka and has retained an investigator to
make contact with him. The investigation is ongoing. Please see referral sheet attached as Exhibit
A.
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5. In his affidavit, the Investigator states that he made several telephone calls to the
defendant. He also attempted to contact Mr. Malka in person by attempting to gain access to the
lobby of the lastknown address of Mr. Malka on multiple occasions and was unsuccessful. He has
also not gotten any responses to letters that have been sent. Please see affidavit of Kevin Fox
attached as Exhibit B.
6. Additionally, an adjuster of the defendant's insurance company has sent a letter to
the defendant on January 14, 2020, to the lastknown address of Mr. Malka, to attempt to schedule
a deposition. This letter has gone unanswered. Please see the letter attached as Exhibit C.
plaintiffs'
7. Furthermore, itshould be noted that depositions referenced in Motion to
Strike, scheduled for August 15 and 22, 2019, were adjourned due to technical issues at both your
affirmant's and plaintiff's offices. Both offices were having connectivity issues with their
computers and could not access necessary files for the depositions.
8. The deposition of plaintiff scheduled for January 22, 2020 was adjourned at the
request of plaintiff's office. Your affirmant sent a letter to the plaintiff's office the prior day, on
January 21, 2020, stating that the adjournment was at the sole request of plaintiff's counsel. Please
see the January 21, 2020 letterattached as Exhibit D. The depositions scheduled for April 9, 2020
were adjourned due to the COVID-19 pandemic.
7. The defendant corporation demonstrated in its papers that it made diligent efforts
to secure the attendance of its driver at an examination before trial. Accordingly, the corporation's
contumacious"
actions cannot be considered to be "deliberate and Johnson v. Brown 242 A.D. 2d
562, 662 N.Y.S.2.d 776 (2d Dept).
8. While itis the obligation of the client to remain in contact with his attorney so that
the attorney can communicate with him, the client's neglect of the obligation is not equivalent to
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a willful failure to appear for an examination before trial as the client upon information and belief
has not been informed of the examination, Heyward v. Benyarko, 82 A.D.2d 751, 440 N.Y.S2.d 21,
Blake v. Mamadou, 281 A.D.2d 301, 722 NYS2d 158.
9. The record does not support a finding that your affirmant willfully and deliberately
failed to appear for deposition. It is well settled that the drastic remedy of striking an Answer is
inappropriate absent a clear showing of the failure of defendant to appear for a deposition as
willful, contumacious or in bad faith. No such showing has been made in this case. There was no
showing that the defendants were "guilty of a deliberately evasive, misleading and uncooperative
course of conduct or a determined strategy of delay that would be deserving of the most vehement
condemnation"
Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369, 711 N.Y.S2.d 441.
10. It is well settled that the drastic remedy of striking an Answer is inappropriate
absent a clear showing of the failure of defendant to appear for a deposition as willful,
contumacious or in bad faith. No such showing has been made in this case.
11. Plaintiff's counsel has not shown any willful or contumacious behavior on the part
of the defendants which would warrant the severe penalty of striking their Answer. The Second
Department stated in Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779, 2002
(2nd
N.Y.Slip Op. 09231 Dept., 2002) that "[t]o invoke the drastic remedy of preclusion, the
Supreme Court must determine that the offending party's lack of cooperation with disclosure was
willful, deliberate, and contumacious (see CPLR3126 [2]; Kelleher v. Mt. Kisco Med. Group, 264
A.D.2d 760, 694 N.Y.S.2d 770; Maillard v. Maillard, A.D.2d 448, 663 N.Y.S.2d 67). To strike
the defendant's answer would leave them without any defenses even on the issue of liability. Here,
defendants'
plaintiff has failed to show that inability to attend deposition was willful, deliberate or
contumacious.
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12. The defendants have demonstrated their diligent efforts to contact Mr. Malka and
should not be penalized with the extreme penalty of having their answers stricken or being
precluded from testifying at trial.
13. Based upon the foregoing, plaintiff's motion should accordingly be denied.
WHEREFORE, it isrespectfully requested that the Court deny the relief specified in the
notice of motion, and direct such other, further and different relief that this Court deems just and
proper.
Dated: New York, New York
August 6, 2020
CAROLINE PAPADATOS, ESQ.
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Preview
FILED: KINGS COUNTY CLERK 08/07/2020 10:13 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -- _______________________________---- ________- -- --X CELAL SAYI, Index No.: 521588/2018 Plaintiff, AFFIRMATION IN OPPOSITION -against- AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., Defendants. ------- ---- ------------------X CAROLINE PAPADATOS, ESQ., an attorney duly admitted to practice law in the State of New York, hereby affirms pursuant to CPLR 2106 under the penalties of perjury: 1. Your affirmant is the managing attorney at CAROLINE PAPADATOS and ASSOCIATES, attorneys for defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., and am familiar with the facts as reflected in the file maintained by this office. plaintiffs' 2. This affirmation is submitted in opposition to the motion to strike the defendant's answer or in the alternative to preclude the defendants from testifying at the time of trial. The defendants do not oppose the plaintiffs request to extend the time to file the Note of Issue. 3. This office, your affirmant, has made reasonable efforts to contact the driver, AVRAHAM ISRAEL MALKA, to no avail. Your affirmant has attempted to reach Mr. Malka to inform him of his court-ordered deposition. 4. Your affirmant was unable to reach Mr. Malka and has retained an investigator to make contact with him. The investigation is ongoing. Please see referral sheet attached as Exhibit A. 1 of 4 FILED: KINGS COUNTY CLERK 08/07/2020 10:13 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/07/2020 5. In his affidavit, the Investigator states that he made several telephone calls to the defendant. He also attempted to contact Mr. Malka in person by attempting to gain access to the lobby of the lastknown address of Mr. Malka on multiple occasions and was unsuccessful. He has also not gotten any responses to letters that have been sent. Please see affidavit of Kevin Fox attached as Exhibit B. 6. Additionally, an adjuster of the defendant's insurance company has sent a letter to the defendant on January 14, 2020, to the lastknown address of Mr. Malka, to attempt to schedule a deposition. This letter has gone unanswered. Please see the letter attached as Exhibit C. plaintiffs' 7. Furthermore, itshould be noted that depositions referenced in Motion to Strike, scheduled for August 15 and 22, 2019, were adjourned due to technical issues at both your affirmant's and plaintiff's offices. Both offices were having connectivity issues with their computers and could not access necessary files for the depositions. 8. The deposition of plaintiff scheduled for January 22, 2020 was adjourned at the request of plaintiff's office. Your affirmant sent a letter to the plaintiff's office the prior day, on January 21, 2020, stating that the adjournment was at the sole request of plaintiff's counsel. Please see the January 21, 2020 letterattached as Exhibit D. The depositions scheduled for April 9, 2020 were adjourned due to the COVID-19 pandemic. 7. The defendant corporation demonstrated in its papers that it made diligent efforts to secure the attendance of its driver at an examination before trial. Accordingly, the corporation's contumacious" actions cannot be considered to be "deliberate and Johnson v. Brown 242 A.D. 2d 562, 662 N.Y.S.2.d 776 (2d Dept). 8. While itis the obligation of the client to remain in contact with his attorney so that the attorney can communicate with him, the client's neglect of the obligation is not equivalent to 2 of 4 FILED: KINGS COUNTY CLERK 08/07/2020 10:13 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/07/2020 a willful failure to appear for an examination before trial as the client upon information and belief has not been informed of the examination, Heyward v. Benyarko, 82 A.D.2d 751, 440 N.Y.S2.d 21, Blake v. Mamadou, 281 A.D.2d 301, 722 NYS2d 158. 9. The record does not support a finding that your affirmant willfully and deliberately failed to appear for deposition. It is well settled that the drastic remedy of striking an Answer is inappropriate absent a clear showing of the failure of defendant to appear for a deposition as willful, contumacious or in bad faith. No such showing has been made in this case. There was no showing that the defendants were "guilty of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation" Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369, 711 N.Y.S2.d 441. 10. It is well settled that the drastic remedy of striking an Answer is inappropriate absent a clear showing of the failure of defendant to appear for a deposition as willful, contumacious or in bad faith. No such showing has been made in this case. 11. Plaintiff's counsel has not shown any willful or contumacious behavior on the part of the defendants which would warrant the severe penalty of striking their Answer. The Second Department stated in Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779, 2002 (2nd N.Y.Slip Op. 09231 Dept., 2002) that "[t]o invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious (see CPLR3126 [2]; Kelleher v. Mt. Kisco Med. Group, 264 A.D.2d 760, 694 N.Y.S.2d 770; Maillard v. Maillard, A.D.2d 448, 663 N.Y.S.2d 67). To strike the defendant's answer would leave them without any defenses even on the issue of liability. Here, defendants' plaintiff has failed to show that inability to attend deposition was willful, deliberate or contumacious. 3 of 4 FILED: KINGS COUNTY CLERK 08/07/2020 10:13 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/07/2020 12. The defendants have demonstrated their diligent efforts to contact Mr. Malka and should not be penalized with the extreme penalty of having their answers stricken or being precluded from testifying at trial. 13. Based upon the foregoing, plaintiff's motion should accordingly be denied. WHEREFORE, it isrespectfully requested that the Court deny the relief specified in the notice of motion, and direct such other, further and different relief that this Court deems just and proper. Dated: New York, New York August 6, 2020 CAROLINE PAPADATOS, ESQ. 4 of 4