Preview
FILED: KINGS COUNTY CLERK 12/24/2019 01:52 PM INDEX NO. 521588/2018
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019
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.
3. This office, your affirmant, has made multiple attempts to schedule and appear for
depositions, but in spite of this we have not been able to do so. As of this date, depositions of all
parties have been scheduled by your affinnant and plaintiff for January 22, 2020. The reasons that
the prior depositions were adjourned are as follows.
15"' 22nd
4. The depositions of the plaintiff and defendant scheduled for the and Of
August, 2019, were adjourned due to technical issues at both your affirmant's and the plaintiff's
offices. Both offices were having connectivity issues with their computers and could not access
necessary files for the depositions.
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5. The following deposition date, set for November 25, 2019, was adjourned due to
the irresolvable scheduling conflict of your affirmant. Since that date the parties have agreed to
and scheduled depositions of all parties for January 22, 2020. In addition, a compliance conference
is scheduled for January 29, 2020.
6. Your affirmant fumished responses to the plaintiff's Demand for a Bill of
Particulars on the Affirmative Defenses and Combined Reponses to the Preliminary Conference
Order and Plaintiff's Combined Demands on June 10, 2019. Courtesy Copies are annexed hereto
as Exhibit "A".
7. 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.
8. Plaintiff's counsel has not shown any willful or contumacious behavior on the part
of the defeñdañts 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 CPLR 3126 [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,
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defendants'
plaintiffhas failed to show that inability to attend deposition was willful, deliberate or
contumacious.
9. Apart from the above considerations, the Court should deny this motion in its
entirety be-see the Plaintiff's counsel did not make a genuine good faith effort to resolve this
discovery dispute before making a motion, and the entire motion is now moot as the depositions
of the parties have been scheduled, as previously noted.
10. 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
December 24, 2019
CAROLINE PAP OS, ESQ.
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
LEO ANDRIASYAN, being duly sworn deposes and says:
I am not a party to the within action, I am over 18 years of age, and I reside in Kings
County, New York.
24th
On the day Of December, 2019 I mailed the within AFFIRMATION IN
OPPOSITION by depositing a true copy thereof, enclosed in a post-paid wrapper, in an official
depository under the exclusive care and custody of the United States Postal Service within New
York State, addressed to each of the following persons at the last known address set forth after
each name:
TO: Vel Belushin, Esq.
1712 Kings Highway, Suite 2
Brooklyn, NY 11229
.
LEO ANDRIASYAN
Sworn to before me this
24th
day Of December, 2019
NOTARY PUBLIC
CarolinePapadatos
of the State of New York
Notary public,
County of New York
No. 02PA6312524
Commission Expires 9/29/22
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No.: 521588/2018
CELAL SAYI,
Plaintiff,
-against-
AVRAHAM ISRAEL MALKA and
ARI RENT A CAR CORP.,
Defendants.
AFFIRMATION IN OPPOSITION
Caroline Papadatos & Associates
23rd
475 Park Avenue South, y
New York, NY 10016
Phone (212) 905-2604
Facsimile (212) 905-2608
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Preview
FILED: KINGS COUNTY CLERK 12/24/2019 01:52 PM INDEX NO. 521588/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019 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. 3. This office, your affirmant, has made multiple attempts to schedule and appear for depositions, but in spite of this we have not been able to do so. As of this date, depositions of all parties have been scheduled by your affinnant and plaintiff for January 22, 2020. The reasons that the prior depositions were adjourned are as follows. 15"' 22nd 4. The depositions of the plaintiff and defendant scheduled for the and Of August, 2019, were adjourned due to technical issues at both your affirmant's and the plaintiff's offices. Both offices were having connectivity issues with their computers and could not access necessary files for the depositions. 1 of 5 FILED: KINGS COUNTY CLERK 12/24/2019 01:52 PM INDEX NO. 521588/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019 5. The following deposition date, set for November 25, 2019, was adjourned due to the irresolvable scheduling conflict of your affirmant. Since that date the parties have agreed to and scheduled depositions of all parties for January 22, 2020. In addition, a compliance conference is scheduled for January 29, 2020. 6. Your affirmant fumished responses to the plaintiff's Demand for a Bill of Particulars on the Affirmative Defenses and Combined Reponses to the Preliminary Conference Order and Plaintiff's Combined Demands on June 10, 2019. Courtesy Copies are annexed hereto as Exhibit "A". 7. 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. 8. Plaintiff's counsel has not shown any willful or contumacious behavior on the part of the defeñdañts 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 CPLR 3126 [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, 2 of 5 FILED: KINGS COUNTY CLERK 12/24/2019 01:52 PM INDEX NO. 521588/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019 defendants' plaintiffhas failed to show that inability to attend deposition was willful, deliberate or contumacious. 9. Apart from the above considerations, the Court should deny this motion in its entirety be-see the Plaintiff's counsel did not make a genuine good faith effort to resolve this discovery dispute before making a motion, and the entire motion is now moot as the depositions of the parties have been scheduled, as previously noted. 10. 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 December 24, 2019 CAROLINE PAP OS, ESQ. 3 of 5 FILED: KINGS COUNTY CLERK 12/24/2019 01:52 PM INDEX NO. 521588/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) LEO ANDRIASYAN, being duly sworn deposes and says: I am not a party to the within action, I am over 18 years of age, and I reside in Kings County, New York. 24th On the day Of December, 2019 I mailed the within AFFIRMATION IN OPPOSITION by depositing a true copy thereof, enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: TO: Vel Belushin, Esq. 1712 Kings Highway, Suite 2 Brooklyn, NY 11229 . LEO ANDRIASYAN Sworn to before me this 24th day Of December, 2019 NOTARY PUBLIC CarolinePapadatos of the State of New York Notary public, County of New York No. 02PA6312524 Commission Expires 9/29/22 4 of 5 FILED: KINGS COUNTY CLERK 12/24/2019 01:52 PM INDEX NO. 521588/2018 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/24/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.: 521588/2018 CELAL SAYI, Plaintiff, -against- AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., Defendants. AFFIRMATION IN OPPOSITION Caroline Papadatos & Associates 23rd 475 Park Avenue South, y New York, NY 10016 Phone (212) 905-2604 Facsimile (212) 905-2608 5 of 5