Preview
FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
____..------__________________________..________------------------- X
CELAL SAYI,
AFFIRMATION IN
Plaintiff '
SUPPORT OF MOTION
-against-
Index No.: 521588/2018
AVRAHAM ISRAEL MALKA and
ARI RENT A CAR CORP.,
Defendants.
---- ------ ---------------------------------------X
THOMAS CICOLELLO, an attorney duly aimlued to practice before all the Courts of
the State of New York, hereby affirms the truth of the following under the penalty of perjury:
1. I am an associate of the law firm, BELUSHIN LAW FIRM, P.C. attorneys for
the Plaintiff, CELAL SAYI, in the above captioned personal injury action, and as such, I am
fully familiar with allof the facts and circumstmices herein by a thorough review of the file
maintained in this office.
2. I submit this Affirmation in support of the within application for an Order (1)
pursuant to N.Y. C.P.L.R. §§3124 and 3126 striking the Answer of the Defendants, AVRAHAM
ISRAEL MALKA and ARI RENT A CAR CORP., for failing to appear for deposition as
directed by Court Ordered discovery in violation of 4 Court Orders; or in the alternative, (2)
Precluding the Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP.,
Defendants'
from testifying at the time of Trial unless said Provide Discovery on a date certain, (3)
pursuant to CPLR §2004 exteñdiñg Plaintiff's time to file Note of Issue; and, (4) for further
relief as the Court deems just and proper.
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3. As more fully set forth below, it is respectfully requested that the Plaintiff's
applicatioñ should be granted in its entirety because the Defendants, AVRAHAM ISRAEL
MALKA and ARI RENT A CAR CORP., have willfully failed to comply with discovery in
violation of multiple Court Orders.
4. This is a negligence action to recover damages for serious injuries as a result of an
accident that occurred on October 9, 2016.
5. The Plaintiff commenced this action by filing the Summons and Verified Complaint
on October 25, 2018. Issue has been joined, and copies of the pleadings are annexed
collectively
hereto as Exhibit A.
6. On or about April 19, 2019, Plaintiff's counsel served the following Notices and
Demands: DEMAND FOR A BILL OF PARTICULARS AS TO AFFIRMATIVE DEFENSES,
AND COMBINED DEMANDS. (See Exhibit B, annexed hereto -
copy of Plaintiffs Discovery
Demands).
7. The parties appeared for a Pre!LTi-y Conference on May 14, 2019 at which time
Defendants were ordered to appear for deposition on August 22, 2019. (See, Exhibit C, annexed
hereto - of 05/14/19 Conference Order).
copy Preliminary
8. On August 21, 2019, our office attempted to confirm Defendants deposition for
August 22, 2019. The Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR
CORP., requested an adjournment of the depositioñ because they were not ready to proceed.
9. The parties appeared for a Compliance Conference on September 5, 2019 at which
time all parties were directed to appear for depmitions on November 25, 2019 (See, Exhibit D,
annexed hereto - of 09/05/19 Compliance Conference Order). the defendanu
copy Again, requested
an adjournment.
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10. To date, the Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A
CAR CORP., failed to appear for a deposition, as ordered by the Court in Prelisinsy Conference
and Compliance Conference.
11. On December 10, 2019, Plaintiff file a Motion to Strike seeking the same relief as
this instant motion. Said motion was resolved directing the defendants to appear for deposition on
January 22, 2020. (See Copy of Order dated January 3, 2020 annexed hereto as Exhibit "E").
12. On January 22, 2020, defendants again failed to appear for a deposition.
13. On March 6. 2020, all parties appeared for a Final Pre-Note Conference. Said
conference ordered defendants to appear for a deposition on or before April 9, 2020. (See Copy of
Final Pre-Note Order dated March 6, 2020 annexed hereto as Exhibit "F").
14. On April 9, 2020, Defendants refused to appear for deposition.
Defendants'
15. The failure to comply with the Court Ordered discovery di1ectives
makes itvery clear that these delays and defaults are willful and intended to indefinitely prolong this
litigation. The Defendants must be punished for their willful disregard of the Court's directives, and
therefore their pleadings should be stricken, or at a minimum, the Defendants should be precluded
from offering any testimony at the time of Trial.
16. The applicable law is clear: "A defendant's willful and contümacious conduct can
be inferred from his failure to comply with the court's preliminary conference order and
compliance conference order directing that depositions be held on a date certain, and their
excuse."
enntim3ed adjournment of scheduled depositions without an adequaic Polanco v. Duran,
278 A.D.2d 397, 717 N.Y.S.2d 643 (2nd Dept., 2000).
17. The Second Department stated in Pryzant v. City of New York, 300 A.D.2d 383,
750 N.Y.S.2d 779, 2002 N.Y. Slip Op. 09231 (2nd Dept., 2002) that
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"[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, 243 A.D.2d
448, 663 N.Y.S.2d 67). In this case, the willful and contumacious character of the
defendants'
failure to respond to discovery can be inferred from their continuing
noncompliance with a court-ordered stipulation to produce relevant records,
repeated adjournments of the production date, and inadequate excuses for the
failure to produce the records (see Brandes v. Pirnie-Baker, 288 A.D.2d 413, 414,
733 N.Y.S.2d 905; Kelleher v Mt. Kisco Med. Group, supra at 761, 694 N.Y.S.2d
770; Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435). Accordingly, the
Supreme Court's determination to preclude the defendants from offering the
proper."
relevant evidence at trial was
18. The very recent case of Lidia Kryzhanovskaya v. City of New York, 31 A.D.3d
717, 818 N.Y.S.2d 469 (2nd Dept., 2006), would appear to govern. In that case, the Appellate
Division, Second Department stated:
"A court is authorized to strike the pleadings of a party who "refuses to
obey an order for disclosure or willfully fails to disclose information which the
disclosed"
court finds ought to have been (CPLR 3126[3]). Striking a pleading is
appropriate where a party's conduct in resisting disclosure is shown to be willful,
contumacious, or in bad faith (see Mendez v. City of New York, 7 A.D.3d 766,
778 N.Y.S.2d 501; Alto v. Gilman Mgt. Corp., 7 A.D.3d 650, 776 N.Y.S.2d 823;
Ranfort v. Peak Tours, 250 A.D.2d 747, 672 N.Y.S.2d 918; Frias v. Fortini, 240
A.D.2d 467, 658 N.Y.S.2d 435). In this case, the willful and contumacious
character of the defendant's failure to produce a witness for deposition can be
inferred from its continuing noncompliance with two orders directing the
defendant's deposition, repeated adjournments of the scheduled deposition dates,
and inadequate excuses for the failure to produce a witness for deposition (see
Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779; Montgomery v.
City of New York, 296 A.D.2d 386, 745 N.Y.S.2d 464; Frias v. Fortini, supra;
Herrera v. City of New York, 238 A.D.2d 475, 476, 656 N.Y.S.2d 647).
Accordingly, the Plaintiffs motion to strike the answer should have been granted
unless, within the specified time frame, the defendant (1) produces a witness with
knowledge for deposition upon oral examination...)see Vega v. 265 W. 37 St.
Corp., 223 A.D.2d 385, 636 N.Y.S.2d 296; Burt Millwork Corp. v. Irpinia Constr.
58)."
Corp., 173 A.D.2d 433, 570 N.Y.S.2d
19. For the Courts convenience, the applicable sections of the CPLR (§ 3126 and §
3124) are set out below.
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20. CPLR § 3126, Penalties for refusal to comply with order or to disclose, states:
"If any party, or a person who at the time a deposition is taken or an
examination or inspection is made is an officer, director, member, employee or
agent of a party or otherwise under a party's control, refuses to obey an order for
disclosure or wilfull fails to disclose information which the court finds ought to
have been disclosed pursuant to this article, the court may make such orders with
regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be
deemed resolved for purposes of the action in accordance with the claims of the
party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing
designated claims or defenses, from producing in evideñce designated things or
items of testimmy, or from introducing any evidence of the physical, mental or
blood condition sought to be determined, or from using certain witnesses; or
21. CPLR Section 3124, Failure to disclose: motion to comoel disclosure, states:
"If a person fails to respond to or comply with any request, notice,
interrogatory, demand, question or order under this article, except a notice to
admit under section 3123, the party seeking disclosure may move to compel
response."
compliance or a
22. As can be seen, the inability to complete discovery has not been due to any fault or
lack of effort on the part of plaintiff or his attorneys. It would be wrong for the plaintiff to waive
the defendant's discovery obligations and serve a note of issue and statement of readiness for trial
in the absence of the defendant's responses. To do so would be to tell the Court that the plaintiff
is ready for trial without knowledge of what the defendant might say in their defense. Full and
proper trialpreparation requires the defendant's responses.
23. CPLR § 2004 states that "the court may extend the time fixed by any statute, rule
or order for doing any act, upon such terms as may be just and upon a good cause shown,
fixed."
whether the application for extension is made before or after the expiration of the time
24. Plaintiff seeks an extension to file the Note of Issue to complete discovery herein.
25. Prior applications have been made for the relief requested herein.
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WHEREFORE, for the foregoing reasons, it is respectfully requested that the within
applicationbegrantedinitsentirety.
Dated: Brooklyn, NewYork
June 29, 2020
Daniel Berger, Esq.
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Preview
FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ____..------__________________________..________------------------- X CELAL SAYI, AFFIRMATION IN Plaintiff ' SUPPORT OF MOTION -against- Index No.: 521588/2018 AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., Defendants. ---- ------ ---------------------------------------X THOMAS CICOLELLO, an attorney duly aimlued to practice before all the Courts of the State of New York, hereby affirms the truth of the following under the penalty of perjury: 1. I am an associate of the law firm, BELUSHIN LAW FIRM, P.C. attorneys for the Plaintiff, CELAL SAYI, in the above captioned personal injury action, and as such, I am fully familiar with allof the facts and circumstmices herein by a thorough review of the file maintained in this office. 2. I submit this Affirmation in support of the within application for an Order (1) pursuant to N.Y. C.P.L.R. §§3124 and 3126 striking the Answer of the Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., for failing to appear for deposition as directed by Court Ordered discovery in violation of 4 Court Orders; or in the alternative, (2) Precluding the Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., Defendants' from testifying at the time of Trial unless said Provide Discovery on a date certain, (3) pursuant to CPLR §2004 exteñdiñg Plaintiff's time to file Note of Issue; and, (4) for further relief as the Court deems just and proper. 1 of 6 FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020 3. As more fully set forth below, it is respectfully requested that the Plaintiff's applicatioñ should be granted in its entirety because the Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., have willfully failed to comply with discovery in violation of multiple Court Orders. 4. This is a negligence action to recover damages for serious injuries as a result of an accident that occurred on October 9, 2016. 5. The Plaintiff commenced this action by filing the Summons and Verified Complaint on October 25, 2018. Issue has been joined, and copies of the pleadings are annexed collectively hereto as Exhibit A. 6. On or about April 19, 2019, Plaintiff's counsel served the following Notices and Demands: DEMAND FOR A BILL OF PARTICULARS AS TO AFFIRMATIVE DEFENSES, AND COMBINED DEMANDS. (See Exhibit B, annexed hereto - copy of Plaintiffs Discovery Demands). 7. The parties appeared for a Pre!LTi-y Conference on May 14, 2019 at which time Defendants were ordered to appear for deposition on August 22, 2019. (See, Exhibit C, annexed hereto - of 05/14/19 Conference Order). copy Preliminary 8. On August 21, 2019, our office attempted to confirm Defendants deposition for August 22, 2019. The Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., requested an adjournment of the depositioñ because they were not ready to proceed. 9. The parties appeared for a Compliance Conference on September 5, 2019 at which time all parties were directed to appear for depmitions on November 25, 2019 (See, Exhibit D, annexed hereto - of 09/05/19 Compliance Conference Order). the defendanu copy Again, requested an adjournment. 2 of 6 FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020 10. To date, the Defendants, AVRAHAM ISRAEL MALKA and ARI RENT A CAR CORP., failed to appear for a deposition, as ordered by the Court in Prelisinsy Conference and Compliance Conference. 11. On December 10, 2019, Plaintiff file a Motion to Strike seeking the same relief as this instant motion. Said motion was resolved directing the defendants to appear for deposition on January 22, 2020. (See Copy of Order dated January 3, 2020 annexed hereto as Exhibit "E"). 12. On January 22, 2020, defendants again failed to appear for a deposition. 13. On March 6. 2020, all parties appeared for a Final Pre-Note Conference. Said conference ordered defendants to appear for a deposition on or before April 9, 2020. (See Copy of Final Pre-Note Order dated March 6, 2020 annexed hereto as Exhibit "F"). 14. On April 9, 2020, Defendants refused to appear for deposition. Defendants' 15. The failure to comply with the Court Ordered discovery di1ectives makes itvery clear that these delays and defaults are willful and intended to indefinitely prolong this litigation. The Defendants must be punished for their willful disregard of the Court's directives, and therefore their pleadings should be stricken, or at a minimum, the Defendants should be precluded from offering any testimony at the time of Trial. 16. The applicable law is clear: "A defendant's willful and contümacious conduct can be inferred from his failure to comply with the court's preliminary conference order and compliance conference order directing that depositions be held on a date certain, and their excuse." enntim3ed adjournment of scheduled depositions without an adequaic Polanco v. Duran, 278 A.D.2d 397, 717 N.Y.S.2d 643 (2nd Dept., 2000). 17. The Second Department stated in Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779, 2002 N.Y. Slip Op. 09231 (2nd Dept., 2002) that 3 of 6 FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020 "[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, 243 A.D.2d 448, 663 N.Y.S.2d 67). In this case, the willful and contumacious character of the defendants' failure to respond to discovery can be inferred from their continuing noncompliance with a court-ordered stipulation to produce relevant records, repeated adjournments of the production date, and inadequate excuses for the failure to produce the records (see Brandes v. Pirnie-Baker, 288 A.D.2d 413, 414, 733 N.Y.S.2d 905; Kelleher v Mt. Kisco Med. Group, supra at 761, 694 N.Y.S.2d 770; Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435). Accordingly, the Supreme Court's determination to preclude the defendants from offering the proper." relevant evidence at trial was 18. The very recent case of Lidia Kryzhanovskaya v. City of New York, 31 A.D.3d 717, 818 N.Y.S.2d 469 (2nd Dept., 2006), would appear to govern. In that case, the Appellate Division, Second Department stated: "A court is authorized to strike the pleadings of a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the disclosed" court finds ought to have been (CPLR 3126[3]). Striking a pleading is appropriate where a party's conduct in resisting disclosure is shown to be willful, contumacious, or in bad faith (see Mendez v. City of New York, 7 A.D.3d 766, 778 N.Y.S.2d 501; Alto v. Gilman Mgt. Corp., 7 A.D.3d 650, 776 N.Y.S.2d 823; Ranfort v. Peak Tours, 250 A.D.2d 747, 672 N.Y.S.2d 918; Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435). In this case, the willful and contumacious character of the defendant's failure to produce a witness for deposition can be inferred from its continuing noncompliance with two orders directing the defendant's deposition, repeated adjournments of the scheduled deposition dates, and inadequate excuses for the failure to produce a witness for deposition (see Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779; Montgomery v. City of New York, 296 A.D.2d 386, 745 N.Y.S.2d 464; Frias v. Fortini, supra; Herrera v. City of New York, 238 A.D.2d 475, 476, 656 N.Y.S.2d 647). Accordingly, the Plaintiffs motion to strike the answer should have been granted unless, within the specified time frame, the defendant (1) produces a witness with knowledge for deposition upon oral examination...)see Vega v. 265 W. 37 St. Corp., 223 A.D.2d 385, 636 N.Y.S.2d 296; Burt Millwork Corp. v. Irpinia Constr. 58)." Corp., 173 A.D.2d 433, 570 N.Y.S.2d 19. For the Courts convenience, the applicable sections of the CPLR (§ 3126 and § 3124) are set out below. 4 of 6 FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020 20. CPLR § 3126, Penalties for refusal to comply with order or to disclose, states: "If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfull fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evideñce designated things or items of testimmy, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 21. CPLR Section 3124, Failure to disclose: motion to comoel disclosure, states: "If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel response." compliance or a 22. As can be seen, the inability to complete discovery has not been due to any fault or lack of effort on the part of plaintiff or his attorneys. It would be wrong for the plaintiff to waive the defendant's discovery obligations and serve a note of issue and statement of readiness for trial in the absence of the defendant's responses. To do so would be to tell the Court that the plaintiff is ready for trial without knowledge of what the defendant might say in their defense. Full and proper trialpreparation requires the defendant's responses. 23. CPLR § 2004 states that "the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon a good cause shown, fixed." whether the application for extension is made before or after the expiration of the time 24. Plaintiff seeks an extension to file the Note of Issue to complete discovery herein. 25. Prior applications have been made for the relief requested herein. 5 of 6 FILED: KINGS COUNTY CLERK 07/01/2020 11:38 AM INDEX NO. 521588/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/01/2020 WHEREFORE, for the foregoing reasons, it is respectfully requested that the within applicationbegrantedinitsentirety. Dated: Brooklyn, NewYork June 29, 2020 Daniel Berger, Esq. 6 of 6