Preview
FILED: NEW YORK COUNTY CLERK 09/14/2020 03:04 PM INDEX NO. 151434/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/14/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ALLSTATE INDEMNITY COMPANY as subrogee of Index No.: 151434/20 ECF
SWAROOPA REDDY DESAI,
AFFIRMATION IN
Plaintiff(s), SUPPORT
-against-
JMJ TURTLE BAY HOLDINGS, LLC, DENNIS
PETROCELLI, RUBIN MENG, ANTHONY
PANTALEONI, GENESIS WILSON, THE RELATED
COMPANY and RELATED MANAGEMENT,
Defendant(s).
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LISA M. JAMES, an attorney duly admitted to practice law in the State of New York,
affirms the following to be true with knowledge of the penalties for perjury:
1. I am associated with the LAW OFFICE OF JAMES J. TOOMEY, attorneys for
defendants JMJ TURTLE BAY HOLDINGS, LLC and DENNIS PETROCELLI, in the above-
entitled action, and as such I am fully familiar with the facts, circumstances, pleadings and
proceedings heretofore had and filed herein.
2. This Affirmation is submitted in support of the instant motion for an Order pursuant
to CPLR §3126(3), striking the complaint in the above-entitled action, upon the ground that the
plaintiff has failed and refused to respond to defendants’ discovery demands, or, in the alternative,
pursuant to CPLR §3124, compelling plaintiff to comply with outstanding discovery demands, and
for such other and further relief as the court deems just and proper.
3. Plaintiff brings this subrogation action for property damages allegedly sustained on
February 10, 2017, at the premises located at 250 E. 53rd Street, New York, New York.
4. Plaintiff commenced this action by the filing of a Summons and Complaint on or
about February 7, 2020, and issue was joined on behalf of the movant by the service of an Answer
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and Cross-Claims, dated March 20, 2020. See copies of the aforesaid pleadings annexed hereto as
Exhibit A.
5. On March 20, 2020, defendants JMJ TURTLE BAY HOLDINGS, LLC and
DENNIS PETROCELLI served Demands for Bill of Particulars as well as Combined Demands.
See a Copy of Defendants’ Demands annexed hereto as Exhibit B.
6. To date, defendants Rubin Meng, Anthony Pantaleoni, and Genesis Wilson have
not appeared in this action.
7. Having received no response to defendants’ Demand for a Verified Bill of
Particulars and Combined Demands, in a good faith effort to obtain compliance by plaintiff, on
June 5, 2020 and July 7, 2020, your affirmant sent correspondence to counsel for plaintiff
requesting responses to the above-mentioned discovery. A copy of the Defendants’
Correspondence is annexed hereto as Exhibit C.
8. To date, plaintiff has failed to respond, and the requested discovery remains
outstanding.
9. The requested discovery is imperative to the defense of this action. The refusal of
the plaintiff to engage in any meaningful discovery has severely prejudiced the ability of the
defendants to defend themselves.
10. CPLR § 3101(a) directs “full disclosure of all matter material and necessary in the
prosecution or defense of an action, regardless of the burden of proof”. See Allen v. Cromwell-
Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). Pursuant to CPLR § 3124, if a party fails to comply
with discovery requests, the court may grant an order compelling compliance.
11. Furthermore, CPLR § 3126 (3) provides that an Order precluding a party from
introducing, in evidence, designated documents or items of testimony may be granted where a
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party fails to disclose information which ought to have been disclosed in discovery. Getty v.
Zimmerman, 37 AD3d 1095 (4th Dept.2007); Manzo v. Nealon, 18 AD3d 1043 (3rd Dept. 2005);
Gilmore v. Garvey, 31 AD3d 381 (2nd Dept. 2006); Cafaro v. Emergency Servs. Holding, Inc., 11
AD3d 496 (2nd Dept. 2004); Crowley v. Montefiore Hospital and Medical Center, 128 A.D.2d 443,
444 (1st Dept. 1987).
WHEREFORE, it is respectfully requested the within motion be granted in all respects,
together with such other and further relief as to this Court shall seem just, proper and equitable,
including costs.
Affirmed: New York, New York
September 14, 2020
___________________________________
By: LISA M. JAMES
3 of 3
Preview
FILED: NEW YORK COUNTY CLERK 09/14/2020 03:04 PM INDEX NO. 151434/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/14/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X ALLSTATE INDEMNITY COMPANY as subrogee of Index No.: 151434/20 ECF SWAROOPA REDDY DESAI, AFFIRMATION IN Plaintiff(s), SUPPORT -against- JMJ TURTLE BAY HOLDINGS, LLC, DENNIS PETROCELLI, RUBIN MENG, ANTHONY PANTALEONI, GENESIS WILSON, THE RELATED COMPANY and RELATED MANAGEMENT, Defendant(s). -------------------------------------------------------------------------X LISA M. JAMES, an attorney duly admitted to practice law in the State of New York, affirms the following to be true with knowledge of the penalties for perjury: 1. I am associated with the LAW OFFICE OF JAMES J. TOOMEY, attorneys for defendants JMJ TURTLE BAY HOLDINGS, LLC and DENNIS PETROCELLI, in the above- entitled action, and as such I am fully familiar with the facts, circumstances, pleadings and proceedings heretofore had and filed herein. 2. This Affirmation is submitted in support of the instant motion for an Order pursuant to CPLR §3126(3), striking the complaint in the above-entitled action, upon the ground that the plaintiff has failed and refused to respond to defendants’ discovery demands, or, in the alternative, pursuant to CPLR §3124, compelling plaintiff to comply with outstanding discovery demands, and for such other and further relief as the court deems just and proper. 3. Plaintiff brings this subrogation action for property damages allegedly sustained on February 10, 2017, at the premises located at 250 E. 53rd Street, New York, New York. 4. Plaintiff commenced this action by the filing of a Summons and Complaint on or about February 7, 2020, and issue was joined on behalf of the movant by the service of an Answer 1 of 3 FILED: NEW YORK COUNTY CLERK 09/14/2020 03:04 PM INDEX NO. 151434/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/14/2020 and Cross-Claims, dated March 20, 2020. See copies of the aforesaid pleadings annexed hereto as Exhibit A. 5. On March 20, 2020, defendants JMJ TURTLE BAY HOLDINGS, LLC and DENNIS PETROCELLI served Demands for Bill of Particulars as well as Combined Demands. See a Copy of Defendants’ Demands annexed hereto as Exhibit B. 6. To date, defendants Rubin Meng, Anthony Pantaleoni, and Genesis Wilson have not appeared in this action. 7. Having received no response to defendants’ Demand for a Verified Bill of Particulars and Combined Demands, in a good faith effort to obtain compliance by plaintiff, on June 5, 2020 and July 7, 2020, your affirmant sent correspondence to counsel for plaintiff requesting responses to the above-mentioned discovery. A copy of the Defendants’ Correspondence is annexed hereto as Exhibit C. 8. To date, plaintiff has failed to respond, and the requested discovery remains outstanding. 9. The requested discovery is imperative to the defense of this action. The refusal of the plaintiff to engage in any meaningful discovery has severely prejudiced the ability of the defendants to defend themselves. 10. CPLR § 3101(a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof”. See Allen v. Cromwell- Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). Pursuant to CPLR § 3124, if a party fails to comply with discovery requests, the court may grant an order compelling compliance. 11. Furthermore, CPLR § 3126 (3) provides that an Order precluding a party from introducing, in evidence, designated documents or items of testimony may be granted where a 2 of 3 FILED: NEW YORK COUNTY CLERK 09/14/2020 03:04 PM INDEX NO. 151434/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/14/2020 party fails to disclose information which ought to have been disclosed in discovery. Getty v. Zimmerman, 37 AD3d 1095 (4th Dept.2007); Manzo v. Nealon, 18 AD3d 1043 (3rd Dept. 2005); Gilmore v. Garvey, 31 AD3d 381 (2nd Dept. 2006); Cafaro v. Emergency Servs. Holding, Inc., 11 AD3d 496 (2nd Dept. 2004); Crowley v. Montefiore Hospital and Medical Center, 128 A.D.2d 443, 444 (1st Dept. 1987). WHEREFORE, it is respectfully requested the within motion be granted in all respects, together with such other and further relief as to this Court shall seem just, proper and equitable, including costs. Affirmed: New York, New York September 14, 2020 ___________________________________ By: LISA M. JAMES 3 of 3