Preview
FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
INDEX NO.:
703721/2018
THALIA AGATHOCLEOUS,
REPLY
Plaintiff(s),
AFFIRMATION TO
-against- CROSS-MOTION
795 FIFTH AVENUE CORPORATION d/b/a THE Honorable Pam B.
PIERRE, Jackman Brown
Defendant(s). Returnable: May 24, 2021
Albert R. Matuza, Jr., Esq., an attorney admitted to practice in the State of New York, affirms
the following under penalty of perjury:
1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for
the plaintiff, and as such am thoroughly conversant with the facts and circumstances
herein based upon the contents of the file maintained by this office.
2. I make this reply affirmation in response to the opposition papers filed by the defendant
and in support of the imtant cross-motion for an Order pursuant to New York Civil
Practice Law and Rules ("C.P.L.R.") Rule, 3025 (b), and 3025(c), granting leave to
amend a pleading and granting such other and further relief as the court deems just and
proper.
3. Defendant argues that a copy of the proposed Amended Bill of Particulars is not
"G"
annexed to the cross-motion. The proposed is annexed as Exhibit of defendant's
Particulars'
motion. That document is titled"Supplemental Verified Bill of because itis
plaintiff's contention that the pleading is a supplement and not amendmêõt As plaintiff
"1"
noted in paragraph of the affirmation in support of cross-motion, if this Court were
to find that this Supplemental Verified Bill of Particulars is an amendment, then this
Court should order the document be titled an Amended Verified Bill of Particulars or
plaintiff should be granted leave to serve an Amended Verified Bill of Particulars. The
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FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021
"G"
document annexed as Exhibit of the motion is the proposed amended document.
"A"
However, annexed hereto as Exhibit is that same document was annexed as Exhibit
"G"
to defendant's motion with the only change being the date and title of the document
now reflecting that itis the proposed amendment.
4. Defense counsel argues that they were not provided with an authorization for the 2018
W2's since the employment authorization included in Plaintiff's Responses to Combined
"D"
Demands, dated June 8, 2018 (annexed to Exhibit of the cross-motion) was dated
"K"
prior to the end of the tax year. This authorization is annexed to Exhibit of
defendant's opposition. This authorization is valid until the conclusion of litigation so
the authorization has remained valid and there is no reason why the defendant cannot
use this authorization to obtain the 2018 W2's. Defendant also argues the employment
"B"
authorization did not include the payroll records. Annexed hereto as Exhibit is an
additional employment authorization.
5. Defense counsel also argues that since at the time of plaintiff's deposition the plaintiff
was not claiming lost wages, the defendant did not ask plaintiff questions pertaining to
inissed time from work or lost wages at the deposition. As noted in the cross-motion, if
the defendant wanted a further deposition limited to plaintiff's lost wages claim, the
defendant's counsel could have served a notice of deposition or contacted this office to
schedule it,both of which have not been done. Therefore, itis the continuing position of
this office that defendant has waived their right to a further deposition since they have
not sought this limited further deposition which should be held prior to a date certain.
6. Defendant also argues that the plaintiff has failed to show any causal relationship
between the rib fracture and accident. However, that is not accurate, Dr. Guy's report
"4"
noted that he reviewed the X-Ray report of the ribs (See paragraph of page "1") and
healed."
his diagnoses included "Status post fracture of the eight rib,now (he number
"4" "Diagnosis"
of the Section titled on page 2) of Dr. Guy's report annexed to the
cross-motion as Exhibit "F". Plaintiff also testified that after her fall she felt pain to her
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FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021
ribs, which was mostly on her right side. S_ee the deposition transcript annexed to the
"G"
cross motion as Exhibit at p. 42, line 12 to p. 44, line 7.
7. Lastly, defendant argues plaintiff's relief sought in the cross-motion should be denied
since plaintiff has not shown any valid excuse for the delay in serving the subject
supplemental or amended document. However, the defendant does not provide any
examples of prejudice by service the aforesaid Supplemental Verified Bill of Particulars
after the filing of the Note of Issue and Certificate of Readiness and cannot claim any
prejudice.
WHEREFORE, in view of the foregoing, it is hereby respectfully requested that the plaintiff's
cross-motion be granted, together with any such other and further relief as to this Honorable Court
may deem just and proper.
Dated: Astoria, New York
May 11, 2021
ALBERT R. MATUZA, JR.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index No.: 703721/2018
THALIA AGATHOCLEOUS,
Plaintiff(s),
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE,
Defendant(s).
REPLY AFFIRMATION TO CROSS-MOTION
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts
of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed documents are not frivolous.
Dated: New York -
Astoria,
May 11, 2021 Signature:
Alifert R. satuza, Jr.,Esq.
SACCO & FILLAS, LLP
Attorneys for Plaintiff
31-19 Newtown Avenue
Seventh Floor
Astoria, New York 11102
(718) 746-3440
SACCO& FILLAS,LLP
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Preview
FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS INDEX NO.: 703721/2018 THALIA AGATHOCLEOUS, REPLY Plaintiff(s), AFFIRMATION TO -against- CROSS-MOTION 795 FIFTH AVENUE CORPORATION d/b/a THE Honorable Pam B. PIERRE, Jackman Brown Defendant(s). Returnable: May 24, 2021 Albert R. Matuza, Jr., Esq., an attorney admitted to practice in the State of New York, affirms the following under penalty of perjury: 1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for the plaintiff, and as such am thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this reply affirmation in response to the opposition papers filed by the defendant and in support of the imtant cross-motion for an Order pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Rule, 3025 (b), and 3025(c), granting leave to amend a pleading and granting such other and further relief as the court deems just and proper. 3. Defendant argues that a copy of the proposed Amended Bill of Particulars is not "G" annexed to the cross-motion. The proposed is annexed as Exhibit of defendant's Particulars' motion. That document is titled"Supplemental Verified Bill of because itis plaintiff's contention that the pleading is a supplement and not amendmêõt As plaintiff "1" noted in paragraph of the affirmation in support of cross-motion, if this Court were to find that this Supplemental Verified Bill of Particulars is an amendment, then this Court should order the document be titled an Amended Verified Bill of Particulars or plaintiff should be granted leave to serve an Amended Verified Bill of Particulars. The SACCO& FILLAS,LLP 1 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021 "G" document annexed as Exhibit of the motion is the proposed amended document. "A" However, annexed hereto as Exhibit is that same document was annexed as Exhibit "G" to defendant's motion with the only change being the date and title of the document now reflecting that itis the proposed amendment. 4. Defense counsel argues that they were not provided with an authorization for the 2018 W2's since the employment authorization included in Plaintiff's Responses to Combined "D" Demands, dated June 8, 2018 (annexed to Exhibit of the cross-motion) was dated "K" prior to the end of the tax year. This authorization is annexed to Exhibit of defendant's opposition. This authorization is valid until the conclusion of litigation so the authorization has remained valid and there is no reason why the defendant cannot use this authorization to obtain the 2018 W2's. Defendant also argues the employment "B" authorization did not include the payroll records. Annexed hereto as Exhibit is an additional employment authorization. 5. Defense counsel also argues that since at the time of plaintiff's deposition the plaintiff was not claiming lost wages, the defendant did not ask plaintiff questions pertaining to inissed time from work or lost wages at the deposition. As noted in the cross-motion, if the defendant wanted a further deposition limited to plaintiff's lost wages claim, the defendant's counsel could have served a notice of deposition or contacted this office to schedule it,both of which have not been done. Therefore, itis the continuing position of this office that defendant has waived their right to a further deposition since they have not sought this limited further deposition which should be held prior to a date certain. 6. Defendant also argues that the plaintiff has failed to show any causal relationship between the rib fracture and accident. However, that is not accurate, Dr. Guy's report "4" noted that he reviewed the X-Ray report of the ribs (See paragraph of page "1") and healed." his diagnoses included "Status post fracture of the eight rib,now (he number "4" "Diagnosis" of the Section titled on page 2) of Dr. Guy's report annexed to the cross-motion as Exhibit "F". Plaintiff also testified that after her fall she felt pain to her SACCO& FILLAS,LLP 2 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021 ribs, which was mostly on her right side. S_ee the deposition transcript annexed to the "G" cross motion as Exhibit at p. 42, line 12 to p. 44, line 7. 7. Lastly, defendant argues plaintiff's relief sought in the cross-motion should be denied since plaintiff has not shown any valid excuse for the delay in serving the subject supplemental or amended document. However, the defendant does not provide any examples of prejudice by service the aforesaid Supplemental Verified Bill of Particulars after the filing of the Note of Issue and Certificate of Readiness and cannot claim any prejudice. WHEREFORE, in view of the foregoing, it is hereby respectfully requested that the plaintiff's cross-motion be granted, together with any such other and further relief as to this Honorable Court may deem just and proper. Dated: Astoria, New York May 11, 2021 ALBERT R. MATUZA, JR. 3 of 4 FILED: QUEENS COUNTY CLERK 05/13/2021 09:30 AM INDEX NO. 703721/2018 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 05/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No.: 703721/2018 THALIA AGATHOCLEOUS, Plaintiff(s), -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, Defendant(s). REPLY AFFIRMATION TO CROSS-MOTION Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: New York - Astoria, May 11, 2021 Signature: Alifert R. satuza, Jr.,Esq. SACCO & FILLAS, LLP Attorneys for Plaintiff 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 (718) 746-3440 SACCO& FILLAS,LLP 4 of 4