Preview
FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------------x Index No.: 521818/2018
JULIE AYALA,
Plaintiff, AFFIRMATION IN SUPPORT
- against -
94TH AVENUE JAMAICA, LLC,
ARTIMUS CONSTRUCTION INC.,
HP JAMAICA 94TH AVENUE HOUSING
DEVELOPMENT FUND COMPANY, INC.
and 94TH AVENUE JAMAICA LI LLC,
Defendants.
--------------------------------------------------------------------x
94TH AVENUE JAMAICA, LLC,
ARTIMUS CONSTRUCTION INC.,
HP JAMAICA 94TH AVENUE HOUSING
DEVELOPMENT FUND COMPANY, INC.
and 94TH AVENUE JAMAICA LI LLC,
Third-Party Plaintiffs,
- against -
A&M PROFESSIONAL SECURITY CONSULTING
CORP.,
Third-Party Defendant.
---------------------------------------------------------------------x
BRANDON H. WEINSTEIN, an attorney duly admitted to practice before the courts of
the State of New York, affirms the following to be true under the penalties of perjury:
1. I am an associate with the law firm of GALLO VITUCCI KLAR LLP, attorneys
for Defendants/Third-Party Plaintiffs, NYC PARTNERSHIP HOUSING DEVELOPMENT
FUND COMPANY, INC., 94TH AVENUE JAMAICA, LLC, 94TH AVENUE JAMAICA LI, LLC,
HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC., 94TH
1 of 5
FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020
AVENUE GP, LLC and ARTIMUS CONSTRUCTION INC. (“Defendants”) herein. As such, I
am fully familiar with the facts and circumstances of this action as set forth herein.
2. This affirmation is submitted in support of Defendant’s Motion for an Order:
A. Pursuant to 22 NYRR 201.21(d) and CPLR §3124, compelling Plaintiff to
appear for her Independent Medical Examination by a date certain and
respond to Defendant’s Post-Deposition Discovery Demands; or, in the
alternative
B. Pursuant to CPLR Section 3042(c), precluding X-treme Concrete Inc. from
offering evidence at the time of trial.
C. Granting such other, further, and different relief as to this Court may seem
just, proper, and equitable.
PROCEDURAL AND FACTUAL HISTORY
3. This action is for injuries allegedly sustained by plaintiff, Julie Ayala, on March
26, 2018 in and around 94th Avenue in Queens, New York
4. This action was commenced by the service of Plaintiff’s Summons and Complaint
on or about October 30, 2019. Annexed hereto as Exhibit "A" is a copy of the Plaintiff’s
Summons and Complaint.
5. Issue was joined by service of defendant’s Answer on or about May 16, 2019
Annexed hereto as Exhibit "B" is a copy of the aforementioned Answer.
6. Plaintiff’s deposition was held on March 4, 2020. Thereafter, Defendant’s served
plaintiff’s with a post-deposition discovery demand on March 20, 2020. See Exhibit “C.’
7. Despite good faith efforts to obtain the discovery, Plaintiff has not provided a
response to these demands. See Exhibit “D.”
8. Additionally, Defendant’s scheduled an Independent Medical Examination with
Dr. Andrew Bazos for May 22, 2020. See Exhibit “E.” However, Plaintiff failed to show for the
2 of 5
FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020
exam and to date has not provided a reason for this non-compliance
LEGAL ARGUMENT
9. It is well established that the discovery process is broad and allows for the liberal
disclosure of information relevant and material to the claims asserted and as such should not be
unduly restrained. See Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449,
235 N.E.2d 430 (1968) (held the process of discovery must be properly interpreted to allow for the
liberal disclosure of material and necessary information which has any bearing upon the
controversy at issue and which will assist in the preparation for trial. The Court further recognized
that any information sought in good faith, for possible use as evidence either in a party’s case in
chief, rebuttal or on cross-examination should be considered material.)
10. Moreover, the discovery process allows for the exchange of information which,
even if not admissible at trial, could lead to the discovery of admissible information. See Chan v.
Otis Elevator Co., 147 A.D.2d 395, 538 N.Y.S.2d 449 (1st Dept. 1989) (held the discoverability of
information is not tantamount to the issue of the information’s admissibility); See also Avila
Fabrics, Inc v. 152 West 36th Street Corp., 22 A.D.2d 238, 242, 254 N.Y.S.2d 609 (1st Dept. 1964)
(held “the fact that [a record] may not be admissible at the trial as evidence in chief under [the
CPLR], or otherwise, does not necessarily render the [record] immune to discovery, production at
examination, or other disclosure”); See also Mann v. Cooper Tire Co., 33 A.D.3d 24, 29, 816
N.Y.S.2d 45 (1st Dept. 2006) citing Fell v. Presbyterian Hospital in the City of New York at
Columbia-Presbyterian Medical Center, 98 A.D.2d 624, 625, 469 N.Y.S.2d 374 (1st Dept. 1983)
(upheld the entitlement of a party to the discovery of all evidence which is material and necessary
to the defense of an action, with evidence liberally interpreted to include not only admissible proof
3 of 5
FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020
but testimony and records which may lead to the disclosure of admissible proof); See also Bubar
v. Brodman, 30 Misc. 3d 324, 327, 908 N.Y.S.2d 864 (N.Y. Sup. Ct. 2010) (opined “CPLR article
31, makes clear that the discoverability of information before trial is not tantamount to the
admissibility of such information at trial.”); See also Romano v. Steelcase Inc., 30 Misc. 3d 426,
907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010 (the obligation of discovery extends not only to admissible
evidence but to information that may lead to admissible evidence); Compare with White v. Martins,
100 A.D.2d 805, 805, 474 N.Y.S.2d 733 (1st Dept. 1984) (recognized the “scope of examination
on deposition is broader than what may be admissible on trial.”)
11. Here, Plaintiff has failed even after numerous requests to provide discovery.
12. Plaintiff’s ongoing failure to provide the above outlined discovery prevents
Defendants/Third-Party Plaintiffs from properly and zealously defending themselves in this action.
Therefore, Defendants/Third-Party Plaintiff will be severely prejudiced if forced to defend this
action without the benefit of, among other things, an IME exam and discovery responses.
13. The CPLR authorizes this Honorable Court to compel Plaintiff to provide such
discovery and also prevents the non-disclosing party from using the evidence in any matter
during the course of the litigation. See CPLR § 3124.
CPLR § 3124 provides:
Failure to disclose; motion to compel disclosure
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 compliance or a response.
4 of 5
FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020
14. Based upon Plaintiff’s behavior, as demonstrated herein and in the
Defendants/Third-Party Plaintiff’s moving papers, this Honorable Court should compel Plaintiff
to provide the aforementioned discovery and appear for an IME exam as authorized by CPLR §
3124, and in accordance with clearly defined precedent.
WHEREFORE, it is respectfully requested that the Court grant Defendants/Third-Party
Plaintiffs’ Motion in its entirety, precluding Third-Party Defendant from offering or relying upon
any evidence at the time of trial in this action which has not been furnished in response to
Defendants/Third-Party Plaintiffs’ various demands, or alternatively pursuant to CPLR § 3124
compelling Plaintiff and Third-Party Defendant to fully respond to same within twenty (20) days
of service of a self-executing order compelling full compliance and production of the outstanding
discovery and that Third-Party Defendant’s failure to do same results in the dismissal of the action
and such other, further and different relief as this Honorable Court deems just, proper and
equitable.
Dated: New York, New York
June 3, 2020
________________________
BRANDON H. WEINSTEIN
5 of 5
Preview
FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------x Index No.: 521818/2018 JULIE AYALA, Plaintiff, AFFIRMATION IN SUPPORT - against - 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH AVENUE JAMAICA LI LLC, Defendants. --------------------------------------------------------------------x 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH AVENUE JAMAICA LI LLC, Third-Party Plaintiffs, - against - A&M PROFESSIONAL SECURITY CONSULTING CORP., Third-Party Defendant. ---------------------------------------------------------------------x BRANDON H. WEINSTEIN, an attorney duly admitted to practice before the courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an associate with the law firm of GALLO VITUCCI KLAR LLP, attorneys for Defendants/Third-Party Plaintiffs, NYC PARTNERSHIP HOUSING DEVELOPMENT FUND COMPANY, INC., 94TH AVENUE JAMAICA, LLC, 94TH AVENUE JAMAICA LI, LLC, HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC., 94TH 1 of 5 FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020 AVENUE GP, LLC and ARTIMUS CONSTRUCTION INC. (“Defendants”) herein. As such, I am fully familiar with the facts and circumstances of this action as set forth herein. 2. This affirmation is submitted in support of Defendant’s Motion for an Order: A. Pursuant to 22 NYRR 201.21(d) and CPLR §3124, compelling Plaintiff to appear for her Independent Medical Examination by a date certain and respond to Defendant’s Post-Deposition Discovery Demands; or, in the alternative B. Pursuant to CPLR Section 3042(c), precluding X-treme Concrete Inc. from offering evidence at the time of trial. C. Granting such other, further, and different relief as to this Court may seem just, proper, and equitable. PROCEDURAL AND FACTUAL HISTORY 3. This action is for injuries allegedly sustained by plaintiff, Julie Ayala, on March 26, 2018 in and around 94th Avenue in Queens, New York 4. This action was commenced by the service of Plaintiff’s Summons and Complaint on or about October 30, 2019. Annexed hereto as Exhibit "A" is a copy of the Plaintiff’s Summons and Complaint. 5. Issue was joined by service of defendant’s Answer on or about May 16, 2019 Annexed hereto as Exhibit "B" is a copy of the aforementioned Answer. 6. Plaintiff’s deposition was held on March 4, 2020. Thereafter, Defendant’s served plaintiff’s with a post-deposition discovery demand on March 20, 2020. See Exhibit “C.’ 7. Despite good faith efforts to obtain the discovery, Plaintiff has not provided a response to these demands. See Exhibit “D.” 8. Additionally, Defendant’s scheduled an Independent Medical Examination with Dr. Andrew Bazos for May 22, 2020. See Exhibit “E.” However, Plaintiff failed to show for the 2 of 5 FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020 exam and to date has not provided a reason for this non-compliance LEGAL ARGUMENT 9. It is well established that the discovery process is broad and allows for the liberal disclosure of information relevant and material to the claims asserted and as such should not be unduly restrained. See Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 (1968) (held the process of discovery must be properly interpreted to allow for the liberal disclosure of material and necessary information which has any bearing upon the controversy at issue and which will assist in the preparation for trial. The Court further recognized that any information sought in good faith, for possible use as evidence either in a party’s case in chief, rebuttal or on cross-examination should be considered material.) 10. Moreover, the discovery process allows for the exchange of information which, even if not admissible at trial, could lead to the discovery of admissible information. See Chan v. Otis Elevator Co., 147 A.D.2d 395, 538 N.Y.S.2d 449 (1st Dept. 1989) (held the discoverability of information is not tantamount to the issue of the information’s admissibility); See also Avila Fabrics, Inc v. 152 West 36th Street Corp., 22 A.D.2d 238, 242, 254 N.Y.S.2d 609 (1st Dept. 1964) (held “the fact that [a record] may not be admissible at the trial as evidence in chief under [the CPLR], or otherwise, does not necessarily render the [record] immune to discovery, production at examination, or other disclosure”); See also Mann v. Cooper Tire Co., 33 A.D.3d 24, 29, 816 N.Y.S.2d 45 (1st Dept. 2006) citing Fell v. Presbyterian Hospital in the City of New York at Columbia-Presbyterian Medical Center, 98 A.D.2d 624, 625, 469 N.Y.S.2d 374 (1st Dept. 1983) (upheld the entitlement of a party to the discovery of all evidence which is material and necessary to the defense of an action, with evidence liberally interpreted to include not only admissible proof 3 of 5 FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020 but testimony and records which may lead to the disclosure of admissible proof); See also Bubar v. Brodman, 30 Misc. 3d 324, 327, 908 N.Y.S.2d 864 (N.Y. Sup. Ct. 2010) (opined “CPLR article 31, makes clear that the discoverability of information before trial is not tantamount to the admissibility of such information at trial.”); See also Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010 (the obligation of discovery extends not only to admissible evidence but to information that may lead to admissible evidence); Compare with White v. Martins, 100 A.D.2d 805, 805, 474 N.Y.S.2d 733 (1st Dept. 1984) (recognized the “scope of examination on deposition is broader than what may be admissible on trial.”) 11. Here, Plaintiff has failed even after numerous requests to provide discovery. 12. Plaintiff’s ongoing failure to provide the above outlined discovery prevents Defendants/Third-Party Plaintiffs from properly and zealously defending themselves in this action. Therefore, Defendants/Third-Party Plaintiff will be severely prejudiced if forced to defend this action without the benefit of, among other things, an IME exam and discovery responses. 13. The CPLR authorizes this Honorable Court to compel Plaintiff to provide such discovery and also prevents the non-disclosing party from using the evidence in any matter during the course of the litigation. See CPLR § 3124. CPLR § 3124 provides: Failure to disclose; motion to compel disclosure 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 compliance or a response. 4 of 5 FILED: KINGS COUNTY CLERK 06/03/2020 06:41 PM INDEX NO. 521818/2018 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/03/2020 14. Based upon Plaintiff’s behavior, as demonstrated herein and in the Defendants/Third-Party Plaintiff’s moving papers, this Honorable Court should compel Plaintiff to provide the aforementioned discovery and appear for an IME exam as authorized by CPLR § 3124, and in accordance with clearly defined precedent. WHEREFORE, it is respectfully requested that the Court grant Defendants/Third-Party Plaintiffs’ Motion in its entirety, precluding Third-Party Defendant from offering or relying upon any evidence at the time of trial in this action which has not been furnished in response to Defendants/Third-Party Plaintiffs’ various demands, or alternatively pursuant to CPLR § 3124 compelling Plaintiff and Third-Party Defendant to fully respond to same within twenty (20) days of service of a self-executing order compelling full compliance and production of the outstanding discovery and that Third-Party Defendant’s failure to do same results in the dismissal of the action and such other, further and different relief as this Honorable Court deems just, proper and equitable. Dated: New York, New York June 3, 2020 ________________________ BRANDON H. WEINSTEIN 5 of 5