Preview
FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------x
ABRAHAM VARGAS MEDELLIN and Index No. 521723/2018
JOSE ALFONSO DELGADO PRIEGO,
Plaintiff, AFFIRMATION IN SUPPORT
OF PROPOSED ORDER TO
-against- SHOW CAUSE
HAPPY TRANSPORTATION SERVICE, LLC,
And RASIER-NY, LLC,
Defendants.
HAPPY TRANSPORTATION, LLC, Third-Party
Index No.:
Third-Party Plaintiff,
-against-
th
11 ST. WORKSHOP INC. and ADAM LONGORIA,
Third-Party Defendants.
-__________------ --- ¬-____--------------------------____--------X
MATTHEW H. HERLIHY, an attorney duly admitted to practice law in the State of New
York, affirms the following under penalty of perjury.
This affirmation is submitted in support of the instant Proposed Order to Show Cause,
seeking an Order staying all discovery in the action commenced on behalf of plaintiffs
ABRAHAM VARGAS MEDELLIN and JOSE ALFONSO DELGADO PRIEGO, pending the
11™
appearance of newly interplead third-party defendants ST. WORKSHOP INC. and ADAM
LONGORIA, and until such a time that said third-party defendants are able to conduct all
discovery in the aforementioned third-party action to reach that which has already been conducted
in the original action, thereby avoiding any potentially unnecessary or duplicative discovery.
8098447v.I
1 of 5
FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020
INTRODUCTION
This litigation arises out of a two-vehicle accident which is alleged to have occurred on
September 17, 2018, in the vicinity of Adams Street and Tillary Street, in Kings County, New
York. NYSCEF Doc. No. 11 at p. 4. At the time of the accident, plaintiffs alleged they were
passengers in a vehicle which allegedly collided with another vehicle at that location. See generally
id.
The next scheduled conference for this matter is on February 7, 2020, in the Final
Conference Part.
PROCEDURAL/DISCOVERY BACKGROUND
On October 29, 2018, Plaintiffs Medellin and Priego commenced the original action in
Kings County Supreme Court, seeking to recover damages for alleged personal injuries sustained
arising out of the aforementioned motor vehicle accident. Id. Discovery has been ongoing in that
matter, with both plaintiff Medellin and Priego having been previously deposed in September of
2019. Defendant Happy Transportation, LLC, (hereafter "Happy") was deposed on December 2,
2019. The deposition of defendant Rasier-NY, LLC, has been set for January 17, 2020. No IMEs
have been conducted of the plaintiffs, despite numerous attempts, as they reside in Mexico and
have failed to appear on several dates.
On January 7, 2020, Happy filed a third-party summons and complaint against third-party
lth
defendants 1 St. Workshop Inc. and Adam Longoria. NYSCEF Doc. No. 57. The third-party
11th
complaint filed by Happy alleges that third-party defendants St. Workshop Inc. and Adam
Longoria owned, operated, and controlled the vehicle adverse to Happy and involved in the
underlying accident. Id.
This application was brought a Proposed Order to Show Cause as the of the third-
by filing
party action on January 7, 2020, and the deposition date of Rasier-NY, LLC, set for January 17,
8098447v.1
2 of 5
FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020
2020, did not leave enough time for an omnibus motion to be properly noticed and served under
the CPLR. As such, this application must be made in this form.
ARGUMENT
Common questions of law and fact will exist amongst the initial action brought by plaintiffs
Medellin and Priego and the third-party litigants, and under these circumstances, joint discovery
proceedings and joint trial are preferable. Rothstein v. Millereidge Inn, 251 A.D.2d 154 (lst Dept.
see Marbilla v. 143/145 Lexington 116 A.D.3d 544 (1st Dept. 2014). The third-
1998); also, LLC,
party action will not unduly prejudice the rights of any other party to this action, and thus to sever
the third-party action would be improper. Marbilla, LLC v. 143/145 Lexington LLC, 116 A.D.3d
544 (1st Dept. 2014). As the third-party action is properly kept with the original action, and joint
discovery proceedings are preferable, the Court should exercise the authority afforded itunder
CPLR section 2201 to stay the discovery proceedings, in part, until such a time as the third-party
action is able to complete discovery to the extent of which has already been completed in the
original action.
Per CPLR section 2201, the Court "in which an action is pending may grant a stay of
just."
proceedings in a proper case, upon such terms as may be See CPLR section 2201. As is
clearly the case here, itwould be unjust for all parties to continue on with discovery in the original
action commenced by plaintiffs Medellin and Priego, only to have to conduct the exact same, or
nearly identical discovery again as part of the third-party action. Specifically, the deposition of
defendant Rasier-NY, LLC, is set to take place on January 17, 2020. This deposition, previously
agreed to by the parties, would ultimately have to take place twice upon third-party defendants
being joined. As a result, defendant Rasier-NY, LLC, would be required to produce a witness on
8098447v.1
3 of 5
FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020
multiple for no reason - in costs incurred and
occasions, resulting unnecessary being
suffering undue prejudice as a result.
However, staying the discovery in this matter until such a time that the third-party
litigants are able to conduct discovery so as to reach the same stage as the initial action,
does not result in prejudice to any party in this action. Plaintiffs will not suffer any
prejudice, as all discovery will still occur prior to the filing of the note of issue.
Therefore, the Court must exercise the authority it possesses under CPLR section
2201 to stay the discovery proceedings in the action commenced by plaintiffs Medellin and
Priego in the manner set forth above.
CONCLUSION
WHEREFORE, based upon the foregair,g, it is respectfully requested that the Court
issue an Order staying all discovery in the action commenced on behalf of plaintiffs ABRAHAM
VARGAS MEDELLIN and JOSE ALFONSO DELGADO PRIEGO, pending the appearance of
11™
newly interplead third-party defendants ST. WORKSHOP INC. and ADAM LONGORIA,
and until such a time that said third-party defendants are able to conduct all discovery in the
aforementioned third-party action to reach that which has already been conducted in the original
action, thereby avoiding any potentially unnecessary or duplicative discovery.
And for such other relief as the Court may deem just and proper.
Dated: January 13, 2020
White Plains, New York
8098447v.1
4 of 5
FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020
Yours, etc.,
WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER LLP
"
Matthew H. Herlihy, Esq.
Attorneys for Defendant
RASIER-NY, LLC
1133 Westchester Avenue
White Plains, New York 10604
(914) 323-7000
JAROSLAWICZ & JAROS PLLC
Attorneys for Plaintiffs
Abraham Vargas Medellin and
Jose Alfonso Delgado Priego
24th
225 Broadway, FlOOr
New York, New York 10007
(212) 227-2780
LAW OFFICES OF NANCY L. ISSERLIS
Attorneys for Defendant/Third-Party Plaintiff
Happy Transportation Service, LLC
43rd
36-01 Avenue
Long Island City, New York 11101
(718) 361-1514
11th
STREET WORKSHOP INC.
351 Manhattan Avenue
Jersey City, New Jersey 07307
ADAM LONGORIA
351 Manhattan Avenue
Jersey City, New Jersey 07307
8098447v.1
5 of 5
Preview
FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------x ABRAHAM VARGAS MEDELLIN and Index No. 521723/2018 JOSE ALFONSO DELGADO PRIEGO, Plaintiff, AFFIRMATION IN SUPPORT OF PROPOSED ORDER TO -against- SHOW CAUSE HAPPY TRANSPORTATION SERVICE, LLC, And RASIER-NY, LLC, Defendants. HAPPY TRANSPORTATION, LLC, Third-Party Index No.: Third-Party Plaintiff, -against- th 11 ST. WORKSHOP INC. and ADAM LONGORIA, Third-Party Defendants. -__________------ --- ¬-____--------------------------____--------X MATTHEW H. HERLIHY, an attorney duly admitted to practice law in the State of New York, affirms the following under penalty of perjury. This affirmation is submitted in support of the instant Proposed Order to Show Cause, seeking an Order staying all discovery in the action commenced on behalf of plaintiffs ABRAHAM VARGAS MEDELLIN and JOSE ALFONSO DELGADO PRIEGO, pending the 11™ appearance of newly interplead third-party defendants ST. WORKSHOP INC. and ADAM LONGORIA, and until such a time that said third-party defendants are able to conduct all discovery in the aforementioned third-party action to reach that which has already been conducted in the original action, thereby avoiding any potentially unnecessary or duplicative discovery. 8098447v.I 1 of 5 FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020 INTRODUCTION This litigation arises out of a two-vehicle accident which is alleged to have occurred on September 17, 2018, in the vicinity of Adams Street and Tillary Street, in Kings County, New York. NYSCEF Doc. No. 11 at p. 4. At the time of the accident, plaintiffs alleged they were passengers in a vehicle which allegedly collided with another vehicle at that location. See generally id. The next scheduled conference for this matter is on February 7, 2020, in the Final Conference Part. PROCEDURAL/DISCOVERY BACKGROUND On October 29, 2018, Plaintiffs Medellin and Priego commenced the original action in Kings County Supreme Court, seeking to recover damages for alleged personal injuries sustained arising out of the aforementioned motor vehicle accident. Id. Discovery has been ongoing in that matter, with both plaintiff Medellin and Priego having been previously deposed in September of 2019. Defendant Happy Transportation, LLC, (hereafter "Happy") was deposed on December 2, 2019. The deposition of defendant Rasier-NY, LLC, has been set for January 17, 2020. No IMEs have been conducted of the plaintiffs, despite numerous attempts, as they reside in Mexico and have failed to appear on several dates. On January 7, 2020, Happy filed a third-party summons and complaint against third-party lth defendants 1 St. Workshop Inc. and Adam Longoria. NYSCEF Doc. No. 57. The third-party 11th complaint filed by Happy alleges that third-party defendants St. Workshop Inc. and Adam Longoria owned, operated, and controlled the vehicle adverse to Happy and involved in the underlying accident. Id. This application was brought a Proposed Order to Show Cause as the of the third- by filing party action on January 7, 2020, and the deposition date of Rasier-NY, LLC, set for January 17, 8098447v.1 2 of 5 FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020 2020, did not leave enough time for an omnibus motion to be properly noticed and served under the CPLR. As such, this application must be made in this form. ARGUMENT Common questions of law and fact will exist amongst the initial action brought by plaintiffs Medellin and Priego and the third-party litigants, and under these circumstances, joint discovery proceedings and joint trial are preferable. Rothstein v. Millereidge Inn, 251 A.D.2d 154 (lst Dept. see Marbilla v. 143/145 Lexington 116 A.D.3d 544 (1st Dept. 2014). The third- 1998); also, LLC, party action will not unduly prejudice the rights of any other party to this action, and thus to sever the third-party action would be improper. Marbilla, LLC v. 143/145 Lexington LLC, 116 A.D.3d 544 (1st Dept. 2014). As the third-party action is properly kept with the original action, and joint discovery proceedings are preferable, the Court should exercise the authority afforded itunder CPLR section 2201 to stay the discovery proceedings, in part, until such a time as the third-party action is able to complete discovery to the extent of which has already been completed in the original action. Per CPLR section 2201, the Court "in which an action is pending may grant a stay of just." proceedings in a proper case, upon such terms as may be See CPLR section 2201. As is clearly the case here, itwould be unjust for all parties to continue on with discovery in the original action commenced by plaintiffs Medellin and Priego, only to have to conduct the exact same, or nearly identical discovery again as part of the third-party action. Specifically, the deposition of defendant Rasier-NY, LLC, is set to take place on January 17, 2020. This deposition, previously agreed to by the parties, would ultimately have to take place twice upon third-party defendants being joined. As a result, defendant Rasier-NY, LLC, would be required to produce a witness on 8098447v.1 3 of 5 FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020 multiple for no reason - in costs incurred and occasions, resulting unnecessary being suffering undue prejudice as a result. However, staying the discovery in this matter until such a time that the third-party litigants are able to conduct discovery so as to reach the same stage as the initial action, does not result in prejudice to any party in this action. Plaintiffs will not suffer any prejudice, as all discovery will still occur prior to the filing of the note of issue. Therefore, the Court must exercise the authority it possesses under CPLR section 2201 to stay the discovery proceedings in the action commenced by plaintiffs Medellin and Priego in the manner set forth above. CONCLUSION WHEREFORE, based upon the foregair,g, it is respectfully requested that the Court issue an Order staying all discovery in the action commenced on behalf of plaintiffs ABRAHAM VARGAS MEDELLIN and JOSE ALFONSO DELGADO PRIEGO, pending the appearance of 11™ newly interplead third-party defendants ST. WORKSHOP INC. and ADAM LONGORIA, and until such a time that said third-party defendants are able to conduct all discovery in the aforementioned third-party action to reach that which has already been conducted in the original action, thereby avoiding any potentially unnecessary or duplicative discovery. And for such other relief as the Court may deem just and proper. Dated: January 13, 2020 White Plains, New York 8098447v.1 4 of 5 FILED: KINGS COUNTY CLERK 01/13/2020 03:42 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/13/2020 Yours, etc., WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP " Matthew H. Herlihy, Esq. Attorneys for Defendant RASIER-NY, LLC 1133 Westchester Avenue White Plains, New York 10604 (914) 323-7000 JAROSLAWICZ & JAROS PLLC Attorneys for Plaintiffs Abraham Vargas Medellin and Jose Alfonso Delgado Priego 24th 225 Broadway, FlOOr New York, New York 10007 (212) 227-2780 LAW OFFICES OF NANCY L. ISSERLIS Attorneys for Defendant/Third-Party Plaintiff Happy Transportation Service, LLC 43rd 36-01 Avenue Long Island City, New York 11101 (718) 361-1514 11th STREET WORKSHOP INC. 351 Manhattan Avenue Jersey City, New Jersey 07307 ADAM LONGORIA 351 Manhattan Avenue Jersey City, New Jersey 07307 8098447v.1 5 of 5