On October 01, 2018 a
Motion-Secondary
was filed
involving a dispute between
Araminta Cordero,
and
Bsc Retail Owner Llc,
for Torts - Other Negligence (PERSONAL INJURY)
in the District Court of Kings County.
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FILED: KINGS COUNTY CLERK 02/13/2019 11:29 AM INDEX NO. 519727/2018
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------- -------- -----------------------------x Index No.: 519727/2018
ARAMINTA CORDERO,
Plaintiff
AFFIRMATION IN
OPPOSITION
-against-
BSC RETAIL OWNER LLC,
Defendants.
------ --------------------------------------------------- -----x
MARK J. LINDER, an attorney duly authorized to practice law before the courts of the state of
New York, hereby affirms the following to be true under the penalties of perjury:
1. That I am a member of the firm of HARMON, LINDER & ROGOWSKY ESQS., the
attorneys of record for the plaintiff herein, and as such am fully familiar with the
circumstances surrounding this matter.
2. I submit this affirmation in opposition to defendant's Motion for an Order:
a. Pursuant to CPLR §3126, striking Plaintiff's Complaint for failure to answer
discovery demands;
b. Pursuant to CPLR §3024, precluding Plaintiff from offering evidence at the trial of
this action as to matters of which particulars have been sought but not provided;
c. If dismissal is not grated with respect to No. 1 herein, then pursuant to CPLR §§3124
and 3126(2) compelling Plaintiff to produce the discovery requested by a date certain;
and
d. For such other and further relief as this Court deems just and proper.
3. This is an action for severe personal injuries sustaiñéd by the plaintiff, ARAMINTA
1 of 3
FILED: KINGS COUNTY CLERK 02/13/2019 11:29 AM INDEX NO. 519727/2018
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/13/2019
CORDERO, as the result of a slip and fall accident on August 4, 2018 caused by the
negligence of the defendant herein.
4. Movant makes this application on the grounds that plaintiff has failed to answer discovery
demands namely a Demand for Verified Bill of Particulars and Various Demands, which are
collectively annexed in movant's papers as Exhibit "C".
"A"
5. Annexed herein as Exhibit is a copy of plaintiff's Verified Bill of Particulars. Annexed
"B"
herein as Exhibit is a copy of plaintiff's Response to Demand for Discovery and
Inspection.
6. The extreme sanctions of dismissal and preclusion for failure to comply with discovery
demañds is a drastic measure, unwarranted by the plaintiff's actions in this matter. See
(2nd
Jonassen v. A.M.F. Inc., 104 A.D.2d 484 Dept.); JOSeph v. Roller Castle. Ltd., 100 AD2d
(2nd
839 Dept.) (Court Ordered Discovery and Inspection); Siebert v. 60 Sutton Corp., 99
AD2d 950 (Court Ordered Discovery and Inspection). When failure to comply is not willful
or contumacious a bãlañciñg of interests indicates that the appropriate sanction is to permit one
final opportunity to comply with the discovery order. The plaintiff in the case at bar has clearly
not acted in a manner that could be considered willful or contumacious. All requested
discovery has now been provided and plaintiff's Examination Before Trial can proceed to the
extent itis scheduled.
7. As we are in compliance with movant's request the instant motion is now moot.
8. WHEREFORE, itis respectfully requested that defendant's motion be denied in itsentirety
and for such other further relief as this court deems just, proper and equitable.
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FILED: KINGS COUNTY CLERK 02/13/2019 11:29 AM INDEX NO. 519727/2018
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/13/2019
Dated: New York, New York,
February 13, 2019
Your etc.
HARMON, LINDER & ROGOWSKY
ESQS.
Attorneys for Plaintiff
ARAMINTA CORDERO
3 Park Avenue, Suite 2300
New York, NY 10016
(212) 732-3665
MJL/rh
TO: BRODY & BRANCH LLP
Attorneys for Defendant
BSC RETAIL OWNER LLC
4*
205 Lexington Avenue, Floor
New York, New York 10016
T. (212) 679-7007
3 of 3
Document Filed Date
February 13, 2019
Case Filing Date
October 01, 2018
Category
Torts - Other Negligence (PERSONAL INJURY)
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FILED: KINGS COUNTY CLERK 02/13/2019 11:29 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------- -------- -----------------------------x Index No.: 519727/2018 ARAMINTA CORDERO, Plaintiff AFFIRMATION IN OPPOSITION -against- BSC RETAIL OWNER LLC, Defendants. ------ --------------------------------------------------- -----x MARK J. LINDER, an attorney duly authorized to practice law before the courts of the state of New York, hereby affirms the following to be true under the penalties of perjury: 1. That I am a member of the firm of HARMON, LINDER & ROGOWSKY ESQS., the attorneys of record for the plaintiff herein, and as such am fully familiar with the circumstances surrounding this matter. 2. I submit this affirmation in opposition to defendant's Motion for an Order: a. Pursuant to CPLR §3126, striking Plaintiff's Complaint for failure to answer discovery demands; b. Pursuant to CPLR §3024, precluding Plaintiff from offering evidence at the trial of this action as to matters of which particulars have been sought but not provided; c. If dismissal is not grated with respect to No. 1 herein, then pursuant to CPLR §§3124 and 3126(2) compelling Plaintiff to produce the discovery requested by a date certain; and d. For such other and further relief as this Court deems just and proper. 3. This is an action for severe personal injuries sustaiñéd by the plaintiff, ARAMINTA 1 of 3 FILED: KINGS COUNTY CLERK 02/13/2019 11:29 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/13/2019 CORDERO, as the result of a slip and fall accident on August 4, 2018 caused by the negligence of the defendant herein. 4. Movant makes this application on the grounds that plaintiff has failed to answer discovery demands namely a Demand for Verified Bill of Particulars and Various Demands, which are collectively annexed in movant's papers as Exhibit "C". "A" 5. Annexed herein as Exhibit is a copy of plaintiff's Verified Bill of Particulars. Annexed "B" herein as Exhibit is a copy of plaintiff's Response to Demand for Discovery and Inspection. 6. The extreme sanctions of dismissal and preclusion for failure to comply with discovery demañds is a drastic measure, unwarranted by the plaintiff's actions in this matter. See (2nd Jonassen v. A.M.F. Inc., 104 A.D.2d 484 Dept.); JOSeph v. Roller Castle. Ltd., 100 AD2d (2nd 839 Dept.) (Court Ordered Discovery and Inspection); Siebert v. 60 Sutton Corp., 99 AD2d 950 (Court Ordered Discovery and Inspection). When failure to comply is not willful or contumacious a bãlañciñg of interests indicates that the appropriate sanction is to permit one final opportunity to comply with the discovery order. The plaintiff in the case at bar has clearly not acted in a manner that could be considered willful or contumacious. All requested discovery has now been provided and plaintiff's Examination Before Trial can proceed to the extent itis scheduled. 7. As we are in compliance with movant's request the instant motion is now moot. 8. WHEREFORE, itis respectfully requested that defendant's motion be denied in itsentirety and for such other further relief as this court deems just, proper and equitable. 2 of 3 FILED: KINGS COUNTY CLERK 02/13/2019 11:29 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/13/2019 Dated: New York, New York, February 13, 2019 Your etc. HARMON, LINDER & ROGOWSKY ESQS. Attorneys for Plaintiff ARAMINTA CORDERO 3 Park Avenue, Suite 2300 New York, NY 10016 (212) 732-3665 MJL/rh TO: BRODY & BRANCH LLP Attorneys for Defendant BSC RETAIL OWNER LLC 4* 205 Lexington Avenue, Floor New York, New York 10016 T. (212) 679-7007 3 of 3