Preview
FILED: KINGS COUNTY CLERK 01/08/2019 10:52 AM INDEX NO. 519727/2018
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/08/2019
SUPREME COURT OF THE STATE OF NEW Y ORK
COUNTY OF KINGS
------ ---------------------------X
ARAMINTA CORDERO, Index No.: 519727/2018
Plaintiff,
- against - AFFIRMATION IN
SUPPORT OF MOTION
BSC RETAIL OWNER LLC,
Defendant.
--------------------------------------------------X
C O U N S E L O R S:
JUSTIN B. CRAYTON, an attorney duly admitted to practice law before the Courts of the
State of New York, duly affirms the following under the penalties of perjury:
1. I am a member of the law firm BRODY & BRANCH LLP, attorneys for defendant,
BSC RETAIL OWNER LLC, (the "Defendant") and as such, I am fully familiar with the prior
pleadings and proceedings in this matter based upon a review of the file maintained by my office.
2. I submit this affirmation in support of the within motion seeking an Order, pursuant
to C.P.L.R § 3126, dismissing Araminta Cordero's (the "Plaintiff") action for Plaintiff's continued
and willful failure to produce the discovery requested by a date certain.
BASIS OF MOTION
3. This is an action to recover monetary damagcs for personal injuries alkgedly
sustained by Plaintiff on August 4, 2018.
4. The within proceedings were commenced by the filing of a Summons and
Complaint on or about October 1, 2018, which is annexed hereto as Exhibit "A".
5. Moving Defendañt joined issue by service of the Answer of the moving Defendant
on or about October 29, 2018, which is annexed hereto as Exhibit "B".
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6. On October 29, 2018, Defendant also served Plaintiff with a Demand for Verified
Bill of Particulars, Notice to Take Deposition and Various Demands, which are collectively
annexed hereto as Exhibit "C".
7. Defendant sent Plaintiff's office a good faith letter dated November 30, 2018,
regarding the outstanding discovery. Copies of the letter are annexed hereto as Exhibits "D".
8. To date, Plaintiff has not provided Defendant with the requested outstanding
discovery, which has necessitated the within motion.
ARGUMENT
9. The Civil Practice Laws and Rules set forth a statutory scheme designed to
perpetuate the free flow of discovery. See CPLR § 3101 et. seq. When a litigant frustrates the
discovery scheme set forth in the CPLR, the Courts of this jurisdiction readily order compliance.
And when a litigant refuses to comply, the Courts of this jurisdiction readily implement penalties
and impose sanctions.
10. Where a demañd for disclosure is ignored, the party seeking disclosure can proceed
under C.P.L.R § 3124 for an Order to Compel Disclosure or move under C.P.L.R § 3126 for the
imposition of penalties for willful failure to disclose. S_e_e,Goldner v. Lendor Structures, Inc., 29
A.D.2d 978, 979, 289 N.Y.S.2d 687 (2d Dep't 1968).
11. Specifically, C.P.L.R § 3124 states:
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.
12. C.P.L.R § 3126 states:
If any party, or a person who at the time a deposition is taken or an
examination or inspection is made, is an officer, director, member, employee or
agent of a party or otherwise under a party's control, refuses to obey an order for
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disclosure or willfully failsto disclose information which the court finds ought to
have been disclosed, pursuant to this article, the court may make such orders with
regard to the failure or refusal as are just, among them:
1. An order that issues to which the information is relevant which
deemed resolved for purposes of the action in accordance with
the claims of the party obtaining the order; or
2. An order prohibiting the disobedient party from supporting or
opposing designated claims or defenses, from producing in
evidence designated things or items of testimony, or from
introducing any evidence of the physical, mental or blood
condition sought to be determined, or from using certain
witnesses; or
3. An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or any part thereof, or rendering a judgment by default
against the disobedient party.
12. Thus, per the express terms of C.P.L.R § 3126, the Court is authorized to strike a
party's pleading and preclude itfrom offering evidence where ithas failed to "disclose information
which the court finds ought to have been disclosed".
13. Moreover, Plaintiff has not even offered an excuse as to why she has failed to
provide the requested discovery. A party's bad faith may be inferred by its failure to offer a
reasonable excuse for itsfailure to produce demanded discovery, and this bad faith may warrant
judicially imposed sanctions. The "absence of an excuse for the delay in responding to discovery
demands, and the delaying party's failure to object to the demands, supports an inference that the
willful."
failure to comply was _Frias v. Fortini. supra; see also Brady v. County of Nassau, 234
AD2d 408 (2d Dep't 1996); see also Ali v. Lazerovitch, supra.
14. Therefore, it is respectfully submitted that this Court should enter an Order of
dismissal by reason of Plaintiff's failure to make herself available for an examination before trial
and respond to Defendant's discovery dcmañds, or in the alternative an order of preclusion by
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reason of Plaintiff s failure to appear for said examination before trialand respond to Defendant's
discovery demand.
WHEREFORE, it is respectfully requested that Defendant's motion be granted in its
entirety pursuant to C.P.L.R § 3126, striking Plaintiff s Complént for failure to appear for an
examination before trial and produce the discovery requested; in the alternative, pursuant to
C.P.L.R § 3024, precluding Plaintiff from offering evidence at the trial of this action; or, if
dismissal is not granted, then for an order directing Plaintiff to appear for her examination before
trial by a date certain and produce the discovery requened by a date certain; and for such other
further relief as to this Court may seem just and proper.
Dated: New York, New York
January 8, 2019
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Preview
FILED: KINGS COUNTY CLERK 01/08/2019 10:52 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/08/2019 SUPREME COURT OF THE STATE OF NEW Y ORK COUNTY OF KINGS ------ ---------------------------X ARAMINTA CORDERO, Index No.: 519727/2018 Plaintiff, - against - AFFIRMATION IN SUPPORT OF MOTION BSC RETAIL OWNER LLC, Defendant. --------------------------------------------------X C O U N S E L O R S: JUSTIN B. CRAYTON, an attorney duly admitted to practice law before the Courts of the State of New York, duly affirms the following under the penalties of perjury: 1. I am a member of the law firm BRODY & BRANCH LLP, attorneys for defendant, BSC RETAIL OWNER LLC, (the "Defendant") and as such, I am fully familiar with the prior pleadings and proceedings in this matter based upon a review of the file maintained by my office. 2. I submit this affirmation in support of the within motion seeking an Order, pursuant to C.P.L.R § 3126, dismissing Araminta Cordero's (the "Plaintiff") action for Plaintiff's continued and willful failure to produce the discovery requested by a date certain. BASIS OF MOTION 3. This is an action to recover monetary damagcs for personal injuries alkgedly sustained by Plaintiff on August 4, 2018. 4. The within proceedings were commenced by the filing of a Summons and Complaint on or about October 1, 2018, which is annexed hereto as Exhibit "A". 5. Moving Defendañt joined issue by service of the Answer of the moving Defendant on or about October 29, 2018, which is annexed hereto as Exhibit "B". 1 of 4 FILED: KINGS COUNTY CLERK 01/08/2019 10:52 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/08/2019 6. On October 29, 2018, Defendant also served Plaintiff with a Demand for Verified Bill of Particulars, Notice to Take Deposition and Various Demands, which are collectively annexed hereto as Exhibit "C". 7. Defendant sent Plaintiff's office a good faith letter dated November 30, 2018, regarding the outstanding discovery. Copies of the letter are annexed hereto as Exhibits "D". 8. To date, Plaintiff has not provided Defendant with the requested outstanding discovery, which has necessitated the within motion. ARGUMENT 9. The Civil Practice Laws and Rules set forth a statutory scheme designed to perpetuate the free flow of discovery. See CPLR § 3101 et. seq. When a litigant frustrates the discovery scheme set forth in the CPLR, the Courts of this jurisdiction readily order compliance. And when a litigant refuses to comply, the Courts of this jurisdiction readily implement penalties and impose sanctions. 10. Where a demañd for disclosure is ignored, the party seeking disclosure can proceed under C.P.L.R § 3124 for an Order to Compel Disclosure or move under C.P.L.R § 3126 for the imposition of penalties for willful failure to disclose. S_e_e,Goldner v. Lendor Structures, Inc., 29 A.D.2d 978, 979, 289 N.Y.S.2d 687 (2d Dep't 1968). 11. Specifically, C.P.L.R § 3124 states: 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. 12. C.P.L.R § 3126 states: If any party, or a person who at the time a deposition is taken or an examination or inspection is made, is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for 2 of 4 FILED: KINGS COUNTY CLERK 01/08/2019 10:52 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/08/2019 disclosure or willfully failsto disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. An order that issues to which the information is relevant which deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. An order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. 12. Thus, per the express terms of C.P.L.R § 3126, the Court is authorized to strike a party's pleading and preclude itfrom offering evidence where ithas failed to "disclose information which the court finds ought to have been disclosed". 13. Moreover, Plaintiff has not even offered an excuse as to why she has failed to provide the requested discovery. A party's bad faith may be inferred by its failure to offer a reasonable excuse for itsfailure to produce demanded discovery, and this bad faith may warrant judicially imposed sanctions. The "absence of an excuse for the delay in responding to discovery demands, and the delaying party's failure to object to the demands, supports an inference that the willful." failure to comply was _Frias v. Fortini. supra; see also Brady v. County of Nassau, 234 AD2d 408 (2d Dep't 1996); see also Ali v. Lazerovitch, supra. 14. Therefore, it is respectfully submitted that this Court should enter an Order of dismissal by reason of Plaintiff's failure to make herself available for an examination before trial and respond to Defendant's discovery dcmañds, or in the alternative an order of preclusion by 3 of 4 FILED: KINGS COUNTY CLERK 01/08/2019 10:52 AM INDEX NO. 519727/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/08/2019 reason of Plaintiff s failure to appear for said examination before trialand respond to Defendant's discovery demand. WHEREFORE, it is respectfully requested that Defendant's motion be granted in its entirety pursuant to C.P.L.R § 3126, striking Plaintiff s Complént for failure to appear for an examination before trial and produce the discovery requested; in the alternative, pursuant to C.P.L.R § 3024, precluding Plaintiff from offering evidence at the trial of this action; or, if dismissal is not granted, then for an order directing Plaintiff to appear for her examination before trial by a date certain and produce the discovery requened by a date certain; and for such other further relief as to this Court may seem just and proper. Dated: New York, New York January 8, 2019 4 of 4