Preview
FILED: KINGS COUNTY CLERK 05/04/2020 03:29 PM INDEX NO. 521723/2018
NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/04/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ABRAHAM VARGAS MEDELLIN and
JOSE ALFONSO DELGADO PRIEGO, Index No.: 521723/2018
Plaintiffs, AFFIRMATION IN
SUPPORT OF MOTION
-against-
HAPPY TRANSPORTATION SERVICE, LLC
and RASIER-NY, LLC,
Defendants,
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HAPPY TRANSPORTATION SERVICE, LLC,
Third-Party Plaintiff(s),
-against-
11TH ST. WORKSHOP INC. and ADAM LONGORIA,
Third-Party Defendants
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Renee E. Demott, an attorney duly licensed to practice law in the State of New
York, affirms the following under penalties of perjury:
1. That I am associated with the Law Offices of CATAFALSA, TURPIN
& LENOFF, the attorneys for third-party defendants 11TH ST. WORKSHOP
INC. (hereafter “11TH ST”) and ADAM LONGORIA and I am fully familiar with
the facts and circumstances of this case based upon a review of the file
maintained by this office.
2. This affirmation is submitted in support of third-party defendants’
motion for an Order 1) Striking and/or vacating the Note of Issue filed by the
plaintiffs on March 18, 2020; 2) Pursuant to CPLR 3124, compelling the
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plaintiff to produce authorizations, transcripts, travel records, income
documentation, a copy of the report made to Uber and for all parties to be
produced for depositions by counsel for the third party defendants and
compelling the plaintiffs to attend independent medical examinations
conducted by physicians on behalf of the third party defendants and 3)
granting additional time for the third party defendants to file a motion for
summary judgment, together with such other and further relief that the court
deems just and proper.
3. This personal injury action arises out of a September 17, 2018
motor vehicle accident in Brooklyn, NY in which plaintiffs are alleging they
sustained severe injuries as a result of this accident.
4. On or about October 29, 2018, plaintiffs commenced this action
by the service of a summons and complaint on defendants. Defendant HAPPY
TRANSPORTATION SERVICE, LLC (hereinafter “HAPPY”) served their
Verified Answer on November 28, 2018. Defendant RASIER-NY, LLC
(hereinafter “RASIER”) served their Answer on December 5, 2018.
5. On January 7, 2020, HAPPY filed a third-party summons and
complaint against third-party defendants, 11TH ST. Issue was joined on behalf of
11TH ST. by the service of a Verified Answer dated March 4, 2020. Annexed hereto
as Exhibit “A” are the pleadings.
6. Plaintiff served this office with a Note of Issue. The Note of Issue
is dated March 18, 2020. Annexed hereto as Exhibit “B” is a true copy of the
Note of Issue. As per the Certificate of Readiness, the terms and conditions
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have not been completed as Plaintiff has not complied with discovery.
7. On March 2, 2020, I sent an email to the plaintiff’s counsel
demanding several authorizations, the transcripts from the depositions that
already took place in this case, video and photos that the plaintiff testified that he
took on the day of the accident, a copy of the plaintiff’s report to Uber of the
subject accident and the plaintiff’s income records. A true and accurate copy of
the email is annexed hereto as Exhibit “C”.
8. On April 1, 2020, your affirmant send a good faith letter to plaintiffs’
counsel to obtain the outstanding discovery without the intervention of the court,
see Exhibit “D”.
9. We served Plaintiffs with a Demand for a Verified Bill of Particulars
and a Notice for Discovery and Inspection dated March 4, 2020 to obtain
authorizations for all medical records, request for plaintiffs’ depositions and
independent medical examinations of all plaintiffs. A true and accurate copy of the
demands are annexed hereto as Exhibit “E”.
10. The filing of the Note of Issue is premature. NYCRR 202.21
requires that a Note of Issue be accurate and true. As this motion makes
abundantly clear, all discovery proceedings are not complete. Therefore, the
Note of Issue should be stricken or vacated.
11. The aforementioned discovery is important and necessary to the
defendant of this action, particularly the items demanded in said Verified Bill of
Particulars, HIPAA complaint authorizations for workers’ compensation
records; employment; collateral source and all treating medical providers, and
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responses to 11TH ST’s Combined Demands is material and necessary for the
conducting of the defense by the 11th ST and will be severely prejudiced if we
are not provided with this information including deposition of the plaintiffs.
12. Since the Plaintiffs’ Note of Issue dated March 18, 2020 was filed
prematurely, we respectfully request that this action is not ready for trial and
should be stricken from the trial calendar until all discovery is completed.
Alternatively, we request additional time to file a summary judgment motion
following the completion of all outstanding discovery.
13. Plaintiffs’ conduct in delaying the within litigation, can only be considered
intentional, willful and contumacious. The “willfulness” of the plaintiffs’ failure to
provide disclosure in responses to defendant demands may be inferred where
numerous opportunities to respond exist yet the plaintiff has no excuse for failing to
respond (Zimmon v. Somers, 224 AD2d 258 [1st Dept. 1996]; Smith v. Eastern Long
Island Hosp., 263 AD2d 477 [2nd Dept. 1999] holding that a plaintiff’s inability to
proffer an excuse for their noncompliance with the trial Court’s Order, as well as their
failure to object to the defendant’s discovery demands, permitted an inference that
plaintiff’s noncompliance was willful).
14. This motion is being made on the first day that the filing of such
motions may be permitted due to the COVID-19 pandemic shutdowns.
WHEREFORE, I respectfully request that an order be issued 1) Striking and/or
vacating the Note of Issue filed by the plaintiffs on March 18, 2020; 2) Pursuant to
CPLR 3124, compelling the plaintiff to produce authorizations, transcripts, travel
records, income documentation, a copy of the report made to Uber and for all
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parties to be produced for depositions by counsel for the third party defendants
and compelling the plaintiffs to attend independent medical examinations
conducted by physicians on behalf of the third party defendants and 3) granting
additional time for the third party defendants to file a motion for summary
judgment, together with such other and further relief that the court deems just and
proper
DATED: New York, New York
May 4, 2020
______________________________
Renee E. Demott
11
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Preview
FILED: KINGS COUNTY CLERK 05/04/2020 03:29 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/04/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X ABRAHAM VARGAS MEDELLIN and JOSE ALFONSO DELGADO PRIEGO, Index No.: 521723/2018 Plaintiffs, AFFIRMATION IN SUPPORT OF MOTION -against- HAPPY TRANSPORTATION SERVICE, LLC and RASIER-NY, LLC, Defendants, -----------------------------------------------------------------------X HAPPY TRANSPORTATION SERVICE, LLC, Third-Party Plaintiff(s), -against- 11TH ST. WORKSHOP INC. and ADAM LONGORIA, Third-Party Defendants -----------------------------------------------------------------------X Renee E. Demott, an attorney duly licensed to practice law in the State of New York, affirms the following under penalties of perjury: 1. That I am associated with the Law Offices of CATAFALSA, TURPIN & LENOFF, the attorneys for third-party defendants 11TH ST. WORKSHOP INC. (hereafter “11TH ST”) and ADAM LONGORIA and I am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by this office. 2. This affirmation is submitted in support of third-party defendants’ motion for an Order 1) Striking and/or vacating the Note of Issue filed by the plaintiffs on March 18, 2020; 2) Pursuant to CPLR 3124, compelling the 7 1 of 5 FILED: KINGS COUNTY CLERK 05/04/2020 03:29 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/04/2020 plaintiff to produce authorizations, transcripts, travel records, income documentation, a copy of the report made to Uber and for all parties to be produced for depositions by counsel for the third party defendants and compelling the plaintiffs to attend independent medical examinations conducted by physicians on behalf of the third party defendants and 3) granting additional time for the third party defendants to file a motion for summary judgment, together with such other and further relief that the court deems just and proper. 3. This personal injury action arises out of a September 17, 2018 motor vehicle accident in Brooklyn, NY in which plaintiffs are alleging they sustained severe injuries as a result of this accident. 4. On or about October 29, 2018, plaintiffs commenced this action by the service of a summons and complaint on defendants. Defendant HAPPY TRANSPORTATION SERVICE, LLC (hereinafter “HAPPY”) served their Verified Answer on November 28, 2018. Defendant RASIER-NY, LLC (hereinafter “RASIER”) served their Answer on December 5, 2018. 5. On January 7, 2020, HAPPY filed a third-party summons and complaint against third-party defendants, 11TH ST. Issue was joined on behalf of 11TH ST. by the service of a Verified Answer dated March 4, 2020. Annexed hereto as Exhibit “A” are the pleadings. 6. Plaintiff served this office with a Note of Issue. The Note of Issue is dated March 18, 2020. Annexed hereto as Exhibit “B” is a true copy of the Note of Issue. As per the Certificate of Readiness, the terms and conditions 8 2 of 5 FILED: KINGS COUNTY CLERK 05/04/2020 03:29 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/04/2020 have not been completed as Plaintiff has not complied with discovery. 7. On March 2, 2020, I sent an email to the plaintiff’s counsel demanding several authorizations, the transcripts from the depositions that already took place in this case, video and photos that the plaintiff testified that he took on the day of the accident, a copy of the plaintiff’s report to Uber of the subject accident and the plaintiff’s income records. A true and accurate copy of the email is annexed hereto as Exhibit “C”. 8. On April 1, 2020, your affirmant send a good faith letter to plaintiffs’ counsel to obtain the outstanding discovery without the intervention of the court, see Exhibit “D”. 9. We served Plaintiffs with a Demand for a Verified Bill of Particulars and a Notice for Discovery and Inspection dated March 4, 2020 to obtain authorizations for all medical records, request for plaintiffs’ depositions and independent medical examinations of all plaintiffs. A true and accurate copy of the demands are annexed hereto as Exhibit “E”. 10. The filing of the Note of Issue is premature. NYCRR 202.21 requires that a Note of Issue be accurate and true. As this motion makes abundantly clear, all discovery proceedings are not complete. Therefore, the Note of Issue should be stricken or vacated. 11. The aforementioned discovery is important and necessary to the defendant of this action, particularly the items demanded in said Verified Bill of Particulars, HIPAA complaint authorizations for workers’ compensation records; employment; collateral source and all treating medical providers, and 9 3 of 5 FILED: KINGS COUNTY CLERK 05/04/2020 03:29 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/04/2020 responses to 11TH ST’s Combined Demands is material and necessary for the conducting of the defense by the 11th ST and will be severely prejudiced if we are not provided with this information including deposition of the plaintiffs. 12. Since the Plaintiffs’ Note of Issue dated March 18, 2020 was filed prematurely, we respectfully request that this action is not ready for trial and should be stricken from the trial calendar until all discovery is completed. Alternatively, we request additional time to file a summary judgment motion following the completion of all outstanding discovery. 13. Plaintiffs’ conduct in delaying the within litigation, can only be considered intentional, willful and contumacious. The “willfulness” of the plaintiffs’ failure to provide disclosure in responses to defendant demands may be inferred where numerous opportunities to respond exist yet the plaintiff has no excuse for failing to respond (Zimmon v. Somers, 224 AD2d 258 [1st Dept. 1996]; Smith v. Eastern Long Island Hosp., 263 AD2d 477 [2nd Dept. 1999] holding that a plaintiff’s inability to proffer an excuse for their noncompliance with the trial Court’s Order, as well as their failure to object to the defendant’s discovery demands, permitted an inference that plaintiff’s noncompliance was willful). 14. This motion is being made on the first day that the filing of such motions may be permitted due to the COVID-19 pandemic shutdowns. WHEREFORE, I respectfully request that an order be issued 1) Striking and/or vacating the Note of Issue filed by the plaintiffs on March 18, 2020; 2) Pursuant to CPLR 3124, compelling the plaintiff to produce authorizations, transcripts, travel records, income documentation, a copy of the report made to Uber and for all 10 4 of 5 FILED: KINGS COUNTY CLERK 05/04/2020 03:29 PM INDEX NO. 521723/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/04/2020 parties to be produced for depositions by counsel for the third party defendants and compelling the plaintiffs to attend independent medical examinations conducted by physicians on behalf of the third party defendants and 3) granting additional time for the third party defendants to file a motion for summary judgment, together with such other and further relief that the court deems just and proper DATED: New York, New York May 4, 2020 ______________________________ Renee E. Demott 11 5 of 5