FILED: NEW YORK COUNTY CLERK 03/19/ :42 AM INDEX NO /2015 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 03/19/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X RAYMOND D'ONOFRIO and LISA D'ONOFRIO, Plaintiffs, INDEX NO.: / 15 AFFIRMATION SUPPORT PLAINTIFF'S OF TO STRIKE THE ANSWER OF -against- DEFENDANT CITY IN MOTION CITY OF NEW YORK and LIGHTOWER FIBER NETWORKS I, LLC, X Defendants. X JULIO CESAR ROMAN, an attorney duly admitted to practice law in the Courts of the State of New York, does hereby affirm under penalties of perjury as follows: 1. I am the attorney for the plaintiff in the above captioned action and, as such, I am familiar with the facts and circumstances set forth herein. 2. This affirmation is respectfully submitted in support of plaintiff's motion to strike defendant CITY OF NEW YORK's Answer pursuant to CPLR 3126 for failing to comply with the prior Orders of the Court dated July 13, 2017 and January 14, Plaintiff was run over by an excavating machine on August 31, 2015 in front of defendant City's police building located at 235E. 20th Street, New York, New York. Plaintiff's left leg was amputated as a result thereof. Copies 1 of 7

2 of plaintiff's complaint, defendants' Answer and plaintiff's Verified Bill of Particulars are collectively annexed hereto as "Exhibit A". 4. A Compliance Conference was held on July 13, 2017 and the Order directed defendant CITY to provide camera footage from the outside of the police building within (30) days thereof. The Order further directed that defendant was to provide an affidavit regarding the search conducted including whom, where and when the search was conducted to locate camera footage within (30) days. A Copy of Order dated July 13, 2017 is annexed hereto as "Exhibit B". The defendant failed to comply with said order. 5. As a result of defendant's failure to comply with the court order dated July 13, 2017, the plaintiff was forced to move this court on September 7, (A copy of the papers from this motion is attached hereto as "Exhibit C". 6. The September 7, 2017, motion culminated with an order of this court dated January 4, See "Exhibit D". The order indicates that plaintiff's motion "is GRANTED to the extent that Defendant City of New York shall provide an affidavit detailing who searched for the video, where the search was conducted, and when the search for the footage was performed with 45 days of the date of this order." 7. In accordance with said order the defendant was to provide the aforementioned affidavit by February 18, The defendant failed to comply with this order as well. 8. The defendant's repeated failure to comply with court order 2 of 7

3 discovery should not be countenanced by this court and their answer must be stricken in accordance with the case law submitted herein. party' 9. "[I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the nondisclosure was willful, contumacious or due to bad (McGilvery v. New York City Tr. Auth., 213 A.D.2d 322, 324, 624 N.Y.S.2d 158 [1995] ). Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses (see Johnson v. City of New York, 188 A.D.2d 302, 590 N.Y.S.2d 485 [1992); Nunez v. City of New York, 37 A.D.3d 434, 831 N.Y.S.2d 420 [2007] ). A party that permits discovery to "trickl[e] in. [with a] cavalier attitude. should not escape adverse consequence" (Fiqdor v. City ofnew Y_o_rk, 33 A.D.3d 560, 561, 823 N.Y.S.2d 385 [2006] ). 10. Indeed, the Court of Appeals recently made the following observation: "As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage 3 of 7

4 their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" ( Gibbs v. St. Bamabas Hosp.,., 16 N.Y.3d 74, 81, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] [internal quotation marks, alteration, and citations omitted] ). 11. In United States Fire Insurance Co. v. J.R. Greene, Inc., 272 A.D.2d 148, 707 N.Y.S.2d 429 Dept. 2000), the First Department addressed the circumstances under which a defendant's answer may be stricken for failing to produce discovery. In that case, the defendant continually failed to provide a complete response to one of plaintiff's discovery demands. Twice, the First Department reversed the trial judge's denial of plaintiff's motion to strike defendant's answer. 12. First, the Court reversed and remanded for compliance within thirty (30) days. Subsequently, plaintiff moved again to strike defendant's answer in Supreme Court and plaintiff's motion was again denied. Ruling on plaintiff's second appeal, the First Department found that defendant "had adopted a pattern of partially complying with demands for disclosure... resulting in a delay in the completion of discovery" citing LaValle v. City of New York, 240 A.D.2d 639, 659 N.Y.S.2d 299 (2"~ Dept. 1997). The Court found that this type of pattern "evince[s] 4 of 7

5 the willful frustration of plaintiff's discovery efforts". See also, Birch Hill Farm, Inc. v. Reed, 272 A.D.2d 282, 707 N.Y.S.2d 188 Dept. 2000). 13. This reasoning has also been employed in the Second Department. See Provenzano v. Turner Construction Co., Inc., 275 A.D.2d 314, 712 N.Y.S.2d 409 Dept. 2000). The Provenzano Court stated succinctly that because defendant had failed to comply with a "stipulation... to provide outstanding discovery," the Supreme Court properly struck its answer. 14. The Court of Appeals has affirmed the drastic remedy of dismissal of a party's claim when that party failed to comply with a court order. See Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999). Most importantly, the Court reiterated the law with respect to failing to comply with a court order, applying the same principles to the plaintiff as well: "When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint. Regrettably, it is not only the law but also the scenario familiar." that is all "If the credibility of court orders and the integrity of our judicial system are impunity." to be maintained, a litigant cannot ignore court orders with 15. The Court placed no conditions that were required to be met before a trial court could impose such sanctions. In fact, rather than refer to prior cases which created a "willful, contumacious or bad standard before imposing sanctions, the Court of Appeals pronounced simply and clearly that any failure to comply can be sanctioned. absent a court an answer against a 16. Even order, may be stricken party 5 of 7

6 who "fails to disclose information which the court finds ought to have been disclosed" Espinal v. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610 Dept. 1999). In Espinal, the Appellate Division reversed a trial court's denial of plaintiff's motion to strike defendant's answer. 17. Furthermore, even absent a court order, defendant's failure to respond to plaintiff's discovery demands warrants striking of its answer. Espinal; supra. 18. Even using the "willful, contumacious or bad standard, defendant's answer mast may be stricken because clearly, its nondisclosure is willful, contumacious, and amounts to bad faith. See Chambalero v. Waldbaum's Supermarket, Inc., 250 A.D.2d 360, 672 N.Y.S.2d 318 Dept. 1998); Sluiter v. Garrison Protective Services, Inc., 235 A.D.2d 296, 653 N.Y.S.2d 3 Dept. 1997); Rich & Rich Trading Co. v. Theodore, Ltd., 225 A.D.2d 307, 639 N.Y.S. 2d 4 Dept. 1996). See also Torres v. Martinez, 250 A.D.2d 759, 673 N.Y.S.2d 182 Dept. 1998); Donovan v. City of New York, 239 A.D.2d 461, 657 N.Y.S.2d 451, Dept. 1997); Sindeband v. McCleod, 226 A.D.2d 623, 641 N.Y.S.2d 127 Dept. 1996). 19. "Willful, contumacious or bad conduct may be manifest, as in the case sub judice, or inferred by a culmination of defendant's conduct. Argenio v. Cushman & Wakefield, Inc., 227 A.D.2d 578, 642 N.Y.S.2d 968 Dept. 1996); Herzog v. Progressive Equity Funding Corp.,., 199 A.D.2d 897, 606 N.Y.S.2d 101 (3rd Dept. 1993). A succession of failures to respond to a discovery demand constitutes the type of dilatory and obstructive conduct which amounts to bad 6 of 7

7 faith and which justifies the striking of defendant's answer. Ortiz v. Weaver, 188 A.D.2d 290, 590 N.Y.S.2d 474 Dept. 1992). 20. When a defendant has offered no excuse or, when the excuse is inadequate, defendant's answer should be stricken. Argenio v. Cushman & Wakefield, Inc., 227 A.D.2d 578, 642 N.Y.S.2d 968 Dept. 1996) (no adequate excuse for noncompliance with court order). Indeed, even where defendant eventually proffers some excuse for its delay, if the excuse is proffered in a dilatory manner, it will be deemed an "inadequate excuse." Hutson v. Allante Carting Corp.,., 228 A.D.2d 303, 644 N.Y.S.2d 51 Dept. 1996). 21. Here, defendants' non-compliance with the Orders of this Court have been clearly willful and contumacious. Moreover, Defendant has no adequate excuse for failing to provide a witness for the outstanding deposition. 22. Defendants' succession of failures in this case clearly constitutes the type of dilatory and obstructive conduct which amounts to bad faith and which the courts have long held justifies the striking of a defendant's answer. In view of the foregoing, the answers of Defendants must be stricken. WHEREFORE, it is respectfully requested that the Court grant plaintiff's motion in its entirety, together with such other and further and different relief as to this Court deems just, proper and equitable under the circumstances. Dated: White Plains, New York March 16, 2018 MAN, ESQ. 7 of 7