FILED: KINGS COUNTY CLERK 02/23/ :39 PM INDEX NO /2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/23/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X â â â â â â â â â â â â -- â â â â â â X DAVID WILLIAMS, Index No.: /2016 -against- -agains t- Plaintiff, AFFIRMATION IN SUPPORT THE WAVECREST MANAGEMENT TEAM LTD., VERBENA MANAGEMENT LLC, PS FOOD CORP., KEY FOOD SUPERMARKET, and SUTTER AVENUE ASSOCIATES, LLC, X Defendants. â â - â â - â â â â ANDREW L. KLAUBER, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following is true and correct under the penalties of perjury: 1. That I am a member of the law firm of MALAPERO & PRISCO LLP, attorneys for defendants, THE WAVECREST MANAGEMENT TEAM LTD., VERBENA MANAGEMENT LLC and SUTTER AVENUE ASSOCIATES, LLC., in the above-captioned action and, as such, am fully familiar with the facts and circumstances of the litigation herein. 2. This affirmation is submitted in support of the within motion for an order (1) pursuant to CPLR 3401 and 22 NYCRR 202.1(d) and (e) striking the Note of Issue and Certificate of Readiness and removing the case fiom the trial calendar on the grounds that there remains outstanding discovery to be completed prior to and in preparation of trial; (2) compelling plaintiff to provide all outstanding discovery pursuant to CPLR 3124, or alternatively, precluding plaintiff from presenting any evidence at the time of trial pursuant to CPLR 3126; (3) Extending the time within which to file a motion for summary judgment to 120 days i404 1 of 7

2 following completion of discovery pursuant to CPLR 3212(a); and (4) for such other and further relief as this Court deems just and proper. PROCEDURAL HISTORY 3. This matter involves an accident claimed to have occurred on February 23, 2016, on the sidewalk in front of premises 626 Sutter Avenue, Brooklyn, New York. Plaintiff claims to have sustained personal injuries as a result of a slip/trip and fall incident. 4. Plaintiff commenced the matter by the filing of a summons and complaint on or about May 17, 2016 (Exhibit "A"). Your affirmant's office interposed an answer on behalf of defendant, VERBENA MANAGEMENT LLC on June 24, 2016 (Exhibit "B"). 5. Thereafter, your affirmant's filed an amended verified answer on behalf of the THE WAVECREST MANAGEMENT TEAM LTD and VERBENA MANAGEMENT LLC, dated July 22, 2016 (Exhibit "C"). 6. On or about November 30, 2016, plaintiff filed a supplemental summons and amended complaint against defendant SUTTER AVENUE ASSOCIATES LLC. (Exhibit "D"). 7. Your affirmant's office then served a further verified amended answer to complaint on behalf of THE WAVECREST MANAGEMENT TEAM LTD, VERBENA MANAGEMENT LLC and SUTTER AVENUE ASSOCIATES on December 16, 2016 (Exhibit "E"). 8. On February 1, 2018, a final conference was held at which time it was determined that plaintiff had yet to complete his orthopedic and neurological examination. A copy of the conference order is annexed hereto as Exhibit "F" of 7

3 NYSCEF DOC. NO. 64 '' RECEIVED NYSCEF: 02/23/2018 ( I 9. Plaintiff's counsel then filed a Note of Issue and Certificate of Readiness in Supreme Court, Kings County, on February 5, 2018 (Exhibit "G") in which plaintiff incorrectly noted that the discovery was complete and that the physical examinations and medical reports have been waived. I 10. As is pointed out in the companion motion of counsel for PS FOOD CORP. and KEY FOODS SUPERMARKET, neither examination has gone forward. Additionally, on February 5, 2018, your affirmant's office wrote to plaintiff's counsel (Exhibit "H"), indicating that a demand for authorizations, dated November 29, 2016, had not been completely responded to. An ISO claim file search report indicated that plaintiff had been involved in three prior accidents, one on October 23, 2012, another on October 14, 2011, and a third on July 30, 2015 (Exhibit "I"). Plaintiff provided an authorization for release of plaintiff's records from High Point Regional Health System relative to the occurrence of October 14, 2011, however, he provided no information or authorizations regarding the occurrence of October 23, 2012 which occurred on Main Street in Tallapoosa, Georgia. 11. No information has been provided relative to the third occurrence which is a "Workers Compensation" type which occurred on July 30, 2015 in South Ozone Park, New York. 12. Your affirmant's office will be severely prejudiced with respect to plaintiff's damages claim should such information and documentation not be provided. ARGUMENT 13. It is respectfully submitted that plaintiff's note of issue and certificate of readiness must be stricken and the case removed from the trial calendar to allow the remaining discovery noted above to proceed. Such a vacature would be proper of 7

4 ( L NYCRR (e) provides in part that: (e) Vacating Note of Issue. Within 20 days after service of a Note of Issue and Certificate of Readiness, any party to the action or special proceeding may move to vacate the Note of Issue, upon affidavit showing in what respect the case is not ready for trial, and the Court may vacate the Note of Issue if it appears that a material fact in the Certificate of Readiness is incorrect, or that the Certificate of Readiness fails to comply with the requirements of this section in some material respect. 15. The function of a Note of Issue and Statement of Readiness is to give assurance that only those cases which are ready for trial are on the trial calendar. See Tirado v. Miller, 75 A.D.3d 153, 901 N.Y.S.2d 358 (2nd Dept. 2010). A party filing a Note of Issue and Certificate of Readiness is indicating that discovery proceedings have been completed in their entirety, that there are no outstanding requests for discovery and there has been reasonable opportunity to complete proceedings. See Grant v. Wainer, 179 A.D.2d 364, 577 N.Y.S.2d 839 (1" Dept. 1996). 16. Under 22 NYCRR (e), the Court may vacate a Note of Issue if it appears that a material fact in the Certificate of Readiness is incorrect. Such as a statement that discovery is completed, that plaintiff has failed to provided requested documentation or that some depositions remain outstanding. See Club Italia, Inc. v. Italian Fashion Trading, Inc., 268 A.D.2d 219, 701 N.Y.S.2d 34 (1" Dept. 2000). Recon Car Corp.. v. Chrysler Corp.,., 89 A.D.2d 586, 452 N.Y.S.2d 326 (2nd Dept. 1982). 17. In the instant litigation, as is pointed out in the companion motion by counsel for codefendant PS FOOD CORP., KEY FOODS SUPERMARKET, plaintiffs physical examinations remain outstanding as do plaintiffs complete responses to the demand for authorizations of November 29, 2016, as referenced in your affirmant's letter of February 5, 308I of 7

5 2018. As a result, as discovery is incomplete, the Court is respectfully requested to vacate plaintiff's note of issue and certificate of readiness, and strike the matter from the trial calendar. Should this case remain on the calendar, there is no guarantee that the requested discovery will be provided prior to the time of trial. 18. In addition, CPLR 3212(a) permits judicial discretion to extend the time in which a motion for summary judgment may be filed, when good cause is demonstrated to support the need for an otherwise untimely motion. So long as a movant demonstrates "good cause" which is defined as a "satisfactory explanation for the untimeliness", Courts have allowed otherwise untimely motions to be heard. Brill v. City ofnew York, 814 N.E.2d 431 (NY County 2004). 19. In the instant action, it would be prejudicial to force the defendants to move for summary judgment due to plaintiff's premature filing of the Note of Issue or to constrain the defendants by the timing of the trial calendar, where, as here, material discovery remains outstanding. Therefore, extending defendant's time within which to file a summary judgment motion to 120 days following completion of discovery is the only proper remedy. 20. In the alternative, should this Court not strike the matter from the trial calendar, plaintiff should be precluded from offering any evidence at trial as to the items sought by discovery demands but not provided, including the physical examinations of plaintiff. Unless plaintiff is precluded from giving evidence at trial, these moving defendants will be unable to prepare a proper defense of the action. Your affirmant's clients will be irrevocably injured in being compelled to meet claims of plaintiff in the above-action as to which they have not been fully informed of 7

6 21. Finally, this motion has been made in a timely fashion pursuant to 22 NYCRR (e) and CPLR 2103(b). WHEREFORE, it is respectfully requested that this Court grant an order (1) pursuant to CPLR 3401 and 22 NYCRR 202.1(d) and (e) striking the Note of Issue and Certificate of Readiness and removing the case from the trial calendar on the grounds that there remains outstanding discovery to be completed prior to and in preparation of trial; (2) compelling plaintiff to provide all outstanding discovery pursuant to CPLR 3124, or alternatively, precluding plaintiff from presenting any evidence at the time of trial pursuant to CPLR 3126; (3) Extending the time within which to file a motion for summary judgment to 120 days following completion of discovery pursuant to CPLR 3212(a); and (4) for such other and further relief as this Court deems just and proper. Dated: New York, New York February 23, 2018 ANDREW L. KLAUBER of 7

7 NYSCEF DOC. NO. 64 (A RECEIVED NYSCEF: 02/23/2018 I STATEMENT PURSUANT TO 22 N.Y.C.R.R (a): The following documents, appended hereto, and listed below, is, to the best of the signer's knowledge, information, and belief, after inquiry, certified as not frivolous. If this particular document is not the original, an original has been executed to comply with the requirements. Answer/Reply Demand for Interrogatories Notice for Discovery and inspection of Collateral Sources Demand for Copies of Plaintiff's Medical Reports and Authorizations Notice to Produce Notice Pursuant to CPLR 2103(e) Notice for Discovery of Statement of Party Notice to Take Deposition Upon Oral Examination Notice for Discovery and Inspection of Loss of Income Data Notice for Discovery and Inspection of Expert Witness Information Demand for Change of Venue Good Faith Affirmation X Notice of Motion X Affirmation of Good Faith X Affirmation in Support Other Dated: New York, New York February 20, 2018 Your, etc. By:hw LÃuber, Esq. MALAPERO & PRISCO, LLP Attorneys for Defendants THE WAVECREST TEAM LTD., VERBENA MANAGEMENT MANAGEMENT LLC and SUTTER AVENUE ASSOCIATES, LLC 185 Madison Avenue, 4th Floor New York, New York (212) of 7