FILED: NASSAU COUNTY CLERK 05/25/ :16 PM INDEX NO /2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/25/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X Action No. 1 ENA T. SAINT SIMON-JEANTY, Index No.: /16 AFFIRMATION IN SUPPORT ALL STAR MOVING & STORAGE, INC. and ASHLEY RABINOWITZ, X â â â â - â â â â WIDGY BRUNEUS, Action No. 2 Index No /17 ALL STAR MOVING & STORAGE, INC., ASHLEY BEAU RABINOW1TZ and JEANTY SAINT SIMON, â â - â â â â â â â X FRANCIS J. SCAHILL, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am a Member of the law firm of PICCIANO & SCAHILL, P.C., attorneys of record for the defendant, ENA SAINT SIMON-JEANTY s/h/a JEANTY SAINT SIMON, and as such I am fully familiar with the facts, circumstances and pleadings in the above captioned matter. 2. This Affirmation is submitted herewith in support of the within motion for an Order, pursuant to CPLR 3126(3), striking the pleadings of the defendants in Action No. 1 and Action No. 2, ALL STAR MOVING ai. STORAGE, INC. and ASHLEY BEAU RABINOWITZ, for failing to comply with the Preliminary Conference Order of this Court. 1 of 7

2 3. This action seeks to recover for personal injuries allegedly sustained by the plaintiff, WIDGY BRUNEUS, following a motor vehicle accident, which occurred on April 2, A copy of the plaintiff's Summons and Complaint is annexed hereto as Exhibit "A". Issue was joined by the defendants in Action No. 1 and Action No. 2, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ', service of a Verified Answer on or about March 3, 2017, annexed hereto as Exhibit "B". Issue was joined by the moving defendant, ENA SAINT SIMON-JEANTY s/h/a JEANTY SAINT SIMON's, service of a Verified Answer on or about March 27, Annexed hereto as Exhibit "C", is a copy of the Answer of the moving defendant, as well as combined demands for discovery and inspection, including a notice of deposition. 4. On April 5, 2017, the defendants, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ', Motion to Consolidate was heard before this Court and a Joint Trial Orderwas issued consolidating Action Nort and Action Noc2.-Annexed hereto as Exhibit "D", is a copy of the Joint Trial Order with Notice of Entry. 5. A Preliminary Conference was held before this Court on October 30, A copy of the Preliminary Conference Order is annexed hereto as Exhibit "E". The Preliminary Conference Order required depositions to be held on February 21, On February 20, 2018, the deposition of the defendants, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOW1TZ, scheduled for February 21, 2018, was confirmed by the moving defendant's office. 6. On February 14, 2018, the moving defendant, ENA SAINT SIMON-JEANTY s/h/a JEANTY SAINT SIMON, appeared for her deposition as a plaintiff and a defendant in this consolidated action. 2 of 7

3 7. On February 21, 2018, the parties appeared for the deposition of the ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ. At that time, the moving defendant was advised by counsel for defendants, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ, that their witness was on his way for the scheduled deposition. After giving the witness an hour to appear, the witness failed to appear and the deposition was cancelled. The moving defendant contacted counsel, McGraw, Alventosa 5 Zajac, and the parties agreed to reschedule the deposition for April 23, On April 20, 2018, counsel, McGraw, Alventosa & Zajac, requested an adjournment of the deposition scheduled on April 23, 2018, and with consent by all parties the depositon was adjourned to May 21, On May 18, 2018, counsel, McGraw, Alventosa 5 Zajac, once again requested an adjournment-of the deposition scheduled for May 21, 2018, which was adjourned to be held on July 24, , The defendants, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ, have yet to be deposed despite the Preliminary Conference Order of this Court and despite multiple adjournments. 11. CPLR Section 3126(3) states, inter alia: If any party, or 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 parties control, refuses to obey an Order for disclosure or willfully fails to disclose information which the Court finds ought to have been disclosed pursuant to noticed duly served, the Coud may make such Orders with regard to the failure or refusal as are just, among them: (3) An Order striking out pleadings or parts thereof, or staying further proceedings until the Order is obeyed, or dismissing the action of any party thereof, or rendering a judgment by default against the 3 of 7

4 disobedient party. 12. The determination whether to strike a pleading lies within the sound discretion of the trial court (see CPLR 3126[3]; Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 A.D.3d 784, 785, 857 N.Y.S.2d 697; Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369, 370, 711 N.Y.S.2d 441). However, the drastic remedy of striking an answer is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious See CPLR 3126[3]; Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 A.D.3d at 785, 857 N.Y.S.2d 697 Dept. 2008); Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289 Dept. 1995). JPMorgan Chase Bank, N.A. v. New York State Dep t of Motor Vehicles, 119 A.D.3d 903, 903, 990 N.Y.S.2d 577, Dept. 2014). 13. The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion vv'ith the motion court See Bomz-r;. â Parke Oavis, Oi v. of Warner Lambert Co., 41 A.D.3d 522, 839 N.Y.S.2d 110; Maiorino v. of New v. of City York 39 A.D.3d 601, 834 N.Y.S.2d 272; Soto City Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691). The drastic remedy of striking a pleading pursuant to to CPLR 3126(3) for failure comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious See Bomzer v. Parke â Davis, Oi v. of Warner Lambert Co., 41 A.D.3d 522, 839 N.Y.S.2d 110; Goldstein v. QUEENSbrook Jewish Med. Ctr., 39 A.D.3d 816, 834 N.Y.S.2d 327; cf. v. of New A.D.2d v. of Harris City York , 664, 622 N.Y.S.2d 289; Martin City New York, 46 A.D.3d 635, , 847 N.Y.S.2d 621, 622 Dept. 2007). party' 14. "Willful and contumacious conduct may be inferred from a s 4 of 7

5 repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply... with court-ordered discovery over an extended period of time". (569 Rock City Sound, Inc v. Bashian 8 Farber, LLP, 83 A.D.3d at , 920 N.Y.S.2d 394 [internal quotation marks and citations omitted]; see Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 938 N.Y.S.2d 131; Commisso v. Orshan, 85 A.D.3d at 845, 925 N.Y.S.2d 612; Friedman, Harfenist, Langer Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196; Morgenstem v. Jeffsam Corp., 78 A.D.3d at 914, 912 N.Y.S.2d 231); Stone v. Zinoukhova, 119 A.D.3d 928, 929, 990 N.Y.S.2d 567, (2nd Dept. 2014). 15. It is respectfully requested that this Court Order the pleadings of the 1 defendants, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ, be stricken unless the defendants fully comply with the Preliminary Conference Order within thirty (30) days of a hearing and determination of this motion. 16. This Notice of Motion, Affirmation in support, Affidavit of Good Faith and all included exhibits are exact duplicates of the submission filed electronically. WHEREFORE, it is respectfully requested that the within motion be granted in all respects and for such other and further relief as to this Court may be deemed just and proper. Dated: Bethpage, New York May 23, 2018 (.y FRANCIS j! SCAHILL 5 of 7

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X Action No. 1 ENA T. SAINT SIMON-JEANTY, Index No.: /16 AFFIRMATION GOOD FAITH OF ALL STAR MOVING 5 STORAGE, INC. and ASHLEY RABINOWITZ, X â â -- â â â â â â â WIDGY BRUNEUS, Action No. 2 Index No /17 ALL STAR MOVING & STORAGE, INC., ASHLEY BEAU RABINOW1TZ and JEANTY SAINT SIMON, -X STATE OF NEW YORK, COUNTY OF NASSAU: The undersigned, an attorney admitted to practice in this state, affirms that the following statements are true under penalties of perjury: (1) I am the attorney for the defendant, ENA SAINT SIMON-JEANTY s/h/a JEANTY SAINT SIMON, in the above entitled action. (2) I have brought a motion in the above entitled action that relates to disclosure. Motion to strike the pleadings of the defendants, ALL STAR MOVING & STORAGE, INC. and ASHLEY BEAU RABINOWITZ, for failure to comply with the Preliminary Conference Order of this Court and demands herein. (3) A good faith effort has been made to resolve the issues raised in the motion. Depositions have repeatedly been adjourned. 6 of 7

7 Dated: Bethpage, New York May 23, 2018 Yours, etc., PICCIANO 5. SCAHILL, P.C. g) FRA Q Attorneys for Defendant ENA SAINT SIMON-jEANTY s/h/a jeanty SAINT SIMON 1065 Stewart Avenue, Suite 210 Bethpage, New York (516) Claim No of 7