FILED: NEW YORK COUNTY CLERK 05/04/ :59 AM INDEX NO /2013 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/04/2018 STB:am.

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1 STB:am. 04/27/18 SUPREME COURT OF THE STATE OF NEW YORK _COUNTY OF_NEW YORK VERIZON NEW YORK INC., INDEX NO. Plaintiff, /13 - agamst - Hon. Justice CONSOLIDATED EDISON, INC. and CONSOLIDATED Nancy Bannon EDISON COMPANY OF NEW YORK, INC., NOTICE OF APPEAL Defendants. PLEASE TAKE NOTICE that Defendants Consolidated Edison, Inc. and Edison" Consolidated Edison Company of New York, Inc., (hereinafter "Con Edison"), hereby appeal to the Supreme Court of the State of New York, Appellate Division, First Department, from an Order of the Supreme Court, New York County, Honorable Nancy Bannon, J.S.C., dated April 16, 2018, and entered with the Clerk of the Court on April 24, This appeal is taken from each and every part of the Order that is adverse to Con Edison, as well as the whole thereof. Date: New York, New York May 3, 2018 Yours, etc., NAD VELLESE By: Steph n. Brewi, Esq. Attorne for Defendants Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. 4 Irving Place, Room 1840 New York, New York TO: (212) O'REILLY, STOUTENBURG RICHARDS, LLP Attorneys for Plaintiff 57d' 32 East Street New York, New York (212) Our File No.: S FN of 7

2 FILED: s -ozasnz>>- NEW YORK COUNTY CLERK 05/04/ :59 AM INDEX NO /2013 Is / o3+2y38/ N COLA/ &MAg.ygo D1%03 / FILED.: NEW. YORK COUNTY CLERK 04/25/ :01 PM I] I DEX NO /2013 ' NYSCEF DOC. NO. 26 REC E SCEFÍ 04/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VERIZON NEW YORK INC., Index No /l3 Plaintiff, - against - NOTICE OF ENTRY CONSOLIDATED EDISON, INC. and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendants. PLEASE TAKE NOTICE that the annexed is a true copy of the Decision and Order of the Honorable Nancy M. Bannon, J.S.C., dated April 16, 2018 and duly filed and entered in the above-entitled action in the Supreme Court of the State of New York, County of New York on April 24, Dated: New York, New York April 25, 2018 O'REILLY STOUTENBURG RICHARDS LLP 32 East 57th Street, thfloor New York, New York (212) Attorneys for Plainti) Verizon New York Inc. By: Michael S. 'Reilly Christopher P. Fox 1 of 4 2 of 7

3 FILED :. NEW YORK COUNTY CLERK INDEX NO. 04 /25/ : /2013 PM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/25/2018 TO: Offices of Nadine Rivellese, Esq. Attn: Christina Deleveaux, Esq. Consolidated Edison Company of New York, Inc. 4 Irving Place, Room 1800 New York, New York Attorneys for Defendants Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. 2 2 of 3 of 7

4 FILED:- NEW YORK COUNTY CLERK 04/25/ :01 INDEX NO /2013 PM NYSCEE DOC--..NO. 26 RECEIVED NYSCEF: 04/25/2018 (FILED : NEW YORK COUNTY CLERK 04/24/ :S4 INDEX NO /2013 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/24/2018 SUPREME COURTOF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: Hon. Nancy Bannon PART 42 Justice VERIZON NEW YORK, INC. INDEX NO / v - CONSOLIDATED EDISON, INC., and ORDER CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. This action, commenced in 2013, has a protracted discovery history. Little if any discovery was conducted prior to the preliminary conference of June 22, Several discovery conferences and orders followed. An order dated November 16, 2017, noted a four-year delay in the defendants' retrieval of records from its archives regarding a third-party vendor, and marked the March 31, 2018 Note of issue date as "Final - No Extensions". The court's order dated February 15, 2018, states that 1-4" the defendants "did not provide the discovery outlined in directive numbers of the November order and that the defendants provided no reason for that non-compliance. The court, inter alia, directed the defendants to "produce written copy of Steam Investigation ticket dated 9/20/2011 written by Z y Roughan exists." O w/in 30 days to the extent it still The court expressly stated that there would be "No extensions," and that the "[d]ates are final for defendant. Failure to o Lu comply with this order will result in trial." defendant being precluded from offering evidence in its defense at ta + > Z O I- 0 The plaintiff and the defendants thereafter submitted letters to the court in regard to compliance o -j with the February 15, 2018, order. The defendants concede that failed to produce a copy of the ticket IL~o u. by March 19, 2018, which was the first business day after the 30-day period set forth in the order had lapsed, and did not produce it until April 5, Since the defendants failed to comply with the clear directive of the order dated February 15, 2018, and in light of the prior failures to timely provide I- O discovery and comply with court orders, they are precluded from adducing evidence in their defense at trial pursuant to CPLR CPLR 3126 authorizes the court to sanction a party who "refuses to obey an order for disclosed" disclosure or wilfully fails to disclose information which the court finds ought to have been and that "a failure to comply with discovery, particularly after a court order has been issued, may lo O constitute the "dilatory and obstructive, and thus contumacious, conduct warranting the striking of the (answer]." Kutner v (1" Feiden, Dweck & Sladkus, 223 AD2d 488, 489 Dept. 1998); see CDR Creances S.A.v Cohen, 104 AD3d 17 (1" Dept. 2012); Reidel v Ryder TRS, Inc.,., 13 AD3d 170 (1" Dept. 2004). The court can infer willfulness from repeated failures to comply with court orders or discovery demands without a reasonable excuse. S_ee LaSalle Talman Bank, F.S.B. v Weisblum & (1" Felice, 99 AD3d 543 Dept. 2012); Perez v (1" City of New York, 95 AD3d 675 Dept. 2012); Fiaiel v Page l of 2 1 of 2 3 of 4 4 of 7

5 FILED:. NEW- YORK INDEX NO /2013 COUNTY CLERK 04/25/ :01 PM NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/25/2018 FILED: NEW YORK COUNTY CLERK 04/24/ :54 INDEX NO /2013 PM) NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/24/2018 Met Food, 48 AD3d 330 (1st Dept. 2008); Ciao Europa, Inc. v Silver Autumn Hotel Corp.,. Ltd., 270 AD2d 2 (1" Dept. 2000). Further, CPLR 3101(a) provides that "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" and this language is "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Osowski v AMEC Constr. Mqt., Inc., 69 AD3d 99, 106 (1S Dept. 2009) auotina Allen v Crowell-Collier Publ. Co., 21 NY2d 403, (1968). Accordingly, it is hereby, ORDERED that the defendants are precluded from adducing evidence in their defense at trial or in a dispositive motion in support of any defenses. This constitutes the Decision and Order of the court. Dated: April 16, 2018, JSC HON. NAN M. BANNON 1. Check one:... CASE DISPOSED ~ NON-FINAL DISPOSITION Page 2 of 2 2 of 2 of 4 5 of 7

6 FILED: NEW YORK COUNTY CLERK 05/04/ :59 AM INDEX NO /2013 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) SS.: The' The undersigned being duly sworn deposes and says: that I am over the age of 18 years; am not a party to this action; and am employed in the office of NADINE RIVELLESE, the attorney for Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. ~ JJ That on the g day of May, 2018, I served the within Notice of Appeal and Pre- Argument Statement upon: O'REILLY, STOUTENBURG RICHARDS, LLP Attorneys for Plaintiff 32 East 57th Street New York, New York by depositing a true copy of the same enclosed in a post-paid wrapper in an official repository under the exclusive care and custody of the United States Postal Service or by delivering a true copy of the same in a post-paid wrapper to an authorized United States Postal Service employee, directed to the said party/parties at the address(es) set forth above, such being the address(es) designated by the said party/parties for that purpose. Sworn to before me this þ/ ay of May, 18 Vicki Ch BERNARD C HERBERT BERNARD C HERBERT Notary Public, State of New York Notary Public, State of New York No. 01HE Qualified in Orange Counte No. 01HE '. Qualified in Orange County Commission Expires April p-.;...;., - ;onfxpires April 12, of 7

7 INDEX NO /13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VERIZON NYPR (EF) Plaintiff(s), - against - CONSOLIDATED EDISON, INC. and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant(s). NOTICE OF APPEAL AND PRE-ARGUMENT STATEMENT NADINE RIVELLESE Attorney for Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. 4 Irving Place, Room 1800 New York, New York Tel. No. (212) FAX No. (212) To Service of a copy of the within is hereby admitted. Dated: 20 Attorney(s) for PLEASE TAKE NOTICE: [ ] NOTICE OF ENTRY that the within is a true copy of an entered in the office of the clerk of the within named court on 20. [ ] NOTICE OF SETTLEMENT that an Order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the Dated: within named Court, at on 20 at M. Yours, NADINE etc., RIVELLESE Refer all communications to: STEPHEN T. BREWI 7 of 7