York, affmns under the penalties for perjury, the truth of the following statements:

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( Index No /2016 PAD PARTNERSHIP CORP. and THE MANAGEMENT GROUP OF NEW YORK LLC, AFFIRMATION IN SUPPORT -against- Plaintiffs, SENECA INSURANCE COMPANY, INC. and SENECA SPECIALTY INSURANCE COMPANY, Defendants )( ROBERT MEHRAN, JR., an attorney duly admitted to practice law in the State of New York, affmns under the penalties for perjury, the truth of the following statements: 1. I am a member of the law firm of KEN MAGUIRE & ASSOCIATES, PLLC, attorneys for Defendants SENECA INSURANCE COMPANY, INC. and SENECA SPECIALTY INSURANCE COMPANY (hereinafter "Seneca") and, as such, I am familiar with the facts and circumstances of this action as reflected by a file maintained in this office as to this matter. 2. This affirmation is submitted in support of the within motion for an order: a) Pursuant to 22 NYCRR (e), vacating the Note of Issue and Certificate of Readiness, removing this matter from the trial calendar and returning the matter to the discovery calendar on the grounds that discovery remains outstanding; and b) Pursuant to CPLR 3126, precluding the plaintiff from offering evidence for which demands and/or particulars have been served but no responses provided; or, in the alternative c) Pursuant to N.Y. C.P.L.R. 3l24 compelling Plaintiffs to respond to Defendant's discovery demands, specifically by providing responses to Defendant' s Combined Demands dated November 3, 2016, providing the documents requested in Demand Number sixteen (16) of the Notice for Discovery and compliance with the Court's Order dated August 10, 2017; and 3 1 of 9

2 d) Such other and further and different relief as this Court may deem just and proper. 3. The instant application is timely pursuant to 22 NYCRR (e). A copy of the plaintiff's Note ofissue dated October 17, 2017 and received by this office on October 17, 2017, is annexed hereto as Exhibit A. FACTUAL AND PROCEDURAL mstory 4. This action was commenced via a summons and complaint on or about October 13, 2016, a copy of which is annexed hereto as Exhibit B. 5. Defendant Seneca served their answer on or about November 2, 2016, a copy of which is annexed hereto as Exhibit C. 6. Defendant Seneca served a Notice for Discovery and Inspection and Combined Demands upon Plaintiff on or about November 3, 2016, a copy of which is annexed hereto as Exhibit D. 7. Subsequently, several conferences were held before the Court with the most recent being August 10, At said conference, outstanding discovery and depositions were addressed and memorialized in the Court's Order, which is annexed hereto as Exhibit E. 8. By correspondence dated October 20, 2017, Defendants made a good faith effort to resolve the issues raised by this motion, a copy of which is annexed hereto as Exhibit F. To date, Plaintiff has failed to acknowledge and/or respond to Defendants' good faith communication necessitating the instant motion. 9. Plaintiffs erroneously filed the Note ofissue on or about October 17, 2017 while Court Ordered [emphasis added] discovery remains outstanding. Plaintiffs have failed to comply with the Court's Order dated August 10, 2017, previously attached hereto as Exhibit E. 4 2 of 9

3 Specifically listed in said Court Order, and which remains outstanding was, Plaintiffs' Proof of Loss, Records of Loss and Insured's file for 07/05/11 fire loss/claim with Greenwich Insurance; Policy # PKW ; Demolition Records and Bills/Invoices for 07/05/ 11 fire loss/claim; All correspondence with carrier Greenwich Insurance concerning 07/05/11 fire loss/claim; All correspondence with Public Adjuster concerning 07/05/11 fire loss/claim; and All records and documents requested during the EBT of M. Anhatt and/or, to the extent that none exist, and affidavit stating same. 10. Furthermore, Plaintiff has never provided responses to Defendants' Combined Demands dated November 3,2016; nor did they provide the documentation that was requested in Demand Number sixteen (16) of the Notice for Discovery and Inspection dated November 3, 2016, which demanded, in part, that certain bank statements and business tax returns be provided and for which Plaintiffs failed to object to the production of. II. Court ordered depositions of: David Gross, Property Manager; Leonard Fortgang, Public Adjuster; T. Amperson, Retail Broker; and, Whole Sale Broker, Korick & Koran, in that order, also remain outstanding. See Exhibit E. Said depositions are vital to preparation and defense of the instant action. Failure to secure and conduct said depositions will unfairly prejudice Defendants and their rights in defense of this matter. 12. It should be noted that on the certificate of readiness attached to the Note of Issue, Plaintiff placed an asterisk (*) on items 7 and 8 certifying that the instant action is ready for trial, "Subject to outstanding Discovery and Motion Practice". See Exhibit A. 13. As the "outstanding discovery" is Court Ordered discovery, Plaintiffs' Note of Issue and Certificate of Readiness are fatally flawed and should be vacated. 5 3 of 9

4 ARGUMENT I. PLAINTIFFS' NOTE OF ISSUE SHOULD BE VACATED BECAUSE OF OUTSTANDING DISCOVERY NYCRR (e) provides in pertinent part: "Vacating Note ofissue. 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 respects 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... At any time, the court on its own may vacate a 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... " IS. When the Note ofissue and Certificate of Readiness contain erroneous statements that discovery has been completed, the proper resolution is to vacate such Note of Issue and strike the matter from the trial calendar. See, Draponiotis v rd Street Corp., 288 A.D.2d 254, 732 N.Y.S.2d 583 (2d Dep't 2001); Club ltalia. Inc. v. Italian Fashion Trading, Inc., 268 A.D.2d 219, 701 N.Y.S.2d 34 (1st Dep't 2000); Schechter v th Street Owners. Inc., 271 A.D.2d 224 (1st Dep't 2000) (Holding that Note ofissue should have been vacated when at the time plaintiff filed the Note ofissue, all discovery was not yet complete). 16. In accordance with 22 NYCRR (e), this Court should vacate Plaintiffs' Note of Issue and remove the case from the trial calendar because Plaintiffs' Certificate of Readiness contains the following incorrect and fatally flawed representations: a. "Discovery proceedings now known to be necessary, completed or waived are completed 'Subject to outstanding discovery and motion practice. "; 6 4 of 9

5 b. "There are no outstanding requests for discovery. * Subject to outstanding discovery and motion practice."; c. "This action is ready for trial". See, Exhibit "A". 17. It is well established that it is improper to deny a motion to vacate where plaintiff's Certificate of Readiness incorrectly states that "all necessary discovery had been completed or waived." Barnett v. DeMian, 207 A.D.2d 693, 616 N.Y.S.2d 491 (1st Dep't 1994); See also, Frierson v. Concourse Plaza Assocs., 189 A.D.2d 609, 592 N.Y.S.2d 309 (1st Dep't 1993). 18. Plaintiffs' Certificate of Readiness is a contradiction and states that discovery remains outstanding. Such a statement is a fatal defect and thus, it is undisputed that this matter is not ready for trial. Therefore, the note of issue should be vacated. 19. In the instant matter, discovery is incomplete as material discovery remains outstanding, and this matter is not ready for trial. There is no dispute that at the time the Note of Issue was filed, the following Court Ordered discovery remained outstanding: Plaintiffs' Proof of Loss, Records of Loss and Insured's file for 07/05/11 fire loss/claim with Greenwich Insurance; Policy # PKW0032 I 63-00; Demolition Records and Bills/Invoices for 07/05111 fire loss/claim; All correspondence with carrier Greenwich Insurance concerning 07/05111 fire loss/claim; All correspondence with Public Adjuster concerning 07/05/ 11 fire loss/claim; and All records and documents requested during the EBT of M. Anhatt and/or, to the extent that none exist, and affidavit stating same. Additionally, the August 10, 2017, Court Ordered depositions have not been held. 20. Furthermore, Plaintiffs have failed to provide any responses to Defendants Combined Demands, dated November 3, 2016; and documentation requested in Demand Number sixteen (16) of Defendants Notice for Discovery and Inspection of the same date. 7 5 of 9

6 21. Seneca is entitled to receive responses to Court Ordered Discovery. Seneca will be unfairly prejudiced in its defense of this action, as it is entitled to engage in full discovery without the pressures, constraints and deadlines associated with this matter having post-note of Issue status and being placed on the Court's trial calendar. 22. Therefore, Seneca is currently at a disadvantage and denied the right to engage in full discovery, including depositions. Vacating the Note of Issue would resolve this prejudicial circumstance. II. IN THE ALTERNATIVE, PLAINTIFF SHOULD BE PRECLUDED FROM PROVIDING EVIDENCE RELATED TO DISCOVERY NOT PROVIDED PRIOR TO FILING THE NOTE OF ISSUE. 23. CPLR (a) provides: there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by (I) a party or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; [... ] and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. 24. CPLR 3126 vests the authority and discretion in a Court to impose penalties upon parties who refuse to obey court orders or willfully fail to produce discovery. In such a situation, a court may issue an order prohibiting "the disobedient party from supporting or opposing designated claims or defenses [and] from producing in evidence designated things or items oftestimony," pursuant to CPLR 3126(2). 25. In Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999), the Court of Appeals made it clear the courts of this state cannot tolerate litigants who fail to abide by discovery deadlines. In that case, the Court of Appeals held that dismissal of the complaint was warranted due to the plaintiff's failure to provide discovery in response to the defendant's discovery 8 6 of 9

7 demands. See also, Gall v. Summit Rovins & Feldesman, 254 A.D.2d 39, 678 N.Y.S.2d 602 (1st Dept. 1998) (Evasive conduct indicated that plaintiffs failure to respond to defendant's discovery demand was willful); Cano v. BLF Realty Holding Corp., 243 A.D.2d 390, 663 N.Y.S.2d 202 (1st Dept. 1997) (plaintiffs dilatory conduct and failure to comply with disclosure requests allowed Court to infer that plaintiffs failure to provide discovery justified order precluding plaintiff from establishing claims). 26. Pursuant to CPLR 3124, a Court may to issue an Order prohibiting the disobedient party from supporting or opposing designated claims or defenses. See, e.g., Reidel v. Ryder TRS, Inc., 13 A.D.3d 170,786 N.Y.S.2d 487 (1st Dept. 2004) (Reversing las courts' denial of motion to strike pleadings based upon responding party's failure to appear for depositions). See also, Tazmilovic v. Dowd, 14 A.D. 3d 546, 789 N.Y.S.2d 191 (2d Dept. 2005) (Affirming decision of las court which precluded Plaintiff from testifying at trial or presenting any other evidence when they did not appear for depositions as scheduled in Preliminary Conference Order). 27. Here, Plaintiff filed its Note of Issue prior to the completion of Court Ordered depositions and paper discovery. No attempt was made, by Plaintiff, to provide said discovery nor did Defendant have the courtesy to even acknowledge Defendants' Good Faith letter of October 20, 2017, at Exhibit F. Thus, pursuant to CPLR 3126 and Kihil, this willful holding back of discovery should be met with sanctions. Plaintiffs should be precluded from offering any evidence related to the outstanding discovery demands. 9 7 of 9

8 III. PLAINTIFFS MUST BE COMPELLED TO PRODUCE ALL OUTSTANDING DISCOVERY BY A DATE CERTAIN UNDER PENALTY OF DISMISSAL OR PRECLUSION 28. Should this Honorable Court decline to vacate Plaintiffs' Note of Issue, then Seneca alternatively requests that this Court issue a conditional Order compelling Plaintiff to provide all outstanding Court Ordered discovery by December I, 2017, namely: A) Plaintiffs' Proof of Loss, Records of Loss and Insured's file for 07/OS/ 11 fire loss/claim with Greenwich Insurance; B) Policy # PKW ; Demolition Records and Bills/Invoices for 07/OS111 fire loss/claim; C) All correspondence with carrier Greenwich Insurance concerning 07/OS/ 11 fire loss/claim; D) All correspondence with Public Adjuster concerning 07/OS/ll fire loss/claim; E) All records and documents requested during the EBT of M. Anhatt and/or, to the extent that none exist, and affidavit stating same.; F) Responses to Defendants' Combined demands dated November 3, 2016; and G) The financial records, documents and information requested in Demand Number sixteen (16) of the Defendants Notice for Discovery and Inspection dated November 3, See Exhibits D, E & F; See also, CPLR 3124 (Discovery should be compelled for party's failure to respond to discovery requests); U.S. Ice Cream Corp. v. Carvel Corp., 190 A.D.2d 788, S93 N.Y.S.2d 861 (2d Dept. 1993); Kalish v. Manhasset Med. Ctr. Hosp., 100 A.D.2d S07, 472 N.Y.S.2d 714 (2d Dept. 1984). 29. As evidenced by party correspondence and demands, discovery remams outstanding, yet Plaintiffs improperly filed a defective and fatally flawed Note of Issue of 9

9 Plaintiffs should be compelled to provide this Court Ordered discovery and proceed with Court Ordered Depositions. CONCLUSION Based on the forgoing and the attached Exhibits herein, it is undisputed that Court Ordered Discovery and Depositions remain outstanding. Furthermore, Plaintiffs' Certificate of Readiness is self-defeating and fatally flawed through its acknowledgement, via asterisk (*), that discovery remains outstanding. Therefore Plaintiffs' Note of Issue should be vacated until such time that discovery is completed. WHEREFORE, it is respectfully submitted that the Court grant Seneca's motion, striking the note of issue and/or precluding the plaintiff from offering evidence for which particulars have been demanded but not provided; or, in the alternative pursuant to N.Y. C.P.L.R compelling Plaintiffs to respond to Defendant's discovery demands, and for such other and further relief as the Court deems just and proper. I Dated: Wantagh, New York October 31, of 9