FILED: KINGS COUNTY CLERK 07/10/2014 INDEX NO /2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 07/10/2014

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1 FILED: KINGS COUNTY CLERK 07/10/2014 INDEX NO /2012 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 07/10/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS JARED PRATT, Index No /2012 Plaintif f, ASSIGNED TO HON. MARK PARTNOW -against- (with companion case under Joint Trial Order: Kukharev THE CITY OF NEW YORK, METROPOLITANv. Chell, Index No.: TRANSPORTATION AUTHORITY, MANHATTAN AND501363/2012). BRONX SURFACE TRANSIT OPERATING AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT, PARATRANSIT DIVISION AKA NYC; TRANS; DIV; OF PARATRANSIT, MTA BUS COMPANY, MV PUBLIC TRANSPORTATION INC., NORMAN K. BORDEN, JR., JOSEPHINE CHELL, NIKOLAY V. KUKHAREV AND JOHN DOE 1-5, (hereinafter JOHN DOE ), a fictitious name representing an individual or corporate type entity who is an agent or principal, lessor or lessee, employer or employee, master or servant or who otherwise acted or failed to act negligently, carelessly and/or recklessly in connection with the happening of this incident and is liable directly and/or vicariously and whose identity is known to the Defendants only and is otherwise unknown to the Plaintiff. Def endants. PLAINTIFF S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF S MOTION FOR SUMMARY JUDGMENT AND TO STRIKE THE ANSWER OF DEFENDANTS NEW YORK CITY TRANSIT AUTHORITY, MV PUBLIC TRANSPORTATION INC., AND NORMAN K. BORDEN, JR. OF COUNSEL: JOSHUA ANNENBERG, ESQ. LAW OFFICES OF PETER DEFILIPPIS & ASSOCIATES Attorneys for Plaintiff 262 West 38 th Street Suite 507 New York, NY (212)

2 STATEMENT OF FACTS Plaintiff Jared Pratt ( Pratt ) submits the instant Memorandum of Law in support of her motion against defendants New York City Transit Authority, MV Public Transportation Inc., and Norman K. Borden, Jr. 1 for: 1) summary judgment on liability; 2) summary judgment on serious injury; 3) to strike their Answer or preclude them from testifying at trial for failure to appear for a court ordered deposition; and 4) to compel them to produce documents specified in the Central Compliance Part Order entered October 30, 2013, and/or pursuant to CPLR 3126, to strike their Answer for willful and contumacious failure to provide discovery pursuant to the Central Compliance Court Order entered October 30, In the interest of brevity and judicial economy, the Court is respectfully referred to the recitation of the facts applicable to the instant matter in the accompanying Affirmation in Support of Joshua Annenberg, Esq. ( Annenberg Aff. ) and to the exhibits attached thereto as indicated. POINTS OF LAW POINT I PRATT IS ENTITLED TO SUMMARY JUDGMENT AS HER VEHICLE WAS STOPPED BEFORE IT WAS REAR-ENDED BY THE TRANSIT DEFENDANTS AND A SUDDEN STOP DEFENSE CANNOT SUCCEED DUE TO PREVAILING TRAFFIC CONDITIONS AND THE TRANSIT DEFENDANTS INABILITY TO PROVE A SAFE DISTANCE AND SPEED BEHIND PRATT. As shown below, the Transit Defendants are boxed into liability. They rear-ended Pratt s stopped vehicle and cannot prove they maintained a safe rate of speed and distance behind Pratt prior to the rear-end collision. Further, the Transit Defendants cannot succeed 1 Defendants New York City Transit Authority, MV Public Transportation Inc., and Norman K. Borden, Jr. are collectively referred to as the Transit Defendants. -1-

3 on the defense of last resort: the alleged sudden stop. Prevailing traffic conditions before the rear-end chain collision required the Transit Defendants to anticipate sudden stops and therefore maintain a safe rate of speed and distance behind Pratt to accommodate for any sudden stop in traffic. A. THE TRANSIT DEFENDANTS INABILITY TO REBUT THE INFERENCE OF NEGLIGENCE ARISING FROM THEIR REAR-END COLLISION INTO PRATT. It is well-settled that A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision. Williams v. Spencer-Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157, 158 (2d Dept. 2014), quoting Volpe v. Limoncelli, 74 A.D.3d 795, 902 N.Y.S.2d 152, 153 (2d Dept. 2010); O'Rourke v. Carucci, 2014 NY Slip Op (2d Dept. 2014). Pursuant to this rule of law, Pratt is entitled to summary judgment on liability against the Transit Defendants because the uncontested facts, as discussed in the accompanying Annenberg Affirmation, demonstrate: A. The Transit Defendants vehicle rear-ended Pratt; and B. Before being rear-ended by the Transit Defendants, Pratt s vehicle came to a full stop without colliding into Chell s vehicle. To avoid summary judgment on liability in favor of Pratt, the Transit Defendants must provide a non-negligent explanation for the [rear-end] collision. Williams v. Spencer-Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157, 158 (2d Dept. 2014). Accordingly, to exculpate themselves from liability, the Transit Defendants must prove they operated their Access-A-Ride vehicle with reasonable care under the circumstances and -2-

4 thus were not negligent. Indeed, The driver of an automobile [which] approaches another automobile from the rear...is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. Id. The Transit Defendants, however, suffer from a fatal inability to prove that their Access- A-Ride vehicle maintained a safe distance or speed behind Pratt at any time prior to the rearend collision. As discussed in the Annenberg Affirmation, the Transit Defendants have twice failed to appear for their court ordered deposition and the Transit Defendants investigator has not located defendant Borden, the driver of the Transit Defendants Access-A-Ride vehicle. Thus, this Court can only consider the deposition testimony of plaintiff Pratt and defendants Chell and Kukharev, all of whom provided evidence of the Transit Defendants liability. Pratt, Chell and Kukharev all testified that their respective vehicles came to a full stop, without colliding into each other, before the rear-end chain collision started by the Transit Defendants vehicle. Such uniform testimony demonstrates the rear-end chain collision, started by the Transit Defendants, occurred because the Transit Defendants were driving too fast and/or failed to maintain a safe distance behind Pratt. As the Transit Defendants lack evidence of their vehicle s rate of speed and/or distance behind Pratt prior to rear-ending Pratt, they have no evidence to support a nonnegligent explanation for the collision. Williams v. Spencer-Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157, 158 (2d Dept. 2014). Accordingly, the Transit Defendants cannot rebut the inference of negligence 2, which arises from their conduct in rear-ending Pratt s fully-stopped vehicle. 2 Id. -3-

5 This Court, therefore, must grant summary judgment on liability to plaintiff Pratt as her vehicle was fully stopped prior to being rear-ended by the Transit Defendant s Access-A-Ride vehicle. Russ v. Investech Securities, Inc., 6 A.D.3d 602, 775 N.Y.S.2d 867, 868 (2d Dept. 2004) (reversing lower court for failure to award summary judgment to rear-ended vehicle where driver of the moving vehicle failed to come forward with any evidence to rebut the inference of negligence. ) B. THE SUDDEN STOP DEFENSE CANNOT SUCCEED DUE TO PREVAILING TRAFFIC CONDITIONS ON THE VERRAZANO BRIDGE. The Second Department has consistently rejected the sudden stop defense where prevailing traffic conditions required the driver of the offending vehicle to anticipate a sudden stop by the vehicle(s) immediately ahead. Shama v. Richmond County Ambulance Service 3, which is widely cited, holds: [V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead. As discussed in the accompanying Annenberg Affirmation, prior to the rear-end chain collision caused by the Transit Defendants, a separate incident had occurred on the other side of the roadway, requiring the involvement of first responders with emergency lights. This caused traffic stoppage on the other side of the roadway, followed by stoppage in the parties own lane of travel. Notably, Chell testified that approximately one minute before the rear-end collision caused by the Transit Defendants, there was an accident on the other side of the Verrazano A.D.2d 564, 565, 719 N.Y.S.2d 287, 288 (2d Dept. 2001). -4-

6 Bridge. Chell deposition at pages [Exhibit Q]. At such time, Chell observed fire trucks, and the traffic had stopped. Chell deposition at page 20, lines 7-13 [Exhibit Q]. Similarly, Pratt testified approximately 30 seconds before the rear-end collision caused by the Transit Defendants, Pratt observed blinking red and yellow lights 4 on the other side of the Verrazano Bridge. Such emergency lights indicated to Pratt that an accident had occurred on the other side of the Verrazano Bridge. 5 Further, like Chell, Pratt testified that when she observed these emergency lights, traffic on the other side of the Verrazano Bridge seemed to be backed-up. 6 At or about the time when Pratt observed the flashing emergency lights on the other side of the Verrazano Bridge, Chell s vehicle stopped suddenly in front of Pratt. 7 As a result of Chell s sudden stop, Pratt also came to a stop fairly sudden. 8 However, Chell observed that Pratt had been fully stopped between seconds before the Transit Defendants rearended Pratt. Chell deposition at page 12, lines 5-15 [Exhibit Q]. The import of the deposition testimony of Pratt and Chell is that there was ample time for the Transit Defendants to observe the prevailing emergency traffic conditions and stoppage on the other side of the Verrazano Bridge, as well as on the parties own side of the roadway. 4 Pratt 50-h Hearing at page 15, lines 7-17 [Exhibit N]. 5 Pratt 50-h Hearing at page 15, lines 7-8 [Exhibit N]. 6 Pratt 50-h Hearing at page 14, lines [Exhibit N]. 7 Pratt 50-h Hearing at page 16, lines and page 17, lines 2-3 [Exhibit N]. 8 Pratt 50-h Hearing at page 17, lines [Exhibit N]. -5-

7 Therefore, the Transit Defendants should have anticipated sudden stops on their side of the Verrazano Bridge and maintained a safe distance and speed behind Pratt to accommodate for any sudden stop in traffic. [V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead. Shama v. Richmond County Ambulance Service, 279 A.D.2d 564, 565, 719 N.Y.S.2d 287, 288 (2d Dept. 2001). Thus, pursuant to Shama, due to the prevailing traffic conditions on both sides of the Verrazano Bridge, the Transit Defendants should have: 1) anticipated sudden stops by traffic in their lane of travel; and 2) accounted for such sudden stops and thus maintained a safe distance and speed behind Pratt. However, as the Transit Defendants cannot establish that they maintained a safe distance or speed behind the Pratt vehicle, they cannot prove lack of negligence even considering a sudden stop in traffic. As the Second Department has held: [I]n the absence of any evidence that the defendant was maintaining a reasonably safe distance and speed behind the plaintiff's vehicle as required by Vehicle and Traffic Law 1129 (a), his claim that the plaintiff's vehicle came to a sudden stop was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision. Hackney v. Monge, 103 A.D.3d 844, 845, 960 N.Y.S.2d 176, 178 (2d Dept. 2013). As demonstrated herein, the Transit Defendants cannot succeed on the defense of sudden stop. This Court, therefore, must grant plaintiff Pratt s motion for summary judgment on liability. -6-

8 POINT II AS THIS COURT ALREADY FOUND DEFENDANTS MV TRANSPORTATION, INC. AND BORDEN LIABLE FOR CAUSING THE REAR-END CHAIN COLLISION, THIS COURT MUST AWARD SUMMARY JUDGMENT ON LIABILITY TO PRATT UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL. Under the doctrine of collateral estoppel, since this Court already found defendants MV Transportation, Inc. and Borden liable in negligence to Kukharev for the rear-end chain collision at issue, this Court must also award summary judgment on liability to Pratt against said defendants MV Public Transportation, Inc. and Borden as well as defendant NYCTA (via vicarious liability). The equitable doctrine of collateral estoppel precludes a party from relitigating an issue decided against that party in a prior adjudication. Kristensen v. Charleston Square, Inc., 295 A.D.2d 404, 405, 743 N.Y.S.2d 296 (2d Dept. 2002). However, collateral estoppel will apply only where the identical issue was decided in the prior action. Id. In the Kukharev summary judgment motion, the parties addressed the same central issue as in the instant motion: the tort liability of defendants MV Public Transportation, Inc. and Borden (and NYCTA) for starting and/or proximately causing the rear-end chain collision at issue. Further, the summary judgment motion papers in Kukharev, addressed the same facts as raised in the instant motion by Pratt: the rear-end chain collision caused by the Transit Defendants, all other parties were fully stopped prior to the Transit Defendants rear-end collision with Pratt and the emergency incident on the other side of the roadway. In the Kukharev action, this Court already found defendants MV Public Transportation, Inc. and Borden liable in negligence to Kukharev for proximately causing the same rear-end -7-

9 chain collision at issue in both Kukharev and the instant action. Indeed, once the Transit Defendants are liable to Kukharev, they must also be liable to Pratt. Both Kukharev and Pratt were stopped before the rear-end chain collision caused by the Transit Defendants. Thus, under the doctrine of equitable estoppel, the Transit Defendants are preclude[d]...from relitigating their liability for the rear-end collision with Pratt. Id. Accordingly, under the doctrine of collateral estoppel, this Court must grant summary judgment on liability to Pratt as against defendants MV Public Transportation, Inc. and Borden as well as defendant NYCTA (via vicarious liability). POINT III PLAINTIFF PRATT IS ENTITLED TO SUMMARY JUDGMENT ON THE SERIOUS INJURY THRESHOLD AS SHE SUSTAINED SPINAL FRACTURES AS A RESULT OF THE REAR-END COLLISION BY THE TRANSIT DEFENDANTS. As discussed in the accompanying Annenberg Affirmation, Pratt underwent a CT Scan of her cervical spine at Lutheran Medical Center Emergency Room on August 26, 2011, immediately after the rear-end collision. Dr. Alexander Vidershayn, the radiologist who performed and read this CT Scan, has attested that the CT Scan shows Pratt sustained Fractures of the bilateral transverse process of C5 and C6. 9 Further, Dr. Vidershayn affirmed that pursuant to the medical history, such injuries were caused by the automobile accident of August 26, Both of the Transit Defendants examining physicians agreed with Dr. Vidershayn that the CT Scan of August 26, 2011 shows shows Pratt sustained fractures of cervical spine 9 Vidershayn Affirmation at paragraph 4 [Exhibit F]. 10 Vidershayn Affirmation at paragraph 7 [Exhibit F]. -8-

10 transverse processes at C5 and C6. 11 Moreover, Dr. Douglas Cohen, the Transit Defendants examining neurosurgeon, provided an affirmed medical report in which he causally related Pratt s fractures of cervical spine transverse processes at C5 and C6 to the August 26, 2011 motor vehicle accident. The New York Court of Appeals has recognized a CT Scan, such as the August 26, 2011 CT Scan of Pratt s cervical spine, as objective medical evidence of an injury for the purposes of the serious injury threshold of Insurance Law 5102(d). Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 870 (2002). Additionally, caselaw has established that a fracture satisfies the serious injury requirement of New York Insurance Law 5102(d). In Tagger v. Olympic Van Line, Inc., 38 A.D.3d 646, 830 N.Y.S.2d 673 (2d Dept. 2007), the Second Department affirmed summary judgment to the plaintiff on the issue of serious injury, holding: The plaintiff made a prima facie showing that the subject accident caused her to sustain a fracture, and thus, a serious injury within the meaning of Insurance Law 5102(d). The Second Department has also recognized that Pratt s specific injury fractures of two transverse processes of the cervical spine constitutes a serious injury under the fracture category of Insurance Law 5102(d). See, Bonner v. Hill, 302 A.D.2d 544, 756 N.Y.S.2d 82, 83 (2d Dept. 2003) (holding, the plaintiff raised a triable issue of fact as to serious injury under Insurance Law 5102(d) due to the injury of a fracture of the transverse process of the vertebrae at L5. ). 11 See, the affirmed medical report of neurosurgeon, Dr. Douglas Cohen [Exhibit G] and the affirmed medical report of orthopedist, Dr. P. Leo Varriale [Exhibit H]. -9-

11 Although the Transit Defendant s orthopedist, Dr. P. Leo Varriale, opined that the CT Scan of the Pratt s cervical spine showed a healed fracture of the transverse processes of C5 and C6 12, the Insurance Law is very clear that a fracture is a fracture is a fracture. There is nothing to indicate that the Legislature did not intend healed fractures to come within the definition of fracture, so as not to constitute serious injury for the purposes of the Insurance Law. Thus, even a healed fracture is a fracture for the purposes of the serious injury statute. Osegueda v. Monger, 2009 NY Slip Op 30948U at *16, 2009 N.Y. Misc. Lexis 4612 at *22 (Sup. Ct., Nassau Cty., 2009). By reason of the foregoing, Pratt has proven that her cervical spine fractures were diagnosed by objective medical evidence and that these fractures resulted from the rear-end collision caused by the Transit Defendants. Accordingly, Pratt has satisfied the serious injury threshold under New York Insurance Law 5102(d), which states: Serious injury means a personal injury which results in...a fracture... This Court, therefore, must grant Pratt s motion for summary judgment as to serious injury and hold, as a matter of law, that she sustained a serious injury as a result of the motor vehicle rear-end collision caused by the Transit Defendants. POINT IV THIS COURT SHOULD STRIKE THE TRANSIT DEFENDANTS ANSWER OR PRECLUDE THEM FROM TESTIFYING AT TRIAL FOR CONTUMACIOUSLY VIOLATING THIS COURT S DISCOVERY ORDERS REQUIRING THE PRODUCTION OF DOCUMENTS AND THE DEPOSITION OF BORDEN. It is well settled that dismissal of a pleading is warranted for willful and contumacious violation of a court s discovery order. Umar v Ohrnberger, 72 A.D.3d 1066, 1067 (2d Dept. 12 Dr. Varriale affirmed medical report at page 3 [Exhibit H]. -10-

12 2010). As demonstrated in the accompanying Annenberg Affirmation, the Transit Defendants have flouted court orders to produce Borden for a deposition and have made a mockery of their duty to exercise good-faith efforts in locating Borden. In addition, the defendants have utterly failed to produce the following documents required by the Compliance Conference Pat Order of October 30, 2013 [Exhibit J]: (1) Complete insurance policy applicable to this incident within declaration sheets, endorsements, addendums, amendments. (2) Defendants photographs of any and all vehicles involved in the subject incident in color and clear. (3) Last known and/or present address, telephone number of Defendant BORDEN and the current name, address and telephone number of his employer. (4) Copies of the title and registration for the subject vehicles involved in this incident, if available. (5) Repair bills, estimates invoices for any of the subject vehicles. Due to the Transit Defendants continuous discovery failures, this Court should strike their Answer as a sanction for such improper conduct. The Transit Defendants cannot evade the following simple facts, which demonstrate contumacious and willful conduct in violating this Court s two court orders requiring defendant Borden s deposition: -11-

13 A. The Transit Defendants waited until the day before the deadline for the first court-ordered deposition to inform Pratt that defendant Borden was no longer employed by the Transit Defendants. 13 B. The Transit Defendants have not disclosed the date of Borden s separation from employment. Thus, the Transit Defendants may have employed Borden for a period of time during the pendency of the Court s first deposition order of March 28, C. The Transit Defendants waited two months after the deadline for Borden s Court Ordered June 25, 2013 deposition to retain an investigator to locate and produce Borden for a deposition. 15 Similarly, the defendants cannot excuse their conduct in failing to provide the documents required by the Compliance Conference Part Order of October 30, Too much time has passed for excuses. The time has come for production of the documents under the Order or the sanction of a stricken Answer. The New York Court of Appeals has held, [C]ompliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully. Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 90 (1999). Here, the Transit Defendants operate under a cloud of bad faith contrary to the dictates of the New York Court of Appeals. Upon submission of the instant motion, one year will have passed from the deadline for Borden s deposition under the first court order entered March 28, Annenberg Affirmation at paragraphs 23 and 92 and Exhibit L. 14 Annenberg Affirmation at paragraphs 24 and 91 and Exhibit I. 15 Annenberg Affirmation at paragraphs 23 and 92 and Exhibit L. -12-

14 Over 6 months will have transpired from the deadline for Borden s deposition under the second court Order entered October 30, Likewise, the defendants were to produce to the specified documents over 6 months ago pursuant to the Order entered October 30, The willful and contumacious character of a party s conduct can be inferred from his or her repeated failures to appear for examination before trial coupled with inadequate excuses for these defaults. Bates v. Baez, 299 A.D.2d 382, 749 N.Y.S.2d 424 (2d Dept. 2002). The Transit Defendants have repeatedly failed to produce Borden for a deposition despite two court orders and multiple requests by Pratt s attorney as shown by s attached to the Annenberg Affirmation as Exhibit K. The Transit Defendants anticipated excuse of their investigator s prior inability to locate Borden is simply not credible or acceptable under the circumstances of this matter. In the first instance, the Transit Defendants displayed bad-faith by waiting until two months after the deadline for Borden s Court Ordered June 25, 2013 deposition to retain an investigator to locate and produce Borden for a deposition. 16 Secondly, the investigator s own lackadaisical efforts in locating Borden demonstrates complete incompetence and disregard for discovery obligations. As discussed in the Annenberg Affirmation, the Transit Defendants investigator relied only on unsuccessful cold call visits, mailing of a letter and placing telephone calls which went unanswered. 17 Such ineffective conduct simply does not constitute a due diligent 16 Annenberg Affirmation at paragraphs 23 and 92 and Exhibit L. 17 See, Affidavit of investigator Rick Belt, dated May 27, 2014 [Exhibit L]. -13-

15 attempt 18 by the Transit Defendants to locate Borden for the purpose of producing him for a deposition as required by two Court Orders. Indeed in Mason v. MTA New York City Transit 19, the Second Department termed similar conduct by the defendant as insufficient proof of a good faith effort to locate a former employee who had failed to appear at scheduled depositions... Thus, in Mason, the Second Department affirmed the lower court s order conditionally striking the defendant s Answer for: 1) failing to disclose when the MTA s driver left its employ; 2) belatedly retaining an investigator; and 3) the investigator s half-hearted attempts to locate the driver, relying only on unsuccessful efforts of a phone call and visit to the former employee s last known address. Mason v. MTA New York City Transit, 38 A.D.3d 258, 832 N.Y.S.2d 153 (2d Dept. 2007). The Second Department has also rejected the contention that in a case such as this one, counsel may permit an indifferent client to slip into obscurity and thereafter contend that the client s failure to appear pursuant to court order cannot be met with the appropriate sanction of striking an Answer. Mills v. Ducille, 170 A.D.2d 657, 567 N.Y.S.2d 79, 80 (2d Dept. 1991), quoting Moriates v. Powertest Petroleum Co., 114 A.D.2d 888, (2d Dept.1985). Accordingly, a defendant s unavailability or even disappearance provides no basis for denying a motion to strike his answer. Pierre v. Delish Bakery & Restaurant, Inc., 294 A.D.2d 417, 418, 742 N.Y.S.2d (2d Dept. 2002); Islam v. Nathan Katz Realty Co., 296 A.D.2d 18 Affidavit of investigator Rick Belt, dated May 27, 2014 [Exhibit L] A.D.3d 258, 832 N.Y.S.d 153 (2d Dept. 2007). -14-

16 566, 568, 745 N.Y.S.2d 577, 578 (2d Dept. 2002) (holding, that the infant plaintiff has made himself unavailable does not preclude the imposition of sanctions for failure to comply with court-ordered discovery. ). Pursuant to the foregoing legal authorities, this Court should strike the Transit Defendants Answer or preclude them from testifying at trial due to their contumacious violation of two deposition orders, bad-faith delay in retaining an investigator and insufficient proof of a good faith effort to locate Borden. Mason v. MTA New York City Transit, 38 A.D.3d 258, 832 N.Y.S.2d 153 (2d Dept. 2007). Similar bad faith and contumacious conduct is found from the defendants utter failure to provide the documents specified by the Compliance Conference Part Order of October 30, As the New York Court of Appeals has held, [C]ompliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully. Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 90 (1999). The defendants have done neither. CONCLUSION This Court should grant the instant motion by plaintiff Pratt against defendants New York City Transit Authority, MV Public Transportation Inc., and Norman K. Borden, Jr. for: 1) summary judgment on liability; 2) summary judgment on serious injury; 3) to strike their Answer or preclude them from testifying at trial for failure to appear for a court ordered deposition; and 4) to compel them to produce documents specified in the Central Compliance Part Order entered October 30, 2013, and/or pursuant to CPLR 3126, to strike their Answer -15-

17 for willful and contumacious failure to provide discovery pursuant to the Central Compliance Court Order entered October 30, Respectfully Submitted, LAW OFFICES OF PETER DEFILIPPIS & ASSOCIATES Attorneys for Plaintiff 262 West 38 th Street Suite 507 New York, NY (212) Dated: July 10, 2014 By: JOSHUA ANNENBERG, ESQ.

18 AFFIRMATION OF SERVICE JOSHUA ANNENBERG, an attorney duly admitted to practice law in the State of New York, affirms the following under the penalties of perjury: 1. I am Of Counsel to the Law Offices of Peter DeFilippis & Associates, attorneys for plaintiff herein, am not a party to this action, am over 18 years of age and reside in Bergen County, NJ. 2. On July 10, 2014, I served a true copy of the within Memorandum of Law and accompanying Notice of Motion and Affirmation and Support, upon: GALLO VITUCCI & KLAR LLP Attorney for Defendants METROPOLITAN TRANSPORTATION AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT, PARATRANSIT DIVISION AKA NYC; TRANS; DIV; OF PARATRANSIT, MTA BUS COMPANY, MV PUBLIC TRANSPORTATION INC.,AND NORMAN K. BORDEN, JR., 90 Broad Street, 3 rd Floor New York, NY Attn: Joseph Scarglato, Esq. LAW OFFICE OF JAMES J. TOOMEY Attorney for Defendant JOSEPHINE CHELL 485 Lexington Avenue, 7 th Floor New York, NY Attn: Wendy Jean-Bart, Esq. EPSTEIN, GIALLEONARDO, HARMS & McDONALD Attorney for Defendant NIKOLAY V. KUKHAREV One Whitehall Street, 13 th Floor New York, NY Attn: Steven Distler, Esq. Note: City of New York - out of case. via NYSCEF/e-file as the instant action is an e-file case. Dated: July 10, 2014 JOSHUA ANNENBERG

19 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No: /2012 JARED PRATT, Plaintif f, -against- THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, NEW YORK CITY TRANSIT, PARATRANSIT DIVISION AKA NYC; TRANS; DIV; OF PARATRANSIT, MTA BUS COMPANY, MV PUBLIC TRANSPORTATION INC., NORMAN K. BORDEN, JR., JOSEPHINE CHELL, NIKOLAY V. KUKHAREV AND JOHN DOE 1-5, (hereinafter JOHN DOE ), a fictitious name representing an individual or corporate type entity who is an agent or principal, lessor or lessee, employer or employee, master or servant or who otherwise acted or failed to act negligently, carelessly and/or recklessly in connection with the happening of this incident and is liable directly and/or vicariously and whose identity is known to the Defendants only and is otherwise unknown to the Plaintiff. Def endants. PLAINTIFF S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND TO STRIKE THE ANSWER OF DEFENDANTS NEW YORK CITY TRANSIT AUTHORITY, MV PUBLIC TRANSPORTATION INC., AND NORMAN K. BORDEN, JR. LAW OFFICES OF PETER DEFILIPPIS & ASSOCIATES Attorneys for Plaintiff 262 West 38 th Street Suite 507 New York, NY (212) Certification Pursuant to Rule 130: The within Memorandum of Law and accompanying Notice of Motion and Affirmation in Support are not frivolous and are made in good faith. JOSHUA ANNENBERG, ESQ.