FILED: KINGS COUNTY CLERK 06/20/ :49 PM INDEX NO /2016 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/20/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X X Index No.: /2016 MARIA MORALES, Plaintiff, -against- AFFIRMATION IN SUPPORT MR TRANSPORTATION INC., VICTOR L. BROWNE, NICOLAS JORGE NEPOMUCENO and JORGE NEPOMUCENO, Defendants X MICHAELA P. DELACRUZ, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following statements to be true under the penalties of perjury: 1. I am associated with the law firm of LEWIS BRISBOIS BISGAARD 4 SMITH LLP, attorneys of record for the defendants, MR TRANSPORTATION INC. and VICTOR L. BROWNE Defendants" (hereinafter referred to collectively as "Moving Defendants"), in the above-captioned action. As such, I am fully familiar with the facts and circumstances of the litigation herein. 2. I submit this Affirmation in support of Moving motion, which seeks an Order: (1) Pursuant to CPLR 3124, compelling the plaintiff to appear for a deposition and independent medical examination(s), by a date certain to be set down by this Court, conditioned on dismissal or preclusion; (2) Pursuant to CPLR 2004, extending plaintiff's time to file the Note of Issue and Certificate of Readiness in light of the extensive outstanding discovery; and (3) Granting such other and further relief as this Court deems just and proper. EXHIBITS Exhibit "A": Plaintiff s Summons and Verified Complaint, dated August 5, 2016; Exhibit "B": Defendants NICOLAS JORGE NEPOMUCENO and JORGE NEPOMUCENO's Verified Answer, date December 29, 2016; 1 of 8

2 Exhibit "C": Moving Verified Answer, dated January 16, 2017; Exhibit "D": Preliminary Conference Order, dated October 23, 2017; Exhibit "E": Good Faith Correspondence, dated January 12, 2018; Exhibit "F": Compliance Conference Order, dated April 24, 2018; and Exhibit "G": Good Faith Correspondence, dated May 8, RELEVANT PROCEDURAL HISTORY 3. Plaintiff MARIA MORALES commenced this action by the filing of a Summons and Verified Complaint, in the Supreme Court, Kings County, on or about August 11, See Exhibit "A". In the Complaint, plaintiff alleges that she sustain serious personal injuries arising out of a motor vehicle accident that occurred on or about May 11, 2015, at or near the intersection of 18* Street and 7* Avenue, in Kings County, New York. See Exhibit "A". 4. Issue was joined by Defendants NICOLAS JORGE NEPOMUCENO and JORGE Defendants" NEPOMUCENO (hereinafter referred to collectively as the "Nepomuceno Defendants") by service of a Verified Answer to the Complaint on December 30, See Exhibit "B". 5. Moving Defendants also interposed a Verified Answer to plaintiff's Complaint on January 16, See Exhibit "C". 6. On or about October 23, 2017, all parties appeared in Court for a Preliminary Conference, and thereat, a Preliminary Conference Order was entered into. See Exhibit "D". Pursuant to the Order, plaintiff was to furnish medical and hospital authorizations to the extent not previously provided, appear for a deposition on January 16, 2018, and appear for physical examination(s) within 45 days following the conclusion of plaintiff's deposition. See Exhibit "D". 7. Due to outstanding medical records related to plaintiff's injuries and treatment, Moving Defendants were unable to proceed with plaintiff's deposition on January 16, As i 2 of 8

3 such, Moving Defendants sent all parties a good faith letter on or about January 12, 2018, requesting that all parties contact Moving Defendants to reschedule the depositions. See Exhibit "E". Neither counsel for plaintiff nor the Nepomuceno Defendants responded to Moving good faith correspondence requesting that all parties to reschedule their depositions. 8. On or about April 24, 2018, all parties appeared in Court for a Compliance Conference and entered into an Order on consent. See Exhibit "F". Pursuant to the Order, plaintiff was to appear for a deposition on May 7, 2018, the Nepomuceno deposition was scheduled to follow on May 9, 2018, and Moving deposition was scheduled on May 17, See Exhibit "F". 9. On or about May 4, 2018, plaintiff's counsel advised Moving Defendants that they were not ready to proceed with plaintiff's deposition and that plaintiff would not be produced on May 7, As such, plaintiff failed to appear for the May 7, 2018 court-ordered deposition. 10. On or about May 8, 2018, Moving Defendants sent all parties a good faith letter requesting that the parties contact Moving Defendants to again reschedule their depositions within ten days of the correspondence to avoid unnecessary motion practice. See Exhibit "G". To date, neither plaintiff nor the Nepomuceno Defendants have responded to Moving Defendants May 8, 2018, good faith correspondence or rescheduled their depositions with Moving Defendants. As such, all depositions remain outstanding in this case. 11. As a result of the aforementioned, Moving Defendants remains unable to conduct an investigation into the facts and circumstances surrounding the alleged accident to substantiate plaintiff's claims and develop defenses thereto. Without completion of plaintiff's deposition and independent medical examination(s), Moving Defendants have been and remain severely prejudiced of 8

4 ARGUMENT I. THE INFORMATION SOUGHT HEREIN IS BOTH MATERIAL AND NECESSARY. 12. Generally, CPLR 3101(a) provides for the full disclosure of all evidence which is material and necessary in the prosecution or defense of an action. See Conway v. Bayley Seton Hosp., 104 AD2d 1018, 1019 (2d Dep't. 1984); see also Munoz v. 147 Corp., 309 AD2d 647 (1st Dep't. 2003) (granting defendants' motion to vacate note of issue where discovery, which was "necessary in the prosecution or defense" of case remained outstanding). Additionally, the words "material" and "necessary" should be interpreted liberally. The "word 'necessary' does not mean 'indispensable.'" See Allen v. Crowell-Collier Publishing Company, 21 N.Y.2d 403 (1968). 13. In the instant action, plaintiffhas failed to appear for her deposition, despite Moving good faith attempts to conduct same and in violation of the Compliance Conference Order. Specifically, plaintiff failed to respond to Moving Defendants good faith correspondence, dated January 12, 2018, requesting that plaintiff reschedule her deposition and as such, plaintiff's deposition was only rescheduled by court order over three months later at a Compliance Conference on April 24, See Exhibits "E" and "F". Plaintiff then failed to appear for her deposition on May 7, 2018, as directed by the Court (See Exhibit "F") and has failed to respond to Moving good faith attempts to reschedule plaintiff's deposition. See Exhibit "G". 14. Accordingly, due to plaintiff's failure to appear for a deposition, Moving Defendant have been unable to conduct a complete investigation into the facts and circumstances surrounding the alleged accident to substantiate plaintiff's claims and develop defenses thereto. Without completion of plaintiff's deposition and independent medical examination(s), Moving Defendants will be severely prejudiced. 4 of 8

5 II. PLAINTIFFS MUST BE COMPELLED TO APPEAR FOR A DEPOSITION AND INDEPENDENT MEDICAL EXAMINATION(S) BY A DATE CERTAIN TO BE FIXED BY THE COURT, UNDER PENALTY OF DISMISSAL OR PRECLUSION. 15. The statutory scheme enacted by the New York State Legislature is designed to permit litigants to possess mutual knowledge of all the relevant facts gathered by the parties to the litigation. See CPLR 3101 et. seq. When a litigant frustrates the discovery scheme set forth in the CPLR, the Courts of this jurisdiction readily implement penalties and/or order compliance. 16. Thus, Moving Defendants respectfully request that this Court issue a conditional order compelling plaintiff to appear for a deposition and independent medical examination(s), by a date certain to be fixed by the Court, upon penalty of dismissal or preclusion. See CPLR 3124 (providing for vehicle to compel discovery for party's failure to respond to discovery requests); see also Pashayan v. Corson, 306 AD2d 259, 760 N.Y.S.2d 339 (2d Dep't. 2003); see also Kalish v. Manhasset Med Ctr. Hosp., 100 AD2d 507 (2d Dep't. 1984). 17. If plaintiff fails to abide by the conditional order, the Court should dismiss plaintiff's Complaint, or preclude plaintiff from offering any evidence as to damages and causation on a motion for summary judgment or at the time of trial. Pursuant to CPLR 3124, a Court is permitted 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 AD3d 170 (1st Dep't. 2004) (reversing IAS courts' denial of motion to strike pleadings based upon responding party's failure to appear for depositions). See also Tazmilovic v. Dowd, 14 AD3d 546 (2d Dep't. 2005) (affirming decision of IAS court which precluded the plaintiff to testify at trial or present any other evidence when he did not appear for deposition as scheduled in Preliminary Conference Order). 18. As discussed, plaintiff has failed to appear for a deposition and has not completed independent medical examination(s), despite Moving Defendants multiple good faith attempts to of 8

6 schedule and conduct the deposition, and in violation of the Compliance Conference Order. See Exhibits "D", "F" and "G". Plaintiff's deposition and independent medical examinations are essential for the purpose of defending the instant action and plaintiffs failure to appear for a deposition and medical examination(s) have inexplicably delayed this litigation and places Moving Defendants at a decided disadvantage. Accordingly, Moving Defendants respectfully request that this Court issue an Order compelling plaintiff to appear for her deposition and independent medical examination(s) by a date certain to be fixed by this Court, upon penalty of dismissal or preclusion on a motion for summary judgment or at trial. IH. PLAINTIFF'S TIME TO FILE A NOTE OF ISSUE AND CERTIFICATE OF READINESS FOR TRIAL SHOULD BE EXTENDED, PURSUANT TO CPLR 2004, IN LIGHT OF THE EXTENSIVE OUTSTANDING DISCOVERY 19. CPLR 2004 states as follows: Extensions of time generally. Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed. 20. Plaintiff's deadline to file the Note of Issue may be extended, at the Court's discretion, and as necessary, pursuant to CPLR Conway v. Brooklyn Union Gas Company, 212 AD 2d 497, 623 N.Y.S.2d 2 (2d Dep't. 1995); Grant v. City of New York, 17 AD 3d 215, 793 N.Y.S. 2d 35 (1st Dep't. 2005); Nappiv. St. John's Cemetary, 73 AD 2d 687, 423 N.Y.S. 2d 240 (2d Dep't. 1979); see also McKinney's CPLR Pursuant to the Compliance Conference Order, plaintiff is directed to file the Note of Issue on or before August 24, See Exhibit "F". However, as discussed, supra, significant discovery remains outstanding in this case, namely the depositions of all parties and plaintiff's independent medical examination(s). 6 of 8

7 22. It is further unknown at this point whether additional discovery will be required based on the outstanding depositions and/or the independent medical examination(s) that have yet to be conducted. 23. As such, the parties in this action will require additional time beyond August 24, 2018, to complete, at a minimum, all depositions and plaintiff's independent medical examination(s). 24. Therefore, there is good cause to extend plaintiff's time to file the Note of Issue and Certificate of Readiness as Moving Defendants will be prejudiced if all discovery cannot be completed before plaintiff is obligated to file the Note of Issue. In particular, plaintiff's time to file the Note of Issue and Certificate of Readiness should be extended to allow all parties to complete discovery. 25. Accordingly, this Court should extent the time for plaintiff to file the Note of Issue. WHEREFORE, Moving Defendants respectfully request that this Court grant its Motion, which seeks an Order: (1) Pursuant to CPLR 3124, compelling the plaintiff to appear for a deposition and independent medical examination(s), by a date certain to be set down by this Court, conditioned on dismissal or preclusion; (2) Pursuant to CPLR 2004, extending plaintiff's time to file the Note of Issue and Certificate of Readiness in light of the extensive outstanding discovery; and (3) Granting such other and further relief as this Court deems just and proper. Dated: New York, New York June 19, 2018 LEWIS BRISBOIS BISGAARD 4 SMITH LLP Michaela P. Delacruz Attorneys for Defendants MR TRANSPORTATION INC. and VICTOR L. BROWNE 77 Water Street, Suite of 8

8 New York, New York File No.: TO: ALAN BLUMEN, P.C. Attorney for Plaintiff MARIA MORALES 8778 Bay Parkway, Suite 201 Brooklyn, NY (718) GIALLEONARDO, McDONALD & TURCHETTI Attorneys for Defendants NICOLAS JORGE NEPOMUCENO and JORGE NEPOMUCENO One Whitehall Street -- 13d' Floor New York, New York Phone: (212) File No.: of 8