FILED: QUEENS COUNTY CLERK 08/24/ :13 PM INDEX NO /2017 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 08/24/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X ASHLEY RAPHAEL, Index No.: /2017 Plaintiff, REPLY AFFIRMATION -against- THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, P.O. GEORGE MOORE, MIRZA LIMO INC. and ADECHINAN OUSSAMATOU-NAYYIF, Defendants X MICHAEL J. AVILES, an attorney licensed to practice law before the courts of the State of New York, hereby affirms under the penalties of perjury as follows: 1. That the instant Affirmation is made in Reply in opposition papers of defense counsel (dated July 25, 2018) for the defendants MIRZA LIMO INC. and ADECHINAN OUSSAMATOU-NAYYIF, submitted in response to the Plaintiff's Motion for Summary Judgment or in the alternative striking defendants' Answers. 2. Defendant MIRZA/OUSSAMATOU-NAYYIF asserts that Summary Judgment should be granted with a finding that Co-Defendant MOORE, CITY and NYCPD are at solely fault for the accident at issue herein. Amazingly, the defendants have provided no evidence to dispute the Plaintiff's version of the events, clearly set forth in their affidavit. 3. The court's attention is respectfully directed to the fact that opposition contains factual errors, baseless assumptions, and conclusory assertions. 4. Defendants MIRZA/OUSSAMATOU-NAYYIF incorrectly asserts that "plaintiff offers not admissible medical proof to support a conclusion that a serious injury was in fact sustained as a result of the occurrence". In fact, this was a serious motor vehicle collision where the plaintiff, Ashley Raphael, who was at the time of the accident 26 years old, was struck while riding as a passenger in defendants MIRZA's cab at an intersection, by a vehicle owned by 1 of 7

2 the defendants THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT and driven by P.O. GEORGE MOORE on May 27, As a result of the collision, the plaintiff sustained and suffered severe and permanent personal injuries, including: Cervical spine: Right paracentral herniation at C3-4 with thecal sac indentation; central herniation at C4-5 with thecal sac indentation; central herniation at C5-6 with thecal sac indentation; Buldging disc without stenosis Cervical nerve root impingement; herniated nucleus pulposus, thoracic; Lumbar spine: Buldging disc at L4/5 without stenosis; central herniation at L5/S1 With midline annular tear component and thecal sac indentation and impingement upon originating S1 roots; Herniated lumbar intervertebral disc; Bilateral lumbosacral nerve root lesions; Thoracic spine: Left paracentral herniation at T2-3 with thecal sac indentation; Upper/lower back pain and neck pain with radiation into both right and left upper extremities, with radiation into both right and left lower extremities and with radiation with numbness, tingling and dyesthesias. Left Shoulder: Anteroinferior labral tear; inflammatory thickening of the inferior glenohumeral ligament, correlate clinically; left shoulder pain; Right knee: Grade 1 signal in anterior and posterior horns of medial meniscus; Medial retinacular sprain; joint effusion; lateral tilt of patella without patellofemoral arthrosis; right knee pain; HNP, Radiculopathy, spinal stenosis, instability; 5. As previously mentioned, Plaintiff underwent surgery on December 15, 2016: Posterior spinal fusion and laminectomy; Posterolateral Fusion L5/1; Segmental Pedicle Fixation L5/1; Lumbar Laminectomy; Facetectomy, Foranlinotomy; Discectomy; BMP implant; Morselized Bone Graft; Neurolysis 5/1; Flouroscopy; Complex Closure. Plaintiff has difficulty 2 of 7

3 with activities of daily living, difficulty in walking up and down stairs, bending, walking, s nnding, getting up, pushing, lifting; plaintiff continues to have head, neck and back pain; Plaintiff has undergone cervical thoracic and lumbar spine epidural injections, physical therapy, acupuncture, chiropractic care. (EXHIBIT A - Plaintiff's Bill of Particulars). 6. Plaintiff has treated continuously from the time of the accident and has done physical therapy and home exercises, with little improvement, since the accident. Despite treatment, plaintiff continues to suffer with significant reductions in the range of motion of her cervical spine and lumbar spine, now over two years after the accident. 7. Moreover, Plaintiff is establishing a serious injury via submission of all plaintiff's medical evidence from her treating providers, in admissible form. (EXHIBIT B - plaintiff's certified medical records) 8. Defendant falsely contends that "plaintiff has evidence no interest in deposing a representative of MIRZA, the other of the vehicle driven by (defendant) Oussamatou- Nayyif" In fact, by letters dated August 14, 2017, November 7, 2017 and December 15, 2017, your affirmant's office wrote to counsel in a good-faith attempt to schedule defendants' depositions. A copy of the August 14,2017, November 7, 2017 and December 15, 2017 letters were collectively annexed asexhibit 'K' to plaintiff's Motion for Summary Judgment. 9. To date, Defendants have failed to appear for their respective depositions and have failed to provide a date to hold defendants depositions, in violation of two (2) Court orders. 10. On April 26, 2017, a Preliminary Conference Order was entered into, requiring Defendants CITY and P.O. MOORE to appear for their deposition on August 15, 2017 and defendants MIRZAA and OUSSAMATOU-NAYYIF to appear for deposition on August 22, A copy of the Preliminary Conference Order is annexed hereto as Exhibit 'E' to plaintiff's Motion to Summary Judgment. 3 of 7

4 11. All Defendants have failed to appear for their court-ordered deposition in violation of the Preliminary Conference Order, without providing any justification or excuse. 12. On October 2, 2017, a Compliance Conference Order was entered into, requiring: DEPOSITIONS "Defendant Mirza Limo and Nayyif to appear for deposition on 1/14/18 at 10:00 am" and ORDERED that all parties (City) not yet deposed shall appear for depositions on 12/18/17 at 10:00 a.m. o'clock. " Moreover, the Court ordered: "that all proceedings directed herein shall be completed on or before the dates set forth. NO ADJOURNMENTS OF THE DATES SET FORTH HEREIN ARE TO BE HAD WITHOUT THE COURT'S APPROVAL, AND IT IS FURTHER ORDERED THAT ANY FAILURE TO COMPLY STRICTLY WITH THE TERMS OF THIS ORDER SHALL BE GROUNDS FOR THE STRIKING OF PLEADINGS OR OTHER RELIEF PURSUANT TO CPLR " A copy of the Compliance Conference Order was annexed as Exhibit 'G' to plaintiff's Motion to Summary Judgment. 13. Once again, all Defendants failed to appear for their court-ordered deposition in violation of the Compliance Conference Order, without providing any justification or excuse. 14. As the Court of Appeal explained in Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999), the court is authorized by law to strike the pleadings of a party who refuses to obey a court order: [W]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss [its pleading]. * * 4 of 7

5 If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders...as are just," including dismissal of an action (CPLR 3126). Finally we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully. Kihl, 94 N.Y.2d at , 700 N.Y.S.2d at The willful and contumacious character of conduct is demonstrated by their unjustified, unexcused failure to appear for their respective depositions. See Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612 (2d Dep't 2011) ("The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.") (internal citations and quotations omitted). 16. This Court should act upon its repeated warnings that the failure to comply with a Court order will result in the imposition of sanctions by striking the Answers due to their willful and contumacious violations of two Court orders. See Kroll, 10 A.D.3d at ; Kopin, 299 A.D.2d at In addition to striking Answers, this Court should also award cost to Plaintiff's counsel for having to make this motion. 18. The plaintiff has satisfied their initial burden of proof and defendants have provided a naked legal document, with not an iota of evidence, in opposition. 19. The defendants have provided an "opposition" that is in effect no opposition at all. WHEREFORE, the Court should enter an order: (a) GRANTING summary judgment to Plaintiff as to liability in this motor vehicle action, pursuant to New York Civil Practice Law and Rules ("CPLR") 3212; 5 of 7

6 (b) In the event that the Court does not grant summary judgment to Plaintiff, this Court should STRIKE the Answers of all defendants, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, P.O. GEORGE MOORE, MIRZA LIMO INC. and ADECHINAN OUSSAMATOU-NAYYIF, for their unjustified, willful failure and contumacious violations of two Court orders, and refusal to appear for depositions and provide relevant discovery in violation of multiple Court orders and Plaintiff's demands, pursuant to CPLR 3126; (c) SETTING this matter down for an immediate trial on the sole issue of Plaintiff's damages; or in the alternative; and (d) AWARDING costs to Plaintiff for having to make this motion and such other and further relief as is just and proper under the circumstances. Dated: New York, New York August 24, 2018 MICHAEL J. AVILES & ASSOCIATES, LLC Attorneys for Plaintiff Juichael J. duiteo By: Michael J. Aviles, Esq. 145 Hudson Street, Suite 5C New York, New York Ph: Fax: (212) (212) of 7

7 To: BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C. Attorneys for Defendants Mirza Limo Inc. And Nayyif Adechinan Oussamatou One Metrotech Center, 8th FlOOr Brooklyn, New York Tel: Fax: ZACHARY W. CARTER Corporation Counsel Attorneys for Defendants The City of New York, The City of New York s/h/a New York City Police Department 100 Church Street New York, New York Tel: Law Dept # of 7