SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAUL DURSTENBERG, ELECTROLUX HOME PRODUCTS, INC., ELECTROLUX PROFESSIONAL, INC, ELECTROLUXUSA, INC., ELECTROLUX WARRANTY CORPORATION, A. J. RICHARD & SONS, INC, P.C. RICHARD & SON, LLC, and P. C. RICHARD & SON LONG ISLAND CORPORATION, REPLY AFFIRMATION OF JONATHAN KRET IN FURTHER SUPPORT OF MOTION FOR A PROTECTIVE ORDER Index No. 161202/2015 Action No. 1 ("Durstenberg Action") Hermitage Insurance Company As subrogee of PAUL DURSTENBERG and AmTrust Financial Services, Inc. as claims administrator on behalf ofhermitage Insurance Company, Index No. 157809/2015 Action No. 2 (Insurance Action") Electrolux Home Products, Inc.; Electrolux, North America, Inc.; A. J. Richard & Sons, Inc.; P.C. Richard & Son, LLC, JONATHAN KRET, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true subject to the penalties of perjury: 1. I am an attorney associated with Steven Landy & Associates, PLLC, attorneys for Paul Durstenberg ("Dm'stenberg"), the plaintiff in Action No. 1 and the subrogor in Action No. 2. As such, I am fully familiar with the facts and circumstances set forth herein. 1 of 5
2. This reply affirmation is submitted in further support ofdurstenberg's motion seeking (i) a protective order pursuant to CPLR 3103 and the vacatur of the improper interrogatories served by the Electrolux Defendants and the P.C. Richards Defendants; and (ii) such other and further relief on the Defendant's behalf as the Court may deem just and proper. 3. The hundreds of duplicative, oppressive inten'ogatories served by the defendants are overly burdensome, were intended to harass, and serve no legitimate purpose. As a practical matter, the defendants can obtain all of the mformation they legitimately need more efficiently by taking plaintiffs deposition, and can reserve the right to serve post-deposition interrogatories if they are still necessary. The defendants would not be prejudiced by such a sequence, and have not even claimed that they would be prejudiced by such a procedure. They have, however, declined to follow our sensible proposal because it is their strategy to make litigation as costly and time consuming for the plaintiffs as possible. 4. P.C. Richards' opposition argues that Durstenberg's motion should be denied because it was not accompanied by a standalone affimiation of good faith. There is, however, no such requirement, and the motion was, in fact, preceded by good faith efforts to resolve this dispute without motion practice. Defendants do not actually substantively dispute our good faith efforts and appear to be raising a strictly technical argument. 5. In fact, at the last compliance conference on July 11, 2017, counsel for all parties met and conferred extensively and in good faith about alternatives to time consuming, wasteful and burdensome interrogatories. The motion was also preceded by good faith letters and conferences addressing discovery, albeit the conferences were in To their credit, the Electrolux defendants did not raise the same highly-technical argument. 2 of 5
the related subrogation action, as there has never been a P.C. Order in Durstenberg's negligence action. 6. The EIectrolux defendants oppose Durstenberg's motion primarily on the grounds that several months passed before the service of the instant motion. Be that as it may, plaintiff did not waive his right to object to the inten-ogatories on the grounds that they are palpably improper, which they are. In fact, plaintiff should not be penalized for the passage of time to the extent that he used the time to explore alternatives to making this motion. Once again, the Electrolux defendants do not claim any prejudice from the passage of time and are making a strictly technical argument. 7. Both sets of defendants also seek to draw meaningless distinctions between the facts of this action and the cases cited by Durstenberg>s opening papers. However, the parallels are self-evident. The defendants have sought to burden plaintiff with hundreds of unnecessary, duplicative interrogatories. The time and expense of answering all of the interrogatories is disproportionate to the value of the information sought, particularly as it can all be obtained more efficiently during depositions. 8. Setting technicalities aside, and considering practical implications, there is no genuine reason Durstenberg should be required to answer nearly 200 interrogatories before also appearing for a deposition. Most, if not all, of the information defendants genuinely need can come from document discovery and depositions. If they need additional mfonnation afterwards, they can reserve the right to serve more focused post- EBT interrogatories. The current sets of interrogatories are duplicative, overly burdensome, seek information far beyond the scope of legitimate discovery and were intended to harass. 3 of 5
9. The sheer volume of interrogatories is staggering and is grossly unreasonable in light of the relatively simple issues in this action. The Electrolux defendants manufactured a refrigerator, sold by the P.C. Richards defendants, which exploded and killed Mr. Durstenberg's father. Beyond those simple and largely uncontroverted facts, there may be the need for expert discovery and, indeed, many of the interrogatories seem to request information that would be known by an expert witness but not necessarily by the plaintiff himself. Conclusion 10. For the reasons set forth above, Durstenberg's motion for a protective order must be granted in its entirety. Dated: New York, New York August 15, 2017 JWATHANKRET 4 of 5
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAUL DURSTENBERG, ELECTROLUX HOME PRODUCTS, LMC, ELECTROLUX PROFESSIONAL, INC, ELECTROLUX USA, INC, ELECTROLUX WARRANTY CORPORATION, A. J. RICHARD & SONS, INC, P.C. RICHARD & SON, LLC, and P. C. RICHARD & SON LONG ISLAND CORPORATION, Hermitage Insurance Company As subrogee of PAUL DURSTENBERG and AmTmst Financial Services, Inc. as claims administrator on behalf of Hermitage Insurance Company, Electrolux Home Products, Inc.; Electi'olux, North America, Inc.; A. J. Richard & Sons, Inc.; P.C. Richard & Son, LLC, REPLY AFFIRMATION OF JONATHAN KRET Pursuant to 22 NYCRR 130-1. I, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents) are not frivolous. Dated: New York, New York August 15, 2017 /Jonathan Kret STEVEN LANDY & ASSOCIATES PLLC Attorneys for Paul Dnrstenberg 270 Madison Avenue, Suite 1400 New York, New York 10016 Tel: 212-682-8510 5 of 5