FILED: NEW YORK COUNTY CLERK 12/28/2016 01:04 PM INDEX NO. 810002/2013 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X STEVEN C. HORN, Plaintiff, Index No.: 810002/2013 -against- MARIANNE NESTOR, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU and "John Doe" and/or "Jane Doe" # 1-10 inclusive, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, AFFIRMATION OF MICHAEL H. LEVISON IN OPPOSITION TO DEFENDANT AND COUNTERCLAIM PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS Defendants. X MICHAEL H. LEVISON, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under the penalties of perjury and states: 1. I am a partner at Pryor Cashman LLP, attorneys for plaintiff and counterclaim defendant Steven C. Horn (hereinafter "Horn"), and as such I am fully familiar with the facts and circumstances surrounding the above-captioned action. 2. I submit this Affirmation in opposition to defendant and counterclaim plaintiff Marianne Nestor's (hereinafter "Nestor") motion for leave to file a first amended answer, affirmative defenses and counterclaims (the "Motion"). 3. This is an action to foreclose upon a commercial mortgage on the luxury townhouse located at 135 East 19th Street, New York, New York 10032 (the "Premises"). 1 of 5
4. This action was commenced by the filing of a summons and complaint (collectively, the "Complaint") on or about January 4, 2013. (A true and correct copy of the Complaint is annexed hereto as Exhibit "1" and is 5. On May 16, 2013, Nestor served her Answer, Affirmative Defenses, and Counterclaims ("Original Answer and Counterclaims"). (A true and correct copy of the Original Answer and Counterclaims is annexed to the Affirmation of Christopher Kelly, Esq. in support of the Motion as Exhibit "B" and is 6. On or about June 14, 2013, Horn filed that certain Reply to Counterclaims. (A true and correct copy of the Reply to Counterclaims is annexed hereto as Exhibit "2" and is 7. On or about July 20, 2015, Horn served Plaintiff's Request for Admission (the "RFAs") upon Nestor. (A true and correct copy of the RFAs is annexed hereto as Exhibit "3" and is 8. On September 10, 2015, Nestor served her response to the RFAs. I (A true and correct copy of Nestor's response is annexed hereto as Exhibit "4" and is incorporated herein by reference.) 9. Nestor's response to the RFAs contained the following admissions: REQUEST NO. 2: Documents was not incurred primarily for Your personal, family or household purposes. On October 2, 2015, your affirmant advised Nestor's counsel that by reason of Nestor's failure to timely file a proper response to the RFAs, each request contained in the RFAs was deemed admitted pursuant to CPLR 3123. 2 2 of 5
RESPONSE TO REQUEST NO. 2: Admit that debt was not originally incurred for personal purposes. REQUEST NO.3: Documents was incurred primarily for commercial purposes. RESPONSE TO REQUEST NO.3: Documents was originally for commercial purposes. (Exhibit "4" at p. 2.) 10. More than a year later, on or about October 31, 2016, Nestor served that certain Amended Response to Plaintiffs First Request for Admissions (the "Amended Response"), pursuant to which she attempted to withdraw the aforementioned admissions. (A true and correct copy of the Amended Response is annexed hereto as Exhibit "5" and is 11. Nestor did not seek Horn's or the Court's consent before serving the Amended Response. 12. As such, the Amended Response is a nullity. 13. On April 12, 2016, this Court issued a preliminary conference order (the "PC Order"). (A true and correct copy of the PC Order is annexed hereto as Exhibit "6" and is 14. Pursuant to the terms of the PC Order, Nestor was ordered to appear for deposition on or before September 15, 2016. 3 3 of 5
15. On August 11, 2016, pursuant to a so-ordered stipulation, Nestor was ordered to appear for her deposition on September 28, 2016. (A true and correct copy of the aforementioned stipulation is annexed hereto as Exhibit "7" and is 16. Nestor failed to appear for her deposition on September 28, 2016. 17. On October 11, 2016, the Court issued a compliance conference order (the "CC Order"). (A true and correct copy of the CC Order is annexed hereto as Exhibit "8" and is 18. Pursuant to the CC Order, Nestor was required to advise Horn by no later than October 14, 2016 as to proposed dates for Nestor's deposition. 19. Nestor failed to do so. 20. On or about October 27, 2016, Nestor filed the Motion. 21. On November 14, 2016, your affirmant advised Nestor's counsel that he had failed to comply with his obligation to provide a date that Nestor would be produced for deposition. 22. Only then did Nestor's counsel offer dates for Nestor's deposition. 23. Nestor's counsel refused to extend Horn's time to respond to the Motion until after Nestor's deposition had taken place. 24. Nestor's deposition testimony may provide additional (and potentially dispositive) evidentiary support for Horn's opposition to the Motion. 25. Consequently, Horn will suffer undue prejudice if he is not permitted to supplement his opposition to the Motion after Nestor's deposition is complete. 26. As such, at the appropriate time, Horn shall seek the permission of the Court to file supplemental papers in opposition to the Motion. 4 4 of 5
Dated: New York, New York December 2, 2016 ii\ ICHAEL H. LEVISON 5 5 of 5