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(FILED: NEW YORK COUNTY CLERK 1271772014 03:11 PM INDEX NO. 451196/2014
NYSCEF DOC. NO. 24 RECEIVED NYSCEF 12/17/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
eee ~X
CONSOLIDATED EDISON COMPANY OF NEW Index No.: 451196/14
YORK, INC.,
Plaintiff, AFFIRMATION
-against- IN SUPPORT
MV PUBLIC TRANSPORTATION, INC. and
MACDANIEL TAHKEEN,
Defendants,
net ne ee et ee ne enn enen mene nme
STEPHEN F. ZAKLUKIEWICZ, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under the penalties of perjury:
1 That I am an associate of the law firm, Zallukiewicz, Puzo & Morrissey, LLP,
attorneys for the defendants, MV PUBLIC TRANSPORTATION, INC. and MACDANIEL
TAHKEEN in the above-captioned action. As such | am fully familiar with the facts,
circurostances, pleadings and proceedings herein.
2. This affirmation is respectfully submitted in support of the within motion seeking
(a) an Order pursuant to CPLR §3126, striking the plaintiff CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC.,, (hereinafter “CON ED”) complaint due to willful failure to
provide Court-Ordered discovery, and/or precluding plaintiff from testifying at the trial of this
action; or in the alternative, (2) an Order pursuant to CPLR §3124, directing plaintiff to provide
outstanding court-ordered discovery by a date certain and for such other relief as the Court
deems just and proper. CPLR §3124 motion compelling the plaintiff, to provide our office with
certain court ordered discovery.
3 This action was commenced by the plaintiffs for alleged property damage that
occurred on October 26, 2012. (Exhibit “C”, Bill of Particulars). Defendants PTM Management
Corp. and Lazaro Armando Enriquez joined issue and denied all allegations of negligence.
(Exhibit “A”, Pleadings). Subsequently, plaintiff served a Bill of Particulars. (Exhibit “B”)
4 According to the Verified Bill of Particulars, plaintiff, CON ED claims to have
sustained property damage in the amount of $34,191.99. (Exhibit “B”) Con Edison is claiming
that labor cost $24,062.30, materials cost $3,165.20 and transporting the pole cost $6,964.49. It
is claimed that it took a 122 hours to replace these two forty foot poles. (Id.)
5 A Preliminary Conference was held on July 15, 2014. At the PC the parties
entered into a discovery order annexed hereto as Exhibit “C”. The following discovery was to be
provided from plaintiff on or before 8/31/14:
° Witness information, statements and photographs are to be exchanged by 8/31/14;
. Names of workers, job crews, and job titles of all. Con Ed workers or
subcontractors who conducted repair and installation;
Timesheets and field records for all labor performed in connection with repair and
installation;
Job descriptions of each employee involved in repair and installation;
Employment and payroll records of all crew workers and supervisors;
Description, identification and photographs of poles damaged or destroyed in
accident of 10/26/12;
Itemized description of all tools and machinery, including vehicles, used in
removal and repair.
6 To date, CON ED has repeatedly sought adjournments from our office regarding
the deadline for exchange of the court-ordered discovery. (See three (3) stipulations to extend
time at Exhibit “D”) CON ED now seeks another extension of time to provide the discovery.
7 CPLR §3126 provides in pertinent part that if a party “refuses to obey an order for
disclosure or willfully fails to disclose information which the court finds ought to have been
disclosed” the court may dismiss the action, The Court-Ordered discovery that plaintiff continues
to withhold from moving defendants ought to have been disclosed by plaintiff. Instead,
defendants are forced to move for this discovery. Defendants are entitled to the discovery set
forth in the PC discovery order.
7 No reasonable excuse has been provided by CON ED for the continued failure to
provide this discovery. It is well settled that when a party willfully and contumaciously fails to
provide such discovery it is within the Court’s discretion to dismiss the Complaint. Gibbs v. St.
Barnabas Hospital, 2010 N.Y. Slip Op. 09198 (2010); Zictz_y. Wetanson, 67 N.Y, 2d 711
(1986)’ Gaye vy. Adnom Realty Inc., 278 A.D, 2d 43 (1% Dept. 2000); Waterman v. County of
We: stchester, 274 A.D. 2d 513 (2™ Dept. 2000); Red Apple Supermarkets vy, Malone & Hyde
Inc,, 251 A.D. 2d 78 (1 Dept, 1998).
8 Furthermore, when a party fails to set forth a reasonable excuse for its failure to
provide discovery, it is appropriate for the Court to dismiss the Complaint. DeCicco v. Nassau
Radiological Group, 276 A.D. 2d 582 (2"! Dept. 2000); Kepple v. J. Hill Assoc,, 275 A.D. 2d
299 (2™ Dept. 2000); White v. Leonard, 528 N.Y.S. 2d 607 (2 Dept. 1988).
9 If this Court elects not to dismiss plaintiffs’ Complaint, it is respectfully
submitted that it should — at the very Jeast — preclude plaintiff from testifying at the trial of this
action.
10. In the alternative, should the Court decide to neither dismiss nor preclude, it is
requested pursuant to CPLR §3124 that plaintiff be compelled to provide defendants with all
discovery as set forth within the PC order and movants’ discovery demands within 30 days.
WHEREFORE, it is respectfully requested that the within motion be granted in its
entirety or for such other and different relief as may seem just and equitable,
Dated: Islip Terrace, New York
Ay UpWIGZi ASQ.
December 16, 2014
HA D Ap fi
ts Zy
np EN F. Z: BA UKIE
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(FILED: NEW YORK COUNTY CLERK 1271772014 03:11 PM INDEX NO. 451196/2014 NYSCEF DOC. NO. 24 RECEIVED NYSCEF 12/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS eee ~X CONSOLIDATED EDISON COMPANY OF NEW Index No.: 451196/14 YORK, INC., Plaintiff, AFFIRMATION -against- IN SUPPORT MV PUBLIC TRANSPORTATION, INC. and MACDANIEL TAHKEEN, Defendants, net ne ee et ee ne enn enen mene nme STEPHEN F. ZAKLUKIEWICZ, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1 That I am an associate of the law firm, Zallukiewicz, Puzo & Morrissey, LLP, attorneys for the defendants, MV PUBLIC TRANSPORTATION, INC. and MACDANIEL TAHKEEN in the above-captioned action. As such | am fully familiar with the facts, circurostances, pleadings and proceedings herein. 2. This affirmation is respectfully submitted in support of the within motion seeking (a) an Order pursuant to CPLR §3126, striking the plaintiff CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,, (hereinafter “CON ED”) complaint due to willful failure to provide Court-Ordered discovery, and/or precluding plaintiff from testifying at the trial of this action; or in the alternative, (2) an Order pursuant to CPLR §3124, directing plaintiff to provide outstanding court-ordered discovery by a date certain and for such other relief as the Court deems just and proper. CPLR §3124 motion compelling the plaintiff, to provide our office with certain court ordered discovery. 3 This action was commenced by the plaintiffs for alleged property damage that occurred on October 26, 2012. (Exhibit “C”, Bill of Particulars). Defendants PTM Management Corp. and Lazaro Armando Enriquez joined issue and denied all allegations of negligence. (Exhibit “A”, Pleadings). Subsequently, plaintiff served a Bill of Particulars. (Exhibit “B”) 4 According to the Verified Bill of Particulars, plaintiff, CON ED claims to have sustained property damage in the amount of $34,191.99. (Exhibit “B”) Con Edison is claiming that labor cost $24,062.30, materials cost $3,165.20 and transporting the pole cost $6,964.49. It is claimed that it took a 122 hours to replace these two forty foot poles. (Id.) 5 A Preliminary Conference was held on July 15, 2014. At the PC the parties entered into a discovery order annexed hereto as Exhibit “C”. The following discovery was to be provided from plaintiff on or before 8/31/14: ° Witness information, statements and photographs are to be exchanged by 8/31/14; . Names of workers, job crews, and job titles of all. Con Ed workers or subcontractors who conducted repair and installation; Timesheets and field records for all labor performed in connection with repair and installation; Job descriptions of each employee involved in repair and installation; Employment and payroll records of all crew workers and supervisors; Description, identification and photographs of poles damaged or destroyed in accident of 10/26/12; Itemized description of all tools and machinery, including vehicles, used in removal and repair. 6 To date, CON ED has repeatedly sought adjournments from our office regarding the deadline for exchange of the court-ordered discovery. (See three (3) stipulations to extend time at Exhibit “D”) CON ED now seeks another extension of time to provide the discovery. 7 CPLR §3126 provides in pertinent part that if a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” the court may dismiss the action, The Court-Ordered discovery that plaintiff continues to withhold from moving defendants ought to have been disclosed by plaintiff. Instead, defendants are forced to move for this discovery. Defendants are entitled to the discovery set forth in the PC discovery order. 7 No reasonable excuse has been provided by CON ED for the continued failure to provide this discovery. It is well settled that when a party willfully and contumaciously fails to provide such discovery it is within the Court’s discretion to dismiss the Complaint. Gibbs v. St. Barnabas Hospital, 2010 N.Y. Slip Op. 09198 (2010); Zictz_y. Wetanson, 67 N.Y, 2d 711 (1986)’ Gaye vy. Adnom Realty Inc., 278 A.D, 2d 43 (1% Dept. 2000); Waterman v. County of We: stchester, 274 A.D. 2d 513 (2™ Dept. 2000); Red Apple Supermarkets vy, Malone & Hyde Inc,, 251 A.D. 2d 78 (1 Dept, 1998). 8 Furthermore, when a party fails to set forth a reasonable excuse for its failure to provide discovery, it is appropriate for the Court to dismiss the Complaint. DeCicco v. Nassau Radiological Group, 276 A.D. 2d 582 (2"! Dept. 2000); Kepple v. J. Hill Assoc,, 275 A.D. 2d 299 (2™ Dept. 2000); White v. Leonard, 528 N.Y.S. 2d 607 (2 Dept. 1988). 9 If this Court elects not to dismiss plaintiffs’ Complaint, it is respectfully submitted that it should — at the very Jeast — preclude plaintiff from testifying at the trial of this action. 10. In the alternative, should the Court decide to neither dismiss nor preclude, it is requested pursuant to CPLR §3124 that plaintiff be compelled to provide defendants with all discovery as set forth within the PC order and movants’ discovery demands within 30 days. WHEREFORE, it is respectfully requested that the within motion be granted in its entirety or for such other and different relief as may seem just and equitable, Dated: Islip Terrace, New York Ay UpWIGZi ASQ. December 16, 2014 HA D Ap fi ts Zy np EN F. Z: BA UKIE