Preview
FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------X
SANDRA ENGELMAN, Index No.: 151665/14
Plaintiff,
AFFIRMATION IN SUPPORT
-against- AND OF GOOD FAITH
THE CITY OF NEW YORK, CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., and
SAFEWAY CONSTRUCTION ENTERPRISES, INC.,
Defendants.
——----
-----------------------------------------------------X X
of'
JESSICA A. McGOVERN, an attorney duly admitted to practice law in the State of New
York, hereby affirms the following to be true, under penalty of perjury, upon information and
belief;
1. I am an attorney associated with the law firm of BARTLETT LLP, attorneys for
defendants, CONSOLIDATED EDISON COMPANY OF NEW YORK and SAFEWAY
CONSTRUCTION ENTERPRISES, INC., in the above-entitled matter, and as such, I am fully
familiar with the facts and circumstances herein by way of review and handling of the file
maintained in said office.
2. This affirmation is submitted in support of CONSOLIDATED EDISON
COMPANY OF NEW YORK's and SAFEWAY CONSTRUCTION ENTERPRISES, 1NC.'s
motion, which seeks an order:
a. Pursuant to CPLR §3126(3) dismissing plaintiff's complaint based upon
defendants'
plaintiff's willful failure to comply with discovery demands; or
alternatively;
b. Pursuant to CPLR §3126(2) precluding plaintiff from offering any evidence at
the trial of this action based upon Plaintiff's willful failure to comply with
defendants'
discovery demands; or alternatively;
defendants'
c. Pursuant to CPLR §3124 compelling plaintiff to comply with
discovery demands by a date certain; and
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d. For such other and further relief as this Court may deem just and proper.
RELEVANT PROCEDURAL HISTORY
3. This is an action for personal injuries brought by plaintiff by way of a Summons and
Complaint filed on or about February 25, 2014. A copy of the Summons and Complaint, is annexed
hereto as Exhibit "A".
4. Issue was joined by defendant CONSOLIDATED EDISON COMPANY OF NEW
EDISON"
YORK (hereinafter "CON EDISON") by service of itsAnswer on or about March 25, 2014. A copy
of the Answer is annexed hereto as Exhibit "B".
5. With its Answer, defendant, CON EDISON, served various discovery demands on
plaintiff and co-defendant. A copy of CON EDISON's Demands is annexed hereto as Exhibit "C".
6. An Amended Complaint was then filed on or about March 8, 2016, naming
SAFEWAY CONSTRUCTION ENTERPRISES, INC., as a defendant. A copy of the Amended
Complaint is annexed hereto as Exhibit "D".
7. Defendant THE CITY OF NEW YORK filed an Answer to the Arnended Complaint
on or about March 10, 2016. Issue was joined by defendant, SAFEWAY CONSTRUCTION
ENTERPRISES, INC., (hereinafter "SAFEWAY") by service of itsAnswer on or about March 15,
2016. Defendant CON EDISON filed an Answer to the Amended Complaint on or about March 29,
2016. (See copies of Answers to the Amended Complaint, collectively annexed hereto as Exhibit
"E").
8. With its Answer, defendant, SAFEWAY served various discovery demands on
plaintiff and co-defendant. A copy of SAFEWAY's Demands is annexed hereto as Exhibit "F".
9, A Preliminary Conference was held on September 7, 2017, at which time plaintiff
and co-defendant CITY OF NEW YORK were directed to provide outstanding discovery, and a
deposition schedule was set forth. A copy of the preliminary conference Order is annexed hereto as
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Exhibit "G". At this time, plaintiff has failed to comply with the Preliminary Conference Order, in
that paper discovery remains outstanding, and plaintiff has not appeared for a deposition.
10. A Compliance Conference was held on February 1, 2018, which further directed
plaintiff and co-defendant CITY OF NEW YORK to provide outstanding discovery, and set forth
another deposition schedule. A copy of the Compliance Conference Order is annexed hereto as
Exhibit "H". At this time, plaintiff has failed to comply with the Compliance Conference Order in
that paper discovery remains outstanding, and plaintiff has not appeared for a deposition. This is
the second Order that plaintiff has failed to comply with.
11. Needless to say, for nearly a year and a half, your affirmant's office has made
numerous good faith attempts seeking plaintiff's compliance with discovery. No less than twelve
letters were sent to plaintiff's counsel in an attempt to obtain all outstanding discovery. Copies of
2016,'
good faith letters dated May 25, 2016; July 26, 2016; September 7, 2016; October 26, 2016;
207,'
December 2, 2016; February 8, 2017; March 28, 2017; May 22, 2017; August 2, 207; and October
20, 2017, are collectively annexed hereto as Exhibit "I".
12. While plaintiff has provided limited responses to our discovery demands, these
responses remain incomplete. In particular, to date, we continue to seek plaintiff's complete
response to SAFEWAY's combined demands. Specifically, plaintiff has not responded to
SAFEWAY's Demand for Video/Surveillance, Demand for Authorizations from Prior or
Subsequent Injuries, Demand for Income Tax Records, Demand for Lien, Loss Transfer and
Subrogated Interest Information, Demand for Bankruptcy Status, Demand for Statement of
Damages, and Demands for Documents and Other Discovery.
13. Additionally, plaintiff has failed to respond to: (1) SAFEWAY and CON EDISON's
December 2, 2016 request for revised authorizations for White Plains Hospital Center Radiology
Department; (2) SAFEWAY's August 3, 2017 Notice for Discovery and Inspections; (3)
Defendants'
demand for a supplemental Bill of Particulars, including dental bills; and (4)
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SAFBWAY and CON EDISON's April 24, 2018 request for an authorization to obtain records from
Centers for Medicaid and Medicare Services.
14. Further, plaintiff has yet to appear for a Court Orders deposition.
15. In light of the amount of time that has elapsed since the demands were served and
the Court's Orders were entered into, the failure to provide the above described responses can be
described as willful and thus, subject to the penalties outlined in CPLR §3126.
16. Note that the Court's Orders were both consented to. Further, plaintiff never
objected, timely or otherwise, to the above-mentioned demands and her time to do so has expired.
ARGUMENT
17. If a party repeatedly fails to comply with discovery demands, the Court may impose
penalties set forth under CPLR §3126. This section of the CPLR provides that "[i]f any party . ..
refuses to obey an order for disclosure or willfully fails to disclose information which the court
finds ought to have been disclosed pursuant to this article, the court may make such orders with
just,"
regard to the failure or refusal as are to include "an order striking out pleadings or parts
thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part
party."
thereof, or rendering a judgment by default against the disobedient
18. Although dismissing a complaint pursuant to CPLR §3126 is a drastic remedy, it is
warranted when a party's conduct is shown to be willful and contumacious. (Sowerby v. Camarda,
[2nd
20 A.D.3d 411, 798 N.Y.S.2d 125, 126 Dept. 2005]) Willful and contumacious conduct can be
inferred from a party's repeated failure to comply with court orders and/or discovery demands and
inadequate excuses for the failure to comply. (Moog v. City of New York, 30 A.D.3d 490, 491,
[2"d
820 N.Y.S.2d 593, 594 [2 Dept. 2006])
19. In the instant matter, as stated above, plaintiff and co-defendant have repeatedly and
defendants'
inexcusably failed to respond to Court Orders, SAFEWAY and CON EDISON's
discovery demands and good faith attempts to resolve this issue without motion practice, The
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defendants'
extent of the failure to respond to good faith attempts at securing a response to the
outstanding demands, can be interpreted as a willful failure to comply and warrants the dismissal of
plaintiff's case or, at the very least, a conditional Order of Preclusion.
20. In the alternative, if this Court is not inclined to dismiss plaintiff's case or issue a
conditional Order of Preclusion then it is respectfully requested that an Order compelling plaintiff
to respond by a date certain be issued and to appear for a deposition. CPLR §3124 provides that "if
a person fails to respond to or comply with any request, notice, interrogatory, demand, question or
order under this article . . . the party seeking disclosure may move to compel compliance or a
response."
WHEREFORE, for the foregoing reasons, your affirmant respectfully requests that this
defendants'
Court grant motion pursuant to CPLR §3126(3) to dismiss plaintiff's complaint based
defendants' demands,'
upon plaintiff's willful failure to comply with discovery demands; or alternatively
pursuant to CPLR §3126(2) to preclude plaintiff from offering any evidence at the trial of this
defendants'
action based upon plaintiff's willful failure to comply with discovery demands; or
defendants'
alternatively pursuant to CPLR §3124 compelling plaintiff to comply with discovery
demands by a date certain; and for such other and further relief as this Court may deem just and
proper.
Dated: Mineola, New York
July 2, 2018 Yours etc.,
BARTLETT LL ,
JESS A. Mc EkN
Q
Attorneys for D en nts
SAFEWAY CONS UCTION
ENTERPRISES, INC., and
CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC.
Office & P.O. Address
170 Old Country Rd., Suite 400
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NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018
Mineola, NY 11501
Tel.: (516) 877-2900
Fax: (516) 877-0732
Bartlett File No,: 640.0022
TO: ROBERT J. BERKOWITZ & ASSOCS.
Attorneys for Plaintiff
225 Broadway, Ste 1606
New York, New York 10007
ZACHARY W. CARTER, ESQ.
CORPORATION COUNSEL
100 Church Street, Rm 4-313
New York, New York 10007
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Preview
FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------X SANDRA ENGELMAN, Index No.: 151665/14 Plaintiff, AFFIRMATION IN SUPPORT -against- AND OF GOOD FAITH THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and SAFEWAY CONSTRUCTION ENTERPRISES, INC., Defendants. ——---- -----------------------------------------------------X X of' JESSICA A. McGOVERN, an attorney duly admitted to practice law in the State of New York, hereby affirms the following to be true, under penalty of perjury, upon information and belief; 1. I am an attorney associated with the law firm of BARTLETT LLP, attorneys for defendants, CONSOLIDATED EDISON COMPANY OF NEW YORK and SAFEWAY CONSTRUCTION ENTERPRISES, INC., in the above-entitled matter, and as such, I am fully familiar with the facts and circumstances herein by way of review and handling of the file maintained in said office. 2. This affirmation is submitted in support of CONSOLIDATED EDISON COMPANY OF NEW YORK's and SAFEWAY CONSTRUCTION ENTERPRISES, 1NC.'s motion, which seeks an order: a. Pursuant to CPLR §3126(3) dismissing plaintiff's complaint based upon defendants' plaintiff's willful failure to comply with discovery demands; or alternatively; b. Pursuant to CPLR §3126(2) precluding plaintiff from offering any evidence at the trial of this action based upon Plaintiff's willful failure to comply with defendants' discovery demands; or alternatively; defendants' c. Pursuant to CPLR §3124 compelling plaintiff to comply with discovery demands by a date certain; and 1 of 6 FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018 d. For such other and further relief as this Court may deem just and proper. RELEVANT PROCEDURAL HISTORY 3. This is an action for personal injuries brought by plaintiff by way of a Summons and Complaint filed on or about February 25, 2014. A copy of the Summons and Complaint, is annexed hereto as Exhibit "A". 4. Issue was joined by defendant CONSOLIDATED EDISON COMPANY OF NEW EDISON" YORK (hereinafter "CON EDISON") by service of itsAnswer on or about March 25, 2014. A copy of the Answer is annexed hereto as Exhibit "B". 5. With its Answer, defendant, CON EDISON, served various discovery demands on plaintiff and co-defendant. A copy of CON EDISON's Demands is annexed hereto as Exhibit "C". 6. An Amended Complaint was then filed on or about March 8, 2016, naming SAFEWAY CONSTRUCTION ENTERPRISES, INC., as a defendant. A copy of the Amended Complaint is annexed hereto as Exhibit "D". 7. Defendant THE CITY OF NEW YORK filed an Answer to the Arnended Complaint on or about March 10, 2016. Issue was joined by defendant, SAFEWAY CONSTRUCTION ENTERPRISES, INC., (hereinafter "SAFEWAY") by service of itsAnswer on or about March 15, 2016. Defendant CON EDISON filed an Answer to the Amended Complaint on or about March 29, 2016. (See copies of Answers to the Amended Complaint, collectively annexed hereto as Exhibit "E"). 8. With its Answer, defendant, SAFEWAY served various discovery demands on plaintiff and co-defendant. A copy of SAFEWAY's Demands is annexed hereto as Exhibit "F". 9, A Preliminary Conference was held on September 7, 2017, at which time plaintiff and co-defendant CITY OF NEW YORK were directed to provide outstanding discovery, and a deposition schedule was set forth. A copy of the preliminary conference Order is annexed hereto as 2 of 6 FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018 Exhibit "G". At this time, plaintiff has failed to comply with the Preliminary Conference Order, in that paper discovery remains outstanding, and plaintiff has not appeared for a deposition. 10. A Compliance Conference was held on February 1, 2018, which further directed plaintiff and co-defendant CITY OF NEW YORK to provide outstanding discovery, and set forth another deposition schedule. A copy of the Compliance Conference Order is annexed hereto as Exhibit "H". At this time, plaintiff has failed to comply with the Compliance Conference Order in that paper discovery remains outstanding, and plaintiff has not appeared for a deposition. This is the second Order that plaintiff has failed to comply with. 11. Needless to say, for nearly a year and a half, your affirmant's office has made numerous good faith attempts seeking plaintiff's compliance with discovery. No less than twelve letters were sent to plaintiff's counsel in an attempt to obtain all outstanding discovery. Copies of 2016,' good faith letters dated May 25, 2016; July 26, 2016; September 7, 2016; October 26, 2016; 207,' December 2, 2016; February 8, 2017; March 28, 2017; May 22, 2017; August 2, 207; and October 20, 2017, are collectively annexed hereto as Exhibit "I". 12. While plaintiff has provided limited responses to our discovery demands, these responses remain incomplete. In particular, to date, we continue to seek plaintiff's complete response to SAFEWAY's combined demands. Specifically, plaintiff has not responded to SAFEWAY's Demand for Video/Surveillance, Demand for Authorizations from Prior or Subsequent Injuries, Demand for Income Tax Records, Demand for Lien, Loss Transfer and Subrogated Interest Information, Demand for Bankruptcy Status, Demand for Statement of Damages, and Demands for Documents and Other Discovery. 13. Additionally, plaintiff has failed to respond to: (1) SAFEWAY and CON EDISON's December 2, 2016 request for revised authorizations for White Plains Hospital Center Radiology Department; (2) SAFEWAY's August 3, 2017 Notice for Discovery and Inspections; (3) Defendants' demand for a supplemental Bill of Particulars, including dental bills; and (4) 3 of 6 FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018 SAFBWAY and CON EDISON's April 24, 2018 request for an authorization to obtain records from Centers for Medicaid and Medicare Services. 14. Further, plaintiff has yet to appear for a Court Orders deposition. 15. In light of the amount of time that has elapsed since the demands were served and the Court's Orders were entered into, the failure to provide the above described responses can be described as willful and thus, subject to the penalties outlined in CPLR §3126. 16. Note that the Court's Orders were both consented to. Further, plaintiff never objected, timely or otherwise, to the above-mentioned demands and her time to do so has expired. ARGUMENT 17. If a party repeatedly fails to comply with discovery demands, the Court may impose penalties set forth under CPLR §3126. This section of the CPLR provides that "[i]f any party . .. refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with just," regard to the failure or refusal as are to include "an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part party." thereof, or rendering a judgment by default against the disobedient 18. Although dismissing a complaint pursuant to CPLR §3126 is a drastic remedy, it is warranted when a party's conduct is shown to be willful and contumacious. (Sowerby v. Camarda, [2nd 20 A.D.3d 411, 798 N.Y.S.2d 125, 126 Dept. 2005]) Willful and contumacious conduct can be inferred from a party's repeated failure to comply with court orders and/or discovery demands and inadequate excuses for the failure to comply. (Moog v. City of New York, 30 A.D.3d 490, 491, [2"d 820 N.Y.S.2d 593, 594 [2 Dept. 2006]) 19. In the instant matter, as stated above, plaintiff and co-defendant have repeatedly and defendants' inexcusably failed to respond to Court Orders, SAFEWAY and CON EDISON's discovery demands and good faith attempts to resolve this issue without motion practice, The 4 of 6 FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018 defendants' extent of the failure to respond to good faith attempts at securing a response to the outstanding demands, can be interpreted as a willful failure to comply and warrants the dismissal of plaintiff's case or, at the very least, a conditional Order of Preclusion. 20. In the alternative, if this Court is not inclined to dismiss plaintiff's case or issue a conditional Order of Preclusion then it is respectfully requested that an Order compelling plaintiff to respond by a date certain be issued and to appear for a deposition. CPLR §3124 provides that "if a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article . . . the party seeking disclosure may move to compel compliance or a response." WHEREFORE, for the foregoing reasons, your affirmant respectfully requests that this defendants' Court grant motion pursuant to CPLR §3126(3) to dismiss plaintiff's complaint based defendants' demands,' upon plaintiff's willful failure to comply with discovery demands; or alternatively pursuant to CPLR §3126(2) to preclude plaintiff from offering any evidence at the trial of this defendants' action based upon plaintiff's willful failure to comply with discovery demands; or defendants' alternatively pursuant to CPLR §3124 compelling plaintiff to comply with discovery demands by a date certain; and for such other and further relief as this Court may deem just and proper. Dated: Mineola, New York July 2, 2018 Yours etc., BARTLETT LL , JESS A. Mc EkN Q Attorneys for D en nts SAFEWAY CONS UCTION ENTERPRISES, INC., and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. Office & P.O. Address 170 Old Country Rd., Suite 400 5 of 6 FILED: NEW YORK COUNTY CLERK 07/05/2018 04:09 PM INDEX NO. 151665/2014 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/05/2018 Mineola, NY 11501 Tel.: (516) 877-2900 Fax: (516) 877-0732 Bartlett File No,: 640.0022 TO: ROBERT J. BERKOWITZ & ASSOCS. Attorneys for Plaintiff 225 Broadway, Ste 1606 New York, New York 10007 ZACHARY W. CARTER, ESQ. CORPORATION COUNSEL 100 Church Street, Rm 4-313 New York, New York 10007 6 of 6