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(FILED: NEW YORK COUNTY CLERK 0971072015 04:56 PM INDEX NO. 151660/2014 |
NYSCEF DOC. NO. 18 i i RECEIVED NYSCEF 09/10/2015
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK
pene neem e reece eee nenene nnn nenenannnnennenanennmenenmeenenen
AMY YAGER, Index No.: 151660/14
Plaintiff, AFFIRMATION IN SUPPORT
-against-
FUGAZY SPORTS & ENTERTAINMENT, LLC
and MICHAEL CHAPPELL,
Defendants.
mann nent nen enn nennm enna mene K
YOUNGMIN O. CAMPBELL, an attorney duly admitted to practice law before
the Courts of the State of New York, affirms the following is true and correct under the penalties
of perjury:
1 That I am associated with the law firm of MALAPERO & PRISCO LLP,
attorney for defendants, FUGAZY SPORTS & ENTERTAINMENT, LLC and MICHAEL
CHAPPELL, in the above-captioned action and, as such, am fully familiar with the facts and
circumstances of the litigation herein.
2. I make this affirmation in support of the within motion brought by moving
defenants for 1) an Order, pursuant to CPLR §3126(3), striking plaintiffs complaint on the basis of
her failure to obey the Preliminary Court Order dated August 5, 2014, (hereinafter “PC Order”) and
the Compliance Conference Order dated April 28, 2015 (hereinafter “CC Order”); 2) an Order,
pursuant to CPLR §3042(c), precluding plaintiff from testifying as to liability and damages; 3) an
Order pursuant to 22 NYCRR §202.21(e), vacating plaintiff's Note of Issue and Certificate of
Readiness and striking this action from the trial calendar, upon the ground that discovery has not yet
been completed; 4) pursuant to CPLR 3124, compelling plaintiff to provide requisite discovery
items, and comply with the Court’s Orders and moving defendants’ written discovery demands; 5)
-4- (129-100)
an Order extending time for defendants to file a Motion for Summary Judgment until 60 days
after completion of all discovery based on a good cause; and (6) for such other and further relief
as this Court deems just, proper and equitable.
3. The above-captioned action was brought to recover money damages for
alleged personal injury stemming from an incident which occurred on October 13, 2013.
4. This action was commenced with the alleged filing and service of a summons
and complaint, dated February 10, 2014. On or about April 4, 2014, movants duly appeared by
service of a Verified Answer. Copies of the summons, complaint and answer are annexed hereto
as Exhibit “A”.
5. On or about April 4, 2014, plaintiff was served with a Demand for Bill of
Particulars, a Demand for Copies of Plaintiff's Medical Reports, a Notice to Produce, a Notice
for Discovery of Statement of Party, Notice for Discovery and Inspection of Expert Witness
Information and a Notice for Discovery and Inspection of Loss of Income Data, all concerning
the above matter, Attached hereto as Exhibit “B” are copies of the above demands and notices
together with an affidavit of service pursuant thereto.
6. Thereafter, plaintiff served a Verified Bill of Particulars and discovery
responses. A copy of said pleading and discovery responses are annexed hereto as Exhibit “C.”
7. A preliminary conference was held on August 5, 2014 at which time plaintiff
was directed to provide a supplemental bill of particulars as to statutes and regulations
defendants allegedly violated as well as medical authorizations. A copy of the Preliminary
Conference Order is annexed hereto as Exhibit “D.”
8. The respective depositions of plaintiff and defendants are completed. At
plaintiff's deposition, plaintiff testified that an ambulance came to the scene in which she
-5- (129-100)
received a neck brace and was placed on a hard board to be transported to a hospital. A copy of
plaintiff’s deposition transcript is annexed hereto as Exhibit “E.” (pp. 25-26).
9. Plaintiff also testified that she has a professional LinkedIn account as a
principal with the New York City Department of Education. See Exhibit E, pp. 35-36.
Following her testimony, defendants served a post-deposition demand for discovery and
inspection for disclosure of plaintiff's LinkedIn Account. She is not a member of any other
social websites. A copy of defendants’ post-deposition demand dated December 10, 2014 is
annexed hereto as Exhibit “F.”
10, However, plaintiff objected to release of her records from LinkedIn Account.
A copy of plaintiffs response/letter dated January 30, 2015 is annexed hereto as Exhibit “G.”
11. In addition, plaintiff responded that she did not know the identity of the
ambulance call services rendered at the scene, in response to defendants’ demand. A copy of
defendants’ demand dated August 15, 2014 is annexed hereto as Exhibit “H.” A copy of
plaintiff's response dated August 28, 2014 is annexed hereto as Exhibit “I.”
12. A compliance conference was held on April 25, 2015 at which time plaintiff
was directed to supplement the bill of particulars as to statute/regulations violations. A copy of
the Compliance Conference Order is annexed hereto as Exhibit “J.”
13. Without fully complying with the Court’s Orders and defendants’
discovery demands, plaintiff served a Note of Issue and Certificate of Readiness on or about
August 3, 2015. A copy of plaintiffs Note of Issue and Certificate of Readiness is annexed
hereto as Exhibit “K.”
-6- (129-100)
14, Immediately thereafter, August 7, 2015, defendants’ counsel sent a letter
to plaintiff's counsel enumerating outstanding discovery and urged him to provide a response to
same. A copy of the August 7, 2015 letter is annexed hereto as Exhibit “L.”
15. Despite all good faith efforts on behalf of the defendants, including a letter
dated August 7, 2015, outlining outstanding discovery, plaintiffs counsel has willfully and
contumaciously disregarded the Orders of this Court and defendants’ discovery demands.
16. Therefore, plaintiff's filing of Note of Issue and Certificate of Readiness was
totally improper.
ARGUMENT
PLAINTIFF’S COMPLAINT SHOULD BE STRICKEN FOR
REPEATED FAILURE TO COMPLY
WITH THE COURT’S ORDERS,
17. CPLR 3126 provides as follows:
If 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 regard to the failure or refusal as our just, among them
. . . (3) an order striking our pleadings or parts thereof, or staying
further proceedings until the order is obeyed, dismissing the action
or any part thereof, or rendering a judgment by default against the
disobedient party.
18. Although the striking of pleadings or preclusion is a drastic remedy, courts are
justified in ordering the same, where a party’s willful and contumacious behavior is apparent.
See Cano v. BLF Realty Holding Corp., 243 A.D.2d 390, 663 N.Y.S.2d 202 (1st Dept. 1997).
This willful and contumacious behavior can be inferred from plaintiff's “numerous and
unexplained failures to comply with longstanding and still outstanding discovery obligations.”
See Sanchez v. City of New York, 266 A.D.2d 127, 698 N.Y.S.2d 670, 670 (1% Dept. 1999).
~7- (129-100)
19, “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.” (Kihl v. Pfeffer, 94 NY2d
118, 123 [1999]). Further, “[L]itigation cannot be conducted efficiently if deadlines are not
taken seriously, and we make clear again, as we have several times before, that disregard of
deadlines should not and will not be tolerated.” (Gibbs _v. St. Barnabas Hospital, 2010 WL
5105037 [NY 2010]).
20. Here, plaintiff has failed to comply — not only defendants’ discovery
demands and good faith correspondence demanding compliance therewith — but has failed to
adequately respond to the two Orders of this Court, compelling plaintiff to provide a
supplemental bill of particulars regarding statute violations as well as a duly executed
authorization for the ambulance call services. Defendants also established a valid basis for
plaintiff's LinkedIn account.
21. Therefore, plaintiff's counsel has not only shown an unwillingness to
respond to moving defendants’ demands and good faith correspondence, but utter disregard for
this Court’s Orders. It is clear that plaintiff has contumaciously and willfully failed to comply
with this Court’s Orders without a reasonable excuse for noncompliance.
22. Accordingly, this Court should issue an Order striking the complaint of
plaintiff, as a result of her continued defiance of this Court’s authority by deliberately
disregarding the moving defendants’ discovery demands and the Court’s Orders.
23. By failing to provide discovery, to which the defendants are clearly
entitled, their willful and contumacious conduct has thereby prejudiced the moving defendants’
right to a fair trial of the instant action.
-8- (129-100)
2A, In the alternative, it is respectfully requested that this Court issue an Order
precluding plaintiff from testifying at trial and presenting evidence as to liability and damages.
25. If the Court is unwilling to issue an Order striking plaintiffs complaint or
a preclusion Order, defendants respectfully request that the Note of Issue be vacated for
defendants to conduct full discovery and plaintiff be compelled to provide the remaining
discovery.
Il. PLAINTIFF’S NOTE OF ISSUE AND CERTIFICATE OF
READINESS MUST BE VACATED BECAUSE
DISCOVERY IS NOT COMPLETE,
26. Plaintiff's filing of a Note of Issue and Certificate of Readiness was
premature, as there remains outstanding written discovery pursuant to the Court’s Orders, as set
forth above.
27. The Note of Issue must be vacated because this action is not “ready for trial.”
28. §202.21 of the Uniform Rules for the New York State Trial Courts ("Uniform
Rules"), 22 NYCRR §202.21, provides that a Certificate of Readiness must state that all discovery
has been completed, and that the case is ready for trial. Plaintiffs’ Certificate of Readiness misstates
that discovery is complete when it is not. See Exhibit K.
29. §202.21(e) of the Uniform Rules provides:
“Vacating Note of Issue. Within 20 days after service of a
note of issue and certificate of readiness, any party to the
action or special proceeding may move to vacate the note of
issue upon affidavit showing in what respects the case is not
ready for trial and the Court may vacate the note of issue if it
appears that a material fact in the certificate of readiness is
incorrect, or that the certificate of readiness fails to comply
with requirements of this section in some material respect.
However, the 20-day time limitation to make such motion
shall not apply to tax assessment review proceedings. After
such period, except in a tax assessment review proceeding,
no such motion shall be allowed except for good cause
-9- (129-100)
shown. At any time, the Court on its own motion may vacate
a note of issue if it appears that a material fact in the
certificate of readiness is incorrect or that the certificate of
readiness fails to comply with requirements of this section in
some material respect. If a motion to vacate a note of issue is
granted, a copy of the order vacating the note of issue shall be
served upon the clerk of the trial court.” 22: NYCRR
§202.21(e).”
30. Plaintiff's filing of a note of issue is a nullity and should have been vacated since
plaintiff's certificate of readiness contained material misstatement that all pretrial discovery had been
completed when it was not. (Heritage Knitwear, Inc. v. Jonathan Logan, Inc., 115 A.D.2d 389, 496
N.Y.S, 2nd 20 [1st Dept. 1985]).
31. The function of a note of issue and certificate of readiness is to give assurance
that only those cases ready for trial be placed on the trial calendar; hence, all pre-trial procedures
must be completed or waived, §22 NYCRR 202.21. Therefore, if outstanding discovery demands
have not been complied with, a case may not be placed on the trial calendar, and if placed on the trial
calendar must be stricken there from, if outstanding discovery requests have not been complied with.
See, generally, Audiovox v. Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137 [2"™ Dept. 2000)).
32. For the reasons set forth at length herein, movant respectfully requests that the
Note of Issue and Certificate of Readiness be vacated and the within matter stricken from the
Court's trial calendar.
Il. PLAINTIFF MUST BE COMPELLED TO PROVIDE
ALL OUTSTANDING AUTHORIZATIONS.
33. In the event that the Court decides not to remove this action from the trial
calendar, movant requests that an Order be entered pursuant to CPLR 3124, compelling plaintiff
to provide a supplemental bill of particulars on statute violations as well as duly executed
authorizations for the ambulance call report and LinkedIn.
-10- (129-100)
34, Lastly, if the Court does not remove this matter from the trial calendar, it is
respectfully requested that the Court enter an Order pursuant to CPLR §3212(a) extending
moving defendants’ time to file a motion for summary judgment until 60 days after completion of
all discovery.
35. No previous application for the relief herein requested has been made.
WHEREFORE, your affirmant respectfully requests: 1) an Order, pursuant to
CPLR §3126(3), striking plaintiff's complaint on the basis of her failure to obey the Preliminary
Conference Order dated August 5, 2014, and the Compliance Conference Order dated April 28, 2015;
2) an Order, pursuant to CPLR §3042(c), precluding plaintiff from testifying as to liability and
damages; 3) an Order pursuant to 22 NYCRR §202.21(e), vacating plaintiffs Note of Issue and
Certificate of Readiness and striking this action from the trial calendar, upon the ground that
discovery has not yet been completed; 4) pursuant to CPLR 3124, compelling plaintiff to provide
requisite discovery items, and comply with the Court’s Orders and moving defendants’ written
discovery demands; 5) an Order extending time for defendants to file a Motion for Summary
Judgment until 60 days after completion of all discovery based on a good cause; and (6) for such
other and further relief as this Court deems just, proper and equitable. a
Dated: New York, New York
August 28, 2015
YO CAMBPELL
~11- (129-100)
STATEMENT PURSUANT TO 22 N.Y.C.R.R. §130-1.1(a):
The following documents, appended hereto, and listed below, are, to the best of
the signer’s knowledge, information, and belief, after inquiry, certified as not frivolous. If any of
these documents is not the original, an original has been executed to comply with the
requirements.
Answer/Reply
Demand for Interrogatories
Notice for Discovery and inspection of Collateral Sources
Demand for Copies of Plaintiff's Medical Reports and Authorizations
Notice to Produce
Notice Pursuant to CPLR §2103(e)
Notice for Discovery of Statement of Party
Notice to Take Deposition Upon Oral Examination
Notice for Discovery and Inspection of Loss of Income Data
Notice for Discovery and Inspection of Expert Witness Information
Demand for Change of Venue
X__ Good Faith Affirmation
X___ Notice of Motion
X__ Affirmation in Support
Summons and Complaint/Cross-Claim/Counterclaim/Petition
Third-Party Summons and Complaint
Statement under CPLR §3402b)
Notice for Trial/Inquest/Note of Issue
Request for Judicial Intervention
Notice to Admit
Demand for Index Number
Response to Preliminary Conference Order
Demand for Trial De Novo
Other:
Dated: New York, New York
August 28, 2015
Yours etc.,
By: Youngmia O. Campbell
MALAPERO RISCO LLP
Attorneys for Defeni
FUGAZY SPORTS &
ENTERTAINMENT LLC and
MICHAEL CHAPPELL
295 Madison Avenue
New York, New York 10017
(212) 661-7300
-12- (129-100)
Preview
(FILED: NEW YORK COUNTY CLERK 0971072015 04:56 PM INDEX NO. 151660/2014 | NYSCEF DOC. NO. 18 i i RECEIVED NYSCEF 09/10/2015 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK pene neem e reece eee nenene nnn nenenannnnennenanennmenenmeenenen AMY YAGER, Index No.: 151660/14 Plaintiff, AFFIRMATION IN SUPPORT -against- FUGAZY SPORTS & ENTERTAINMENT, LLC and MICHAEL CHAPPELL, Defendants. mann nent nen enn nennm enna mene K YOUNGMIN O. CAMPBELL, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following is true and correct under the penalties of perjury: 1 That I am associated with the law firm of MALAPERO & PRISCO LLP, attorney for defendants, FUGAZY SPORTS & ENTERTAINMENT, LLC and MICHAEL CHAPPELL, in the above-captioned action and, as such, am fully familiar with the facts and circumstances of the litigation herein. 2. I make this affirmation in support of the within motion brought by moving defenants for 1) an Order, pursuant to CPLR §3126(3), striking plaintiffs complaint on the basis of her failure to obey the Preliminary Court Order dated August 5, 2014, (hereinafter “PC Order”) and the Compliance Conference Order dated April 28, 2015 (hereinafter “CC Order”); 2) an Order, pursuant to CPLR §3042(c), precluding plaintiff from testifying as to liability and damages; 3) an Order pursuant to 22 NYCRR §202.21(e), vacating plaintiff's Note of Issue and Certificate of Readiness and striking this action from the trial calendar, upon the ground that discovery has not yet been completed; 4) pursuant to CPLR 3124, compelling plaintiff to provide requisite discovery items, and comply with the Court’s Orders and moving defendants’ written discovery demands; 5) -4- (129-100) an Order extending time for defendants to file a Motion for Summary Judgment until 60 days after completion of all discovery based on a good cause; and (6) for such other and further relief as this Court deems just, proper and equitable. 3. The above-captioned action was brought to recover money damages for alleged personal injury stemming from an incident which occurred on October 13, 2013. 4. This action was commenced with the alleged filing and service of a summons and complaint, dated February 10, 2014. On or about April 4, 2014, movants duly appeared by service of a Verified Answer. Copies of the summons, complaint and answer are annexed hereto as Exhibit “A”. 5. On or about April 4, 2014, plaintiff was served with a Demand for Bill of Particulars, a Demand for Copies of Plaintiff's Medical Reports, a Notice to Produce, a Notice for Discovery of Statement of Party, Notice for Discovery and Inspection of Expert Witness Information and a Notice for Discovery and Inspection of Loss of Income Data, all concerning the above matter, Attached hereto as Exhibit “B” are copies of the above demands and notices together with an affidavit of service pursuant thereto. 6. Thereafter, plaintiff served a Verified Bill of Particulars and discovery responses. A copy of said pleading and discovery responses are annexed hereto as Exhibit “C.” 7. A preliminary conference was held on August 5, 2014 at which time plaintiff was directed to provide a supplemental bill of particulars as to statutes and regulations defendants allegedly violated as well as medical authorizations. A copy of the Preliminary Conference Order is annexed hereto as Exhibit “D.” 8. The respective depositions of plaintiff and defendants are completed. At plaintiff's deposition, plaintiff testified that an ambulance came to the scene in which she -5- (129-100) received a neck brace and was placed on a hard board to be transported to a hospital. A copy of plaintiff’s deposition transcript is annexed hereto as Exhibit “E.” (pp. 25-26). 9. Plaintiff also testified that she has a professional LinkedIn account as a principal with the New York City Department of Education. See Exhibit E, pp. 35-36. Following her testimony, defendants served a post-deposition demand for discovery and inspection for disclosure of plaintiff's LinkedIn Account. She is not a member of any other social websites. A copy of defendants’ post-deposition demand dated December 10, 2014 is annexed hereto as Exhibit “F.” 10, However, plaintiff objected to release of her records from LinkedIn Account. A copy of plaintiffs response/letter dated January 30, 2015 is annexed hereto as Exhibit “G.” 11. In addition, plaintiff responded that she did not know the identity of the ambulance call services rendered at the scene, in response to defendants’ demand. A copy of defendants’ demand dated August 15, 2014 is annexed hereto as Exhibit “H.” A copy of plaintiff's response dated August 28, 2014 is annexed hereto as Exhibit “I.” 12. A compliance conference was held on April 25, 2015 at which time plaintiff was directed to supplement the bill of particulars as to statute/regulations violations. A copy of the Compliance Conference Order is annexed hereto as Exhibit “J.” 13. Without fully complying with the Court’s Orders and defendants’ discovery demands, plaintiff served a Note of Issue and Certificate of Readiness on or about August 3, 2015. A copy of plaintiffs Note of Issue and Certificate of Readiness is annexed hereto as Exhibit “K.” -6- (129-100) 14, Immediately thereafter, August 7, 2015, defendants’ counsel sent a letter to plaintiff's counsel enumerating outstanding discovery and urged him to provide a response to same. A copy of the August 7, 2015 letter is annexed hereto as Exhibit “L.” 15. Despite all good faith efforts on behalf of the defendants, including a letter dated August 7, 2015, outlining outstanding discovery, plaintiffs counsel has willfully and contumaciously disregarded the Orders of this Court and defendants’ discovery demands. 16. Therefore, plaintiff's filing of Note of Issue and Certificate of Readiness was totally improper. ARGUMENT PLAINTIFF’S COMPLAINT SHOULD BE STRICKEN FOR REPEATED FAILURE TO COMPLY WITH THE COURT’S ORDERS, 17. CPLR 3126 provides as follows: If 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 regard to the failure or refusal as our just, among them . . . (3) an order striking our pleadings or parts thereof, or staying further proceedings until the order is obeyed, dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. 18. Although the striking of pleadings or preclusion is a drastic remedy, courts are justified in ordering the same, where a party’s willful and contumacious behavior is apparent. See Cano v. BLF Realty Holding Corp., 243 A.D.2d 390, 663 N.Y.S.2d 202 (1st Dept. 1997). This willful and contumacious behavior can be inferred from plaintiff's “numerous and unexplained failures to comply with longstanding and still outstanding discovery obligations.” See Sanchez v. City of New York, 266 A.D.2d 127, 698 N.Y.S.2d 670, 670 (1% Dept. 1999). ~7- (129-100) 19, “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.” (Kihl v. Pfeffer, 94 NY2d 118, 123 [1999]). Further, “[L]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated.” (Gibbs _v. St. Barnabas Hospital, 2010 WL 5105037 [NY 2010]). 20. Here, plaintiff has failed to comply — not only defendants’ discovery demands and good faith correspondence demanding compliance therewith — but has failed to adequately respond to the two Orders of this Court, compelling plaintiff to provide a supplemental bill of particulars regarding statute violations as well as a duly executed authorization for the ambulance call services. Defendants also established a valid basis for plaintiff's LinkedIn account. 21. Therefore, plaintiff's counsel has not only shown an unwillingness to respond to moving defendants’ demands and good faith correspondence, but utter disregard for this Court’s Orders. It is clear that plaintiff has contumaciously and willfully failed to comply with this Court’s Orders without a reasonable excuse for noncompliance. 22. Accordingly, this Court should issue an Order striking the complaint of plaintiff, as a result of her continued defiance of this Court’s authority by deliberately disregarding the moving defendants’ discovery demands and the Court’s Orders. 23. By failing to provide discovery, to which the defendants are clearly entitled, their willful and contumacious conduct has thereby prejudiced the moving defendants’ right to a fair trial of the instant action. -8- (129-100) 2A, In the alternative, it is respectfully requested that this Court issue an Order precluding plaintiff from testifying at trial and presenting evidence as to liability and damages. 25. If the Court is unwilling to issue an Order striking plaintiffs complaint or a preclusion Order, defendants respectfully request that the Note of Issue be vacated for defendants to conduct full discovery and plaintiff be compelled to provide the remaining discovery. Il. PLAINTIFF’S NOTE OF ISSUE AND CERTIFICATE OF READINESS MUST BE VACATED BECAUSE DISCOVERY IS NOT COMPLETE, 26. Plaintiff's filing of a Note of Issue and Certificate of Readiness was premature, as there remains outstanding written discovery pursuant to the Court’s Orders, as set forth above. 27. The Note of Issue must be vacated because this action is not “ready for trial.” 28. §202.21 of the Uniform Rules for the New York State Trial Courts ("Uniform Rules"), 22 NYCRR §202.21, provides that a Certificate of Readiness must state that all discovery has been completed, and that the case is ready for trial. Plaintiffs’ Certificate of Readiness misstates that discovery is complete when it is not. See Exhibit K. 29. §202.21(e) of the Uniform Rules provides: “Vacating Note of Issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue upon affidavit showing in what respects the case is not ready for trial and the Court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with requirements of this section in some material respect. However, the 20-day time limitation to make such motion shall not apply to tax assessment review proceedings. After such period, except in a tax assessment review proceeding, no such motion shall be allowed except for good cause -9- (129-100) shown. At any time, the Court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect or that the certificate of readiness fails to comply with requirements of this section in some material respect. If a motion to vacate a note of issue is granted, a copy of the order vacating the note of issue shall be served upon the clerk of the trial court.” 22: NYCRR §202.21(e).” 30. Plaintiff's filing of a note of issue is a nullity and should have been vacated since plaintiff's certificate of readiness contained material misstatement that all pretrial discovery had been completed when it was not. (Heritage Knitwear, Inc. v. Jonathan Logan, Inc., 115 A.D.2d 389, 496 N.Y.S, 2nd 20 [1st Dept. 1985]). 31. The function of a note of issue and certificate of readiness is to give assurance that only those cases ready for trial be placed on the trial calendar; hence, all pre-trial procedures must be completed or waived, §22 NYCRR 202.21. Therefore, if outstanding discovery demands have not been complied with, a case may not be placed on the trial calendar, and if placed on the trial calendar must be stricken there from, if outstanding discovery requests have not been complied with. See, generally, Audiovox v. Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137 [2"™ Dept. 2000)). 32. For the reasons set forth at length herein, movant respectfully requests that the Note of Issue and Certificate of Readiness be vacated and the within matter stricken from the Court's trial calendar. Il. PLAINTIFF MUST BE COMPELLED TO PROVIDE ALL OUTSTANDING AUTHORIZATIONS. 33. In the event that the Court decides not to remove this action from the trial calendar, movant requests that an Order be entered pursuant to CPLR 3124, compelling plaintiff to provide a supplemental bill of particulars on statute violations as well as duly executed authorizations for the ambulance call report and LinkedIn. -10- (129-100) 34, Lastly, if the Court does not remove this matter from the trial calendar, it is respectfully requested that the Court enter an Order pursuant to CPLR §3212(a) extending moving defendants’ time to file a motion for summary judgment until 60 days after completion of all discovery. 35. No previous application for the relief herein requested has been made. WHEREFORE, your affirmant respectfully requests: 1) an Order, pursuant to CPLR §3126(3), striking plaintiff's complaint on the basis of her failure to obey the Preliminary Conference Order dated August 5, 2014, and the Compliance Conference Order dated April 28, 2015; 2) an Order, pursuant to CPLR §3042(c), precluding plaintiff from testifying as to liability and damages; 3) an Order pursuant to 22 NYCRR §202.21(e), vacating plaintiffs Note of Issue and Certificate of Readiness and striking this action from the trial calendar, upon the ground that discovery has not yet been completed; 4) pursuant to CPLR 3124, compelling plaintiff to provide requisite discovery items, and comply with the Court’s Orders and moving defendants’ written discovery demands; 5) an Order extending time for defendants to file a Motion for Summary Judgment until 60 days after completion of all discovery based on a good cause; and (6) for such other and further relief as this Court deems just, proper and equitable. a Dated: New York, New York August 28, 2015 YO CAMBPELL ~11- (129-100) STATEMENT PURSUANT TO 22 N.Y.C.R.R. §130-1.1(a): The following documents, appended hereto, and listed below, are, to the best of the signer’s knowledge, information, and belief, after inquiry, certified as not frivolous. If any of these documents is not the original, an original has been executed to comply with the requirements. Answer/Reply Demand for Interrogatories Notice for Discovery and inspection of Collateral Sources Demand for Copies of Plaintiff's Medical Reports and Authorizations Notice to Produce Notice Pursuant to CPLR §2103(e) Notice for Discovery of Statement of Party Notice to Take Deposition Upon Oral Examination Notice for Discovery and Inspection of Loss of Income Data Notice for Discovery and Inspection of Expert Witness Information Demand for Change of Venue X__ Good Faith Affirmation X___ Notice of Motion X__ Affirmation in Support Summons and Complaint/Cross-Claim/Counterclaim/Petition Third-Party Summons and Complaint Statement under CPLR §3402b) Notice for Trial/Inquest/Note of Issue Request for Judicial Intervention Notice to Admit Demand for Index Number Response to Preliminary Conference Order Demand for Trial De Novo Other: Dated: New York, New York August 28, 2015 Yours etc., By: Youngmia O. Campbell MALAPERO RISCO LLP Attorneys for Defeni FUGAZY SPORTS & ENTERTAINMENT LLC and MICHAEL CHAPPELL 295 Madison Avenue New York, New York 10017 (212) 661-7300 -12- (129-100)