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FILED: NEW YORK COUNTY CLERK 04/15/2016 05:31 PM INDEX NO. 151641/2014
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/15/2016
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PLEASE TAKE FURTHER NOTICE, that answering affidavits, if
any, are required to be served upon the undersigned at least
seven (7) days prior to the return date of this motion.
Dated: New York, New York
April 14, 2016
Yours, etc.,
SULLIVAN PAPAIN BLOCK
McGRATH & ~~NAVO P.C.
By: {C\ '(L,/
Eric C. Goldman
Attorneys for Plaintiff
120 Broadway
New York, New York 10271
(212) 732-9000
TO: Donohue Law Firm, P.C.
Attorney for Defendant
NXK CORP. d/b/a AMBU-TRANS AMBULETTE CORP.
50 Broadway, 27th Floor
New York, NY 10004
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------X
ROBIN PATTERSON
Plaintiff, Index No. 151641/14
-against- GOOD FAITH
AFFIRMATION
NXK CORP. d/b/a AMBU-TRANS AMBULETTE
CORP.
Defendant.
--------------------------------------X
STATE OF NEW YORK
ss. :
COUNTY OF NEW YORK
ERIC C. GOLDMAN, an attorney duly admitted to practice law
in the State of New York, affirms the following under the
penalties of perjury:
1. I am an attorney with the firm of Sullivan Papain Block
McGrath & Cannavo P.C., attorneys for the plaintiff herein, and
as such I am fully familiar with the facts and circumstances of
the within action.
2. I submit this affidavit in compliance with the Court's
rules to demonstrate a good faith effort by plaintiff to resolve
these issues without the need for judicial intervention.
3. Your affirmant has attempted several times to
reschedule defendant's deposition and obtain responses to
documentary discovery requests - your affirmant' s phone calls
and letter of February 10, 2016 have been ignored.
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4. Moreover, this matter involves a procedural issue,
which can only be resolved by the Court, this motion is now
necessary.
WHEREFORE, it is respectfully requested that the instant
motion be, in all respects, granted.
Sworn to before me this
14 '" day of Apr' '~
~ .
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------X
ROBIN PATTERSON
Plaintiff, Index No. 151641/14
-against- AFFIRMATION
NXK CORP. d/b/a AMBU-TRANS AMBULETTE
CORP.
Defendant
--------------------------------------X
STATE OF NEW YORK
ss. :
COUNTY OF NEW YORK
ERIC C. GOLDMAN, an attorney duly admitted to practice law
in the State of New York, affirms the following under the
penalties of perjury:
1. I am an attorney with the law firm of SULLIVAN PAPAIN
BLOCK MCGRATH & CANNAVO P.C., attorneys for the plaintiff
herein, and as such, I am fully familiar with the facts and
circumstances of the within action. This affirmation is made
upon information and belief. Your affirmant's source of
knowledge is the file maintained in this office.
2. This Affirmation is submitted in support of the motion
brought by plaintiff which seeks to strike the Answer of
defendant NXK CORP. d/b/a AMBU-TRANS AMBULETTE CORP. for failing
comply with two (2) court orders to appear for defendant's Court
ordered deposition and respond to various discovery demands. The
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orders, dated September 15, 2015 and March 1, 2016, are annexed
hereto as Exhibit "A" and Exhibit "B", respectively. Said Motion
should be granted since defendant has failed to respond to
numerous attempts by plaintiff's attorney's office to reschedule
the defendant's deposition to avoid costly and timely motion
practice.
3. This action arises from an incident that occurred on
October 17, 2013 while plaintiff ROBIN PATTERSON was a passenger
in an ambulette owned by Defendant NXK CORP d/b/a AMBU-TRANS
AMBULETTE. On that date, plaintiff, ROBIN PATTERSON, was being
transported back to her horne from Mount Sinai Hospital following
an unrelated procedure. Ms. Patterson had not been properly
secured in her wheelchair within the ambulette. When the
ambulette made a sudden stop at the intersection of 98 th Street
and Madison Avenue, Ms. Patterson was propelled forward out of
her wheelchair and caused to suffer a fractured ankle.
4. Plaintiff, ROBIN PATTERSON, commenced an action
against defendant NXK CORP d/b/a AMBU-TRANS AMBULETTE with the
filing of a Summons and Verified Complaint in the Supreme Court
of New York County on February 25, 2014. A copy of the Summons
and Verified Complaint is annexed hereto as Exhibit "CU.
5. This office received a Verified Answer on behalf of
defendant NXK CORP d/b/a AMBU-TRANS AMBULETTE on or about June
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11, 2014. A copy of the Verified Answer is annexed hereto as
Exhibit "D".
6. In connection with Plaintiff's pleadings exchange,
Plaintiff served upon Defendant a Demand for a Bill of
Particulars as to Affirmative Defenses and Notice for Discovery
and Inspection each dated July 9, 2014, as well as Combined
Demands dated July 15, 2014 (hereinafter "pleadings demands"). A
copy of Plaintiff's pleadings demands are annexed hereto as
Exhibit "E".
7. The Plaintiff's deposition was conducted on August 19,
2015.
8. A compliance conference was held on September 15, 2015.
Plaintiff and Defendant entered into an Order whereby Defendant
was to be deposed during the week of November 2, 2015. Defendant
was also ordered to respond to Plaintiff's pleadings demands,
which remained outstanding, within 30 days. Defendant was further
ordered to provide several additional items within 30 days,
namely: all dispatcher radio runs, bills, receipts and invoices
from the date of the incident (hereinafter "date of incident
demands"). See Exhibit "A".
9. Following the compliance conference of September 15,
2015, Defendant's office represented to my office's calendar
clerk, Jeneen Weiss, that they would produce Defendant on
November 5, 2015. Ms. Weiss called defendant's office to confirm
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Defendant's deposition on November 4, 2015 and left a voicemail
but the call was never returned.
10. On November 6, 2015, November 11, 2015, November 18,
2015, November 23, 2015, December 10, 2015, January 11, 2016,
January 28, 2016 and February 9, 2016, Ms. Weiss called
defendant's office to re-schedule the deposition. Voicemail
messages were left each time for the Defendant to return our
call to reschedule the depositions. No phone call was ever
received proposing new dates.
11. On February 10, 2016, a letter was sent to defense
counsel asking her to reschedule Defendant's deposition, as well
as provide responses to Plaintiff's pleadings demands and date
of incident demands. A copy of the letter is annexed hereto as
Exhibit "F".
12. A compliance conference was held on March 1, 2016.
Plaintiff and Defendant entered into an Order whereby Defendant
was to be deposed on March 30, 2016. Defendant was once again
ordered to respond to Plaintiff's pleadings demands and date of
incident demands, which were still outstanding. See Exhibit "B".
13. Your affirmant's office called to confirm Defendant's
deposition on March 29, 2016, leaving a voicemail for Defendant.
No phone call was ever received confirming Defendant's
deposition.
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14. On March 30, 2016, Defendant failed to appear for
deposition. Your affirmant made a record detailing Defendant's
prolonged noncompliance and stating an intention to file the
instant motion. The transcript is annexed hereto as "Exhibit
"Gil.
15. This action has been seriously delayed because of
Defendant's willful neglect to schedule and go forward with
Defendant's deposition, as well as provide responses to long
outstanding documentary discovery demands. Plaintiff has and
continues to remain ready, willing and able to go forward with
Defendant's deposition. Your affirmant requests that the
Defendant's Answer be stricken. Plaintiff has been attempting to
schedule Defendant's deposition for eight (8 ) months and
defendants have refused to comply with two (2) Court orders to
do so. At this point, it is clear that the Defendant is not
willing to schedule its deposition and comply with Plaintiff's
demands, and are clearly choosing to ignore this Court's orders.
As such, their Answers must be stricken.
16. CPLR §3126 provides in pertinent part:
If any party...agent of a party or otherwise under a
party's control, 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 make such orders with
regard to the failure or refusal as are just,
among them: an order striking out pleadings or
parts thereof ....
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17. Failure to strike Defendant's Answer at this juncture
would serve only to encourage Defendant to ignore Court
directives - regardless of the Court's Order or the CPLR. Such
behavior should not be countenanced.
18. No prior application for the requested relief has been
made to this Court or to any other Court.
WHEREFORE, plaintiffs' respectfully request that this Court
grant the relief requested herein and such other and further
relief as this Court deems just and proper.
ERIC C. GOLDMAN
Sworn to before me
14 th day of April,
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK
SS. :
COUNTY OF NEW YORK
Mythili Mandadi, being duly sworn, deposes and says:
I am not a party to this action. I am over 18 years of age. I
have a business address at 120 Broadway, New York, New York,
10271.
On the 15 th day of April 2016, I served the within
NOTICE OF MOTION
upon the following attorney(s) for the parties in this action, at
the address designated by said attorney (s) for that purpose, by
depositing a true copy of same enclosed in a postpaid, properly
addressed wrapper in an official depository under the exclusive
care and custody of the United States Postal Service within the
State of New York:
Donohue Law Firm, P.C.
50 Broadway, 27th Floor
New York, NY 10004
Mythili Mandadi
Sworn to before me this
15 th day of April 2016
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FILED: NEW YORK COUNTY CLERK 04/15/2016 05:31 PM INDEX NO. 151641/2014 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/15/2016 1 of 11 PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, are required to be served upon the undersigned at least seven (7) days prior to the return date of this motion. Dated: New York, New York April 14, 2016 Yours, etc., SULLIVAN PAPAIN BLOCK McGRATH & ~~NAVO P.C. By: {C\ '(L,/ Eric C. Goldman Attorneys for Plaintiff 120 Broadway New York, New York 10271 (212) 732-9000 TO: Donohue Law Firm, P.C. Attorney for Defendant NXK CORP. d/b/a AMBU-TRANS AMBULETTE CORP. 50 Broadway, 27th Floor New York, NY 10004 2 2 of 11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------X ROBIN PATTERSON Plaintiff, Index No. 151641/14 -against- GOOD FAITH AFFIRMATION NXK CORP. d/b/a AMBU-TRANS AMBULETTE CORP. Defendant. --------------------------------------X STATE OF NEW YORK ss. : COUNTY OF NEW YORK ERIC C. GOLDMAN, an attorney duly admitted to practice law in the State of New York, affirms the following under the penalties of perjury: 1. I am an attorney with the firm of Sullivan Papain Block McGrath & Cannavo P.C., attorneys for the plaintiff herein, and as such I am fully familiar with the facts and circumstances of the within action. 2. I submit this affidavit in compliance with the Court's rules to demonstrate a good faith effort by plaintiff to resolve these issues without the need for judicial intervention. 3. Your affirmant has attempted several times to reschedule defendant's deposition and obtain responses to documentary discovery requests - your affirmant' s phone calls and letter of February 10, 2016 have been ignored. 3 3 of 11 4. Moreover, this matter involves a procedural issue, which can only be resolved by the Court, this motion is now necessary. WHEREFORE, it is respectfully requested that the instant motion be, in all respects, granted. Sworn to before me this 14 '" day of Apr' '~ ~ . 4 4 of 11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------X ROBIN PATTERSON Plaintiff, Index No. 151641/14 -against- AFFIRMATION NXK CORP. d/b/a AMBU-TRANS AMBULETTE CORP. Defendant --------------------------------------X STATE OF NEW YORK ss. : COUNTY OF NEW YORK ERIC C. GOLDMAN, an attorney duly admitted to practice law in the State of New York, affirms the following under the penalties of perjury: 1. I am an attorney with the law firm of SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C., attorneys for the plaintiff herein, and as such, I am fully familiar with the facts and circumstances of the within action. This affirmation is made upon information and belief. Your affirmant's source of knowledge is the file maintained in this office. 2. This Affirmation is submitted in support of the motion brought by plaintiff which seeks to strike the Answer of defendant NXK CORP. d/b/a AMBU-TRANS AMBULETTE CORP. for failing comply with two (2) court orders to appear for defendant's Court ordered deposition and respond to various discovery demands. The 5 5 of 11 orders, dated September 15, 2015 and March 1, 2016, are annexed hereto as Exhibit "A" and Exhibit "B", respectively. Said Motion should be granted since defendant has failed to respond to numerous attempts by plaintiff's attorney's office to reschedule the defendant's deposition to avoid costly and timely motion practice. 3. This action arises from an incident that occurred on October 17, 2013 while plaintiff ROBIN PATTERSON was a passenger in an ambulette owned by Defendant NXK CORP d/b/a AMBU-TRANS AMBULETTE. On that date, plaintiff, ROBIN PATTERSON, was being transported back to her horne from Mount Sinai Hospital following an unrelated procedure. Ms. Patterson had not been properly secured in her wheelchair within the ambulette. When the ambulette made a sudden stop at the intersection of 98 th Street and Madison Avenue, Ms. Patterson was propelled forward out of her wheelchair and caused to suffer a fractured ankle. 4. Plaintiff, ROBIN PATTERSON, commenced an action against defendant NXK CORP d/b/a AMBU-TRANS AMBULETTE with the filing of a Summons and Verified Complaint in the Supreme Court of New York County on February 25, 2014. A copy of the Summons and Verified Complaint is annexed hereto as Exhibit "CU. 5. This office received a Verified Answer on behalf of defendant NXK CORP d/b/a AMBU-TRANS AMBULETTE on or about June 6 6 of 11 11, 2014. A copy of the Verified Answer is annexed hereto as Exhibit "D". 6. In connection with Plaintiff's pleadings exchange, Plaintiff served upon Defendant a Demand for a Bill of Particulars as to Affirmative Defenses and Notice for Discovery and Inspection each dated July 9, 2014, as well as Combined Demands dated July 15, 2014 (hereinafter "pleadings demands"). A copy of Plaintiff's pleadings demands are annexed hereto as Exhibit "E". 7. The Plaintiff's deposition was conducted on August 19, 2015. 8. A compliance conference was held on September 15, 2015. Plaintiff and Defendant entered into an Order whereby Defendant was to be deposed during the week of November 2, 2015. Defendant was also ordered to respond to Plaintiff's pleadings demands, which remained outstanding, within 30 days. Defendant was further ordered to provide several additional items within 30 days, namely: all dispatcher radio runs, bills, receipts and invoices from the date of the incident (hereinafter "date of incident demands"). See Exhibit "A". 9. Following the compliance conference of September 15, 2015, Defendant's office represented to my office's calendar clerk, Jeneen Weiss, that they would produce Defendant on November 5, 2015. Ms. Weiss called defendant's office to confirm 7 7 of 11 Defendant's deposition on November 4, 2015 and left a voicemail but the call was never returned. 10. On November 6, 2015, November 11, 2015, November 18, 2015, November 23, 2015, December 10, 2015, January 11, 2016, January 28, 2016 and February 9, 2016, Ms. Weiss called defendant's office to re-schedule the deposition. Voicemail messages were left each time for the Defendant to return our call to reschedule the depositions. No phone call was ever received proposing new dates. 11. On February 10, 2016, a letter was sent to defense counsel asking her to reschedule Defendant's deposition, as well as provide responses to Plaintiff's pleadings demands and date of incident demands. A copy of the letter is annexed hereto as Exhibit "F". 12. A compliance conference was held on March 1, 2016. Plaintiff and Defendant entered into an Order whereby Defendant was to be deposed on March 30, 2016. Defendant was once again ordered to respond to Plaintiff's pleadings demands and date of incident demands, which were still outstanding. See Exhibit "B". 13. Your affirmant's office called to confirm Defendant's deposition on March 29, 2016, leaving a voicemail for Defendant. No phone call was ever received confirming Defendant's deposition. 8 8 of 11 14. On March 30, 2016, Defendant failed to appear for deposition. Your affirmant made a record detailing Defendant's prolonged noncompliance and stating an intention to file the instant motion. The transcript is annexed hereto as "Exhibit "Gil. 15. This action has been seriously delayed because of Defendant's willful neglect to schedule and go forward with Defendant's deposition, as well as provide responses to long outstanding documentary discovery demands. Plaintiff has and continues to remain ready, willing and able to go forward with Defendant's deposition. Your affirmant requests that the Defendant's Answer be stricken. Plaintiff has been attempting to schedule Defendant's deposition for eight (8 ) months and defendants have refused to comply with two (2) Court orders to do so. At this point, it is clear that the Defendant is not willing to schedule its deposition and comply with Plaintiff's demands, and are clearly choosing to ignore this Court's orders. As such, their Answers must be stricken. 16. CPLR §3126 provides in pertinent part: If any party...agent of a party or otherwise under a party's control, 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 make such orders with regard to the failure or refusal as are just, among them: an order striking out pleadings or parts thereof .... 9 9 of 11 17. Failure to strike Defendant's Answer at this juncture would serve only to encourage Defendant to ignore Court directives - regardless of the Court's Order or the CPLR. Such behavior should not be countenanced. 18. No prior application for the requested relief has been made to this Court or to any other Court. WHEREFORE, plaintiffs' respectfully request that this Court grant the relief requested herein and such other and further relief as this Court deems just and proper. ERIC C. GOLDMAN Sworn to before me 14 th day of April, 10 10 of 11 AFFIDAVIT OF SERVICE STATE OF NEW YORK SS. : COUNTY OF NEW YORK Mythili Mandadi, being duly sworn, deposes and says: I am not a party to this action. I am over 18 years of age. I have a business address at 120 Broadway, New York, New York, 10271. On the 15 th day of April 2016, I served the within NOTICE OF MOTION upon the following attorney(s) for the parties in this action, at the address designated by said attorney (s) for that purpose, by depositing a true copy of same enclosed in a postpaid, properly addressed wrapper in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York: Donohue Law Firm, P.C. 50 Broadway, 27th Floor New York, NY 10004 Mythili Mandadi Sworn to before me this 15 th day of April 2016 11 of 11