On February 25, 2014 a
Motion-Secondary
was filed
involving a dispute between
Robin Patterson,
and
Nxk Corp. D B A Ambu-Trans Ambulette Corp.,
for Tort
in the District Court of New York County.
Preview
INDEX NO. 151641/2014
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/14/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------
ROBIN PATTERSON
Plaintiff, Index No. 151641/14
-against- AFFIRMATION
IN OPPOSITION TO THE
NXK CORP. d/b/a AMBU-TRANS AMBULETTE MOTION TO REARGUE
CORP.
Defendant
--------------------------------------
ERIC GOLDMAN, an attorney duly admitted to practice law
before the Courts of the State of New York, hereby affirms the
following, upon information and belief, under the penalty of
perjury:
1 I am associated with the firm of SULLIVAN PAPAIN BLOCK
MCGRATH & CANNAVO P.C., attorneys for Plaintiff ROBIN PATTERSON,
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 opposition to
Defendant’s motion pursuant to CPLR § 2221(d) (2) seeking leave
to reargue, and upon reargument, to vacate this Court’s October
18, 2016 Order, annexed hereto as Exhibit “AN, and for such
other and further relief as this Court deems just, proper and
equitable.
lof 4
3 In addition to the instant Affirmation in Opposition,
and in the interests of brevity, plaintiff would further
incorporate by reference her most recent motion to strike
Defendant’s Answer, dated August 23, 2016, which is annexed
hereto as Exhibit “BY”.
4 Defendant’s motion to reargue the motion for summary
judgment must be denied in its entirety because:
(a) Defendant has neither presented a
misunderstanding of the facts, nor a
misapplication of the law;
(b) Defendant’s motion is a carbon copy of its
opposition to Plaintiff's underlying motion to
strike;
(c) The Court properly granted Plaintiff's underlying
motion to strike based on Defendant’s protracted
noncompliance;
Defendant has neither presented a misunderstanding of the facts,
nor a misapplication of the law, and thus,
this motion must be denied
5 CPLR § 2221(d) (2) requires that a motion for leave to
reargue “shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the
prior motion, but shall not include any matters of fact not
offered on the prior motion.”
6 The Appellate Division has declared that:
A motion for reargument is
addressed to the sound discretion
of the court and may be granted
upon a showing that the court
2 0f 4
overlooked or misapprehended the
relevant facts or misapplied any
controlling principles of law. rt
is not designed to provide an
unsuccessful party with successive
opportunities to reargue issues
previously decided, or to present
arguments different from those
originally presented.
McGill v. Goldman, 261 A.D. 2d 593, 594 N.Y.S. 2d 75 (2d
Dept. 1999). [Emphasis Added]
7 Defendant’s motion cites caselaw to this effect, but
does not apply the law to the circumstances of this case. In
fact, Defendant’s motion does not even address the fact that it
still has not produced a witness for deposition. Defendant's
utter noncompliance in this respect is well documented. See
Exhibit “BY! Defendant’s instant motion only serves to apprise
the court that this baffling pattern continues. Additionally,
the lone shred of documentary evidence turned over by Defendant
- a mysterious, handwritten accident report ostensibly created
long after the incident = is not an adequate response to
Plaintiff's various pleadings demands. Annexed hereto as Exhibit
non.
8 In failing to identify any misapprehended facts or
misapplied law, defendant's motion fails on its face. See
Mazinov v. Rella, 79 A.D.3D 979 (2d Dept. 2010).
3 0f 4
The Court properly granted Plaintiff’s underlying motion to
strike based on Defendant's protracted noncompliance
9 In recognition of Defendant's flagrant, years-long
failure to comply with discovery in even the most basic manner,
repeated disregard of Court orders, and in view of Plaintiff's
two (2) prior motions to strike, the Court properly issued an
order on October 18, 2016: dismissing Defendant’s Answer and
setting the case down for Inquest on damages on January 18, 2017.
10. Defendant has not presented a misunderstanding of the
facts, nor a misapplication of the law sufficient to disturb the
Court’s Order.
WHEREFORE, it is respectfully requested that the instant
application be denied in all respects, and for such other and
further relief this Court may deem just and proper.
eC) |
ERIC C. GOLDMAN
Sworn to before me this
14th day of December, 2016
nN) LOLMO
NOTARY PUBLIC
DYLENE SCHIFANDO
Commissioner Of Deeds
No 5-1402
Certificate Filed in New York
‘Commission Exp. dune 19,
aT
4 of 4
Document Filed Date
December 14, 2016
Case Filing Date
February 25, 2014
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INDEX NO. 151641/2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------- ROBIN PATTERSON Plaintiff, Index No. 151641/14 -against- AFFIRMATION IN OPPOSITION TO THE NXK CORP. d/b/a AMBU-TRANS AMBULETTE MOTION TO REARGUE CORP. Defendant -------------------------------------- ERIC GOLDMAN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following, upon information and belief, under the penalty of perjury: 1 I am associated with the firm of SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C., attorneys for Plaintiff ROBIN PATTERSON, 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 opposition to Defendant’s motion pursuant to CPLR § 2221(d) (2) seeking leave to reargue, and upon reargument, to vacate this Court’s October 18, 2016 Order, annexed hereto as Exhibit “AN, and for such other and further relief as this Court deems just, proper and equitable. lof 4 3 In addition to the instant Affirmation in Opposition, and in the interests of brevity, plaintiff would further incorporate by reference her most recent motion to strike Defendant’s Answer, dated August 23, 2016, which is annexed hereto as Exhibit “BY”. 4 Defendant’s motion to reargue the motion for summary judgment must be denied in its entirety because: (a) Defendant has neither presented a misunderstanding of the facts, nor a misapplication of the law; (b) Defendant’s motion is a carbon copy of its opposition to Plaintiff's underlying motion to strike; (c) The Court properly granted Plaintiff's underlying motion to strike based on Defendant’s protracted noncompliance; Defendant has neither presented a misunderstanding of the facts, nor a misapplication of the law, and thus, this motion must be denied 5 CPLR § 2221(d) (2) requires that a motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” 6 The Appellate Division has declared that: A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court 2 0f 4 overlooked or misapprehended the relevant facts or misapplied any controlling principles of law. rt is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented. McGill v. Goldman, 261 A.D. 2d 593, 594 N.Y.S. 2d 75 (2d Dept. 1999). [Emphasis Added] 7 Defendant’s motion cites caselaw to this effect, but does not apply the law to the circumstances of this case. In fact, Defendant’s motion does not even address the fact that it still has not produced a witness for deposition. Defendant's utter noncompliance in this respect is well documented. See Exhibit “BY! Defendant’s instant motion only serves to apprise the court that this baffling pattern continues. Additionally, the lone shred of documentary evidence turned over by Defendant - a mysterious, handwritten accident report ostensibly created long after the incident = is not an adequate response to Plaintiff's various pleadings demands. Annexed hereto as Exhibit non. 8 In failing to identify any misapprehended facts or misapplied law, defendant's motion fails on its face. See Mazinov v. Rella, 79 A.D.3D 979 (2d Dept. 2010). 3 0f 4 The Court properly granted Plaintiff’s underlying motion to strike based on Defendant's protracted noncompliance 9 In recognition of Defendant's flagrant, years-long failure to comply with discovery in even the most basic manner, repeated disregard of Court orders, and in view of Plaintiff's two (2) prior motions to strike, the Court properly issued an order on October 18, 2016: dismissing Defendant’s Answer and setting the case down for Inquest on damages on January 18, 2017. 10. Defendant has not presented a misunderstanding of the facts, nor a misapplication of the law sufficient to disturb the Court’s Order. WHEREFORE, it is respectfully requested that the instant application be denied in all respects, and for such other and further relief this Court may deem just and proper. eC) | ERIC C. GOLDMAN Sworn to before me this 14th day of December, 2016 nN) LOLMO NOTARY PUBLIC DYLENE SCHIFANDO Commissioner Of Deeds No 5-1402 Certificate Filed in New York ‘Commission Exp. dune 19, aT 4 of 4