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FILED: NEW YORK COUNTY CLERK 08/10/2015 09:51 AM INDEX NO. 151317/2014
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/10/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JUAN RAMIREZ,
AFFIRMATION
Plaintiff(s)
IN OPPOSITION
- against -
Hon. Justice:
NELSON SANTIAGO,
Index #: 151317/14
Defendant(s)
David M. Jable, Esq., an attorney duly admitted to practice law within the Courts
of the State of New York, hereby affirms the following under penalties of perjury:
1. That I am associated with KAY & GRAY, attorneys for the defendant,
Nelson Santiago, and as such, am fully familiar with all prior pleadings and
proceedings in this action.
2. That I submit this Affirmation in Opposition to Plaintiff’s Motion to Strike
Defendant’s Answer for failure to appear for an examination before trial.
3. This is an action for personal injuries allegedly sustained by plaintiff in a
Monday, September 23, 2013 motor vehicle accident.
4. A party moving to strike a pleading pursuant to CPLR 3126 must make "a
clear showing that the failure to comply is willful, contumacious or in bad
faith (Palmenta v. Columbia Univ., 266 A.D.2d 90, 91, 698 N.Y.S.2d 657
[1999] ).” Reidel v Ryder TRS, Inc. 13 A.D. 170, 171, 786 N.Y.S.2d 487,
488 (1 Dept.2004)
5. The Court in Reidel found such a clear showing by the plaintiff:
“Here, the disobeying of three successive court orders by Finnegan
and Zoccolo, directing them to appear for depositions "constituted
precisely the sort of dilatory and obstructive, and thus contumacious,
conduct warranting the striking of their answers”
Reidel, supra, at 171, 786 N.Y.S.2d 487 at 488 (emphasis added)
6. Similarly, it was only when defendant “repeatedly and willfully failed to
comply with court ordered discovery” that the Court in Wong v Kim 17
A.d.3d 128, 129, 792 N.Y.S.2d 435 at 436 (1st Dept 2005) (emphasis
added) affirmed the lower court’s conditional order striking defendant’s
answer for not appearing at a deposition. Indeed, the Court in Kim
referenced a prior compliance “order” that preceded the conditional
“order” striking the answer. Presumably, there was a preliminary
conference order as well, so that the conditional order was at least the third
court order that defendant had violated.
7. By comparison, there has been only one “court-ordered” deposition date in
this matter which was set forth in this court’s “case scheduling order.” The
failure to appear for that date does not constitute the “dilatory and
obstructive” conduct required in Reidel. Plaintiff must first establish
contumacious behavior for the burden to shift to the defendant to provide a
“reasonable excuse” for not appearing. Reidel, supra, at 171, 488.
8. Absent the violation of multiple “court orders,” as set forth in Reidel and
Wong, the plaintiff has not made the requisite showing to justify shifting
the burden to provide a reasonable excuse much less to justify striking an
answer.
9. In the instant matter there have been three discovery “stipulations,”
however none of these “stipulations” contained any such “conditional
preclusion” or “preclusion” language.
10. Yet, striking the answer of the non-appearing driver may prevent the
owner from defending the action. The owner could be held vicariously
liable for the negligence of the driver, who has now been found
responsible for the accident. Thus, the defendant owner cannot defend on
the merits even though “actions should be resolved on the merits
whenever possible (see Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213,
735 N.Y.S.2d 520 [2002] )” Reidel, supra, at 171, 487.
11. It is fundamentally unfair that the owner, already vicariously responsible
for the driver’s conduct as a driver is also now being held vicariously
responsible for the driver’s conduct as a defendant.
12. In addition, good faith efforts were made to locate and obtain the
cooperation of Nelson Santiago. These good faith efforts consisted of
hiring an investigator to locate Mr. Santiago. In fact my investigator did
locate Mr. Santiago and advised me of this on August 3, 2015. At which
time I immediately contacted plaintiff’s counsel on August 3, 2015 and
inquired as to when he could depose my client. Plaintiff’s counsel replied
he would only depose my client on August 7, 2015 during the morning
hours. Needless to say, unfortunately this was unable to be coordinated
and the deposition did not occur.
13. Further, I had again contacted plaintiff’s counsel asking for the courtesy of
a very brief adjournment of his motion so we could produce Mr. Santiago
for a deposition at a mutually convenient date. This is the first time this
motion is on the court’s calendar and I was requesting a mere three week
adjournment in an effort to resolve the issue presented in this motion.
Plaintiff’s counsel refused to give any professional courtesy and refused
my request for a very brief adjournment.
14. Plaintiff’s failure to extend any professional courtesy and refusal to agree
to depose Mr. Santiago at any time other than August 7, 2015 during the
morning hours is both unreasonable and unfair which merits the denial of
this motion.
15. It has long been the law in this Department that conditional preclusion is
the proper remedy for a defendant’s failure to appear at a deposition. In
Heywood v Benyarko 82 A.D.2d 751, 440 N.Y.S.2d 21 (1st Dept. 1981)
the Court concluded that: “In the circumstances, we do not think that the
real party in interest (presumably the insurance company) should be
precluded from defending the action if the client cannot be located.”
Rather, the Court held that the appropriate sanction was preclusion unless
defendant appeared for a deposition.
16. Even then, the preclusion is limited to offering testimony. Thus, when the
defendant failed to produce a witness for deposition the court order
precluding from offering any evidence at trial was deemed “ excessive to
the extent it prevented University Inc. from offering any kind of evidence
besides testimony” Healy v ARP Cable, Inc 299 A.D.2d 152, 154, 753
N.Y.S.2d 38, 40 (1st Dept. 2002)
17. Thus, plaintiff’s motion to strike defendant’s answer was “properly denied
with a direction precluding the individual defendant from testifying at trial
unless she appears for a deposition at least 60 days before trial”
Campbell v Peele 289 A.D.2d 141, 142, 734 N.Y.S.2d 449 (1st Dept 2001)
18. Striking the defendant’s answer pursuant to CPLR 3126 may actually be
detrimental to both the plaintiff and the defendant. That is, a court finding
that the defendant’s conduct was “willful and contumacious” could easily
be the predicate for a carrier to disclaim coverage. This would leave the
defendant without insurance protection and potentially leave the plaintiff
without a financially responsible source from whom to obtain
compensation.
WHEREFORE, it is respectfully requested that plaintiffs’ motion be denied or
alternatively that the relief be limited to precluding the defendant from testifying
at trial if defendant does not appear for a deposition at least 60 days before trial,
and for such other and further relief as this Court deems just
Dated: Westbury, New York
August 10, 2015
______________________________
David M. Jable, Esq.
KAY & GRAY
14R0575
To:
Philip S. Abate, Esq. P.C.
Attorneys for Plaintiff(s)
111 John Street, Suite 1050
New York, NY 10038
212-267-3738
Index No. 151317/14
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JUAN RAMIREZ,
Plaintiff(s)
- against - AFFIRMATION IN OPPOSITION
NELSON SANTIAGO,
Defendant(s)
---------------------------------------------------------------------------------------------------------
KAY & GRAY
Attorneys for the Defendant(s)
Nelson Santiago
875 Merrick Avenue
Westbury, NY 11590
516-229-4427
---------------------------------------------------------------------------------------------------------
TO:
Philip S. Abate, Esq. P.C.
Attorneys for Plaintiff(s)
111 John Street, Suite 1050
New York, NY 10038
212-267-3738
---------------------------------------------------------------------------------------------------------
Due and timely service of a copy of the within ___________________ is hereby
admitted.
Dated August 10, 2015
Attorney(s) for
------------------------------------------------------------------------------------------------------------
Preview
FILED: NEW YORK COUNTY CLERK 08/10/2015 09:51 AM INDEX NO. 151317/2014 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/10/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JUAN RAMIREZ, AFFIRMATION Plaintiff(s) IN OPPOSITION - against - Hon. Justice: NELSON SANTIAGO, Index #: 151317/14 Defendant(s) David M. Jable, Esq., an attorney duly admitted to practice law within the Courts of the State of New York, hereby affirms the following under penalties of perjury: 1. That I am associated with KAY & GRAY, attorneys for the defendant, Nelson Santiago, and as such, am fully familiar with all prior pleadings and proceedings in this action. 2. That I submit this Affirmation in Opposition to Plaintiff’s Motion to Strike Defendant’s Answer for failure to appear for an examination before trial. 3. This is an action for personal injuries allegedly sustained by plaintiff in a Monday, September 23, 2013 motor vehicle accident. 4. A party moving to strike a pleading pursuant to CPLR 3126 must make "a clear showing that the failure to comply is willful, contumacious or in bad faith (Palmenta v. Columbia Univ., 266 A.D.2d 90, 91, 698 N.Y.S.2d 657 [1999] ).” Reidel v Ryder TRS, Inc. 13 A.D. 170, 171, 786 N.Y.S.2d 487, 488 (1 Dept.2004) 5. The Court in Reidel found such a clear showing by the plaintiff: “Here, the disobeying of three successive court orders by Finnegan and Zoccolo, directing them to appear for depositions "constituted precisely the sort of dilatory and obstructive, and thus contumacious, conduct warranting the striking of their answers” Reidel, supra, at 171, 786 N.Y.S.2d 487 at 488 (emphasis added) 6. Similarly, it was only when defendant “repeatedly and willfully failed to comply with court ordered discovery” that the Court in Wong v Kim 17 A.d.3d 128, 129, 792 N.Y.S.2d 435 at 436 (1st Dept 2005) (emphasis added) affirmed the lower court’s conditional order striking defendant’s answer for not appearing at a deposition. Indeed, the Court in Kim referenced a prior compliance “order” that preceded the conditional “order” striking the answer. Presumably, there was a preliminary conference order as well, so that the conditional order was at least the third court order that defendant had violated. 7. By comparison, there has been only one “court-ordered” deposition date in this matter which was set forth in this court’s “case scheduling order.” The failure to appear for that date does not constitute the “dilatory and obstructive” conduct required in Reidel. Plaintiff must first establish contumacious behavior for the burden to shift to the defendant to provide a “reasonable excuse” for not appearing. Reidel, supra, at 171, 488. 8. Absent the violation of multiple “court orders,” as set forth in Reidel and Wong, the plaintiff has not made the requisite showing to justify shifting the burden to provide a reasonable excuse much less to justify striking an answer. 9. In the instant matter there have been three discovery “stipulations,” however none of these “stipulations” contained any such “conditional preclusion” or “preclusion” language. 10. Yet, striking the answer of the non-appearing driver may prevent the owner from defending the action. The owner could be held vicariously liable for the negligence of the driver, who has now been found responsible for the accident. Thus, the defendant owner cannot defend on the merits even though “actions should be resolved on the merits whenever possible (see Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 735 N.Y.S.2d 520 [2002] )” Reidel, supra, at 171, 487. 11. It is fundamentally unfair that the owner, already vicariously responsible for the driver’s conduct as a driver is also now being held vicariously responsible for the driver’s conduct as a defendant. 12. In addition, good faith efforts were made to locate and obtain the cooperation of Nelson Santiago. These good faith efforts consisted of hiring an investigator to locate Mr. Santiago. In fact my investigator did locate Mr. Santiago and advised me of this on August 3, 2015. At which time I immediately contacted plaintiff’s counsel on August 3, 2015 and inquired as to when he could depose my client. Plaintiff’s counsel replied he would only depose my client on August 7, 2015 during the morning hours. Needless to say, unfortunately this was unable to be coordinated and the deposition did not occur. 13. Further, I had again contacted plaintiff’s counsel asking for the courtesy of a very brief adjournment of his motion so we could produce Mr. Santiago for a deposition at a mutually convenient date. This is the first time this motion is on the court’s calendar and I was requesting a mere three week adjournment in an effort to resolve the issue presented in this motion. Plaintiff’s counsel refused to give any professional courtesy and refused my request for a very brief adjournment. 14. Plaintiff’s failure to extend any professional courtesy and refusal to agree to depose Mr. Santiago at any time other than August 7, 2015 during the morning hours is both unreasonable and unfair which merits the denial of this motion. 15. It has long been the law in this Department that conditional preclusion is the proper remedy for a defendant’s failure to appear at a deposition. In Heywood v Benyarko 82 A.D.2d 751, 440 N.Y.S.2d 21 (1st Dept. 1981) the Court concluded that: “In the circumstances, we do not think that the real party in interest (presumably the insurance company) should be precluded from defending the action if the client cannot be located.” Rather, the Court held that the appropriate sanction was preclusion unless defendant appeared for a deposition. 16. Even then, the preclusion is limited to offering testimony. Thus, when the defendant failed to produce a witness for deposition the court order precluding from offering any evidence at trial was deemed “ excessive to the extent it prevented University Inc. from offering any kind of evidence besides testimony” Healy v ARP Cable, Inc 299 A.D.2d 152, 154, 753 N.Y.S.2d 38, 40 (1st Dept. 2002) 17. Thus, plaintiff’s motion to strike defendant’s answer was “properly denied with a direction precluding the individual defendant from testifying at trial unless she appears for a deposition at least 60 days before trial” Campbell v Peele 289 A.D.2d 141, 142, 734 N.Y.S.2d 449 (1st Dept 2001) 18. Striking the defendant’s answer pursuant to CPLR 3126 may actually be detrimental to both the plaintiff and the defendant. That is, a court finding that the defendant’s conduct was “willful and contumacious” could easily be the predicate for a carrier to disclaim coverage. This would leave the defendant without insurance protection and potentially leave the plaintiff without a financially responsible source from whom to obtain compensation. WHEREFORE, it is respectfully requested that plaintiffs’ motion be denied or alternatively that the relief be limited to precluding the defendant from testifying at trial if defendant does not appear for a deposition at least 60 days before trial, and for such other and further relief as this Court deems just Dated: Westbury, New York August 10, 2015 ______________________________ David M. Jable, Esq. KAY & GRAY 14R0575 To: Philip S. Abate, Esq. P.C. Attorneys for Plaintiff(s) 111 John Street, Suite 1050 New York, NY 10038 212-267-3738 Index No. 151317/14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JUAN RAMIREZ, Plaintiff(s) - against - AFFIRMATION IN OPPOSITION NELSON SANTIAGO, Defendant(s) --------------------------------------------------------------------------------------------------------- KAY & GRAY Attorneys for the Defendant(s) Nelson Santiago 875 Merrick Avenue Westbury, NY 11590 516-229-4427 --------------------------------------------------------------------------------------------------------- TO: Philip S. Abate, Esq. P.C. Attorneys for Plaintiff(s) 111 John Street, Suite 1050 New York, NY 10038 212-267-3738 --------------------------------------------------------------------------------------------------------- Due and timely service of a copy of the within ___________________ is hereby admitted. Dated August 10, 2015 Attorney(s) for ------------------------------------------------------------------------------------------------------------