Preview
FILED: NEW YORK COUNTY CLERK 09/08/2015 01:34 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/08/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No. 653476/2013
-against-
ATTORNEY’S AFFIRMATION
IN REPLY
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C.,
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability company, and DELEX AIR CARGO, LLC.
a Washington limited liability company.
Defendants.
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Robert Bondar, an attorney duly admitted to practice in the Courts of this state, hereby affirms
the following under penalty of perjury:
1. I am the attorney for Defendants, and I am fully familiar with all the proceedings in this
action.
2. I submit this Affirmation in Reply to Plaintiffs’ Opposition to the Defendants’ motion to
dismiss Plaintiffs’ complaint on the grounds that Plaintiffs had failed to appear for two
consecutive compliance conferences in this action without any notice, justification, or
excuse.
3. Plaintiffs opposition is based on the premise that there is a “reasonable excuse” for
Plaintiffs’ failure to appear at the conferences. The proffered excuse is counsel’s
“innocent calendaring mistake.”
4. Defendants take issue with such categorization of Plaintiffs’ non-appearance. Counsel
had failed to appear for the first compliance conference on July 13, 2015. The reason
given for first non-appearance was counsel lack of awareness that the conference was
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scheduled for that day. That date was set by the Court well in advance by the Preliminary
conference order, see Exh. A annexed to Defendants’ Affirmation in Support.
5. A cursory review of the e-courts website maintained by New York State Unified Court
System would also enable Plaintiffs to set a reminder for scheduled appearances. In fact,
e-mail is sent seven days in advance of the conference dates to advise counsel of their
obligations to appear. Despite such measures, counsel was caught unaware – which,
admittedly sometime happens in a lawyer’s hectic everyday routine.
6. However, counsel second non-appearance in completely inexcusable. In light of the first
non-appearance, and the Court’s gracious rescheduling the conference to August 3,
counsel should have been under a heightened awareness in regards to the scheduled
appearances, at least in this action.
7. Despite receiving adjournment relief from the Court for his first failure to appear, counsel
missed the adjourned appearance as well – this time due to “inadvertent calendaring
error”, see Aff. of David Estrakh, at 3-4 and Exhibit A annexed thereto. Counsel’s failure
to properly calendar the adjourned appearance cannot be excused, in light of the
seriousness of the infraction and the relief already given to Plaintiffs for the first non-
appearance.
8. Accordingly, counsel’s mistake is not at all “innocent” or “inadvertent” but rather a result
of gross carelessness, even to the point of being reckless. It was incumbent upon counsel
to appear on the adjourned date and he should have taken every necessary precaution to
be able to meet his obligations. Failure of counsel to take such precautions had resulted in
the Court’s order granting leave for Defendants to make a motion to dismiss “based on
plaintiffs’ non-appearances”.
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9. Plaintiffs’ oppose Defendants’ motion on two separate and distinct grounds – that
Plaintiffs’ have a reasonable excuse and that this action has merit. In order for the Court
to deny Defendants’ motion, both prongs must be met – however, as discussed above,
Plaintiffs’ failure to appear for two scheduled compliance conferences is completely
unreasonable.
10. Plaintiffs’ cited cases Empire Entertainment Group, LLC v. Wanderlust Pictures, Inc.,
307 A.D.2d 811 (1 Dept. 2003) and Cruz v. Bronx Lebanon Hospital Ctr., 73 A.D.3d 597
(1 Dept. 2010), are inapplicable to the facts at bar. In Empire Entertainment Group failure
of counsel to appear was “attributed to the failure of an office assistant to calendar the
date”. Here, according to counsel’s affirmation, the failure to appear is squarely counsel’s
fault, not anybody who might have worked for him. Secondly, in neither Empire nor
Cruz there is any indication that counsel failed to appear on two consecutive dates, the
originally scheduled date and the adjourned date set by the Court, which is precisely the
case here.
11. Another case cited by Plaintiffs, American Audio Serv. Bur. Inc. v AT & T Corp. is
inapplicable because there the First Department gave credit to Plaintiffs because
“Plaintiff was in compliance with all discovery directives” and thus there was
“insufficient basis for a finding of a pattern of delay, and thus for dismissal”. That is not
at all the facts of our case. According to the annexed Affidavit of Service, Defendants
served Notice of Deposition, Demand for Bill of Particulars, and Combined Demands
upon Plaintiffs on June 1, 2015. Exhibit E. To date, Plaintiffs have not responded to
Defendants’ discovery demands nor did they ask for any extension of time to so respond.
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12. Plaintiffs continue in their pattern of delay, unlike the plaintiffs in American Audio Serv.
Bur. Inc. Failure to respond to discovery after 90 days had passed and failures to appear
at consecutive conferences are neither excusable nor reasonable. Accordingly, Plaintiffs’
case should be dismissed by this Court.
13. The facts and issues of the instant motion are governed by 22 NYCRR 202.27, which sets
forth the following:
Section 202.27. Defaults
At any scheduled call of a calendar or at any conference, if all parties do not
appear and proceed or announce their readiness to proceed immediately or subject
to the engagement of counsel, the judge may note the default on the record and
enter an order as follows:
(a) If the plaintiff appears but the defendant does not, the judge may grant
judgment by default or order an inquest.
(b) If the defendant appears but the plaintiff does not, the judge may dismiss
the action and may order a severance of counterclaims or cross-claims.
(c) If no party appears, the judge may make such order as appears just.
14. The Court should dismiss this action in accordance with 22 NYCRR 202.27(b).
15. In Campos v. New York City Health and Hospitals Corp. 307 A.D.2d 785 (1 Dept. 2003),
the motion court dismissed the case when plaintiff failed to appear for a calendar call of
pre-note of issue cases. “Pursuant to 22 NYCRR 202.27, if, at any scheduled call of the
calendar, the defendant appears but the plaintiff does not, the court may note the default
on the record and enter an order dismissing the action. Plaintiff notes that the motion
court's decision denying the motion to vacate the default does not refer to 22 NYCRR
202.27; she asserts that the reason for the dismissal was “general delay.” Plaintiff is
mistaken. The decision explicitly refers to plaintiff's “default ... in appearing at a calendar
call and the dismissal resulting therefrom.”
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16. The motion to vacate prior order pursuant to 22 NYCRR 202.27 dismissing the action
“was properly denied on the ground that plaintiffs' attorney failed to offer a reasonable
excuse for his failure to appear at three consecutive compliance conferences”. Brown v.
AP & ASBP Holding Co., Inc. 22 A.D.3d 416 (1 Dept. 2005) citing Campos.
17. “Appellant's answer was properly struck when it failed to appear at the compliance
conference, where the conference had been scheduled in a previous written order
rendered in open court in counsel's presence three months earlier, and its excuse of law
office failure in the form of a computer crash the day before the conference not yet
repaired the day of the conference did not explain or justify its noncompliance with prior
court-ordered discovery. Such failure indicates willful and contumacious conduct
justifying striking the answer.” Yin Kuen Chan Tang v. Hong Kong Chinese Herbal Co.,
Inc., 235 A.D.2d 282 (1 Dept. 1997).
18. Here, by their failure to appear on two consecutive compliance conferences, Plaintiffs’
disobeyed an unambiguous order of the Court. Counsel’s proffered explanation does not
rise to the requisite level of “reasonable excuse”. Since Plaintiffs’ conduct is willful and
contumacious as demonstrated by this motion, the Court is justified in striking Plaintiffs’
complaint and dismissing this action.
DATED: Brooklyn, New York Respectfully submitted,
September 8, 2015
By: /s/ Robert Bondar
Robert Bondar, Esq.
Attorney for Defendants
28 Dooley Street, 3rd floor
Brooklyn, New York 11235
Telephone (347) 462-3262
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Preview
FILED: NEW YORK COUNTY CLERK 09/08/2015 01:34 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/08/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. 653476/2013 -against- ATTORNEY’S AFFIRMATION IN REPLY OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability company, and DELEX AIR CARGO, LLC. a Washington limited liability company. Defendants. ------------------------------------------------------------------------X Robert Bondar, an attorney duly admitted to practice in the Courts of this state, hereby affirms the following under penalty of perjury: 1. I am the attorney for Defendants, and I am fully familiar with all the proceedings in this action. 2. I submit this Affirmation in Reply to Plaintiffs’ Opposition to the Defendants’ motion to dismiss Plaintiffs’ complaint on the grounds that Plaintiffs had failed to appear for two consecutive compliance conferences in this action without any notice, justification, or excuse. 3. Plaintiffs opposition is based on the premise that there is a “reasonable excuse” for Plaintiffs’ failure to appear at the conferences. The proffered excuse is counsel’s “innocent calendaring mistake.” 4. Defendants take issue with such categorization of Plaintiffs’ non-appearance. Counsel had failed to appear for the first compliance conference on July 13, 2015. The reason given for first non-appearance was counsel lack of awareness that the conference was 1 scheduled for that day. That date was set by the Court well in advance by the Preliminary conference order, see Exh. A annexed to Defendants’ Affirmation in Support. 5. A cursory review of the e-courts website maintained by New York State Unified Court System would also enable Plaintiffs to set a reminder for scheduled appearances. In fact, e-mail is sent seven days in advance of the conference dates to advise counsel of their obligations to appear. Despite such measures, counsel was caught unaware – which, admittedly sometime happens in a lawyer’s hectic everyday routine. 6. However, counsel second non-appearance in completely inexcusable. In light of the first non-appearance, and the Court’s gracious rescheduling the conference to August 3, counsel should have been under a heightened awareness in regards to the scheduled appearances, at least in this action. 7. Despite receiving adjournment relief from the Court for his first failure to appear, counsel missed the adjourned appearance as well – this time due to “inadvertent calendaring error”, see Aff. of David Estrakh, at 3-4 and Exhibit A annexed thereto. Counsel’s failure to properly calendar the adjourned appearance cannot be excused, in light of the seriousness of the infraction and the relief already given to Plaintiffs for the first non- appearance. 8. Accordingly, counsel’s mistake is not at all “innocent” or “inadvertent” but rather a result of gross carelessness, even to the point of being reckless. It was incumbent upon counsel to appear on the adjourned date and he should have taken every necessary precaution to be able to meet his obligations. Failure of counsel to take such precautions had resulted in the Court’s order granting leave for Defendants to make a motion to dismiss “based on plaintiffs’ non-appearances”. 2 9. Plaintiffs’ oppose Defendants’ motion on two separate and distinct grounds – that Plaintiffs’ have a reasonable excuse and that this action has merit. In order for the Court to deny Defendants’ motion, both prongs must be met – however, as discussed above, Plaintiffs’ failure to appear for two scheduled compliance conferences is completely unreasonable. 10. Plaintiffs’ cited cases Empire Entertainment Group, LLC v. Wanderlust Pictures, Inc., 307 A.D.2d 811 (1 Dept. 2003) and Cruz v. Bronx Lebanon Hospital Ctr., 73 A.D.3d 597 (1 Dept. 2010), are inapplicable to the facts at bar. In Empire Entertainment Group failure of counsel to appear was “attributed to the failure of an office assistant to calendar the date”. Here, according to counsel’s affirmation, the failure to appear is squarely counsel’s fault, not anybody who might have worked for him. Secondly, in neither Empire nor Cruz there is any indication that counsel failed to appear on two consecutive dates, the originally scheduled date and the adjourned date set by the Court, which is precisely the case here. 11. Another case cited by Plaintiffs, American Audio Serv. Bur. Inc. v AT & T Corp. is inapplicable because there the First Department gave credit to Plaintiffs because “Plaintiff was in compliance with all discovery directives” and thus there was “insufficient basis for a finding of a pattern of delay, and thus for dismissal”. That is not at all the facts of our case. According to the annexed Affidavit of Service, Defendants served Notice of Deposition, Demand for Bill of Particulars, and Combined Demands upon Plaintiffs on June 1, 2015. Exhibit E. To date, Plaintiffs have not responded to Defendants’ discovery demands nor did they ask for any extension of time to so respond. 3 12. Plaintiffs continue in their pattern of delay, unlike the plaintiffs in American Audio Serv. Bur. Inc. Failure to respond to discovery after 90 days had passed and failures to appear at consecutive conferences are neither excusable nor reasonable. Accordingly, Plaintiffs’ case should be dismissed by this Court. 13. The facts and issues of the instant motion are governed by 22 NYCRR 202.27, which sets forth the following: Section 202.27. Defaults At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows: (a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest. (b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims. (c) If no party appears, the judge may make such order as appears just. 14. The Court should dismiss this action in accordance with 22 NYCRR 202.27(b). 15. In Campos v. New York City Health and Hospitals Corp. 307 A.D.2d 785 (1 Dept. 2003), the motion court dismissed the case when plaintiff failed to appear for a calendar call of pre-note of issue cases. “Pursuant to 22 NYCRR 202.27, if, at any scheduled call of the calendar, the defendant appears but the plaintiff does not, the court may note the default on the record and enter an order dismissing the action. Plaintiff notes that the motion court's decision denying the motion to vacate the default does not refer to 22 NYCRR 202.27; she asserts that the reason for the dismissal was “general delay.” Plaintiff is mistaken. The decision explicitly refers to plaintiff's “default ... in appearing at a calendar call and the dismissal resulting therefrom.” 4 16. The motion to vacate prior order pursuant to 22 NYCRR 202.27 dismissing the action “was properly denied on the ground that plaintiffs' attorney failed to offer a reasonable excuse for his failure to appear at three consecutive compliance conferences”. Brown v. AP & ASBP Holding Co., Inc. 22 A.D.3d 416 (1 Dept. 2005) citing Campos. 17. “Appellant's answer was properly struck when it failed to appear at the compliance conference, where the conference had been scheduled in a previous written order rendered in open court in counsel's presence three months earlier, and its excuse of law office failure in the form of a computer crash the day before the conference not yet repaired the day of the conference did not explain or justify its noncompliance with prior court-ordered discovery. Such failure indicates willful and contumacious conduct justifying striking the answer.” Yin Kuen Chan Tang v. Hong Kong Chinese Herbal Co., Inc., 235 A.D.2d 282 (1 Dept. 1997). 18. Here, by their failure to appear on two consecutive compliance conferences, Plaintiffs’ disobeyed an unambiguous order of the Court. Counsel’s proffered explanation does not rise to the requisite level of “reasonable excuse”. Since Plaintiffs’ conduct is willful and contumacious as demonstrated by this motion, the Court is justified in striking Plaintiffs’ complaint and dismissing this action. DATED: Brooklyn, New York Respectfully submitted, September 8, 2015 By: /s/ Robert Bondar Robert Bondar, Esq. Attorney for Defendants 28 Dooley Street, 3rd floor Brooklyn, New York 11235 Telephone (347) 462-3262 5