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(FILED: NEW YORK COUNTY CLERK 0771872016 04:45 PM INDEX NO. 159120/2012
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/18/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LIEB WEISS, INDEX NO. 159120/12
Plaintiff,
-against-
AFFIRMATION IN SUPPORT OF
STUART M. WEISS and PROMED NOTICE OF MOTION
CORINTHIAN, LLC
Defendants.
STUART M. WEISS,
Defendant/Third Party Plaintiff,
-against-
PROMED CORINTHIAN, LLC,
Third Party Defendant.
TIL J. DALLAVALLE, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the following under the penalties of perjury:
1 fam an attorney associated with the firm of Braff, Harris, Sukoneck & Maloof,
attorneys for the Third Party Defendant, ProMed Corinthian, LLC, and as such, am fully familiar
with the facts and circumstances set forth herein.
2 This affirmation is submitted in support of the within motion seeking to strike the
Answer and Defenses of Defendant/Third Party Plaintiff, Stuart M. Weiss pursuant to C.P.L.R.
3126 for failure to provide discovery and comply with a court order to provide necessary
discovery.
lof 4
3 This is an action to recover damages allegedly sustained by plaintiff, Lieb Weiss,
as a result of a slip and fall incident in the Corinthian office building located at 345 East 37
Street, New York, NY. The moving defendants are the owners and managers of the aforesaid
property.
4 On December 17, 2015, this matter was a subject of a status conference. A copy
of the December 17, 2015 Stipulation is annexed hereto as Exhibit A. At Section 2 of the
Stipulation, the moving Defendants were directed to advise all partics of outstanding discovery
demands within three (3) days. Defendant/Third Party Plaintiff, Stuart M. Weiss was directed to
provide responses to outstanding written discovery demands by December 30, 2015.
5 In accordance with the provisions of the December 17, 2015 Stipulation, moving
Defendants served a Notice of Discovery and Inspection on Defendant/Third Party Plaintiff,
Stuart M. Weiss on December 21, 2015. See correspondence attached hereto as Exhibit B.
6 Having received no response to the outstanding discovery demands, this office
wrote to Defendant/Third Party Plaintiff, Stuart M. Weiss on January 7, 2016 asking for the
overdue responses. (See correspondence attached as Exhibit C).
7 This issue was subsequently raised at 2 additional status conferences on February
25, 2016 and April 28, 2016. In both instances, the Court ordered that the outstanding discovery
be produced. (See Stipulations attached as Exhibits D and E).
8 Having received no response to the outstanding discovery demands, this office
wrote to Defendant/Third Party Plaintiff, Stuart M. Weiss on March 23, 2016 asking for the
overdue responses. (See correspondence attached as Exhibit F).
20f 4
9. Moving defendants had previously filed a motion to strike co-defendant’s Answer
due to the failure to comply with prior orders, but the Court ruled that the issue had been
resolved via the April 28, 2016 Stipulation. (See Order attached as Exhibit G).
10. Contrary to said ruling, the requested discovery was never produced to our office
and remains outstanding.
11. Defendant/Third Party Plaintiff, Stuart M. Weiss has failed to provide responses
to Defendants’ demands as directed by the above noted Stipulations.
12. It is respectfully submitted that Defendant/Third Party Plaintiff, Stuart M. Weiss
has continued to fail to comply with multiple orders to provide discovery and is subject to
sanction pursuant to C.P.L.R. 3126. Moving Defendants are unable to conduct a full defense of
this matier without the information requested in the subject demands, including copies of
correspondences exchanged between Lieb Weiss and Stuart M. Weiss regarding the subject
incident, copies of exhibits referenced in party depositions taken prior to moving Defendants’
entry into this case and copies of Plaintiffs medical records from Defendant/Third Party
Plaintiff, Stuart M. Weiss (who was a treating provider to Plaintiff), Moving Defendants also
demanded copies of documentation regarding the schedule of appointments for Dr, Stuart Weiss
on June 25, 2012, as Dr. Weiss had previously indicated that Plaintiff did not have an
appointment with his office on the day of the subject accident. Due to Defendant/Third Party
Plaintiff's continuing failure to comply with court orders and notices to provide discovery, it is
submitted that Defendant/Third Party Plaintiff should be subject to sanction and his Answer and
Defenses be dismissed pursuant to C.P.L.R. 3126 for failure to comply with a court order.
3 0f 4
WHEREFORE, your affirmant respectfully requests that the Instant Motion be granted in
all respects and for such other and further relief which, as to this Court, appears just and proper.
Dated: New York, New York
July 18, 2016
Yours, etc.
ewe
“Y pose
TIL J. DALLAVALLE
Attorneys for Third Party Defendant
ProMed Corinthian, LLC
BRAFF, HARRIS, SUKONECK & MALOOF
305 Broadway
Seventh Floor
New York, New York 07039
(212) 599-2085
Our File No, 363.20148
TO Kenneth J. Mastellone, Esq.
Burns & Nallan
Attorneys for Defendant/Third Party Plaintiff
STUART M. WEISS
150 Broadway, Suite 1400
New York, NY 10038-4381
Herbert S. Subin, Esq.
Subin Associates, L.L.P.
Attorneys for Plaintiff, LIEB WEISS
150 Broadway, 23rd floor
New York, NY 10038
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Preview
(FILED: NEW YORK COUNTY CLERK 0771872016 04:45 PM INDEX NO. 159120/2012 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/18/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LIEB WEISS, INDEX NO. 159120/12 Plaintiff, -against- AFFIRMATION IN SUPPORT OF STUART M. WEISS and PROMED NOTICE OF MOTION CORINTHIAN, LLC Defendants. STUART M. WEISS, Defendant/Third Party Plaintiff, -against- PROMED CORINTHIAN, LLC, Third Party Defendant. TIL J. DALLAVALLE, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1 fam an attorney associated with the firm of Braff, Harris, Sukoneck & Maloof, attorneys for the Third Party Defendant, ProMed Corinthian, LLC, and as such, am fully familiar with the facts and circumstances set forth herein. 2 This affirmation is submitted in support of the within motion seeking to strike the Answer and Defenses of Defendant/Third Party Plaintiff, Stuart M. Weiss pursuant to C.P.L.R. 3126 for failure to provide discovery and comply with a court order to provide necessary discovery. lof 4 3 This is an action to recover damages allegedly sustained by plaintiff, Lieb Weiss, as a result of a slip and fall incident in the Corinthian office building located at 345 East 37 Street, New York, NY. The moving defendants are the owners and managers of the aforesaid property. 4 On December 17, 2015, this matter was a subject of a status conference. A copy of the December 17, 2015 Stipulation is annexed hereto as Exhibit A. At Section 2 of the Stipulation, the moving Defendants were directed to advise all partics of outstanding discovery demands within three (3) days. Defendant/Third Party Plaintiff, Stuart M. Weiss was directed to provide responses to outstanding written discovery demands by December 30, 2015. 5 In accordance with the provisions of the December 17, 2015 Stipulation, moving Defendants served a Notice of Discovery and Inspection on Defendant/Third Party Plaintiff, Stuart M. Weiss on December 21, 2015. See correspondence attached hereto as Exhibit B. 6 Having received no response to the outstanding discovery demands, this office wrote to Defendant/Third Party Plaintiff, Stuart M. Weiss on January 7, 2016 asking for the overdue responses. (See correspondence attached as Exhibit C). 7 This issue was subsequently raised at 2 additional status conferences on February 25, 2016 and April 28, 2016. In both instances, the Court ordered that the outstanding discovery be produced. (See Stipulations attached as Exhibits D and E). 8 Having received no response to the outstanding discovery demands, this office wrote to Defendant/Third Party Plaintiff, Stuart M. Weiss on March 23, 2016 asking for the overdue responses. (See correspondence attached as Exhibit F). 20f 4 9. Moving defendants had previously filed a motion to strike co-defendant’s Answer due to the failure to comply with prior orders, but the Court ruled that the issue had been resolved via the April 28, 2016 Stipulation. (See Order attached as Exhibit G). 10. Contrary to said ruling, the requested discovery was never produced to our office and remains outstanding. 11. Defendant/Third Party Plaintiff, Stuart M. Weiss has failed to provide responses to Defendants’ demands as directed by the above noted Stipulations. 12. It is respectfully submitted that Defendant/Third Party Plaintiff, Stuart M. Weiss has continued to fail to comply with multiple orders to provide discovery and is subject to sanction pursuant to C.P.L.R. 3126. Moving Defendants are unable to conduct a full defense of this matier without the information requested in the subject demands, including copies of correspondences exchanged between Lieb Weiss and Stuart M. Weiss regarding the subject incident, copies of exhibits referenced in party depositions taken prior to moving Defendants’ entry into this case and copies of Plaintiffs medical records from Defendant/Third Party Plaintiff, Stuart M. Weiss (who was a treating provider to Plaintiff), Moving Defendants also demanded copies of documentation regarding the schedule of appointments for Dr, Stuart Weiss on June 25, 2012, as Dr. Weiss had previously indicated that Plaintiff did not have an appointment with his office on the day of the subject accident. Due to Defendant/Third Party Plaintiff's continuing failure to comply with court orders and notices to provide discovery, it is submitted that Defendant/Third Party Plaintiff should be subject to sanction and his Answer and Defenses be dismissed pursuant to C.P.L.R. 3126 for failure to comply with a court order. 3 0f 4 WHEREFORE, your affirmant respectfully requests that the Instant Motion be granted in all respects and for such other and further relief which, as to this Court, appears just and proper. Dated: New York, New York July 18, 2016 Yours, etc. ewe “Y pose TIL J. DALLAVALLE Attorneys for Third Party Defendant ProMed Corinthian, LLC BRAFF, HARRIS, SUKONECK & MALOOF 305 Broadway Seventh Floor New York, New York 07039 (212) 599-2085 Our File No, 363.20148 TO Kenneth J. Mastellone, Esq. Burns & Nallan Attorneys for Defendant/Third Party Plaintiff STUART M. WEISS 150 Broadway, Suite 1400 New York, NY 10038-4381 Herbert S. Subin, Esq. Subin Associates, L.L.P. Attorneys for Plaintiff, LIEB WEISS 150 Broadway, 23rd floor New York, NY 10038 4 of 4