FILED: KINGS COUNTY CLERK 04/23/2019 12:09 PM
`NYSCEF DOC. NO. 17
`
`INDEX NO. 519810/2018
`
`RECEIVED NYSCEF: 04/23/2019
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-------------------------------------------------------------------------X
`MARIA SHTUTMAN,
`
`
`
`
`
`ORWAND REALTY LLC, ONE HALF FASHIONS CORP.
`D/B/A 1/2 PRICE CLOTHING AND MAGIC CORSETS
`OF BRIGHTON BEACH, INC. D/B/A MAGIC CORSET
`& LINGERIE,
`
` Defendant.
`
`
`
`
`-------------------------------------------------------------------------X
`Jeffrey M. Pepe, an attorney duly admitted to practice law in the Courts of New York,
`
`Index No.: 519810/2018
`
`AFFIRMATION
`IN SUPPORT
`
`
`
`hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR § 2106:
`
`Introduction
`
`1.
`
`I am an associate of the law firm Smith Mazure Director Wilkins Young &
`
`Yagerman, P.C., attorneys for defendant Orwand Realty LLC. As such, I am fully familiar with
`
`the facts and circumstance surrounding the within action.
`
`2.
`
`This Affirmation is made in support of the instant motion which seeks an Order
`
`precluding plaintiff Maria Shtutman from offering any evidence at trial for ffailing to provide
`
`discovery responses or, alternatively, compelling plaintiff Maria Shtutman to respond to all
`
`outstanding discovery demands, together with such other and further relief as this Honorable
`
`Court deems just, proper and equitable.
`
`3.
`
`Plaintiff commenced this negligence action alleging that on May 7, 2018, she
`
`slipped and/or tripped and fell on the sidewalk abutting the premises known as 258 and/or 260
`
`Brighton Avenue in Brooklyn, NY.
`
`1 of 4
`
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`NYSCEF DOC. NO. 17
`
`INDEX NO. 519810/2018
`
`RECEIVED NYSCEF: 04/23/2019
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-------------------------------------------------------------------------X
`MARIA SHTUTMAN,
`
`
`
`
`
`ORWAND REALTY LLC, ONE HALF FASHIONS CORP.
`D/B/A 1/2 PRICE CLOTHING AND MAGIC CORSETS
`OF BRIGHTON BEACH, INC. D/B/A MAGIC CORSET
`& LINGERIE,
`
` Defendant.
`
`
`
`
`-------------------------------------------------------------------------X
`Jeffrey M. Pepe, an attorney duly admitted to practice law in the Courts of New York,
`
`Index No.: 519810/2018
`
`AFFIRMATION
`IN SUPPORT
`
`
`
`hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR § 2106:
`
`Introduction
`
`1.
`
`I am an associate of the law firm Smith Mazure Director Wilkins Young &
`
`Yagerman, P.C., attorneys for defendant Orwand Realty LLC. As such, I am fully familiar with
`
`the facts and circumstance surrounding the within action.
`
`2.
`
`This Affirmation is made in support of the instant motion which seeks an Order
`
`precluding plaintiff Maria Shtutman from offering any evidence at trial for ffailing to provide
`
`discovery responses or, alternatively, compelling plaintiff Maria Shtutman to respond to all
`
`outstanding discovery demands, together with such other and further relief as this Honorable
`
`Court deems just, proper and equitable.
`
`3.
`
`Plaintiff commenced this negligence action alleging that on May 7, 2018, she
`
`slipped and/or tripped and fell on the sidewalk abutting the premises known as 258 and/or 260
`
`Brighton Avenue in Brooklyn, NY.
`
`1 of 4
`
`
`
`FILED: KINGS COUNTY CLERK 04/23/2019 12:09 PM
`NYSCEF DOC. NO. 17
`
`INDEX NO. 519810/2018
`
`RECEIVED NYSCEF: 04/23/2019
`
`4.
`
`As it will be explained more fully below, the instant motion must be granted
`
`because without the discovery demanded, this defendant will be unable to properly defend this
`
`action and will be severely prejudiced.
`
`Procedural History
`
`5.
`
`Plaintiff commenced this action by electronically filing a Summons and Verified
`
`Complaint with the Kings County Clerk’s Office on October 2, 2018. See Exhibit A.
`
`Defendant One Half Fashions Corp. d/b/a 1/2 Price Clothing interposed an Answer on November
`
`5, 2018. See Exhibit B. Defendant Magic Corsets of Brighton Beach, Inc. d/b/a Magic Corsets
`
`& Lingerie interposed an Answer on November 6, 2018. See Exhibit C.
`
`6.
`
`Our office interposed an Answer on behalf of defendant Orwand Realty LLC on
`
`December 17, 2018. See Exhibit D. Said Answer contained a Demand for a Verified Bill of
`
`Particulars, Notice for Discovery and Inspection and other Combined Demands. See Exhibit E.
`
`7.
`
`On March 15, 2019, your affirmant wrote plaintiff’s counsel, in good faith, in an
`
`attempt to obtain discovery responses but, to date, we have not received said response. See
`
`Exhibit F. Counsel for Magic Corsets also wrote plaintiff’s counsel, in good faith, on three
`
`occasions (1/2/19; 2/4/19; 4/5/19) yet plaintiff still has not complied. See Exhibit G.
`
`Argument
`
`8.
`
`It is respectfully requested that this Honorable Court grant the within motion, in
`
`its entirety, because plaintiff has failed to comply with discovery despite multiple good faith
`
`attempts.
`
`9.
`
`It is well settled that a party who has not previously moved for a protective order
`
`under CPLR § 3122 may not now assail the propriety of the said notice and that a motion under
`
`CPLR § 3126 can be made for the imposition of penalties, including striking of pleadings under
`
`2 of 4
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`
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`FILED: KINGS COUNTY CLERK 04/23/2019 12:09 PM
`NYSCEF DOC. NO. 17
`
`INDEX NO. 519810/2018
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`RECEIVED NYSCEF: 04/23/2019
`
`subdivision
`
`3 of CPLR
`
`§ 3126,
`
`without
`
`a prior
`
`court
`
`order
`
`directing
`
`comp½nce
`
`with
`
`the
`
`notice.
`
`Coffey
`
`v. Orbach's,
`
`22 A.D.2d
`
`317,
`
`254
`
`N.Y.S.2d
`
`596
`
`(1st
`
`Dept.);
`
`Goldner
`
`v.
`
`Lendor
`
`Structures.
`
`Inc.,
`
`29 A.D.2d
`
`978,
`
`289
`
`N.Y.S.2d
`
`687
`
`(2d
`
`Dept.).
`
`10.
`
`The
`
`time
`
`within
`
`which
`
`to
`
`comply
`
`with
`
`the
`
`said
`
`discovery
`
`demands
`
`has
`
`long
`
`since
`
`expired.
`
`There
`
`has
`
`been
`
`ñcither
`
`an
`
`extension
`
`of
`
`time
`
`to
`
`respond
`
`nor
`
`a menon
`
`for
`
`a protective
`
`made
`
`counsel
`
`connection
`
`order
`
`by
`
`plaintiff's
`
`in
`
`therewith.
`
`11.
`
`The
`
`items
`
`demanded
`
`are
`
`material
`
`and
`
`necessary
`
`for
`
`the
`
`defendants
`
`to
`
`thoroughly
`
`prepare
`
`its
`
`dcfcñsc.
`
`The
`
`defed-ts
`
`will
`
`be
`
`severely
`
`prejudiced
`
`if
`
`the
`
`discovery
`
`demanded
`
`is
`
`not
`
`provided.
`
`WHEREFORE,
`
`it
`
`is
`
`respectfully
`
`requested
`
`that
`
`this
`
`Honorable
`
`Court
`
`grant
`
`the
`
`instant
`
`motion
`
`in
`
`its
`
`entirety,
`
`together
`
`with
`
`such
`
`relief
`
`that
`
`is
`
`just,
`
`proper
`
`and
`
`crpitable.
`
`Dated:
`
`New York,
`April
`
`23,
`
`New York
`2019
`
`JMP/jmp
`ARCH-01201/65
`
`JEFFREY
`
`M. PEPE
`
`3 of 4
`
`
`
`FILED: KINGS COUNTY CLERK 04/23/2019 12:09 PM
`NYSCEF DOC. NO. 17
`
`INDEX NO. 519810/2018
`
`RECEIVED NYSCEF: 04/23/2019
`
`SUPREME
`COUNTY
`
`COURT OF THE STATE
`OF KINGS
`
`OF NEW YORK
`
`MARIA
`
`SHTUTMAN,
`
`INDEX
`
`NO.:
`
`519810/2018
`
`Plaintiff,
`
`-against-
`
`ORWAND
`REALTY
`D/B/A
`1/2 PRICE
`OF BRIGHTON
`& LINGERIE,
`
`LLC, ONE HALF
`CORP.
`FASHIONS
`AND MAGIC
`CORSETS
`CLOTHING
`CORSET
`INC. D/B/A MAGIC
`
`BEACH,
`
`---------
`
`Defendant.
`
`--------X
`
`RJI, NOTICE
`
`OF MOTION,
`
`AFFIRMATION
`
`IN GOOD FAITH
`
`AND AFFIRMATION
`
`IN SUPPORT
`
`SMITH MAZURE
`
`P.C.
`
`DIRECTOR
`
`YOUNG & YAGERMAN,
`WILKINS
`for Defendant
`Attomeys
`LLC
`Orwand
`Realty
`20m Floor
`111 John
`Street,
`New York, NY 10038
`964-7400
`(212)
`ARCH-01201
`
`CERTIFICATION
`
`PURSUANT
`
`TO 22 N.Y.C.R.R.
`
`6130-1.1a
`
`JEFFREY
`
`under
`
`reasonable
`not
`frivolous
`through
`illegal
`in any
`
`sharing
`
`conduct,
`fee eamed
`
`that
`there
`
`130-1.1(c)
`the
`it was,
`and
`from,
`
`(ii)
`
`M. PEPE
`hereby
`the circumstances,
`in section
`as defined
`or
`if
`
`certifies
`
`that,
`
`of
`the
`best
`to the
`to 22 N.Y.C.R.R.
`pursuant
`§130-1.1a-b,
`of
`the
`(2) where
`and
`this Subpart,
`or other
`persons
`responsible
`attomey
`the matter
`in violation
`not obtained
`
`undersigned's
`
`knowledge
`
`and
`
`information
`
`contained
`
`the contentions
`(1)
`is an initiating
`paper
`pleading,
`illegal
`for
`the
`conduct
`are
`of 22 NYCRR 1200.41-a
`
`was
`
`after
`
`an
`
`belief
`and
`and
`inquiry
`in the annexed
`are
`document
`the matter
`not obtained
`was
`in the matter
`
`(i)
`not
`participating
`[DR 7-111].
`
`or
`
`Dated:
`
`New York
`New York,
`April
`23, 2019
`
`PLEASE
`
`TAKE
`
`NOTICE
`
`JEFFRi-V
`
`M. PEPE
`
`that
`
`the within
`
`is a true
`
`copy
`
`of a
`
`entered
`
`in the office
`
`of
`
`the clerk
`
`of
`
`the within
`
`named
`
`Court
`
`on
`
`a
`
`that
`within
`
`of which
`
`the within
`
`named
`
`Court
`
`at
`
`copy will
`is a true
`, on at 9:30
`
`be presented
`a.m.
`
`for settlement
`
`to the Hon.
`
`one
`
`of
`
`the judges
`
`of
`
`the
`
`JMP/jmp
`65
`
`4 of 4
`
`
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