`FILED: NEW YORK COUNTY CLERK 10332014 06:38 PM
`
`NYSCLF DOC. NO. 11
`NYSCEF DOC. NO. 11
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`INDEX NO. 157729/2014
`
`INDEX NO~ 157729/2014
`
`
`
`
`
`RaCaIVaD VYSCEF: 10/31/2014
`RECEIVED NYSCEF: 10/31/2014
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`.....................................x
`
`PEI JUN LI,
`
`Plamt‘ff’
`
`.
`-aga1nst—
`
`THE SALVATION ARMY,
`
`Defendant.
`
`AFFIRMATION
`IN OPPOSITION
`———’—‘
`
`Index No.2
`1577290014
`
`______________________________________________________________________X
`Ellie Silverman, an attorney duly admitted to practice before the courts of this
`
`State, and associated with of Novo Law Firm, PC, attorneys for plaintiff(s), affirms the
`
`following to be true under penalty of perjury:
`
`1.
`
`I am fully familiar with all of the pleadings and proceedings had in this
`
`matter previously, and make this affirmation in opposition to the motion by defendant
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`KEYSPAN ENERGY CORPORATION (a/k/a NATIONAL GRID).
`
`2.
`
`This case involves a trip’aIYd‘fall‘accident;whiclrtookplace“on August 6;”
`
`,
`
`2011 on a roadway/walkway/pathway on the premises of Star Lake Camp in Bloomfield,
`
`New Jersey, operated, owned and maintained by Defendant.
`
`3.
`
`4.
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`As a result of this incident, Ms. Li suffered extensive serious injuries.
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`In efforts to preserve the judicial economy, Plaintiff hereby incorporates the
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`pleadings annexed as Exhibits “A” and “B” of Defendant’s motion.
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`5.
`
`It is well settled that the drastic remedy of striking a party's pleading
`
`pursuant to CPLR § 3126 for failure to comply with discovery is appropriate only where
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`the moving party conclusively demonstrates that
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`the non-disclosure was “willful,
`
`contumacious or due to bad faith”. Garcia v. Kraniotakis, 232 A.D.2d 369, 648 N.Y.S.2d
`
`
`
`156 (2d Dept, 1996); McGilveg v. New York City Tr. Auth, 2l3 A.D.2d 322, 624
`N.Y.S.2d 158 (lst Dept 1995).
`i
`
`6.
`
`Courts favor the strong public policy of disposing of cases on their
`
`merits. Watt v Spencer, 36 A.D.3d 440, 825 N.Y.S.2d 913 (15' Dept 2007); Dokmecian v
`
`ABN AMRO N. Am., 304 A.D.2d 445, 758 N.Y.S.2d 638 (15‘ Dept 2003); MS. Hi—Tech
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`Inc. v Thompson, 23 A.D.3d 442, 808 N.Y.S.2d 122 (2d Dept.2005).
`
`7.
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`In the case at bar, the default is not deliberate or contumacious. The
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`plaintiff has no wish to prevent legitimate discovery in this matter.
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`8.
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`The plaintiff is actively moving the prosecution of her case. As such,
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`attached to this Opposition as Exhibit “A” is the Verified Bill of Particulars as demanded
`
`by Defendant.
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`9.
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`Therefore, this motion is now moot and with all due respect, should be
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`Withdrawn.
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`WHEREFORE, affirmant respectfully requests that the within motion be in
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`all respects denied, together with such other, further, and different relief as to this Court
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`seems just and proper.
`
`DATED:
`
`New York, New York
`
`October 31, 2014
`
`Ellie Silverman
`
`Our File No: l 1-2989
`
`
`
`COUNTY OF NEW YORK )
`
`STATE OF NEW YORK
`
`gss
`
`AFFIDAVIT OF SERVICE
`
`Sabina Lashkari, being duly sworn, deposes and states:
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`I am not a party to the action, I resrde1n the State ofNew York, County of Queens I am over
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`the age of eighteen (18) years On October3/, 2014, I served the within
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`AFFIRMATION IN OPPOSITION and SUPPORTING DOCUMENTS
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`by depositing a true coPy thereofin a post-paid wrapper, in an official depository under the exclusive
`care and custody of the U.S. Postal Service within New York State, addressed to each of the
`following persons at the last known address set forth after each name:
`
`FRENCH & CASEY, LLP
`Attorneys for Defendant
`THE SALVATION ARMY
`29 Broadway, 27th Floor
`New York, New York 10006
`(212) 797-3544
`File No.: 73001014
`
`Dated:
`
`NEW YORK, NEW YORK
`
`October {1 , 2014
`
`%
`
`,
`
`Sabina Lashkari
`
`Sworn to before me this3_/_
`
`Notary Public
`
`Day of Oc oberOZIDM
`
`
`
`
`Index No. 157729/2014
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`% P
`
`EI JUN LI,
`
`Plaintiff,
`
`-against-
`
`THE SALVATION ARMY,
`
`Defendant.
`
`
`
`AFFIRMATION IN OPPOSITION and SUPPORTING DOCUMENTS
`
`
`Novo Law Firm, PC
`Attorneysfor Plaintiff
`299 Broadway, 17‘“ Floor
`New York, New York 10007
`(212) 233-6686
`
`
`ATTORNEYS CERTIFICATION. Upon reasonable inquiry under the circumstances, I certify that the
`presentation of these papers or contentions therein is made in 00 faith and is not frivolous.
` Ellie A. Silverman, Esq.
`
`
`
`TO:
`
`FRENCH & CASEY, LLP
`
`Attorneys for Defendant
`THE SALVATION ARMY
`29 Broadway, 27111 Floor
`New York, New York 10006
`
`(212) 797-3544
`File No.: 7300.1014
`
`
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