Colon v. City Of New York

Filing 200

ORDER granting 199 Letter Motion for Extension of Time to File. APPLICATION GRANTED. SO ORDERED.. (Signed by Judge Vernon S. Broderick on 6/30/2021) (kv)

Welcome

NEW YORK CITY HOUSING AUTHORITY
LAW DEPARTMENT
90 CHURCH STREET$ NEW YORK, NY 10007

NEW YORK CITY

HOUSING
AUTHORITY

http:/nyc.gov/nycha

GREGORY P. RUSS
Chair & CEO

WRITER’S DIRECT LINE
[phone]

LISA BOVA-HIATT
EVP of Legal Affairs and General Counsel

June 28, 2021
VIA CM/ECF
Hon. Vernon S. Broderick, U.S.D.J.
United States District Court
Southern District of New York
Thurgood Marshall United States Courthouse
40 Foley Square, Courtroom 518
New York, NY 10007

Re:

6/30/2021

Sibyl Colon v. City of New York, et al. No. 16-CV-4540 (VSB)(OTW)
Request For Brief Extension To Submit Status Report and Discovery Schedule

Dear Judge Broderick:
I am substitute counsel for Defendant the New York City Housing Authority (“NYCHA”) in the
above-referenced matter. I respectfully submit this letter to request a two-week extension, or until
Monday, July 12, 2021, to submit a status update and proposed discovery schedule as instructed by Your
Honor’s Opinion and Order dated May 26, 2021, ECF No. 195. This is the NYCHA’s first request for an
extension of this deadline, and good cause exists for an extension to be granted.
As an initial matter, NYCHA’s in-house litigation department has regrettably suffered an exodus
of staffing resources in recent months beginning with the departure of NYCHA’s long-standing attorney
of record in this case, Ms. Jane Lippman, and most recently my predecessor counsel in this matter, Adam
Kurtz, whose representation was only terminated this afternoon. As much as I had hoped to bring myself
fully up to speed on the discovery record in this matter prior to today’s status update and discovery
schedule submission deadline, I regret that I am still familiarizing myself with the documentary evidence
and witness testimony in this case, and am not presently in a position to determine what additional
discovery is necessary for NYCHA to adequately respond to the late declarations of undisclosed fact
witnesses Robert Knapp and Louis Nieves.

Lisa Bova-Hiatt, EVP of Legal Affairs and General Counsel $Law Department $Telephone [phone]

In addition, last Thursday I received an email from Plaintiff’s counsel informing NYCHA, for the
very first time, that Louis Nieves – one of the two key witnesses for Plaintiff whose testimony NYCHA
hoped to explore through deposition and/or other discovery methods – had died from coronoavirus after
submitting his declaration in support of Plaintiff’s motion for summary judgment. See Attachment A –
June 24, 2021 Email from Marcel Florestal, Esq. to Defense Counsel. What is more, Mr. Florestal
informed NYCHA that the only other witness at issue – Robert Knapp – has relocated to the State of
Arizona. Id.
At this time, it is unclear whether (or to what extent) Plaintiff intends to rely on the prior statements
of Messrs. Nieves or Knapp at trial. However, since Mr. Nieves’ passing renders him unable to testify and
Ms. Knapp’s relocation places him outside the compulsory subpoena powers of the Court, preserving
these two witnesses’ prior testimony will likely require admission of their summary judgment declarations
into the trial record.
To the extent NYCHA is unable to directly examine and assess the credibility of Messrs. Nieves
or Knapp and/or otherwise take meaningful discovery that would allow NYCHA to assess the foundation
and/or accuracy of the allegations in Nieves’ and Knapps’ declarations, it cannot be reasonably disputed
that NYCHA – who, by its Motion dated June 1, 2020 (ECF Nos. 184-186) timely challenged the propriety
of both Nieves’ and Knapp’s late, unsworn declarations and sought to have them stricken accordingly –
stands to be severely and unduly prejudiced by admission of these two declarations into the trial record.
In light of these recent developments, substitute counsel for NYCHA requires additional time to
digest the discovery record and to meet and confer with Plaintiff’s counsel about the remaining discovery
called for by Your Honor’s May 26 Opinion and Order.
Respectfully submitted,
/s/ Sean-Patrick Wilson
Sean-Patrick Wilson (SW7862)
Associate General Counsel
New York City Housing Authority
Law Department
90 Church Street, 11th Floor
New York, NY 10007
Email: [e-mail]

cc: All Counsel of Record (via ECF)

2

From:
To:
Subject:
Date:

Marcus, Natalie (Law)
Wilson, Sean-Patrick
FW: COLON V. NYCHA, et al, Fil No. 16-cv-04540
Friday, June 25, 2021 2:16:14 PM

From: Marcus, Natalie (Law)
Sent: Friday, June 25, 2021 8:51 AM
To: Marcel Florestal; [e-mail]
Subject: RE: COLON V. NYCHA, et al, Fil No. 16-cv-04540
Good morning,
Because defendant Mark-Viverito was dismissed from the Colon case, we will not be taking part in the
additional discovery.
Regards,
Natalie

Natalie Marcus
New York City Law Department
Labor and Employment Law Division
100 Church Street, Room 2-197
New York, NY 10007
Phone: [phone]

CONFIDENTIALITY NOTICE: This e-mail message is intended only for the person or entity to which it is addressed
and may contain CONFIDENTIAL or PRIVILEGED material. Any unauthorized review, use, disclosure or distribution is
prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of
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medium, please so advise the sender immediately.
From: Marcel Florestal [[e-mail]]
Sent: Thursday, June 24, 2021 4:52 PM
To: [e-mail]; Marcus, Natalie (Law)
Cc: Marcel Florestal
Subject: COLON V. NYCHA, et al, Fil No. 16-cv-04540

Opposing counselors, pursuant to the Court's Decision dated 5/26/21, entered on 5/27/21, in
the above referenced matter, we are to confer regarding some proposed dates for
completion of deposition of the additional witnesses. Also, please note that one of the
witnesses have since died from the CoronaVirus, and the sole surviving witness is Robert
Knapp, who has relocated to AZ. Please let me know whether you can conference on Friday,
5/24/21, between 12.00PM - 4.00PM, or sometime Monday, 5/28/21, the due date of the
Order. In the alternative, you can shoot me some dates for any proposed deposition of Mr.
Knapp, and I can run it by him for availability, in lieu of us having to conference.
-Marcel Florestal, Esq.

The Florestal Law Firm, PLLC
48 Wall Street, Suite 11
New York, NY 10005
212-918-4416 - Voice
646-417-7777 - Fax
www.florestallaw.com