Kayo v. Mertz et al

Filing 72

ORDER granting 70 Letter Motion for Extension of Time to File. Notwithstanding plaintiff's late filing and regrettable failure to consult with defense counsel prior to writing the Court, the Court will accept plaintiff's late filing, in recognition of plaintiff's counsel's health challenges. In deference to the inconvenience presented to defense counsel by plaintiff's counsel's failure to heed the briefing schedule set by the Court, the Court will give defens e counsel a date of their choice, within the next four weeks, to submit their responsive brief. Defense counsel are to notify the Court by the close of business Thursday, October 15, 2020, of the date on which that filing will be made. Following that submission, plaintiffs reply, if any, shall be due two weeks later; no extensions of that deadline will be permitted. (Signed by Judge Paul A. Engelmayer on 10/13/2020) (rro)

Case 1:19-cv-00365-PAE Document 72 Filed 10/13/20 Page 1 of 3

David M. Hazan, Esq.
30 Vesey Street, 4th Floor
New York, New York 10007
Phone: [phone]
Fax: [phone]
[e-mail]

VIA ECF
Honorable Paul A. Engelmayer
United States District Judge
United States District Court, SDNY
40p Foley Square, Room 2201
New York, New York 10007

October 10 2020

Re: Hugo Kayo v. Police Officer Peter Mertz, et al., 19 Civ. 00365 (PAE)

Your Honor:
I am an attorney that represents plaintiff in the above-referenced matter. I write to
respectfully request that the Court extend the due date for plaintiff’s Opposition to Defendants’
Motion for Summary Judgment and Plaintiff’s Cross Motion for Partial Summary Judgment,
nunc pro tunc, until October 10, 2020 which have already been filed with the Court and due to
the tardiness of those filings I also respectfully request that the Court extend the due dates for the
] responsive motion papers for two additional days. As the Court may recall, by letters dated
July 29, 2020, August 12, 2020, August 24, 2020, September 9, 2020, September 30, 2020, and
October 5, 2020 I requested extensions because I had fallen ill and was unable to competently
work on the motion. Furthermore, after I recovered from the illness I have been physically
unable to work on this motion due to continued limitations from my illness and other pandemic
related obstacles that arose in my life. I do not have any history whatsoever of asking for
numerous extensions to submit filings to Your Honor or any other judge I have ever appeared
before and the circumstances that have caused me to file these motion papers late are completely
beyond my control. In fact, in my opinion I took steps that most attorneys probably would not
have taken in order to complete these motions and file them at all, including sacrificing sleep for
two nights prior to filing the motion papers. This has been an extremely difficult time period for
me, for a variety of reasons outside of my control and truly appreciate how kind and
understanding this Court has been to me while I have repeatedly asked for extensions of time to
file the motion papers. I am not exaggerating when I tell the Court that it was physically
impossible for me to complete and file these motion papers in a timely manner and I am hopeful
that for these reasons and the reasons set forth herein the Court will grant this motion for another
extension nunc pro tunc, I have not spoken to counsel for defendants to determine whether
defendants consent to this request, but I am filing this application anyway to so that it is before
the Court as soon as possible.
I was very disappointed when counsel for defendants filed a motion opposing my
previous request for an extension of time to file the motion papers that I made earlier this week
given that counsel was aware that I have been struggling to address basic runoff the mill issues
that arise in everyone’s daily lives because of several pandemic related issues and illness that
have arisen in my life and I represented that I could not physically complete the motion before

Case 1:19-cv-00365-PAE Document 72 Filed 10/13/20 Page 2 of 3

the due date. Opposing my request for an extension when the requested extension did not
prejudice his client in any way showed a complete lack of respect for a fellow human being.
Although I was disappointed to receive counsel’s opposition letter, I was not surprised to receive
the opposition letter whatsoever because it is consistent with the manner in which too many
individuals in our profession routinely treat each other. Unfortunately, since I have never
appeared before Your Honor prior to this case, I was more surprised with the kindness, respect
and understanding that this Court has shown me during this time period because of the way
members of our profession tend to treat each other Whether it is another Southern District Judge
screaming at an attorney who the Judge ultimately realized was wheel chair bound, in an abusive
manner because the attorney failed to stand up before he addressed the Judge or watching
attorneys lie and slander each other in order to get an edge in a case, I witness members of our
profession treating ach other very poorly on a regular basis. In my humble opinion, especially
during this period of time when many people are suffering and facing life obstacles that they
never imagined they would face, it should be expected that attorneys will consent to requests for
adjournments that do not prejudice their client in any way.
Furthermore, an attorneys representation that he is physically unable to complete a
motion or other filing in a timely manner should be accepted as an adequate reason for an
adjournment and attorneys should not be required to provide the Court and their adversaries with
a detailed explanation, in a publicly filed document, regarding the issues that are preventing the
attorney from filing the motion on time. Attorneys should be able to keep private family or
medical issues private. I am not comfortable sharing private information about my family and
about my health in a publicly filed document or to a judge or an adversary in order to request an
extension of time to file a motion,. That having been said, I feel obligated to provide the Court
with some information about why I filed the motion papers late. In addition to being ill for a
significant period of time and struggling to recover from the illness, pandemic related issues
physically prevent me from completing work on a daily basis. I am currently unable to begin
working each day on anything that requires me to think until approximately 10:00 pm each night
after waking up each morning at approximately 5:00 am. Consequently, it is extremely difficult
to complete a significant amount of work each night after 10:00 pm, if I intend to sleep. I had to
miss two nights of sleep this week in order to complete the motion for this case because I did not
think it would be appropriate to request another extension in light of defendants’ objections. I did
the best job I could given the circumstances and I apologize to the Court in advance if there are
any errors in the motion. For these reasons I respectfully request that the Court grant plaintiffs’
request for an extension of time to file the motion papers, nunc pro tunc, and a corresponding
enlargement of time for the parties to file the responsive motion papers.
The following proposed motion schedule is a revised schedule adding five days to each of
the remaining deadlines:
Defendants’ brief containing their reply and opposition to plaintiff’s motion: October 24,
2020
Plaintiff’s Reply: November 4, 2020

Case 1:19-cv-00365-PAE Document 72 Filed 10/13/20 Page 3 of 3

We thank the Court for its consideration herein and genuinely appreciate the patience and
understanding the Court has shown plaintiff when plaintiff was unable to file his motion papers
in a timely manner.’
.
Respectfully submitted,
/s/
David M. Hazan, Esq.
Attorney for Plaintiff

Notwithstanding plaintiff’s late filing and regrettable failure to consult with defense counsel
prior to writing the Court, the Court will accept plaintiff’s late filing, in recognition of
plaintiff’s counsel’s health challenges. In deference to the inconvenience presented to
defense counsel by plaintiff’s counsel’s failure to heed the briefing schedule set by the
Court, the Court will give defense counsel a date of their choice, within the next four weeks,
to submit their responsive brief. Defense counsel are to notify the Court by the close of
business Thursday, October 15, 2020, of the date on which that filing will be made.
Following that submission, plaintiff’s reply, if any, shall be due two weeks later; no
extensions of that deadline will be permitted.

SO ORDERED.
__________________________________
PAUL A. ENGELMAYER
United States District Judge

October 13, 2020