Duartez et al v. 520 Fee Owner 2 LLC et al

Filing 45

ORDER denying 43 Letter Motion to Compel; denying 43 Letter Motion for Discovery. The motion to compel discovery is DENIED. Defendants have not shown how the relevant interrogatories satisfy Local Rule 33.3. SO ORDERED. (Signed by Judge Lewis J. Liman on 3/27/2024) (va)

March 26, 2024
Via E-Filing
United States District Court
Southern District of New York
500 Pearl St.
New York, New York 10007-1312
Attention: Honorable Lewis Liman
Re:

The motion to compel discovery is DENIED. Defendants have not
shown how the relevant interrogatories satisfy Local Rule 33.3.
DATE: March 27, 2024

Duartez, Carlos and Juan Lozano Vera v. 520 Fee Owner 2 LLC, et al.
Case No: 1:23-cv-03447
Our File No: 824.40287
SECOND MOTION TO COMPEL DISCOVERY FROM PLAINTIFF

Dear Judge Liman,
Plaintiffs served supplemental discovery responses pursuant to your Honor’s Order after
defendants’ first discovery motion. However, some deficiencies remain, for which defendants are
now forced to move for a further Order. All the good faith efforts to resolve these matters as
outlined in the first motion apply to these continuing deficiencies which set forth herein.
In their answers to interrogatories with respect to notice of a “hazardous and dangerous
condition” at the jobsite, while they state that defendants created it, and that therein lies their actual
notice of it, they do not specify its nature and location as requested, leaving defendants still in the
dark about that. (Number 7a.) Surely, plaintiffs cannot allege a premises condition causing their
injuries without explaining what it is. Nor do they state, with respect to the claim of constructive
notice of that (as yet unknown) conditioin, its nature, its inception date, its duration, and the date
when defendants had such notice. (Number 8a, b and c.) It is insufficient to merely assert, as
plaintiffs only do, that the condition (whatever they are claiming it was) existed for long enough
to have been noticed.
Elsewhere, plaintiffs state that defendants “failed to provide proper overhead protection for
those workers lawfully on the site”, stating the cause of their injuries to be from being struck with
a falling object, which implicates the way in which work at the site was being handled and
managed. This is not the same thing as a “hazardous and dangerous condition” on the premises,
and plaintiffs do not try to assert that it is. If plaintiffs’ injuries were not caused by such a
condition, they should so state in response to interrogatory numbers 7 and 8. Otherwise, they
must provide the details concerning such a condition as outlined above.
Lastly, even though the Order after the first motion required plaintiffs to serve their Initial
Disclosures, plaintiffs have still not done so, though they were originally due in August 2023.

[3099912/1]

Defendants request that an Order be entered compelling plaintiffs to provide full and
complete answers to interrogatory numbers 7 and 8 or withdraw their allegations that plaintiffs’
injuries were caused by any hazardous and dangerous condition at the job site, and to provide their
Initial Disclosures.
Very truly yours,
FABIANI COHEN & HALL, LLP

Nicholas L. Paone
_____________________________
Nicholas L. Paone, Esq
cc:

Via E-Filing
JR WYATT LAW, PLLC
295 Madison Avenue
Ste 27th Floor
New York, New York 10017
Attention: Jason M. Bernstein, Esq