SUPREME COURT OF THE STATE OF NEW YORK : ERIE COUNTY
Bella Henderson
Plaintiff File No. 79-65142
vs.
Office-Mart, Inc.
Defendant
PLAINTIFF’S NOTICE AND MOTION TO COMPEL DISCOVERY
TO: All Counsel of Record
PLEASE TAKE NOTICE, that Plaintiff, Bella Henderson moves the court for an order
compelling discovery from the Defendant.
2. This motion will be heard (add if appropriate) (by telephone):
BEFORE: Honorable Patrick Scolaro
PLACE: Erie County Courthouse
DATE: October 1st, 2019
3. The ground for the motion, as further set forth in the accompanying affidavit, is
that Defense counsel failed to respond to a June 1st request for documents, including the accident
report generated by the Defendant on the day of the incident, photographs of the scene of the
incident, inspection reports, and any other incident reports prior to those of the Plaintiff. On July
10th, having failed to receive such documents, a good faith letter was sent to counsel for the
defendant, asking that the demands be responded to within 30 days. The 30-day deadline has
passed and there has been no response from the defense counsel to indicate that they will provide
an answer to the demands.
Office of Chase & Hsu
Susan Chase
Attorney for the Plaintiff
601 Lexington Ave
New York, NY 10029
SUPREME COURT OF THE STATE OF NEW YORK : ERIE COUNTY
Bella Henderson
Plaintiff File No. 79-65142
vs.
Office-Mart, Inc.
Defendant
AFFIDAVIT IN SUPPORT OF MOTION TO COMPEL
I, Susan Chase, being duly sworn, depose and say:
I, Susan Chase, make the following affirmation under penalty of perjury:
I am the attorney for the plaintiff and do respectfully request that the Court issue an order to
compel documents that have been requested from the defendant in a letter dated July 10, 2019.
The reasons to seek such relief are enumerated below:
1. Exhibit A: A demand for disclosure of the documents including: the accident report
Mrs. Henderson completed, photographs of the accident scene, inspection reports and
any other incident reports prior to the date of the accident.
2. Exhibit B: Letter sent to defense counsel dated July 10, 2019 and receipt of delivery.
I declare under penalty of perjury that the foregoing is true and correct, to the best of my
knowledge, information and belief.
Dated:____________________ ______________________________
SUPREME COURT OF THE STATE OF NEW YORK : ERIE COUNTY
Bella Henderson
Plaintiff File No. 79-65142
vs.
Office-Mart, Inc.
Defendant
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL
The Plaintiff, Bella Henderson through her counsel, submits this memorandum in support
of Motion of Compel the Defendant to comply with the court ordered Discovery dated June 1st.
1. BACKGROUND
The Plaintiff’s Motion to Compel arises out of the dispute regarding the refusal of the
Defendant to provide documentation sought by the Plaintiff for purposes of
discovery,
In January of 2016, the Plaintiff suffered an incident on the property of the Defendant located in
Amherst, New York. The Plaintiff slipped on black ice which was on the Defendant’s sidewalk.
A managerial employee of the Defendant assisted the Plaintiff immediately after she had fallen.
The Manager was heard by the Plaintiff yelling at another Defendat’s employee, in a manner that
acknowledged the Defendant’s employees had prior knowledge of the ice on the sidewalks and
did not apply salt to the sidewalks after they had been shoveled. The result of the incident was a
bio-malleolar fracture of the right ankle. The fracture necessitated surgery including the insertion
of plates and screws. Plaintiff’s surgeon has indicated that he is uncertain as to whether Plaintiff
will ever full recover from the injury. Furthermore the surgeon is certain Plaintiff will necessitate
further surgery. Prior to the incident, Plaintiff was employed as a pediatric nurse at the Women’s
and Children’s Hospital of Buffalo and has since been unable to attend work for a significant
amount of time.
Counsel for the Plaintiff served Counsel for the Defense a document demand for
disclosure of the accident report created by the Defendant, photographs of the accident scene,
inspection reports and any other incident reports prior to the date of the accident. July10, 2018 a
letter was sent to opposing counsel requesting that he respond to these outstanding demands
within 30 days. That letter was sent as a good-faith attempt on the part of Plaintiff’s counsel to
avoid the cost of motion practice. The 30-day deadline has passed and there is no indication from
the Defense Counsel that they plan to comply.
2. ARGUMENT
Pursuant to NY CLS CPLR R 3042: “a demand for the bill of particulars shall me
made by serving a a written demand stating the items concerning which particular are requested.
Within thirty days of service of a demand for a bill of particulars, the party on whom the demand
is made is made shall serve a bill of particulars complying with each item of the demand except
any item to which the party objects, in which even the reason for the objection shall be stated
with reasonable particularity….
NY CLS CPLR R 3124: if a party fails to respond to a demand in a timely fashion or
fails to comply fully with a demand, the party seeking the bill of particulars may move to
compel compliance.
The original plaintiff demand was served to the opposing counsel on June 1st, 2019.
There was no respond from defense counsel by July 10th, 2019. 30 days after July 10, 2019
defense counsel has still not responded.
Pursuant to these guidelines, plaintiff has grounds to move to compel discovery.
3. CONCLUSION.
For the aforementioned reason, Counsel for the Plaintiff respectfully submits that the
Court should Order the Defendant to produce the documents that the Plaintiff has requested twice
without receiving response.
Respectfully submitted,
THE PLAINTIFF
BELLA HENDERSON
BY __________________________
Susan Chase, Chase & Hsu, P.C.
Attorneys for Plaintiff
601 Lexington Avenue
New York, NY 10022
