The Law Office of eee ; DOCUMENT Rehan Nazrali, Esq. ELECTRONICALLY FILE DOC #: 299 Broadway = 17th Floor * New York, NY 10007 = Tel: (646)331-9378 = |] nate FILED: 2/28/2024 www.NazralilLaw.com; E-mail: [email protected] February 9, 2024 Via ECF The Honorable Jennifer H. Rearden United States District Judge Southern District of New York United States Cousthouee MEMO ENDORSED 500 Pearl Street New York, NY 10007-1312 Re: ALVAREZ V. CORRECTIONS OFFICER BOHILL (FIRST NAME UNKNOWN) Docket No.: 1:23CV01785 (JHR)

Dear Judge Rearden, I represent Plaintiff Carlos Alvarez in the above referenced matter and write, for a fourth time, requesting from this Honorable Court a vacature of the December 22, 2023 order and for a final Order for an extension of time to serve Def. Bohill. It is respectfully submitted that Plaintiff has good cause, as detailed below, to request a fourth, and final, additional extension to effectuate service on Defendant Bohill. Previously, this Court has graciously, and correctly, granted Plaintiff three extensions of time to serve Def. Bohill, instances in which Plaintiff has continuously demonstrated good cause for his failure to serve.' This Honorable Court has previously noted Plaintiff's past efforts to ascertain Def. Bohill’s first name via seven (7) DOCCS FOIL requests, efforts which have spanned from March of 2023 and have continued up until present day’ and have, at last, yielded an optimistic and positive response from the DOCCS. In Plaintiff's prior extension request, it was noted that Counsel was looking to obtain an updated copy of a Power of Attorney document as requested by DOCCS via email’ on October 20, 2023. Mr. Alvarez obtained the notarized document on November

' See Dkt #5 — 10 2 See Exhibit A 3 See Exhibit B

22, 20234 and provided its physical copy to Caribe Express, a courier company, to mail from his home in the Dominican Republic. In order to accelerate the filing process, Mr. Alvarez digitally sent Counsel a copy, which was promptly filed with DOCCS on December 11, 20235. On December 13,2023,DOCCSnotifiedCounselviaemail6thatthey required a “legible copy of the Power of Attorney,” rendering the digital copy obtained from Mr. Alvarez useless. At this point, the physical copy mailed out by Mr. Alvarez had not yet been delivered. Unfortunately, due to circumstances out ofMr.Alvarez’scontrol, itwasdiscoveredthatthedeliveryofthephysical documentwasnotproperlycarriedout by Caribe Express. Due to physical ailments as aresultoftheinjuriesinflicteduponhim by Def. Bohill and the difficulty of travel involved invisitingCaribeExpressinstore,Mr. Alvarez was unable to appear in-person to ensure the document would be appropriately processed and mailedoutuntilJanuary22,2024, atwhichpointCaribeExpress,whohad been sitting on the document without proper processing for numerous weeks, finally processed it via UPS and had it mailed. The document was delivered to Counsel’s office on January 29, 2024. A seventh request7 was then sent to DOCCS with the more legible copyofthePowerofAttorneydocumentprovided. On February 7, 2024, my office received a letter8 via email from the DOCCS confirming receipt of our records request, specifically stating that our request had been forwardedto“FishkillCorrectionalFacility forappropriateaction.9” This letter’s contents marks the first time in which DOCCS has stated it is currently processing Plaintiff’s request through a specific facility, to wit, the “Fishkill Correctional Facility” for what it calls “appropriate action.10” It is Plaintiff’s counsel's belief, in this seventh request, in whichDOCCShasdeliveredthemostpositiveresponse received to date detailing next steps, that Plaintiff asserts he has properly satisfied DOCCS requirement of time and type of records (Hearst Corp & Brendon Lyons v. NYS 4SeeExhibitC 5SeeExhibitD 6SeeExhibitE 7SeeExhibitF 8SeeExhibitG 9Furthersettinganapproximatespanoftwenty(20)businessdaysbeforeadecisionismade 10SeeExhibitG Dept of Corrections, et al., Index 88-2016 [Albany County]) and should be abletoobtain the requested records most likely to contain Def. Bohill’s full name — sufficient to ascertain his complete identity and locate him for service, accordingly. Through the above referenced instances, it is clear that Plaintiff is fully committed to pursuing this action, even from abroad, and has no interest in abandoning this action. This Court has previously made note of the Plaintiff’s diligent efforts11 and, as such, respectfully requeststhatthisCourtmakeonefinalexception,asPlaintiff is nowontheone-yardline, ifyouwill,wellwithinstrikingdistanceofobtainingtheDOCCSdocuments. As this Court has previously stated in its priorOrders12,thereisnoprejudice(See Also, e.g., Husowitz v. American Postal WorkersUnion,190F.R.D.53,57[E.D.N.Y.1999]) to Defendant in granting Plaintiff such an extension. Plaintiff avers that no such prejudice would actuate should the Court grantPlaintiff’srequest,asnofactsofthecase have changed from the prior application other than an additional positive response received fromDOCCS. Accordingly, Plaintiff requests that this Honorable Court vacate its order dated December 22, 2023 where it held that itwouldnotextendPlaintiffanyadditionaltimeto serve and grant him an additional fourth extension of time to find and serve the defendant. Significantly, Rule 60(b)(6) affords Parties the opportunitytoseekvacatureofthe Court’s prior order where such relief is merited and for "any other reason justifying relief" provided that the motion is not covered by 60(b)(1) through (5), and is made within a "reasonable time," and presents evidence of "extraordinary circumstances". See Ackermann v.U.S.,340U.S.193,71S.Ct.209,95L.Ed.207(1950);[**5] KlapprottvU.S.,

,

,

(1949); Dunlop v. PanAmericanWorldAirways Inc ,

(2d. Cir. 1982);Montco,Inc.v.Barr,666F.2d754(2d.Cir1981);U.S.v. Cirami,

(2d. Cir 1977). Golden Oldies, Ltd. v. Scorpion Auction Group, Inc., 199F.R.D.98,99-100. 11SeeDkt#5,7,&10 12SeeDkt#5–8 In Golden, Plaintiff was unable to serve the defendant due to circumstances outside of his controlandtheCourtgrantedPlaintiff’smotiontovacateadismissalgiven Plaintiff demonstrating diligent efforts to serve an incalcitrant defendant, constituting extraordinary circumstances. In parallel with Golden, Plaintiff has actively made numerous attempts at ensuring proper processing and delivery of his documents, only fallingvictimtoextraordinarycircumstancesoutsideofhiscontrol13. Additionally, the Second Circuit has explained that Rule 60(b)“shouldbebroadly construed to do 'substantial justice,.'" Nemaizer v. Baker,

(2d Cir. 1986) (internal and otherquotation andcitationsomitted).Further,becauseRule60(b) permits "extraordinary judicial relief, it is invoked only upon a showing of exceptional circumstances."

(citations omitted).” Sioleski v. Sullivan,

,*3. In thematterathand,thefacts alsorunparalleltoJohnsonandSioleski,supra,as Mr. Alvarez’s diligent attempts at ensuring proper prosecution of this action, despite inadvertent excusable errors made in the delivery of the necessary documents by third parties outside of his controlalongwiththedifficulties hehasphysicallyinprovidingthe aforesaid document, unquestionablyfallunder “ashowingofexceptionalcircumstance,” aswellas“excusableneglect,”whenweighingthecircumstances. Accordingly, Plaintiff respectfully requests this Honorable, and already charitably merciful Court,to vacateitsDecember22,2023Order,andgrantonefurther extensionof time, for a final 90 days from this Court’s existing final dateofFebruary26,2024,toMay 25, 2024, in order to permit Plaintiff to obtain the requested DOCCS files, serve Defendant Bohil, and file an affidavitofservice,establishingproperandtimelyserviceof processasprovided underRule4(m). Accordingly, Plaintiff humbly and respectfully requests the aforesaid additional extension of time to allow him to continue his efforts to serve and file proof of service upontheDefendant. 13Fed.R.Civ.P.60(b)(1)"permitsadistrictcourttograntrelieffromajudgmentbasedon'mistake, inadvertence,surprise,orexcusableneglect.'"Johnsonv.Univ.ofRochesterMed.Ctr.,642F.3d121,125 (2dCir. 2011)(quotingFed.R.Civ.P.60(b)(1))Meilleurv.Strong,682F.3d56,64. Yours, fi Nazrali, Esq.

Application GRANTED, in light of Plaintiffs counsel’s representations that (1) “Plaintiff is now on the one-yard line,” “well within striking distance of obtaining” the DOCCS documents that are allegedly needed to “ascertain [Defendant’s] complete identity and locate him for service,” ECF No. 11 at 2-3, and that (2) the instant application seeks a “final, additional extension to effectuate service on Defendant Bohill.” /d. at 1 (emphasis added); see also ECF No. 12 (attaching February 2024 correspondence from Fishkill Correctional Facility acknowledging Plaintiff's FOIL request). Plaintiff shall file proof of such service by May 25, 2024. No further extensions will be granted. Failure to serve by the deadline will result in dismissal Rule 4(m) of the Federal Rules of Civil Procedure without further notice. The Clerk of Court is directed to terminate ECF No. 11. SOQ ORDERED. ork Reardon H.~Rearden, U.S.D.J. ed: February 28, 2024