Suarez v. The Long Island Railroad Company

PHILIP J. DINHOFER, LLC ATTORNEYS AT LAW N. CENTRE AVE. - SUITE 314 ROCKVILLE CENTRE, NY 11570 TEL: 516-678-3500 FAX: 516-678-4235 E-MAIL: [email protected] July 23, 2025 VIA ECF von Pardo tans MEMO ENDORSED United States District Judge The Court directs Defendant to respond.

United States Courthouse Foley Square SO ORDERED.

New York, NY 10007 0) 4 + Re: Suarez v. LIRR, et al. AX S \——.

22 Civ. 9013 (ER) Edgardo Ramos,‘U.S.D.J.

Dated: July 23, 2025 Dear Judge Ramos: New York, New York Plaintiff Suarez does herewith move the Court for an Order compelling the deposition of Mr. Able Guzman on the terms set forth below, or as modified by the Court.

As the Court may recall from our last conference and Docket Entries #48 & #48-1, on June 5, 2025 plaintiff served the person whom defendant D & C United identified as the driver of their subject vehicle, Mr. Abel Guzman, with a deposition subpoena for a proceeding that was to be conducted yesterday, on July 22, 2025. Despite being served with the subpoena some six weeks ago at the same address where he was served with the summons and complaint in the related State action (Exhibit 1, affidavit of service), which address we know to be appropriate given that said prior service generated Mr. Guzman’s Answer in the State action (by no strange coincidence interposed by the same attorney, Mr. Harms, who represents the defendant vehicle owner, D & C United, and their insurance carrier, Exhibit 2), Mr. Guzman failed to appear for yesterday’s deposition. Nor has Mr. Guzman interposed any objection to the Subpoena (Dk #48) that was properly served upon him per Docket #48-1, and his time to do so has now expired.

I am constrained to remind the Court that this Subpoena process was voluntarily suggested by me at our last conference of May 30, 2025, as an expedient remedy to Mr. Guzman’s failure to appear on April 8, 2025 pursuant to the notice of deposition served upon his attorney, Mr. Harms, who had initially agreed to produce Mr. Guzman and then subsequently sophomorically claimed he had no “control” over Mr. Guzman, all the while failing to disclose before you during his prolific presentation that he actually represented Mr. Guzman in the related State action.

Plaintiff is trying in good faith to secure the deposition of the hit and run driver of the subject vehicle that rear ended plaintiff's vehicle and then fled the accident scene, a necessary witness, first by notice and then second by Subpoena, both without success. Our next remedy, before seeking a contempt order and Mr. Guzman’s arrest/detention by the Court so that he may be deposed, is to obtain your Order compelling Mr. Guzman’s deposition by Stenographer and/or Video, on September 11, 2025 at 10:00 AM at the offices of Lexitas Reporting, 100 Merrick Road, Suite #320W, Rockville Centre, NY, 11570. [See e.g.: Daval Steel Products, a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, at headnotes 4, 5 (2nd Cir. 1991)(Due process requires that in the instance of an attorney issued Subpoena, an Order from the Court must also be issued before contempt & sanctions may be imposed)]. Per Daval, the Second Circuit has indicated that your Order should provide Mr. Guzman with fair notice that his failure to appear at this deposition will result in his arrest/detention by the Court so that he may be deposed and additionally the imposition of sanctions, including inter alia, that of contempt against him as well. Since Mr. Guzman and defendant D & C are both represented by the same attorney and both are protected under the same policy of insurance and therefore both stand in para materia for liability purposes, we respectfully request that the Court’s order additionally put an end to the gamesmanship had herein that has already twice burdened the Court and four other law offices with such puerile frivolity, and thereby add to its Order a stern warning to defendant D & C of the imposition of similar sanctions, including inter alia, the striking of their pleadings should Mr. Guzman fail to comply with the Court’s directive to appear for deposition on September 11, 2025.

Since the Court already has jurisdiction over Mr. Guzman by reason of the prior service of a Subpoena, in addition to the service that will occur by reason of the ECF delivery to Mr. Guzman’s de facto attorney, upon receipt of the Court’s Order directing the deposition sought herein, as per the foregoing and Daval, I will additionally arrange for the trackable overnight delivery of a copy to him at the address where he has twice before been successfully served, which is the address provided to me by his attorney, Mr. Harms.

Respectfully yours, Philip J. Dinhofer PHILIP J. DINHOFER PJD/dd Encs: cc: Andrew Harms, Esq.

Garrett Rooney, Esq.

Jacob Goins, Esq.

Fredric M. Gold, Esq. (All Via ECF) ~ aPrioavrt OF senvice P21.935970 PHILIP J. DINHOFER, LLC Philip J. Dinhofer SUPREME COURT BRONX COUNTY STATE OF NEW YORK GREGORY SUAREZ, ETAL Index No. 809253/2024E PLAINTIFF Date Filed - vs - Office No. ABEL GUZMAN Court Date.

DEFENDANT STATE OF NEW YORK, COUNTY OF NEW YORK :SS4 JUAN POLANCO being duly sworn, deposes and says; I am over 18 years of age, not a party to this action, and reside in the State of New York. That on the 28TH day of JUNE 2024, 12:44PM at 1119 WASHINGTON AVENUE BRONX NY 10456 I served the DEMAND FOR JURY TRIAL, SUMMONS AND VERIFIED COMPLAINT, VERIFICATION upon ABEL GUZMAN, the DEFENDANT, therein named by delivering and leaving a true copy or copies of the aforementioned documents with Marcelina Guzman, MOTHER, a person of suitable age and discretion.

Deponent describes the person served as aforesaid to the best of deponent's ability at the time and circumstances of the service as follows: SEX: FEMALE COLOR: BROWN HATR: GREY APP.AGE: 60 APP. HT: 5ft5in APP. WT: 175 OTHER IDENTIFYING FEATURES On 07/01/2024 I deposited in the United States mail another true copy of the aforementioned documents properly enclosed and sealed in a post-paid wrapper addressed to the said DEFENDANT at the above address. That being upon information and belief, the usual place of abode, last known residence of the DEFENDANT .

Copy mailed lst class mail marked personal and confidential not indicating on the outside thereof by return address or otherwise that said notice is from an attorney or concerns an action against the person to be served.

COMMENTS: That at the time of service, as aforesaid, I asked the person spoken to whether the DEFENDANT was in the military service of the United States Government, or of the State of New York, and received a negative reply. Upon information and belief based upon the conversation and observation as aforesaid I aver that the DEFENDANT is not in the military service, and is not dependent on anyone in the military service of the United States Government or the State of New York, as that term is defined in statutes of the State of New York, or of the Federal Soldiers and Sailors Civilian Relief Act. we \ □ Sworn to before me this / : 01ST day of JULY, 2024. f yo oy a <_/ JUAN POLANCO 2031534 } oe ( 9 Lexitas □ ‘ © SELENA INES ADAMES oe 1235 BROADWAY 2ND FLOOR : N Notary Public, State of New York NEW YORK, NY 10001 No. O1AD6365042 Reference No: 3-PJDLLC-21935970 Qualified in QUEENS COUNTY Commission Expires 09/25/2025 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX nnn nnn X — Index No.: 809253/2024E GREGORY SUAREZ and JULISSA SUAREZ, Plaintiff(s) -against- VERIFIED ANSWER ABEL GUZMAN, Defendant. nnn enna nnn nnn nnn nnn K SMITH, LLP, as and for their Verified Answer to Verified Complaint, upon information and belief, alleges: AS AND FOR A ANSWER TO THE FIRST CAUSE OF ACTION 1. Defendant denies each and every allegation contained in paragraphs “1”, “2”, “3”, “8”, “9” “10”, “1 1”, “12”, “14”, of the Verified Complaint.

2. Defendant denies each and every allegation contained in paragraphs “4”, and “13”, of the Verified Complaint and respectfully refers all questions of law and fact to this Honorable Court.

3. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “‘5’’, and “6”, of the Verified Complaint.

AS AND FOR A ANSWER TO THE FIRST CAUSE OF ACTION 4. Defendant repeats, reiterates and realleges each and every answer set forth herein in paragraphs “1” through “14” in response to paragraph “15” of the Verified Complaint.

5. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph “16” of the Verified Complaint.

6. Defendant denies each and every allegation contained in paragraphs “17”, and “36”, as well as to the WHEREFORE clause of the Verified Complaint.

142556165.1 Dated: New York, New York July 18, 2024 Yours etc., LEWIS BRISBOIS BISGAARD & SMITH LLP .

77 Water Street, Suite 2100 New York, New York 10005 (212) 232-1300 Our File No.: 29881.452 To: Philip J. Dinhofer PHILIP J. DINHOFER, LLC.

Attorneys for Plaintiffs GREGORY SUAREZ and JULISSA SUAREZ N. Centre Avenue- Suite 314 Rockville Centre, New York 11570 (516) 678-3500 142556165.1 -2- ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) ANDREW D. HARMS, being duly sworn, deposes and says: That I am a partner with the law firm of LEWIS BRISBOIS BISGAARD & SMITH LLP, attorneys representing the Defendant, ABEL GUZMAN that I have read the attached VERIFIED ANSWER and the same is true to my own belief, except as to the matters alleged on information and belief, and as to those matters, I believe them to be true to the best of my knowledge: That deponent’s source of information is a claims file containing reports and records of investigation, with which deponent is familiar; That this Verification is made by deponent, because my clients do not reside within the county where the deponent maintains his office.

Dated: New York, New York July 18, 2024 By: Andrew Harms ANDREW D. HARMS AFFIRMATION OF SERVICE STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) MACHELE SNIPES, being duly sworn, affirm, deposes and says that deponent is not a party to this action, is over 18 years of age and resides in Essex County, New Jersey; that on the 18th day of July, 2024 deponent served the within document(s) entitled VERIFIED ANSWERUPON: Philip J. Dinhofer PHILIP J. DINHOFER, LLC.

Attorneys for Plaintiffs GREGORY SUAREZ and JULISSA SUAREZ N. Centre Avenue- Suite 314 Rockville Centre, New York 11570 (516) 678-3500 at the address(es) designated by said attorney(s) for that purpose by depositing a true copy of same enclosed in a postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office within the State of NewYork.

Machele Snipes MACHELE SNIPES LEWIS BRISBOIS BISGAARD & SMITH LLP Index No.: 809253/2024E File No.: 29881.452 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX GREGORY SUAREZ and JULISSA SUAREZ, Plaintiffs, -against- ABEL GUZMAN Defendants.

VERIFIED ANSWER LEWIS BRISBOIS BISGAARD & SMITH LLP Counsel for Defendant D & C UNITED INC. Office Address & Tel. No.: 77 Water Street, 21ST Floor New York, New York 10005 (212) 232-1300 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous.

Signature: Print Signer’s Name: Service of a copy of the within is hereby admitted.

Dated: Attorney(s) for Defendant