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FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________________________________________________
KELLY POWERS, Index No. 805221/2019E
Plaintiffs,
AFFIRMATION IN
SUPPORT OF MOTION
-against-
EMILY ARENA, M.D., SAIRA MEHMOOD, M.D.,
JOSHUA O. McHUGH, M.D., CHERYL K. CHANG, M.D.
and MOUNT SINAI WEST,
Defendants.
_______________________________________________
ROSA RUIZ, an attorney duly licensed to practice law before the Courts of the State of
New York, affirms that the following is true under the penalties of perjury and CPLR §2106:
1. I am associated with the law firm of McALOON & FRIEDMAN, P.C., attorneys
for defendants SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., CHERYL K.
CHANG, M.D. and ST. LUKES-ROOSEVELT HOSPITAL CENTER s/h/a MOUNT SINAI
WEST (hereinafter “Defendants”), in the above-captioned matter. I am fully familiar with the
facts and circumstances existing herein as a result of a review of the file maintained by this
office.
2. I submit this Affirmation in support of the instant application on behalf of the
defendants for an order (a) Pursuant to CPLR § 3126(2) and (3), dismissing plaintiff’s action in
its entirety for her willful failure to provide the outstanding discovery; or alternatively (b)
Pursuant to CPLR §§ 3126 and 3124, compelling plaintiff to provide the discovery within two
weeks and automatically dismissing the Complaint and directing the clerk to enter judgment
accordingly if plaintiff fails to do so; or alternatively (c) Pursuant to CPLR § 3126(2), precluding
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plaintiff from offering any testimony or medical records at the trial of this matter; and (d)
Granting defendants such other relief as the Court deems just and proper.
3. This medical malpractice action involves allegations of failure to diagnose and or
treat pericarditis. Plaintiff was seen by these defendants in April 2018 in the emergency
department and was instructed to follow up with GI and her primary care physician. She was
diagnosed we are told with pericarditis four months later in August. By her own admission
between April and August, she went to at least two other emergency departments, her primary
care physician, gastroenterologist, and urgent care during the same time period before a
diagnosis was made. Defendants have demanded but not received authorizations for the urgent
care center, GI, the other EDs, collateral source providers including blue cross/blue shield,
subsequent treatment at Beth Israel Medical Center, Mount Sinai Hospital amongst others
although multiple phone calls have been made to counsel for plaintiff and multiple emails and
letters sent with assurances that authorizations for those records would be provided. They have
not. Defendants are hamstrung in their defense without these records and assurances that
authorizations would be provided have been going on for much too long.
PROCEDURAL HISTORY
4. This medical malpractice action was commenced by the filing of Summons and
Complaint on or about July 11, 2019 (NYSCEF Document No. 1). Issue was joined on
September 10, 2019, when your affirmant’s firm filed a Verified Answer on behalf of defendants
SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., and CHERYL K. CHANG, M.D.,
and on September 18, 2019, when your affirmant’s firm filed a Verified Answer on behalf of
defendant ST. LUKES-ROOSEVELT HOSPITAL CENTER s/h/a MOUNT SINAI WEST.
(NYSCEF Document Nos. 7, 8 and 9).
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5. On September 10, 2019, your affirmant’s firm served initial Combined Demands
upon the plaintiff on behalf of the defendants SAIRA MEHMOOD, M.D., JOSHUA O.
McHUGH, M.D., and CHERYL K. CHANG, M.D. (Exhibit “A”). Said Combined Demands
included a Demand for Medical Records, Demand for a Verified Bill of Particulars, Demand for
Collateral Sources, Demand for Medicare/Medicaid Eligibility, Notice for Discovery and
Inspection, Notice to Produce, Demand for Authorizations and other items of discovery.
6. On September 18, 2019, defendant ST. LUKES-ROOSEVELT HOSPITAL
CENTER s/h/a MOUNT SINAI WEST served its Combined Demands upon the plaintiff.
(Exhibit “B”). On that same date the defendants also served a Demand for Authorizations dated
September 17, 2019. (Exhibit “C”).
7. On May 7, 2020, having failed to receive a response to said Discovery Demands
from the plaintiff in the nearly eight (8) months after being served with the Combined Demands
and Demand for Authorizations, the defendants filed a motion to dismiss or to compel discovery
alternatively. Plaintiff in opposition to said motion provided an incomplete response to
defendants’ initial discovery demands and a Bill of Particulars.
8. In their motion in Reply, the defendants indicated that discovery remained
outstanding, including authorizations and Supplemental Bills of Particulars regarding
particularized allegations as to the alleged acts and omissions of each defendant.
9. Since then, the defendants served numerous discovery demands related to
plaintiff’s prior and subsequent treatment. See Demands for Authorizations dated July 29, 2020;
July 30, 2020; September 25, 2020; September 29, 2020; November 5, 2020; November 6, 2020;
and November 11, 2020. (Exhibit “D”).
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10. On October 9, 2020, the defendants sent a letter as a good faith effort to secure a
response to their Demand for Authorizations dated September 29, 2020. (Exhibit “E”)
11. On October 26, 2020, the court rendered a decision on the defendants’ motion and
directed the plaintiff to provide the outstanding discovery and Supplemental Bills of Particulars.
(Exhibit “F”)
12. On November 17, 2020, defendants sent another letter in an effort to secure a
response to outstanding discovery, including all demands for authorizations. (Exhibit “G”). On
November 20, 2020, the parties submitted a proposed Preliminary Conference Order by which
plaintiff was to provide all outstanding discovery within thirty days. (Exhibit “H”). Plaintiff has
not. On December 21, 2020, January 15, 2021, and February 2, 2021, the defendants sent letters
to the plaintiff in an attempt to obtain the outstanding discovery. (Exhibit “I”).
13. A Stipulation and Order dated April 19, 2021, directed the plaintiff to provide all
outstanding discovery by May 1, 2021. (Exhibit “J”). Since then, the defendants have sent over
five letters requesting a response to said Stipulation and Order. (Exhibit “K”). This office has
contacted plaintiff’s counsel on numerous occasions. We have called. We have written. We
have emailed all in an effort to obtain court ordered discovery and avoid motion practice.
Counsel for plaintiff, Mr. Essner has promised to provide the outstanding discovery many times.
In fact, as per plaintiff’s counsel’s request, on June 28, 2021, your affirmant sent an electronic
mail outlining every item of discovery that remains outstanding, including but not limited
to Beth Israel Medical Center, Mount Sinai Hospital, Blue Cross/Blue Shield, Dr. Nicholas
Pantaleo, Dr. Constantinos Hadjipanayis amongst others. (Exhibit “L”).
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14. To date, plaintiff has failed to respond to defendants’ good faith attempts and
have failed to provide the aforementioned discovery. Further, the defendants have not received a
single item of discovery since July 22, 2020, this despite all efforts aforementioned.
ARGUMENT
POINT I
PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED
15. Dismissal of this action, pursuant to CPLR § 3126, is an appropriate sanction for
plaintiff’s utter disregard of and willful lack of compliance with defendant’s discovery demands.
CPLR § 3126 states in relevant part:
“If any party . . . refuses to obey an order for disclosure or willfully fails to
disclose information which the court finds ought to have been disclosed,
pursuant to this article, the court may make such orders with regard to the
failure or refusal as are just, among them:
...
3. [A]n order . . . dismissing the action or any part thereof.”
16. The courts have long held that CPLR § 3126 sanctions apply to willful disregard
of Notices for Discovery, as well as to a disregard of Orders. In Goldner v. Lendor Structures,
29 A.D.2d 978, 289 N.Y.S.2d 687 (2d Dept. 1968), the Appellate Division, Second Department
stated:
“[S]anctions which may be imposed under said section [CPLR §3126]
apply to notices of examination as well as to orders therefor” (emphasis
added).
Id. at 979, 289 N.Y.S.2d at 689; see also, Harris v. Evans, 186 A.D.2d 454, 588 N.Y.S.2d 562
(1st Dept. 1992). More recently, the Appellate Division, Second Department in Wolfson v.
Nassau County Medical Center, 141 A.D.2d 815, 530 N.Y.S.2d 27 (2d Dept. 1988), affirmed the
Goldner holding with regard to dismissing an action pursuant to willful failure to comply with a
notice duly served. In Wolfson, the Court held:
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“The sanction of dismissal may be warranted even where, as in the present
case, the plaintiff committed no violation of a prior court order” (emphasis
added) (citation omitted).
Id., 141 A.D.2d at 815, 530 N.Y.S.2d at 27; see also, Strange v. Montefiore Hosp. and Med.
Center, 91 A.D.2d 507, 456 N.Y.S.2d 371 (1st Dept. 1982) (order of preclusion for plaintiff's
failure to serve Bill of Particulars has res judicata effect).
17. Not only the willful failure to provide discovery, but also the willful failure to
provide a Bill of Particulars warrants the sanction of dismissal. CPLR § 3042 (a) clearly states:
“Within thirty days of service of a demand for a bill of particulars, the
party on whom the demand is made shall serve a bill of particulars
complying with each item of the demand…” (emphasis added).
18. In this matter, plaintiff was ordered to provide supplemental bills of particulars.
Over a year has passed since defendants have received a single item of discovery from the
plaintiff despite all good efforts to obtain same.
19. As shown above, CPLR §3126 permits a court to impose the sanction of dismissal
for failure to provide disclosure. Additionally, “the absence of an excuse for the delay in
responding to discovery demands, and the delaying party’s failure to object to the demands,
supports an inference that the failure to comply was willful.” Ranfort v. Peak Tours, Inc., 250
A.D. 2d 747 (2d Dep’t 1998); see also Yona v. Beth Israel Medical Center, 285, A.D. 2d, 460,
461 (2d Dep’t 2001) (“[Plaintiffs’ protracted and repeated failure to provide ordered and
stipulated discovery demonstrates failure was willful and contumacious.”); Mills v. Ducille, 170
A.D. 2d 657, 657 (2d Dep’t 1991); Chase Manhattan Bank v. Abad, 131 A.D. 2d 312, 313 (1st
Dep’t 1987).
20. Plaintiff has failed to provide any excuse as to why she has not responded to
defendants’ discovery demands. There is no excuse for plaintiff’s failure to provide discovery for
over a year, and plaintiff’s behavior could only be considered willful and contumacious. In fact,
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plaintiff has repeatedly indicated he would provide authorizations. He has not. Therefore, this
case falls squarely within the definition of the aforementioned case law and thus, dismissal of the
Complaint is warranted.
POINT II
IN THE ALTERNATIVE, AN ORDER SHOULD BE ISSUED REQUIRING
PLAINTIFFS TO PROVIDE THE OUTSTANDING DISCOVERY BY A DATE
CERTAIN AND AUTOMATICALLY DISMISSING THE COMPLAINT IF PLAINTIFF
FAILS TO PRODUCE THE ITEMSBY THAT DATE
21. In the event this Court declines to dismiss the Complaint at this time, it is
respectfully submitted that the Court should compel production of the outstanding discovery by a
date certain and issue a self-executing order automatically dismissing the Complaint with
direction to the Clerk to enter judgment accordingly if plaintiff fails to produce the items by that
date.
CPLR § 3124 states in pertinent part:
“If a person fails to respond to or comply with any request, notice,
interrogatory, demand, question or order under this article…the party
seeking disclosure may move to compel compliance or a response.”
22. Plaintiff has clearly failed to provide the above-mentioned discovery. Without
question, an order compelling disclosure by a date certain is warranted. Furthermore, since this
discovery goes to the very heart of plaintiff’s claims, if plaintiff violates this Court’s order on the
instant motion compelling production of all outstanding discovery, the Court would be
completely justified in automatically dismissing the Complaint.
CONCLUSION
WHEREFORE, it is respectfully requested that this Court issue an order: (1) pursuant to
CPLR § 3126(2) and (3), dismissing plaintiff’s action in its entirety for her willful failure to
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provide the outstanding discovery; or alternatively, (2) pursuant to CPLR §§ 3126 and 3124,
compelling plaintiff to provide the outstanding discovery by a date certain and automatically
dismissing the Complaint and directing the Clerk to enter judgment accordingly if plaintiff fails
to do so; and (3) for such other relief in defendant’s favor as this Court deems just and proper.
Dated: New York, New York
July 22, 2021
____________________________
ROSA RUIZ
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FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________________________________________________ KELLY POWERS, Index No. 805221/2019E Plaintiffs, AFFIRMATION IN SUPPORT OF MOTION -against- EMILY ARENA, M.D., SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., CHERYL K. CHANG, M.D. and MOUNT SINAI WEST, Defendants. _______________________________________________ ROSA RUIZ, an attorney duly licensed to practice law before the Courts of the State of New York, affirms that the following is true under the penalties of perjury and CPLR §2106: 1. I am associated with the law firm of McALOON & FRIEDMAN, P.C., attorneys for defendants SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., CHERYL K. CHANG, M.D. and ST. LUKES-ROOSEVELT HOSPITAL CENTER s/h/a MOUNT SINAI WEST (hereinafter “Defendants”), in the above-captioned matter. I am fully familiar with the facts and circumstances existing herein as a result of a review of the file maintained by this office. 2. I submit this Affirmation in support of the instant application on behalf of the defendants for an order (a) Pursuant to CPLR § 3126(2) and (3), dismissing plaintiff’s action in its entirety for her willful failure to provide the outstanding discovery; or alternatively (b) Pursuant to CPLR §§ 3126 and 3124, compelling plaintiff to provide the discovery within two weeks and automatically dismissing the Complaint and directing the clerk to enter judgment accordingly if plaintiff fails to do so; or alternatively (c) Pursuant to CPLR § 3126(2), precluding 1 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 plaintiff from offering any testimony or medical records at the trial of this matter; and (d) Granting defendants such other relief as the Court deems just and proper. 3. This medical malpractice action involves allegations of failure to diagnose and or treat pericarditis. Plaintiff was seen by these defendants in April 2018 in the emergency department and was instructed to follow up with GI and her primary care physician. She was diagnosed we are told with pericarditis four months later in August. By her own admission between April and August, she went to at least two other emergency departments, her primary care physician, gastroenterologist, and urgent care during the same time period before a diagnosis was made. Defendants have demanded but not received authorizations for the urgent care center, GI, the other EDs, collateral source providers including blue cross/blue shield, subsequent treatment at Beth Israel Medical Center, Mount Sinai Hospital amongst others although multiple phone calls have been made to counsel for plaintiff and multiple emails and letters sent with assurances that authorizations for those records would be provided. They have not. Defendants are hamstrung in their defense without these records and assurances that authorizations would be provided have been going on for much too long. PROCEDURAL HISTORY 4. This medical malpractice action was commenced by the filing of Summons and Complaint on or about July 11, 2019 (NYSCEF Document No. 1). Issue was joined on September 10, 2019, when your affirmant’s firm filed a Verified Answer on behalf of defendants SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., and CHERYL K. CHANG, M.D., and on September 18, 2019, when your affirmant’s firm filed a Verified Answer on behalf of defendant ST. LUKES-ROOSEVELT HOSPITAL CENTER s/h/a MOUNT SINAI WEST. (NYSCEF Document Nos. 7, 8 and 9). 2 2 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 5. On September 10, 2019, your affirmant’s firm served initial Combined Demands upon the plaintiff on behalf of the defendants SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., and CHERYL K. CHANG, M.D. (Exhibit “A”). Said Combined Demands included a Demand for Medical Records, Demand for a Verified Bill of Particulars, Demand for Collateral Sources, Demand for Medicare/Medicaid Eligibility, Notice for Discovery and Inspection, Notice to Produce, Demand for Authorizations and other items of discovery. 6. On September 18, 2019, defendant ST. LUKES-ROOSEVELT HOSPITAL CENTER s/h/a MOUNT SINAI WEST served its Combined Demands upon the plaintiff. (Exhibit “B”). On that same date the defendants also served a Demand for Authorizations dated September 17, 2019. (Exhibit “C”). 7. On May 7, 2020, having failed to receive a response to said Discovery Demands from the plaintiff in the nearly eight (8) months after being served with the Combined Demands and Demand for Authorizations, the defendants filed a motion to dismiss or to compel discovery alternatively. Plaintiff in opposition to said motion provided an incomplete response to defendants’ initial discovery demands and a Bill of Particulars. 8. In their motion in Reply, the defendants indicated that discovery remained outstanding, including authorizations and Supplemental Bills of Particulars regarding particularized allegations as to the alleged acts and omissions of each defendant. 9. Since then, the defendants served numerous discovery demands related to plaintiff’s prior and subsequent treatment. See Demands for Authorizations dated July 29, 2020; July 30, 2020; September 25, 2020; September 29, 2020; November 5, 2020; November 6, 2020; and November 11, 2020. (Exhibit “D”). 3 3 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 10. On October 9, 2020, the defendants sent a letter as a good faith effort to secure a response to their Demand for Authorizations dated September 29, 2020. (Exhibit “E”) 11. On October 26, 2020, the court rendered a decision on the defendants’ motion and directed the plaintiff to provide the outstanding discovery and Supplemental Bills of Particulars. (Exhibit “F”) 12. On November 17, 2020, defendants sent another letter in an effort to secure a response to outstanding discovery, including all demands for authorizations. (Exhibit “G”). On November 20, 2020, the parties submitted a proposed Preliminary Conference Order by which plaintiff was to provide all outstanding discovery within thirty days. (Exhibit “H”). Plaintiff has not. On December 21, 2020, January 15, 2021, and February 2, 2021, the defendants sent letters to the plaintiff in an attempt to obtain the outstanding discovery. (Exhibit “I”). 13. A Stipulation and Order dated April 19, 2021, directed the plaintiff to provide all outstanding discovery by May 1, 2021. (Exhibit “J”). Since then, the defendants have sent over five letters requesting a response to said Stipulation and Order. (Exhibit “K”). This office has contacted plaintiff’s counsel on numerous occasions. We have called. We have written. We have emailed all in an effort to obtain court ordered discovery and avoid motion practice. Counsel for plaintiff, Mr. Essner has promised to provide the outstanding discovery many times. In fact, as per plaintiff’s counsel’s request, on June 28, 2021, your affirmant sent an electronic mail outlining every item of discovery that remains outstanding, including but not limited to Beth Israel Medical Center, Mount Sinai Hospital, Blue Cross/Blue Shield, Dr. Nicholas Pantaleo, Dr. Constantinos Hadjipanayis amongst others. (Exhibit “L”). 4 4 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 14. To date, plaintiff has failed to respond to defendants’ good faith attempts and have failed to provide the aforementioned discovery. Further, the defendants have not received a single item of discovery since July 22, 2020, this despite all efforts aforementioned. ARGUMENT POINT I PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED 15. Dismissal of this action, pursuant to CPLR § 3126, is an appropriate sanction for plaintiff’s utter disregard of and willful lack of compliance with defendant’s discovery demands. CPLR § 3126 states in relevant part: “If any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: ... 3. [A]n order . . . dismissing the action or any part thereof.” 16. The courts have long held that CPLR § 3126 sanctions apply to willful disregard of Notices for Discovery, as well as to a disregard of Orders. In Goldner v. Lendor Structures, 29 A.D.2d 978, 289 N.Y.S.2d 687 (2d Dept. 1968), the Appellate Division, Second Department stated: “[S]anctions which may be imposed under said section [CPLR §3126] apply to notices of examination as well as to orders therefor” (emphasis added). Id. at 979, 289 N.Y.S.2d at 689; see also, Harris v. Evans, 186 A.D.2d 454, 588 N.Y.S.2d 562 (1st Dept. 1992). More recently, the Appellate Division, Second Department in Wolfson v. Nassau County Medical Center, 141 A.D.2d 815, 530 N.Y.S.2d 27 (2d Dept. 1988), affirmed the Goldner holding with regard to dismissing an action pursuant to willful failure to comply with a notice duly served. In Wolfson, the Court held: 5 5 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 “The sanction of dismissal may be warranted even where, as in the present case, the plaintiff committed no violation of a prior court order” (emphasis added) (citation omitted). Id., 141 A.D.2d at 815, 530 N.Y.S.2d at 27; see also, Strange v. Montefiore Hosp. and Med. Center, 91 A.D.2d 507, 456 N.Y.S.2d 371 (1st Dept. 1982) (order of preclusion for plaintiff's failure to serve Bill of Particulars has res judicata effect). 17. Not only the willful failure to provide discovery, but also the willful failure to provide a Bill of Particulars warrants the sanction of dismissal. CPLR § 3042 (a) clearly states: “Within thirty days of service of a demand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand…” (emphasis added). 18. In this matter, plaintiff was ordered to provide supplemental bills of particulars. Over a year has passed since defendants have received a single item of discovery from the plaintiff despite all good efforts to obtain same. 19. As shown above, CPLR §3126 permits a court to impose the sanction of dismissal for failure to provide disclosure. Additionally, “the absence of an excuse for the delay in responding to discovery demands, and the delaying party’s failure to object to the demands, supports an inference that the failure to comply was willful.” Ranfort v. Peak Tours, Inc., 250 A.D. 2d 747 (2d Dep’t 1998); see also Yona v. Beth Israel Medical Center, 285, A.D. 2d, 460, 461 (2d Dep’t 2001) (“[Plaintiffs’ protracted and repeated failure to provide ordered and stipulated discovery demonstrates failure was willful and contumacious.”); Mills v. Ducille, 170 A.D. 2d 657, 657 (2d Dep’t 1991); Chase Manhattan Bank v. Abad, 131 A.D. 2d 312, 313 (1st Dep’t 1987). 20. Plaintiff has failed to provide any excuse as to why she has not responded to defendants’ discovery demands. There is no excuse for plaintiff’s failure to provide discovery for over a year, and plaintiff’s behavior could only be considered willful and contumacious. In fact, 6 6 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 plaintiff has repeatedly indicated he would provide authorizations. He has not. Therefore, this case falls squarely within the definition of the aforementioned case law and thus, dismissal of the Complaint is warranted. POINT II IN THE ALTERNATIVE, AN ORDER SHOULD BE ISSUED REQUIRING PLAINTIFFS TO PROVIDE THE OUTSTANDING DISCOVERY BY A DATE CERTAIN AND AUTOMATICALLY DISMISSING THE COMPLAINT IF PLAINTIFF FAILS TO PRODUCE THE ITEMSBY THAT DATE 21. In the event this Court declines to dismiss the Complaint at this time, it is respectfully submitted that the Court should compel production of the outstanding discovery by a date certain and issue a self-executing order automatically dismissing the Complaint with direction to the Clerk to enter judgment accordingly if plaintiff fails to produce the items by that date. CPLR § 3124 states in pertinent part: “If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article…the party seeking disclosure may move to compel compliance or a response.” 22. Plaintiff has clearly failed to provide the above-mentioned discovery. Without question, an order compelling disclosure by a date certain is warranted. Furthermore, since this discovery goes to the very heart of plaintiff’s claims, if plaintiff violates this Court’s order on the instant motion compelling production of all outstanding discovery, the Court would be completely justified in automatically dismissing the Complaint. CONCLUSION WHEREFORE, it is respectfully requested that this Court issue an order: (1) pursuant to CPLR § 3126(2) and (3), dismissing plaintiff’s action in its entirety for her willful failure to 7 7 of 8 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/22/2021 provide the outstanding discovery; or alternatively, (2) pursuant to CPLR §§ 3126 and 3124, compelling plaintiff to provide the outstanding discovery by a date certain and automatically dismissing the Complaint and directing the Clerk to enter judgment accordingly if plaintiff fails to do so; and (3) for such other relief in defendant’s favor as this Court deems just and proper. Dated: New York, New York July 22, 2021 ____________________________ ROSA RUIZ 8 8 of 8