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FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/22/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________________________________________________
KELLY POWERS, Index No. 805221/2019E
Plaintiffs,
NOTICE OF
MOTION TO DISMISS
-against-
EMILY ARENA, M.D., SAIRA MEHMOOD, M.D.,
JOSHUA O. McHUGH, M.D., CHERYL K. CHANG, M.D.
and MOUNT SINAI WEST,
Defendants.
_______________________________________________
PLEASE TAKE NOTICE, that upon the annexed affirmation of ROSA RUIZ, ESQ.,
dated July 22, 2021, the Affirmation of Good Faith of ROSA RUIZ, ESQ. dated July 22, 2021,
upon the exhibits annexed thereto, and upon all the pleadings and proceedings heretofore had
herein, the undersigned will move this Court at the Courthouse located at 60 Centre Street, New
York, New York, 1007 on the 6th day of August, 2021, at 9:30 o’clock in the forenoon of that
day, or as soon thereafter as counsel can be heard, for an Order:
(1) Pursuant to CPLR § 3126(2) and (3), dismissing plaintiff’s
action in its entirety for his willful failure to provide Court-
ordered discovery and defendant’s demands for discovery;
or alternatively
(2) Pursuant to CPLR §§ 3126 and 3124, compelling plaintiff
to provide the 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 and further relief in favor of the moving
defendant as this Court deems just and proper.
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FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/22/2021
PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are to be served
upon the undersigned within seven (7) days prior to the return date of this motion pursuant to
CPLR §2214(b) or shall not be read in opposition thereto.
Dated: New York, New York
July 22, 2021
McALOON & FRIEDMAN, P.C.
By:________________________________
ROSA RUIZ, ESQ.
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
Office and P.O. Address
One State Street Plaza – 23rd Floor
New York, NY 10004
Tel. No. (212) 732-8700
TO:
ESSNER & KOBIN, LLP.
Attorneys for Plaintiff
217 Broadway, Suite 511
New York, New York 10007
212-750-4949
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FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/22/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________________________________________________ KELLY POWERS, Index No. 805221/2019E Plaintiffs, NOTICE OF MOTION TO DISMISS -against- EMILY ARENA, M.D., SAIRA MEHMOOD, M.D., JOSHUA O. McHUGH, M.D., CHERYL K. CHANG, M.D. and MOUNT SINAI WEST, Defendants. _______________________________________________ PLEASE TAKE NOTICE, that upon the annexed affirmation of ROSA RUIZ, ESQ., dated July 22, 2021, the Affirmation of Good Faith of ROSA RUIZ, ESQ. dated July 22, 2021, upon the exhibits annexed thereto, and upon all the pleadings and proceedings heretofore had herein, the undersigned will move this Court at the Courthouse located at 60 Centre Street, New York, New York, 1007 on the 6th day of August, 2021, at 9:30 o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an Order: (1) Pursuant to CPLR § 3126(2) and (3), dismissing plaintiff’s action in its entirety for his willful failure to provide Court- ordered discovery and defendant’s demands for discovery; or alternatively (2) Pursuant to CPLR §§ 3126 and 3124, compelling plaintiff to provide the 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 and further relief in favor of the moving defendant as this Court deems just and proper. 1 of 2 FILED: NEW YORK COUNTY CLERK 07/22/2021 12:22 PM INDEX NO. 805221/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 07/22/2021 PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are to be served upon the undersigned within seven (7) days prior to the return date of this motion pursuant to CPLR §2214(b) or shall not be read in opposition thereto. Dated: New York, New York July 22, 2021 McALOON & FRIEDMAN, P.C. By:________________________________ ROSA RUIZ, ESQ. 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 Office and P.O. Address One State Street Plaza – 23rd Floor New York, NY 10004 Tel. No. (212) 732-8700 TO: ESSNER & KOBIN, LLP. Attorneys for Plaintiff 217 Broadway, Suite 511 New York, New York 10007 212-750-4949 2 of 2