Preview
FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JANICE BERGER,
Index No. 160118/2016
Plaintiff,
-against- AFFIRMATION IN OPPOSITION
TO PLAINTIFF'S CROSS-
CITY OF NEW YORK, THE DURST ORGANIZATION, MOTION AND REPLY
57™
LP, GE 57 STREET NORTH HOLDINGS LLC, THE AFFIRMATION
57™
HELENA ASSOCIATES LLC, EE 57 STREET NORTH
HOLDINGS LLC and HELLMAN ELECTRIC CORP.,
Defendants,
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COURTNEY B. FELDMAN, an attorney duly admitted to practice law before the Courts
of the State of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am associated with the law firm of Fabiani Cohen & Hall, LLP, counsel for
defendants THE DURST ORGANIZATION L.P. i/s/h/a THE DURST ORGANIZATION, LP
57™ 57™ STREET"
("DURST"), GE 57 STREET NORTH HOLDINGS LLC ("GE 57 STREET"), THE
57™
HELENA ASSOCIATES LLC ("THE HELENA") and EE 57 STREET NORTH HOLDINGS
57™
LLC ("EE STREET"). I am fully familiar with the facts and circumstances as set forth
herein.
2. This affirmation is submitted in reply to the plaintiffs opposition to the
defendants'
motion to vacate the note of issue and compel the plaintiff to respond to the
defendants'
outstanding demands or to preclude the plaintiff from offering any evidence at the
time of trial as to matters regarding which particulars have been sought but not provided and in
opposition to the plaintiffs cross-motion, which seeks a protective order pursuant to CPLR
defendants'
3103(a) with regard to March 22, 2018 demand for unrestricted authorizations for
defendants'
Dr. Weinstein, Ellis and Englewood Hospital as well May 1, 2018 demand for
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unrestricted authorizations for Valley Hospital Ridgewood, Dr. Wasserman, Dr. Stefinits, Dr.
Suffm, Gail Grossman, Thomas Poole, Dr. Steven Pomerantz, Nancy Shiffman, Medicare,
Visiting Nursing Services, all films taken of plaintiff's abdomen and hips, Allstate Insurance,
and pharmacies where plaintiff has had her prescriptions filled in the last five years.
defendants'
3. As set forth in greater detail below, the motion should be granted in
its entirety and the plaintiffs cross-motion should be denied. Specifically, the defendants
established entitlement to the outstanding discovery and the plaintiff has failed to offer any
compelling reason why she should not be compelled to provide same. Likewise, the plaintiff's
cross-motion should be denied inasmuch as the plaintiff failed to establish any legal or factual
basis for the relief she seeks.
REPLY TO PLAINTIFF'S OPPOSITION
defendants'
4. Plaintiff's opposition is without merit and the motion to compel
plaintiff to provide outstanding authorizations, should be granted. The plaintiff does not provide
any legally based reason why she should not be compelled to provide the outstanding
authorizations, other than that she has not placed those conditions in controversy. In fact, as
defendants'
detailed in underlying motion, the discovery being sought by defendants is material,
relevant and for preparing a complete and thorough defense to the broad damages
necessary
claims being asserted in this action.
5. On March 22, 2018, the defendants demanded authorizations including for Drs.
Weinstein, Ellis and Englewood, who plaintiff testified treated her for a vascular condition
"H"
affecting her legs. (See Exhibit to the Feldman Affirmation of the underlying motion.) In
his May 18, 2018 response to demands, plaintiff objected to the March 22, 2018 demand with
regard to Dr. Weinstein, Dr. Ellis and Englewood Hospital only and to date has still not
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furnished these authorizations. As set forth in defendants underlying motion, the plaintiff
testified that she treated with these vascular specialists for her history of venous insufficiency in
her legs (See Feldman affirmation to underlying motion at paragraph 10).
6. On May 1, 2018, following the conclusion of plaintiff's deposition, the defendants
demanded several additional authorizations for physicians who plaintiff testified provided her
prior treatment for pre-existing conditions and with regard to a post-accident car accident,
including those for Valley Hospital Ridgewood (admission for cellulitis p. 85; where she sees
pulmonary doctor, p. 95; where sees Dr. Tohme for osteoporosis p. 98, defendants motion,
Exhibit G) Dr. Wasserman (vascular, p. 87, defendants motion, Exhibit G), Dr. Stefinits
(endocrinologist, p. 95, defendants motion, Exhibit G), Dr. Suffin (pulmonary doctor, p. 95-96,
defendants motion, Exhibit G), Gail Grossman (ophthalmologist, p. 141. defendants motion,
Exhibit G), Thomas Poole (ophthalmologist, p.141. defendants motion, exhibit G), Dr. Steven
Pomerantz (ophthalmologist, p. 141, defendants motion, Exhibit G ), Nancy Shiffman
(optometrist, p.142, defendants motion, Exhibit G), Medicare, Visiting Nursing Services, all
films taken of plaintiff's abdomen and Allstate Insurance (insurance at time of winter 2017-
hips,
2018 car accident, p. 181, defendants motion, Exhibit G ), and pharmacies where plaintiff has
had her prescriptions filled in the last five years. On May 1, 2018, defendants also demanded
authorizations for Drs. Tohme, Kopoloff and Herrera, who treated plaintiff for her osteoporosis.
Plaintiff objected to the demand in itsentirety on May 18, 2018 (See Defendants motion, Exhibit
I).
7. While with her opposition papers, the plaintiff furnished an authorization for
Endocrine Associates of Ridgewood PA which she avers encompass the records of Dr. Tohme,
Dr. Kopoloff and Dr. Herrera, authorizations plaintiff previously refused to furnish until served
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defendants'
with the Motion to Vacate, she refuses to disclose the others. It is evident that
plaintiff wishes to unilaterally cherry pick those providers she wishes to disclose, which she
cannot do.
defendants'
8. While plaintiff argues that the Court restricted the request for prior
medical records to primary care physician and osteoporosis records, in fact this is not the case.
Rather, at the time of the Court's August 31, 2017 order, substantive discovery and plaintiff's
deposition had not yet been held, and therefore the records being pursued by defendant at that
time were plaintiffs primary care records, and records related to her history of osteoporosis,
Defendants'
cataracts, her cardiac history and her history of bronchiectasis and cellulitis. (See
August 30, 2017 letter to the Court contained in Exhibit G of Plaintiff's Opposition.)
9. CPLR 3101(a) provides that there shall be full disclosure of all evidence 'material
necessary'
and in the prosecution or defense of an action. The Court of Appeals has held that
necessary'
"[t]he words 'material and necessary'... . . .are to be interpreted liberally to require disclosure,
upon request, of any facts bearing on the controversy which will assist in the preparation for trial
by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and
reason."
Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968).
10. It isundisputed that this lawsuit arises out of a trip and fall incident arising out of
an alleged sidewalk defect. Inasmuch as plaintiff's pre-existing physical conditions may have
had an impact on her ability to ambulate and see what there was to be seen, they are material and
defendants'
relevant to defense of the case, regardless of whether they were directly related to
her claimed right hip injury or not.
11. The defendants are entitled to obtain plaintiff's prior records reflecting plaintiff's
pre-accident medical history, which includes her vascular condition affecting her legs, her
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eyesight, her prescription history, as well as her post-accident car accident. Defendants require
these records to evaluate the plaintiff's allegations of injury, their extent, and the significance of
her pre-accident physical conditions on her alleged injuries, including her hip replacement, her
limp, her altered gait, her insomnia, the curtailment of a great many of her activities and her
permanency claims. If the defendants are denied the right to obtain this discovery, their ability to
address plaintiff's damages claims will be significantly and severely prejudiced.
OPPOSITION TO PLAINTIFF'S CROSS-MOTION
12. The plaintiff seeks a protective order preventing the defendants from obtaining
records of Dr. Weinstein, Ellis and Englewood Hospital, Valley Hospital Ridgewood, Dr.
Wasserman, Dr. Stefinits, Dr. Suffin, Gail Grossman, Thomas Poole, Dr. Steven Pomerantz,
Nancy Shiffman, Medicare, Visiting Nursing Services, all films taken of plaintiff's abdomen and
hips, Allstate Insurance, and pharmacies where plaintiff has had her prescriptions filled in the
last five years..
13. Plaintiff fails to explain why a protective order is needed and fails to demonstrate
that a protective order would prevent "unreasonable annoyance, expense, embarrassment,
courts,"
disadvantage, or other prejudice to any person or the as required by the CPLR. See
CPLR 3103(a).
defendants'
14. Additionally, as established herein and in the motion, the only
discovery sought by the defendants is material and necessary to the defense of the within action.
The Court has repeatedly denied requests for protective orders where the sought after discovery
is material and necessary to defend against claims put forth by plaintiffs. See .g.,~R.A
e.g., Rega v. Avon
Products, Inc., 49 A.D.3d 329 (Ist Dep't 2008); Avila v. 106 Corona Realty Corp.,., 300 A.D.2d
266, 267 (2d Dep't 2002).
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15. The defendants must be afforded an opportunity to determine the nature and
extent of plaintiff's medical condition(s) prior to the accident in order to properly evaluate and
defend against the damages claim. Rega v. Avon Products, 49 A.D.3d 329, 330, 854 N.Y.S.2d
("
688 (1st Dep't. 2008) ("Defendants were entitled to evidence regarding plaintiffs prior and
subsequent injuries since plaintiff placed his physical condition in issue by averring that it was
aggravated by accident at issue; defendants were entitled to discovery to determine extent to
which claimed injuries were attributable to accidents other than one at issue."); McGlone v. Poit
Authority of New York and New Jersey, 90 A.D.3d 479, 934 N.Y.S.2d 161 (1st Dep't 2011) ("In
light of his averments, plaintiff voluntarily placed his physical condition in issue; therefore,
defendants are entitled to discovery to determine the extent, if any, that plaintiffs claimed
injuries "are attributable to accidents other than the one at issue here."); Avila v. 106 Corona
("
Realty Corporation, 255 A.D.2d 945, 946 680 N.Y.S.2d 363 (2d Dep't 2002) ("[T]he plaintiff
placed his entire medical condition in controversy through the broad allegations of
affirmatively
physical injury and mental anguish contained in his bill of particulars. Accordingly, the
defendant is entitled to full disclosure regarding any medical or psychological treatment that the
received."
plaintiff may have See also, Orlando v. Richmond Precast, Inc., et. al., 53 A.D.3d 534
(2d Dept. 2008); Schager v. Durland, 286 A.D.2d 725 (2d Dep't 2001); Ellerin v. Bentley's, 266
A.D.2d 259, (2d Dep't 1999).
16. In view of the foregoing, the plaintiff's cross-motion for a protective order must
be denied.
defendants'
WHEREFORE, it isrespectfully requested that the motion seeking to vacate
the plaintiff's note of issue and compel her to provide the outstanding discovery or to preclude
the plaintiff from offering any evidence at trialas to which particulars have been sought but not
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provided be granted in its entirety. It is further requested that the plaintiff's cross-
respectfully
motion seeking a protective order be denied in itsentirety.
Affirmed this 19th
day of July, 2018
Cou ey Fel(man
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Preview
FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X JANICE BERGER, Index No. 160118/2016 Plaintiff, -against- AFFIRMATION IN OPPOSITION TO PLAINTIFF'S CROSS- CITY OF NEW YORK, THE DURST ORGANIZATION, MOTION AND REPLY 57™ LP, GE 57 STREET NORTH HOLDINGS LLC, THE AFFIRMATION 57™ HELENA ASSOCIATES LLC, EE 57 STREET NORTH HOLDINGS LLC and HELLMAN ELECTRIC CORP., Defendants, ---------------------------------------------------------------------XX COURTNEY B. FELDMAN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am associated with the law firm of Fabiani Cohen & Hall, LLP, counsel for defendants THE DURST ORGANIZATION L.P. i/s/h/a THE DURST ORGANIZATION, LP 57™ 57™ STREET" ("DURST"), GE 57 STREET NORTH HOLDINGS LLC ("GE 57 STREET"), THE 57™ HELENA ASSOCIATES LLC ("THE HELENA") and EE 57 STREET NORTH HOLDINGS 57™ LLC ("EE STREET"). I am fully familiar with the facts and circumstances as set forth herein. 2. This affirmation is submitted in reply to the plaintiffs opposition to the defendants' motion to vacate the note of issue and compel the plaintiff to respond to the defendants' outstanding demands or to preclude the plaintiff from offering any evidence at the time of trial as to matters regarding which particulars have been sought but not provided and in opposition to the plaintiffs cross-motion, which seeks a protective order pursuant to CPLR defendants' 3103(a) with regard to March 22, 2018 demand for unrestricted authorizations for defendants' Dr. Weinstein, Ellis and Englewood Hospital as well May 1, 2018 demand for 1 of 7 FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 unrestricted authorizations for Valley Hospital Ridgewood, Dr. Wasserman, Dr. Stefinits, Dr. Suffm, Gail Grossman, Thomas Poole, Dr. Steven Pomerantz, Nancy Shiffman, Medicare, Visiting Nursing Services, all films taken of plaintiff's abdomen and hips, Allstate Insurance, and pharmacies where plaintiff has had her prescriptions filled in the last five years. defendants' 3. As set forth in greater detail below, the motion should be granted in its entirety and the plaintiffs cross-motion should be denied. Specifically, the defendants established entitlement to the outstanding discovery and the plaintiff has failed to offer any compelling reason why she should not be compelled to provide same. Likewise, the plaintiff's cross-motion should be denied inasmuch as the plaintiff failed to establish any legal or factual basis for the relief she seeks. REPLY TO PLAINTIFF'S OPPOSITION defendants' 4. Plaintiff's opposition is without merit and the motion to compel plaintiff to provide outstanding authorizations, should be granted. The plaintiff does not provide any legally based reason why she should not be compelled to provide the outstanding authorizations, other than that she has not placed those conditions in controversy. In fact, as defendants' detailed in underlying motion, the discovery being sought by defendants is material, relevant and for preparing a complete and thorough defense to the broad damages necessary claims being asserted in this action. 5. On March 22, 2018, the defendants demanded authorizations including for Drs. Weinstein, Ellis and Englewood, who plaintiff testified treated her for a vascular condition "H" affecting her legs. (See Exhibit to the Feldman Affirmation of the underlying motion.) In his May 18, 2018 response to demands, plaintiff objected to the March 22, 2018 demand with regard to Dr. Weinstein, Dr. Ellis and Englewood Hospital only and to date has still not [1480250/1] 2 2 of 7 FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 furnished these authorizations. As set forth in defendants underlying motion, the plaintiff testified that she treated with these vascular specialists for her history of venous insufficiency in her legs (See Feldman affirmation to underlying motion at paragraph 10). 6. On May 1, 2018, following the conclusion of plaintiff's deposition, the defendants demanded several additional authorizations for physicians who plaintiff testified provided her prior treatment for pre-existing conditions and with regard to a post-accident car accident, including those for Valley Hospital Ridgewood (admission for cellulitis p. 85; where she sees pulmonary doctor, p. 95; where sees Dr. Tohme for osteoporosis p. 98, defendants motion, Exhibit G) Dr. Wasserman (vascular, p. 87, defendants motion, Exhibit G), Dr. Stefinits (endocrinologist, p. 95, defendants motion, Exhibit G), Dr. Suffin (pulmonary doctor, p. 95-96, defendants motion, Exhibit G), Gail Grossman (ophthalmologist, p. 141. defendants motion, Exhibit G), Thomas Poole (ophthalmologist, p.141. defendants motion, exhibit G), Dr. Steven Pomerantz (ophthalmologist, p. 141, defendants motion, Exhibit G ), Nancy Shiffman (optometrist, p.142, defendants motion, Exhibit G), Medicare, Visiting Nursing Services, all films taken of plaintiff's abdomen and Allstate Insurance (insurance at time of winter 2017- hips, 2018 car accident, p. 181, defendants motion, Exhibit G ), and pharmacies where plaintiff has had her prescriptions filled in the last five years. On May 1, 2018, defendants also demanded authorizations for Drs. Tohme, Kopoloff and Herrera, who treated plaintiff for her osteoporosis. Plaintiff objected to the demand in itsentirety on May 18, 2018 (See Defendants motion, Exhibit I). 7. While with her opposition papers, the plaintiff furnished an authorization for Endocrine Associates of Ridgewood PA which she avers encompass the records of Dr. Tohme, Dr. Kopoloff and Dr. Herrera, authorizations plaintiff previously refused to furnish until served [1480250/1] 3 3 of 7 FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 defendants' with the Motion to Vacate, she refuses to disclose the others. It is evident that plaintiff wishes to unilaterally cherry pick those providers she wishes to disclose, which she cannot do. defendants' 8. While plaintiff argues that the Court restricted the request for prior medical records to primary care physician and osteoporosis records, in fact this is not the case. Rather, at the time of the Court's August 31, 2017 order, substantive discovery and plaintiff's deposition had not yet been held, and therefore the records being pursued by defendant at that time were plaintiffs primary care records, and records related to her history of osteoporosis, Defendants' cataracts, her cardiac history and her history of bronchiectasis and cellulitis. (See August 30, 2017 letter to the Court contained in Exhibit G of Plaintiff's Opposition.) 9. CPLR 3101(a) provides that there shall be full disclosure of all evidence 'material necessary' and in the prosecution or defense of an action. The Court of Appeals has held that necessary' "[t]he words 'material and necessary'... . . .are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason." Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 (1968). 10. It isundisputed that this lawsuit arises out of a trip and fall incident arising out of an alleged sidewalk defect. Inasmuch as plaintiff's pre-existing physical conditions may have had an impact on her ability to ambulate and see what there was to be seen, they are material and defendants' relevant to defense of the case, regardless of whether they were directly related to her claimed right hip injury or not. 11. The defendants are entitled to obtain plaintiff's prior records reflecting plaintiff's pre-accident medical history, which includes her vascular condition affecting her legs, her [1480250/l] 4 4 of 7 FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 eyesight, her prescription history, as well as her post-accident car accident. Defendants require these records to evaluate the plaintiff's allegations of injury, their extent, and the significance of her pre-accident physical conditions on her alleged injuries, including her hip replacement, her limp, her altered gait, her insomnia, the curtailment of a great many of her activities and her permanency claims. If the defendants are denied the right to obtain this discovery, their ability to address plaintiff's damages claims will be significantly and severely prejudiced. OPPOSITION TO PLAINTIFF'S CROSS-MOTION 12. The plaintiff seeks a protective order preventing the defendants from obtaining records of Dr. Weinstein, Ellis and Englewood Hospital, Valley Hospital Ridgewood, Dr. Wasserman, Dr. Stefinits, Dr. Suffin, Gail Grossman, Thomas Poole, Dr. Steven Pomerantz, Nancy Shiffman, Medicare, Visiting Nursing Services, all films taken of plaintiff's abdomen and hips, Allstate Insurance, and pharmacies where plaintiff has had her prescriptions filled in the last five years.. 13. Plaintiff fails to explain why a protective order is needed and fails to demonstrate that a protective order would prevent "unreasonable annoyance, expense, embarrassment, courts," disadvantage, or other prejudice to any person or the as required by the CPLR. See CPLR 3103(a). defendants' 14. Additionally, as established herein and in the motion, the only discovery sought by the defendants is material and necessary to the defense of the within action. The Court has repeatedly denied requests for protective orders where the sought after discovery is material and necessary to defend against claims put forth by plaintiffs. See .g.,~R.A e.g., Rega v. Avon Products, Inc., 49 A.D.3d 329 (Ist Dep't 2008); Avila v. 106 Corona Realty Corp.,., 300 A.D.2d 266, 267 (2d Dep't 2002). [1480250/1] 5 5 of 7 FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 15. The defendants must be afforded an opportunity to determine the nature and extent of plaintiff's medical condition(s) prior to the accident in order to properly evaluate and defend against the damages claim. Rega v. Avon Products, 49 A.D.3d 329, 330, 854 N.Y.S.2d (" 688 (1st Dep't. 2008) ("Defendants were entitled to evidence regarding plaintiffs prior and subsequent injuries since plaintiff placed his physical condition in issue by averring that it was aggravated by accident at issue; defendants were entitled to discovery to determine extent to which claimed injuries were attributable to accidents other than one at issue."); McGlone v. Poit Authority of New York and New Jersey, 90 A.D.3d 479, 934 N.Y.S.2d 161 (1st Dep't 2011) ("In light of his averments, plaintiff voluntarily placed his physical condition in issue; therefore, defendants are entitled to discovery to determine the extent, if any, that plaintiffs claimed injuries "are attributable to accidents other than the one at issue here."); Avila v. 106 Corona (" Realty Corporation, 255 A.D.2d 945, 946 680 N.Y.S.2d 363 (2d Dep't 2002) ("[T]he plaintiff placed his entire medical condition in controversy through the broad allegations of affirmatively physical injury and mental anguish contained in his bill of particulars. Accordingly, the defendant is entitled to full disclosure regarding any medical or psychological treatment that the received." plaintiff may have See also, Orlando v. Richmond Precast, Inc., et. al., 53 A.D.3d 534 (2d Dept. 2008); Schager v. Durland, 286 A.D.2d 725 (2d Dep't 2001); Ellerin v. Bentley's, 266 A.D.2d 259, (2d Dep't 1999). 16. In view of the foregoing, the plaintiff's cross-motion for a protective order must be denied. defendants' WHEREFORE, it isrespectfully requested that the motion seeking to vacate the plaintiff's note of issue and compel her to provide the outstanding discovery or to preclude the plaintiff from offering any evidence at trialas to which particulars have been sought but not [1480250/1] 6 6 of 7 FILED: NEW YORK COUNTY CLERK 07/19/2018 05:31 PM INDEX NO. 160118/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 07/19/2018 provided be granted in its entirety. It is further requested that the plaintiff's cross- respectfully motion seeking a protective order be denied in itsentirety. Affirmed this 19th day of July, 2018 Cou ey Fel(man [1480250/1] 7 7 of 7