Preview
INDEX NO. 151641/2014
(FILED: NEW YORK COUNTY CLERK 1270172016 03:49 PM
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 12/01/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
—- + ---- wee ee ee
ROBIN PATTERSON,
Plaintiff,
Index No.: 151641/14
-against-
NXK CORP. D/B/A AMBU TRANS AMBULETTE,
AFFIRMATION IN
SUPPORT
Defendants.
eee ee ee ee
ee
JOHN J. PIETRUNTI, an attorney duly admitted to practice before the Courts of
the State of New York, hereby affirms the following statements to be true under the
penalties of perjury:
1 I am an attorney at the DONOHUE LAW FIRM, P.C., attorneys for the
defendants in this matter and as such, I am fully familiar with all the facts and
circumstances herein based on the contents of the file your affirmant’s office maintains.
2. This affirmation is being submitted in support of the defendant’s motion to
strike the plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that
discovery is not complete in this matter and this case should be removed from the trial
calendar, together with such other and further relief as this Court shall deem just, proper,
and equitable.
3 On October 7, 2016, in correspondence to plaintiff, this office provided
responses to plaintiff's discovery demands and served a demand for authorizations for
plaintiff's transportation records from two transportation companies plaintiff used on or
lof4
around the date of the subject accident, as well as medical records regarding her
treatment for the alleged injuries suffered as a result of the subject accident. Please see
attached Exhibit “A”,
4 In addition, plaintiff has failed to appear for three scheduled appointments
for an orthopedic independent medical examination. While the first cancellation was
made at the request of the plaintiff, plaintiff has failed to appear at subsequent scheduled
appointments.
5 Specifically, plaintiff was scheduled for a post-EBT orthopedic
Independent Medical Examination with Dr. Pierce J. Ferriter on January 25, 2016
pursuant to Court order. Plaintiff requested that this IME be rescheduled, and your
affirmant extended such courtesy. The IME was rescheduled for February 22, 2016.
6. Plaintiff failed to appear for the rescheduled IME on February 22, 2016.
Plaintiff provided no advance notice of her intention not to appear.
7 Your affirmant in good faith agreed to a further rescheduling of this IME
to August 5, 2016.
8 Plaintiff once again failed to appear for her IME on August 5, 2016, with
no advance notice of her inability to, or intention not to, appear. (Please see attached
Exhibit “B”, MedSource National, notification of no-show” at scheduled IMEs.)
9 Due to the lack of responses and failure to appear, the defendants have not
been afforded an opportunity to examine and evaluate, inter alia, pertinent records that
may impact issues of liability and the existence and extent of plaintiff's claimed injuries
in relation to the instant accident.
10. A note of issue should be vacated when there was an indication that the
case is not ready for trial or that the certification of readiness was incorrect. See Rossi v.
Arnot Ogden Medical Center, 252 AD2d 778, 676 N.Y.S2d 699. In addition, the court
2 0f 4
on its own motion may vacate the note of issue at any time, if it appears that a material
fact in the certificate of readiness is incorrect or that the certificate of readiness fails to
comply with the requirements for the rules in some material respect. 22 NYCRR 202.21
().
1. In the case at bar, the note of issue should be vacated since this case is not
ready for trial.
12. Clearly, the defendants are entitled to discovery and plaintiffs’ case cannot
be permitted to remain on the trial calendar under these circumstances. Defendant would
be greatly prejudiced if forced to defend these claims at trial without the benefit of
discovery.
13, It is respectfully requested the Note of Issue be stricken to allow for the
defendants to obtain the necessary records and examination to properly defend the
plaintiff's claims.
14, In the alternative, should the court not be inclined to strike this case from
the trial calendar, defendant hereby requests that the court issue a discovery schedule,
and/or schedule a conference in order to resolve the outstanding discovery issues.
15. Since discovery remains outstanding it is respectfully requested the Note
of Issue be stricken to allow for the defendants to obtain these essential records.
16. Plaintiff has not sought leave of Court in this regard.
WHEREFORE, it is respectfully requested that the Court strike the plaintiffs’
Note of Issue to allow the defendant to conduct discovery or, in the alternative, should
the court net be inclined to strike this case from the trial calendar, defendant hereby
requests that the court issue a discovery schedule, and/or schedule a conference in order
3 0f 4
fo resolve the outstanding discovery issues, along with such other and further relief as
this Court shall deem just, proper and equitable.
Dated: New York, New York
Jb
November 21, 2016
J. PE UNTI
4 of 4
Preview
INDEX NO. 151641/2014 (FILED: NEW YORK COUNTY CLERK 1270172016 03:49 PM NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 12/01/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK —- + ---- wee ee ee ROBIN PATTERSON, Plaintiff, Index No.: 151641/14 -against- NXK CORP. D/B/A AMBU TRANS AMBULETTE, AFFIRMATION IN SUPPORT Defendants. eee ee ee ee ee JOHN J. PIETRUNTI, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1 I am an attorney at the DONOHUE LAW FIRM, P.C., attorneys for the defendants in this matter and as such, I am fully familiar with all the facts and circumstances herein based on the contents of the file your affirmant’s office maintains. 2. This affirmation is being submitted in support of the defendant’s motion to strike the plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that discovery is not complete in this matter and this case should be removed from the trial calendar, together with such other and further relief as this Court shall deem just, proper, and equitable. 3 On October 7, 2016, in correspondence to plaintiff, this office provided responses to plaintiff's discovery demands and served a demand for authorizations for plaintiff's transportation records from two transportation companies plaintiff used on or lof4 around the date of the subject accident, as well as medical records regarding her treatment for the alleged injuries suffered as a result of the subject accident. Please see attached Exhibit “A”, 4 In addition, plaintiff has failed to appear for three scheduled appointments for an orthopedic independent medical examination. While the first cancellation was made at the request of the plaintiff, plaintiff has failed to appear at subsequent scheduled appointments. 5 Specifically, plaintiff was scheduled for a post-EBT orthopedic Independent Medical Examination with Dr. Pierce J. Ferriter on January 25, 2016 pursuant to Court order. Plaintiff requested that this IME be rescheduled, and your affirmant extended such courtesy. The IME was rescheduled for February 22, 2016. 6. Plaintiff failed to appear for the rescheduled IME on February 22, 2016. Plaintiff provided no advance notice of her intention not to appear. 7 Your affirmant in good faith agreed to a further rescheduling of this IME to August 5, 2016. 8 Plaintiff once again failed to appear for her IME on August 5, 2016, with no advance notice of her inability to, or intention not to, appear. (Please see attached Exhibit “B”, MedSource National, notification of no-show” at scheduled IMEs.) 9 Due to the lack of responses and failure to appear, the defendants have not been afforded an opportunity to examine and evaluate, inter alia, pertinent records that may impact issues of liability and the existence and extent of plaintiff's claimed injuries in relation to the instant accident. 10. A note of issue should be vacated when there was an indication that the case is not ready for trial or that the certification of readiness was incorrect. See Rossi v. Arnot Ogden Medical Center, 252 AD2d 778, 676 N.Y.S2d 699. In addition, the court 2 0f 4 on its own motion may vacate the note of issue at any time, if it appears that a material fact in the certificate of readiness is incorrect or that the certificate of readiness fails to comply with the requirements for the rules in some material respect. 22 NYCRR 202.21 (). 1. In the case at bar, the note of issue should be vacated since this case is not ready for trial. 12. Clearly, the defendants are entitled to discovery and plaintiffs’ case cannot be permitted to remain on the trial calendar under these circumstances. Defendant would be greatly prejudiced if forced to defend these claims at trial without the benefit of discovery. 13, It is respectfully requested the Note of Issue be stricken to allow for the defendants to obtain the necessary records and examination to properly defend the plaintiff's claims. 14, In the alternative, should the court not be inclined to strike this case from the trial calendar, defendant hereby requests that the court issue a discovery schedule, and/or schedule a conference in order to resolve the outstanding discovery issues. 15. Since discovery remains outstanding it is respectfully requested the Note of Issue be stricken to allow for the defendants to obtain these essential records. 16. Plaintiff has not sought leave of Court in this regard. WHEREFORE, it is respectfully requested that the Court strike the plaintiffs’ Note of Issue to allow the defendant to conduct discovery or, in the alternative, should the court net be inclined to strike this case from the trial calendar, defendant hereby requests that the court issue a discovery schedule, and/or schedule a conference in order 3 0f 4 fo resolve the outstanding discovery issues, along with such other and further relief as this Court shall deem just, proper and equitable. Dated: New York, New York Jb November 21, 2016 J. PE UNTI 4 of 4