Preview
FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014
NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
========================================X
THORA CLAUDETTE CHALLENGER, Index No. 151998/14
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION
GEORGE J. LAMADELEINE, J.B. HUNT
TRANSPORT, INC., ZEPHANIAH P. MULLIN, and
CHARLES S. GILES,
Defendants.
========================================X
MEHREEN HA YAT, an attorney duly admitted to practice law before the Courts of the State
ofNew York, pursuant to CPLR 2106, duly affirms the truth of the following:
1. I am an associate with the firm of WILLIAM SCHWITZER & ASSOCIATES, P.C.,
the attorneys for the plaintiffs herein, and as such am fully familiar with the facts and circumstances
surrounding this action.
2. I respectfully submit this Affirmation in opposition to defendants' motion pursuant to
CPLR §2221, or in the alternative, CPLR §5105 vacating the Court Orders of the Honorable Paul A.
Goetz dated February 6,217 and June 19, 2017, 22 N.Y.C.R.R. 202.21 vacating plaintiffs Note of
Issue, CPLR 3124 compelling plaintiff to provide all outstanding discovery, and to extend defendants'
time to move for summary judgment.
PROCEDURAL HISTORY
3. The first piece of outstanding discovery alleged is a response to the May 4, 2015
letter requesting unrestricted authorizations. This matter was resolved by the May 29, 2015 order in
which plaintiff withdrew the September 18, 2014 Bill of Particulars. (See plaintiffs Exhibit "A").
Additionally, defendant's attempt to secure unrestricted authorizations is properly objectionable.
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"It is well settled that a party must provide duly executed and acknowledged written
authorizations for the release of pertinent medical records under the liberal discovery provisions
of the CPLR when that party has waived the physician-patient privilege by affirmatively putting
his or her physical or mental condition in issue" Romance v. Zavala, 98 AD3D 726 (2nd Dept.
2012). However, the principle of 'full disclosure' does not give a party the right to uncontrolled
and unfettered disclosure. As such, the Court in Romance denied defendants' request for
unrestricted authorizations for plaintiffs medical records and restricted the request to 5 years
prior to the date of accident.
4. Put simply, these demands are overbroad and unlikely to lead to the discovery of
admissible evidence. Nevertheless, in plaintiffs response to combined demands plaintiff served
defendants with HIP AA authorizations permitting defendants to obtain the entire medical records
for all of plaintiffs treating doctors and facilities. (See plaintiffs Exhibit "B"). In these
authorizations plaintiff has marked the second box under section 9(a), permitting the entire
medical records for each facility to be retrieved by defendants.
5. With regard to the May 18, 2015 letter, plaintiff is permitted to supplement her bill of
particulars as to special damages within thirty (30) days of trial as per CPLR §3043(b). As such, a
supplemental bill of particulars will be served as to special damages in compliance with the CPLR, if
necessary. Furthermore, plaintiff responded to defendant's May 18, 2015 letter. (see plaintiffs
Exhibit "C")
6. Looking at defendants' Notices for Discovery and Inspection dated November 5,
2015, March 25, 2016, and March 30, 2016, defendants sent these demands to the Law Offices of
Aleksandr Vakrev, at 2566 86th Street, Ste. 1, Brooklyn, NY 11214. Clearly not the office ofplaintiff s
attorney, who was located at the time at 112 Madison Avenue New York, New York 10016.
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7. Defendants, in their papers, reference two orders dated April 29, 2016 and October
14, 2016 ordering plaintiff to respond to demands. The dates of these discovery demands are March
25, 2016 and March 30, 2016 and as noted above were not properly served on plaintiff.
8. Despite not having been served with these demands plaintiff has responded to all
of defendants' authorization requests. Regarding the November 5, 2015 demands, (see defendants'
Exhibit "H"), this was responded to by plaintiff on September 24, 2015 and November 10, 2015
where plaintiff provided authorizations for Dr. Lerman, Mont Sinai Beth Israel and a response to
plaintiffs employment records with CVS. (See plaintiffs Exhibit "D").
9. Plaintiff responded to defendants' March 30, 2016 demands (see defendants'
Exhibit "J") on May 24, 2016 (see attached plaintiffs Exhibit "E"). The remaining information
in defendants' March 30, 2016 demand had been responded to though plaintiffs September 24,
2015 and November 10, 2015 responses. (see attached plaintiffs Exhibits "D & E").
10. It is clear that Plaintiff has complied with all outstanding discovery requests,
including requests that were never served on plaintiff during the course of discovery. Since there
is no outstanding discovery in the instant action, plaintiff requests that defendants' motions be
denied in their entirety and the case remain on the active trial calendar.
THERE IS NO BASIS TO VACATE THE PRIOR ORDERS
11. Defendant's own motion makes clear that a motion for leave to reargue or renew
"shall be identified specifically as such." CPLR §2221(d) & (e). Nowhere in the Notice of
Motion nor in the Affirmation in Support does defense counsel identify whether she is making a
motion to renew or reargue. No new facts not offered on the prior motion are alleged so there is
no basis for a motion to renew. With regard to a motion to reargue, the court did not overlook or
misapprehend any fact offered in the prior motion as discovery was, in fact, complete.
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12. In Rothchild v. LF Auto Corp., 16 AD3d 481 (2nd Dept. 2005), the Appellate
Division reversed a lower court's decision granting leave to renew and reargue an order
dismissing plaintiffs complaint. The Second Department concluded, "The plaintiff did not
demonstrate any ground for renewal or reargument of the order dated October 3, 2003.
Moreover, the plaintiff did not establish entitlement to vacatur of the judgment dated October 20,
2003 which was not entered on default." (emphasis added) As in Rothchild, defendant has
demonstrated no ground for renewal or reargument of Judge Goetz's order. Furthermore, it is
evident that law office failure to articulate allegedly missing discovery is not an excuse as the
orders were not entered on default.
13. Finally, CPLR §5015(a) is inapplicable to the matter at hand. As a condition
precedent to invoking CPLR §5015(a) (5), the February 6, 2017 order would already have to be
vacated. As that is not the case, there is no basis to vacate the June 19, 2017 order.
THERE IS NO BASIS TO VACATE THE NOTE OF ISSUE
14. It is in within the Court's discretion to strike the note of issue if a party moves
within 20 days of filing of the note of issue, see 22 N.Y.C.R.R. § 202-21(e), but the none of the
conditions justifying vacatur exist in this case. Accord Pannone v. Silberstein, 40 A.D.3d 327
(1st Dept. 2007) ("The court properly exercised its discretion in denying defendant's motion to
strike plaintiffs note of issue. There was no outstanding discovery when plaintiff filed the note
of issue and the certificate ofreadiness contains no factual errors.").
15. It is undisputed that defendant did not move to vacate the note of issue within 20
days of filing. As the original motion was properly filed and denied, Defendant's second motion,
filed over 5 months after the Note oflssue, must be denied as untimely. See, Allen v Hiraldo,
144 A.D.3d 434 (l5t Dept. 2016) (motion to vacate note of issue properly denied as untimely.)
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16. In fact, the Court of Appeals has ruled that if the motion is not filed timely, then
22 NYCRR 202.21(e) is inapplicable and therefore the Court does not have discretion to vacate
the note. Should a motion for discovery be made over 20 days after the note of issue is filed, the
only recourse is under 22 NYCRR 202.21(d) and defendant must show unusual or unanticipated
circumstances arose after the filing and substantial prejudice. See, Audiovox Corp. v. Benyamin,
supra. (the more difficult standard is that provided by 22 NYCRR 202.21 (d) because it requires
the movant to demonstrate unusual or unanticipated circumstances and substantial prejudice,
whereas a timely motion to vacate the note of issue pursuant to 22 NYCRR 202.21 (e) need only
demonstrate in what respects the case is not ready for trial. Another important distinction is that
under 22 NYCRR 202.21 (e) the court may vacate the note of issue, while under subsection (d)
the court does not have that discretion.)
17. Schroder v. JES] NY Corp, 24 AD3d 180 (1st Dept. 2005) concluded that the
Supreme Court erred in granting defendants' motion to vacate the note of issue. Vacatur was
inapplicable because the motion was filed over 20 days after service of the note of issue and the
only other basis for obtaining post-note discovery was pursuant to 22 NYCRR 202.21(d). The
Appellate Division decided, "This subsection does not apply because there was no unusual or
unanticipated circumstance that developed "subsequent" to the filing of the note of issue." Id. at
181. As in Schroder, Defendant has failed to show unusual or unanticipated circumstances
developed post-Note as defendants themselves signed off on the February 6, 2017 order
acknowledging that all discovery was complete. (see attached Exhibit "F").
18. Even more analogous to the case at hand is Behljulhevic v. City of New York,
2017 NY Slip Op 04912 (1st Dept. 2017). The Appellate Division in Behljulhevic affirmed a
lower court's denial of a motion to vacate the note of issue and strike the matter from the trial
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calendar. "By stipulating at the October 20, 2015 compliance conference that all discovery was
complete, Con Ed lost its entitlement to the information plaintiff stated in his April 6, 2015
response that he would provide under separate cover."
19. As Plaintiff has obediently provided discovery throughout the course of this
litigation and the circumstances for striking the note have not been met, it is axiomatic that
defendants' motions to vacate be denied.
20. Additionally, defendants' signatures on the February 6, 2017 order waives their
ability to additional discovery at this juncture.
WHEREFORE, it is respectfully requested that the defendants' motions be denied in their
entirety, and for what other and further relief as this Court deems just and necessary.
Dated: New York, New York
Tuesday, September 19, 2017
TO: Richard E. Noll, Esq.
The Noll Law Firm
Attorneys for Defendant
ZEPHANIAH P. MULLIN AND CHARLES S. GILES
116 Jackson Avenue
Syosset, NY 11 791
(516) 307-1199
Diana Kane, Esq.
Rawle & Henderson, LLP
Attorneys for Defendant
J.B. HUNT TRANSPORT, INC. and GEORGE LAMADELEINE
14 Wall Street, 27th Floor
New York, NY 10005
(212) 323-7080
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Preview
FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ========================================X THORA CLAUDETTE CHALLENGER, Index No. 151998/14 Plaintiff, AFFIRMATION IN -against- OPPOSITION GEORGE J. LAMADELEINE, J.B. HUNT TRANSPORT, INC., ZEPHANIAH P. MULLIN, and CHARLES S. GILES, Defendants. ========================================X MEHREEN HA YAT, an attorney duly admitted to practice law before the Courts of the State ofNew York, pursuant to CPLR 2106, duly affirms the truth of the following: 1. I am an associate with the firm of WILLIAM SCHWITZER & ASSOCIATES, P.C., the attorneys for the plaintiffs herein, and as such am fully familiar with the facts and circumstances surrounding this action. 2. I respectfully submit this Affirmation in opposition to defendants' motion pursuant to CPLR §2221, or in the alternative, CPLR §5105 vacating the Court Orders of the Honorable Paul A. Goetz dated February 6,217 and June 19, 2017, 22 N.Y.C.R.R. 202.21 vacating plaintiffs Note of Issue, CPLR 3124 compelling plaintiff to provide all outstanding discovery, and to extend defendants' time to move for summary judgment. PROCEDURAL HISTORY 3. The first piece of outstanding discovery alleged is a response to the May 4, 2015 letter requesting unrestricted authorizations. This matter was resolved by the May 29, 2015 order in which plaintiff withdrew the September 18, 2014 Bill of Particulars. (See plaintiffs Exhibit "A"). Additionally, defendant's attempt to secure unrestricted authorizations is properly objectionable. 1 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017 "It is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue" Romance v. Zavala, 98 AD3D 726 (2nd Dept. 2012). However, the principle of 'full disclosure' does not give a party the right to uncontrolled and unfettered disclosure. As such, the Court in Romance denied defendants' request for unrestricted authorizations for plaintiffs medical records and restricted the request to 5 years prior to the date of accident. 4. Put simply, these demands are overbroad and unlikely to lead to the discovery of admissible evidence. Nevertheless, in plaintiffs response to combined demands plaintiff served defendants with HIP AA authorizations permitting defendants to obtain the entire medical records for all of plaintiffs treating doctors and facilities. (See plaintiffs Exhibit "B"). In these authorizations plaintiff has marked the second box under section 9(a), permitting the entire medical records for each facility to be retrieved by defendants. 5. With regard to the May 18, 2015 letter, plaintiff is permitted to supplement her bill of particulars as to special damages within thirty (30) days of trial as per CPLR §3043(b). As such, a supplemental bill of particulars will be served as to special damages in compliance with the CPLR, if necessary. Furthermore, plaintiff responded to defendant's May 18, 2015 letter. (see plaintiffs Exhibit "C") 6. Looking at defendants' Notices for Discovery and Inspection dated November 5, 2015, March 25, 2016, and March 30, 2016, defendants sent these demands to the Law Offices of Aleksandr Vakrev, at 2566 86th Street, Ste. 1, Brooklyn, NY 11214. Clearly not the office ofplaintiff s attorney, who was located at the time at 112 Madison Avenue New York, New York 10016. 2 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017 7. Defendants, in their papers, reference two orders dated April 29, 2016 and October 14, 2016 ordering plaintiff to respond to demands. The dates of these discovery demands are March 25, 2016 and March 30, 2016 and as noted above were not properly served on plaintiff. 8. Despite not having been served with these demands plaintiff has responded to all of defendants' authorization requests. Regarding the November 5, 2015 demands, (see defendants' Exhibit "H"), this was responded to by plaintiff on September 24, 2015 and November 10, 2015 where plaintiff provided authorizations for Dr. Lerman, Mont Sinai Beth Israel and a response to plaintiffs employment records with CVS. (See plaintiffs Exhibit "D"). 9. Plaintiff responded to defendants' March 30, 2016 demands (see defendants' Exhibit "J") on May 24, 2016 (see attached plaintiffs Exhibit "E"). The remaining information in defendants' March 30, 2016 demand had been responded to though plaintiffs September 24, 2015 and November 10, 2015 responses. (see attached plaintiffs Exhibits "D & E"). 10. It is clear that Plaintiff has complied with all outstanding discovery requests, including requests that were never served on plaintiff during the course of discovery. Since there is no outstanding discovery in the instant action, plaintiff requests that defendants' motions be denied in their entirety and the case remain on the active trial calendar. THERE IS NO BASIS TO VACATE THE PRIOR ORDERS 11. Defendant's own motion makes clear that a motion for leave to reargue or renew "shall be identified specifically as such." CPLR §2221(d) & (e). Nowhere in the Notice of Motion nor in the Affirmation in Support does defense counsel identify whether she is making a motion to renew or reargue. No new facts not offered on the prior motion are alleged so there is no basis for a motion to renew. With regard to a motion to reargue, the court did not overlook or misapprehend any fact offered in the prior motion as discovery was, in fact, complete. 3 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017 12. In Rothchild v. LF Auto Corp., 16 AD3d 481 (2nd Dept. 2005), the Appellate Division reversed a lower court's decision granting leave to renew and reargue an order dismissing plaintiffs complaint. The Second Department concluded, "The plaintiff did not demonstrate any ground for renewal or reargument of the order dated October 3, 2003. Moreover, the plaintiff did not establish entitlement to vacatur of the judgment dated October 20, 2003 which was not entered on default." (emphasis added) As in Rothchild, defendant has demonstrated no ground for renewal or reargument of Judge Goetz's order. Furthermore, it is evident that law office failure to articulate allegedly missing discovery is not an excuse as the orders were not entered on default. 13. Finally, CPLR §5015(a) is inapplicable to the matter at hand. As a condition precedent to invoking CPLR §5015(a) (5), the February 6, 2017 order would already have to be vacated. As that is not the case, there is no basis to vacate the June 19, 2017 order. THERE IS NO BASIS TO VACATE THE NOTE OF ISSUE 14. It is in within the Court's discretion to strike the note of issue if a party moves within 20 days of filing of the note of issue, see 22 N.Y.C.R.R. § 202-21(e), but the none of the conditions justifying vacatur exist in this case. Accord Pannone v. Silberstein, 40 A.D.3d 327 (1st Dept. 2007) ("The court properly exercised its discretion in denying defendant's motion to strike plaintiffs note of issue. There was no outstanding discovery when plaintiff filed the note of issue and the certificate ofreadiness contains no factual errors."). 15. It is undisputed that defendant did not move to vacate the note of issue within 20 days of filing. As the original motion was properly filed and denied, Defendant's second motion, filed over 5 months after the Note oflssue, must be denied as untimely. See, Allen v Hiraldo, 144 A.D.3d 434 (l5t Dept. 2016) (motion to vacate note of issue properly denied as untimely.) 4 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017 16. In fact, the Court of Appeals has ruled that if the motion is not filed timely, then 22 NYCRR 202.21(e) is inapplicable and therefore the Court does not have discretion to vacate the note. Should a motion for discovery be made over 20 days after the note of issue is filed, the only recourse is under 22 NYCRR 202.21(d) and defendant must show unusual or unanticipated circumstances arose after the filing and substantial prejudice. See, Audiovox Corp. v. Benyamin, supra. (the more difficult standard is that provided by 22 NYCRR 202.21 (d) because it requires the movant to demonstrate unusual or unanticipated circumstances and substantial prejudice, whereas a timely motion to vacate the note of issue pursuant to 22 NYCRR 202.21 (e) need only demonstrate in what respects the case is not ready for trial. Another important distinction is that under 22 NYCRR 202.21 (e) the court may vacate the note of issue, while under subsection (d) the court does not have that discretion.) 17. Schroder v. JES] NY Corp, 24 AD3d 180 (1st Dept. 2005) concluded that the Supreme Court erred in granting defendants' motion to vacate the note of issue. Vacatur was inapplicable because the motion was filed over 20 days after service of the note of issue and the only other basis for obtaining post-note discovery was pursuant to 22 NYCRR 202.21(d). The Appellate Division decided, "This subsection does not apply because there was no unusual or unanticipated circumstance that developed "subsequent" to the filing of the note of issue." Id. at 181. As in Schroder, Defendant has failed to show unusual or unanticipated circumstances developed post-Note as defendants themselves signed off on the February 6, 2017 order acknowledging that all discovery was complete. (see attached Exhibit "F"). 18. Even more analogous to the case at hand is Behljulhevic v. City of New York, 2017 NY Slip Op 04912 (1st Dept. 2017). The Appellate Division in Behljulhevic affirmed a lower court's denial of a motion to vacate the note of issue and strike the matter from the trial 5 of 6 FILED: NEW YORK COUNTY CLERK 09/22/2017 10:50 AM INDEX NO. 151998/2014 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 09/22/2017 calendar. "By stipulating at the October 20, 2015 compliance conference that all discovery was complete, Con Ed lost its entitlement to the information plaintiff stated in his April 6, 2015 response that he would provide under separate cover." 19. As Plaintiff has obediently provided discovery throughout the course of this litigation and the circumstances for striking the note have not been met, it is axiomatic that defendants' motions to vacate be denied. 20. Additionally, defendants' signatures on the February 6, 2017 order waives their ability to additional discovery at this juncture. WHEREFORE, it is respectfully requested that the defendants' motions be denied in their entirety, and for what other and further relief as this Court deems just and necessary. Dated: New York, New York Tuesday, September 19, 2017 TO: Richard E. Noll, Esq. The Noll Law Firm Attorneys for Defendant ZEPHANIAH P. MULLIN AND CHARLES S. GILES 116 Jackson Avenue Syosset, NY 11 791 (516) 307-1199 Diana Kane, Esq. Rawle & Henderson, LLP Attorneys for Defendant J.B. HUNT TRANSPORT, INC. and GEORGE LAMADELEINE 14 Wall Street, 27th Floor New York, NY 10005 (212) 323-7080 6 of 6