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FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
OGUNWALE ELEBUTE, Index No.: 520675/2017
Plaintiff,
AFFIRMATION IN OPPOSITION
-against- TO PLAINTIFF'S MOTION TO
STRIKE/COMPEL
NORTHWELL HEALTH, INC., NORTHSHORE
UNIVERSITY HOSPITAL and JOHNNY RAY Returnable: 5/15/2019
MARQUEZ,
Defendants.
RACHEL A. RUBIN, an attorney duly admitted to practice law by and before the Courts
of the State of New York, hereby affirms the following to be true under the penalty of perjury:
1. I am associated with WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER
LLP, attorneys for defendants, NORTHWELL HEALTH, INC., NORTH SHORE UNIVERSITY
HOSPITAL, and JOHNNY RAY MARGUEZ (hereinafter referred to as "defendants"). By virtue
of my association with this firm and my work with this file, I am fully familiar with the facts and
circumstances of this matter as set forth herein.
2. I respectfully make this Affirmation, upon information and belief, in opposition to
plaintiff's motion to strike defendant's answer, or in the alternative, compelling defendant to
produce discovery by a date certain and conditionally striking the answer of the defendants if such
responses are not provided. As set forth below, plaintiff has failed to set forth any competent
evidence to warrant the striking of defendant's answer. Defendants have timely responded to the
plaintiff's demands and have provided full and meaningful responses to each and every demand
served by the plaintiff. As such, defendants have complied with all of the requests and demands
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served by the plaintiff and have properly objected to improper and inappropriate demands where
appropriate given the nature of the demand served. All proper objections were noted and made in
good faith. Moreover, plaintiff has already been granted summary judgment in this matter relating
to liability and therefore, the remainder of this litigation and trial pertains solely to the issue of
damages. Despite this, plaintiff continues to seek discovery which goes solely to the issue of
liability and which, given that an adverse liability finding against the defendants has already been
granted by this Honorable Court, is no longer relevant to the issue of damages. Nevertheless,
defendants have stillfully complied with all appropriate discovery requests. Those demands that
were served in the proper form by the plaintiff, which were not in the form of interrogatories, and
which sought documents and information actually relevant and related to the allegations of the
plaintiff were responded to in kind. Thus, itis respectfully submitted that the plaintiff's motion to
strike/compel must be denied in its entirety as the defendants have complied with the discovery
requests served by the plaintiff, and the plaintiff has failed to establish why any of the demands
which were objected to by the defendant were proper and why plaintiff would be entitled to such
documents or information given the nature of the demand that was served. Plaintiff enumerates
"A" "U"
demands through in his motion, all of which have already been responded to, and each
will be addressed in further detail below.
3. Moreover, plaintiff has not set forth any reasonable basis or proof that would merit
defendants'
such a severe sanction as striking answer, which requires a showing of bad faith and
willful evasion, which clearly does not exist here given that alldemands were fully and completely
responded to, and all objections to the plaintiff's improper demands were made in good faith and
with a proper basis rooted in the governing case law. As such, defendants request that this
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Honorable Court issue an order (a) denying plaintiff's application in its entirety, and/or (b) for
such other relief as the court deems just and proper.
PLAINTIFF HAS FAILED TO ESTABLISH THAT STRIKING
DEFENDANTS'
ANSWER IS WARRANTED
defendants'
4. Plaintiff has provided no valid legal basis why answer should be
stricken. As required under New York law, there is no evidence of any egregious or contumacious
defendants'
conduct that would warrant the striking of answer. As previously noted, defendants
defendants'
timely responded to the plaintiff's lengthy set of demands. Copies of numerous
"A"
responses to all such demands are attached hereto as Exhibits through "D". Additionally, in
an effort to resolve this motion amicably, defendants supplemented and clarified their responses
to the plaintiff's demands in the form of two supplemental letters, which are attached hereto as
"E"
Exhibits and "F". Since full and complete responses to plaintiff's demands have been
provided, there is certainly no basis to support the plaintiff's motion seeking to strike the
defendant's answer.
5. Itis a matter of well-established New York law that striking an answer is an extreme
penalty that should not be invoked unless it is clearly shown that the default was willful,
contumacious, or acted in bad faith. Denoyelles v. Gallagher, 30 A.D.3d 367, 817 N.Y.S.2d 318,
(2d Dept. 2006). See also, Mironer v City of New York, 79 A.D.3d 1106, 915 N.Y.S.2d 279 (2d
Dept. 2010); Harris v. City of New York, 211 A.D.2d 663, 622 N.Y.S.2d 289 (2d Dept. 1995).
The moving party bears the burden of coming forward with a sufficient showing of willfulness.
Read v. Dickson, 150 A.D.2d 543, 541 N.Y.S.2d 126 (2d Dept. 1989); Rosner v. Blue Channel
Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736 (2d Dept. 1987).
defendants'
6. The drastic remedy of striking answer is obviously unwarranted here,
where plaintiff has failed to meet itsburden and failed to establish that defendants have acted either
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willfully or contumaciously. It should also be noted that courts have even held that where there is
protracted delay and evasion, which is certainly not even the case here, striking an answer has been
held to be too drastic a remedy. Hunter Mechanical Corp. v. Salkind, 237 A.D.2d 180, 654
N.Y.S.2d 381 (1st Dept. 1997). Again, defendants have provided responses to the plaintiff's
demands. Clearly, there is no evidence of willful or contumacious behavior sufficient to warrant
defendants'
the striking of answer and the plaintiff's motion seeking same must be denied outright.
DEFENDANTS HAVE PROVIDED FULL AND MEANINGFUL RESPONSES TO ALL
APPROPRIATE DISCOVERY DEMANDS SERVED BY THE PLAINTIFF
"A"
7. Plaintiff enumerated a listof demands titled through "U", which he claims
have not been properly and fully responded to by the defendants. However, a close examination
of the extensive responses previously served by the defendants demonstrates that responses to all
such demands have been provided. It must first be noted that there is an inherent difference in the
CPLR between the use of interrogatories, which are governed by CPLR §3130, and the
production of documents and things, which is governed by CPLR §3120. Plaintiff served various
Notices for Discovery and Inspection, which he noted explicitly were being served pursuant to
CPLR §3120. Under CPLR §3120, a demand may be made "to produce and permit the parking
seeking discovery [] to inspect, copy, test or photograph any designated documents or any things
which are in the possession, custody or control of the party or person served. See CPLR §3120.
Thus, the language of the statute clearly states that a demand pursuant to this section may be one
Interrogatories"
for physical documents or things. To the contrary, CPLR §3130 entitled "Use of
allows a party to serve written questions, seeking information that is not contained within a
physical document or thing. Notably, however, a party in a negligence action like the case at bar
is not permitted to serve interrogatories on a party and also conduct a deposition of the same
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party. See CPLR §3130. Because itis assumed that the plaintiff intends to depose the defendants
in this case, all demands that were served by the plaintiff that were in the form of an
interrogatory (or a request for information not contained within a physical document or thing),
were appropriately objected to as improper. Nevertheless and despite same, all documents that
are within the possession of the defendants which pertain to the subject incident involving the
plaintiff have been disclosed. To the extent the plaintiff has further questions or interrogatories,
or seeks further information not set forth within any of the documents exchanged, the appropriate
vehicle to inquire regarding that information would be atthe party depositions, which are
currently scheduled to be held on or before July 23, 2019 as per the recent compliance
conference order.
8. Plaintiff seeks the names and addresses of all witnesses without reference to other
"H" "M"
documentation such as MV 104s, police reports, and incident reports (Items through on
page 5 of the plaintiff's motion). As noted above, a notice for discovery and inspection is a
demand for documents, which includes the reports listed by the plaintiff above. Thus, itis
entirely proper for the defendants to point to and reference documents which listthe names and
addresses of witnesses as a response to this demand, rather than simply listing out the names and
addresses of each. As is evidenced by the attached discovery responses, this information has
been provided to the plaintiff and thus, his efforts to obtain this same exact information just in a
different format is unwarranted, baseless, and a waste of judicial economy when the plaintiff
already has this information in his possession. Defendants have properly responded to plaintiff's
demands for the names and addresses of allknown witnesses and have thus, provided full and
meaningful responses to the demands served by plaintiff for witnesses.
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defendants'
9. Plaintiff also seeks the names and addresses of "each passenger in
vehicle"
(Item "H") and specifically, the full name and address of the "patient passenger referred
defendants' report"
to in incident (Item "L") and the full name and address of "patient's mother
defendants' report"
passenger referred to in incident (Item "M"). As noted above, this demand is
an interrogatory as it is seeking information and not physical documents and thus, is improper for
a notice for discovery and inspection. All documents responsive to plaintiff's demands have been
disclosed already and the names of the individuals known to have been involved in the subject
incident are outlined therein. This includes the names of all individuals who were within the
defendants'
vehicle that were employed by the defendants at the time of the incident. Notably,
defendants'
the vehicle was an ambulance and the incident report notes that the ambulance was
carrying a patient and the patient's mother at the time of the incident. Specifically, the incident
child"
report notes that the patient was a "2 y/o and notes that the child's mother was in the
ambulance, as well. Plaintiff has demanded the names and addresses of these individuals;
however, as noted in the previously served discovery responses, defendants are unable to
disclose this information as it isprotected by governed by Health Insurance Portability and
Accountability Act of 1996 ("HIPAA"). Because the defendants are health providers, their
conduct is governed by HIPAA. Under HIPAA laws, defendants are unable to disclose any
protected health information ("PHI") without express authorization of the patient. The name and
address of any patient treated by the defendants is considered PHI and therefore, disclosure of
such information would amount to violation of federal privacy laws under HIPAA and thus, such
information cannot be exchanged. the incident report does note that the patient was a 2-
Notably,
year old child and thus, itis unknown why the plaintiff would be seeking this information and
filing motions with the court in order to obtain the identity of this individual, particularly for a
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damages only trial, and defendants posit that this portion of the demand is improper and seeking
irrelevant information. Moreover, because the names of these individuals are not listed in any of
the related incident reports (previously disclosed), for the defendants to obtain the identity of the
patient or the patient's relative, itwould necessarily require looking into the patient's protected
medical records and thus, would amount to a violation of the federal HIPAA laws. Of course,
should the defendants ever intend to produce a witness at trialthat has not yet been disclosed, the
identity of such a person will be disclosed within a reasonable time before trial as governed by
the CPLR and related case law and if not disclosed appropriately, the plaintiff can at that time
seek the appropriate relief. However, given that attempting to identify the patient and the
patient's mother at this time would amount to a violation of the federal HIPAA laws by the
defendants, such information cannot be disclosed.
10. In Item "N", plaintiff seeks opposing party statements without reference to other
documentation. As noted above and will be reiterated, a notice for discovery and inspection is a
demand for documents, and does not require that an answer to a question or demand be written
out or listed out such as a response to an interrogatory might. Thus, itis entirely proper for the
defendants to point to and reference documents which contain opposing party statements made
by the plaintiff, rather than simply listing out each and every opposing party statement made by
the plaintiff. As is evidenced by the attached discovery responses, this information has already
been provided to the plaintiff and thus, his efforts to obtain this same exact information just in a
different format is unwarranted, baseless, and a waste of judicial economy when the plaintiff
already has this information in his possession. Defendants have properly responded to plaintiff's
demand for opposing party statements and have thus, fully complied with alldemands made for
same.
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"O" "S"
11. Items through seek accident reports. As previously noted, all accident
reports pertaining to the subject incident and which were prepared in the ordinary course of
business have already been disclosed. It isunknown what further documents or information
plaintiff is seeking through these duplicative demands as defendants have already provided
"A" "D"
responses to these demands. See Exhibits through
12. Plaintiff seeks a response to the preliminary conference order which simply is a
recitation of all of the other demands already served by the plaintiff and addressed in the within
papers. For the reasons set forth above, a full and complete response has been provided by the
defendants to the preliminary conference order, and also for the reasons set forth above, the
defendants are unable to provide the names of the patient passenger and patient's mother as per
the federal HIPAA laws. The names of any potential witnesses that are identified in the future
will be disclosed as per the rules of the CPLR within a reasonable time before trialshould the
defendants intend to rely on same at trial.
"U"
13. Finally, plaintiff's item was responded to in a supplemental letters provided
to the plaintiff on April 16, 2019 and which is attached hereto as Exhibit "E". Summarily and as
noted above, a notice for discovery and inspection is a demand for documents and this demand is
an interrogatory as it seeks the answer to a question, which is a piece of information and not a
physical thing. This objection was properly noted by defendants in their responses but
nevertheless, a response was stillprovided and thus, this demand was answered fully and
meaningfully by the defendants.
14. For the foregoing reasons, itis respectfully requested that the Court deny
plaintiff's motion in its entirety.
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WHEREFORE, for all the reasons aforesaid, itis respectfully requested that this Court
deny plaintiff's motion in its entirety and grant such other and further relief as this Court may
deem just and proper.
Dated: New York, New York
May 8, 2019
Respectfully submitted,
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
By:
Richel A. Rubin
Attorneys for Defendants
150 East 42nd Street
New York, New York 10017
(212) 490-3000
File No.: 19541.00014
TO: WESER & WESER, P.C.
Attorneys for Plaintiff
1392 Coney Island Avenue
Brooklyn, New York 11230
(718) 338-3000
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FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS OGUNWALE ELEBUTE, Index No.: 520675/2017 Plaintiff, AFFIRMATION IN OPPOSITION -against- TO PLAINTIFF'S MOTION TO STRIKE/COMPEL NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPITAL and JOHNNY RAY Returnable: 5/15/2019 MARQUEZ, Defendants. RACHEL A. RUBIN, an attorney duly admitted to practice law by and before the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am associated with WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, attorneys for defendants, NORTHWELL HEALTH, INC., NORTH SHORE UNIVERSITY HOSPITAL, and JOHNNY RAY MARGUEZ (hereinafter referred to as "defendants"). By virtue of my association with this firm and my work with this file, I am fully familiar with the facts and circumstances of this matter as set forth herein. 2. I respectfully make this Affirmation, upon information and belief, in opposition to plaintiff's motion to strike defendant's answer, or in the alternative, compelling defendant to produce discovery by a date certain and conditionally striking the answer of the defendants if such responses are not provided. As set forth below, plaintiff has failed to set forth any competent evidence to warrant the striking of defendant's answer. Defendants have timely responded to the plaintiff's demands and have provided full and meaningful responses to each and every demand served by the plaintiff. As such, defendants have complied with all of the requests and demands 9816617v.1 1 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 served by the plaintiff and have properly objected to improper and inappropriate demands where appropriate given the nature of the demand served. All proper objections were noted and made in good faith. Moreover, plaintiff has already been granted summary judgment in this matter relating to liability and therefore, the remainder of this litigation and trial pertains solely to the issue of damages. Despite this, plaintiff continues to seek discovery which goes solely to the issue of liability and which, given that an adverse liability finding against the defendants has already been granted by this Honorable Court, is no longer relevant to the issue of damages. Nevertheless, defendants have stillfully complied with all appropriate discovery requests. Those demands that were served in the proper form by the plaintiff, which were not in the form of interrogatories, and which sought documents and information actually relevant and related to the allegations of the plaintiff were responded to in kind. Thus, itis respectfully submitted that the plaintiff's motion to strike/compel must be denied in its entirety as the defendants have complied with the discovery requests served by the plaintiff, and the plaintiff has failed to establish why any of the demands which were objected to by the defendant were proper and why plaintiff would be entitled to such documents or information given the nature of the demand that was served. Plaintiff enumerates "A" "U" demands through in his motion, all of which have already been responded to, and each will be addressed in further detail below. 3. Moreover, plaintiff has not set forth any reasonable basis or proof that would merit defendants' such a severe sanction as striking answer, which requires a showing of bad faith and willful evasion, which clearly does not exist here given that alldemands were fully and completely responded to, and all objections to the plaintiff's improper demands were made in good faith and with a proper basis rooted in the governing case law. As such, defendants request that this 9816617v.1 2 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 Honorable Court issue an order (a) denying plaintiff's application in its entirety, and/or (b) for such other relief as the court deems just and proper. PLAINTIFF HAS FAILED TO ESTABLISH THAT STRIKING DEFENDANTS' ANSWER IS WARRANTED defendants' 4. Plaintiff has provided no valid legal basis why answer should be stricken. As required under New York law, there is no evidence of any egregious or contumacious defendants' conduct that would warrant the striking of answer. As previously noted, defendants defendants' timely responded to the plaintiff's lengthy set of demands. Copies of numerous "A" responses to all such demands are attached hereto as Exhibits through "D". Additionally, in an effort to resolve this motion amicably, defendants supplemented and clarified their responses to the plaintiff's demands in the form of two supplemental letters, which are attached hereto as "E" Exhibits and "F". Since full and complete responses to plaintiff's demands have been provided, there is certainly no basis to support the plaintiff's motion seeking to strike the defendant's answer. 5. Itis a matter of well-established New York law that striking an answer is an extreme penalty that should not be invoked unless it is clearly shown that the default was willful, contumacious, or acted in bad faith. Denoyelles v. Gallagher, 30 A.D.3d 367, 817 N.Y.S.2d 318, (2d Dept. 2006). See also, Mironer v City of New York, 79 A.D.3d 1106, 915 N.Y.S.2d 279 (2d Dept. 2010); Harris v. City of New York, 211 A.D.2d 663, 622 N.Y.S.2d 289 (2d Dept. 1995). The moving party bears the burden of coming forward with a sufficient showing of willfulness. Read v. Dickson, 150 A.D.2d 543, 541 N.Y.S.2d 126 (2d Dept. 1989); Rosner v. Blue Channel Corp., 131 A.D.2d 654, 516 N.Y.S.2d 736 (2d Dept. 1987). defendants' 6. The drastic remedy of striking answer is obviously unwarranted here, where plaintiff has failed to meet itsburden and failed to establish that defendants have acted either 9816617v.1 3 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 willfully or contumaciously. It should also be noted that courts have even held that where there is protracted delay and evasion, which is certainly not even the case here, striking an answer has been held to be too drastic a remedy. Hunter Mechanical Corp. v. Salkind, 237 A.D.2d 180, 654 N.Y.S.2d 381 (1st Dept. 1997). Again, defendants have provided responses to the plaintiff's demands. Clearly, there is no evidence of willful or contumacious behavior sufficient to warrant defendants' the striking of answer and the plaintiff's motion seeking same must be denied outright. DEFENDANTS HAVE PROVIDED FULL AND MEANINGFUL RESPONSES TO ALL APPROPRIATE DISCOVERY DEMANDS SERVED BY THE PLAINTIFF "A" 7. Plaintiff enumerated a listof demands titled through "U", which he claims have not been properly and fully responded to by the defendants. However, a close examination of the extensive responses previously served by the defendants demonstrates that responses to all such demands have been provided. It must first be noted that there is an inherent difference in the CPLR between the use of interrogatories, which are governed by CPLR §3130, and the production of documents and things, which is governed by CPLR §3120. Plaintiff served various Notices for Discovery and Inspection, which he noted explicitly were being served pursuant to CPLR §3120. Under CPLR §3120, a demand may be made "to produce and permit the parking seeking discovery [] to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person served. See CPLR §3120. Thus, the language of the statute clearly states that a demand pursuant to this section may be one Interrogatories" for physical documents or things. To the contrary, CPLR §3130 entitled "Use of allows a party to serve written questions, seeking information that is not contained within a physical document or thing. Notably, however, a party in a negligence action like the case at bar is not permitted to serve interrogatories on a party and also conduct a deposition of the same 9816617v.1 4 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 party. See CPLR §3130. Because itis assumed that the plaintiff intends to depose the defendants in this case, all demands that were served by the plaintiff that were in the form of an interrogatory (or a request for information not contained within a physical document or thing), were appropriately objected to as improper. Nevertheless and despite same, all documents that are within the possession of the defendants which pertain to the subject incident involving the plaintiff have been disclosed. To the extent the plaintiff has further questions or interrogatories, or seeks further information not set forth within any of the documents exchanged, the appropriate vehicle to inquire regarding that information would be atthe party depositions, which are currently scheduled to be held on or before July 23, 2019 as per the recent compliance conference order. 8. Plaintiff seeks the names and addresses of all witnesses without reference to other "H" "M" documentation such as MV 104s, police reports, and incident reports (Items through on page 5 of the plaintiff's motion). As noted above, a notice for discovery and inspection is a demand for documents, which includes the reports listed by the plaintiff above. Thus, itis entirely proper for the defendants to point to and reference documents which listthe names and addresses of witnesses as a response to this demand, rather than simply listing out the names and addresses of each. As is evidenced by the attached discovery responses, this information has been provided to the plaintiff and thus, his efforts to obtain this same exact information just in a different format is unwarranted, baseless, and a waste of judicial economy when the plaintiff already has this information in his possession. Defendants have properly responded to plaintiff's demands for the names and addresses of allknown witnesses and have thus, provided full and meaningful responses to the demands served by plaintiff for witnesses. 9816617v.1 5 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 defendants' 9. Plaintiff also seeks the names and addresses of "each passenger in vehicle" (Item "H") and specifically, the full name and address of the "patient passenger referred defendants' report" to in incident (Item "L") and the full name and address of "patient's mother defendants' report" passenger referred to in incident (Item "M"). As noted above, this demand is an interrogatory as it is seeking information and not physical documents and thus, is improper for a notice for discovery and inspection. All documents responsive to plaintiff's demands have been disclosed already and the names of the individuals known to have been involved in the subject incident are outlined therein. This includes the names of all individuals who were within the defendants' vehicle that were employed by the defendants at the time of the incident. Notably, defendants' the vehicle was an ambulance and the incident report notes that the ambulance was carrying a patient and the patient's mother at the time of the incident. Specifically, the incident child" report notes that the patient was a "2 y/o and notes that the child's mother was in the ambulance, as well. Plaintiff has demanded the names and addresses of these individuals; however, as noted in the previously served discovery responses, defendants are unable to disclose this information as it isprotected by governed by Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Because the defendants are health providers, their conduct is governed by HIPAA. Under HIPAA laws, defendants are unable to disclose any protected health information ("PHI") without express authorization of the patient. The name and address of any patient treated by the defendants is considered PHI and therefore, disclosure of such information would amount to violation of federal privacy laws under HIPAA and thus, such information cannot be exchanged. the incident report does note that the patient was a 2- Notably, year old child and thus, itis unknown why the plaintiff would be seeking this information and filing motions with the court in order to obtain the identity of this individual, particularly for a 9816617v.1 6 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 damages only trial, and defendants posit that this portion of the demand is improper and seeking irrelevant information. Moreover, because the names of these individuals are not listed in any of the related incident reports (previously disclosed), for the defendants to obtain the identity of the patient or the patient's relative, itwould necessarily require looking into the patient's protected medical records and thus, would amount to a violation of the federal HIPAA laws. Of course, should the defendants ever intend to produce a witness at trialthat has not yet been disclosed, the identity of such a person will be disclosed within a reasonable time before trial as governed by the CPLR and related case law and if not disclosed appropriately, the plaintiff can at that time seek the appropriate relief. However, given that attempting to identify the patient and the patient's mother at this time would amount to a violation of the federal HIPAA laws by the defendants, such information cannot be disclosed. 10. In Item "N", plaintiff seeks opposing party statements without reference to other documentation. As noted above and will be reiterated, a notice for discovery and inspection is a demand for documents, and does not require that an answer to a question or demand be written out or listed out such as a response to an interrogatory might. Thus, itis entirely proper for the defendants to point to and reference documents which contain opposing party statements made by the plaintiff, rather than simply listing out each and every opposing party statement made by the plaintiff. As is evidenced by the attached discovery responses, this information has already been provided to the plaintiff and thus, his efforts to obtain this same exact information just in a different format is unwarranted, baseless, and a waste of judicial economy when the plaintiff already has this information in his possession. Defendants have properly responded to plaintiff's demand for opposing party statements and have thus, fully complied with alldemands made for same. 9816617v.1 7 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 "O" "S" 11. Items through seek accident reports. As previously noted, all accident reports pertaining to the subject incident and which were prepared in the ordinary course of business have already been disclosed. It isunknown what further documents or information plaintiff is seeking through these duplicative demands as defendants have already provided "A" "D" responses to these demands. See Exhibits through 12. Plaintiff seeks a response to the preliminary conference order which simply is a recitation of all of the other demands already served by the plaintiff and addressed in the within papers. For the reasons set forth above, a full and complete response has been provided by the defendants to the preliminary conference order, and also for the reasons set forth above, the defendants are unable to provide the names of the patient passenger and patient's mother as per the federal HIPAA laws. The names of any potential witnesses that are identified in the future will be disclosed as per the rules of the CPLR within a reasonable time before trialshould the defendants intend to rely on same at trial. "U" 13. Finally, plaintiff's item was responded to in a supplemental letters provided to the plaintiff on April 16, 2019 and which is attached hereto as Exhibit "E". Summarily and as noted above, a notice for discovery and inspection is a demand for documents and this demand is an interrogatory as it seeks the answer to a question, which is a piece of information and not a physical thing. This objection was properly noted by defendants in their responses but nevertheless, a response was stillprovided and thus, this demand was answered fully and meaningfully by the defendants. 14. For the foregoing reasons, itis respectfully requested that the Court deny plaintiff's motion in its entirety. 9816617v.1 8 of 9 FILED: KINGS COUNTY CLERK 05/08/2019 03:32 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/08/2019 WHEREFORE, for all the reasons aforesaid, itis respectfully requested that this Court deny plaintiff's motion in its entirety and grant such other and further relief as this Court may deem just and proper. Dated: New York, New York May 8, 2019 Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Richel A. Rubin Attorneys for Defendants 150 East 42nd Street New York, New York 10017 (212) 490-3000 File No.: 19541.00014 TO: WESER & WESER, P.C. Attorneys for Plaintiff 1392 Coney Island Avenue Brooklyn, New York 11230 (718) 338-3000 9816617v.1 9 of 9