Preview
FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SHADEL JACKSON,
Plaintiff,
Index No. 520647/17E
-against-
AFFIRMATION IN
MICHEL R. FRANCOUER, ANETTE O. MORGAN SUPPORT
and NASHON ONIEL SADDLAR,
Defendants
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MEGAN C. BRADY, an attorney duly admitted to practice law before the Courts of the
State of New York, affirms the following to be true, upon information and belief, under penalties
of perjury:
1. I am associated with the law firm of MARTYN AND MARTYN, attorneys for
the defendant, MICHEL R. FRANCOUER, ("FRANCOUER"). I am fully familiar with the
facts and circumstances set forth herein based upon my review of a file maintained in this office.
2. This matter arises from an accident which took place on or about December 10,
2015 on 114 Street or near its intersection with North Conduit, Queens, City and State of New
York. As a result of this accident plaintiff has alleged personal injuries.
3. The plaintiff commenced this action by the service and e-filing of a Summons and
Verified Complaint on October 25, 2017. See Summons and Verified Complaint, annexed hereto,
as Exhibit A. The defendant, FRANCOUER, served a Verified Answer and issue was joined on
March 26, 2018. See Verified Answer, annexed hereto, as Exhibit B. We do not have a copy of
co-defendants'
the Answer.
4. Recently, our office received plaintiff's Note of Issue on July 10, 2019, which
upon information and belief was filed with the Court on July 11, 2019. See Note of Issue,
annexed hereto, as Exhibit C. Accordingly, this motion is timely as it is being made within 20
days of the filing of plaintiff's Note of Issue and Certificate of Readiness for Trial.
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5. This action is not ready for trial, as the following pre-trial discovery proceedings
have not as yet been completed - the Post EBT Demands directed to plaintiff.
namely
6. On June 15, 2018, a Preliminary Conference was held and the following order
was entered: a) Compliance Conference to be held on 12/4/18 b) Discovery End Date/Note of
Issue due 5/11/19; c) Insurance coverage (including excess and umbrella coverage to be provided
within 30 days; d) Defendant to serve Bill of particulars within 45 days; e) HIPAA compliant
Authorizations for actual records of all healthcare providers, diagnostic tests, X-rays, MRI,
EMG, CT scans for injuries claimed in BP within 30 days; f) Plaintiffs within 60 days of filing
Note of Issue must serve defendants Fresh HIPAA compliant authorizations for all known health
care providers; g) Depositions on 10/16/18; h) Defendants to schedule IME's within 45 days of
the Plaintiffs Deposition; i). IME to be held within 30 days of the Plaintiffs Deposition; j) All
parties'
parties to exchange names and addresses of all witnesses, opposing statements,
photographs, surveillance tapes and accident reports prepared in the ordinary course of business.
If none, an affirmation to that effect shall be provided; k) authorizations for plaintiffs (for year
before, year of and year after) employment attendance records, IRS if self-employed or W2; 1)
Plaintiff to provide No-Fault or Collateral Source authorization. All to be completed within 45
Days; m) All parties shall supply expert witness disclosure pursuant to CPLR; n) impleader
actions to be completed with 60 days after completion of EBTs. See Order, annexed hereto as
Exhibit D.
7. The EBT of the plaintiff went forward on October 16, 2018.
8. On or about December 4, 2018, the parties appeared for a Compliance Conference
and the following Order was issued: a) Plaintiff to provide all outstanding authorizations within
20 days; b) All outstanding responses to Discovery and Inspection requests within 20 days; c)
Deposition of remaining defendant on 1/17/19 to the extent not done; d) Independent Medical
Examination to be designated by 12/19/18 and held on or before 12/26/19; e) Medical Reports
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019
exchanged within 45 days; f) Plaintiff shall file a Note of Issue on or before 8/12/19 or action
may be dismissed.See Order, annexed hereto as Exhibit E.
9. On July 2, 2019, the parties appeared for a Final Conference. An Order was
issued directing: Parties to serve Post EBT Demands Plaintiff to respond to co-
a) by 8/2/19; b)
defendant's Post EBT Demands dated 11/20/18 by 8/2/19; c) Plaintiff to provide HIPAA
authorizations upon filing of the Note of Issue; and d) Parties to respond to all outstanding
discovery by 8/2/19. See Order, annexed hereto as Exhibit F.
10. On July 22, 2019, the defendant served a Post EBT Combined Demand for
Authorizations and Notice for Discovery and Inspection. See Demand, annexed hereto as
Exhibit G.
11. To date, the plaintiff has not yet responded to the outstanding discovery.
12. It is respectfully submitted that FRANCOUER herein will be severely prejudiced
should plaintiff's Note of Issue not be stricken from the Calendar, as the outstanding discovery is
material, vital and necessary for a proper defense of the within matter. The plaintiff's Note of
Issue and Certificate of Readiness should be vacated and the matter be stricken from the trial
calendar, where a plaintiff's certificate of readiness contains incorrect representation that
discovery proceedings necessary have been completed, yet, outstanding discovery remains
present. See Garofalo v. Mercy Hospital, 706 N.Y.S.2d 477 (2d Dep't. 2000).
13. This outstanding discovery has not been waived by the defendant.
14. Alternatively, it is respectfully submitted that an Order should be issued
compelling plaintiffs to respond to outstanding discovery, by a date certain, or else be precluded
from offering any evidence as to damages at the time of trial. Further, in such a case, an Order
should be entered extending FRANCOUER's time to move for summary judgment for an
additional 120 days after discovery is completed.
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019
WHEREFORE, it is respectfully requested that the Court issue an Order striking the
above-entitled action from the calendar, or preventing itfrom being placed upon the calendar and
vacating the plaintiff's Note of Issue and Certificate of Readiness for Trial, or in the alternative,
allowing this case to remain on the calendar, directing plaintiff to respond to outstanding
discovery, by a date certain, or else be precluded from offering any evidence as to damages at the
time of trial, and allowing an additional 120 days to make any dispositive motions once
discovery has been completed, and for such other and furtherreliefastothe Court may deem just
and proper.
Dated: Mineola, New York
July 22, 2019
MEGAN C. BRADY
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L 78 R5 520647/17E
STATE OF NEW YORK: COUNTY OF NASSAU :SS.:
Ravin McDonald being duly sworn, deposes and says, that she isnot a party to thisaction; that she isover the age of
18 years and a clerk in the officeof MARTYN AND MARTYN the attorneys for MICHEL R. FRANCOUER
defendant herein; that on the day of July , 2019, she served the annexed NOTICE OF MOTION AND
AFFIRMATION upon undersigned attorneys y mailing a true copy in a postpaid wrapper in a Post Office box
maintaiñêd by the United States, directed to em at the addresses shown, heretofore designated by them for that
purpose.
NAME AND ADDRESS ATTORNEY FOR
Gary P. Kauget, P.C.
Attorney for Plaintiff
9201 Fourth Avenue, Suite 707
Brooklyn, NY 11209
Law Offices of Karen L. Lawrence
Attorneys for Co-Defendant
4 Metrotech Center
Brooklyn, NY 11245
(718) 451-7163
Attorney Certification:
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York
State, certifies that, upon information and belief, and after reasonable inquiry, the coatsñtions contained in
the annexed document(s) are not frivolous.
MEGAN C. BRADY
Sworn to before me, this
day of July, 2019. Ravin McDonald
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019
Index No. 520647/17E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
SHADEL JACKSON,
Plaintiff,
-against-
MICHEL R. FRANCOUER, ANETTE O. MORGAN
and NASHON ONIEL SADDLAR,
Defendants
NOTiCE OF MOTION & AFFIRMATION
MARTYN AND MARTYN
4ttorneys for Defendants
Office and P.O. Address
330 Old Country Road, Suite 211
Mineola, New York 11501
516-739-0000 Fax 516-739-0329
____ _ __ __
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Preview
FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X SHADEL JACKSON, Plaintiff, Index No. 520647/17E -against- AFFIRMATION IN MICHEL R. FRANCOUER, ANETTE O. MORGAN SUPPORT and NASHON ONIEL SADDLAR, Defendants ------------------------------------------------------------------X MEGAN C. BRADY, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true, upon information and belief, under penalties of perjury: 1. I am associated with the law firm of MARTYN AND MARTYN, attorneys for the defendant, MICHEL R. FRANCOUER, ("FRANCOUER"). I am fully familiar with the facts and circumstances set forth herein based upon my review of a file maintained in this office. 2. This matter arises from an accident which took place on or about December 10, 2015 on 114 Street or near its intersection with North Conduit, Queens, City and State of New York. As a result of this accident plaintiff has alleged personal injuries. 3. The plaintiff commenced this action by the service and e-filing of a Summons and Verified Complaint on October 25, 2017. See Summons and Verified Complaint, annexed hereto, as Exhibit A. The defendant, FRANCOUER, served a Verified Answer and issue was joined on March 26, 2018. See Verified Answer, annexed hereto, as Exhibit B. We do not have a copy of co-defendants' the Answer. 4. Recently, our office received plaintiff's Note of Issue on July 10, 2019, which upon information and belief was filed with the Court on July 11, 2019. See Note of Issue, annexed hereto, as Exhibit C. Accordingly, this motion is timely as it is being made within 20 days of the filing of plaintiff's Note of Issue and Certificate of Readiness for Trial. 5 1 of 6 FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019 5. This action is not ready for trial, as the following pre-trial discovery proceedings have not as yet been completed - the Post EBT Demands directed to plaintiff. namely 6. On June 15, 2018, a Preliminary Conference was held and the following order was entered: a) Compliance Conference to be held on 12/4/18 b) Discovery End Date/Note of Issue due 5/11/19; c) Insurance coverage (including excess and umbrella coverage to be provided within 30 days; d) Defendant to serve Bill of particulars within 45 days; e) HIPAA compliant Authorizations for actual records of all healthcare providers, diagnostic tests, X-rays, MRI, EMG, CT scans for injuries claimed in BP within 30 days; f) Plaintiffs within 60 days of filing Note of Issue must serve defendants Fresh HIPAA compliant authorizations for all known health care providers; g) Depositions on 10/16/18; h) Defendants to schedule IME's within 45 days of the Plaintiffs Deposition; i). IME to be held within 30 days of the Plaintiffs Deposition; j) All parties' parties to exchange names and addresses of all witnesses, opposing statements, photographs, surveillance tapes and accident reports prepared in the ordinary course of business. If none, an affirmation to that effect shall be provided; k) authorizations for plaintiffs (for year before, year of and year after) employment attendance records, IRS if self-employed or W2; 1) Plaintiff to provide No-Fault or Collateral Source authorization. All to be completed within 45 Days; m) All parties shall supply expert witness disclosure pursuant to CPLR; n) impleader actions to be completed with 60 days after completion of EBTs. See Order, annexed hereto as Exhibit D. 7. The EBT of the plaintiff went forward on October 16, 2018. 8. On or about December 4, 2018, the parties appeared for a Compliance Conference and the following Order was issued: a) Plaintiff to provide all outstanding authorizations within 20 days; b) All outstanding responses to Discovery and Inspection requests within 20 days; c) Deposition of remaining defendant on 1/17/19 to the extent not done; d) Independent Medical Examination to be designated by 12/19/18 and held on or before 12/26/19; e) Medical Reports 6 2 of 6 FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019 exchanged within 45 days; f) Plaintiff shall file a Note of Issue on or before 8/12/19 or action may be dismissed.See Order, annexed hereto as Exhibit E. 9. On July 2, 2019, the parties appeared for a Final Conference. An Order was issued directing: Parties to serve Post EBT Demands Plaintiff to respond to co- a) by 8/2/19; b) defendant's Post EBT Demands dated 11/20/18 by 8/2/19; c) Plaintiff to provide HIPAA authorizations upon filing of the Note of Issue; and d) Parties to respond to all outstanding discovery by 8/2/19. See Order, annexed hereto as Exhibit F. 10. On July 22, 2019, the defendant served a Post EBT Combined Demand for Authorizations and Notice for Discovery and Inspection. See Demand, annexed hereto as Exhibit G. 11. To date, the plaintiff has not yet responded to the outstanding discovery. 12. It is respectfully submitted that FRANCOUER herein will be severely prejudiced should plaintiff's Note of Issue not be stricken from the Calendar, as the outstanding discovery is material, vital and necessary for a proper defense of the within matter. The plaintiff's Note of Issue and Certificate of Readiness should be vacated and the matter be stricken from the trial calendar, where a plaintiff's certificate of readiness contains incorrect representation that discovery proceedings necessary have been completed, yet, outstanding discovery remains present. See Garofalo v. Mercy Hospital, 706 N.Y.S.2d 477 (2d Dep't. 2000). 13. This outstanding discovery has not been waived by the defendant. 14. Alternatively, it is respectfully submitted that an Order should be issued compelling plaintiffs to respond to outstanding discovery, by a date certain, or else be precluded from offering any evidence as to damages at the time of trial. Further, in such a case, an Order should be entered extending FRANCOUER's time to move for summary judgment for an additional 120 days after discovery is completed. 7 3 of 6 FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019 WHEREFORE, it is respectfully requested that the Court issue an Order striking the above-entitled action from the calendar, or preventing itfrom being placed upon the calendar and vacating the plaintiff's Note of Issue and Certificate of Readiness for Trial, or in the alternative, allowing this case to remain on the calendar, directing plaintiff to respond to outstanding discovery, by a date certain, or else be precluded from offering any evidence as to damages at the time of trial, and allowing an additional 120 days to make any dispositive motions once discovery has been completed, and for such other and furtherreliefastothe Court may deem just and proper. Dated: Mineola, New York July 22, 2019 MEGAN C. BRADY 8 4 of 6 FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019 L 78 R5 520647/17E STATE OF NEW YORK: COUNTY OF NASSAU :SS.: Ravin McDonald being duly sworn, deposes and says, that she isnot a party to thisaction; that she isover the age of 18 years and a clerk in the officeof MARTYN AND MARTYN the attorneys for MICHEL R. FRANCOUER defendant herein; that on the day of July , 2019, she served the annexed NOTICE OF MOTION AND AFFIRMATION upon undersigned attorneys y mailing a true copy in a postpaid wrapper in a Post Office box maintaiñêd by the United States, directed to em at the addresses shown, heretofore designated by them for that purpose. NAME AND ADDRESS ATTORNEY FOR Gary P. Kauget, P.C. Attorney for Plaintiff 9201 Fourth Avenue, Suite 707 Brooklyn, NY 11209 Law Offices of Karen L. Lawrence Attorneys for Co-Defendant 4 Metrotech Center Brooklyn, NY 11245 (718) 451-7163 Attorney Certification: Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief, and after reasonable inquiry, the coatsñtions contained in the annexed document(s) are not frivolous. MEGAN C. BRADY Sworn to before me, this day of July, 2019. Ravin McDonald 9 5 of 6 FILED: KINGS COUNTY CLERK 07/30/2019 09:51 AM INDEX NO. 520647/2017 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/30/2019 Index No. 520647/17E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS SHADEL JACKSON, Plaintiff, -against- MICHEL R. FRANCOUER, ANETTE O. MORGAN and NASHON ONIEL SADDLAR, Defendants NOTiCE OF MOTION & AFFIRMATION MARTYN AND MARTYN 4ttorneys for Defendants Office and P.O. Address 330 Old Country Road, Suite 211 Mineola, New York 11501 516-739-0000 Fax 516-739-0329 ____ _ __ __ 10 6 of 6