Preview
FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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OGUNWALE ELEBUTE, Index #: 520675/2017
Plaintiff, SUPPLEMENTAL AFFIRMATION
IN SUPPORT
- against -
Assigned to:
NORTHWELL HEALTH, INC., NORTHSHORE Hon. Justice CARL LANDICINO
UNIVERSITY HOSPITAL and JOHNNY RAY MARQUEZ, IAS PART 81
Returnable: CCP Dec 18, 2019
Defendants. ORAL ARGUMENT REQUESTED
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IRA B. GORDON, ESQ., an attorney duly admitted to practice before the courts of the State
of New York, affirms the following under the penalties of perjury pursuant to the applicable
provisions of the CPLR:
1. I am an associate in the law firm of WESER & WESER, P.C., attorneys for the plaintiff
herein, and as such, I am fully familiar with allof the facts and circumstances herein.
2. I submit this supplemental affirmation in support of the instant motion for an
Order:
A. pursuant to CPLR §2304 quashing, fixing conditions and/or modifying the Judicial
Subpoena Duces Tecum and Ad Testificandum issued by defendants seeking a
deposition of and discovery from non-party JORGE ROLON of IME WATCHDOG;
B. pursuant to 22 N.Y.C.R.R. 202.21 (e), quashing the Subpoena and Notice to Take
Deposition of non-party JORGE ROLON of IME WATCHDOG;
C. pursuant to CPLR §3103 for a protective order denying, limiting, conditioning or
regulating the Judicial Subpoena Duces Tecum and Ad Testificandum and Notice
To Take Deposition issued by defendants seeking a deposition of and discovery
from non-party JORGE ROLON of IME WATCHDOG;
D. pursuant to CPLR §3103 suspending disclosure requested in the said Judicial
Subpoena and Notice to Take Deposition pending this application;
WESER & WESER 1
1392 Coney Island Aven Je
Brooklyn, NY 11230
(718) 338-3000
1 of 4
FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019
E. For such other and further relief as to the court may seem just and proper.
3. The only reason this supplemental affirmation is submitted is to provide the court
with the Affidavit of Jorge Rolan of IME Watchdog (EXHIBIT A). The affidavit was unable to be
obtained prior to the filing of the instant motion which is returnable on December 18, 2019.
Defendants are not prejudiced in any way by the submission of this affidavit via supplemental
affirmation as defendants have not yet filed opposition to the motion and can include same in their
opposition to the motion. No new legal or factual arguments are raised in this supplemental
affirmation.
4. The sworn affidavit of JORGE ROLAN of IME WATCHDOG indicates:
• I am aware that the subpoena seeks my deposition and "a copy of all related
defendants'
records, including but not limited to personal notes taken at
independent medical examinations; any photographs, video recordings, typed
reports, retainers, agreements, and invoices maintained by respondents in
matter."
connection with being retained by plaintiff in connection with this
• IME Watchdog provides representatives hired by the plaintiff's law firm to
accompany plaintiffs to defense physical examinations. The purpose of a watchdog
isto be plaintiff's legal representative at the examination, to serve as the eyes and
ears of plaintiff's counsel, to aid in the prosecution of the litigation of this matter,
to observe what occurs during the examination and to report that information
directly back to plaintiff's counsel. Watchdogs are agents of plaintiff's counsel and
prepare materials solely to be used in the litigation of plaintiff's case, to aid
plaintiff's counsel in the prosecution of the case. All materials prepared by
watchdogs are prepared solely for litigation to be used on cross-examination of the
defense medical examiner.
• As a watchdog, I have accompanied numerous plaintiffs to numerous defense
medical exams. As such, I am familiar with the usual and common procedures to
be followed during a defense physical examination.
• I was retained by plaintiff'sattorney as a watchdog as indicated above. I was hired
to accompany the plaintiff to the defense medical exam on September 19, 2019
with Dr. Arnold Berman at 30 Park Avenue, New York, New York. During the
examination, I was working as plaintiff's legal representative, as an agent of
WESER & WESER 2
1392 Coney Island Aven Je
Brooklyn, NY 11230
(718) 338-3000
2 of 4
FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019
plaintiff's counsel, at the examination. I did not interfere with the examination, I
was an observer and plaintiff's legal representative.
• All materials I generated were for plaintiff's counsel in preparation for
solely
litigation and to aid of the prosecution of the case. AII materials were prepared in
anticipation of litigation, with the expectation of litigation and with fullexpectation
of immunity from discovery.
RELIEF REQUESTED
5. Under the circumstances, plaintiff's motion should be granted in its entirety and
for an Order:
A. pursuant to CPLR §2304 quashing, fixing conditions and/or modifying the Judicial
Subpoena Duces Tecum and Ad Testificandum issued by defendants seeking a
deposition of and discovery from non-party JORGE ROLON of IME WATCHDOG;
B. pursuant to 22 N.Y.C.R.R. 202.21 (e),quashing the Subpoena and Notice to Take
Deposition of non-party JORGE ROLON of IME WATCHDOG;
C. pursuant to CPLR §3103 for a protective order denying, limiting, conditioning or
regulating the Judicial Subpoena Duces Tecum and Ad Testificandum and Notice
To Take Deposition issued by defendants seeking a deposition of and discovery
from non-party JORGE ROLON of IME WATCHDOG;
D. pursuant to CPLR §3103 suspending disclosure requested in the said Judicial
Subpoena and Notice to Take Deposition pending this application;
E. For such other and further relief as to the court may seem just and proper.
WHEREFORE, itis respectfully requested that the instant motion be granted in itsentirety,
and for such other and further relief as to the Court seems just, proper and equitable.
Dated: Brooklyn, New York
November 27, 2019
IRA B. GORDON, ESQ.
WESER & WESER
3
1392 Coney Island Aven e
Brooklyn, NY 11230
(718) 338-3000
3 of 4
FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019
WESER & WESER, P.C.
Attorneys for Plaintiff(s)
OGUNWALE ELEBUTE
1392 Coney Island Avenue
Brooklyn, New York 11230
(718) 338-3000
TO: WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorney(s) for Defendant(s)
NORTHWELL HEALTH, INC.,
NORTHSHORE UNIVERSITY HOSPITAL
and JOHNNY RAY MARQUEZ
150 East 42nd Street
New York, NY 10017-5639
Phone: 212-490-3000
Fax: 212-490-3038
Email: aviva.stein@wilsonelser.com
Email: rachel.budofsky@wilsonelser.com
File No.: 520675/2017
JORGE ROLON
c/o IME WATCHDOG
159-16 Union Turnpike, Suite 200
Fresh Meadows, New York 11366
WESER & WESER 4
1392 Coney Island Aven Je
Brooklyn, NY 11230
(718) 338-3000
4 of 4
Preview
FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X OGUNWALE ELEBUTE, Index #: 520675/2017 Plaintiff, SUPPLEMENTAL AFFIRMATION IN SUPPORT - against - Assigned to: NORTHWELL HEALTH, INC., NORTHSHORE Hon. Justice CARL LANDICINO UNIVERSITY HOSPITAL and JOHNNY RAY MARQUEZ, IAS PART 81 Returnable: CCP Dec 18, 2019 Defendants. ORAL ARGUMENT REQUESTED -------------------------------------------------------------------X IRA B. GORDON, ESQ., an attorney duly admitted to practice before the courts of the State of New York, affirms the following under the penalties of perjury pursuant to the applicable provisions of the CPLR: 1. I am an associate in the law firm of WESER & WESER, P.C., attorneys for the plaintiff herein, and as such, I am fully familiar with allof the facts and circumstances herein. 2. I submit this supplemental affirmation in support of the instant motion for an Order: A. pursuant to CPLR §2304 quashing, fixing conditions and/or modifying the Judicial Subpoena Duces Tecum and Ad Testificandum issued by defendants seeking a deposition of and discovery from non-party JORGE ROLON of IME WATCHDOG; B. pursuant to 22 N.Y.C.R.R. 202.21 (e), quashing the Subpoena and Notice to Take Deposition of non-party JORGE ROLON of IME WATCHDOG; C. pursuant to CPLR §3103 for a protective order denying, limiting, conditioning or regulating the Judicial Subpoena Duces Tecum and Ad Testificandum and Notice To Take Deposition issued by defendants seeking a deposition of and discovery from non-party JORGE ROLON of IME WATCHDOG; D. pursuant to CPLR §3103 suspending disclosure requested in the said Judicial Subpoena and Notice to Take Deposition pending this application; WESER & WESER 1 1392 Coney Island Aven Je Brooklyn, NY 11230 (718) 338-3000 1 of 4 FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019 E. For such other and further relief as to the court may seem just and proper. 3. The only reason this supplemental affirmation is submitted is to provide the court with the Affidavit of Jorge Rolan of IME Watchdog (EXHIBIT A). The affidavit was unable to be obtained prior to the filing of the instant motion which is returnable on December 18, 2019. Defendants are not prejudiced in any way by the submission of this affidavit via supplemental affirmation as defendants have not yet filed opposition to the motion and can include same in their opposition to the motion. No new legal or factual arguments are raised in this supplemental affirmation. 4. The sworn affidavit of JORGE ROLAN of IME WATCHDOG indicates: • I am aware that the subpoena seeks my deposition and "a copy of all related defendants' records, including but not limited to personal notes taken at independent medical examinations; any photographs, video recordings, typed reports, retainers, agreements, and invoices maintained by respondents in matter." connection with being retained by plaintiff in connection with this • IME Watchdog provides representatives hired by the plaintiff's law firm to accompany plaintiffs to defense physical examinations. The purpose of a watchdog isto be plaintiff's legal representative at the examination, to serve as the eyes and ears of plaintiff's counsel, to aid in the prosecution of the litigation of this matter, to observe what occurs during the examination and to report that information directly back to plaintiff's counsel. Watchdogs are agents of plaintiff's counsel and prepare materials solely to be used in the litigation of plaintiff's case, to aid plaintiff's counsel in the prosecution of the case. All materials prepared by watchdogs are prepared solely for litigation to be used on cross-examination of the defense medical examiner. • As a watchdog, I have accompanied numerous plaintiffs to numerous defense medical exams. As such, I am familiar with the usual and common procedures to be followed during a defense physical examination. • I was retained by plaintiff'sattorney as a watchdog as indicated above. I was hired to accompany the plaintiff to the defense medical exam on September 19, 2019 with Dr. Arnold Berman at 30 Park Avenue, New York, New York. During the examination, I was working as plaintiff's legal representative, as an agent of WESER & WESER 2 1392 Coney Island Aven Je Brooklyn, NY 11230 (718) 338-3000 2 of 4 FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019 plaintiff's counsel, at the examination. I did not interfere with the examination, I was an observer and plaintiff's legal representative. • All materials I generated were for plaintiff's counsel in preparation for solely litigation and to aid of the prosecution of the case. AII materials were prepared in anticipation of litigation, with the expectation of litigation and with fullexpectation of immunity from discovery. RELIEF REQUESTED 5. Under the circumstances, plaintiff's motion should be granted in its entirety and for an Order: A. pursuant to CPLR §2304 quashing, fixing conditions and/or modifying the Judicial Subpoena Duces Tecum and Ad Testificandum issued by defendants seeking a deposition of and discovery from non-party JORGE ROLON of IME WATCHDOG; B. pursuant to 22 N.Y.C.R.R. 202.21 (e),quashing the Subpoena and Notice to Take Deposition of non-party JORGE ROLON of IME WATCHDOG; C. pursuant to CPLR §3103 for a protective order denying, limiting, conditioning or regulating the Judicial Subpoena Duces Tecum and Ad Testificandum and Notice To Take Deposition issued by defendants seeking a deposition of and discovery from non-party JORGE ROLON of IME WATCHDOG; D. pursuant to CPLR §3103 suspending disclosure requested in the said Judicial Subpoena and Notice to Take Deposition pending this application; E. For such other and further relief as to the court may seem just and proper. WHEREFORE, itis respectfully requested that the instant motion be granted in itsentirety, and for such other and further relief as to the Court seems just, proper and equitable. Dated: Brooklyn, New York November 27, 2019 IRA B. GORDON, ESQ. WESER & WESER 3 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 3 of 4 FILED: KINGS COUNTY CLERK 11/27/2019 12:49 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/27/2019 WESER & WESER, P.C. Attorneys for Plaintiff(s) OGUNWALE ELEBUTE 1392 Coney Island Avenue Brooklyn, New York 11230 (718) 338-3000 TO: WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Attorney(s) for Defendant(s) NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPITAL and JOHNNY RAY MARQUEZ 150 East 42nd Street New York, NY 10017-5639 Phone: 212-490-3000 Fax: 212-490-3038 Email: aviva.stein@wilsonelser.com Email: rachel.budofsky@wilsonelser.com File No.: 520675/2017 JORGE ROLON c/o IME WATCHDOG 159-16 Union Turnpike, Suite 200 Fresh Meadows, New York 11366 WESER & WESER 4 1392 Coney Island Aven Je Brooklyn, NY 11230 (718) 338-3000 4 of 4