Preview
FILED: KINGS COUNTY CLERK 01/14/2022 11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/14/2022
Exhibit A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ARIADNI CORDERO, Index No.: 514351/19
Plaintiff,
-against- NOTICE OF MOTION
HP MARCUS GARVEY PRESERVATION Return Date: 10/28/2021
HOUSING COMPANY, INC. and C&C APARTMENT
MANAGEMENT, LLC,
Defendants.
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MOTION BY: GOLDBERG SEGALLA LLP
Attorneys for Defendants
DATE and PLACE OF HEARING: October 28, 2021 at 9:30 a.m. at Motion Support
Office, Room 227, at the Supreme Court, Kings
County, located at 360 Adams Street, Brooklyn,
New York 11201.
SUPPORTING PAPERS: Affirmation of Theodore W. Ucinski, Esq., Good
Faith Affirmation and annexed exhibits.
RELIEF REQUESTED: An Order pursuant to CPLR §3124 and §3126, a)
dismissing plaintiff’s Verified Complaint for failure
to provide court ordered discovery or, in the
alternative; b) precluding plaintiff from supporting
claims concerning, and from producing in evidence
any things or testimony related to plaintiff’s
allegations; c) compelling plaintiff, pursuant to
CPLR §3124, to provide all gynecological treatment
both pre and post-accident; and d) awarding such
further and different relief as deemed just and proper.
SEVEN DAY NOTICE: Answering affidavits, if any, must be served at least
seven (7) days prior to the return date of this motion
pursuant to CPLR §2214(b).
Dated: Garden City, New York
October 1, 2021
Yours, etc.,
GOLDBERG SEGALLA LLP
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By: ______________________________
Theodore W. Ucinski
Attorneys for Defendants
200 Garden City Plaza - Suite 520
Garden City, New York 11530
Mailing Address:
P.O. Box 780, Buffalo, NY 14201
(516) 281-9860
GS File No.: 6403.0008
TO: ELEFTERAKIS, ELEFTERAKIS & PANEK
Attorney for Plaintiff
80 Pine Street, 38th Floor
New York, New York 10005
(212) 532-1116
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SUPREME COURT OF THE STATE OF NEW YORK
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ARIADNI CORDERO, Index No.: 514351/19
Plaintiff,
-against- AFFIRMATION
IN SUPPORT
HP MARCUS GARVEY PRESERVATION
HOUSING COMPANY, INC. and C&C APARTMENT
MANAGEMENT, LLC,
Defendants.
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Theodore W. Ucinski, an attorney duly licensed to practice law before the courts’ of the
state of New York, hereby affirms the following to be true under the penalty of perjury:
1. I am a member of the law offices of Goldberg Segalla, LLP, counsel for defendants
HP Marcus Garvey Preservation Housing Company, Inc. and C & C Apartment Management,
LLC. As such, I am fully familiar with the facts and circumstances of this matter.
2. I make this affirmation in support of the within motion which seeks to dismiss
plaintiff’s complaint for failure to provide court ordered discovery.
Summary of Arguments
3. This matter stems from a slip and fall which allegedly occurred on February 7, 2019
at the premises located at 395 Bristol Street, Brooklyn, NY. More specifically, plaintiff claims to
have fallen as a result of a liquid substance on the landing outside of Apartment C. Due to the
alleged fall, plaintiff claims a number of injuries, one of which is the loss of a fetus and traumatic
abortion.
4. According to plaintiff’s Kings County Emergency Department records, she has a
history of two prior ectopic pregnancies, which resulted in either surgical or spontaneous
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abortions.1 In addition, she has had one full term pregnancy. The significance of this is that an
ectopic pregnancy makes a woman prone to future miscarriages such as plaintiff is claiming herein.
Based upon plaintiff’s history as set out in the Emergency Department records the defendants have
requested HIPAA compliant authorizations for plaintiff’s prior gynecological treatment. Plaintiff
was ordered in the preliminary conference order to provide authorizations for her prior and post-
accident treatment of these conditions. Plaintiff provided an authorization for Bella Donna Medial
and Dr. Shawn Yunayev, who was her treating physician at this group. Their records begin on
January 21, 2019, less than two months before this accident. These records do not include any
information regarding her two prior pregnancies. Further, the January 21. 2019 record indicates
plaintiff was referred to a Dr. Brofman with regard to the subject. The authorization for Dr.
Brofman was never provided.
5. Since the preliminary conference we have attempted to secure authorizations for
these providers. We filed a motion seeking these items and it has now been the subject of two court
orders and various good faith letters. Accordingly, plaintiff’s actions are willful and contumacious
and the complaint should be dismissed.
6. On October 14, 2020, Justice Knipel issued an Order finding that plaintiff would
be precluded “from testifying or offering evidence at trial” if plaintiff did not provide the
previously court ordered authorizations “Including prior OB/GYN treatment”. It is defendants’
position that plaintiff is now precluded and the complaint should be dismissed.
Schedule of Exhibits
1
An Ectopic Pregnancy results when a fertilized egg implants itself within the Fallopian Tube rather than within a
woman’s uterus. The result is that the fertilized egg either miscarries or must be surgically aborted to prevent the
mother from being placed in danger. Either way the pregnancy cannot go to term.
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Exhibit A-Plaintiff’s Bill of Particulars;
Exhibit B- Plaintiff’s supplemental Bill of Particulars;
Exhibit C-Defendant’s letter of March 6, 2020 advising plaintiff failed to provide any
authorizations regarding his client gynecological treatment;
Exhibit D- Defendant’s email of September 9, 2020 advising that plaintiff has failed to
provide any authorizations for plaintiff’s pre and post accident gynecological treatment;
Exhibit E- Kings County Emergency Department Records;
Exhibit F- Preliminary conference order of January 17, 2020;
Exhibit G-Our cross motion seeking to compel authorizations;
Exhibit H- Court Order of October 14, 2020;
Exhibit I- Records of Bella Donna Medical/Dr. Shawn Yunayev;
Exhibit J- January 11, 2021 Notice for Discovery and Inspection for an authorization for
Dr. Brofman;
Exhibit K- Final Pre-Note Order of July 7, 2021, once again ordering plaintiff to provide
an authorization for Dr. Brofman and all prior OB/GYN treatment;
Plaintiff’s Complaint should be Dismissed for Failure to Provide Relevant Discovery as
to her medical treatment regarding injuries alleged to have been Sustained in this Accident
7. Plaintiff’s Bill of Particulars clearly and unequivocally sets forth claims regarding
the loss of her fetus as a result of this accident. Exhibit A. To wit, she claims:
- Complete Spontaneous Miscarriage;
- Traumatic abortion;
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- Vaginal bleeding with passage of medium sized 2-3 cm clots with dark
blood;
- Loss of fetus
- Emotional distress from loss of fetus.
Exhibit A.
8. After this alleged accident, plaintiff sought treatment at Kings County Hospital.
Exhibit E. The Emergency Department Provider Initial Note prepared by Dr. Calvin Sun indicates,
“PT states that her last menstrual period was around mid December, and that she had a visit to the
obstetrician around 2-3 weeks ago, had an ultrasound which showed a normal pregnancy.” Exhibit
E. The gynecological In-patient Consultation note indicates, in 2011 she had a vaginal delivery
and history of two ectopic pregnancies. Exhibit E. She is further noted as having, “3 pregnancies/1
birth”. Exhibit E.
9. Plaintiff has placed her physical condition in issue by claiming she lost a fetus due
to the alleged fall. In light of this, the defendants are entitled to plaintiff’s full and complete
Gynecological records both prior to and after the subject incident for all providers, diagnostic
testing and treatment she received. In bringing an action for personal injury, a plaintiff waives the
physician-patient privilege with respect to any physical or mental condition affirmatively placed
in controversy, Dillenbeck v. Hess, 73 N.Y.2d 278 (1989). Where a plaintiff merely alleges that
the underlying accident caused difficulties in walking and standing that affect her ambulatory
capacity, the plaintiff placed her prior knee surgery into controversy and waived the physician-
patient privilege despite not claiming damages to her knee in her bill of particulars, Brito v. Gomez,
33 N.Y.3d 1126 (2019). The waiver extends not only to records of post-accident treatment, but
also to records of pre-accident treatment of the same anatomical parts to which plaintiff claims
injury. Geraci v. National Fuel Gas Distribution et al., 255 A.D.2d 945 (4th Dep’t 1998). The
preliminary conference order of January 17, 2020, directs plaintiff is to provide a complete set of
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all authorizations by March 6, 2020. It specifically provides plaintiff is to serve,
“gynecological/pregnancy records to the extent not yet done by 3/6/2020”. Further it provides,
“plaintiff to serve authorizations for any prior injuries or treatment, testing, etc to same body parts
injured in instant accident by 3/6/20”.
10. In light of the Court’s Order, on March 6, 2020, defendants requested, by letter,
that plaintiff provide authorizations for plaintiff’s medical treatment both prior to and post-
accident as it relates to the claimed loss of fetus. Exhibit C. On September 9, 2020, the defendants’
once again reminded counsel that they had not provided any authorizations for this very specific
injury. Exhibit D.
11. The defendants were then forced to file a motion seeking these prior medical
records. Exhibit G. The Court then issued an Order as follows:
Plaintiff shall, if not already done and no later than November 20,
2020, provide AZs that were previously court-order (including for
prior OB/GYN treatment). Any party that fails to timely comply
with the terms of this order is precluded from testifying or offering
evidence at trial.
12. In response to this order, the plaintiff provided an authorization for Bella Donna
Medical PC and a second authorization for the treating physician from that facility, Dr. Shawn
Yunayev. Exhibit I. Those records begin January 21, 2019, less than one month before this
accident. They contain No information regarding plaintiff’s prior OB/GYN treatment. Further the
record from that date indicates plaintiff had not decided whether she intended to keep the
pregnancy at issue and she was referred to a Dr. Brofman. Accordingly, plaintiff failed to comply
with the Order of October 14, 2020 and at this point should be deemed precluded and this
complaint dismissed.
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13. In an abundance of caution, the defendant’s issued a notice for discovery and
inspection for the records of Dr. Brofman. Exhibit J. It was then once again ordered that plaintiff
provide these records in the order of July 7, 2021.
14. Given all of the above, plaintiff’s complaint should be dismissed. Their conduct has
now wantonly violated three court orders one that included the sanction of preclusion and yet they
still have failed to provide these records.
15. CPLR §3101 requires “full disclosure of all matter material and necessary in the
prosecution or defense of an action”. The New York Court of Appeals has interpreted “reasonable
and necessary” to require disclosure of any facts bearing on the controversy which will assist in
preparation for trial. Andon v. 302-304 Mott St. Associates, 94 N.Y.2d 740, 709 N.Y.S.2d 873
(2000); Spencer v. City of New York, 293 A.D.2d 466, 739 N.Y.S.2d 632 (2d Dep’t. 2002). CPLR
§3126 provides the court with discretion to preclude a party from offering evidence at trial when
that party willfully fails to disclose information pursuant to a notice. Kingsley v. Kantor, 265
N.Y.2d 529, 697 N.Y.S.2d 141 (2d Dep’t. 1999). Such willful and contumacious behavior may
be inferred from non-compliance with the court order and lack of an excuse for such non-
compliance. Garcia v. Kraniotakis, 232 A.D.2d 369, 648 N.Y.S.2d 156 (2d Dep’t. 1996).
16. In the present matter, plaintiff has demonstrated that her actions are willful and
contumacious in that defendant has requested plaintiff provide basic and necessary discovery.
Moreover, despite the fact that our office has attempted to contact plaintiff on multiple occasions
they still not provided outstanding prevents defendants from conducting a meaningful defense and
preclude the defendant from proceeding with this matter. The court has now issued three orders
directing the discovery and the sanction of dismissal is warranted.
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17. Alternatively, if the Court does not dismiss the case, pursuant to CPLR §3124, the
Court may order plaintiff to comply with its order as well as our demands. The statute provides in
pertinent part:
“if a person fails to respond to or comply with any requests, notice,
interrogatories, demand, question or order, under this article, the
party seeking disclosure may move to compel compliance or a
response”.
18. The instant matter exemplifies the need for this statute. The defendant has
attempted to secure simple common place discovery and yet, plaintiff has refused to provide it.
19. Finally, it is respectfully submitted that plaintiff has waived any objections to the
discovery demanded by defendant since they have failed to state objections within twenty (20)
days of the demands as required by CPLR §3122. See Otto v. Triangle Aviation Services, Inc.,
258 A.D.2d 448, 684 N.Y.S.2d 612 (2d Dep’t. 1999) (holding that failure of a party to challenge
the propriety of a notice for discovery and inspection within the time prescribed by the rule bars
inquiry into the appropriateness of the information sought, except with regard to material that is
privileged or requests that palpably improper); Weisgold v. Kiamesha Concord, Inc., 51 Misc.2d
456, 273 N.Y.S.2d 279 (N.Y. Sup. 1966); Brewer v. Jamaica Hospital, 73 A.D.2d 851, 423
N.Y.S.2d 188 (1st Dep’t. 1980) (if a party fails to move within the time prescribed by rule for a
protective order against improper demands by his adversary for discovery and production of
documents and things, that party waives his right to object).
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WHEREFORE, based upon the foregoing, it is respectfully requested the court grant
defendants motion, dismiss plaintiff’s complaint, and/or for such other further and different relief
that the court deems just and proper.
Dated: Garden City, New York
October 1, 2021
__________________________________
Theodore W. Ucinski
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NYSCEF
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60 RECEIVED
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
ARIADNI CORDERO, Index No.: 514351/19
Plaintiff, CERTIFICATION OF
WORD COUNT
-against-
HP MARCUS GARVEY PRESERVATION
HOUSING COMPANY, INC. and C&C APARTMENT
MANAGEMENT, LLC,
Defendants.
X
Pursuant to Rule 33.1(h) of the Rules of this Court, I certify that the accompanying
Affirmation in Support, which was prepared using Times New Roman 12-point typeface, contains
1,857 words (excluding the caption and the sigñatüre lines). This certificate was prepared in
reliance on the word-count function of the word processing system (Microsoft Word) used to
prepare the document.
I declare under the penalty of perjury that the foregoing is true and correct.
Dated: Garden City, New York
October 1, 2021
Theadcre W. Ucinski
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ARIADNI CORDERO, Index No.: 514351/19
Plaintiff,
-against- GOOD FAITH
AFFIRMATION
HP MARCUS GARVEY PRESERVATION
HOUSING COMPANY, INC. and C&C APARTMENT
MANAGEMENT, LLC,
Defendants.
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Theodore W. Ucinski, an attorney duly licensed to practice law before the court’s of the
state of New York, hereby affirms the following to be true under the penalty of perjury:
1. I am a member of the law offices of Goldberg Segalla, LLP, counsel for defendants,
HP Marcus Garvey Preservation Housing Company, Inc. and C & C Apartment Management,
LLC. As such, I am fully familiar with the facts and circumstances of this matter.
2. I make this affirmation in support of the within motion which seeks to dismiss
plaintiff’s complaint.
3. I forwarded plaintiff multiple good faith letters asking for all gynecological treatment
both pre and post-accident and plaintiff failed to respond to same.
4. Based upon the foregoing, it is respectfully requested that the Court issue an Order
dismissing plaintiff’s complaint and for such other, further and different relief as the court deems
just, proper and equitable.
Dated: Garden City, New York
October 1, 2021
______________________________
THEODORE W. UCINSKI
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514351/2019
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 100
61 RECEIVED
RECEIVED NYSCEF:
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10/01/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
ARIADNI CORDERO, Index No.: 514351/19
Plaintiff, CERTIFICATION OF
WORD COUNT
-against-
HP MARCUS GARVEY PRESERVATION
HOUSING COMPANY, INC. and C&C APARTMENT
MANAGEMENT, LLC,
Defendants.
X
Pursuant to Rule 33.1(h) of the Rules of this Court, I certify that the accompanying Good
Faith Affirmation, which was prepared using Times New Roman 12-point typeface, contains 150
words (excluding the caption and the signature lines). This certificate was prepared in reliance on
the word-count function of the word processing system (Microsoft Word) used to prepare the
document.
I declare under the penalty of perjury that the foregoing is true and correct.
Dated: Garden City, New York
October 1, 2021
Theodore W. Ucinski
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Exhibit A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
ARIADNI CORDERO,
Index No.: 514351/2019
Plaintiff,
-against-
VERIFIED BILL OF
PARTICULARS
HP MARCUS GARVEY PRESERVATION HOUSING
COMPANY, INC. and C&C APARTMENT
MANAGEMENT, LLC,
Defendants.
x
Plaintiff, ARIADNI CORDERO, by her attorneys, ELEFTERAKIS, ELEFTERAKIS &
PANEK, as and for a response to Defendants, HP MARCUS GARVEY PRESERVATION
HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC's, Demand
for a Verified Bill of Particulars, sets forth:
1. Plaintiff objects to the demand for date of birth, pursuant to 22 NYCRR 202.5 (e), effective
from January 1, 2015, due to the danger of identity theft.
Plaintiff objects to the demand for a Social Security number, as an interrogatory, as not
designed to amplify the pleadings, and also to the disclosure of such information in a filing
likely to be publicly filed, due to the danger of identity theft. (See, for instance, In re: The
August 2, 2004 Amendment to the E-government Act of 2002, Administrative Order 2004-
09, Chief Judge Edward R. Korman, dated October 2004, United States District Court,
Eastern District of New York), which prohibits the disclosure of full Social Security numbers
in documents likely to be filed either electronically or in paper form.
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Plaintiff presently resides at 2505 Bedford Avenue 2E, Brooklyn, New York 11226 and same
at the time of the accident.
Past five (5) years current and past residence address of Plaintiff: Objection to this demand
as evidentiary in nature. See Frequency Electronics, Inc. v. We're Associates Co.., 90 A.D.2d
822, 456 N.Y.S.2d 20 (2d Dep't 1982) (holding that, "[i]t is not the function of a bill of
particulars to provide evidentiary material").
2. The subject incident occurred on February 7, 2019 at approximately 12:05 P.M.
Weather conditions: Objection to this demand as evidentiary in nature. See Frequency
Electronics, Inc. v. We're Associates Co.., 90 A.D.2d 822, 456 N.Y.S.2d 20 (2d Dep't 1982)
(holding that, "[i]t is not the function of a bill of particulars to provide evidentiary material").
3. The subject incident occurred on the premises located at 395 Bristol Street in the County of
Kings, State of New York. Objection to the remainder of defendants' demand as being
evidentiary in nature. See Frequency Electronics, Inc. v. We're Associates Co., 90 A.D.2d
822, 456 N.Y.S.2d 20 (2d Dep't 1982) where the court held that "[i]t is not function of bill
of particulars to provide evidentiary material.
4. (a) Motor vehicle: Not applicable.
5. (a) - (b) Intentional act or tort: Not applicable.
6. Defendants were careless, reckless and/or negligent as follows:
in the ownership, operation, management, maintenance, supervision, inspection, design
and control of the aforesaid stairs located at the premises known as 395 Bristol Street in
the County of Kings, State of New York.
— in creating the subject dangerous, defective and hazardous condition;
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— in failing to properly inspect, remedy and/or remove slippery substance from the subject
staircase;
- in causing, permitting and allowing foreign substances to be and remain on, at and about
the aforesaid location for an unreasonable period of time;
- in failing to maintain the aforesaid location in a reasonably safe, non-slippery, trip free,
hazard-free and proper condition;
- in causing, allowing and permitting an obstruction to plaintiff's safe ingress/egress at
and through said location;
- in failing to undertake proper cleaning of the subject location and/or stairs;
- in failing to provide plaintiff with safe and proper ingress/egress at the subject location;
- in failing to cordon off, barricade or close the slippery and/or defective area;
- in failing to take adequate precautions and measures to prevent said occurrence, of
which defendants had actual and/or constructive notice;
- in permitting and allowing the subject stairs to be, become and remain a danger, threat,
peril and/or trap to the life and limb of all persons using the aforesaid stairs and, more
particularly, p
Preview
FILED: KINGS COUNTY CLERK 01/14/2022 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 01/14/2022 Exhibit A FILED: KINGS COUNTY CLERK 01/14/2022 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 59 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X ARIADNI CORDERO, Index No.: 514351/19 Plaintiff, -against- NOTICE OF MOTION HP MARCUS GARVEY PRESERVATION Return Date: 10/28/2021 HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC, Defendants. --------------------------------------------------------------------X MOTION BY: GOLDBERG SEGALLA LLP Attorneys for Defendants DATE and PLACE OF HEARING: October 28, 2021 at 9:30 a.m. at Motion Support Office, Room 227, at the Supreme Court, Kings County, located at 360 Adams Street, Brooklyn, New York 11201. SUPPORTING PAPERS: Affirmation of Theodore W. Ucinski, Esq., Good Faith Affirmation and annexed exhibits. RELIEF REQUESTED: An Order pursuant to CPLR §3124 and §3126, a) dismissing plaintiff’s Verified Complaint for failure to provide court ordered discovery or, in the alternative; b) precluding plaintiff from supporting claims concerning, and from producing in evidence any things or testimony related to plaintiff’s allegations; c) compelling plaintiff, pursuant to CPLR §3124, to provide all gynecological treatment both pre and post-accident; and d) awarding such further and different relief as deemed just and proper. SEVEN DAY NOTICE: Answering affidavits, if any, must be served at least seven (7) days prior to the return date of this motion pursuant to CPLR §2214(b). Dated: Garden City, New York October 1, 2021 Yours, etc., GOLDBERG SEGALLA LLP 31235319.v1 1 of 2 FILED: KINGS COUNTY CLERK 01/14/2022 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 59 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 By: ______________________________ Theodore W. Ucinski Attorneys for Defendants 200 Garden City Plaza - Suite 520 Garden City, New York 11530 Mailing Address: P.O. Box 780, Buffalo, NY 14201 (516) 281-9860 GS File No.: 6403.0008 TO: ELEFTERAKIS, ELEFTERAKIS & PANEK Attorney for Plaintiff 80 Pine Street, 38th Floor New York, New York 10005 (212) 532-1116 31235319.v1 2 of 2 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X ARIADNI CORDERO, Index No.: 514351/19 Plaintiff, -against- AFFIRMATION IN SUPPORT HP MARCUS GARVEY PRESERVATION HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC, Defendants. --------------------------------------------------------------------X Theodore W. Ucinski, an attorney duly licensed to practice law before the courts’ of the state of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am a member of the law offices of Goldberg Segalla, LLP, counsel for defendants HP Marcus Garvey Preservation Housing Company, Inc. and C & C Apartment Management, LLC. As such, I am fully familiar with the facts and circumstances of this matter. 2. I make this affirmation in support of the within motion which seeks to dismiss plaintiff’s complaint for failure to provide court ordered discovery. Summary of Arguments 3. This matter stems from a slip and fall which allegedly occurred on February 7, 2019 at the premises located at 395 Bristol Street, Brooklyn, NY. More specifically, plaintiff claims to have fallen as a result of a liquid substance on the landing outside of Apartment C. Due to the alleged fall, plaintiff claims a number of injuries, one of which is the loss of a fetus and traumatic abortion. 4. According to plaintiff’s Kings County Emergency Department records, she has a history of two prior ectopic pregnancies, which resulted in either surgical or spontaneous 31235319.v1 1 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 abortions.1 In addition, she has had one full term pregnancy. The significance of this is that an ectopic pregnancy makes a woman prone to future miscarriages such as plaintiff is claiming herein. Based upon plaintiff’s history as set out in the Emergency Department records the defendants have requested HIPAA compliant authorizations for plaintiff’s prior gynecological treatment. Plaintiff was ordered in the preliminary conference order to provide authorizations for her prior and post- accident treatment of these conditions. Plaintiff provided an authorization for Bella Donna Medial and Dr. Shawn Yunayev, who was her treating physician at this group. Their records begin on January 21, 2019, less than two months before this accident. These records do not include any information regarding her two prior pregnancies. Further, the January 21. 2019 record indicates plaintiff was referred to a Dr. Brofman with regard to the subject. The authorization for Dr. Brofman was never provided. 5. Since the preliminary conference we have attempted to secure authorizations for these providers. We filed a motion seeking these items and it has now been the subject of two court orders and various good faith letters. Accordingly, plaintiff’s actions are willful and contumacious and the complaint should be dismissed. 6. On October 14, 2020, Justice Knipel issued an Order finding that plaintiff would be precluded “from testifying or offering evidence at trial” if plaintiff did not provide the previously court ordered authorizations “Including prior OB/GYN treatment”. It is defendants’ position that plaintiff is now precluded and the complaint should be dismissed. Schedule of Exhibits 1 An Ectopic Pregnancy results when a fertilized egg implants itself within the Fallopian Tube rather than within a woman’s uterus. The result is that the fertilized egg either miscarries or must be surgically aborted to prevent the mother from being placed in danger. Either way the pregnancy cannot go to term. 31235319.v1 2 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 Exhibit A-Plaintiff’s Bill of Particulars; Exhibit B- Plaintiff’s supplemental Bill of Particulars; Exhibit C-Defendant’s letter of March 6, 2020 advising plaintiff failed to provide any authorizations regarding his client gynecological treatment; Exhibit D- Defendant’s email of September 9, 2020 advising that plaintiff has failed to provide any authorizations for plaintiff’s pre and post accident gynecological treatment; Exhibit E- Kings County Emergency Department Records; Exhibit F- Preliminary conference order of January 17, 2020; Exhibit G-Our cross motion seeking to compel authorizations; Exhibit H- Court Order of October 14, 2020; Exhibit I- Records of Bella Donna Medical/Dr. Shawn Yunayev; Exhibit J- January 11, 2021 Notice for Discovery and Inspection for an authorization for Dr. Brofman; Exhibit K- Final Pre-Note Order of July 7, 2021, once again ordering plaintiff to provide an authorization for Dr. Brofman and all prior OB/GYN treatment; Plaintiff’s Complaint should be Dismissed for Failure to Provide Relevant Discovery as to her medical treatment regarding injuries alleged to have been Sustained in this Accident 7. Plaintiff’s Bill of Particulars clearly and unequivocally sets forth claims regarding the loss of her fetus as a result of this accident. Exhibit A. To wit, she claims: - Complete Spontaneous Miscarriage; - Traumatic abortion; 31235319.v1 3 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 - Vaginal bleeding with passage of medium sized 2-3 cm clots with dark blood; - Loss of fetus - Emotional distress from loss of fetus. Exhibit A. 8. After this alleged accident, plaintiff sought treatment at Kings County Hospital. Exhibit E. The Emergency Department Provider Initial Note prepared by Dr. Calvin Sun indicates, “PT states that her last menstrual period was around mid December, and that she had a visit to the obstetrician around 2-3 weeks ago, had an ultrasound which showed a normal pregnancy.” Exhibit E. The gynecological In-patient Consultation note indicates, in 2011 she had a vaginal delivery and history of two ectopic pregnancies. Exhibit E. She is further noted as having, “3 pregnancies/1 birth”. Exhibit E. 9. Plaintiff has placed her physical condition in issue by claiming she lost a fetus due to the alleged fall. In light of this, the defendants are entitled to plaintiff’s full and complete Gynecological records both prior to and after the subject incident for all providers, diagnostic testing and treatment she received. In bringing an action for personal injury, a plaintiff waives the physician-patient privilege with respect to any physical or mental condition affirmatively placed in controversy, Dillenbeck v. Hess, 73 N.Y.2d 278 (1989). Where a plaintiff merely alleges that the underlying accident caused difficulties in walking and standing that affect her ambulatory capacity, the plaintiff placed her prior knee surgery into controversy and waived the physician- patient privilege despite not claiming damages to her knee in her bill of particulars, Brito v. Gomez, 33 N.Y.3d 1126 (2019). The waiver extends not only to records of post-accident treatment, but also to records of pre-accident treatment of the same anatomical parts to which plaintiff claims injury. Geraci v. National Fuel Gas Distribution et al., 255 A.D.2d 945 (4th Dep’t 1998). The preliminary conference order of January 17, 2020, directs plaintiff is to provide a complete set of 31235319.v1 4 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 all authorizations by March 6, 2020. It specifically provides plaintiff is to serve, “gynecological/pregnancy records to the extent not yet done by 3/6/2020”. Further it provides, “plaintiff to serve authorizations for any prior injuries or treatment, testing, etc to same body parts injured in instant accident by 3/6/20”. 10. In light of the Court’s Order, on March 6, 2020, defendants requested, by letter, that plaintiff provide authorizations for plaintiff’s medical treatment both prior to and post- accident as it relates to the claimed loss of fetus. Exhibit C. On September 9, 2020, the defendants’ once again reminded counsel that they had not provided any authorizations for this very specific injury. Exhibit D. 11. The defendants were then forced to file a motion seeking these prior medical records. Exhibit G. The Court then issued an Order as follows: Plaintiff shall, if not already done and no later than November 20, 2020, provide AZs that were previously court-order (including for prior OB/GYN treatment). Any party that fails to timely comply with the terms of this order is precluded from testifying or offering evidence at trial. 12. In response to this order, the plaintiff provided an authorization for Bella Donna Medical PC and a second authorization for the treating physician from that facility, Dr. Shawn Yunayev. Exhibit I. Those records begin January 21, 2019, less than one month before this accident. They contain No information regarding plaintiff’s prior OB/GYN treatment. Further the record from that date indicates plaintiff had not decided whether she intended to keep the pregnancy at issue and she was referred to a Dr. Brofman. Accordingly, plaintiff failed to comply with the Order of October 14, 2020 and at this point should be deemed precluded and this complaint dismissed. 31235319.v1 5 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 13. In an abundance of caution, the defendant’s issued a notice for discovery and inspection for the records of Dr. Brofman. Exhibit J. It was then once again ordered that plaintiff provide these records in the order of July 7, 2021. 14. Given all of the above, plaintiff’s complaint should be dismissed. Their conduct has now wantonly violated three court orders one that included the sanction of preclusion and yet they still have failed to provide these records. 15. CPLR §3101 requires “full disclosure of all matter material and necessary in the prosecution or defense of an action”. The New York Court of Appeals has interpreted “reasonable and necessary” to require disclosure of any facts bearing on the controversy which will assist in preparation for trial. Andon v. 302-304 Mott St. Associates, 94 N.Y.2d 740, 709 N.Y.S.2d 873 (2000); Spencer v. City of New York, 293 A.D.2d 466, 739 N.Y.S.2d 632 (2d Dep’t. 2002). CPLR §3126 provides the court with discretion to preclude a party from offering evidence at trial when that party willfully fails to disclose information pursuant to a notice. Kingsley v. Kantor, 265 N.Y.2d 529, 697 N.Y.S.2d 141 (2d Dep’t. 1999). Such willful and contumacious behavior may be inferred from non-compliance with the court order and lack of an excuse for such non- compliance. Garcia v. Kraniotakis, 232 A.D.2d 369, 648 N.Y.S.2d 156 (2d Dep’t. 1996). 16. In the present matter, plaintiff has demonstrated that her actions are willful and contumacious in that defendant has requested plaintiff provide basic and necessary discovery. Moreover, despite the fact that our office has attempted to contact plaintiff on multiple occasions they still not provided outstanding prevents defendants from conducting a meaningful defense and preclude the defendant from proceeding with this matter. The court has now issued three orders directing the discovery and the sanction of dismissal is warranted. 31235319.v1 6 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 17. Alternatively, if the Court does not dismiss the case, pursuant to CPLR §3124, the Court may order plaintiff to comply with its order as well as our demands. The statute provides in pertinent part: “if a person fails to respond to or comply with any requests, notice, interrogatories, demand, question or order, under this article, the party seeking disclosure may move to compel compliance or a response”. 18. The instant matter exemplifies the need for this statute. The defendant has attempted to secure simple common place discovery and yet, plaintiff has refused to provide it. 19. Finally, it is respectfully submitted that plaintiff has waived any objections to the discovery demanded by defendant since they have failed to state objections within twenty (20) days of the demands as required by CPLR §3122. See Otto v. Triangle Aviation Services, Inc., 258 A.D.2d 448, 684 N.Y.S.2d 612 (2d Dep’t. 1999) (holding that failure of a party to challenge the propriety of a notice for discovery and inspection within the time prescribed by the rule bars inquiry into the appropriateness of the information sought, except with regard to material that is privileged or requests that palpably improper); Weisgold v. Kiamesha Concord, Inc., 51 Misc.2d 456, 273 N.Y.S.2d 279 (N.Y. Sup. 1966); Brewer v. Jamaica Hospital, 73 A.D.2d 851, 423 N.Y.S.2d 188 (1st Dep’t. 1980) (if a party fails to move within the time prescribed by rule for a protective order against improper demands by his adversary for discovery and production of documents and things, that party waives his right to object). 31235319.v1 7 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 60 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 WHEREFORE, based upon the foregoing, it is respectfully requested the court grant defendants motion, dismiss plaintiff’s complaint, and/or for such other further and different relief that the court deems just and proper. Dated: Garden City, New York October 1, 2021 __________________________________ Theodore W. Ucinski 31235319.v1 8 of 9 FILED: FILED : KINGS KINGS COUNTY COUNTY CLERK CLERK 01/14/2022 10/01/2021 11:23 11:34 AM AM INDEX INDEX NO. NO. 514351/2019 514351/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 100 60 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/14/2022 10/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X ARIADNI CORDERO, Index No.: 514351/19 Plaintiff, CERTIFICATION OF WORD COUNT -against- HP MARCUS GARVEY PRESERVATION HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC, Defendants. X Pursuant to Rule 33.1(h) of the Rules of this Court, I certify that the accompanying Affirmation in Support, which was prepared using Times New Roman 12-point typeface, contains 1,857 words (excluding the caption and the sigñatüre lines). This certificate was prepared in reliance on the word-count function of the word processing system (Microsoft Word) used to prepare the document. I declare under the penalty of perjury that the foregoing is true and correct. Dated: Garden City, New York October 1, 2021 Theadcre W. Ucinski 31235319.v1 9 of 9 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 61 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X ARIADNI CORDERO, Index No.: 514351/19 Plaintiff, -against- GOOD FAITH AFFIRMATION HP MARCUS GARVEY PRESERVATION HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC, Defendants. --------------------------------------------------------------------X Theodore W. Ucinski, an attorney duly licensed to practice law before the court’s of the state of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am a member of the law offices of Goldberg Segalla, LLP, counsel for defendants, HP Marcus Garvey Preservation Housing Company, Inc. and C & C Apartment Management, LLC. As such, I am fully familiar with the facts and circumstances of this matter. 2. I make this affirmation in support of the within motion which seeks to dismiss plaintiff’s complaint. 3. I forwarded plaintiff multiple good faith letters asking for all gynecological treatment both pre and post-accident and plaintiff failed to respond to same. 4. Based upon the foregoing, it is respectfully requested that the Court issue an Order dismissing plaintiff’s complaint and for such other, further and different relief as the court deems just, proper and equitable. Dated: Garden City, New York October 1, 2021 ______________________________ THEODORE W. UCINSKI 31235319.v1 1 of 2 FILED:: [FILED KINGS KINGS COUNTY COUNTY CLERK CLERK 01/14/2022 10/01/2021 11:23 11:34 AM AM INDEX INDEX NO. NO. 514351/2019 514351/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 100 61 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/14/2022 10/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X ARIADNI CORDERO, Index No.: 514351/19 Plaintiff, CERTIFICATION OF WORD COUNT -against- HP MARCUS GARVEY PRESERVATION HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC, Defendants. X Pursuant to Rule 33.1(h) of the Rules of this Court, I certify that the accompanying Good Faith Affirmation, which was prepared using Times New Roman 12-point typeface, contains 150 words (excluding the caption and the signature lines). This certificate was prepared in reliance on the word-count function of the word processing system (Microsoft Word) used to prepare the document. I declare under the penalty of perjury that the foregoing is true and correct. Dated: Garden City, New York October 1, 2021 Theodore W. Ucinski 31235319.v1 2 of 2 FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 62 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 Exhibit A FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 62 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X ARIADNI CORDERO, Index No.: 514351/2019 Plaintiff, -against- VERIFIED BILL OF PARTICULARS HP MARCUS GARVEY PRESERVATION HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC, Defendants. x Plaintiff, ARIADNI CORDERO, by her attorneys, ELEFTERAKIS, ELEFTERAKIS & PANEK, as and for a response to Defendants, HP MARCUS GARVEY PRESERVATION HOUSING COMPANY, INC. and C&C APARTMENT MANAGEMENT, LLC's, Demand for a Verified Bill of Particulars, sets forth: 1. Plaintiff objects to the demand for date of birth, pursuant to 22 NYCRR 202.5 (e), effective from January 1, 2015, due to the danger of identity theft. Plaintiff objects to the demand for a Social Security number, as an interrogatory, as not designed to amplify the pleadings, and also to the disclosure of such information in a filing likely to be publicly filed, due to the danger of identity theft. (See, for instance, In re: The August 2, 2004 Amendment to the E-government Act of 2002, Administrative Order 2004- 09, Chief Judge Edward R. Korman, dated October 2004, United States District Court, Eastern District of New York), which prohibits the disclosure of full Social Security numbers in documents likely to be filed either electronically or in paper form. FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 62 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 Plaintiff presently resides at 2505 Bedford Avenue 2E, Brooklyn, New York 11226 and same at the time of the accident. Past five (5) years current and past residence address of Plaintiff: Objection to this demand as evidentiary in nature. See Frequency Electronics, Inc. v. We're Associates Co.., 90 A.D.2d 822, 456 N.Y.S.2d 20 (2d Dep't 1982) (holding that, "[i]t is not the function of a bill of particulars to provide evidentiary material"). 2. The subject incident occurred on February 7, 2019 at approximately 12:05 P.M. Weather conditions: Objection to this demand as evidentiary in nature. See Frequency Electronics, Inc. v. We're Associates Co.., 90 A.D.2d 822, 456 N.Y.S.2d 20 (2d Dep't 1982) (holding that, "[i]t is not the function of a bill of particulars to provide evidentiary material"). 3. The subject incident occurred on the premises located at 395 Bristol Street in the County of Kings, State of New York. Objection to the remainder of defendants' demand as being evidentiary in nature. See Frequency Electronics, Inc. v. We're Associates Co., 90 A.D.2d 822, 456 N.Y.S.2d 20 (2d Dep't 1982) where the court held that "[i]t is not function of bill of particulars to provide evidentiary material. 4. (a) Motor vehicle: Not applicable. 5. (a) - (b) Intentional act or tort: Not applicable. 6. Defendants were careless, reckless and/or negligent as follows: in the ownership, operation, management, maintenance, supervision, inspection, design and control of the aforesaid stairs located at the premises known as 395 Bristol Street in the County of Kings, State of New York. — in creating the subject dangerous, defective and hazardous condition; FILED: KINGS COUNTY CLERK 10/01/2021 01/14/2022 11:34 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 62 100 RECEIVED NYSCEF: 10/01/2021 01/14/2022 — in failing to properly inspect, remedy and/or remove slippery substance from the subject staircase; - in causing, permitting and allowing foreign substances to be and remain on, at and about the aforesaid location for an unreasonable period of time; - in failing to maintain the aforesaid location in a reasonably safe, non-slippery, trip free, hazard-free and proper condition; - in causing, allowing and permitting an obstruction to plaintiff's safe ingress/egress at and through said location; - in failing to undertake proper cleaning of the subject location and/or stairs; - in failing to provide plaintiff with safe and proper ingress/egress at the subject location; - in failing to cordon off, barricade or close the slippery and/or defective area; - in failing to take adequate precautions and measures to prevent said occurrence, of which defendants had actual and/or constructive notice; - in permitting and allowing the subject stairs to be, become and remain a danger, threat, peril and/or trap to the life and limb of all persons using the aforesaid stairs and, more particularly, p