Preview
FILED: KINGS COUNTY CLERK 01/14/2022 11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/14/2022
EXHIBIT C
FILED: KINGS COUNTY CLERK 10/26/2021
01/14/2022 10:20
11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 78
102 RECEIVED NYSCEF: 10/26/2021
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 REPLY AND
FURTHER SUPPORT
HP MARCUS GARVEY PRESERVATION Return Date: 10/28/2021
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 reply to plaintiff’s baseless opposition to our motion
which seeks to dismiss plaintiff’s complaint for failure to provide court ordered discovery.
3. At the outset, based upon the court’s prior order, plaintiff is precluded, the motion
being heard at this time is simply whether their case should be dismissed. The plaintiff’s opposition
is an attempt to get this court to start a new with an analysis they performed several months ago.
Attempting to provide the outstanding discovery at this time is irrelevant to the analysis. Indeed,
providing the outstanding discovery now, mere days before the motion is returnable is only
evidence that they violated the Court’s preclusion order. Moreover, the “discovery” they provided
is wholly inadequate and does not comply with the court’s order.
31515897.v1
1 of 6
FILED: KINGS COUNTY CLERK 10/26/2021
01/14/2022 10:20
11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 78
102 RECEIVED NYSCEF: 10/26/2021
01/14/2022
4. The authorizations provided, as more fully explained below demonstrate that
counsel is still not providing all records required by the court’s prior orders. More specifically,
counsel provided an authorization for Dr. Brofman, a provider who was previously subject of
motion practice and which resulted in the preclusion order noted below. Plaintiff provides, yet
another authorization for Dr. Yunayev, whose records stop just prior to the pregnancy at issue in
this matter and do not address her two prior ectopic pregnancies. Further, both authorizations are
made out to the firm of “Hickey Smith”, a law firm which has not been counsel for the moving
defendants for more than two years. Simply put, plaintiff’s actions are not mere delays or mistakes.
They are obstructions purposely put in place to prevent the defendants from defending against a
damages claim brought by their client.
5. According to plaintiff’s Kings County Emergency Department records, Cordero
has a history of two prior ectopic pregnancies, which resulted in either surgical or spontaneous
abortions.1 Exhibit E. In addition, she has had one full term pregnancy. Exhibit E. 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. Exhibit F. Plaintiff provided an
authorization for Bella Donna Medial and Dr. Shawn Yunayev (another authorization for this
provider was provided yet again rather than providing an authorization for the prior treating
medical physician), who was her treating physician at this group. Exhibit I. Their records begin
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.
31515897.v1
2 of 6
FILED: KINGS COUNTY CLERK 10/26/2021
01/14/2022 10:20
11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 78
102 RECEIVED NYSCEF: 10/26/2021
01/14/2022
on January 21, 2019, less than two months before this accident. Exhibit I. These records do
not include any information regarding her two prior pregnancies. Exhibit I. Further, the
January 21. 2019 record indicates plaintiff was referred to a Dr. Brofman with regard to the
subject pregnancy. Exhibit I. As such, providing another authorization for Dr. Yunayev, made
out to the wrong law firm is utterly useless and demonstrates a wanton disregard for the discovery
process. In Kihl v. Pfeffer, 94 N.Y.2d 118 (1999), the Court of Appeals set forth the standard for
responding to Court Orders. They wrote, “We underscore that compliance with a disclosure order
requires both a timely response and one that evinces a good faith effort to address the requests
meaningfully.” Plaintiff has utterly failed to comply with this standard by providing yet another
copy of the same authorization made out to the wrong firm. Accordingly, their complaint should
be dismissed.
6. 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.
7. 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”. Exhibit G. It is
defendants’ position that plaintiff is now precluded and the complaint should be dismissed.
8. 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). Where a party fails to provide a reasonable excuse for
failure to comply with a court order, dismissal is warranted. Alto v. Gilman Mgmt Corp., 7 A.D.3d
31515897.v1
3 of 6
FILED: KINGS COUNTY CLERK 10/26/2021
01/14/2022 10:20
11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 78
102 RECEIVED NYSCEF: 10/26/2021
01/14/2022
650 (2nd Dep’t) App, denied 3 N.Y.3d 607 (2004). Plaintiff provides no excuse as to why he has
now provided yet another authorization for the same medical provider, Dr. Yunayev, a doctor who
we pointed out does not have any records regarding his client’s two prior ectopic pregnancies.
Moreover, they now provide an authorization for Dr. Brofman. However, neither authorization is
made out to our firm. This demonstrable lack of care is behavior that warrants dismissal. In Alto,
as here, the defendants repeatedly requested authorizations for medical records. The plaintiff
provided an incomplete set of authorizations, all of which were inadequate and some of which
were never corrected. The plaintiff’s failed to provide any reasonable excuse to explain their
responses and the defendants moved to dismiss their complaint. The court granted the motion and
dismissed plaintiff’s complaint on this single motion. Here, we have the very same issue, have
filed motions and this has been subject to multiple court orders, yet this behavior persists.
Accordingly, the complaint should be dismissed. See Also Randolph v. Warnecke, 1 A.D.3d 731
(3rd Dep’t 2003) (where plaintiff’s complaint was dismissed for failure to provide MRI or
authorization for MRI from a prior accident).
9. Based upon the foregoing, it is respectfully requested that the court dismiss
plaintiff’s complaint for failure to provide discovery or issue an affirmative order precluding them
from offering any evidence at the time of trial with regards to damages.
Wherefore, it is respectfully requested that the court dismiss plaintiff’s complaint for
failure to provide discovery or issue an affirmative order precluding them from offering any
evidence at the time of trial with regards to damages and/or for such other further and different
relief as the court deems just proper and equitable.
Dated: Garden City, New York
October 26, 2021
Yours, etc.,
31515897.v1
4 of 6
FILED: KINGS COUNTY CLERK 10/26/2021
01/14/2022 10:20
11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 78
102 RECEIVED NYSCEF: 10/26/2021
01/14/2022
GOLDBERG SEGALLA LLP
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
31515897.v1
5 of 6
FILED: KINGS COUNTY CLERK 10/26/2021
01/14/2022 10:20
11:23 AM INDEX NO. 514351/2019
NYSCEF DOC. NO. 78
102 RECEIVED NYSCEF: 10/26/2021
01/14/2022
AFFIRMATION OF SERVICE (E-FILING)
THEODORE W. UCINSKI, an attorney duly licensed to practice law in the courts of the
state of New York, hereby affirms the following to be true under the penalty of perjury: deposes
and says: I am not a party to the within action, am over 18 years of age and reside in Nassau
County, New York.
On October 26, 2021, I e-filed and served the within AFFIRMATION IN REPLY AND
IN FURTHER SUPPORT via the New York State Courts Electronic Filing System
(“NYSCEF”) upon the following attorneys for the following parties:
ELEFTERAKIS, ELEFTERAKIS & PANEK
Attorney for Plaintiff
80 Pine Street, 38th Floor
New York, New York 10005
__________________________________
Theodore W. Ucinski
31515897.v1
6 of 6
Preview
FILED: KINGS COUNTY CLERK 01/14/2022 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/14/2022 EXHIBIT C FILED: KINGS COUNTY CLERK 10/26/2021 01/14/2022 10:20 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 78 102 RECEIVED NYSCEF: 10/26/2021 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 REPLY AND FURTHER SUPPORT HP MARCUS GARVEY PRESERVATION Return Date: 10/28/2021 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 reply to plaintiff’s baseless opposition to our motion which seeks to dismiss plaintiff’s complaint for failure to provide court ordered discovery. 3. At the outset, based upon the court’s prior order, plaintiff is precluded, the motion being heard at this time is simply whether their case should be dismissed. The plaintiff’s opposition is an attempt to get this court to start a new with an analysis they performed several months ago. Attempting to provide the outstanding discovery at this time is irrelevant to the analysis. Indeed, providing the outstanding discovery now, mere days before the motion is returnable is only evidence that they violated the Court’s preclusion order. Moreover, the “discovery” they provided is wholly inadequate and does not comply with the court’s order. 31515897.v1 1 of 6 FILED: KINGS COUNTY CLERK 10/26/2021 01/14/2022 10:20 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 78 102 RECEIVED NYSCEF: 10/26/2021 01/14/2022 4. The authorizations provided, as more fully explained below demonstrate that counsel is still not providing all records required by the court’s prior orders. More specifically, counsel provided an authorization for Dr. Brofman, a provider who was previously subject of motion practice and which resulted in the preclusion order noted below. Plaintiff provides, yet another authorization for Dr. Yunayev, whose records stop just prior to the pregnancy at issue in this matter and do not address her two prior ectopic pregnancies. Further, both authorizations are made out to the firm of “Hickey Smith”, a law firm which has not been counsel for the moving defendants for more than two years. Simply put, plaintiff’s actions are not mere delays or mistakes. They are obstructions purposely put in place to prevent the defendants from defending against a damages claim brought by their client. 5. According to plaintiff’s Kings County Emergency Department records, Cordero has a history of two prior ectopic pregnancies, which resulted in either surgical or spontaneous abortions.1 Exhibit E. In addition, she has had one full term pregnancy. Exhibit E. 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. Exhibit F. Plaintiff provided an authorization for Bella Donna Medial and Dr. Shawn Yunayev (another authorization for this provider was provided yet again rather than providing an authorization for the prior treating medical physician), who was her treating physician at this group. Exhibit I. Their records begin 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. 31515897.v1 2 of 6 FILED: KINGS COUNTY CLERK 10/26/2021 01/14/2022 10:20 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 78 102 RECEIVED NYSCEF: 10/26/2021 01/14/2022 on January 21, 2019, less than two months before this accident. Exhibit I. These records do not include any information regarding her two prior pregnancies. Exhibit I. Further, the January 21. 2019 record indicates plaintiff was referred to a Dr. Brofman with regard to the subject pregnancy. Exhibit I. As such, providing another authorization for Dr. Yunayev, made out to the wrong law firm is utterly useless and demonstrates a wanton disregard for the discovery process. In Kihl v. Pfeffer, 94 N.Y.2d 118 (1999), the Court of Appeals set forth the standard for responding to Court Orders. They wrote, “We underscore that compliance with a disclosure order requires both a timely response and one that evinces a good faith effort to address the requests meaningfully.” Plaintiff has utterly failed to comply with this standard by providing yet another copy of the same authorization made out to the wrong firm. Accordingly, their complaint should be dismissed. 6. 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. 7. 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”. Exhibit G. It is defendants’ position that plaintiff is now precluded and the complaint should be dismissed. 8. 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). Where a party fails to provide a reasonable excuse for failure to comply with a court order, dismissal is warranted. Alto v. Gilman Mgmt Corp., 7 A.D.3d 31515897.v1 3 of 6 FILED: KINGS COUNTY CLERK 10/26/2021 01/14/2022 10:20 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 78 102 RECEIVED NYSCEF: 10/26/2021 01/14/2022 650 (2nd Dep’t) App, denied 3 N.Y.3d 607 (2004). Plaintiff provides no excuse as to why he has now provided yet another authorization for the same medical provider, Dr. Yunayev, a doctor who we pointed out does not have any records regarding his client’s two prior ectopic pregnancies. Moreover, they now provide an authorization for Dr. Brofman. However, neither authorization is made out to our firm. This demonstrable lack of care is behavior that warrants dismissal. In Alto, as here, the defendants repeatedly requested authorizations for medical records. The plaintiff provided an incomplete set of authorizations, all of which were inadequate and some of which were never corrected. The plaintiff’s failed to provide any reasonable excuse to explain their responses and the defendants moved to dismiss their complaint. The court granted the motion and dismissed plaintiff’s complaint on this single motion. Here, we have the very same issue, have filed motions and this has been subject to multiple court orders, yet this behavior persists. Accordingly, the complaint should be dismissed. See Also Randolph v. Warnecke, 1 A.D.3d 731 (3rd Dep’t 2003) (where plaintiff’s complaint was dismissed for failure to provide MRI or authorization for MRI from a prior accident). 9. Based upon the foregoing, it is respectfully requested that the court dismiss plaintiff’s complaint for failure to provide discovery or issue an affirmative order precluding them from offering any evidence at the time of trial with regards to damages. Wherefore, it is respectfully requested that the court dismiss plaintiff’s complaint for failure to provide discovery or issue an affirmative order precluding them from offering any evidence at the time of trial with regards to damages and/or for such other further and different relief as the court deems just proper and equitable. Dated: Garden City, New York October 26, 2021 Yours, etc., 31515897.v1 4 of 6 FILED: KINGS COUNTY CLERK 10/26/2021 01/14/2022 10:20 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 78 102 RECEIVED NYSCEF: 10/26/2021 01/14/2022 GOLDBERG SEGALLA LLP 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 31515897.v1 5 of 6 FILED: KINGS COUNTY CLERK 10/26/2021 01/14/2022 10:20 11:23 AM INDEX NO. 514351/2019 NYSCEF DOC. NO. 78 102 RECEIVED NYSCEF: 10/26/2021 01/14/2022 AFFIRMATION OF SERVICE (E-FILING) THEODORE W. UCINSKI, an attorney duly licensed to practice law in the courts of the state of New York, hereby affirms the following to be true under the penalty of perjury: deposes and says: I am not a party to the within action, am over 18 years of age and reside in Nassau County, New York. On October 26, 2021, I e-filed and served the within AFFIRMATION IN REPLY AND IN FURTHER SUPPORT via the New York State Courts Electronic Filing System (“NYSCEF”) upon the following attorneys for the following parties: ELEFTERAKIS, ELEFTERAKIS & PANEK Attorney for Plaintiff 80 Pine Street, 38th Floor New York, New York 10005 __________________________________ Theodore W. Ucinski 31515897.v1 6 of 6