Preview
FILED: KINGS COUNTY CLERK 04/12/2018 01:59 PM INDEX NO. 514501/2017
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KING
CECILIA NESBY, INDEX NO. 514501/17
Plaintiff,
-against- AFFIRMATION IN SUPPORT OF
NOTICE OF MOTION
FIELDBRIDGE ASSOCIATES LLC and
FIELDBRIDGE ASSOCIATES,
Defendants.
MICHAEL S. GOLDENBERG, an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following under the penalties of perjury:
1. I am a partner in the firm of Braff, Harris, Sukoneck & Maloof, attorneys for the
Defendants, Fieldbridge Associates LLC and Fieldbridge Associates, and as such, am fully
familiar with the facts and circumstances set forth herein. This Affirmation is submitted in
support of the within motion seeking an Order compelling production of authorizations and
extending the time to complete depositions.
2. This lawsuit arises out of a fall down incident in which the plaintiff suffered a
fracture to her heel which required surgery involving insertion of hardware. Following the
plaintiff's surgery, her wound developed a series of infections which required treatment with an
infectious disease doctor, treatment to cure the infection, and ultimately a second surgery to
remove the hardware so that the wound could heel.
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3. In addition to requesting an authorization for plaintiff's treatment with a plastic
surgeon by way of a demand dated March 2, 2018, the defendants also sought production of an
authorization for other providers with whom plaintiff treated for the following conditions:
cataracts, hypertension and diabetes. See Ex. A.
defendants'
4. On March 22, 2018, plaintiff responded to the demand. .S_eee
See Ex. B.
While plaintiff did provide an authorization for production of records from the plastic surgeon,
she objected to producing authorization related to the other three co-morbidities, citing that the
records."
requests were "irrelevant, overly broad and calls for privileged Plaintiff's objections
lack merit.
5. Pursuant to CPLR §3124, plaintiff should be compelled to produce the requested
authorizations. It iswell settled that pre-trial disclosure extends not only to admissible proof but
also to testimony or documents which may lead to the disclosure of admissible proof, including
material to be used in cross-examination. Seee eg Johnson v. Assoc. for the Advancement of
Blind & Retarded, 21 Misc.3d 268 (Sup.Ct. 2008). More importantly, the information sought
need not qualify as evidence admissible at trial. Rubino by Rubino v. Albany Med. Ctr. Hosp. .
126 Misc.2d 204 (Sup.Ct. 1984).
6. CPLR 3101 provides that there shall be full disclosure of allnon-privileged matter
which is material and necessary to the defense or prosecution of an action. See CPLR 3101.
Trial courts have broad discretion in the supervision of discovery and in determining what is
material and necessary. See Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403 (1968); Andon v.
302-304 Mott Street Assocs., 94 N.Y.2d 740 (2000); Cabellero v. City of New York, 48 A.D.3d
"necessary"
727 (2d Dep't 2008). Within the context of discovery, has been interpreted as
indispensable" necessary"
meaning "needful and not See Allen at 407. The "material and
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standard is to be interpreted liberally requiring disclosure of "any facts bearing on the
controversy which will assist preparation for trial by sharpening the issues and reducing delay
reason."
and prolixity. The test is one of usefulness and Id;_ see also Hoenig v. Westphal, 52
N.Y.2d 605 (1981) ( pre-trial discovery is to be encouraged, limited only by the test of
materiality of "usefulness and reason").
7. Each of these comorbidities are relevant to plaintiffs claims from both the
perspective of liability and damages. First, the plaintiff's records indicate she has a history of
cataracts. That is relevant to assessing the plaintiff's ability to see where she was walking at the
time of the incident, which is probative of her comparative fault. Second, the plaintiff's claim
involves an allegation that she developed an infection in her wound following surgery, which
requiredadditional treatment. The plaintiff's history of hypertension and diabetes is pertinent for
analyzing whether those health issues contributed to her poor healing. Thus, the plaintiffs
treatment with any physicians for cataracts, hypertension and diabetes is discoverable. The
information sought is both material and necessary, and more importantly, admissibility at trialis
not a bar to discoverability.
8. Additionally, the plaintiff's Bill of Particulars specifically refer to her life having
been affected by injuries allegedly sustained in this accident. See Ex. C. She claims that the
injuries have caused her "limitations, diminution and/or impairment of the usual functions, social
occurrence."
and other activities which plaintiff engaged in and/or took for granted prior to this
Her allegation equates to a claim of loss of enjoyment of life. Here, the plaintiff's comorbidities
are directly relevant to evaluating the quality of life she had before the accident.
9. On April 10, 2018, the parties appeared in court in connection with plaintiffs
motion to strike. That motion was resolved by way of an Order which set forth plaintiffs
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deposition to be completed on or before May 18, 2018. S_ee Ex. C. In light of the fact that the
defendant requires information related to plaintiff's comorbidities, the deposition, as scheduled,
is unable to be completed. The defendant requires time to obtain the authorizations and
thereafter process the requests with various providers. Thus, itis respectfully submitted that the
Court extend the time for completion of depositions in addition to granting all other relief
requested in this motion.
WHEREFORE, your affirmant respectfully requests that the Instant Cross-Motion be
granted in all respects and for such other and further relief which, as to this Court, appears just
and proper.
Dated: New York, New York
April 12, 2018
Yours, etc.
~e
MICHAEL S. GOLDE ERG
Attorneys for Defe
Fieldbridge Associates LLC and Fieldbridge
Associates
BRAFF, HARRIS, SUKONECK & MALOOF
570 W. Mt. Pleasant Ave.
Suite 200
Livingston, New Jersey 07039
(212) 599-2085
Our File No. 363.21484
TO: Jason S. Steinberg, Esq.
Burns & Harris, Esqs.
Attorneys for Plaintiff
CECILIA NESBY
233 Broadway
New York, NY 10279
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Preview
FILED: KINGS COUNTY CLERK 04/12/2018 01:59 PM INDEX NO. 514501/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KING CECILIA NESBY, INDEX NO. 514501/17 Plaintiff, -against- AFFIRMATION IN SUPPORT OF NOTICE OF MOTION FIELDBRIDGE ASSOCIATES LLC and FIELDBRIDGE ASSOCIATES, Defendants. MICHAEL S. GOLDENBERG, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am a partner in the firm of Braff, Harris, Sukoneck & Maloof, attorneys for the Defendants, Fieldbridge Associates LLC and Fieldbridge Associates, and as such, am fully familiar with the facts and circumstances set forth herein. This Affirmation is submitted in support of the within motion seeking an Order compelling production of authorizations and extending the time to complete depositions. 2. This lawsuit arises out of a fall down incident in which the plaintiff suffered a fracture to her heel which required surgery involving insertion of hardware. Following the plaintiff's surgery, her wound developed a series of infections which required treatment with an infectious disease doctor, treatment to cure the infection, and ultimately a second surgery to remove the hardware so that the wound could heel. 1 of 4 FILED: KINGS COUNTY CLERK 04/12/2018 01:59 PM INDEX NO. 514501/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2018 3. In addition to requesting an authorization for plaintiff's treatment with a plastic surgeon by way of a demand dated March 2, 2018, the defendants also sought production of an authorization for other providers with whom plaintiff treated for the following conditions: cataracts, hypertension and diabetes. See Ex. A. defendants' 4. On March 22, 2018, plaintiff responded to the demand. .S_eee See Ex. B. While plaintiff did provide an authorization for production of records from the plastic surgeon, she objected to producing authorization related to the other three co-morbidities, citing that the records." requests were "irrelevant, overly broad and calls for privileged Plaintiff's objections lack merit. 5. Pursuant to CPLR §3124, plaintiff should be compelled to produce the requested authorizations. It iswell settled that pre-trial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof, including material to be used in cross-examination. Seee eg Johnson v. Assoc. for the Advancement of Blind & Retarded, 21 Misc.3d 268 (Sup.Ct. 2008). More importantly, the information sought need not qualify as evidence admissible at trial. Rubino by Rubino v. Albany Med. Ctr. Hosp. . 126 Misc.2d 204 (Sup.Ct. 1984). 6. CPLR 3101 provides that there shall be full disclosure of allnon-privileged matter which is material and necessary to the defense or prosecution of an action. See CPLR 3101. Trial courts have broad discretion in the supervision of discovery and in determining what is material and necessary. See Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403 (1968); Andon v. 302-304 Mott Street Assocs., 94 N.Y.2d 740 (2000); Cabellero v. City of New York, 48 A.D.3d "necessary" 727 (2d Dep't 2008). Within the context of discovery, has been interpreted as indispensable" necessary" meaning "needful and not See Allen at 407. The "material and 2 of 4 FILED: KINGS COUNTY CLERK 04/12/2018 01:59 PM INDEX NO. 514501/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2018 standard is to be interpreted liberally requiring disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay reason." and prolixity. The test is one of usefulness and Id;_ see also Hoenig v. Westphal, 52 N.Y.2d 605 (1981) ( pre-trial discovery is to be encouraged, limited only by the test of materiality of "usefulness and reason"). 7. Each of these comorbidities are relevant to plaintiffs claims from both the perspective of liability and damages. First, the plaintiff's records indicate she has a history of cataracts. That is relevant to assessing the plaintiff's ability to see where she was walking at the time of the incident, which is probative of her comparative fault. Second, the plaintiff's claim involves an allegation that she developed an infection in her wound following surgery, which requiredadditional treatment. The plaintiff's history of hypertension and diabetes is pertinent for analyzing whether those health issues contributed to her poor healing. Thus, the plaintiffs treatment with any physicians for cataracts, hypertension and diabetes is discoverable. The information sought is both material and necessary, and more importantly, admissibility at trialis not a bar to discoverability. 8. Additionally, the plaintiff's Bill of Particulars specifically refer to her life having been affected by injuries allegedly sustained in this accident. See Ex. C. She claims that the injuries have caused her "limitations, diminution and/or impairment of the usual functions, social occurrence." and other activities which plaintiff engaged in and/or took for granted prior to this Her allegation equates to a claim of loss of enjoyment of life. Here, the plaintiff's comorbidities are directly relevant to evaluating the quality of life she had before the accident. 9. On April 10, 2018, the parties appeared in court in connection with plaintiffs motion to strike. That motion was resolved by way of an Order which set forth plaintiffs 3 of 4 FILED: KINGS COUNTY CLERK 04/12/2018 01:59 PM INDEX NO. 514501/2017 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2018 deposition to be completed on or before May 18, 2018. S_ee Ex. C. In light of the fact that the defendant requires information related to plaintiff's comorbidities, the deposition, as scheduled, is unable to be completed. The defendant requires time to obtain the authorizations and thereafter process the requests with various providers. Thus, itis respectfully submitted that the Court extend the time for completion of depositions in addition to granting all other relief requested in this motion. WHEREFORE, your affirmant respectfully requests that the Instant Cross-Motion be granted in all respects and for such other and further relief which, as to this Court, appears just and proper. Dated: New York, New York April 12, 2018 Yours, etc. ~e MICHAEL S. GOLDE ERG Attorneys for Defe Fieldbridge Associates LLC and Fieldbridge Associates BRAFF, HARRIS, SUKONECK & MALOOF 570 W. Mt. Pleasant Ave. Suite 200 Livingston, New Jersey 07039 (212) 599-2085 Our File No. 363.21484 TO: Jason S. Steinberg, Esq. Burns & Harris, Esqs. Attorneys for Plaintiff CECILIA NESBY 233 Broadway New York, NY 10279 4 of 4