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FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SELENA CASTILLO and DIENNA O. NOTICE OF MOTION TO VACATE
MOHAMMED, CERTIFICATE OF READINESS
Plaintiffs,
IAS Motion Support Part
-against-
Return Date: January 4, 2022
LANCE M. SMITH,
Index No. 500003/2021
Defendant.
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S I R:
PLEASE TAKE NOTICE, that upon the annexed affirmation of IRA
LEBOWITZ, ESQ., dated November 24, 2021, the certificate of readiness filed on behalf of the
Plaintiff(s), and upon the proceedings heretofore had herein, the undersigned will move this
Court at IAS Part Motion Support, to be held at the Courthouse located at 360 Adams Street,
Brooklyn, NY 11201 on January 4, 2022 at 9:30 o'clock in the forenoon of that day or as soon
thereafter as Counsel may be heard, for an Order 1) vacating Plaintiffs’ Note of Issue and
Certificate of Readiness on the grounds that discovery is not complete as Plaintiffs have not
appeared for an Independent Medical Examination; 2) compelling Plaintiffs to appear for an
Independent Medical Examination; 3) or in the alternative, precluding Plaintiffs from offering
testimony or evidence at the time of trial;4) extending Defendant’s time to move for summary
judgment to 120 days from the date all discovery is completed, pursuant to CPLR 3212(a); and 5)
for such other relief as to this Court may deem just and proper.
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The above-entitled action is for personal injury. Attorney in charge of this case is
the Law Offices of Karen L. Lawrence, 1225 Franklin Avenue, Ste 100, Garden City, NY 11530,
(646) 912-0316 for the moving party.
PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, must
be served at least seven days prior to the return date of this motion.
DATED: Brooklyn, NY
November 24, 2021
Yours, etc.,
By:
Law Offices of Karen L. Lawrence
Ira Lebowitz, Esq.
Attorney for Defendant
LANCE M. SMITH
1225 Franklin Ave, Ste 100
Garden City, NY 11530
Telephone: (646) 912-0316
Fax: (866) 655-1125
Our File No. 0577277189.1-
TO: LAW OFFICES OF WALE MOSAKU. P.C.
Attorneys for Plaintiff(s)
25 Bond St 3rd Fl
Brooklyn, NY 11201
(718) 243-0994
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SELENA CASTILLO and DIENNA O.
MOHAMMED, AFFIRMATION IN SUPPORT
Plaintiffs, Index No. 500003/2021
-against-
LANCE M. SMITH,
Defendant.
---------------------------------------------------------------------------------------------------------------------X
IRA LEBOWITZ, ESQ., an attorney at law associated with the Law Offices of
Karen L. Lawrence, attorney for the Defendant(s), LANCE M. SMITH, affirms under penalty of
perjury the truth of the following:
1. I am associated with the LAW OFFICES OF KAREN L. LAWRENCE, attorney
for the Defendant(s), LANCE M. SMITH, and as such I am fully familiar with all the facts and
circumstances hereinafter set forth based upon the file maintained at this office.
2. This affirmation is submitted in support of the present motion for an Order 1)
vacating Plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that discovery is not
complete as Plaintiffs have not appeared for an Independent Medical Examination; 2) compelling
Plaintiffs to appear for an Independent Medical Examination; 3) or in the alternative, precluding
Plaintiffs from offering testimony or evidence at the time of trial; 4) extending Defendant’s time to
move for summary judgment to 120 days from the date all discovery is completed, pursuant to
CPLR 3212(a); and 5) for such other relief as to this Court may deem just and proper.
3. This is an action for personal injuries allegedly sustained as the result of an accident
occurring on or about February 1, 2020.
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4. Plaintiffs commenced this action by the filing of a Summons and Complaint in
Supreme Court, Kings County. Issue was joined by the filing of Defendant’s Answer. Pleadings are
annexed hereto collectively as Exhibit A.
5. On June 2, 2021, a Preliminary Conference was held. The Court issued an Order
directing Plaintiffs to provide all authorizations by June 30, 2021, all parties to appear for an EBT
prior to the Compliance Conference scheduled for November 29, 2021, Plaintiffs to appear for an
Independent Medical Examination (“IME”) within 45 days of Plaintiffs’ EBTs, and Plaintiffs to file
a Note of Issue by February 9, 2022. A copy of the Preliminary Conference Order is annexed hereto
as Exhibit B.
6. On August 3, 2021, Plaintiff CASTILLO’s EBT was held.
7. On August 10, 2021, Plaintiff MOHAMMED’s EBT was held.
8. On August 11, 2021, Defendant SMITH’s EBT was held.
9. On November 11, 2021, Plaintiffs prematurely filed a Note of Issue despite not yet
appearing for an IME. A copy of Plaintiff’s Note of Issue is annexed hereto as Exhibit C.
10. To date, Defendant has been unable to process Plaintiffs’ authorizations to obtain
medical records through its vendor, Compex. As Defendant did not have any medical records,
Defendant could not yet set up IMEs. Therefore, on November 17, 2021, Defendant submitted a
request to a different vendor, D&D Associates, to obtain medical records and set up IMEs for both
Plaintiffs. As IMEs are currently being scheduled, discovery is not complete, and Plaintiffs’ Note of
Issue was filed prematurely.
11. Plaintiffs’ Statement of Readiness provides that discovery is complete and that
that physical examinations were waived. Simply stated, Plaintiffs’ statement is false, despite the
fact that, pursuant to decisional authority, “the statement of readiness must state true facts.” Ortiz
2
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v. Valdescastilla, 98 A.D.2d 610, 469 N.Y.S.2d 347, 348 (1st Dept. 1983). A defect in the
Statement of Readiness is not cured by an order which permits the action to remain on the trial
calendar pending completion of discovery. Ortiz v. Valdescastilla, supra. See also, 48-48
Associates v. Solow, 97 A.D.2d 742, 469 N.Y.S.2d 11 (1st Dept. 1983). The Appellate Division,
Second Department has held that “[t]he purpose of this Department’s statement of readiness rule
(22 NYCRR 675.3), is to keep off the trial calendar those cases which are not ready for trial.”
Najjar v. National Kinney Corp., 89 A.D.2d 845, 453 N.Y.S.2d 27 (2d Dept. 1982), citing
Morrison v. Sam Snead Schools of Golf of N.Y. Inc, 13 A.D.2d 986, 216 N.Y.S.2d 397 (2d
Dept. 1961) and the Rules of the Chief Administrator of the Court, 22 N.Y.C.R.R. 3.5. If the
statement in the plaintiff’s Note of Issue that pretrial discovery is inaccurate, the Note of Issue
should be stricken. Adamson v. Airweld, Inc., 188 A.D.2d 575, 592 N.Y.S.2d 607 (2d Dept.
1992); Frierson v. Concourse Plaza Associates, 189 A.D.2d 609, 592 N.Y.S.2d 309 (1st Dept.
1993).
12. At no point did Defendant waive its right to conduct a physical examination of
Plaintiffs. Defendant is entitled to the requested discovery. As such, post deposition discovery is
incomplete, the filing of the Note of Issue was premature, and the matter is not ready for trial. The
discovery demanded are both material and necessary to proper defense of this action, accordingly,
Plaintiffs’ lack of cooperation has severely prejudiced the movant. It is respectfully submitted that
your affirmant’s office cannot proceed to trial without the completion of such discovery. Said
discovery is essential to a proper defense of this matter and shall cause no hardship to Plaintiffs.
13. Based on the foregoing, it is respectfully requested that this Honorable Court issue
an Order 1) vacating Plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that
discovery is not complete as Plaintiffs have not appeared for an Independent Medical Examination;
3
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2) compelling Plaintiffs to appear for an Independent Medical Examination; 3) or in the alternative,
precluding Plaintiffs from offering testimony or evidence at the time of trial; 4) extending
Defendant’s time to move for summary judgment to 120 days from the date all discovery is
completed, pursuant to CPLR 3212(a); and 5) for such other relief as to this Court may deem just
and proper.
DATED: Brooklyn, NY
November 24, 2021
IRA LEBOWITZ, ESQ.
4
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SELENA CASTILLO and DIENNA O. AFFIRMATION OF GOOD FAITH
MOHAMMED,
Plaintiffs, Index No. 500003/2021
-against-
LANCE M. SMITH,
Defendant.
---------------------------------------------------------------------------------------------------------------------X
IRA LEBOWITZ, ESQ., an attorney admitted to practice in the Courts of this
State, affirms under the penalty of perjury and pursuant to CPLR 2106 that the following facts
are true upon information and belief.
1. To date, Defendant has been unable to process Plaintiffs’ authorizations to
obtain medical records through its vendor, Compex. As Defendant did not
have any medical records, Defendant could not yet set up IMEs. Therefore, on
November 17, 2021, Defendant submitted a request to a different vendor,
D&D Associates, to obtain medical records and set up IMEs for both
Plaintiffs. As IMEs are currently being scheduled, discovery is not complete.
Plaintiff prematurely filed a Note of Issue on November 11, 2021.
2. Therefore, it has become necessary to make the within motion.
DATED: Brooklyn, NY
November 24, 2021
IRA LEBOWITZ, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SELENA CASTILLO and DIENNA O. Index No. 500003/2021
MOHAMMED,
CERTIFICATION PURSUANT TO
Plaintiffs, UNIFORM RULES 202.8-b (c)
-against-
LANCE M. SMITH,
Defendant.
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I, IRA LEBOWITZ, an attorney duly admitted to practice in the Courts of the State of New
York, hereby certifies that pursuant to 22 NYCRR 202.8-b the foregoing affirmation was
prepared on a word-processing system with word count and the undersigned has relied upon
same to prepare this certification.
WORD COUNT: The total number of words in the foregoing is 1581 inclusive of caption, and
signature block.
DATED: Brooklyn, NY
November 24, 2021
IRA LEBOWITZ, ESQ.
Castillo et al vs. Smith
Index No. 500003/2021
Our File No. 0577277189.1-
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EXHIBIT A
FILED: KINGS COUNTY CLERK 12/31/2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No:
-- -----------------------------------------------X Date Filed:
SELENA CASTILLO and DIENNA O. MOHAMMED,
Plaintiff, Plaintiffs designate
KINGS COUNTY
-against- as the place of trial
The basis of the venue is:
Plaintiffs residence(s)
SUMMONS
LANCE M. SMITH,
Defendant,
__ .____________________ -----------------------------X
To the above named defendant(s):
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a
copy of your answer, or, ifthe complaint is not served with this summons, to serve a notice of
Plaintiffs'
appearance on the Attorney within twenty days after the service of this summons,
exclusive of the day of service (or within thirty (30) days after the service is complete ifthis
summons is not personally delivered to you within the State of New York); and in case of your
failure to appear, judgment will be taken against you by default for the relief demanded in the
complaint set forth below.
Dated: Brooklyn, New York
December 31, 2020
Yours, etc.
LAW OFFI S OF MOSA P.C.
BYfWALE MOSA
Attorney for Plaintiffs
3rd
25 Bond Street, FlOOr
Brooklyn, New York 11201
(718) 243-0994
Defendant's address:
28 Richfield Street
Plainview, NY 11803
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X Index #:
SELENA CASTILLO and DIENNA O. MOHAMMED,
Plaintiffs,
-against- COMPLAINT
LANCE M. SMITH,
Defendant.
----------------------------------------X
Plaintiffs SELENA CASTILLO and DIENNA O. MOHAMMED, by their attorneys the LAW
OFFICES OF WALE MOSAKU, P.C., complaining of the defendant LANCE M. SMITH
herein, respectfully show to this court, and allege as follows:
1. Plaintiff SELENA CASTILLO is a Hispanic-American female of full age who
currently resides in the County of Kings, State of New York.
2. Plaintiff DIENNA O. MOHAMMED is an African-American female of full age who
currently resides in the County of Kings, State of New York.
3. That at all times mentioned, upon information and belief, defendant LANCE M.
SMITH was and stillis a resident of the town/city of Plainview, State of New York.
4. Each plaintiff has sustained serious injuries as defined in Section 5102 of the
loss"
Insurance Law of the State of New York and has sustained "economic greater
loss" loss"
than "basic economic as well as "non economic and has a right of
loss" loss"
recovery for said injury for "economic and "non economic pursuant to
Section 5102 of the Insurance Law of the State of New York.
AS AND FOR A CAUSE OF ACTION ON BEHALF OF EACH PLAINTIFF AGAINST
DEFENDANT
5. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1
through 4 inclusive, with the same force and effect as though more fully set forth at
length herein.
15t
6. That on the day of February, 2020, at approximately 06:00 p.m., plaintiff SELENA
CASTILLO owned, operated and controlled a vehicle bearing the New York State
registration number GYW7980 for the year of 2020.
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7. That on the l5t day of February, 2020, at approximately 06:00 p.m., the Southbound
Cross Island Expressway 1/10 of a mile north of Long Island Expressway, in Queens
County, State of New York, was and is a public roadway.
8. That on the 151day of February, 2020, at approximately 06:00 p.m., the plaintiff
DIENNA O. MOHAMMED was a passenger in the plaintiff SELENA CASTILLO's
vehicle bearing the New York State registration number GYW7980 for the year of
2020, while it was traveling on the Southbound Cross Island Expressway 1/10 of a
mile north of Long Island Expressway, in Queens County, State of New York.
9. That on the 15tday of February, 2020, at approximately 06:00 p.m., the defendant
LANCE M. SMITH owned, operated and controlled a vehicle bearing, upon
information and well founded belief, the New York State registration number
GRN6799 for the year of2020.
10. That on the 151 day of February, 2020, at approximately 06:00 p.m., the defendant
LANCE M. SMITH's vehicle bearing the New York State registration number
GRN6799 for the year of2020, while operated and controlled by defendant LANCE
M. SMITH, and traveling on the Southbound Cross Island Expressway 1/1 0 of a mile
north of Long Island Expressway, in Queens County, State of New York, was in an
accident and collision with the rear of the plaintiff SELENA CASTILLO's vehicle
bearing the New York State registration number GYW7980 for the year of 2020,
which at the time was operated by the plaintiff SELENA CASTILLO.
11. That by reason of the aforesaid accident/collision, each plaintiff was caused to sustain
severe and serious personal lnjuries as well as shock to her nervous system.
12. That the aforesaid collision was caused solely and wholly by reason of the
carelessness, recklessness and negligence of the defendant LANCE M. SMITH, and
without any negligence on the part of any plaintiff contributing thereto.
13. That the aforesaid collision was caused solely and wholly by reason of the
carelessness, recklessness and negligence of the defendant LANCE M. SMITH, in
that the defendant was traveling at an excessive rate of speed, failed to look; failed to
see; failed to maintaln proper control of the steering mechanism of his vehicle bearing
the New York State registration number GRN6799 for the year of 2020; falled to
maintain proper control over the braking mechanism of hls vehlcle bearlng the New
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York State registration number GRN6799 for the year of 2020; failed to recognize the
conduct, speed and movement of other vehicles, including but not limited to the
plaintiff SELENA CASTILLO's vehicle bearing the New York State registration
number GYW7980 for the year of 2020, along said roadway; failed to bring his
vehicle bearing the New York State registration number GRN6799 for the year of
2020 to a stop in time to avoid said collision with the rear of the plaintiff SELENA
CASTILLO's vehicle bearing the New York State registration number GYW7980 for
the year of 2020; failed to yield right of way to the plaintiff SELENA CASTILLO's
vehicle bearing the New York State registration number GYW7980 for the year of
2020; failed to give warning by horn or otherwise of the impending collision with the
rear of the plaintiff SELENA CASTILLO's vehicle bearing the New York State
registration number GYW7980 for the year of 2020; failed to provide for the safety
and well-being of each plaintiff; disobeyed a traffic control device; failed to adhere to
the rules of the road; failed to take steps to avoid the collision with the rear of the
plaintiff SELENA CASTILLO's vehicle bearing the New York State registration
number GYW7980 for the year of 2020; operated his vehicle bearing the New York
State registration number GRN6799 for the year of 2020 in an unsafe and negligent
manner; in failing to take reasonable and necessary evasive actions so as to avoid the
collision and accident with the rear of the plaintiff SELENA CASTILLO's vehicle
bearing the New York State registration number GYW7980 for the year of 2020; and
that the defendant LANCE M. SMITH was otherwise careless, reckless and negligent
and caused said collision.
14. That defendant LANCE M. SMITH was reckless, careless and otherwise negligent in
the ownership, operation, management, maintenance, supervision and control of the
vehicle bearing the New York State registration number GRN6799 for the year of
2020; by neglecting his non-delegable duty to maintain said vehicle in a safe manner,
including but not limited to timely inspection of said vehicle's brakes, tires,wheels,
and other safety mechanisms; in failing to adhere to any and all relevant local, city,
state and federal rules, regulations, codes and ordnances.
15. That by reason of the said collision, each plaintiff has suffered bodily injuries,
become sick, sore, lame and disabled, and has remained sick, sore, lame and disabled
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since the aforesaid accident; has suffered great pain, agony and mental anguish and is
informed and verily believes that she will continue to suffer for a long time to come
and that said injuries are permanent; has suffered economic loss inasmuch as she was
forced to expend sums of money on medical treatment; that she was deprived of her
pursuits and interests and verily believes that in the future she will continue to be
deprived of such pursuits; and that said injuries are permanent.
defendants'
16. That by reason of the respective negligence, carelessness and/or
recklessness, each plaintiff has sustained damages which exceed the jurisdictional
limits of all lower courts of the State of New York, which would otherwise have
jurisdiction over this action.
17. This action, upon information and belief, falls within one or more of the exceptions of
CPLR 1602.
WHEREFORE, each plaintiff demands judgment against the defendant, in a sum of money
which exceeds the jurisdiction of all lower together with pre-judgment and post-
Courts,
judgment interest, costs, attorney's fees and disbursements of this action.
Dated: Brooklyn, New York
December 31, 2020
Yours, etc.
LAW OFFIC OF AL AKU. .C.
BY: WA E OSAI
Attorney for Plaintiffs
3rd
25 Bond Street, FlOOr
Brooklyn, New York 11201
(718) 243-0994
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------- ------- ----------------------X Index #:
SELENA CASTILLO and DIENNA O. MORAMMED,
Plaintiffs,
-against-
ATTORNEY CERTIFICATION
PURSUANT TO 22 NYCRR Part
130-1.1(c)
LANCE M. SMITH,
Defendant.
--------------- -------------------------------------X
The undersigned attorney does hereby certify:
That I am the attorney for the plaintiffs and duly admitted to practice law before the Courts of the
State of New York. I do hereby provide this signed certification pursuant to 22 NYCRR Part
130-1.1 (c), that the papers that I have served, filed or submitted to the Court in this action are
not frivolous.
Dated: Brooklyn, New York
December 31, 2020
LAW OFFICE F LE AKU, . .
BY: Wale Mo aku
Attorney(s) for Plaintiffs
3rd
25 Bond Street, FlOOr
Brooklyn, New York 11201
(718) 243-0994
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------------------------------------------------------X
SELENA CASTILLO and DIENNA O.
MOHAMMED, ANSWER WITH COUNTERCLAIM
Plaintiffs,
Index No. 500003/2021
-against-
LANCE M. SMITH,
Defendant.
---------------------------------------------------------------------------------------------------------------------X
The Defendant(s), LANCE M. SMITH, by the Law Offices of Karen L.
Lawrence, as and for his/her/their Answer to the Complaint herein, alleges as follows:
FIRST: Denies/deny any knowledge or information sufficient to form a belief as
to the allegation(s) contained in paragraph(s) designated as “1, 2, 3, 7, 8, 9, 10, and 17” of the
Complaint herein.
SECOND: Upon information and belief, denies/deny each and every allegation
contained in paragraphs designated as “4, 11, 12, 13, 14, 15, and 16” of the Complaint herein.
THIRD: As to paragraphs designated as “5” answering Defendant(s) repeats,
reiterates and realleges each and every denial heretofore had herein.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
THIS (THESE) ANSWERING DEFENDANT(S) ALLEGE(S):
Any damages sustained by the Plaintiff(s) were caused by the culpable conduct of
the Plaintiff(s), including contributory negligence or assumption of risk, and not by the culpable
conduct or negligence of this(these) answering Defendant(s).
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S):
Upon information and belief, Plaintiff(s) failed to use or misused seat belts, and
thereby contributed to the alleged injuries.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S):
That the Court lacks jurisdiction over the person of the Defendant(s) LANCE M.
SMITH by reason of the non-service of the Summons upon the Defendant(s) LANCE M.
SMITH, either personally or by substituted service.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S):
This(these) answering Defendant(s) pursuant to Counterclaim is entitled to
diminution of damages by way of contribution, apportionment and/or indemnity.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S):
That to the extent Plaintiff recovers any damages for the cost of medical care,
dental care, custodial care or rehabilitation services, loss of earnings and/or economic loss, the
amount of the award shall be reduced by the sum total of all collateral reimbursements, from
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FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------------------------------------------------------X SELENA CASTILLO and DIENNA O. NOTICE OF MOTION TO VACATE MOHAMMED, CERTIFICATE OF READINESS Plaintiffs, IAS Motion Support Part -against- Return Date: January 4, 2022 LANCE M. SMITH, Index No. 500003/2021 Defendant. ---------------------------------------------------------------------------------------------------------------------X S I R: PLEASE TAKE NOTICE, that upon the annexed affirmation of IRA LEBOWITZ, ESQ., dated November 24, 2021, the certificate of readiness filed on behalf of the Plaintiff(s), and upon the proceedings heretofore had herein, the undersigned will move this Court at IAS Part Motion Support, to be held at the Courthouse located at 360 Adams Street, Brooklyn, NY 11201 on January 4, 2022 at 9:30 o'clock in the forenoon of that day or as soon thereafter as Counsel may be heard, for an Order 1) vacating Plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that discovery is not complete as Plaintiffs have not appeared for an Independent Medical Examination; 2) compelling Plaintiffs to appear for an Independent Medical Examination; 3) or in the alternative, precluding Plaintiffs from offering testimony or evidence at the time of trial;4) extending Defendant’s time to move for summary judgment to 120 days from the date all discovery is completed, pursuant to CPLR 3212(a); and 5) for such other relief as to this Court may deem just and proper. FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 The above-entitled action is for personal injury. Attorney in charge of this case is the Law Offices of Karen L. Lawrence, 1225 Franklin Avenue, Ste 100, Garden City, NY 11530, (646) 912-0316 for the moving party. PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, must be served at least seven days prior to the return date of this motion. DATED: Brooklyn, NY November 24, 2021 Yours, etc., By: Law Offices of Karen L. Lawrence Ira Lebowitz, Esq. Attorney for Defendant LANCE M. SMITH 1225 Franklin Ave, Ste 100 Garden City, NY 11530 Telephone: (646) 912-0316 Fax: (866) 655-1125 Our File No. 0577277189.1- TO: LAW OFFICES OF WALE MOSAKU. P.C. Attorneys for Plaintiff(s) 25 Bond St 3rd Fl Brooklyn, NY 11201 (718) 243-0994 2 FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------------------------------------------------------X SELENA CASTILLO and DIENNA O. MOHAMMED, AFFIRMATION IN SUPPORT Plaintiffs, Index No. 500003/2021 -against- LANCE M. SMITH, Defendant. ---------------------------------------------------------------------------------------------------------------------X IRA LEBOWITZ, ESQ., an attorney at law associated with the Law Offices of Karen L. Lawrence, attorney for the Defendant(s), LANCE M. SMITH, affirms under penalty of perjury the truth of the following: 1. I am associated with the LAW OFFICES OF KAREN L. LAWRENCE, attorney for the Defendant(s), LANCE M. SMITH, and as such I am fully familiar with all the facts and circumstances hereinafter set forth based upon the file maintained at this office. 2. This affirmation is submitted in support of the present motion for an Order 1) vacating Plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that discovery is not complete as Plaintiffs have not appeared for an Independent Medical Examination; 2) compelling Plaintiffs to appear for an Independent Medical Examination; 3) or in the alternative, precluding Plaintiffs from offering testimony or evidence at the time of trial; 4) extending Defendant’s time to move for summary judgment to 120 days from the date all discovery is completed, pursuant to CPLR 3212(a); and 5) for such other relief as to this Court may deem just and proper. 3. This is an action for personal injuries allegedly sustained as the result of an accident occurring on or about February 1, 2020. FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 4. Plaintiffs commenced this action by the filing of a Summons and Complaint in Supreme Court, Kings County. Issue was joined by the filing of Defendant’s Answer. Pleadings are annexed hereto collectively as Exhibit A. 5. On June 2, 2021, a Preliminary Conference was held. The Court issued an Order directing Plaintiffs to provide all authorizations by June 30, 2021, all parties to appear for an EBT prior to the Compliance Conference scheduled for November 29, 2021, Plaintiffs to appear for an Independent Medical Examination (“IME”) within 45 days of Plaintiffs’ EBTs, and Plaintiffs to file a Note of Issue by February 9, 2022. A copy of the Preliminary Conference Order is annexed hereto as Exhibit B. 6. On August 3, 2021, Plaintiff CASTILLO’s EBT was held. 7. On August 10, 2021, Plaintiff MOHAMMED’s EBT was held. 8. On August 11, 2021, Defendant SMITH’s EBT was held. 9. On November 11, 2021, Plaintiffs prematurely filed a Note of Issue despite not yet appearing for an IME. A copy of Plaintiff’s Note of Issue is annexed hereto as Exhibit C. 10. To date, Defendant has been unable to process Plaintiffs’ authorizations to obtain medical records through its vendor, Compex. As Defendant did not have any medical records, Defendant could not yet set up IMEs. Therefore, on November 17, 2021, Defendant submitted a request to a different vendor, D&D Associates, to obtain medical records and set up IMEs for both Plaintiffs. As IMEs are currently being scheduled, discovery is not complete, and Plaintiffs’ Note of Issue was filed prematurely. 11. Plaintiffs’ Statement of Readiness provides that discovery is complete and that that physical examinations were waived. Simply stated, Plaintiffs’ statement is false, despite the fact that, pursuant to decisional authority, “the statement of readiness must state true facts.” Ortiz 2 FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 v. Valdescastilla, 98 A.D.2d 610, 469 N.Y.S.2d 347, 348 (1st Dept. 1983). A defect in the Statement of Readiness is not cured by an order which permits the action to remain on the trial calendar pending completion of discovery. Ortiz v. Valdescastilla, supra. See also, 48-48 Associates v. Solow, 97 A.D.2d 742, 469 N.Y.S.2d 11 (1st Dept. 1983). The Appellate Division, Second Department has held that “[t]he purpose of this Department’s statement of readiness rule (22 NYCRR 675.3), is to keep off the trial calendar those cases which are not ready for trial.” Najjar v. National Kinney Corp., 89 A.D.2d 845, 453 N.Y.S.2d 27 (2d Dept. 1982), citing Morrison v. Sam Snead Schools of Golf of N.Y. Inc, 13 A.D.2d 986, 216 N.Y.S.2d 397 (2d Dept. 1961) and the Rules of the Chief Administrator of the Court, 22 N.Y.C.R.R. 3.5. If the statement in the plaintiff’s Note of Issue that pretrial discovery is inaccurate, the Note of Issue should be stricken. Adamson v. Airweld, Inc., 188 A.D.2d 575, 592 N.Y.S.2d 607 (2d Dept. 1992); Frierson v. Concourse Plaza Associates, 189 A.D.2d 609, 592 N.Y.S.2d 309 (1st Dept. 1993). 12. At no point did Defendant waive its right to conduct a physical examination of Plaintiffs. Defendant is entitled to the requested discovery. As such, post deposition discovery is incomplete, the filing of the Note of Issue was premature, and the matter is not ready for trial. The discovery demanded are both material and necessary to proper defense of this action, accordingly, Plaintiffs’ lack of cooperation has severely prejudiced the movant. It is respectfully submitted that your affirmant’s office cannot proceed to trial without the completion of such discovery. Said discovery is essential to a proper defense of this matter and shall cause no hardship to Plaintiffs. 13. Based on the foregoing, it is respectfully requested that this Honorable Court issue an Order 1) vacating Plaintiffs’ Note of Issue and Certificate of Readiness on the grounds that discovery is not complete as Plaintiffs have not appeared for an Independent Medical Examination; 3 FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 2) compelling Plaintiffs to appear for an Independent Medical Examination; 3) or in the alternative, precluding Plaintiffs from offering testimony or evidence at the time of trial; 4) extending Defendant’s time to move for summary judgment to 120 days from the date all discovery is completed, pursuant to CPLR 3212(a); and 5) for such other relief as to this Court may deem just and proper. DATED: Brooklyn, NY November 24, 2021 IRA LEBOWITZ, ESQ. 4 FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------------------------------------------------------X SELENA CASTILLO and DIENNA O. AFFIRMATION OF GOOD FAITH MOHAMMED, Plaintiffs, Index No. 500003/2021 -against- LANCE M. SMITH, Defendant. ---------------------------------------------------------------------------------------------------------------------X IRA LEBOWITZ, ESQ., an attorney admitted to practice in the Courts of this State, affirms under the penalty of perjury and pursuant to CPLR 2106 that the following facts are true upon information and belief. 1. To date, Defendant has been unable to process Plaintiffs’ authorizations to obtain medical records through its vendor, Compex. As Defendant did not have any medical records, Defendant could not yet set up IMEs. Therefore, on November 17, 2021, Defendant submitted a request to a different vendor, D&D Associates, to obtain medical records and set up IMEs for both Plaintiffs. As IMEs are currently being scheduled, discovery is not complete. Plaintiff prematurely filed a Note of Issue on November 11, 2021. 2. Therefore, it has become necessary to make the within motion. DATED: Brooklyn, NY November 24, 2021 IRA LEBOWITZ, ESQ. FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------------------------------------------------------X SELENA CASTILLO and DIENNA O. Index No. 500003/2021 MOHAMMED, CERTIFICATION PURSUANT TO Plaintiffs, UNIFORM RULES 202.8-b (c) -against- LANCE M. SMITH, Defendant. ---------------------------------------------------------------------------------------------------------------------X I, IRA LEBOWITZ, an attorney duly admitted to practice in the Courts of the State of New York, hereby certifies that pursuant to 22 NYCRR 202.8-b the foregoing affirmation was prepared on a word-processing system with word count and the undersigned has relied upon same to prepare this certification. WORD COUNT: The total number of words in the foregoing is 1581 inclusive of caption, and signature block. DATED: Brooklyn, NY November 24, 2021 IRA LEBOWITZ, ESQ. Castillo et al vs. Smith Index No. 500003/2021 Our File No. 0577277189.1- FILED: KINGS COUNTY CLERK 10/05/2022 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/05/2022 EXHIBIT A FILED: KINGS COUNTY CLERK 12/31/2020 10/05/2022 06:12 09:08 PM AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 1 41 RECEIVED NYSCEF: 12/31/2020 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No: -- -----------------------------------------------X Date Filed: SELENA CASTILLO and DIENNA O. MOHAMMED, Plaintiff, Plaintiffs designate KINGS COUNTY -against- as the place of trial The basis of the venue is: Plaintiffs residence(s) SUMMONS LANCE M. SMITH, Defendant, __ .____________________ -----------------------------X To the above named defendant(s): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, ifthe complaint is not served with this summons, to serve a notice of Plaintiffs' appearance on the Attorney within twenty days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete ifthis summons is not personally delivered to you within the State of New York); and in case of your failure to appear, judgment will be taken against you by default for the relief demanded in the complaint set forth below. Dated: Brooklyn, New York December 31, 2020 Yours, etc. LAW OFFI S OF MOSA P.C. BYfWALE MOSA Attorney for Plaintiffs 3rd 25 Bond Street, FlOOr Brooklyn, New York 11201 (718) 243-0994 Defendant's address: 28 Richfield Street Plainview, NY 11803 1 of 7 FILED: KINGS COUNTY CLERK 12/31/2020 10/05/2022 06:12 09:08 PM AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 1 41 RECEIVED NYSCEF: 12/31/2020 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X Index #: SELENA CASTILLO and DIENNA O. MOHAMMED, Plaintiffs, -against- COMPLAINT LANCE M. SMITH, Defendant. ----------------------------------------X Plaintiffs SELENA CASTILLO and DIENNA O. MOHAMMED, by their attorneys the LAW OFFICES OF WALE MOSAKU, P.C., complaining of the defendant LANCE M. SMITH herein, respectfully show to this court, and allege as follows: 1. Plaintiff SELENA CASTILLO is a Hispanic-American female of full age who currently resides in the County of Kings, State of New York. 2. Plaintiff DIENNA O. MOHAMMED is an African-American female of full age who currently resides in the County of Kings, State of New York. 3. That at all times mentioned, upon information and belief, defendant LANCE M. SMITH was and stillis a resident of the town/city of Plainview, State of New York. 4. Each plaintiff has sustained serious injuries as defined in Section 5102 of the loss" Insurance Law of the State of New York and has sustained "economic greater loss" loss" than "basic economic as well as "non economic and has a right of loss" loss" recovery for said injury for "economic and "non economic pursuant to Section 5102 of the Insurance Law of the State of New York. AS AND FOR A CAUSE OF ACTION ON BEHALF OF EACH PLAINTIFF AGAINST DEFENDANT 5. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 4 inclusive, with the same force and effect as though more fully set forth at length herein. 15t 6. That on the day of February, 2020, at approximately 06:00 p.m., plaintiff SELENA CASTILLO owned, operated and controlled a vehicle bearing the New York State registration number GYW7980 for the year of 2020. 2 of 7 FILED: KINGS COUNTY CLERK 12/31/2020 10/05/2022 06:12 09:08 PM AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 1 41 RECEIVED NYSCEF: 12/31/2020 10/05/2022 7. That on the l5t day of February, 2020, at approximately 06:00 p.m., the Southbound Cross Island Expressway 1/10 of a mile north of Long Island Expressway, in Queens County, State of New York, was and is a public roadway. 8. That on the 151day of February, 2020, at approximately 06:00 p.m., the plaintiff DIENNA O. MOHAMMED was a passenger in the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020, while it was traveling on the Southbound Cross Island Expressway 1/10 of a mile north of Long Island Expressway, in Queens County, State of New York. 9. That on the 15tday of February, 2020, at approximately 06:00 p.m., the defendant LANCE M. SMITH owned, operated and controlled a vehicle bearing, upon information and well founded belief, the New York State registration number GRN6799 for the year of2020. 10. That on the 151 day of February, 2020, at approximately 06:00 p.m., the defendant LANCE M. SMITH's vehicle bearing the New York State registration number GRN6799 for the year of2020, while operated and controlled by defendant LANCE M. SMITH, and traveling on the Southbound Cross Island Expressway 1/1 0 of a mile north of Long Island Expressway, in Queens County, State of New York, was in an accident and collision with the rear of the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020, which at the time was operated by the plaintiff SELENA CASTILLO. 11. That by reason of the aforesaid accident/collision, each plaintiff was caused to sustain severe and serious personal lnjuries as well as shock to her nervous system. 12. That the aforesaid collision was caused solely and wholly by reason of the carelessness, recklessness and negligence of the defendant LANCE M. SMITH, and without any negligence on the part of any plaintiff contributing thereto. 13. That the aforesaid collision was caused solely and wholly by reason of the carelessness, recklessness and negligence of the defendant LANCE M. SMITH, in that the defendant was traveling at an excessive rate of speed, failed to look; failed to see; failed to maintaln proper control of the steering mechanism of his vehicle bearing the New York State registration number GRN6799 for the year of 2020; falled to maintain proper control over the braking mechanism of hls vehlcle bearlng the New 3 of 7 FILED: KINGS COUNTY CLERK 12/31/2020 10/05/2022 06:12 09:08 PM AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 1 41 RECEIVED NYSCEF: 12/31/2020 10/05/2022 York State registration number GRN6799 for the year of 2020; failed to recognize the conduct, speed and movement of other vehicles, including but not limited to the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020, along said roadway; failed to bring his vehicle bearing the New York State registration number GRN6799 for the year of 2020 to a stop in time to avoid said collision with the rear of the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020; failed to yield right of way to the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020; failed to give warning by horn or otherwise of the impending collision with the rear of the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020; failed to provide for the safety and well-being of each plaintiff; disobeyed a traffic control device; failed to adhere to the rules of the road; failed to take steps to avoid the collision with the rear of the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020; operated his vehicle bearing the New York State registration number GRN6799 for the year of 2020 in an unsafe and negligent manner; in failing to take reasonable and necessary evasive actions so as to avoid the collision and accident with the rear of the plaintiff SELENA CASTILLO's vehicle bearing the New York State registration number GYW7980 for the year of 2020; and that the defendant LANCE M. SMITH was otherwise careless, reckless and negligent and caused said collision. 14. That defendant LANCE M. SMITH was reckless, careless and otherwise negligent in the ownership, operation, management, maintenance, supervision and control of the vehicle bearing the New York State registration number GRN6799 for the year of 2020; by neglecting his non-delegable duty to maintain said vehicle in a safe manner, including but not limited to timely inspection of said vehicle's brakes, tires,wheels, and other safety mechanisms; in failing to adhere to any and all relevant local, city, state and federal rules, regulations, codes and ordnances. 15. That by reason of the said collision, each plaintiff has suffered bodily injuries, become sick, sore, lame and disabled, and has remained sick, sore, lame and disabled 4 of 7 FILED: KINGS COUNTY CLERK 12/31/2020 10/05/2022 06:12 09:08 PM AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 1 41 RECEIVED NYSCEF: 12/31/2020 10/05/2022 since the aforesaid accident; has suffered great pain, agony and mental anguish and is informed and verily believes that she will continue to suffer for a long time to come and that said injuries are permanent; has suffered economic loss inasmuch as she was forced to expend sums of money on medical treatment; that she was deprived of her pursuits and interests and verily believes that in the future she will continue to be deprived of such pursuits; and that said injuries are permanent. defendants' 16. That by reason of the respective negligence, carelessness and/or recklessness, each plaintiff has sustained damages which exceed the jurisdictional limits of all lower courts of the State of New York, which would otherwise have jurisdiction over this action. 17. This action, upon information and belief, falls within one or more of the exceptions of CPLR 1602. WHEREFORE, each plaintiff demands judgment against the defendant, in a sum of money which exceeds the jurisdiction of all lower together with pre-judgment and post- Courts, judgment interest, costs, attorney's fees and disbursements of this action. Dated: Brooklyn, New York December 31, 2020 Yours, etc. LAW OFFIC OF AL AKU. .C. BY: WA E OSAI Attorney for Plaintiffs 3rd 25 Bond Street, FlOOr Brooklyn, New York 11201 (718) 243-0994 5 of 7 FILED: KINGS COUNTY CLERK 12/31/2020 10/05/2022 06:12 09:08 PM AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 1 41 RECEIVED NYSCEF: 12/31/2020 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------- ------- ----------------------X Index #: SELENA CASTILLO and DIENNA O. MORAMMED, Plaintiffs, -against- ATTORNEY CERTIFICATION PURSUANT TO 22 NYCRR Part 130-1.1(c) LANCE M. SMITH, Defendant. --------------- -------------------------------------X The undersigned attorney does hereby certify: That I am the attorney for the plaintiffs and duly admitted to practice law before the Courts of the State of New York. I do hereby provide this signed certification pursuant to 22 NYCRR Part 130-1.1 (c), that the papers that I have served, filed or submitted to the Court in this action are not frivolous. Dated: Brooklyn, New York December 31, 2020 LAW OFFICE F LE AKU, . . BY: Wale Mo aku Attorney(s) for Plaintiffs 3rd 25 Bond Street, FlOOr Brooklyn, New York 11201 (718) 243-0994 6 of 7 FILED: KINGS COUNTY CLERK 04/07/2021 10/05/2022 10:00 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 3 41 RECEIVED NYSCEF: 04/07/2021 10/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------------------------------------------------------X SELENA CASTILLO and DIENNA O. MOHAMMED, ANSWER WITH COUNTERCLAIM Plaintiffs, Index No. 500003/2021 -against- LANCE M. SMITH, Defendant. ---------------------------------------------------------------------------------------------------------------------X The Defendant(s), LANCE M. SMITH, by the Law Offices of Karen L. Lawrence, as and for his/her/their Answer to the Complaint herein, alleges as follows: FIRST: Denies/deny any knowledge or information sufficient to form a belief as to the allegation(s) contained in paragraph(s) designated as “1, 2, 3, 7, 8, 9, 10, and 17” of the Complaint herein. SECOND: Upon information and belief, denies/deny each and every allegation contained in paragraphs designated as “4, 11, 12, 13, 14, 15, and 16” of the Complaint herein. THIRD: As to paragraphs designated as “5” answering Defendant(s) repeats, reiterates and realleges each and every denial heretofore had herein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIS (THESE) ANSWERING DEFENDANT(S) ALLEGE(S): Any damages sustained by the Plaintiff(s) were caused by the culpable conduct of the Plaintiff(s), including contributory negligence or assumption of risk, and not by the culpable conduct or negligence of this(these) answering Defendant(s). 1 of 33 FILED: KINGS COUNTY CLERK 04/07/2021 10/05/2022 10:00 09:08 AM INDEX NO. 500003/2021 NYSCEF DOC. NO. 3 41 RECEIVED NYSCEF: 04/07/2021 10/05/2022 AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S): Upon information and belief, Plaintiff(s) failed to use or misused seat belts, and thereby contributed to the alleged injuries. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S): That the Court lacks jurisdiction over the person of the Defendant(s) LANCE M. SMITH by reason of the non-service of the Summons upon the Defendant(s) LANCE M. SMITH, either personally or by substituted service. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S): This(these) answering Defendant(s) pursuant to Counterclaim is entitled to diminution of damages by way of contribution, apportionment and/or indemnity. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIS(THESE) ANSWERING DEFENDANT(S) ALLEGE(S): That to the extent Plaintiff recovers any damages for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or economic loss, the amount of the award shall be reduced by the sum total of all collateral reimbursements, from