Preview
FILED: KINGS COUNTY CLERK 01/29/2021 04:28 PM INDEX NO. 508009/2013
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 01/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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NATHANIEL GRAYTON, an Infant, by his mother Index # 508009/2013
and natural guardian, SHERRI SKIDMORE,
Plaintiff, AFFIRMATION
IN GOOD FAITH
- against –
VASUDHA VISWANATHAN, M.D., CALIXTO
CAZANO, M.D., RAJENDRA BHAYANI, M.D.,
FERNANDO GINEBRA, M.D., SONY LOSEAU, M.D.
and WYCKOFF HEIGHTS MEDICAL CENTER,
Defendants.
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COUNSELORS:
JACQUELYN A. DAINOW, ESQ., an attorney duly licensed to practice law before the
Courts of the State of New York, upon information and belief, affirms the following to be true
under penalties of perjury:
1. I am an associate at the law firm of SCHIAVETTI, CORGAN, DiEDWARDS,
WEINBERG & NICHOLSON, LLP, the attorneys for defendants CALIXTO CAZANO, M.D., and
FERNANDO GINEBRA, M.D., and, as such, I am fully familiar with all the facts and
circumstances as hereinafter set forth.
2. This affirmation is executed upon information and belief, the sources of which are
the files and records maintained by the law offices of SCHIAVETTI, CORGAN, DiEDWARDS,
WEINBERG & NICHOLSON, LLP, pertaining to this matter.
3. I submit this affirmation pursuant to 22 NYCRR §202.7(a)(2), which requires
counsel to make a good faith effort to resolve discovery disputes before resorting to motion
practice.
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FILED: KINGS COUNTY CLERK 01/29/2021 04:28 PM INDEX NO. 508009/2013
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 01/29/2021
4. This affirmation is respectfully submitted in support of Defendants’ Motion to
Dismiss, or in the alternative, pursuant to CPLR §3124, compelling plaintiff to provide all
outstanding discovery and also to conduct the deposition of Dr. Ginebra within a thirty (30) day
period, or, if plaintiff fails to abide by a self-executing Order mandating same, precluding plaintiff
from giving and offering any testimony or evidence concerning plaintiff’s claims as to the
outstanding discovery and also from deposing Dr. Ginebra.
5. No previous application for the relief requested herein has been made.
6. Your affirmant hereby certifies that good faith efforts were made to obtain
outstanding discovery in this matter, namely HIPAA-compliant authorizations to receive updated
medical, school, and collateral source records for the infant-plaintiff, in accordance with the
January 31, 2020 Court Order. Such good faith efforts included correspondence dated July 14,
2020, August 21, 2020, October 2, 2020, and November 30, 2020. Notwithstanding these efforts,
however, no such discovery has been provided to date.
7. Your affirmant also certifies that numerous phone calls were placed to plaintiff over
this past year in a good faith attempt to try to schedule Dr. Ginebra’s deposition, in following with
the January 31, 2020 Order, but to no avail. As per said Order, Dr. Ginebra’s deposition was to
be held on or before April 30, 2020. In failing to respond to this office’s multiple calls to schedule
said deposition and abide by Court directives, plaintiff has failed to move this case forward,
thereby evidencing bad faith and willful behavior.
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FILED: KINGS COUNTY CLERK 01/29/2021 04:28 PM INDEX NO. 508009/2013
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 01/29/2021
WHEREEFORE, it is respectfully requested that this Court issue an order granting
the relief requested in the motion submitted on behalf of Defendants, together with such other and
further relief as this Court deems just and proper.
Dated: New York, New York
January 29, 2021
_/s/Jacquelyn Dainow
JACQUELYN A. DAINOW
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Preview
FILED: KINGS COUNTY CLERK 01/29/2021 04:28 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 01/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X NATHANIEL GRAYTON, an Infant, by his mother Index # 508009/2013 and natural guardian, SHERRI SKIDMORE, Plaintiff, AFFIRMATION IN GOOD FAITH - against – VASUDHA VISWANATHAN, M.D., CALIXTO CAZANO, M.D., RAJENDRA BHAYANI, M.D., FERNANDO GINEBRA, M.D., SONY LOSEAU, M.D. and WYCKOFF HEIGHTS MEDICAL CENTER, Defendants. ---------------------------------------------------------------------X COUNSELORS: JACQUELYN A. DAINOW, ESQ., an attorney duly licensed to practice law before the Courts of the State of New York, upon information and belief, affirms the following to be true under penalties of perjury: 1. I am an associate at the law firm of SCHIAVETTI, CORGAN, DiEDWARDS, WEINBERG & NICHOLSON, LLP, the attorneys for defendants CALIXTO CAZANO, M.D., and FERNANDO GINEBRA, M.D., and, as such, I am fully familiar with all the facts and circumstances as hereinafter set forth. 2. This affirmation is executed upon information and belief, the sources of which are the files and records maintained by the law offices of SCHIAVETTI, CORGAN, DiEDWARDS, WEINBERG & NICHOLSON, LLP, pertaining to this matter. 3. I submit this affirmation pursuant to 22 NYCRR §202.7(a)(2), which requires counsel to make a good faith effort to resolve discovery disputes before resorting to motion practice. 1 of 3 FILED: KINGS COUNTY CLERK 01/29/2021 04:28 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 01/29/2021 4. This affirmation is respectfully submitted in support of Defendants’ Motion to Dismiss, or in the alternative, pursuant to CPLR §3124, compelling plaintiff to provide all outstanding discovery and also to conduct the deposition of Dr. Ginebra within a thirty (30) day period, or, if plaintiff fails to abide by a self-executing Order mandating same, precluding plaintiff from giving and offering any testimony or evidence concerning plaintiff’s claims as to the outstanding discovery and also from deposing Dr. Ginebra. 5. No previous application for the relief requested herein has been made. 6. Your affirmant hereby certifies that good faith efforts were made to obtain outstanding discovery in this matter, namely HIPAA-compliant authorizations to receive updated medical, school, and collateral source records for the infant-plaintiff, in accordance with the January 31, 2020 Court Order. Such good faith efforts included correspondence dated July 14, 2020, August 21, 2020, October 2, 2020, and November 30, 2020. Notwithstanding these efforts, however, no such discovery has been provided to date. 7. Your affirmant also certifies that numerous phone calls were placed to plaintiff over this past year in a good faith attempt to try to schedule Dr. Ginebra’s deposition, in following with the January 31, 2020 Order, but to no avail. As per said Order, Dr. Ginebra’s deposition was to be held on or before April 30, 2020. In failing to respond to this office’s multiple calls to schedule said deposition and abide by Court directives, plaintiff has failed to move this case forward, thereby evidencing bad faith and willful behavior. 2 of 3 FILED: KINGS COUNTY CLERK 01/29/2021 04:28 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 01/29/2021 WHEREEFORE, it is respectfully requested that this Court issue an order granting the relief requested in the motion submitted on behalf of Defendants, together with such other and further relief as this Court deems just and proper. Dated: New York, New York January 29, 2021 _/s/Jacquelyn Dainow JACQUELYN A. DAINOW 3 of 3