Motion-Secondary: Thomas Kausner, Cheryl Kausner v. Buffalo Spine Surgery, Pllc, Andrew Cappuccino M.D., Eric Dean Rpa-C, Harnath B. Clerk, M.D., P.C., Harnath B. Clerk M.D., Eastern Niagara Hospital, Inc., Robert E. Lutnick M.D., Eastern Niagara Radiology And Nuclear Medicine Associates Pc

• 
• 
• 
• 
• 
• 

						
                                
Preview
                                STATE OF NEW YORK
                  SUPREME COURT                :   NIAGARA COUNTY
                  ________________________________________

                  THOMAS and CHERYL KAUSNER, Individually
                  and as Husband and Wife
                                                                                                   Order
                                                      Plaintiffs

                  v.

                  BUFFALO SPINE SURGERY, PLLC,
                  ANDREW CAPPUCCINO, M.D.,
                  ERIC DEAN, RPA-C,
                  HARNATH B. CLERK, M.D., P.C.,
                  HARNATH B. CLERK, M.D.,
                  EASTERN NIAGARA HOSPITAL, INC.,
                  ROBERT E. LUTNICK, M.D., and
                  EASTERN NIAGARA RADIOLOGY AND
                        NUCLEAR MEDICINE ASSOCIATES, P.C.                                          Index No. E159518/2016

                                                      Defendants
                  ________________________________________


                           Upon plaintiffs’ Notice of Motion to strike the Answers of defendants Buffalo

                  Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric Dean, RPA-C, and the

                  Affidavit of Brian P. Fitzgerald, Esq., dated December 2, 2020, with annexed exhibits,

                  and upon the Opposing Affidavit of Brian J. Weidner, Esq., dated December 8, 2020, and

                  upon the Reply Affidavit of Brian P. Fitzgerald, Esq., dated December 9, 2020; and

                           The Court having conducted oral argument by video conference via Microsoft

                  Teams on December 10, 2020, and upon the appearances of Brian P. Fitzgerald, Esq. for

                  the plaintiffs, Brian J. Weidner, Esq. for the defendants Buffalo Spine Surgery, PLLC,

                                                                            1
                  Andrew Cappuccino, M.D. and Eric Dean, RPA-C, Caitlin O’Neil, Esq. for the

                  defendants Harnath B. Clerk, M.D., P.C. and Harnath B. Clerk, M.D., and Joseph V.

                  McCarthy and J. Mark Gruber, Esq. for the defendants Eastern Niagara Hospital, Inc.,

                  Robert E. Lutnick, M.D. and Eastern Niagara Radiology and Nuclear Medicine

                  Associates, P.C., and the Court having heard argument from Messrs. Fitzgerald and

                  Weidner, and after due deliberation, it is hereby

                           ORDERED that the defendants, Andrew Cappuccino, M.D., Eric Dean, RPA-C

                  and Buffalo Spine Surgery, PLLC, shall produce the “N” number for Dr. Cappuccino’s

                  private plane before 5:00 p.m. on December 11, 2020 or plaintiffs’ Motion is granted and

                  defendants’ Answer is stricken; and it is hereby further

                           ORDERED that the defendants, Andrew Cappuccino, M.D., Eric Dean, RPA-C

                  and Buffalo Spine Surgery, PLLC, shall respond and produce the information sought,

                  including but not limited to any documentation as requested in plaintiffs’ Fourth, Fifth,

                  Sixth and Seventh Notices to Produce within 30 days of December 10, 2020 or

                  defendants’ Answer shall be stricken; and it is hereby further

                           ORDERED that the defendants, Andrew Cappuccino, M.D., Eric Dean, RPA-C

                  and Buffalo Spine Surgery, PLLC, shall produce the telephone records as this Court

                  ordered to be produced at ordering paragraph 3 of this Court’s Order of October 7, 2020,

                  within 30 days of December 10, 2020 or defendants Answer shall be stricken; and it is

                  hereby further


                                                                            2
                           ORDERED that defendant Eric Dean, RPA-C shall appear for his further

                  deposition on Friday, January 22, 2021 at 10:00 a.m. at the offices of Jack W. Hunt &

                  Associates with only Mr. Weidner and Mr. Fitzgerald in attendance and other counsel to

                  appear remotely if they so choose and Judge Kloch shall monitor same remotely; and it is

                  hereby further

                           ORDERED that the schedule of further discovery as set forth in the Order of

                  October 7, 2020 shall be extended as may be necessary to complete discovery.




                                                                                 ________________________________
                                                                                       Hon. Richard C. Kloch, J.S.C.
                  Granted:




                                                                            3