Preview
FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
THOMAS and CHERYL KAUSNER, Individually
and as Husband and Wife,
OPPOSING AFFIDAVIT
Plaintiffs,
v. Index No.: E159518/2016
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.,
Defendants.
Brian J. Weidner, being duly sworn, deposes and states as follows:
1. I am an attorney and a partner of The Tarantino Law Firm, LLP. My firm and I
represent the defendants, Andrew Cappuccino, M.D.; Eric Dean, PA; and Buffalo Spine Surgery,
PLLC in this matter. This affidavit is submitted in opposition to the plaintiff's motion seeking to
strike the answer of the foregoing defendants.
2. Irihis affidavit in support of the motion sworn to on December 2, 2020, plaintiffs
counsel, Brian Fitzgerald sets forth an accurate rendition of his efforts to secure a response to his
notice to produce seeking flight records and phone records.
3. While itis an unfortunate excuse, your deponent has not been sufficiently diligent
in attempting to secure the record requested by Mr. Fitzgerald. However, once this Court issued
itsorder compelling a response, I can say with certainty that diligent efforts have been made to
comply with same.
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4. Unfortunately, my clients never maintained telephone records responsive to the
Notice to Produce. Flight information will be discussed below in paragraphs 9, 10 and 11.
5. Starting with the claim that PA Dean's additional (third) deposition has not been
scheduled, the difficulty lies in the fact that we were advised after we began attempting to schedule
same that the Court is only available on Tuesday to participate. Tuesdays are a surgical day for
Dr. Cappuccino and PA Dean ishis first assistant in all such cases. I initially attempted to schedule
PA Dean's deposition on a day other than Tuesday, but was advised by Pauline Wojtaszek-Evans
that the Court was not available. Since then, PA Dean has been unable to create a gap in his
schedule on a Tuesday to finish the deposition.
6. I did reach out to Pauline Wojtaszek-Evans to ascertain Judge Kloch's availability
on December 8 or December 15. Initially she advised me that December 15 was a likely available
date. However, she then later emailed me and said that I would be better off trying to schedule
Mr. Dean for Tuesday, December 22 since Your Honor was exposed to someone who tested
positive for COVID.
7. The bottom line is that I am able to produce PA Dean for a deposition on December
15 or December 22. So that he may assist in surgeries on either of those dates, an early
commencement of the deposition would be appreciated, assuming that the Court is available to
oversee the deposition on either date.
8. To be clear, there was no attempt to willfully avoid the Court's order, but the
constraints of the schedules necessitated a delay, obviously longer than I would have wanted.
9. Turning then to the flight records. Dr. Cappuccino initially attempted to locate his
"logbook"
which would indicate when his plane was flown including specific dates, times and
locations from which the flight originated and ended. He has been unable to locate that logbook.
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NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020
He then reached out to Prior Aviation to ascertain whether they could provide any records, but
they too were unable find any records regarding his plane for the timeframe at issue. I am now
attempting to work with the Buffalo Bills to secure whatever information they have relative to Dr.
Cappuccino's flights during the timeframe at issue.
10. The person whom I have been advised would be in the most likely position to assist
me in securing the information is Bud Carpenter. To date, I have not been able to reach Mr.
Carpenter to discuss his ability to access the flight information. Obviously, when I am able to do
so, I can complete the response to this aspect of plaintiff s Notice to Produce.
1 1. Again, while understanding that my diligence in attempting to secure the
information was lacking, this has been given a priority by me, my clients and my associate since
the Order to Compel was granted. However, at this point, I am unable to provide a complete
response due to the lack of control over the Bills or Mr. Carpenter. This is not a willful attempt to
avoid responding to the demand, but rather the unfortunate fact of a third-party potentially having
records over which we have no control.
12. Turning then to the telephone records, efforts have been made by Dr. Cappuccino,
PA Dean, Dr. Cappuccino's wife, and my associate, Erica Gasiewicz to secure records. Mrs.
Cappuccino has advised me that efforts to secure a copy of home telephone records was
unsuccessful as the provider refused her request to provide any such records. As a practical matter,
that was really of no moment, since communications that Dr. Cappuccino has on a professional
basis are through his cell phone.
13. Dr. Cappuccino and PA Dean had their cell phone service provided through
Verizon. Both of them attempted to comnmnicate with Verizon in an effort to secure the needed
information. Eventually, after various attempts were met with long times on hold, being cut off,
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being told to call a different number, Mr. Dean was ultimately successful in securing what was
believed to be the appropriate telephone number to secure the needed information. He was told
that his attorney would need to call the given number in an effort to secure the information.
14. With this number provided, we then attempted to communicate with Verizon in an
effort to secure the needed records for both Dr. Cappuccino's telephone number as well as PA
Dean's. However, when we were finally able to reach that number, again, after long times on hold,
being told that we would need to contact a different department, and then being disconnected when
we were being transferred, we are continuing efforts to track down the needed records. I do not
know if the Court has ever had the misfortune of trying to contact a cell phone carrier to have an
issue addressed. To say that itis difficult, bordering on impossible is not an exaggeration.
15. Again, the bottom line is that efforts have been and are continuing to be made to
secure the needed information from a third party. While my lack of diligence is a poor excuse, it
is a truthful one, particularly over the last nine months, when everyone's lives have been turned
upside down by COVID-19. CPLR §3126, which is part of the basis of plaintiff s motion, makes
itclear that refusal to obey an order for disclosure or willfully failing to disclose information which
the Court finds ought to have been disclosed can be the basis for an order that the issues to which
the information is relevant shall be deemed resolved for purposes of the action or permits an order
prohibiting the disobedient party from supporting or opposing designated claims or defenses, from
producing in evidence designated things or items of testimony or from introducing any evidence
of the physical, mental or blood condition sought to be determined or from using certain witnesses
or permits an order striking out pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default
against the disobedient party.
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16. 22 NYCRR, Subpart 130-1 speaks to the Court having the discretion to impose
costs or financial sanctions for frivolous conduct (emphasis added) in civil litigation. Of the
definitions of frivolous conduct outlined in the NYCRR, the only one that might be applicable to
this matter is that an action is undertaken primarily to delay or prolong the resolution of the
litigation, or to harass or maliciously injure another. Certainly, there has been no effort to harass
or maliciously injure another. The question is whether my failure to expeditiously provide the
responses to the Notice to Produce was undertaken to primarily to delay or prolong the resolution
of this litigation. As an officer of the Court, I can say without hesitation that my lack of diligence
and procrastination were not done to delay or prolong the resolution of this case. Further, my lack
of diligence and my procrastination should not result in punishing my clients by striking their
plaintiffs'
answer to the summons and complaint.
17. I should also add that efforts were made by Dr. Cappuccino's practice manager to
secure records for the office telephone system. The office does not maintain the telephone records
and to the degree that any records existed, they did not outline the telephone numbers to which
calls were made or from which calls were received. She was advised by the telephone provider at
the time (Comcast) to have a subpoena issued to provide what records ithas in itspossession.
18. At this point, I have provided to the Court and hence counsel, all of the information
I am able to at the present time concerning the Notice to Produce for the flight records and
telephone records. Solutions that I see as possibilities to expedite this are to either allow us to
continue our efforts to track down the records or alternatively, to either have our office or Mr.
Fitzgerald's office issue subpoenas in an effort to secure the records at issue.
19. While the actions proposed in the foregoing paragraph may slightly delay the
completion of discovery, I assume that all counsel would be amenable to the filing of the Note of
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NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020
Issue by December 31 conditioned upon any additional information relative to the Notice to
Produce at issue being disclosed when same is available.
20. While not specifically before the Court, plaintiff's counsel alludes to his Sixth and
Seventh Notices to Produce which have not been responded to. Plaintiff's Sixth Notice to Produce
demands "all records relating to Dr. Cappuccino's credit card usage for the dates of September 2,
2015."
3 and 4, Plaintiff s Seventh Notice to Produce demands "Dr. Cappuccino's ownership
records for the plane that he used for his flight to Detroit, Michigan for the Buffalo Bills game on
2015."
any of the dates of September 1, 2, 3, or 4,
21. While I had intended to object to these two Notices to Produce on the grounds that
they sought information which was not relevant or germane to the issues in the case, once again
my lack of diligence and procrastination meant I failed to do so. Nevertheless, that is my position
concerning those two Notices to Produce.
22. In summary, I apologize to Mr. Fitzgerald and to the Court for my lack of diligence
and procrastination relative to the Notice to Produce and the scheduling of Mr. Dean's third
deposition.
WHEREFORE, the defendants respectfully request that the Court deny the motion seeking
to strike their answer and provide a reasonable extension to allow the process of searching for
records to be completed.
Re e fully submitte ,
Brian J. idner
Sworn to ore me this
801
day f Dfcember, 2020.
Notary Public
ANN M. CA.PSELL
Note PuMic, Steeci New York
Qushd in Eria Canty
93-
My Commissba Fxpires March 30, 20
6
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Preview
FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife, OPPOSING AFFIDAVIT Plaintiffs, v. Index No.: E159518/2016 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., Defendants. Brian J. Weidner, being duly sworn, deposes and states as follows: 1. I am an attorney and a partner of The Tarantino Law Firm, LLP. My firm and I represent the defendants, Andrew Cappuccino, M.D.; Eric Dean, PA; and Buffalo Spine Surgery, PLLC in this matter. This affidavit is submitted in opposition to the plaintiff's motion seeking to strike the answer of the foregoing defendants. 2. Irihis affidavit in support of the motion sworn to on December 2, 2020, plaintiffs counsel, Brian Fitzgerald sets forth an accurate rendition of his efforts to secure a response to his notice to produce seeking flight records and phone records. 3. While itis an unfortunate excuse, your deponent has not been sufficiently diligent in attempting to secure the record requested by Mr. Fitzgerald. However, once this Court issued itsorder compelling a response, I can say with certainty that diligent efforts have been made to comply with same. 1 of 6 FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020 4. Unfortunately, my clients never maintained telephone records responsive to the Notice to Produce. Flight information will be discussed below in paragraphs 9, 10 and 11. 5. Starting with the claim that PA Dean's additional (third) deposition has not been scheduled, the difficulty lies in the fact that we were advised after we began attempting to schedule same that the Court is only available on Tuesday to participate. Tuesdays are a surgical day for Dr. Cappuccino and PA Dean ishis first assistant in all such cases. I initially attempted to schedule PA Dean's deposition on a day other than Tuesday, but was advised by Pauline Wojtaszek-Evans that the Court was not available. Since then, PA Dean has been unable to create a gap in his schedule on a Tuesday to finish the deposition. 6. I did reach out to Pauline Wojtaszek-Evans to ascertain Judge Kloch's availability on December 8 or December 15. Initially she advised me that December 15 was a likely available date. However, she then later emailed me and said that I would be better off trying to schedule Mr. Dean for Tuesday, December 22 since Your Honor was exposed to someone who tested positive for COVID. 7. The bottom line is that I am able to produce PA Dean for a deposition on December 15 or December 22. So that he may assist in surgeries on either of those dates, an early commencement of the deposition would be appreciated, assuming that the Court is available to oversee the deposition on either date. 8. To be clear, there was no attempt to willfully avoid the Court's order, but the constraints of the schedules necessitated a delay, obviously longer than I would have wanted. 9. Turning then to the flight records. Dr. Cappuccino initially attempted to locate his "logbook" which would indicate when his plane was flown including specific dates, times and locations from which the flight originated and ended. He has been unable to locate that logbook. 2 2 of 6 FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020 He then reached out to Prior Aviation to ascertain whether they could provide any records, but they too were unable find any records regarding his plane for the timeframe at issue. I am now attempting to work with the Buffalo Bills to secure whatever information they have relative to Dr. Cappuccino's flights during the timeframe at issue. 10. The person whom I have been advised would be in the most likely position to assist me in securing the information is Bud Carpenter. To date, I have not been able to reach Mr. Carpenter to discuss his ability to access the flight information. Obviously, when I am able to do so, I can complete the response to this aspect of plaintiff s Notice to Produce. 1 1. Again, while understanding that my diligence in attempting to secure the information was lacking, this has been given a priority by me, my clients and my associate since the Order to Compel was granted. However, at this point, I am unable to provide a complete response due to the lack of control over the Bills or Mr. Carpenter. This is not a willful attempt to avoid responding to the demand, but rather the unfortunate fact of a third-party potentially having records over which we have no control. 12. Turning then to the telephone records, efforts have been made by Dr. Cappuccino, PA Dean, Dr. Cappuccino's wife, and my associate, Erica Gasiewicz to secure records. Mrs. Cappuccino has advised me that efforts to secure a copy of home telephone records was unsuccessful as the provider refused her request to provide any such records. As a practical matter, that was really of no moment, since communications that Dr. Cappuccino has on a professional basis are through his cell phone. 13. Dr. Cappuccino and PA Dean had their cell phone service provided through Verizon. Both of them attempted to comnmnicate with Verizon in an effort to secure the needed information. Eventually, after various attempts were met with long times on hold, being cut off, 3 3 of 6 FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020 being told to call a different number, Mr. Dean was ultimately successful in securing what was believed to be the appropriate telephone number to secure the needed information. He was told that his attorney would need to call the given number in an effort to secure the information. 14. With this number provided, we then attempted to communicate with Verizon in an effort to secure the needed records for both Dr. Cappuccino's telephone number as well as PA Dean's. However, when we were finally able to reach that number, again, after long times on hold, being told that we would need to contact a different department, and then being disconnected when we were being transferred, we are continuing efforts to track down the needed records. I do not know if the Court has ever had the misfortune of trying to contact a cell phone carrier to have an issue addressed. To say that itis difficult, bordering on impossible is not an exaggeration. 15. Again, the bottom line is that efforts have been and are continuing to be made to secure the needed information from a third party. While my lack of diligence is a poor excuse, it is a truthful one, particularly over the last nine months, when everyone's lives have been turned upside down by COVID-19. CPLR §3126, which is part of the basis of plaintiff s motion, makes itclear that refusal to obey an order for disclosure or willfully failing to disclose information which the Court finds ought to have been disclosed can be the basis for an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action or permits an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony or from introducing any evidence of the physical, mental or blood condition sought to be determined or from using certain witnesses or permits an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. 4 4 of 6 FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020 16. 22 NYCRR, Subpart 130-1 speaks to the Court having the discretion to impose costs or financial sanctions for frivolous conduct (emphasis added) in civil litigation. Of the definitions of frivolous conduct outlined in the NYCRR, the only one that might be applicable to this matter is that an action is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another. Certainly, there has been no effort to harass or maliciously injure another. The question is whether my failure to expeditiously provide the responses to the Notice to Produce was undertaken to primarily to delay or prolong the resolution of this litigation. As an officer of the Court, I can say without hesitation that my lack of diligence and procrastination were not done to delay or prolong the resolution of this case. Further, my lack of diligence and my procrastination should not result in punishing my clients by striking their plaintiffs' answer to the summons and complaint. 17. I should also add that efforts were made by Dr. Cappuccino's practice manager to secure records for the office telephone system. The office does not maintain the telephone records and to the degree that any records existed, they did not outline the telephone numbers to which calls were made or from which calls were received. She was advised by the telephone provider at the time (Comcast) to have a subpoena issued to provide what records ithas in itspossession. 18. At this point, I have provided to the Court and hence counsel, all of the information I am able to at the present time concerning the Notice to Produce for the flight records and telephone records. Solutions that I see as possibilities to expedite this are to either allow us to continue our efforts to track down the records or alternatively, to either have our office or Mr. Fitzgerald's office issue subpoenas in an effort to secure the records at issue. 19. While the actions proposed in the foregoing paragraph may slightly delay the completion of discovery, I assume that all counsel would be amenable to the filing of the Note of 5 5 of 6 FILED: NIAGARA COUNTY CLERK 12/08/2020 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 12/08/2020 Issue by December 31 conditioned upon any additional information relative to the Notice to Produce at issue being disclosed when same is available. 20. While not specifically before the Court, plaintiff's counsel alludes to his Sixth and Seventh Notices to Produce which have not been responded to. Plaintiff's Sixth Notice to Produce demands "all records relating to Dr. Cappuccino's credit card usage for the dates of September 2, 2015." 3 and 4, Plaintiff s Seventh Notice to Produce demands "Dr. Cappuccino's ownership records for the plane that he used for his flight to Detroit, Michigan for the Buffalo Bills game on 2015." any of the dates of September 1, 2, 3, or 4, 21. While I had intended to object to these two Notices to Produce on the grounds that they sought information which was not relevant or germane to the issues in the case, once again my lack of diligence and procrastination meant I failed to do so. Nevertheless, that is my position concerning those two Notices to Produce. 22. In summary, I apologize to Mr. Fitzgerald and to the Court for my lack of diligence and procrastination relative to the Notice to Produce and the scheduling of Mr. Dean's third deposition. WHEREFORE, the defendants respectfully request that the Court deny the motion seeking to strike their answer and provide a reasonable extension to allow the process of searching for records to be completed. Re e fully submitte , Brian J. idner Sworn to ore me this 801 day f Dfcember, 2020. Notary Public ANN M. CA.PSELL Note PuMic, Steeci New York Qushd in Eria Canty 93- My Commissba Fxpires March 30, 20 6 6 of 6