Preview
FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X Index No.: 805204/2017
RENEE THORNE, As Administrator of the Estate of
RANDY THORNE, Deceased, and, PEARL
STROUD, Individually,
AFFIRMATION OF
Plaintiffs,
JORDAN K. MERSON,
-against - ESQ. IN OPPOSITION TO
DEFENDANTS'
NEW YORK CITY HEALTH AND HOSPITALS MOTION TO
CORPORATION (HARLEM HOSPITAL CENTER), FOR SUMMARY
KIM MOI WONG LAMA, M.D., NASIR MALIK,
JUDGEMENT
M.D., GILLIAN O'SHAUGHNESSY, M.D., SONALI
MANTOO, M.D., BORIS PAUL, M.D., NYC
SURGICAL ASSOCIATES, P.C., SIMONA BRATU,
M.D., and MEENA AHLUWANIA, M.D.,
Defendants.
----------------------------------------------------------------------X
Jordan K. Merson, Esq., an attorney duly admitted to practice law before the Courts
of the State of New York, and an attorney with the law firm of MERSON LAW, PLLC.,
hereby respectfully affirms the following to be true under the penalties of perjury:
1. I am fully familiar with the facts and circumstances underlying the within
application by virtue of a filemaintained in our office.
2. I submit this affirmation on behalf of the plaintiffs in opposition to defendant
NYC SURGICAL ASSOCIATES, P.C. seeking an order, pursuant to CPLR §3212,
granting summary judgement in favor of defendant NYC Surgical Associates P.C.. Plaintiffs
Associates'
respectfully request that NYC Surgical motion be denied in itsentirety because it
is premature as set forth below, and that this Court grant such other relief as this Court deems
just and proper.
3. The defendant's motion claims that NYC Surgical Associates, P.C., has been
wrongly named as a defendant in the present action since plaintiff's decedent Randy Thorne
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was never seen or treated at its facilities. The defendant also states that co-defendant Boris
Paul, M.D., never had any relationship with NYC Surgical Associates (Greuner Medical of
NJ), and therefore, NYC Surgical Associates could not be vicariously liable for defendant
BORIS PAUL, M.D.'s actions. However, defendant's motion contains numerous admissions
that verifies it isproperly-named defendant in this case and therefore, summary judgement is
not appropriate and should be denied.
4. The law is well-settled that because summary judgement is a drastic remedy that
deprives a litigant of his or her day in court, it should not be granted where there is any doubt
as to the existence of a material and triable issue of fact. Se_e Pearson v. Dix McBride, LLC,
(2nd (2nd
63 A.D.3d 895 Dept. 2009); Kolivas v. Kirchoff, 14 A.D.3d 493 Dept/ 2005);
(2nd
Jablonski v. Rapalje, 14 A.D.3d 484 Dept. 2005); Doize v. Holiday Inn Ronkonkoma, 6
(2nd (2nd
A.D.3d 573, 574 Dept. 2004); Menzel v. Plotnick, 202 A.D.2d 558, 558-59 Dept.
1994).
5. The proponent of a summary judgement motion is required to make a prima facie
case showing of entitlement to judgement as a matter of law by tendering sufficient evidence
to demonstrate the absence of any material issues of fact, and the failure to do so requires
denial of the motion irrespective of the sufficiency of the opposing papers. S_ee Alvarez v.
Prospect Hosp., 69 N.Y.2d 320, 324 (1986); Winegard v. New York Univ. Med. .CCtr., 64
(2nd
N.Y.2d 851, 853 (1985); Colon v. Klindt, 302 A.D.2d 551, 553 Dept. 2003); Berkey v.
(2nd (2nd
Emma, 291 A.D.2d 517, 518 Dept. 2002); Drago v. King, 283 ..d6
A.D.2d 603 Dept.
2001); Menzel, 202A.D.2d at 558. In determining whether triable issues of fact exist on such
a motion, the submissions must be scrutinized in the light most favorable to the party or
parties opposing the motion, See Menzel, 202 A.D.2d at 559; McMahon v. Badia, 195
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(2nd (2nd
A.D.2d 445, 446 Dpt. 1993); Forte v. Franklin Gen. Hosp.,., 185 A.D.2d 914 Dept.
1992). Accordingly, in resolving such a motion, the Court is required to "accept as true the
evidence submitted by the opposing party and any evidence of the movant which favors the
" O'
opposing party (gneiss v. Garfield, 21 A.D.2d 156, 158). O'Sullivan v. Presbyterian
(l"
Hospital, 217 A.D.2d 98, 101 Dept. 1995). The decision must be made on the version of
the facts and inferences most favorable to those parties. See Doize, 6 A.D.3d at 574;
(2nd
Lacagnino v. Gonzalez, 306 A.D.2d 250 Dept/ 2004). In this case, defendant NYC
Associates'
Surgical summary judgement motion should be denied because even at this very
early stage of litigation, there are significant issues of fact.
6. The defendant states that Dr. Paul had once interviewed for a position with
Greuner Medical NJ s/h/a NYC Surgical Associates P.C., but that he was not hired, nor ever
treated or seen any patient on behalf of Greuner Medical NJ. Defendant also asserts that Dr.
Paul was never an employee of the practice in any capacity. However, a simple internet
search demonstrates that Dr. Boris Paul is in fact affiliated with NYC Surgical Associates
(Greuner Medical of NJ).
7. The internet page maintained by NYC Surgical Associates is associated with the
Bariatric Centers web page, the latter clearly indicated that the Bariatric Centers are "a
division of NYC Surgical Associates". (See Exhibit "A"). The location of the Bariatric
Centers facilities is the same as the location of the NYC Surgical Associates facilities. (See
Exhibit "B"). Co-defendant Dr. Boris Paul is listed as one of NYC Surgical Associates
"Physicians and Surgeons", which undeniably indicates some type of professional
relationship between Dr. Paul and movant NYC Surgical Associates P.C.. (See Exhibit
Centers'
"C"). Dr. Paul has his own personal page within the Bariatric website, in which he
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is described as "a double board certified general and vascular surgeon ... Despite his
accolades, he remains humble, approachable, and retains a warm bedside manner, making
"D" -
us very lucky to have him at NYC Surgical". (See Exhibit emphasis added).
Conspicuously absent from defendant's submission is any claim that Dr. Boris Paul is no
longer a member/associate of NYC Surgical Associates, while Movant's own website
indicates that Dr. Paul is in fact at NYC Surgical, this creates and issue of fact that requires
denial of summary judgment. (S_ee generally defendant's motion). The bariatric division of
Associates'
NYC Surgical website clearly lists Dr. Boris Paul as a General and Vascular
Surgery associate.
8. Plaintiffs have the right to further probe Dr. Boris Paul and NYC Surgical
Associates'
relationship, specifically, as to the intention of the corporation, the services that
actually were performed by the doctor and what medical services, techniques and treatment
were provided by the defendants to plaintiff. Dr. Boris Paul was under the supervision of
NYC Surgical Associates and professional corporation is vicariously liable under the
doctrine of respondeat superior for the torts of its agents and officers. Under this theory,
whenever a doctor and the professional corporation at which he or she is employed share the
same interest, the corporation is vicariously liable for the torts committed by such
professional. Appellate Division case law confirms that NYC Surgical Associates is
vicariously liable for a tort committed by his servant that is within the scope of employment.
See Rivera v. Fenix Car Service Corp.,.,916 N.Y.S.2d 169 (N.Y. App. Div. 2d Dept. 2011);
(2nd
Chuchuca v. Chuchuca, 67 A.D.3d 948, 949 Dept. 2009); Schiffer v. Sunrise Removal,
(2nd
Inn 62 A.D.3d 776, 778 Dept. 2009); Fernandez v. Rustic Inn, Inc., 60 A.D.3d 893, 896
(2"
(2~
Dept. 2009).
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9. "CPLR 3212(f) permits a party opposing summary judgement to obtain further
discovery when it appears that facts supporting the position of the opposing party exist but
stated."
cannot be -Friendl
Family-Friendly Media, Inc. v. Recorder Television Network, 74 A.D.3d
(2nd
738, 739 sept. 2010) (citations omitted). A plaintiff should be "afforded an opportunity
to conduct discovery prior to the award of summary judgement in favor of any of the
(2nd
parties". Gruenfeld v. City of New Rochelle, 72 A.D.3d 1025, 1026 Dept. 2010)
(citations omitted). Summary judgement is premature where discovery has not yet taken
(2nd
place. See Long Island Power Auth. v. Anderson, 67 A.D.3d 652 Dept. 2009); Galil
(2nd
Importing Corp. . v. Strauss, Ltd., 61 A.D.3d 716, 717 Dept. 2009); Miller v. Adamski, 54
(2nd
A.D.3d 1011 Dept. 2008).
10. This is particularly so where, as here, the facts are within the control of the
moving party. The law is overwhelmingly clear in such circumstances, a summary judgement
motion is premature and should be denied. See Ross v. Curtis-Palmer Hydro-Elec. Co., 81
N.Y.2d 494, 506 (1993); Groves v. Lands End Housing, 80 N.Y.2d 978 (1992); Colombini v.
(2nd
Westchester County Healthcare Corp.,., 24 A.D.3d 712, 715 Dept. 2005); Yadgarov v.
(2nd (2nd
Dekel, 2 A.D.3d 631 Dept. 2003); Destin V. N.Y. Trans. Auth., 303 A.D.2d 713
Dept. 2003). In language apropos of the instant case, the Court of Appeals held in R_oss, 81
N.Y.2d at 506, that summary judgement was properly denied where discovery was
outstanding, and that an affidavit from a defendant's employee attempting to demonstrate the
absence of question of fact did not alter the motion's prematurity or permit summary
judgement to be granted:
defendants'
In this connection, it is noteworthy that plaintiff had not yet deposed
representatives when the motion for summary judgement suspended discovery. Further,
the contract between International Paper and Bechtel, defendant's employer, had not yet
been produced when discovery provisionally halted. Thus, Any conclusion that plaintiff
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cannot produce evidence to justify submitting the question of International Paper's
control and/or supervision to a trier of fact is,manifestly, premature, despite International
Paper's submission of an Affidavit by its Safety Superintendent disclaiming supervision
of any of itssubcontractors [citation omitted].
11. In the present case, the moving defendant NYC Surgical Associates has control of
the information pertinent to its liability under respondeat superior for Dr. Boris Paul. The
plaintiff has no control over the relevant information whatsoever. The plaintiff is entitled to
the opportunity to conduct relevant discovery, including deposing Dr. Paul and a NYC
Surgical Associates representative, obtaining documents regarding the corporation's records,
books, accounts and filings. Indeed, the specific medical services, techniques and treatment
that Dr. Paul provided to plaintiff are not yet known and cannot be fully explored until he is
deposed.
12. The evidence on record establishes that Dr. Boris Paul is a member of NYC
Surgical Associates and demonstrates that facts exist relative to the PC liability. In light of
this showing, and since plaintiff have had no discovery at all, CPLR 3112(f) requires that
(2nd
summary judgement be denied. See Lettieri v. Cushing, 914 N.Y.S.2d 312 Dept. 2011);
(2nd
R_cdriguez v. DeStefano. 72 A.D.3d 926 Dept. 2010); Aurora Loan Services, LLC v.
(2nd
LaMattina & Associates, Inc, 59 A.D.3d 578 Dept. 2009); Juseinoski v. New York Hosp. .
(2nd
Medical Center of Queens, 29 A.D.3d636, 637 ( Dept. 2006).
13. Finally, as to defendant's request for sanctions, such should also be denied as
Plaintiffs named NYC Surgical Associates P.C. because of its relationship to defendant
Boris Paul, M.D., which is supported by publicly available information and therefore
Plaintiffs cannot be considered to have brought a frivolous claim. More so, defendant's
counsel claim that it has billed for the amount of $3,440 is dubious and warrants close
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scrutiny, since it has not appeared to any of the court's conferences nor taken part in any of
the discovery in this case.
defendants'
WHEREFORE, it isrespectfully requested that the motion be denied in
full and together with such other relief as this Court deems just and proper.
Dated: New York, New York
April 25, 2018.
MERSON LAW, PLLC
By:
Jordan K. Merson
Attorney for Plaintiffs
58th 34th
150 East street FlOOr
New York, New York 10155
(212) 603-9100
TO:
Kirschenbaum & Kirschenbaum, P.C.
Attorneys for Defendant
NYC Surgical Associates, P.C.
("Greuner Medical NJ")
200 Garden City Plaza
Garden City, NY 11530
(516) 747-6700
Heidell, Pittoni, Murphy & Bach, LLP
Attorneys for Defendants
New York City Health And Hospitals
Corporation (Harlem Hospital Center),
Kim Moi Wong Lama, M.D., Nasir
Malik, M.D., Gillian O'Shaughnessy, M.D.,
Sonali Mantoo, M.D., Boris Paul, M.D.,
Simona Bratu, M.D., and Meena Ah1uwania, M.D.,
99 Park Avenue, #7
New York, New York 10016
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Preview
FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X Index No.: 805204/2017 RENEE THORNE, As Administrator of the Estate of RANDY THORNE, Deceased, and, PEARL STROUD, Individually, AFFIRMATION OF Plaintiffs, JORDAN K. MERSON, -against - ESQ. IN OPPOSITION TO DEFENDANTS' NEW YORK CITY HEALTH AND HOSPITALS MOTION TO CORPORATION (HARLEM HOSPITAL CENTER), FOR SUMMARY KIM MOI WONG LAMA, M.D., NASIR MALIK, JUDGEMENT M.D., GILLIAN O'SHAUGHNESSY, M.D., SONALI MANTOO, M.D., BORIS PAUL, M.D., NYC SURGICAL ASSOCIATES, P.C., SIMONA BRATU, M.D., and MEENA AHLUWANIA, M.D., Defendants. ----------------------------------------------------------------------X Jordan K. Merson, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, and an attorney with the law firm of MERSON LAW, PLLC., hereby respectfully affirms the following to be true under the penalties of perjury: 1. I am fully familiar with the facts and circumstances underlying the within application by virtue of a filemaintained in our office. 2. I submit this affirmation on behalf of the plaintiffs in opposition to defendant NYC SURGICAL ASSOCIATES, P.C. seeking an order, pursuant to CPLR §3212, granting summary judgement in favor of defendant NYC Surgical Associates P.C.. Plaintiffs Associates' respectfully request that NYC Surgical motion be denied in itsentirety because it is premature as set forth below, and that this Court grant such other relief as this Court deems just and proper. 3. The defendant's motion claims that NYC Surgical Associates, P.C., has been wrongly named as a defendant in the present action since plaintiff's decedent Randy Thorne 1 of 7 FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 was never seen or treated at its facilities. The defendant also states that co-defendant Boris Paul, M.D., never had any relationship with NYC Surgical Associates (Greuner Medical of NJ), and therefore, NYC Surgical Associates could not be vicariously liable for defendant BORIS PAUL, M.D.'s actions. However, defendant's motion contains numerous admissions that verifies it isproperly-named defendant in this case and therefore, summary judgement is not appropriate and should be denied. 4. The law is well-settled that because summary judgement is a drastic remedy that deprives a litigant of his or her day in court, it should not be granted where there is any doubt as to the existence of a material and triable issue of fact. Se_e Pearson v. Dix McBride, LLC, (2nd (2nd 63 A.D.3d 895 Dept. 2009); Kolivas v. Kirchoff, 14 A.D.3d 493 Dept/ 2005); (2nd Jablonski v. Rapalje, 14 A.D.3d 484 Dept. 2005); Doize v. Holiday Inn Ronkonkoma, 6 (2nd (2nd A.D.3d 573, 574 Dept. 2004); Menzel v. Plotnick, 202 A.D.2d 558, 558-59 Dept. 1994). 5. The proponent of a summary judgement motion is required to make a prima facie case showing of entitlement to judgement as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact, and the failure to do so requires denial of the motion irrespective of the sufficiency of the opposing papers. S_ee Alvarez v. Prospect Hosp., 69 N.Y.2d 320, 324 (1986); Winegard v. New York Univ. Med. .CCtr., 64 (2nd N.Y.2d 851, 853 (1985); Colon v. Klindt, 302 A.D.2d 551, 553 Dept. 2003); Berkey v. (2nd (2nd Emma, 291 A.D.2d 517, 518 Dept. 2002); Drago v. King, 283 ..d6 A.D.2d 603 Dept. 2001); Menzel, 202A.D.2d at 558. In determining whether triable issues of fact exist on such a motion, the submissions must be scrutinized in the light most favorable to the party or parties opposing the motion, See Menzel, 202 A.D.2d at 559; McMahon v. Badia, 195 2 of 7 FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 (2nd (2nd A.D.2d 445, 446 Dpt. 1993); Forte v. Franklin Gen. Hosp.,., 185 A.D.2d 914 Dept. 1992). Accordingly, in resolving such a motion, the Court is required to "accept as true the evidence submitted by the opposing party and any evidence of the movant which favors the " O' opposing party (gneiss v. Garfield, 21 A.D.2d 156, 158). O'Sullivan v. Presbyterian (l" Hospital, 217 A.D.2d 98, 101 Dept. 1995). The decision must be made on the version of the facts and inferences most favorable to those parties. See Doize, 6 A.D.3d at 574; (2nd Lacagnino v. Gonzalez, 306 A.D.2d 250 Dept/ 2004). In this case, defendant NYC Associates' Surgical summary judgement motion should be denied because even at this very early stage of litigation, there are significant issues of fact. 6. The defendant states that Dr. Paul had once interviewed for a position with Greuner Medical NJ s/h/a NYC Surgical Associates P.C., but that he was not hired, nor ever treated or seen any patient on behalf of Greuner Medical NJ. Defendant also asserts that Dr. Paul was never an employee of the practice in any capacity. However, a simple internet search demonstrates that Dr. Boris Paul is in fact affiliated with NYC Surgical Associates (Greuner Medical of NJ). 7. The internet page maintained by NYC Surgical Associates is associated with the Bariatric Centers web page, the latter clearly indicated that the Bariatric Centers are "a division of NYC Surgical Associates". (See Exhibit "A"). The location of the Bariatric Centers facilities is the same as the location of the NYC Surgical Associates facilities. (See Exhibit "B"). Co-defendant Dr. Boris Paul is listed as one of NYC Surgical Associates "Physicians and Surgeons", which undeniably indicates some type of professional relationship between Dr. Paul and movant NYC Surgical Associates P.C.. (See Exhibit Centers' "C"). Dr. Paul has his own personal page within the Bariatric website, in which he 3 of 7 FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 is described as "a double board certified general and vascular surgeon ... Despite his accolades, he remains humble, approachable, and retains a warm bedside manner, making "D" - us very lucky to have him at NYC Surgical". (See Exhibit emphasis added). Conspicuously absent from defendant's submission is any claim that Dr. Boris Paul is no longer a member/associate of NYC Surgical Associates, while Movant's own website indicates that Dr. Paul is in fact at NYC Surgical, this creates and issue of fact that requires denial of summary judgment. (S_ee generally defendant's motion). The bariatric division of Associates' NYC Surgical website clearly lists Dr. Boris Paul as a General and Vascular Surgery associate. 8. Plaintiffs have the right to further probe Dr. Boris Paul and NYC Surgical Associates' relationship, specifically, as to the intention of the corporation, the services that actually were performed by the doctor and what medical services, techniques and treatment were provided by the defendants to plaintiff. Dr. Boris Paul was under the supervision of NYC Surgical Associates and professional corporation is vicariously liable under the doctrine of respondeat superior for the torts of its agents and officers. Under this theory, whenever a doctor and the professional corporation at which he or she is employed share the same interest, the corporation is vicariously liable for the torts committed by such professional. Appellate Division case law confirms that NYC Surgical Associates is vicariously liable for a tort committed by his servant that is within the scope of employment. See Rivera v. Fenix Car Service Corp.,.,916 N.Y.S.2d 169 (N.Y. App. Div. 2d Dept. 2011); (2nd Chuchuca v. Chuchuca, 67 A.D.3d 948, 949 Dept. 2009); Schiffer v. Sunrise Removal, (2nd Inn 62 A.D.3d 776, 778 Dept. 2009); Fernandez v. Rustic Inn, Inc., 60 A.D.3d 893, 896 (2" (2~ Dept. 2009). 4 of 7 FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 9. "CPLR 3212(f) permits a party opposing summary judgement to obtain further discovery when it appears that facts supporting the position of the opposing party exist but stated." cannot be -Friendl Family-Friendly Media, Inc. v. Recorder Television Network, 74 A.D.3d (2nd 738, 739 sept. 2010) (citations omitted). A plaintiff should be "afforded an opportunity to conduct discovery prior to the award of summary judgement in favor of any of the (2nd parties". Gruenfeld v. City of New Rochelle, 72 A.D.3d 1025, 1026 Dept. 2010) (citations omitted). Summary judgement is premature where discovery has not yet taken (2nd place. See Long Island Power Auth. v. Anderson, 67 A.D.3d 652 Dept. 2009); Galil (2nd Importing Corp. . v. Strauss, Ltd., 61 A.D.3d 716, 717 Dept. 2009); Miller v. Adamski, 54 (2nd A.D.3d 1011 Dept. 2008). 10. This is particularly so where, as here, the facts are within the control of the moving party. The law is overwhelmingly clear in such circumstances, a summary judgement motion is premature and should be denied. See Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 506 (1993); Groves v. Lands End Housing, 80 N.Y.2d 978 (1992); Colombini v. (2nd Westchester County Healthcare Corp.,., 24 A.D.3d 712, 715 Dept. 2005); Yadgarov v. (2nd (2nd Dekel, 2 A.D.3d 631 Dept. 2003); Destin V. N.Y. Trans. Auth., 303 A.D.2d 713 Dept. 2003). In language apropos of the instant case, the Court of Appeals held in R_oss, 81 N.Y.2d at 506, that summary judgement was properly denied where discovery was outstanding, and that an affidavit from a defendant's employee attempting to demonstrate the absence of question of fact did not alter the motion's prematurity or permit summary judgement to be granted: defendants' In this connection, it is noteworthy that plaintiff had not yet deposed representatives when the motion for summary judgement suspended discovery. Further, the contract between International Paper and Bechtel, defendant's employer, had not yet been produced when discovery provisionally halted. Thus, Any conclusion that plaintiff 5 of 7 FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 cannot produce evidence to justify submitting the question of International Paper's control and/or supervision to a trier of fact is,manifestly, premature, despite International Paper's submission of an Affidavit by its Safety Superintendent disclaiming supervision of any of itssubcontractors [citation omitted]. 11. In the present case, the moving defendant NYC Surgical Associates has control of the information pertinent to its liability under respondeat superior for Dr. Boris Paul. The plaintiff has no control over the relevant information whatsoever. The plaintiff is entitled to the opportunity to conduct relevant discovery, including deposing Dr. Paul and a NYC Surgical Associates representative, obtaining documents regarding the corporation's records, books, accounts and filings. Indeed, the specific medical services, techniques and treatment that Dr. Paul provided to plaintiff are not yet known and cannot be fully explored until he is deposed. 12. The evidence on record establishes that Dr. Boris Paul is a member of NYC Surgical Associates and demonstrates that facts exist relative to the PC liability. In light of this showing, and since plaintiff have had no discovery at all, CPLR 3112(f) requires that (2nd summary judgement be denied. See Lettieri v. Cushing, 914 N.Y.S.2d 312 Dept. 2011); (2nd R_cdriguez v. DeStefano. 72 A.D.3d 926 Dept. 2010); Aurora Loan Services, LLC v. (2nd LaMattina & Associates, Inc, 59 A.D.3d 578 Dept. 2009); Juseinoski v. New York Hosp. . (2nd Medical Center of Queens, 29 A.D.3d636, 637 ( Dept. 2006). 13. Finally, as to defendant's request for sanctions, such should also be denied as Plaintiffs named NYC Surgical Associates P.C. because of its relationship to defendant Boris Paul, M.D., which is supported by publicly available information and therefore Plaintiffs cannot be considered to have brought a frivolous claim. More so, defendant's counsel claim that it has billed for the amount of $3,440 is dubious and warrants close 6 of 7 FILED: NEW YORK COUNTY CLERK 04/25/2018 05:25 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 04/25/2018 scrutiny, since it has not appeared to any of the court's conferences nor taken part in any of the discovery in this case. defendants' WHEREFORE, it isrespectfully requested that the motion be denied in full and together with such other relief as this Court deems just and proper. Dated: New York, New York April 25, 2018. MERSON LAW, PLLC By: Jordan K. Merson Attorney for Plaintiffs 58th 34th 150 East street FlOOr New York, New York 10155 (212) 603-9100 TO: Kirschenbaum & Kirschenbaum, P.C. Attorneys for Defendant NYC Surgical Associates, P.C. ("Greuner Medical NJ") 200 Garden City Plaza Garden City, NY 11530 (516) 747-6700 Heidell, Pittoni, Murphy & Bach, LLP Attorneys for Defendants New York City Health And Hospitals Corporation (Harlem Hospital Center), Kim Moi Wong Lama, M.D., Nasir Malik, M.D., Gillian O'Shaughnessy, M.D., Sonali Mantoo, M.D., Boris Paul, M.D., Simona Bratu, M.D., and Meena Ah1uwania, M.D., 99 Park Avenue, #7 New York, New York 10016 7 of 7