Preview
FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------________________-------------------______-----------------------X
RENEE THORNE, As Administrator of the Estate of
RANDY THORNE, Deceased, and, PEARL THORNE, Index No.: 805204/2017
Individually,
Plaintiff,
-against-
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
MANOO, M.D., BORIS PAUL, M.D., NYC
SURGICAL ASSOCIATES, P.C., SIMONA BRATU,
M.D., and MEENA AHLUWANIA, M.D.,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT AND FOR SANCTIONS
On the brief:
Kieran X. Bastible, Esq.
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PRELIMINARY STATEMENT
Defendant Greuner Medical of NJ PC, sued incorrectly herein as NYC Surgical
Associates, P.C., ("Greuner Medical NJ") submits this memorandum of law in support
of its motion for summary judgment and for sanctions.
On May 24, 2017, Plaintiffs brought this action against, inter alia, Greuner
Plaintiffs'
Medical NJ, that, the treatment of decedent from on or about
claiming during
March 23, 2016 through and 12, 2016, itcommitted medical malpractice,
including May
while Plaintiff's decedent was admitted to Harlem Hospital Center.
apparently
Greuner Medical NJ moves for
summary judgment based upon CPLR § 3212(e)
and the second affirmative defense set forth in its answer, which is sufficient to warrant
Plaintiffs'
the of summary judgment Verified Complaint as a
granting dismissing
Plaintiffs'
matter of law. All of causes of action as against Greuner Medical NJ must be
Plaintiffs'
dismissed because decedent was never a patient of, treated by, or examined
Greuner Medical NJ.
by
Greuner Medical NJ also requests that the Court impose sanctions upon Plaintiffs
pursuant to 22 NYCRR § 130-1.1 because this action is completely meritless. This Court
should consider, as added justification for sanctions, that Greuner Medical NJ, through
counsel, first notified Plaintiffs and their attorneys of this fact in June, 2017, giving them
the opportunity to discontinue without consequences, but opted to proceed.
they
Through last month, Greuner Medical NJ has been billed its counsel $3440 in
by
1
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connection with the defense of this action, which total will increase as a result of
only
motion practice.
STATEMENT OF FACTS
Greuner Medical of NJ PC is a professional corporation formed in February,
2012, and organized and existing under the laws of the State of New Jersey. See
Affidavit of Adam M. Tonis, D.C., sworn to on April 10, 2018 ("Tonis Aff."), 1 3. In
March, 2012, Greuner Medical NJ registered the alternate name "NYC Surgical
Associates"
with the State of New Jersey. (Id.at 13, Exh. "B"). There is no entity named
P.C."
"NYC Surgical Associates, in either New Jersey
or New York. (Id.)
On May 24, 2017, Plaintiffs commenced this action against named defendant
"NYC Surgical Associates, P.C.", among others, by filing and serving a Summons and
Verified Complaint in Supreme Court, New York County. (Tonis Aff. at Exh. "C"). In
the Verified Complaint, Plaintiffs brought claims against NYC Surgical Associates, P.C.
and other medical professionals for medical malpractice, lack of informed consent, loss
of services and wrongful death related to the medical treatment that was provided to
Plaintiffs'
decedent, Thorne, on or about March 23, 2016 and
Randy "[b]eginning
thereafter through a continuous course of treatment to and or
continuing including
about May 12, 2016", while the decedent was admitted to Harlem Hospital
apparently
Center. (Ex. C, ¶¶ 34 & 35-54.)
2
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The Verified Complaint makes the following specific assertions as against "NYC
Surgical Associates, P.C.": (i) "[a]t all times herein mentioned, defendant NYC
SURGICAL ASSOCIATES, P.C., was a professional limited liability
corporation duly
York"
organized and existing under and by virtue of the laws of the State of New
(Verified Complaint (Tonis Aff. Ex. "C") at 1 23); (ii) "[a]t all times herein mentioned,
plaintiff's decedent RANDY THORNE was a patient of defendant NYC SURGICAL
P.C."
ASSOCIATES, (Id. at 124); and (iii) "[a]t all times herein mentioned, defendant
BORIS PAUL, M.D. was an agent, servant and/or employee of defendant NYC
P.C."
SURGICAL ASSOCIATES, (Id. at I 25).
As set forth in the Tonis Affidavit submitted herewith, each of these assertions is
Plaintiffs'
false. Thus, on June 21, 2017, Greuner Medical NJ's counsel spoke with
counsel telephone to him of the reasons this action lacks merit
by notify why completely
Plaintiffs'
(i.e., Greuner Medical NJ never saw, examined, or treated decedent).
Plaintiffs' P.C."
counsel advised that "NYC Surgical Associates, had been named as a
defendant in this action due to some perceived between it and named co-
relationship
Plaintiffs'
defendant Dr. Boris Paul, who had apparently provided medical treatment to
decedent. (Affirmation of Kieran X. Bastible, dated April 9, 2018 at 1 4. ("Bastible
Aff.")). Greuner Medical NJ C.O.O. Adam M. Tonis thus investigated that assertion and
found that, while Dr. Paul had once interviewed for a position with Greuner Medical NJ
or an entity affiliated through common ownership, he had not been hired by, nor had
3
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he ever treated or seen any patient at or on behalf of, Greuner Medical NJ, or any other
Plaintiffs'
entity affiliated through common ownership. (Tonis Aff. at 1 ). counsel was
so advised in a June 28, 2017 letter, which reminded him of the relevant for
authority
frivolous litigation. (Bastible Aff. at Ex. E). Plaintiffs refused to discontinue the action.
Thus, Greuner Medical NJ filed and served its Answer, annexed to the Tonis Aff.
Plaintiffs'
as Exhibit D, on July 20, 2017. In the Answer, it denied essentially all of
allegations and asserted numerous affirmative defenses, as a second
including
Plaintiffs'
affirmative defense that decedent was never a patient of, treated by, or
examined by Greuner Medical NJ. (Id. at p.2, 17).
Just recently, further telephone conversations were held between counsel during
Plaintiffs'
the week of March 30, 2018, wherein counsel was asked again to discontinue
Plaintiffs'
the action as against Greuner Medical NJ based upon the lack of nexus to
any
decedent. To date, Plaintiffs have refused.
ARGUMENT
The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate
any material issues of fact from the case. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324
(1986). Once such proof has been offered, the burden then shifts to the opposing party,
who, to defeat the motion, must proffer evidence in admissible form and must show
facts sufficient to require a trial on any issue of fact. Id. "...[M]ere conclusions,
4
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insufficient."
expressions of hope or unsubstantiated allegations or assertions are
Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).
Greuner Medical NJ meets its burden of its entitlement to summary
establishing
judgment as a matter of law. It can make a prima facie showing that this action is
baseless as against itbecause it is not a proper party. It is inconceivable that Plaintiffs
could raise a triable issue of material fact. Greuner Medical NJ is also entitled to
attorneys'
reimbursement of its fees and costs for the defense of this action. Itnotified
Plaintiffs'
counsel, in writing, that this litigation is meritless and requested
completely
attorneys'
that they voluntarily discontinue itso that it could fees. Because
stop paying
Plaintiffs have chosen to disregard Greuner Medical NJ's and proceed with
warning
this frivolous lawsuit, the Court should impose sanctions, including costs and
attorneys'
fees, and order a hearing to determine specific amounts.
POINT I
GREUNER MEDICAL NJ IS ENTITLED TO SUMMARY
JUDGMENT BECAUSE IT IS NOT A PROPER PARTY
This action should be dismissed because Greuner Medical NJ is not a proper
party. A defendant may be properly dismissed if it is not a proper party. See, e.g.,
Gonzalez v. New 94 A.D.3d 559 (1st 2012)("Under
City of York, Dep't the circumstances,
the action was properly dismissed since defendant is not a proper party."); Arguelles
M.D., P.C. v. Omni Indemnity Co., 51 Misc.3d 133(A), 37 N.Y.S.3d 206 (Table), 2016 WL
5
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1438356, 2016 N.Y. Op. 50524(U)(App. Term, 2d Dep't 2016)(affidavits sufficiently
Slip
established that plaintiff had sued the wrong party).
It is axiomatic that, in order to maintain an action to recover damages arising
from medical malpractice, a doctor-patient must exist. Heller v. Peekskill
relationship
Community Hospital, 198 A.D.2d 265 (2d Dep't. 1993). This relationship is created when a
physician's services are rendered to, and accepted by, another person for purposes of
medical or surgical treatment. Garofalo v. State of New York, 17 A.D.3d 1109, 794 N.Y.S.2d
269 (4th Dep't. 2005).
As set forth in the Tonis Affidavit submitted herewith, Greuner Medical
fully
Plaintiffs'
N.J. never engaged in medical treatment, of kind, to decedent,
providing any
nor was named co-defendant Boris Paul, M.D., ever employed by, or affiliated with
Greuner Medical N.J. in capacity. (Tonis Aff. at 1 8). Tellingly, Dr. Paul himself
any
"25"
denies each and every allegation set forth in paragraph of the Verified Complaint,
wherein Plaintiffs alleged he "was an agent, servant and/or employee of defendant
P.C."
NYC SURGICAL ASSOCIATES, (Tonis Aff. at Ex. C, T 25; Bastible Aff. at Ex. H, ¶
6).
Therefore, as a matter of law, there cannot have been any doctor-patient
relationship between Greuner Medical NJ and the decedent, and there were no medical
services rendered by Greuner Medical NJ, or accepted the decedent. This lawsuit
by
should be dismissed in its as against Greuner Medical NJ.
entirety
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POINT II
THE COURT SHOULD IMPOSE SANCTIONS
In New York, a plaintiff is prohibited from commencing a frivolous litigation.
Specifically, 22 NYCRR § 130-1.1(c) provides that conduct is frivolous if it "is
completely without merit in law and cannot be supported a reasonable argument for
by
law."
an extension, modification or reversal of existing 22 NYCRR § 130-1.1(a) gives
courts the discretion to impose financial sanctions or order the reimbursement of costs
attorneys'
and fees in such situations:
The court, in its discretion, may award to any party or
attorney in civil action or proceeding before the
any
court...costs in the form of reimbursement for actual
attorneys'
expenses reasonably incurred and reasonable fees
from frivolous conduct. In addition to or in lieu of
resulting
awarding costs, the court, in its discretion may impose
financial sanctions upon or in a civil
any party attorney
action or proceeding who engaged in frivolous conduct.
Because Plaintiffs sued an improper party, their action, as against Greuner
Medical NJ is without merit in law and cannot be supported a
"completely by
law"
reasonable argument for an extension, modification, or reversal of and
existing
subject to the imposition of sanctions.
Greuner Medical notified Plaintiffs-in— and with ample
Furthermore, NJ writing
support-of the reasons that this action lacked merit and gave them the opportunity to
discontinue without further consequences. (See Bastible Aff. at Ex.E). That Plaintiff and
7
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their counsel chose to proceed with this action, despite been made aware that it
having
was completely meritless, is even more reason to impose sanctions. Through last month,
Greuner Medical NJ has been billed $3440 in connection with the defense of this action,
which total will increase as a result of motion practice. (Tonis Aff. ¶ 14).
only
CONCLUSION
For the reasons stated above, this Court should grant Greuner Medical NJ's
Plaintiffs'
motion for judgment, Verified Complaint as against itas
summary dismissing
attorneys'
a matter of law, and impose sanctions, fees and costs, against
including
Plaintiff for her frivolous conduct in and this meritless action
commencing continuing
against it.
Dated: Garden City, New York
April 10, 2018
KIRSCHENBAUM & KIRSCHENBAUM, P.C.
Attorneys for Defendant Greuner Medical NJ PC,
incorrectly sued herein as NYC Surgical Associates,
P.C.
By:
p ~l
Kieran X. Bastible, Esq.
200 Garden City Plaza, Suite 315
Garden City, New York 11530
(516) 747-6700
8
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Preview
FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------________________-------------------______-----------------------X RENEE THORNE, As Administrator of the Estate of RANDY THORNE, Deceased, and, PEARL THORNE, Index No.: 805204/2017 Individually, Plaintiff, -against- 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 MANOO, M.D., BORIS PAUL, M.D., NYC SURGICAL ASSOCIATES, P.C., SIMONA BRATU, M.D., and MEENA AHLUWANIA, M.D., Defendants. —————————————————— ---------------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND FOR SANCTIONS On the brief: Kieran X. Bastible, Esq. 1 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 PRELIMINARY STATEMENT Defendant Greuner Medical of NJ PC, sued incorrectly herein as NYC Surgical Associates, P.C., ("Greuner Medical NJ") submits this memorandum of law in support of its motion for summary judgment and for sanctions. On May 24, 2017, Plaintiffs brought this action against, inter alia, Greuner Plaintiffs' Medical NJ, that, the treatment of decedent from on or about claiming during March 23, 2016 through and 12, 2016, itcommitted medical malpractice, including May while Plaintiff's decedent was admitted to Harlem Hospital Center. apparently Greuner Medical NJ moves for summary judgment based upon CPLR § 3212(e) and the second affirmative defense set forth in its answer, which is sufficient to warrant Plaintiffs' the of summary judgment Verified Complaint as a granting dismissing Plaintiffs' matter of law. All of causes of action as against Greuner Medical NJ must be Plaintiffs' dismissed because decedent was never a patient of, treated by, or examined Greuner Medical NJ. by Greuner Medical NJ also requests that the Court impose sanctions upon Plaintiffs pursuant to 22 NYCRR § 130-1.1 because this action is completely meritless. This Court should consider, as added justification for sanctions, that Greuner Medical NJ, through counsel, first notified Plaintiffs and their attorneys of this fact in June, 2017, giving them the opportunity to discontinue without consequences, but opted to proceed. they Through last month, Greuner Medical NJ has been billed its counsel $3440 in by 1 2 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 connection with the defense of this action, which total will increase as a result of only motion practice. STATEMENT OF FACTS Greuner Medical of NJ PC is a professional corporation formed in February, 2012, and organized and existing under the laws of the State of New Jersey. See Affidavit of Adam M. Tonis, D.C., sworn to on April 10, 2018 ("Tonis Aff."), 1 3. In March, 2012, Greuner Medical NJ registered the alternate name "NYC Surgical Associates" with the State of New Jersey. (Id.at 13, Exh. "B"). There is no entity named P.C." "NYC Surgical Associates, in either New Jersey or New York. (Id.) On May 24, 2017, Plaintiffs commenced this action against named defendant "NYC Surgical Associates, P.C.", among others, by filing and serving a Summons and Verified Complaint in Supreme Court, New York County. (Tonis Aff. at Exh. "C"). In the Verified Complaint, Plaintiffs brought claims against NYC Surgical Associates, P.C. and other medical professionals for medical malpractice, lack of informed consent, loss of services and wrongful death related to the medical treatment that was provided to Plaintiffs' decedent, Thorne, on or about March 23, 2016 and Randy "[b]eginning thereafter through a continuous course of treatment to and or continuing including about May 12, 2016", while the decedent was admitted to Harlem Hospital apparently Center. (Ex. C, ¶¶ 34 & 35-54.) 2 3 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 The Verified Complaint makes the following specific assertions as against "NYC Surgical Associates, P.C.": (i) "[a]t all times herein mentioned, defendant NYC SURGICAL ASSOCIATES, P.C., was a professional limited liability corporation duly York" organized and existing under and by virtue of the laws of the State of New (Verified Complaint (Tonis Aff. Ex. "C") at 1 23); (ii) "[a]t all times herein mentioned, plaintiff's decedent RANDY THORNE was a patient of defendant NYC SURGICAL P.C." ASSOCIATES, (Id. at 124); and (iii) "[a]t all times herein mentioned, defendant BORIS PAUL, M.D. was an agent, servant and/or employee of defendant NYC P.C." SURGICAL ASSOCIATES, (Id. at I 25). As set forth in the Tonis Affidavit submitted herewith, each of these assertions is Plaintiffs' false. Thus, on June 21, 2017, Greuner Medical NJ's counsel spoke with counsel telephone to him of the reasons this action lacks merit by notify why completely Plaintiffs' (i.e., Greuner Medical NJ never saw, examined, or treated decedent). Plaintiffs' P.C." counsel advised that "NYC Surgical Associates, had been named as a defendant in this action due to some perceived between it and named co- relationship Plaintiffs' defendant Dr. Boris Paul, who had apparently provided medical treatment to decedent. (Affirmation of Kieran X. Bastible, dated April 9, 2018 at 1 4. ("Bastible Aff.")). Greuner Medical NJ C.O.O. Adam M. Tonis thus investigated that assertion and found that, while Dr. Paul had once interviewed for a position with Greuner Medical NJ or an entity affiliated through common ownership, he had not been hired by, nor had 3 4 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 he ever treated or seen any patient at or on behalf of, Greuner Medical NJ, or any other Plaintiffs' entity affiliated through common ownership. (Tonis Aff. at 1 ). counsel was so advised in a June 28, 2017 letter, which reminded him of the relevant for authority frivolous litigation. (Bastible Aff. at Ex. E). Plaintiffs refused to discontinue the action. Thus, Greuner Medical NJ filed and served its Answer, annexed to the Tonis Aff. Plaintiffs' as Exhibit D, on July 20, 2017. In the Answer, it denied essentially all of allegations and asserted numerous affirmative defenses, as a second including Plaintiffs' affirmative defense that decedent was never a patient of, treated by, or examined by Greuner Medical NJ. (Id. at p.2, 17). Just recently, further telephone conversations were held between counsel during Plaintiffs' the week of March 30, 2018, wherein counsel was asked again to discontinue Plaintiffs' the action as against Greuner Medical NJ based upon the lack of nexus to any decedent. To date, Plaintiffs have refused. ARGUMENT The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Once such proof has been offered, the burden then shifts to the opposing party, who, to defeat the motion, must proffer evidence in admissible form and must show facts sufficient to require a trial on any issue of fact. Id. "...[M]ere conclusions, 4 5 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 insufficient." expressions of hope or unsubstantiated allegations or assertions are Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Greuner Medical NJ meets its burden of its entitlement to summary establishing judgment as a matter of law. It can make a prima facie showing that this action is baseless as against itbecause it is not a proper party. It is inconceivable that Plaintiffs could raise a triable issue of material fact. Greuner Medical NJ is also entitled to attorneys' reimbursement of its fees and costs for the defense of this action. Itnotified Plaintiffs' counsel, in writing, that this litigation is meritless and requested completely attorneys' that they voluntarily discontinue itso that it could fees. Because stop paying Plaintiffs have chosen to disregard Greuner Medical NJ's and proceed with warning this frivolous lawsuit, the Court should impose sanctions, including costs and attorneys' fees, and order a hearing to determine specific amounts. POINT I GREUNER MEDICAL NJ IS ENTITLED TO SUMMARY JUDGMENT BECAUSE IT IS NOT A PROPER PARTY This action should be dismissed because Greuner Medical NJ is not a proper party. A defendant may be properly dismissed if it is not a proper party. See, e.g., Gonzalez v. New 94 A.D.3d 559 (1st 2012)("Under City of York, Dep't the circumstances, the action was properly dismissed since defendant is not a proper party."); Arguelles M.D., P.C. v. Omni Indemnity Co., 51 Misc.3d 133(A), 37 N.Y.S.3d 206 (Table), 2016 WL 5 6 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 1438356, 2016 N.Y. Op. 50524(U)(App. Term, 2d Dep't 2016)(affidavits sufficiently Slip established that plaintiff had sued the wrong party). It is axiomatic that, in order to maintain an action to recover damages arising from medical malpractice, a doctor-patient must exist. Heller v. Peekskill relationship Community Hospital, 198 A.D.2d 265 (2d Dep't. 1993). This relationship is created when a physician's services are rendered to, and accepted by, another person for purposes of medical or surgical treatment. Garofalo v. State of New York, 17 A.D.3d 1109, 794 N.Y.S.2d 269 (4th Dep't. 2005). As set forth in the Tonis Affidavit submitted herewith, Greuner Medical fully Plaintiffs' N.J. never engaged in medical treatment, of kind, to decedent, providing any nor was named co-defendant Boris Paul, M.D., ever employed by, or affiliated with Greuner Medical N.J. in capacity. (Tonis Aff. at 1 8). Tellingly, Dr. Paul himself any "25" denies each and every allegation set forth in paragraph of the Verified Complaint, wherein Plaintiffs alleged he "was an agent, servant and/or employee of defendant P.C." NYC SURGICAL ASSOCIATES, (Tonis Aff. at Ex. C, T 25; Bastible Aff. at Ex. H, ¶ 6). Therefore, as a matter of law, there cannot have been any doctor-patient relationship between Greuner Medical NJ and the decedent, and there were no medical services rendered by Greuner Medical NJ, or accepted the decedent. This lawsuit by should be dismissed in its as against Greuner Medical NJ. entirety 6 7 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 POINT II THE COURT SHOULD IMPOSE SANCTIONS In New York, a plaintiff is prohibited from commencing a frivolous litigation. Specifically, 22 NYCRR § 130-1.1(c) provides that conduct is frivolous if it "is completely without merit in law and cannot be supported a reasonable argument for by law." an extension, modification or reversal of existing 22 NYCRR § 130-1.1(a) gives courts the discretion to impose financial sanctions or order the reimbursement of costs attorneys' and fees in such situations: The court, in its discretion, may award to any party or attorney in civil action or proceeding before the any court...costs in the form of reimbursement for actual attorneys' expenses reasonably incurred and reasonable fees from frivolous conduct. In addition to or in lieu of resulting awarding costs, the court, in its discretion may impose financial sanctions upon or in a civil any party attorney action or proceeding who engaged in frivolous conduct. Because Plaintiffs sued an improper party, their action, as against Greuner Medical NJ is without merit in law and cannot be supported a "completely by law" reasonable argument for an extension, modification, or reversal of and existing subject to the imposition of sanctions. Greuner Medical notified Plaintiffs-in— and with ample Furthermore, NJ writing support-of the reasons that this action lacked merit and gave them the opportunity to discontinue without further consequences. (See Bastible Aff. at Ex.E). That Plaintiff and 7 8 of 9 FILED: NEW YORK COUNTY CLERK 04/12/2018 12:04 PM INDEX NO. 805204/2017 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/12/2018 their counsel chose to proceed with this action, despite been made aware that it having was completely meritless, is even more reason to impose sanctions. Through last month, Greuner Medical NJ has been billed $3440 in connection with the defense of this action, which total will increase as a result of motion practice. (Tonis Aff. ¶ 14). only CONCLUSION For the reasons stated above, this Court should grant Greuner Medical NJ's Plaintiffs' motion for judgment, Verified Complaint as against itas summary dismissing attorneys' a matter of law, and impose sanctions, fees and costs, against including Plaintiff for her frivolous conduct in and this meritless action commencing continuing against it. Dated: Garden City, New York April 10, 2018 KIRSCHENBAUM & KIRSCHENBAUM, P.C. Attorneys for Defendant Greuner Medical NJ PC, incorrectly sued herein as NYC Surgical Associates, P.C. By: p ~l Kieran X. Bastible, Esq. 200 Garden City Plaza, Suite 315 Garden City, New York 11530 (516) 747-6700 8 9 of 9