Preview
FILED: KINGS COUNTY CLERK 08/08/2022 10:10 PM INDEX NO. 514355/2021
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
________________.-------------------________________________----__Ç
JAEL TUSA QUINGA, Index No. 514355/2021E
Plaintiff,
-against- REPLY AFFIRMATION
BRITNEY TUSA QU1NGA, as Administrator of
the Estate of LEONEL G. TUSA MASAQUIZA,
FTL 1001, LLC, RIGO LIMO-AUTO CORP.,
and PAUDY A. NUNEZ-ARIAS,
Defendants
__________________..____________________________--------____---Ç
EUGENE M. BELLIN, an attorney admitted to practice before the Courts of the State
of New York, affirms, under penalty of perjury, the following:
1. I am the attorney for plaintiff JAEL TUSA QUINGA in this action and am fully
familiar with the facts and circumstances upon which this affirmation is based.
2. This affirmation is submitted in reply to the affirmation of MARIA E. OCHOA
RAMOS in opposition to the plaintiff's motion (1) for a protective order pursuant to CPLR 3103(a)
denying the request of defendants FTL 1001, LLC, RIGO LIMO-AUTO CORP. and PAUDY A.
NUNEZ-ARIAS for additional physical examinations of the plaintiff; and (2) directing defendant
PAUDY A. NUNEZ-ARIAS to appear for examination before trialon August 19, 2022.
3. Once again, defense counsel have ignored the rules of this court, submitting
untimely opposition to this motion. The instant motion was filed on July 21, 2022, returnable on
. .......... .
August9, 2022, and-includednotice pursuant to1CPLR 2214(b) requiring añswëfing]5äpers seven
days before the hearing of the motion. The defendants filed their opposition at 1:21 p.m. the day
before the return date. The obvious intent is to deny moving counsel an opportunity to prepare
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appropriate response to the opposition. Consequently, their opposition should not be considered by
this Court.
4. In any event, the plaintiff's motion should be granted because plaintiff's counsel
defendants'
made extensive unsuccessful attempts to communicate with an attorney in the office of
attorneys, and defendants have failed to justify their failure to comply with the preliminary
conference order.
Plaintiff's Efforts to Resolve the Issues Raised by this Motion
Fully Complied with the Requirements of 22 NYCRR 202.7(a)(2).
5. Defense counsel's exhibit of emails between the parties is incomplete. On July
7, 2022, I placed numerous telephone calls to the office of BAKER McEVOY and forwarded an
email (Exhibit D) to attorney CHRISTOPHER NAHAS, an attorney at BAKER McEVOY with
whom I bad previously communicated, asking him to call me to discuss both the examination before
trial of defendant NUNEZ-ARIAS and their notice of medical examination. (That email was
returned as undeliverable.) I then sent an email (Exhibit E) to LESLY RABB at BAKER McEVOY,
asking her to call me to discuss her firm's notice of IME. On July 12, 2022, I received an email
from JULIENNE SIANO, Esq. (Exhibit F), representing that she was handling this case for BAKER
McEVOY and including a proposed compliance conference order. The following day I sentan email
(Exhibit G) to Ms. SIANO objecting to the lengthy proposed delay for the deposition of defendant
NUNEZ-ARIAS and indicating that the compliance conference order should reflect that an IME by
a doctor designated by the firm of JAMES G. BILELLO & ASSOCIATES had already been
conducted and should be shared by the two defense firms. My email included a proposed alternative
compliance conference order. That same day, Ms. SIANO replied (Exhibit H) with a justification
for the length of the delay in the NUNEZ-ARIAS examination, a statement that as a rule the BAKER
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McEVOY firm does not share a co-defendant's IMEs, and a rejection of my proposed alternate
compliance conference order.
6. On July 19, 2022, I sent Ms. SIANO an email (Exhibit I) asking if she was
available to discuss the issues and, if she was not, to provide me with contact information for an
attorney at BAKER McEVOY who was. Ms. SIANO responded (Exhibit J) that she was not
available to discuss this until July 25. She did not provide contact information for anyone at
BAKER McEVOY. That day I sent an email (Exhibit K) to an EBT clerk at BAKER McEVOY
confirmation of an August 19 date for the examination before trialof defendant NUNEZ-
requesting
ARIAS and requesting that an attorney from that office call me to discuss the compliance conference
order and the request for an orthopaedic IME or that she provide me with the name and contact
information for an attorney. I also sent another email to Ms. SIANO (Exhibit L) asking her to
provide contact information for an attorney at BAKER McEVOY who could discuss the issues with
me. Ms. Siano responded (Exhibit M) indicating that itwas her assignment to compromise as she
sees fitand insisting that her client be allowed to designate and hold an IME [in addition to the one
co-defendants'
conducted by counsel].
7. At that point, itwas clear that no amount of communication was going to resolve
the issues raised by the plaintiff's motion.
8. In short, the undersigned made numerous attempts to discuss the issues raised by
this motion with Ms. SIANO and repeatedly unsuccessfully requested contact information for an
attorney in the BAKER McEVOY firm with whom I could discuss the issues raised by this motion.
Defense counseFeannot withhold contact infonnation and then complain about a lackmf Mñtãct
9. Defense counsel's complaint that all of my efforts to communicate were by email
overlooks the fact that all of the attorneys in the firm of BAKER McEVOY now work remotely and
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cannot be reached directly by a telephone call to their office. Furthermore, the Appellate Division
of this department has held that efforts to resolve the issues raised in this type of motion through
multiple emails satisfy the requirements of 22 NYCRR 202.7. Matter of Cheryl LaBella
Hoppenstein 2005 Trust, 186 A.D.3d 1230, 1233, 139 N.Y.S.3d 530, 534 (2d Dept. 2020).
10. The foregoing makes itclear that plaintiff's counsel made the diligent efforts to
resolve these discovery disputes required by 22 NYCRR 207.7.
These Defendants Waived Their Right to Separate IME Exams
by Failing to Comply with the Preliminary Conference Order.
11. Counsel for defendants FTL 1001, LLC, RIGO LIMO-AUTO CORP. and
PAUDY A. NUNEZ-ARIA have demonstrated in this case a propensity to ignore rules and court
orders. Filing the last-minute opposition to this motion is one example. The late submission of
requests for physical examinations is another example. As pointed out in the moving papers, the
preliminary conference order required physical examinations ofthe plaintiff to be designated within
20 days of the plaintiff's deposition and completed within 45 days of her deposition, which was
defendants'
conducted on May 18, 2022. The physical examination notices attached to the
affirmation in opposition are dated 2022 - the AFTER this motion was 65 days
July 22, day filed,
after the plaintiff's deposition was conducted, and 45 days after the deadline for such a notice.
12. Any order granting this motion should encompass the defendants'new IME
designations dated July 22, 2022.
13. The requirements ofthe compliance conference order and § 202.20-e of the New
York Court Rules have no meaning if counsel is permitted to repeatedly ignore the requirements of
statute and court order. Consequently, the plaintiff's motion for a protective order with respect to
physical examinations should be granted in itsentirety and defendant NUNEZ ARIAS should be
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directed to appear for examination before trialon August 2022.
19,
WHEREFORE, itis respectfully requested that the instant motion be granted in its
entirety.
Dated: August 8, 2022
gene M. Bellin
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Preview
FILED: KINGS COUNTY CLERK 08/08/2022 10:10 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ________________.-------------------________________________----__Ç JAEL TUSA QUINGA, Index No. 514355/2021E Plaintiff, -against- REPLY AFFIRMATION BRITNEY TUSA QU1NGA, as Administrator of the Estate of LEONEL G. TUSA MASAQUIZA, FTL 1001, LLC, RIGO LIMO-AUTO CORP., and PAUDY A. NUNEZ-ARIAS, Defendants __________________..____________________________--------____---Ç EUGENE M. BELLIN, an attorney admitted to practice before the Courts of the State of New York, affirms, under penalty of perjury, the following: 1. I am the attorney for plaintiff JAEL TUSA QUINGA in this action and am fully familiar with the facts and circumstances upon which this affirmation is based. 2. This affirmation is submitted in reply to the affirmation of MARIA E. OCHOA RAMOS in opposition to the plaintiff's motion (1) for a protective order pursuant to CPLR 3103(a) denying the request of defendants FTL 1001, LLC, RIGO LIMO-AUTO CORP. and PAUDY A. NUNEZ-ARIAS for additional physical examinations of the plaintiff; and (2) directing defendant PAUDY A. NUNEZ-ARIAS to appear for examination before trialon August 19, 2022. 3. Once again, defense counsel have ignored the rules of this court, submitting untimely opposition to this motion. The instant motion was filed on July 21, 2022, returnable on . .......... . August9, 2022, and-includednotice pursuant to1CPLR 2214(b) requiring añswëfing]5äpers seven days before the hearing of the motion. The defendants filed their opposition at 1:21 p.m. the day before the return date. The obvious intent is to deny moving counsel an opportunity to prepare 1 of 5 FILED: KINGS COUNTY CLERK 08/08/2022 10:10 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/08/2022 appropriate response to the opposition. Consequently, their opposition should not be considered by this Court. 4. In any event, the plaintiff's motion should be granted because plaintiff's counsel defendants' made extensive unsuccessful attempts to communicate with an attorney in the office of attorneys, and defendants have failed to justify their failure to comply with the preliminary conference order. Plaintiff's Efforts to Resolve the Issues Raised by this Motion Fully Complied with the Requirements of 22 NYCRR 202.7(a)(2). 5. Defense counsel's exhibit of emails between the parties is incomplete. On July 7, 2022, I placed numerous telephone calls to the office of BAKER McEVOY and forwarded an email (Exhibit D) to attorney CHRISTOPHER NAHAS, an attorney at BAKER McEVOY with whom I bad previously communicated, asking him to call me to discuss both the examination before trial of defendant NUNEZ-ARIAS and their notice of medical examination. (That email was returned as undeliverable.) I then sent an email (Exhibit E) to LESLY RABB at BAKER McEVOY, asking her to call me to discuss her firm's notice of IME. On July 12, 2022, I received an email from JULIENNE SIANO, Esq. (Exhibit F), representing that she was handling this case for BAKER McEVOY and including a proposed compliance conference order. The following day I sentan email (Exhibit G) to Ms. SIANO objecting to the lengthy proposed delay for the deposition of defendant NUNEZ-ARIAS and indicating that the compliance conference order should reflect that an IME by a doctor designated by the firm of JAMES G. BILELLO & ASSOCIATES had already been conducted and should be shared by the two defense firms. My email included a proposed alternative compliance conference order. That same day, Ms. SIANO replied (Exhibit H) with a justification for the length of the delay in the NUNEZ-ARIAS examination, a statement that as a rule the BAKER 2 of 5 FILED: KINGS COUNTY CLERK 08/08/2022 10:10 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/08/2022 McEVOY firm does not share a co-defendant's IMEs, and a rejection of my proposed alternate compliance conference order. 6. On July 19, 2022, I sent Ms. SIANO an email (Exhibit I) asking if she was available to discuss the issues and, if she was not, to provide me with contact information for an attorney at BAKER McEVOY who was. Ms. SIANO responded (Exhibit J) that she was not available to discuss this until July 25. She did not provide contact information for anyone at BAKER McEVOY. That day I sent an email (Exhibit K) to an EBT clerk at BAKER McEVOY confirmation of an August 19 date for the examination before trialof defendant NUNEZ- requesting ARIAS and requesting that an attorney from that office call me to discuss the compliance conference order and the request for an orthopaedic IME or that she provide me with the name and contact information for an attorney. I also sent another email to Ms. SIANO (Exhibit L) asking her to provide contact information for an attorney at BAKER McEVOY who could discuss the issues with me. Ms. Siano responded (Exhibit M) indicating that itwas her assignment to compromise as she sees fitand insisting that her client be allowed to designate and hold an IME [in addition to the one co-defendants' conducted by counsel]. 7. At that point, itwas clear that no amount of communication was going to resolve the issues raised by the plaintiff's motion. 8. In short, the undersigned made numerous attempts to discuss the issues raised by this motion with Ms. SIANO and repeatedly unsuccessfully requested contact information for an attorney in the BAKER McEVOY firm with whom I could discuss the issues raised by this motion. Defense counseFeannot withhold contact infonnation and then complain about a lackmf Mñtãct 9. Defense counsel's complaint that all of my efforts to communicate were by email overlooks the fact that all of the attorneys in the firm of BAKER McEVOY now work remotely and 3 of 5 FILED: KINGS COUNTY CLERK 08/08/2022 10:10 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/08/2022 cannot be reached directly by a telephone call to their office. Furthermore, the Appellate Division of this department has held that efforts to resolve the issues raised in this type of motion through multiple emails satisfy the requirements of 22 NYCRR 202.7. Matter of Cheryl LaBella Hoppenstein 2005 Trust, 186 A.D.3d 1230, 1233, 139 N.Y.S.3d 530, 534 (2d Dept. 2020). 10. The foregoing makes itclear that plaintiff's counsel made the diligent efforts to resolve these discovery disputes required by 22 NYCRR 207.7. These Defendants Waived Their Right to Separate IME Exams by Failing to Comply with the Preliminary Conference Order. 11. Counsel for defendants FTL 1001, LLC, RIGO LIMO-AUTO CORP. and PAUDY A. NUNEZ-ARIA have demonstrated in this case a propensity to ignore rules and court orders. Filing the last-minute opposition to this motion is one example. The late submission of requests for physical examinations is another example. As pointed out in the moving papers, the preliminary conference order required physical examinations ofthe plaintiff to be designated within 20 days of the plaintiff's deposition and completed within 45 days of her deposition, which was defendants' conducted on May 18, 2022. The physical examination notices attached to the affirmation in opposition are dated 2022 - the AFTER this motion was 65 days July 22, day filed, after the plaintiff's deposition was conducted, and 45 days after the deadline for such a notice. 12. Any order granting this motion should encompass the defendants'new IME designations dated July 22, 2022. 13. The requirements ofthe compliance conference order and § 202.20-e of the New York Court Rules have no meaning if counsel is permitted to repeatedly ignore the requirements of statute and court order. Consequently, the plaintiff's motion for a protective order with respect to physical examinations should be granted in itsentirety and defendant NUNEZ ARIAS should be 4 of 5 FILED: KINGS COUNTY CLERK 08/08/2022 10:10 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 08/08/2022 directed to appear for examination before trialon August 2022. 19, WHEREFORE, itis respectfully requested that the instant motion be granted in its entirety. Dated: August 8, 2022 gene M. Bellin 5 of 5