Preview
FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022
Betancourt, Van Hemmen, Greco & Kenyon LLC
Attorneys for Defendant
Weeks Marine, Inc.
75 South Broadway - 4th Floor
White Plains, New York 10601
(914) 997-1100
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------- X
DARRYL NOWAK, :
: Index No. 154000/2018
Plaintiff, :
: AFFIRMATION OF
-v- : RONALD BETANCOURT
: IN SUPPORT OF MOTION
SEA WOLF MARINE TRANSPORTATION, LLC : FOR DISCOVERY
and WITTICH BROTHERS MARINE, INC., and : SANCTIONS AGAINST
WEEKS MARINE, INC. : PLAINTIFF PURSUANT
: TO CPLR § 3126
Defendants. :
----------------------------------------------------------------------- X
RONALD BETANCOURT, an attorney duly admitted to practice law before the
Courts of the State of New York, does hereby affirm the following facts under penalty of
perjury:
1. I am a member of the firm of Betancourt, Van Hemmen, Greco & Kenyon LLC,
attorneys for defendant Weeks Marine, Inc. (“Weeks”), and, as such, I am fully
familiar with the facts and circumstances surrounding this matter.
2. I submit this affirmation in support of defendant Weeks’ motion for discovery
sanctions against plaintiff. No prior application for this relief has been requested.
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3. This is a maritime personal injury case. Plaintiff, a marine construction worker
employed by Weeks, claims he sustained injuries when he fell into the Hudson
River while stepping from a stationary construction barge onto a tug boat.
THE OUTSTANDING DISCOVERY,
THE COURT’S ORDER, AND WEEKS’
ATTEMPTS TO OBTAIN THE DISCOVERY
4. Plaintiff was deposed on May 27, 2022 and requests for the production of
documents listed below were made during his deposition:
• plaintiff’s IRS tax records for the years 2019, 2020 and 2021 (p. 279);
• IRS notices to plaintiff concerning disallowed deductions and expenses (p.
328);
• a copy of plaintiff’s current passport and all previous passports (p. 314); and
• duly executed authorizations for the release of medical records directed to
(1) Dr. Mark McMann, (2) Momentum Medicine Plus, (3) Jersey City
Diagnostic Center, and (4) Paul Furlaford (p. 324).
5. True and accurate copies of the relevant referenced pages of plaintiff’s May 27, 2022
deposition transcript are attached hereto as Exhibit A.
6. On June 13, 2022, I wrote to plaintiff’s counsel confirming the requests for signed
authorizations made at plaintiff’s deposition and I provided him with prepared
HIPAA authorizations for plaintiff’s signature. A true and accurate copy of my June
13, 2022 letter is attached hereto as Exhibit B.
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7. On June 13, 2022, I wrote another letter to plaintiff’s counsel requesting additional
signed authorizations for the release of plaintiff’s medical records from: (1) Dr.
Adrian Padkowsky, (2) Dr. George Padkowsky and (3) Dr. Charlie Gonzales, D.C.
My letter also requested signed IRS authorizations for the release of plaintiff’s
federal tax returns for the years 2019 through 2021. Prepared HIPAA and IRS form
authorizations were provided with my letter. A true and accurate copy of this letter
is attached hereto as Exhibit C.
8. On July 12, 2022, plaintiff’s counsel’s office produced further copies of previously
produced signed authorizations (for other medical care providers), but the signed
authorizations and documents requested at plaintiff’s deposition and in our June 13,
2022 letters were not produced.
9. On July 14, 2022, I wrote to plaintiff’s counsel and once again detailed the signed
authorizations and documents we had demanded and that were outstanding:
Thank you for your email. The signed authorizations you
provided below are not the ones outstanding and of which we
spoke. The presently outstanding authorizations are for:
1. Plaintiff’s tax records for 2019 through 2021;
2. Dr. Mark McMann;
3. Momentum Medicine Plus;
4. Jersey City Diagnostic Center;
5. Dr. Paul Furalford;
6. Dr. Adrian Padkowsky;
7. Dr. George Padkowsky; and
8. Dr. Charlie Gonzales.
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Attached are further copies of our earlier correspondence concerning same
along with blank form authorizations previously provided.
Also, at plaintiff’s deposition we demanded the production of
plaintiff’s tax records for 2019 through 2021 (trans. p. 279);
plaintiff’s current passport and all prior passports (trans. p. 314);
and IRS notices/correspondence regarding disallowed deductions
and/or expenses (trans. p. 328). Plaintiff testified he had copies of
all of these documents within his possession.
Would you kindly provide us with the requested executed authorizations
and documents without further delay. Thank you.
A true and accurate copy of my July 14, 2022 email as above is attached hereto as
Exhibit D.
10. On July 15, 2022, plaintiff’s counsel’s office responded to my July 14, 2022 email and
promised to provide us with the signed authorizations. A true and accurate copy
of plaintiff’s counsel’s office’s July 15, 2022 email is attached hereto as Exhibit E.
11. On August 1, 2022, the Court held a conference on the record to address
outstanding discovery. A true and accurate copy of the relevant portions of the
transcript of the August 1, 2022 proceedings is attached hereto as Exhibit F.
12. During the conference, my partner Alton Evans raised the issue of the outstanding
authorizations and documents due from plaintiff. He also informed the Court that
plaintiff’s counsel had a proxy to sign the requested authorizations on plaintiff’s
behalf. (See Ex. F at 18:20-19:1.)
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13. Plaintiff’s counsel interrupted Mr. Evans and stated: “Send me a copy and I’ll take
care of it today. I’ll give it to my paralegal and we’ll take care of it today; next.”
(See Ex. F at 19:12-14.)
14. Mr. Evans responded that production of the outstanding discovery by the end of the
week was sufficient. (See Ex. F at 19:15-19.)
15. The Court ordered plaintiff to respond within 30 days or on or before August 31,
2022. (See Ex. F at 19:20-20:5 (the transcript erroneously states October 31, 2022)).
16. After the conference, Mr. Evans sent plaintiff’s counsel a further copy of our July 14,
2022 email listing the overdue discovery as plaintiff’s counsel had requested. A true
and accurate copy of Mr. Evans’ August 1, 2022 email in this regard is attached
hereto as Exhibit G.
17. Subsequent to the conference, further investigation revealed yet another five doctors
not previously disclosed by plaintiff at his deposition or otherwise in discovery.
Accordingly, on August 18, 2022, I wrote to plaintiff’s counsel requesting signed
authorizations for the release of medical records from these five doctors:
C Alexander Visco, MD;
C Nicole Angelo, DO;
C Shahnaz Akhtar, MD;
C Ashish Kapoor, MD; and
C Karl Coutinho, MD.
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A true and accurate copy of my August 18, 2022 letter is attached hereto as Exhibit
H.
18. My August 18, 2022 letter also provided form authorizations directed to each of
these doctors and once again asked plaintiff’s counsel to provide the overdue
discovery detailed above. (See Ex. H.)
19. Plaintiff’s counsel responded immediately to my August 18, 2022 letter and the
following email exchange occurred between counsel:
Mr. Napoli Who are they when did he see them? Is it for injuries in this case?
Mr. Betancourt Yes, those would be good questions to ask your client.
Mr. Napoli Where did you get names
Mr. Betancourt From plaintiff’s records. Please Joe, lets avoid further motion practice
and delay. Would you please provide me with the documents and
signed authorizations (your office even has a proxy to sign the auths.)
It’s been months since plaintiff’s deposition and I’ve written
numerous times. Thanks for your anticipated cooperation.
A true and accurate copy of the above August 18, 2022 email exchange is attached
hereto as Exhibit I.
20. On August 24, 2022, in a good faith effort to avoid motion practice, I spoke with
plaintiff’s attorney Joseph Napoli by telephone and requested the long overdue
discovery discussed herein. Mr. Napoli asked me to call his paralegal Ivan
Rodriquez concerning the overdue discovery. I told Mr. Napoli that I had
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communicated with Mr. Rodriguez for months, but still had not received the
overdue discovery. I further told Mr. Napoli that he would leave me with no
alternative than to make yet another motion if the outstanding discovery were not
provided. Mr. Napoli responded very slowly:
“ALL RIGHT. MAKE A MOTION. I LOVE YOU. GOODBYE.”
Mr. Napoli then hung up the phone on me.
21. To date, plaintiff’s counsel has failed to produce the outstanding signed
authorizations and documents in complete and utter contempt of this Court’s Order
that he do so.
Plaintiff Should be Sanctioned for Refusing to Comply
with this Court’s Order to Provide Long Overdue Discovery.
22. Plaintiff’s repeated failures to provide the requested discovery demonstrate an
intentional design to evade, obstruct and delay discovery. This is especially true in
view of the fact that plaintiff’s counsel has plaintiff’s Power of Attorney to sign
medical record authorizations1 and that he stated to the Court on the record at the
1
Plaintiff’s counsel, not plaintiff, has signed all but four of the 18 medical record
authorizations provided in this case pursuant to a power of attorney given to him by
plaintiff on or about September 22, 2017. A true and accurate copy of plaintiff’s “Power
of Attorney to Execute HIPAA Medical Record Authorization Forms Pursuant to the
HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996
PUBLIC LAW 104-191, August 21, 1996,” dated and signed September 22, 2017 (the
“Power of Attorney”) is attached hereto as Exhibit J. Plaintiff’s Power of Attorney
permits plaintiff’s counsel to sign all of the authorizations directed to health care
providers and remains valid.
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August 1, 2022 conference that he would provide the overdue authorizations by the
end of that day. Plaintiff’s ultimate failure to provide the overdue discovery
following the conference and discovery order is a wilful and contumacious defiance
of this Court’s order to respond to Weeks’ discovery and plaintiff should be
sanctioned.
23. Plaintiff should not be permitted to prejudice Weeks by his counsel’s intentional
conduct aimed at preventing the release of his medical records, tax records and
passport. With today’s modern communications with email, PDF documents,
scanning and over-night delivery services, as well as plaintiff’s Power of Attorney,
plaintiff and his attorneys are no doubt able to produce properly executed and
signed authorizations in just a few days (indeed, if not within hours as plaintiff’s
counsel suggested to the Court on the record). Yet, throughout this litigation and
despite numerous motions and orders compelling plaintiff to do so, plaintiff has
still failed to provide the properly executed authorizations at issue.
24. C.P.L.R. § 3126 provides:
If any party, or a person who at the time a deposition is taken or an
examination or inspection is made is an officer, director, member, employee
or agent of a party or otherwise under a party's control, refuses to obey an
order for disclosure or wilfully fails to disclose information which the court
finds ought to have been disclosed pursuant to this article, the court may
make such orders with regard to the failure or refusal as are just, among
them:
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1. an order that the issues to which the information is relevant shall be
deemed resolved for purposes of the action in accordance with the claims of
the party obtaining the order; or
2. 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
3. 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.
N.Y. C.P.L.R. 3126 (McKinney).
21. Clearly, plaintiff’s wilful disobedience of this Court’s order in failing to produce
documents that are within his and his counsel’s control warrants dismissal of
plaintiff’s complaint as against Weeks. Alternatively, this Court should enter an
order pursuant to C.P.L.R. § 3126 prohibiting plaintiff from introducing any
evidence of physical or pecuniary damages at trial.
22. As a further alternative and with respect to the requested authorizations discussed
above, this Court should enter a conditional order precluding plaintiff from offering
evidence of physical injuries and damages at trial if the duly executed
authorizations are not received by Weeks within 7 days of the Court’s order.
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23. Weeks will suffer additional prejudice if the Court permits plaintiff to serve the
requested medical authorizations out of time. Plaintiff’s vocational interview with
Weeks’ vocational expert is presently scheduled for November 14, 2022. Plaintiff’s
independent medical examination with Weeks’ medical expert is presently
scheduled for November 15, 2022 (the “IME”). Even if Weeks receives plaintiff’s
authorizations after this motion is decided, it is highly unlikely that Weeks and its
experts will receive the medical records before the vocational interview and IME.
24. Plaintiff’s intentional delay will thus cause Weeks to incur additional expert fees
and costs for the supplemental review of records (received after the interview and
examination) and for the issuance of supplemental reports. Accordingly, this Court
should order that any and all expert fees and costs associated with Weeks’ experts’
review of records (as sought in this motion) and the preparation of any
supplemental reports concerning same shall be for plaintiff’s account.
25. Weeks should also be awarded attorneys’ fees and costs incurred to make this
motion. Plaintiff is not disputing the discovery due Weeks; plaintiff previously told
the Court he would provide it; and when I made the last good faith call (of many)
to avoid this motion, plaintiff’s counsel told me to make the motion and that he
loved me - in other words and to say mildly - to go jump in the lake. Weeks should
not have to incur attorneys’ fees and costs for plaintiff’s counsel’s bad faith conduct.
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26. I certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to
punishment.
Dated: September 21, 2022
White Plains, New York
BETANCOURT , VAN HEMMEN , GRECO & KENYON LLC
Attorneys for Defendant Weeks Marine, Inc.
By: s/ Ronald Betancourt
75 South Broadway - 4th Floor
White Plains, New York 10601
(914) 997-1100
To: NAPOLI SHKOLNIK , PLLC
Attorneys for Plaintiff
360 Lexington Ave, 11th Floor
New York, New York 10017
MAHONEY & KEANE , LLP
Attorneys for Defendants
Sea Wolf Marine Transportation, LLC
and Wittich Bros. Marine, Inc.
61 Broadway, Suite 905
New York, New York 10005
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Preview
FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 Betancourt, Van Hemmen, Greco & Kenyon LLC Attorneys for Defendant Weeks Marine, Inc. 75 South Broadway - 4th Floor White Plains, New York 10601 (914) 997-1100 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------- X DARRYL NOWAK, : : Index No. 154000/2018 Plaintiff, : : AFFIRMATION OF -v- : RONALD BETANCOURT : IN SUPPORT OF MOTION SEA WOLF MARINE TRANSPORTATION, LLC : FOR DISCOVERY and WITTICH BROTHERS MARINE, INC., and : SANCTIONS AGAINST WEEKS MARINE, INC. : PLAINTIFF PURSUANT : TO CPLR § 3126 Defendants. : ----------------------------------------------------------------------- X RONALD BETANCOURT, an attorney duly admitted to practice law before the Courts of the State of New York, does hereby affirm the following facts under penalty of perjury: 1. I am a member of the firm of Betancourt, Van Hemmen, Greco & Kenyon LLC, attorneys for defendant Weeks Marine, Inc. (“Weeks”), and, as such, I am fully familiar with the facts and circumstances surrounding this matter. 2. I submit this affirmation in support of defendant Weeks’ motion for discovery sanctions against plaintiff. No prior application for this relief has been requested. 1 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 3. This is a maritime personal injury case. Plaintiff, a marine construction worker employed by Weeks, claims he sustained injuries when he fell into the Hudson River while stepping from a stationary construction barge onto a tug boat. THE OUTSTANDING DISCOVERY, THE COURT’S ORDER, AND WEEKS’ ATTEMPTS TO OBTAIN THE DISCOVERY 4. Plaintiff was deposed on May 27, 2022 and requests for the production of documents listed below were made during his deposition: • plaintiff’s IRS tax records for the years 2019, 2020 and 2021 (p. 279); • IRS notices to plaintiff concerning disallowed deductions and expenses (p. 328); • a copy of plaintiff’s current passport and all previous passports (p. 314); and • duly executed authorizations for the release of medical records directed to (1) Dr. Mark McMann, (2) Momentum Medicine Plus, (3) Jersey City Diagnostic Center, and (4) Paul Furlaford (p. 324). 5. True and accurate copies of the relevant referenced pages of plaintiff’s May 27, 2022 deposition transcript are attached hereto as Exhibit A. 6. On June 13, 2022, I wrote to plaintiff’s counsel confirming the requests for signed authorizations made at plaintiff’s deposition and I provided him with prepared HIPAA authorizations for plaintiff’s signature. A true and accurate copy of my June 13, 2022 letter is attached hereto as Exhibit B. -2- 2 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 7. On June 13, 2022, I wrote another letter to plaintiff’s counsel requesting additional signed authorizations for the release of plaintiff’s medical records from: (1) Dr. Adrian Padkowsky, (2) Dr. George Padkowsky and (3) Dr. Charlie Gonzales, D.C. My letter also requested signed IRS authorizations for the release of plaintiff’s federal tax returns for the years 2019 through 2021. Prepared HIPAA and IRS form authorizations were provided with my letter. A true and accurate copy of this letter is attached hereto as Exhibit C. 8. On July 12, 2022, plaintiff’s counsel’s office produced further copies of previously produced signed authorizations (for other medical care providers), but the signed authorizations and documents requested at plaintiff’s deposition and in our June 13, 2022 letters were not produced. 9. On July 14, 2022, I wrote to plaintiff’s counsel and once again detailed the signed authorizations and documents we had demanded and that were outstanding: Thank you for your email. The signed authorizations you provided below are not the ones outstanding and of which we spoke. The presently outstanding authorizations are for: 1. Plaintiff’s tax records for 2019 through 2021; 2. Dr. Mark McMann; 3. Momentum Medicine Plus; 4. Jersey City Diagnostic Center; 5. Dr. Paul Furalford; 6. Dr. Adrian Padkowsky; 7. Dr. George Padkowsky; and 8. Dr. Charlie Gonzales. -3- 3 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 Attached are further copies of our earlier correspondence concerning same along with blank form authorizations previously provided. Also, at plaintiff’s deposition we demanded the production of plaintiff’s tax records for 2019 through 2021 (trans. p. 279); plaintiff’s current passport and all prior passports (trans. p. 314); and IRS notices/correspondence regarding disallowed deductions and/or expenses (trans. p. 328). Plaintiff testified he had copies of all of these documents within his possession. Would you kindly provide us with the requested executed authorizations and documents without further delay. Thank you. A true and accurate copy of my July 14, 2022 email as above is attached hereto as Exhibit D. 10. On July 15, 2022, plaintiff’s counsel’s office responded to my July 14, 2022 email and promised to provide us with the signed authorizations. A true and accurate copy of plaintiff’s counsel’s office’s July 15, 2022 email is attached hereto as Exhibit E. 11. On August 1, 2022, the Court held a conference on the record to address outstanding discovery. A true and accurate copy of the relevant portions of the transcript of the August 1, 2022 proceedings is attached hereto as Exhibit F. 12. During the conference, my partner Alton Evans raised the issue of the outstanding authorizations and documents due from plaintiff. He also informed the Court that plaintiff’s counsel had a proxy to sign the requested authorizations on plaintiff’s behalf. (See Ex. F at 18:20-19:1.) -4- 4 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 13. Plaintiff’s counsel interrupted Mr. Evans and stated: “Send me a copy and I’ll take care of it today. I’ll give it to my paralegal and we’ll take care of it today; next.” (See Ex. F at 19:12-14.) 14. Mr. Evans responded that production of the outstanding discovery by the end of the week was sufficient. (See Ex. F at 19:15-19.) 15. The Court ordered plaintiff to respond within 30 days or on or before August 31, 2022. (See Ex. F at 19:20-20:5 (the transcript erroneously states October 31, 2022)). 16. After the conference, Mr. Evans sent plaintiff’s counsel a further copy of our July 14, 2022 email listing the overdue discovery as plaintiff’s counsel had requested. A true and accurate copy of Mr. Evans’ August 1, 2022 email in this regard is attached hereto as Exhibit G. 17. Subsequent to the conference, further investigation revealed yet another five doctors not previously disclosed by plaintiff at his deposition or otherwise in discovery. Accordingly, on August 18, 2022, I wrote to plaintiff’s counsel requesting signed authorizations for the release of medical records from these five doctors: C Alexander Visco, MD; C Nicole Angelo, DO; C Shahnaz Akhtar, MD; C Ashish Kapoor, MD; and C Karl Coutinho, MD. -5- 5 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 A true and accurate copy of my August 18, 2022 letter is attached hereto as Exhibit H. 18. My August 18, 2022 letter also provided form authorizations directed to each of these doctors and once again asked plaintiff’s counsel to provide the overdue discovery detailed above. (See Ex. H.) 19. Plaintiff’s counsel responded immediately to my August 18, 2022 letter and the following email exchange occurred between counsel: Mr. Napoli Who are they when did he see them? Is it for injuries in this case? Mr. Betancourt Yes, those would be good questions to ask your client. Mr. Napoli Where did you get names Mr. Betancourt From plaintiff’s records. Please Joe, lets avoid further motion practice and delay. Would you please provide me with the documents and signed authorizations (your office even has a proxy to sign the auths.) It’s been months since plaintiff’s deposition and I’ve written numerous times. Thanks for your anticipated cooperation. A true and accurate copy of the above August 18, 2022 email exchange is attached hereto as Exhibit I. 20. On August 24, 2022, in a good faith effort to avoid motion practice, I spoke with plaintiff’s attorney Joseph Napoli by telephone and requested the long overdue discovery discussed herein. Mr. Napoli asked me to call his paralegal Ivan Rodriquez concerning the overdue discovery. I told Mr. Napoli that I had -6- 6 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 communicated with Mr. Rodriguez for months, but still had not received the overdue discovery. I further told Mr. Napoli that he would leave me with no alternative than to make yet another motion if the outstanding discovery were not provided. Mr. Napoli responded very slowly: “ALL RIGHT. MAKE A MOTION. I LOVE YOU. GOODBYE.” Mr. Napoli then hung up the phone on me. 21. To date, plaintiff’s counsel has failed to produce the outstanding signed authorizations and documents in complete and utter contempt of this Court’s Order that he do so. Plaintiff Should be Sanctioned for Refusing to Comply with this Court’s Order to Provide Long Overdue Discovery. 22. Plaintiff’s repeated failures to provide the requested discovery demonstrate an intentional design to evade, obstruct and delay discovery. This is especially true in view of the fact that plaintiff’s counsel has plaintiff’s Power of Attorney to sign medical record authorizations1 and that he stated to the Court on the record at the 1 Plaintiff’s counsel, not plaintiff, has signed all but four of the 18 medical record authorizations provided in this case pursuant to a power of attorney given to him by plaintiff on or about September 22, 2017. A true and accurate copy of plaintiff’s “Power of Attorney to Execute HIPAA Medical Record Authorization Forms Pursuant to the HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 PUBLIC LAW 104-191, August 21, 1996,” dated and signed September 22, 2017 (the “Power of Attorney”) is attached hereto as Exhibit J. Plaintiff’s Power of Attorney permits plaintiff’s counsel to sign all of the authorizations directed to health care providers and remains valid. -7- 7 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 August 1, 2022 conference that he would provide the overdue authorizations by the end of that day. Plaintiff’s ultimate failure to provide the overdue discovery following the conference and discovery order is a wilful and contumacious defiance of this Court’s order to respond to Weeks’ discovery and plaintiff should be sanctioned. 23. Plaintiff should not be permitted to prejudice Weeks by his counsel’s intentional conduct aimed at preventing the release of his medical records, tax records and passport. With today’s modern communications with email, PDF documents, scanning and over-night delivery services, as well as plaintiff’s Power of Attorney, plaintiff and his attorneys are no doubt able to produce properly executed and signed authorizations in just a few days (indeed, if not within hours as plaintiff’s counsel suggested to the Court on the record). Yet, throughout this litigation and despite numerous motions and orders compelling plaintiff to do so, plaintiff has still failed to provide the properly executed authorizations at issue. 24. C.P.L.R. § 3126 provides: If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: -8- 8 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. 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 3. 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. N.Y. C.P.L.R. 3126 (McKinney). 21. Clearly, plaintiff’s wilful disobedience of this Court’s order in failing to produce documents that are within his and his counsel’s control warrants dismissal of plaintiff’s complaint as against Weeks. Alternatively, this Court should enter an order pursuant to C.P.L.R. § 3126 prohibiting plaintiff from introducing any evidence of physical or pecuniary damages at trial. 22. As a further alternative and with respect to the requested authorizations discussed above, this Court should enter a conditional order precluding plaintiff from offering evidence of physical injuries and damages at trial if the duly executed authorizations are not received by Weeks within 7 days of the Court’s order. -9- 9 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 23. Weeks will suffer additional prejudice if the Court permits plaintiff to serve the requested medical authorizations out of time. Plaintiff’s vocational interview with Weeks’ vocational expert is presently scheduled for November 14, 2022. Plaintiff’s independent medical examination with Weeks’ medical expert is presently scheduled for November 15, 2022 (the “IME”). Even if Weeks receives plaintiff’s authorizations after this motion is decided, it is highly unlikely that Weeks and its experts will receive the medical records before the vocational interview and IME. 24. Plaintiff’s intentional delay will thus cause Weeks to incur additional expert fees and costs for the supplemental review of records (received after the interview and examination) and for the issuance of supplemental reports. Accordingly, this Court should order that any and all expert fees and costs associated with Weeks’ experts’ review of records (as sought in this motion) and the preparation of any supplemental reports concerning same shall be for plaintiff’s account. 25. Weeks should also be awarded attorneys’ fees and costs incurred to make this motion. Plaintiff is not disputing the discovery due Weeks; plaintiff previously told the Court he would provide it; and when I made the last good faith call (of many) to avoid this motion, plaintiff’s counsel told me to make the motion and that he loved me - in other words and to say mildly - to go jump in the lake. Weeks should not have to incur attorneys’ fees and costs for plaintiff’s counsel’s bad faith conduct. -10- 10 of 11 FILED: NEW YORK COUNTY CLERK 09/21/2022 03:08 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 09/21/2022 26. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: September 21, 2022 White Plains, New York BETANCOURT , VAN HEMMEN , GRECO & KENYON LLC Attorneys for Defendant Weeks Marine, Inc. By: s/ Ronald Betancourt 75 South Broadway - 4th Floor White Plains, New York 10601 (914) 997-1100 To: NAPOLI SHKOLNIK , PLLC Attorneys for Plaintiff 360 Lexington Ave, 11th Floor New York, New York 10017 MAHONEY & KEANE , LLP Attorneys for Defendants Sea Wolf Marine Transportation, LLC and Wittich Bros. Marine, Inc. 61 Broadway, Suite 905 New York, New York 10005 -11- 11 of 11