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FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012
NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022
(MLM-4925)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND INDEX NO: 150116/12
-----------------------------------------x
ROBERT VALENTI, HON. CHARLES TROIA
Plaintiff(s),
AFFIRMATION IN
- against - OPPOSITION TO
PLAINTIFF'
S MOTION
JOHN J. GADOMSKI, M.D., SHIMON OAMI, M.D.,
PATRICIA C. McCORMACK, M.D., PATRICIA C.
McCORMACK, M.D., PLLC; and PATRICIA C.
McCORMACK, M.D., P.C.,
Defendant(s).
-----------------------------------------x
SHARI D. STEINFELD, ESQ., an attorney duly admitted to practice
before the Courts of the State of New York affirms the following to be
true under the penalties of perjury:
1. I am a member of the law offices of AMABILE & ERMAN, P.C.,
attorneys of record for defendants, PATRICIA C. McCORMACK, M.D.,
PATRICIA C. McCORMACK, M.D., PLLC and PATRICIA C. McCORMACK, M.D., P.C.
(hereinafter "McCORMACK DEFENDANTS") in connection with the above
referenced matter.
2. This Affirmation is submitted upon information and belief,
the sources of which are the files and records maintained by the offices
of AMABILE & ERMAN, P.C.
3. This Affirmation is respectfully submitted in Opposition to
plaintiff's motion for an Order asking this Court to: (1) award
plaintiff and his counsel costs as against the McCORMACK DEFENDANTS and
their attorneys, Shari D. Steinfeld, Esq. and AMABILE & ERMAN, P.C.,
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pursuant to Part 130 of the Rules of the Chief Administrator of the
Courts, in the form of reimbursement for alleged expenses incurred and
attorneys'
fees associated with the initial trial of this action, the
subsequent appeal, the instant motion, and all additional pre-trial
proceedings (approximated at $750,000.00); (2) award $10,000.00 in
sanctions against each of these defendants and their counsel; (3) find
pursuant to 22 NYCRR § 202.21(d) that unusual or unanticipated
circumstances developed subsequent to the filing of the Note of Issue
and Certificate of Readiness which require additional pretrial
proceedings, and granting the plaintiff permission to conduct
additional pretrial proceedings, including additional depositions of
defendants PATRICIA C. McCORMACK, M.D., PATRICIA C. McCORMACK, M.D.,
PLLC AND PATRICIA C. McCORMACK, M.D., PC; a deposition of non-party
Collette DiPierro, PA; and depositions of Shari D. Steinfeld, Esq. and
AMABILE & ERMAN, P.C.; and (4) such other and further relief, favorable
to the plaintiff, as the Court may find to be just, proper and equitable.
For all of the reasons set forth below, the McCORMACK DEFENDANTS submit
that plaintiff's motion should be DENIED in its entirety.
STATEMENT OF FACTS
4. By way of brief summary, the plaintiff, ROBERT VALENTI, was
a patient of the defendants from May, 2010 through August, 2010
pertaining to complaints of a lesion on his left foot, between the
MR. VALENTI treated with co-
fourth and fifth toes. Specifically,
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defendant Dermatologist DR. GADOMSKI in his office on October 1, 2009;
November 19, 2009; January 6, 2010 (at which point a biopsy was
performed); January 29, 2010; February 4, 2010; February 18, 2010; and
March 11, 2010. (See Exhibit A, several relevant pages of appellate
transcript at p. A1746-1779). DR. GADOMSKI's biopsy specimen was sent
to former defendant LabCorp for interpretation. A dermatopathologist
at LabCorp, defendant-respondent DR. OAMI, performed pathologic
analysis of the specimen and made the diagnosis of "Left foot: verruca
old."
vulgaris, (Exhibit A at p. A59, 1775, 1836). This was a diagnosis
"wart."
of a (Exhibit A at p. A442-443).
5. MR. VALENTI next presented to the Dermatology office of the
McCORMACK DEFENDANTS, where he was treated on May 7, 2010; May 17, 2010;
June June and June 2010. (Exhibit A at p. A1780-
1, 2010; 15, 2010; 29,
1794). Thereafter, on July 13, 2010, after several modes of treatment
of the wart, DR. McCORMACK conducted her own biopsy of the lesion.
(Exhibit A at p. A1782-1783). DermPath, a dermatopathology laboratory,
analyzed the biopsy specimen and issued a pathology report dated
July 19, 2010, which revealed: "DIGITATED, CYSTIC AND ENDOPHYTIC
KERATINOCYTIC PROLIFERATION, IN MULTIPLE SEGMENTS OF TISSUE. . . The
surface of a well-differentiated squamous neoplasm such as
."
keratoacanthoma or squamous carcinoma cannot be excluded. . .
(Exhibit A at p. Al794).
6. On August 16, 2010, MR. VALENTI underwent ambulatory surgery
for excision of the lesion at Richmond University Medical Center
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("RUMC") performed by surgeon Dr. Michael Lacqua. (Exhibit A at p.
A1795-1796). The RUMC surgical pathology report documented a final
diagnosis of "keratoacanthoma verrucous squamous cell carcinoma of
skin."
(Exhibit A at p. A1797-1798). On September 20, 2010, a left
small toe amputation surgery was performed at Memorial Sloan Kettering
(Exhibit A at p. A1803-1804), which confirmed squamous cell carcinoma
from the left lateral foot resection specimen. (Exhibit A at p. A1805-
1807). MR. VALENTI followed-up at Memorial Sloan Kettering and has
suffered no recurrence of his cancer, as well as no metastasis.
7. When synthesizing the facts at issue in this case, the jury
clearly found that the McCORMACK DEFENDANTS properly treated and
properly referred the patient for surgical evaluation, resulting in his
ultimate diagnosis and definitive treatment. In fact, it was DR.
McCORMACK who was successful in diagnosing the patient's cancer and
timely got him on the road to definitive treatment. And again, the
plaintiff has sustained no cancer recurrence and no metastasis.
PROCEDURAL HISTORY
8. This case, sounding in medical malpractice, was commenced by
the filing of a Summons and Complaint on March 28, 2012, 12.5 years
ago! As pertains to the McCORMACK DEFENDANTS, that Summons and
Complaint only named PATRICIA C. McCORMACK, M.D. as a defendant. (DR.
McCORMACK's corporate entities were later added as a party to the case
as per the detailed procedural history set forth below.) Discovery was
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completed and the action was tried in the Supreme Court, Richmond
County, before the Honorable Philip Minardo from November 3-21, 2016.
At the end of the trial, the jury reached a unanimous verdict in favor
of all of the defendants. After the verdict was entered, a Judgment
was entered by the Supreme Court, Richmond County on December 21, 2016,
and a Corrected Judgment was then entered on May 16, 2017. It was from
these Judgments that the plaintiff noticed and perfected an appeal.
9. After a period of a stay due to the bankruptcy of the
insurance carrier for co-defendant DR. OAMI, the appeal of the defense
verdict was briefed and was eventually argued in the Appellate Division,
Second Department on December 10, 2021. In his appellate brief (Exhibit
8 attached to plaintiff's motion), plaintiff asked the Second Department
to remand this action for a new trial, with instructions requiring
sanctions to be entered at trial against the McCORMACK DEFENDANTS
(Exhibit 8, p. 59), along with such action against DR. OAMI's counsel.
(Exhibit 8, p. 79).
10. Whereas plaintiff's appeal was granted by Order and Decision
dated March 2, 2022 (Exhibit 1 to plaintiff's motion), and the matter
was remanded to the Supreme Court, Richmond County for a new trial and
a Bill of Costs was awarded to plaintiff, the Second Department did not
entertain plaintiff's request for sanctions and did not award sanctions
as against any defendant in this case. (See Exhibits 1 and 8 to
plaintiff's motion). Moreover, the Second Department did not rule that
plaintiff was entitled to any additional discovery in the trial court
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upon remand of the action for a new trial. (Exhibit 1 to plaintiff's
motion). Further, the Second Department's decision did not address or
adjudicate any of the issues raised by plaintiff's counsel on appeal as
pertained to the McCORMACK DEFENDANTS!
11. Following the Appellate Division decision, a Judgment for
Costs with Notice of Entry, including a Bill of Costs and Taxation of
Costs was filed by plaintiff and entered by the Clerk of the Supreme
Court, Richmond County on May 11, 2022. (Exhibit B). The Bill of Costs
was satisfied by the defendants and a Satisfaction of Judgment was
entered by this Court on June 2, 2022. (Exhibit C). This case was then
conferenced by Justice Judith McMahon, who recused herself from the
case. The case was then re-assigned to Your Honor and plaintiff's
instant motion has ensued.
A. MOUNTAIN MADE OUT OF A MOLEHILL, i_.e., DETAILED PROCEDURAL
HISTORY AS TO THE PROGRESS NOTE ADDED TO BY PA COLETTE DIPIERRO
12. Specifically, as pertains to the plaintiff's records
maintained by the McCORMACK DEFENDANTS, on July 10, 2021, Your Affirmant
served a Response to Plaintiff's First Document Demands which attached
as Exhibit A, a copy of the office records of DR. McCORMACK which had
been supplied to our law office by our client. Discovery continued.
In reviewing the case with DR. McCORMACK and preparing DR. McCORMACK
for her first deposition, Your Affirmant AND_ DR. McCORMACK became aware
of the addition of information in the plaintiff's original office chart
authored by non-party PA Colette DiPierro. As such, at the time of DR.
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McCORMACK's first deposition on October 30, 2013, Your Affirmant made
sure that the original record, with the irrelevant added information by
PA DiPierro, was made available to plaintiff for review and questioning.
13. At her deposition, DR. McCORMACK testified that it was PA
Colette DiPierro who made the addition to her own May 7, 2010 note.
(Exhibit D- First EBT of DR. McCORMACK at 52). DR. McCORMACK further
p
testified that she did not know when PA DiPierro made those changes and
likewise, she did not know why the changes were made by PA DiPierro.
(Exhibit D at p 52). The innocuous lines PA DiPierro added to her own
future"
May 7, 2010 note were: "if no improvement will biopsy in and
done."
"Patient being treated by another derm doctor. Treatment
(Exhibit A at p. A1787). This addition to the PA's own note, made after
the patient had ceased treatment with the McCORMACK DEFENDANTS, and
after litigation had commenced, in no way affected the care and
treatment the plaintiff received at any time while he was a patient in
DR. McCORMACK's office.
14. A copy of the original record (with the added information)
was supplied to plaintiff's counsel after DR. McCORMACK's deposition by
letter dated November 14, 2013 (Exhibit H), and further, at the request
of plaintiff and at the direction of the Court, a second, certified
bates-stamped copy of the original record, was supplied to plaintiff by
letter dated January 6, 2014 (Exhibit I) and another letter was sent to
plaintiff dated February 11, 2014 enclosing a copy of the record
certification by DR. McCORMACK (Exhibit J). In the meantime, in
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November, 2013, plaintiff asked Your Affirmant's office to produce PA
DiPierro for a deposition. However, since only DR. McCORMACK was
personally named as a party to the case and PA DiPierro carried
malpractice insurance with a different insurance carrier, Your
Affirmant was not able to produce PA DiPierro as a witness for
deposition. Therein, sometime in late 2013, PA DiPierro left the employ
of DR. McCORMACK's corporation, and at some point thereafter, she
relocated to California, upon information and belief.
15. In early 2014, plaintiff moved to add DR. McCORMACK's business
entities as defendants to the case, that motion was granted by Your
Honor in June, 2014 and a First Amended Complaint was served and filed
by plaintiff. Your Affirmant's office served Answers to the First
Amended Complaint on behalf of DR. McCORMACK's two corporate entities
(and the doctor) on July 23, 2014. Additional documentary discovery
ensued and DR. McCORMACK was deposed AGAIN, on October 21, 2014, on
behalf of her corporations.
16. Continuing with the tortured history of this case,
thereafter, pursuant to this Court's order, by letter dated December 8,
2014, Your Affirmant responded to plaintiff's demand for malpractice
insurance policy information for PA DiPierro. Nevertheless, at that
time, plaintiff CHOSE NOT TO locate and serve PA DiPierro with a
subpoena for her deposition and instead, plaintiff filed his Note of
Issue on January 25, 2015. Summary judgment motions ensued, and
subsequently, as set forth above, a trial was held in this case in
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November, 2016. It is interesting to note that at trial, plaintiff's
Surgery expert, Dr. Donald Siegel, testified that he himself had, in
fact, added information to a medical record after the fact. (See Exhibit
A, p. A721). The trial resulted in a unanimous defense verdict.
17. After the trial of this case, an appeal was noticed and again,
the appeal was stayed pending the bankruptcy of Oceanus Insurance
Company, co-defendant DR. OAMI's malpractice insurance carrier. After
the stay was lifted and the appeal was fully briefed, on December 9,
2021, defense counsel appeared in the Appellate Division, Second
Department for oral argument of plaintiff's appeal before a panel which
included Justices Joseph J. Maltese, William G. Ford, Angela G. Ianacci
and Colleen D. Duffy.
18. As to DR. McCORMACK and her corporate entities, Justice
Ianacci addressed the issue of the added to medical record with Your
Affirmant during oral argument, and at several turns during our
exchange, Justice Ianacci emphasized the fact that doctors are not
supposed to add to medical records once litigation is commenced. I
informed the Court that the amendment was made by a PA (not DR.
McCORMACK), and that the PA was reprimanded about same after the fact.
That was the totality of the oral argument on the subject of the
allegedly altered medical record.
19. After oral argument, plaintiff wrote to the Second Department
seeking to further argue this point. (Letter dated December 14, 2021
attached as Exhibit E). Like in the instant motion, plaintiff argued
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in his letter that Your Affirmant made an affirmative factual
misrepresentation to the Court on the subject of DR. McCORMACK's
"reprimand"
of PA DiPierro. By email dated December 15, 2021, the Second
Department denied plaintiff leave to submit his December 14, 2021
letter, and the letter was rejected by the Court. (See Exhibit F).
20. I would note that at her second deposition session, DR.
McCORMACK was asked if she discussed the plaintiff's chart with PA
DiPierro. DR. McCORMACK testified that she discussed "his pathology
on."
report and his diagnosis and so (See Second EBT of DR. McCORMACK,
Exhibit G, p. 29-30). DR. McCORMACK was then asked if she, or anyone
else associated with her company, ever discussed the differences in the
two pages [i.e., the copy produced in discovery and the allegedly
"altered" DiPierro."
progress note] with Mrs. (Exhibit G, p. 30). DR.
of."
McCORMACK testified, "no, not that I'm aware (Exhibit G, p. 30).
Of note, not once, over the course of two deposition sessions (OR AT
TRIAL!) did plaintiff's counsel ever ask DR. McCORMACK if she
reprimanded PA DiPierro for having added to her note in the plaintiff's
chart after litigation commenced. Moreover, Your Affirmant was not
questioned by the Justices of the Second Department at oral argument of
"reprimand"
the appeal as to when this of PA DiPierro took place. In
fact, had I been questioned as to same, I would have advised the Court
"reprimand"
that as per my recollection, DR. McCORMACK's informal took
place at some point after DR. McCORMACK was deposed.
21. As an aside, Your Affirmant will acknowledge that she did
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assume that plaintiff's counsel had obtained a copy of DR. McCORMACK's
office records for the plaintiff pre-suit (in addition to the copy
served by Your Affirmant in July, 2021), since it would not make sense
(or be ethical) for plaintiff to have brought suit against DR. MCCORMACK
without first having her office records reviewed by an expert and/or
discussing the facts of the case with an expert in contemplation of
execution of a Certificate of Merit as required CPLR Section 3012-
by
a. Your Affirmant also made the assumption that plaintiff had obtained
a copy of DR. McCORMACK's records pre-suit because a series of pages of
plaintiff's medical records, including the July, 2010 DermPath
Diagnostics pathology report addressed to DR. McCORMACK, were attached
to plaintiff's original Summons and Complaint!
22. Based on all of the above, from the outset, Your Affirmant
argues that plaintiff's motion is wholly improper and frivolous and for
all of the reasons set forth below, must be DENIED in its entirety as
to the McCORMACK DEFENDANTS.
ARGUMENT
I. PLAINTIFF IS NOT ENTITLED TO ANY ADDITIONAL DISCOVERY UPON
REMAND OF THIS CASE FOR A NEW TRIAL AND HIS REQUEST FOR SAME MUST BE
DENIED.
23. In his request for additional discovery, plaintiff is seeking
to relitigate every issue he laid bare before the jury in the original
trial of this matter, wherein the defendants prevailed. In this case,
the Second Department "ORDERED that. . . the amended complaint insofar
as asserted against the defendants JOHN J. GADOMSKI, SHIMON OAMI,
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PATRICIA C. McCORMACK, PATRICIA C. McCORMACK, M.D., PLLC, AND PATRICIA
C. McCORMACK, M.D., P.C., is reinstated, and the matter is remitted to
the Supreme Court, Richmond County, for a new trial before a different
Justice."
(See Exhibit 1 to plaintiff's motion). There is no mention
made in the Second Department's decision as to any additional discovery
permitted in conjunction with the retrial of this matter. As such,
case"
"the law of the is that the action is remanded for a retrial
alone, and it is Your Affirmant's position that this Honorable Court
must abide by the Second Department's decision and set the case down
for a new trial without allowance for any additional discovery.
24. Moreover, the cases cited by plaintiff in support of his
argument that this Court has discretion to permit any additional
discovery are wholly irrelevant and do not in any way suggest that this
Court should permit additional in this case. To wit - in
any discovery
French v. 3 A.D.3d 289 (1st Dept. the First Department
Schiavo, 2004),
held that plaintiff was permitted to amend their pleadings on retrial
to assert a new claim of traumatic epilepsy which was diagnosed based
on symptoms that existed prior to the first trial. Defendants were
therefore given the opportunity to conduct discovery as to a new element
of damages permitted to be claimed at retrial. There are no new
allegations of damages in this case. As such, the French case is wholly
inapposite to our case and its holding does not apply to the
circumstances of our case.
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25. Likewise, in the case of Killeen v. Community Hosp. at Glen
Cove, 101 Misc. 2d 367 (Sup Ct. Kings Cty 1979), after a remand for a
new trial by the Second Department, plaintiff moved by order to show
cause in the trial court for leave to serve an Amended Bill of
Particulars to include an additional theory of liability in the
patient's medical malpractice action against the defendant hospital.
The hospital claimed that the amendment was prohibited. Under the facts
and procedural history of that case, the trial court held that the
amendment of the pleading should be allowed as defendant knew the theory
would be asserted at the retrial (the theory was already asserted at
the first trial), and as such, further examinations before trial of
plaintiff with respect to the items in the Amended Bill of Particulars
only would be permitted. Id.
26. In our case, plaintiff is not seeking to amend his pleadings
to properly assert a theory of negligence against defendants which was
already asserted at the first trial of this matter, warranting reliance
on Killeen in seeking additional discovery in our case. Rather, in our
case, plaintiff is seeking to conduct new depositions of parties and
non-parties, and inappropriate depositions of counsel, as a matter of
vengeance and retribution for having lost at the initial trial of this
matter. Plaintiff is also seeking to twist the words of Your Affi
Preview
FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 (MLM-4925) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND INDEX NO: 150116/12 -----------------------------------------x ROBERT VALENTI, HON. CHARLES TROIA Plaintiff(s), AFFIRMATION IN - against - OPPOSITION TO PLAINTIFF' S MOTION JOHN J. GADOMSKI, M.D., SHIMON OAMI, M.D., PATRICIA C. McCORMACK, M.D., PATRICIA C. McCORMACK, M.D., PLLC; and PATRICIA C. McCORMACK, M.D., P.C., Defendant(s). -----------------------------------------x SHARI D. STEINFELD, ESQ., an attorney duly admitted to practice before the Courts of the State of New York affirms the following to be true under the penalties of perjury: 1. I am a member of the law offices of AMABILE & ERMAN, P.C., attorneys of record for defendants, PATRICIA C. McCORMACK, M.D., PATRICIA C. McCORMACK, M.D., PLLC and PATRICIA C. McCORMACK, M.D., P.C. (hereinafter "McCORMACK DEFENDANTS") in connection with the above referenced matter. 2. This Affirmation is submitted upon information and belief, the sources of which are the files and records maintained by the offices of AMABILE & ERMAN, P.C. 3. This Affirmation is respectfully submitted in Opposition to plaintiff's motion for an Order asking this Court to: (1) award plaintiff and his counsel costs as against the McCORMACK DEFENDANTS and their attorneys, Shari D. Steinfeld, Esq. and AMABILE & ERMAN, P.C., 1 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 pursuant to Part 130 of the Rules of the Chief Administrator of the Courts, in the form of reimbursement for alleged expenses incurred and attorneys' fees associated with the initial trial of this action, the subsequent appeal, the instant motion, and all additional pre-trial proceedings (approximated at $750,000.00); (2) award $10,000.00 in sanctions against each of these defendants and their counsel; (3) find pursuant to 22 NYCRR § 202.21(d) that unusual or unanticipated circumstances developed subsequent to the filing of the Note of Issue and Certificate of Readiness which require additional pretrial proceedings, and granting the plaintiff permission to conduct additional pretrial proceedings, including additional depositions of defendants PATRICIA C. McCORMACK, M.D., PATRICIA C. McCORMACK, M.D., PLLC AND PATRICIA C. McCORMACK, M.D., PC; a deposition of non-party Collette DiPierro, PA; and depositions of Shari D. Steinfeld, Esq. and AMABILE & ERMAN, P.C.; and (4) such other and further relief, favorable to the plaintiff, as the Court may find to be just, proper and equitable. For all of the reasons set forth below, the McCORMACK DEFENDANTS submit that plaintiff's motion should be DENIED in its entirety. STATEMENT OF FACTS 4. By way of brief summary, the plaintiff, ROBERT VALENTI, was a patient of the defendants from May, 2010 through August, 2010 pertaining to complaints of a lesion on his left foot, between the MR. VALENTI treated with co- fourth and fifth toes. Specifically, 2 2 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 defendant Dermatologist DR. GADOMSKI in his office on October 1, 2009; November 19, 2009; January 6, 2010 (at which point a biopsy was performed); January 29, 2010; February 4, 2010; February 18, 2010; and March 11, 2010. (See Exhibit A, several relevant pages of appellate transcript at p. A1746-1779). DR. GADOMSKI's biopsy specimen was sent to former defendant LabCorp for interpretation. A dermatopathologist at LabCorp, defendant-respondent DR. OAMI, performed pathologic analysis of the specimen and made the diagnosis of "Left foot: verruca old." vulgaris, (Exhibit A at p. A59, 1775, 1836). This was a diagnosis "wart." of a (Exhibit A at p. A442-443). 5. MR. VALENTI next presented to the Dermatology office of the McCORMACK DEFENDANTS, where he was treated on May 7, 2010; May 17, 2010; June June and June 2010. (Exhibit A at p. A1780- 1, 2010; 15, 2010; 29, 1794). Thereafter, on July 13, 2010, after several modes of treatment of the wart, DR. McCORMACK conducted her own biopsy of the lesion. (Exhibit A at p. A1782-1783). DermPath, a dermatopathology laboratory, analyzed the biopsy specimen and issued a pathology report dated July 19, 2010, which revealed: "DIGITATED, CYSTIC AND ENDOPHYTIC KERATINOCYTIC PROLIFERATION, IN MULTIPLE SEGMENTS OF TISSUE. . . The surface of a well-differentiated squamous neoplasm such as ." keratoacanthoma or squamous carcinoma cannot be excluded. . . (Exhibit A at p. Al794). 6. On August 16, 2010, MR. VALENTI underwent ambulatory surgery for excision of the lesion at Richmond University Medical Center 3 3 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 ("RUMC") performed by surgeon Dr. Michael Lacqua. (Exhibit A at p. A1795-1796). The RUMC surgical pathology report documented a final diagnosis of "keratoacanthoma verrucous squamous cell carcinoma of skin." (Exhibit A at p. A1797-1798). On September 20, 2010, a left small toe amputation surgery was performed at Memorial Sloan Kettering (Exhibit A at p. A1803-1804), which confirmed squamous cell carcinoma from the left lateral foot resection specimen. (Exhibit A at p. A1805- 1807). MR. VALENTI followed-up at Memorial Sloan Kettering and has suffered no recurrence of his cancer, as well as no metastasis. 7. When synthesizing the facts at issue in this case, the jury clearly found that the McCORMACK DEFENDANTS properly treated and properly referred the patient for surgical evaluation, resulting in his ultimate diagnosis and definitive treatment. In fact, it was DR. McCORMACK who was successful in diagnosing the patient's cancer and timely got him on the road to definitive treatment. And again, the plaintiff has sustained no cancer recurrence and no metastasis. PROCEDURAL HISTORY 8. This case, sounding in medical malpractice, was commenced by the filing of a Summons and Complaint on March 28, 2012, 12.5 years ago! As pertains to the McCORMACK DEFENDANTS, that Summons and Complaint only named PATRICIA C. McCORMACK, M.D. as a defendant. (DR. McCORMACK's corporate entities were later added as a party to the case as per the detailed procedural history set forth below.) Discovery was 4 4 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 completed and the action was tried in the Supreme Court, Richmond County, before the Honorable Philip Minardo from November 3-21, 2016. At the end of the trial, the jury reached a unanimous verdict in favor of all of the defendants. After the verdict was entered, a Judgment was entered by the Supreme Court, Richmond County on December 21, 2016, and a Corrected Judgment was then entered on May 16, 2017. It was from these Judgments that the plaintiff noticed and perfected an appeal. 9. After a period of a stay due to the bankruptcy of the insurance carrier for co-defendant DR. OAMI, the appeal of the defense verdict was briefed and was eventually argued in the Appellate Division, Second Department on December 10, 2021. In his appellate brief (Exhibit 8 attached to plaintiff's motion), plaintiff asked the Second Department to remand this action for a new trial, with instructions requiring sanctions to be entered at trial against the McCORMACK DEFENDANTS (Exhibit 8, p. 59), along with such action against DR. OAMI's counsel. (Exhibit 8, p. 79). 10. Whereas plaintiff's appeal was granted by Order and Decision dated March 2, 2022 (Exhibit 1 to plaintiff's motion), and the matter was remanded to the Supreme Court, Richmond County for a new trial and a Bill of Costs was awarded to plaintiff, the Second Department did not entertain plaintiff's request for sanctions and did not award sanctions as against any defendant in this case. (See Exhibits 1 and 8 to plaintiff's motion). Moreover, the Second Department did not rule that plaintiff was entitled to any additional discovery in the trial court 5 5 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 upon remand of the action for a new trial. (Exhibit 1 to plaintiff's motion). Further, the Second Department's decision did not address or adjudicate any of the issues raised by plaintiff's counsel on appeal as pertained to the McCORMACK DEFENDANTS! 11. Following the Appellate Division decision, a Judgment for Costs with Notice of Entry, including a Bill of Costs and Taxation of Costs was filed by plaintiff and entered by the Clerk of the Supreme Court, Richmond County on May 11, 2022. (Exhibit B). The Bill of Costs was satisfied by the defendants and a Satisfaction of Judgment was entered by this Court on June 2, 2022. (Exhibit C). This case was then conferenced by Justice Judith McMahon, who recused herself from the case. The case was then re-assigned to Your Honor and plaintiff's instant motion has ensued. A. MOUNTAIN MADE OUT OF A MOLEHILL, i_.e., DETAILED PROCEDURAL HISTORY AS TO THE PROGRESS NOTE ADDED TO BY PA COLETTE DIPIERRO 12. Specifically, as pertains to the plaintiff's records maintained by the McCORMACK DEFENDANTS, on July 10, 2021, Your Affirmant served a Response to Plaintiff's First Document Demands which attached as Exhibit A, a copy of the office records of DR. McCORMACK which had been supplied to our law office by our client. Discovery continued. In reviewing the case with DR. McCORMACK and preparing DR. McCORMACK for her first deposition, Your Affirmant AND_ DR. McCORMACK became aware of the addition of information in the plaintiff's original office chart authored by non-party PA Colette DiPierro. As such, at the time of DR. 6 6 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 McCORMACK's first deposition on October 30, 2013, Your Affirmant made sure that the original record, with the irrelevant added information by PA DiPierro, was made available to plaintiff for review and questioning. 13. At her deposition, DR. McCORMACK testified that it was PA Colette DiPierro who made the addition to her own May 7, 2010 note. (Exhibit D- First EBT of DR. McCORMACK at 52). DR. McCORMACK further p testified that she did not know when PA DiPierro made those changes and likewise, she did not know why the changes were made by PA DiPierro. (Exhibit D at p 52). The innocuous lines PA DiPierro added to her own future" May 7, 2010 note were: "if no improvement will biopsy in and done." "Patient being treated by another derm doctor. Treatment (Exhibit A at p. A1787). This addition to the PA's own note, made after the patient had ceased treatment with the McCORMACK DEFENDANTS, and after litigation had commenced, in no way affected the care and treatment the plaintiff received at any time while he was a patient in DR. McCORMACK's office. 14. A copy of the original record (with the added information) was supplied to plaintiff's counsel after DR. McCORMACK's deposition by letter dated November 14, 2013 (Exhibit H), and further, at the request of plaintiff and at the direction of the Court, a second, certified bates-stamped copy of the original record, was supplied to plaintiff by letter dated January 6, 2014 (Exhibit I) and another letter was sent to plaintiff dated February 11, 2014 enclosing a copy of the record certification by DR. McCORMACK (Exhibit J). In the meantime, in 7 7 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 November, 2013, plaintiff asked Your Affirmant's office to produce PA DiPierro for a deposition. However, since only DR. McCORMACK was personally named as a party to the case and PA DiPierro carried malpractice insurance with a different insurance carrier, Your Affirmant was not able to produce PA DiPierro as a witness for deposition. Therein, sometime in late 2013, PA DiPierro left the employ of DR. McCORMACK's corporation, and at some point thereafter, she relocated to California, upon information and belief. 15. In early 2014, plaintiff moved to add DR. McCORMACK's business entities as defendants to the case, that motion was granted by Your Honor in June, 2014 and a First Amended Complaint was served and filed by plaintiff. Your Affirmant's office served Answers to the First Amended Complaint on behalf of DR. McCORMACK's two corporate entities (and the doctor) on July 23, 2014. Additional documentary discovery ensued and DR. McCORMACK was deposed AGAIN, on October 21, 2014, on behalf of her corporations. 16. Continuing with the tortured history of this case, thereafter, pursuant to this Court's order, by letter dated December 8, 2014, Your Affirmant responded to plaintiff's demand for malpractice insurance policy information for PA DiPierro. Nevertheless, at that time, plaintiff CHOSE NOT TO locate and serve PA DiPierro with a subpoena for her deposition and instead, plaintiff filed his Note of Issue on January 25, 2015. Summary judgment motions ensued, and subsequently, as set forth above, a trial was held in this case in 8 8 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 November, 2016. It is interesting to note that at trial, plaintiff's Surgery expert, Dr. Donald Siegel, testified that he himself had, in fact, added information to a medical record after the fact. (See Exhibit A, p. A721). The trial resulted in a unanimous defense verdict. 17. After the trial of this case, an appeal was noticed and again, the appeal was stayed pending the bankruptcy of Oceanus Insurance Company, co-defendant DR. OAMI's malpractice insurance carrier. After the stay was lifted and the appeal was fully briefed, on December 9, 2021, defense counsel appeared in the Appellate Division, Second Department for oral argument of plaintiff's appeal before a panel which included Justices Joseph J. Maltese, William G. Ford, Angela G. Ianacci and Colleen D. Duffy. 18. As to DR. McCORMACK and her corporate entities, Justice Ianacci addressed the issue of the added to medical record with Your Affirmant during oral argument, and at several turns during our exchange, Justice Ianacci emphasized the fact that doctors are not supposed to add to medical records once litigation is commenced. I informed the Court that the amendment was made by a PA (not DR. McCORMACK), and that the PA was reprimanded about same after the fact. That was the totality of the oral argument on the subject of the allegedly altered medical record. 19. After oral argument, plaintiff wrote to the Second Department seeking to further argue this point. (Letter dated December 14, 2021 attached as Exhibit E). Like in the instant motion, plaintiff argued 9 9 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 in his letter that Your Affirmant made an affirmative factual misrepresentation to the Court on the subject of DR. McCORMACK's "reprimand" of PA DiPierro. By email dated December 15, 2021, the Second Department denied plaintiff leave to submit his December 14, 2021 letter, and the letter was rejected by the Court. (See Exhibit F). 20. I would note that at her second deposition session, DR. McCORMACK was asked if she discussed the plaintiff's chart with PA DiPierro. DR. McCORMACK testified that she discussed "his pathology on." report and his diagnosis and so (See Second EBT of DR. McCORMACK, Exhibit G, p. 29-30). DR. McCORMACK was then asked if she, or anyone else associated with her company, ever discussed the differences in the two pages [i.e., the copy produced in discovery and the allegedly "altered" DiPierro." progress note] with Mrs. (Exhibit G, p. 30). DR. of." McCORMACK testified, "no, not that I'm aware (Exhibit G, p. 30). Of note, not once, over the course of two deposition sessions (OR AT TRIAL!) did plaintiff's counsel ever ask DR. McCORMACK if she reprimanded PA DiPierro for having added to her note in the plaintiff's chart after litigation commenced. Moreover, Your Affirmant was not questioned by the Justices of the Second Department at oral argument of "reprimand" the appeal as to when this of PA DiPierro took place. In fact, had I been questioned as to same, I would have advised the Court "reprimand" that as per my recollection, DR. McCORMACK's informal took place at some point after DR. McCORMACK was deposed. 21. As an aside, Your Affirmant will acknowledge that she did 10 10 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 assume that plaintiff's counsel had obtained a copy of DR. McCORMACK's office records for the plaintiff pre-suit (in addition to the copy served by Your Affirmant in July, 2021), since it would not make sense (or be ethical) for plaintiff to have brought suit against DR. MCCORMACK without first having her office records reviewed by an expert and/or discussing the facts of the case with an expert in contemplation of execution of a Certificate of Merit as required CPLR Section 3012- by a. Your Affirmant also made the assumption that plaintiff had obtained a copy of DR. McCORMACK's records pre-suit because a series of pages of plaintiff's medical records, including the July, 2010 DermPath Diagnostics pathology report addressed to DR. McCORMACK, were attached to plaintiff's original Summons and Complaint! 22. Based on all of the above, from the outset, Your Affirmant argues that plaintiff's motion is wholly improper and frivolous and for all of the reasons set forth below, must be DENIED in its entirety as to the McCORMACK DEFENDANTS. ARGUMENT I. PLAINTIFF IS NOT ENTITLED TO ANY ADDITIONAL DISCOVERY UPON REMAND OF THIS CASE FOR A NEW TRIAL AND HIS REQUEST FOR SAME MUST BE DENIED. 23. In his request for additional discovery, plaintiff is seeking to relitigate every issue he laid bare before the jury in the original trial of this matter, wherein the defendants prevailed. In this case, the Second Department "ORDERED that. . . the amended complaint insofar as asserted against the defendants JOHN J. GADOMSKI, SHIMON OAMI, 11 11 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 PATRICIA C. McCORMACK, PATRICIA C. McCORMACK, M.D., PLLC, AND PATRICIA C. McCORMACK, M.D., P.C., is reinstated, and the matter is remitted to the Supreme Court, Richmond County, for a new trial before a different Justice." (See Exhibit 1 to plaintiff's motion). There is no mention made in the Second Department's decision as to any additional discovery permitted in conjunction with the retrial of this matter. As such, case" "the law of the is that the action is remanded for a retrial alone, and it is Your Affirmant's position that this Honorable Court must abide by the Second Department's decision and set the case down for a new trial without allowance for any additional discovery. 24. Moreover, the cases cited by plaintiff in support of his argument that this Court has discretion to permit any additional discovery are wholly irrelevant and do not in any way suggest that this Court should permit additional in this case. To wit - in any discovery French v. 3 A.D.3d 289 (1st Dept. the First Department Schiavo, 2004), held that plaintiff was permitted to amend their pleadings on retrial to assert a new claim of traumatic epilepsy which was diagnosed based on symptoms that existed prior to the first trial. Defendants were therefore given the opportunity to conduct discovery as to a new element of damages permitted to be claimed at retrial. There are no new allegations of damages in this case. As such, the French case is wholly inapposite to our case and its holding does not apply to the circumstances of our case. 12 12 of 30 FILED: RICHMOND COUNTY CLERK 10/13/2022 04:19 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 389 RECEIVED NYSCEF: 10/13/2022 25. Likewise, in the case of Killeen v. Community Hosp. at Glen Cove, 101 Misc. 2d 367 (Sup Ct. Kings Cty 1979), after a remand for a new trial by the Second Department, plaintiff moved by order to show cause in the trial court for leave to serve an Amended Bill of Particulars to include an additional theory of liability in the patient's medical malpractice action against the defendant hospital. The hospital claimed that the amendment was prohibited. Under the facts and procedural history of that case, the trial court held that the amendment of the pleading should be allowed as defendant knew the theory would be asserted at the retrial (the theory was already asserted at the first trial), and as such, further examinations before trial of plaintiff with respect to the items in the Amended Bill of Particulars only would be permitted. Id. 26. In our case, plaintiff is not seeking to amend his pleadings to properly assert a theory of negligence against defendants which was already asserted at the first trial of this matter, warranting reliance on Killeen in seeking additional discovery in our case. Rather, in our case, plaintiff is seeking to conduct new depositions of parties and non-parties, and inappropriate depositions of counsel, as a matter of vengeance and retribution for having lost at the initial trial of this matter. Plaintiff is also seeking to twist the words of Your Affi