Preview
FILED: QUEENS COUNTY CLERK 05/11/2021
08/19/2021 02:40
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 66
84 RECEIVED NYSCEF: 05/11/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
____....---------------------------- ---- -- -
X
THALIA AGATHOCLEOUS, Index No.: 703721/2018
Plaintiff, AFFIRMATION
IN OPPOSITION TO
-against- PLAINTIFF'S
CROSS-MOTION AND
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, IN REPLY AND
FURTHER SUPPORT OF
Defendant. MOTION TO STRIKE
AND TO PRECLUDE
__.___ .__¬_ .----------------------X
Gene Novak, Esq., an attorney duly licensed to practice law in the State of New York, hereby
affirms the following under penalty of perjury pursuant to CPLR §2106:
1. I am an associste of McMahon, Martine & Gallagher, LLP, attorneys for the defendant,
795 FIFTH AVENUE CORPORATION, and, as such, I am fully familiar with the pleadings and
proceedings of the within action.
2. This affinnation is submitted in opposition to the plaintiffs cross-motion seeking a
leave to amend bill of particulars and in reply and further support of the defendant's motion seeking an
order:
"Supplemental"
a) striking plaintifPs purported Verified Bill of Particulars dated
February 3, 2021;
b) precluding the plaintiff from offering any evidence at trialin connection with
"Supplemental"
the purported Verified Bill of Particulars dated 3,
February
2021 and alleged fracture of right posterior eight rib, of
blunting
a costophrenic angle, pleural fluid, and the lost eamings claim; and
c) granting such other and further reliefas the court deems just and proper.
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I. The Phi-":"Cross-Motion Seeking To Amend Bill Of Particulars Is Not Acesmpani-I
By The Proposed Amended Bill Of Particulars
3. CPLR §3025(b) provides that "[a]ny motion to amend or supplement pleadings shall
be accompanied by the proposed amended or supplcmcatal pleading clearly showing the changes or
pleading."
additions to be made to the
4. Since the plaintiff filed her cross-motion pursuant to CPLR §3025(b) seeking
amendmeñt of the pleading, such cross-motion must be accompãñied by the proposed amended
pleading, to wit: the proposed Amended Bill of Particulars showing the changes and additions to be
made.
5. Despite the fact that CPLR §3025(b) mandates that the amended pleadiñgs be
submitted along with the motion, the plaintiff failed to comply with CPLR §3025(b); therefore her
cross-motion should be denied in itsentirety.
IL The Defeñdant Has Been Prejudiced Because The Defendant Had No Notice Of The
Newly Alleged Injuries To The PlaintifPs Right Eight Rib Prior To Note ofIssue Was
Filed And Had No That The P'-i=+:vr Had Suffered Any Lost Wages
Discovery Showing
6. Plaintiffs counsel argues that the report from Neighborhood Radiology dated March 1,
2018, should have provided a notice of the plaintifPs newly alleged fracture of right posterior eight rib.
(Please see Affirm. ¶ 4).
7. The report does not state that the plaintiff suffered the fracture of the plaintiff's right
rib."
eight rib but, rather, states that "[q]uestion of partially healed fracture right posterior eight (Please
"D"
see the report of Neighborhood dated March 1, 2018 attached as Exhibit to the
Radiology
plaintiffs cross-motion seeking to submit the amended bill of particulars.)
8. Such report merely indicates that there is a [q]uestion of the fractured right eighth rib,
Mr. Diamcñt did not opine ifthe plaintiff had suffered rib fractues.
actually any
2
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9. Importantly, records obtaiñêd from Lenox Hill Hospital, where the plaintiff was treated
on the day of the accident, indicate that there was no evidence of any right rib fracture. (Attached
"I"
hereto as Exhibit is a copy of the Xray report of Lenox Hill Hospital dated January 6, 2018).
10. Therefoœ, by reading medical records disclosed, the plaintiff did not sustain any
confumed fracture to her right rib.
I1. Additionally, plaintiff's counsel argues that by providing authorization to obtain
workers'
compensation records, the plaintiff put your affirmant's office on notice that the plaintiff
suffered or claimed injuries to her right rib.(Please see Affirm. ¶ 4).
Workers'
12. Contrary to the plaintiff's counsel contention, the records obtaiñêd from
Compensation Board indicate that the plaintiff claimed that she suffered injury to her right shoulder
"J"
only. (Attached hereto as Exhibit is a copy of the WC C-3 Employee Claim form).
13. Additionally, plaintiff's counsel argues that report by Dr. Guy dated March 5, 2020 put
your affirmant's office on notice that the plaintiff had suffered fracture of her eight rib. (Please see
"F"
Affirm. ¶ 5, and please see thereport by Dr. Guy dated March 5, 2020 attached as Exhibit to the
plaintiff'scross-motion seeking to submit the amended bill of particulars).
14. Although it is unclear when such report dated March 5, 2020 was actually served
because the plaintiff has failed to submit any proof of service of such report, it is certain that such
"F"
report could not been served prior to the filing of the Note of Issue, September 5, 2019. (Exhibit or
"B"
Exhibit to the plaintiff's cross-motion seeking to submit the amended billof particulars).
15. Since the report by Dr. Guy was exchanged at least 5 months after the Note of Issue
plaintiff'
had been filed, counsel cannot argue that your affirmant's office had notice of the newly
alleged injuries to the plaintiff's right rib prior to the filing of the Note of Issue.
3
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16. As to plaintiff s counsel argument that an authorization for employment records was
provided (please see Affirm. ¶4), such authorization dated June 8, 2018 did not allow for production of
any payroll records, and, although it stated,among other things, that 2018 W-2 form to be provided,
since the authorization was issued on June it did not allow us to obtain the 2018 W-
8, 2018, effectively
"K"
2 form since such form had not been issued at that time. (Attached hereto as Exhibit is a copy of
such employment records authorization).
17. Additionally, plaintiff s counsel maintaiñs that your affirmant's office questioned
plaintiff about her employment at her deposition (please see Affirm. 16) while itis true that the
questions were asked regarding the plaintiffs employment, no questions were asked about time missed
from work and any loss eamings now claimed since plaintifPs counsel stated on the reconi that the lost
wages claim was not made. (Please see Page 21, Lines 16-17 of the Plaintiff s Deposition Transcript
"G"
attached as Exhibit to the plaintifPs motion seeking to submit the amended bill of particulars).
18. As evident from the transcript, after plaintiff s counsel stated that "no claim for lost
eamings"
was made, defendant's counsel moved to asking questions relating to events occurred on the
date of the accident. (Please see Page 21, Lines 16-25 of the PlaintifPs Deposition Transcript attached
"G"
as Exhibit to the plaintiff s motion seeking to submit the amended bill of particulars).
19. Additionally, plaintifPs counsel reliance on Greco v. Five Garage Com., 123 A.D.2d
422 is misplaced. In Greco, the court granted motion to amend complaint to include language into the
complaint saying that the plaintiff sustained a "serious injury". The plaintiffdid not seek to amend the
bill of particulars to allege either new injuries or special damages that had not been alleged prior to the
note of issue. (Id.)
4
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20. Here, unlike in Greco, the plaintiff seeks the court's permission to submit the amended
billof particulars approximately 18 months after filing of the Note of Issue, alleging new injury and
special damages that were not pleaded prior to filing of the Note ofIssue.
III. The Plaintiff Failed To Set Forth Any Reasonable Escuse For Over 18 Months
Delay In Bringing Motion To Amend Bill Of Particulars And Failed To Show Any Causal
Relationship Between The New Iniuries And The Accident
21. Plaintiff, who fails to set forth in his affidavit sufficient facts in support of motion
to amend the bill of particulars and who offers no reasonable excuse for long delay in bringing
such motion, is not entitled to leave to file amended billof particulars. Gonzales v. Texaco Inc.,
(2nd
71 A.D.3d 666, 668 Dept.) Citing Walter v. LeCesse Corp. 54 A.D.2d 1136, 388 N.Y.S.2d
776.
22. In Walter, the court held that "[w]here a case has long been certified as ready for
trial,judicial discretion in allowing amendments should be discrete, circumspect, prudent and
cautious".
23. "Moreover, when a plaintiff has been guilty of an extended delay in moving to
amend, he or she must provide a reasonable excuse for the delay in making the motion and the
thereof." (2nd
merits Romanello v. Jason, 303 A.D.2d 670, 670, 756 N.Y.S.2d 657, 658 (2003)
Dept.)
24. Here, similarly to Walter and Romanello, the plaintiff has failed to provide any
reasonable excuse for filing her cross-motion seeking court's permission to submit her amêñded
bill of particulars approximately 18 months after the Note of Issue was filed
25. Additionally, the plaintiff must show causal of alleged
relationship newly injury
with the accident. Maniscalco v. 32 A.D.2d (2nd
Coleman, 671, 671, 300 N.Y.S.2d 618, 619
Dept.) Motion for leave to submit amended bill of particulars must be supported affidavit of
by
5
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person with knowledge of facts and affirmation of the plaintiffs attorney would not be sufficient
to support such motion. Bernas v. Kepner 36 A.D.2d 58, 319 N.Y.S.2d 283. Affidavit of
reasonable excuse for delay in making a motion to amend bill of particulars, together with a
showing of merit in the proposed amendment, is required. Lycett v. Niagara Frontier Transit
Systems, Inc. 81 A.D.2d 1034, 440 N.Y.S.2d 123.
26. Here, the plaintiff failed to make any showing that the new injuries, to wit: the
fracture of right posterior eight rib, blunting of a costophrenic angle, pleural fluid, have any
causal relationship with the subject accident. No affidavits were submitted with the cross-motion
to amend the bill of particulars.
27. Plaintiff has failed to show any merit of claiming new injuries.
28. For the forgoing reasons, the plaintiff's motion should be denied in its entirety,
"Supplemental"
and the defendant's motion seeking to strike the purported Verified Bill of
Particulars dated February 3, 2021 should be granted. And the plaintiff should be precluded from
introducing any evidence regarding a fracture of right posterior eight rib, blunting of
a costophrenic angle, pleural fluid, and the lost earnings claim.
WHEREFORE, itis respectfully requested that this Court issue an Order denying the
plaintiff's cross-motion and granting the Defendant's motion seeking an Order:
"Supplemental"
a) striking plaintiff's purported Verified Bill of Particulars dated
February 3, 2021;
b) precluding the plaintiff from offering any evidence at trial in connection with
"Suppleiliernal"
the purported Verified Bill of Particulars dated 3,
February
2021 and alleged fracture of right posterior eight rib, of
blunting
a costophicñic angle, pleural fluid,and the lostearnings claim; and
6
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c) granting such other and further relief as the court deems just and proper.
Dated: Brooklyn, New York
May 11, 2021 Yours, etc.,
BY: GENE VAK, ESQ.
McMAH , MARTINE & GALLAGHER, LLP
Attorneys for Defendant
795 FIFTH AVENUE CORPORATION
55 Washington Street, 7th Floor
Brooklyn, New York 11201
(212) 747-1230
File No.: 553.0215
TO: SACCO & FILLAS, LLP
Attorneys for Plaintiff
THALIA AGATHOCLEOUS
7*
31-19 Newtown Avenue, Floor
Astoria, New York 11102
(718) 746-3440
7
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"I"
EXHIBIT
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NORTHWELL HEALTH
Lenox Hill Hospital
100 East 77th 5treet,New York, NY 10075 Phone: (212)434-2935 Fax: (212)434-4899
Department of Radiology
Final Report
Attending: ALEK5EY LAZAREV
Patient: AGATHOCLEDUS, THALIA
Order By: JODI R BROWN
AKA: AGATHOCLEDUS, THALIA
Accession #: 36393590
MR#: 6043542 EPI #: 6570594 Pt Class: iNPATIENT
DOB: FEMALE
Dsch Date:
Acet #: 103143394 Location: ORT
Room #1
EXAM: XR RIBS-RIGHT-2 VIEWS
PROCEDURE DATE: 01/06/2018
History·
INTERPRETATION: Clinical Pain
3 views of the right ribs demoñstrates fracture right humerus. Medial !ocedon of right humeral head noted
in relation to the glêñchumeral Joint no evideñcs of right rib fracture. No evidence of right pneumathcrax
or pleural effusion.
impressIon: Comm1r.uted fracture right humerus o evidence of right rib fracture
patient."
"Thank you forthe opportunity to participate In the care of this
ERIC L CHARLES M.D., ATTENDING RADIOLOGIST
This document hasbeen electronically sigried. Jari 6 2018 11:53AM
Page10f 1
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"J"
EXHIBIT
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FILED: QUEENS COUNTY CLERK 05/11/2021
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"K"
EXHIBIT
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OCA Official
Form No.: 960
AUTHORIZATION FOR RELEASE OF HEALTH INFORMATION PURSUANT TO HIPAA
[This form has been approved by the New York State Department ofHealthi
Patient Name Thalia
Agathoc1eous Date of Birth: Social Number.
Security
Patient Address
110-29 55th Avenue NY
, Flushing, I1368
I, or myauthorized request
represcatative, thathealth informationregardingmy careand treatment be releasedas set forth
on thisform:
In accordance withNew York StateLaw and thePrivacy Rule ofthe Health InsurancePortabilityand AccountabilityAct of 1996
(HIPAA), I understandthat:
1. This authorizationmay include dbclosme ofinformation to
relating ALCOHOL and DRUG ABUSE, MENTAL HEALTH
except and CONFIDENTIAL HIV* RELATED INFORMATION if I place initials
on
TREATMENT, psychotherapy notes, only my
the appropriatelinein Item9(a).In the eventthe healthinformationdescribed below includesany of thesetypes of and
inf6rrûâtica, I
initial
the lineon thebox in Item9(a),I specifically
authorizereleaseof suchinformation to thepersons(s)indisted in Item8.
2. IfI am authorizingthereleaseof HIV alcohol
related, or drugtreatment,or mentalhealth treatmentinformation,the recipient
is
prohibitedfrom redisclosingsuch information withoutmy authorizationunlesspermitted to doso underfederalor state law,I understand
thatI havea rightto requesta list
ofpeople who may receive oruse my HIV relatedinformation withoutauthorization.IfI experience
discrimi=:i= because ofthe releaseor disclosureofHIV-related information,I may contactthe New York StateDivision ofHuman
Rights at (212)
480-2493 or the New York City Commission of human rights
at (212)306-7450. These agenciesare responsiblefor
protectingmy rights.
3. I havethe right
to revokethisauthorizationat any timeby writingto the healthcareprovider below.
listed I understandthatI may
revoke thisauthorizationexceptto the extentthatactionhas alreadybeen taken basedon thisauthorization.
4. I understandthatsigning this
authorization is voluntary.
My treatment,payment, enrollmentin a healthplan,or eligibility
forbenefits
willnot be conditionedupon my authorizationofthisdisclosure.
5. Information disclosedunder thisauthorizationmight be redisclosed
my the recipient(except as notedabove in Item
2), and this
redisclosure
may no longerbe protectedby federalor statelaw.
6. THIS AUTHORIZATION DOES NOT AUTHORIZE YOU TO DISCUSS MY HEALTH INFORMATION OR MEDICAL
CARE WITH ANYONE OTHER THAN THE ATTORNEY OR GOVERNMENTAL AGENCY SPECIFIED IN ITEM 9 (b).
7. Name and address ofhealth provider or to
entity releasethisinformation:
Sbk Associates Inc,3 E 63rd St #IC, New York, NY 10065
8. Name and address ofperson(s) or categoryofperson to whom thisinformation willbe sent:
McMuen, Martine & Gallagher, LLP, 55 Washington Street,7thFloor,Brooklyn, NY 11201
9(a). Specificinformationtobe released:
O Medical Record from TO
EntireMedical Record, including patient office
histories, notes(except psychotherapy notes),test
results,radiologystudies,
films,referrals,
consults,billingrecords,insurancerecords,and recordssent toyou by other healthcareproviders.
GB Other: W-2'S and Attendance Reconis Include:(Indicateby Initialing)
From 2016 to 2018 Alcohol/Drug Treatment
Mental Health Information
HIV-Related Information
Authorization to DiscussHealth Information
(b) ¤ By here
initialing I authorize
Initials Name of health care provider
individual
to discussmy healthinformation with my or a governmental
attorney, agency, listed
here:
(Attorney/FirmName or Governmental Agency Name)
10. Reason forreleaseofinformation: 11. Dateor eventon which thisauthorizationwillexpire:
O At requestof individual
2 Other:Legal Matter UPON CONCLUSION OF THIS MATTER
12. Ifnot name
the patient, ofperson signing form: 13. Authorityto signon behalfof patient:
SACCO & FILLAS, LLP BY: Tonino Sacco ATTORNEY-IN-FACT
fquest'
All itemson thisform have been completed and ns aboutthisform have beenanswered. In addi I havebeen provided a
copy of theform.
Signature of patient
or representative
auth ized by la
*Human !r:::±36-y Virus th causes AIDS e ew York State Public Health Law protects information which
reasonably could acmccas a HI =+ -ss orinfection and information a person's contacts.
identify having y regarding
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AFFIRMATION OF SERVICE BY MAIL AND EMAIL
Gene Novak, Esq., an attorney duly admitted to practice law in the Courts of the State of
New York, hereby affirms the following under penalty of perjury:
That I am not a party to this action am over 18 years of age and resides in Brooklyn, New
York.
That on May 11, 2021, I served a true copy of the annexed AFFIRMATION IN
OPPOSITION TO PLAINTIFF'S CROSS-MOTION AND IN REPLY AND FURTHER
SUPPORT OF MOTION TO STRIKE AND TO PRECLUDE and for the following matter,
by mailing via USPS Mail Service the same in a sealed envelope, with postage prepaid, in a post
offi
Preview
FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ____....---------------------------- ---- -- - X THALIA AGATHOCLEOUS, Index No.: 703721/2018 Plaintiff, AFFIRMATION IN OPPOSITION TO -against- PLAINTIFF'S CROSS-MOTION AND 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, IN REPLY AND FURTHER SUPPORT OF Defendant. MOTION TO STRIKE AND TO PRECLUDE __.___ .__¬_ .----------------------X Gene Novak, Esq., an attorney duly licensed to practice law in the State of New York, hereby affirms the following under penalty of perjury pursuant to CPLR §2106: 1. I am an associste of McMahon, Martine & Gallagher, LLP, attorneys for the defendant, 795 FIFTH AVENUE CORPORATION, and, as such, I am fully familiar with the pleadings and proceedings of the within action. 2. This affinnation is submitted in opposition to the plaintiffs cross-motion seeking a leave to amend bill of particulars and in reply and further support of the defendant's motion seeking an order: "Supplemental" a) striking plaintifPs purported Verified Bill of Particulars dated February 3, 2021; b) precluding the plaintiff from offering any evidence at trialin connection with "Supplemental" the purported Verified Bill of Particulars dated 3, February 2021 and alleged fracture of right posterior eight rib, of blunting a costophrenic angle, pleural fluid, and the lost eamings claim; and c) granting such other and further reliefas the court deems just and proper. 1 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 I. The Phi-":"Cross-Motion Seeking To Amend Bill Of Particulars Is Not Acesmpani-I By The Proposed Amended Bill Of Particulars 3. CPLR §3025(b) provides that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplcmcatal pleading clearly showing the changes or pleading." additions to be made to the 4. Since the plaintiff filed her cross-motion pursuant to CPLR §3025(b) seeking amendmeñt of the pleading, such cross-motion must be accompãñied by the proposed amended pleading, to wit: the proposed Amended Bill of Particulars showing the changes and additions to be made. 5. Despite the fact that CPLR §3025(b) mandates that the amended pleadiñgs be submitted along with the motion, the plaintiff failed to comply with CPLR §3025(b); therefore her cross-motion should be denied in itsentirety. IL The Defeñdant Has Been Prejudiced Because The Defendant Had No Notice Of The Newly Alleged Injuries To The PlaintifPs Right Eight Rib Prior To Note ofIssue Was Filed And Had No That The P'-i=+:vr Had Suffered Any Lost Wages Discovery Showing 6. Plaintiffs counsel argues that the report from Neighborhood Radiology dated March 1, 2018, should have provided a notice of the plaintifPs newly alleged fracture of right posterior eight rib. (Please see Affirm. ¶ 4). 7. The report does not state that the plaintiff suffered the fracture of the plaintiff's right rib." eight rib but, rather, states that "[q]uestion of partially healed fracture right posterior eight (Please "D" see the report of Neighborhood dated March 1, 2018 attached as Exhibit to the Radiology plaintiffs cross-motion seeking to submit the amended bill of particulars.) 8. Such report merely indicates that there is a [q]uestion of the fractured right eighth rib, Mr. Diamcñt did not opine ifthe plaintiff had suffered rib fractues. actually any 2 2 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 9. Importantly, records obtaiñêd from Lenox Hill Hospital, where the plaintiff was treated on the day of the accident, indicate that there was no evidence of any right rib fracture. (Attached "I" hereto as Exhibit is a copy of the Xray report of Lenox Hill Hospital dated January 6, 2018). 10. Therefoœ, by reading medical records disclosed, the plaintiff did not sustain any confumed fracture to her right rib. I1. Additionally, plaintiff's counsel argues that by providing authorization to obtain workers' compensation records, the plaintiff put your affirmant's office on notice that the plaintiff suffered or claimed injuries to her right rib.(Please see Affirm. ¶ 4). Workers' 12. Contrary to the plaintiff's counsel contention, the records obtaiñêd from Compensation Board indicate that the plaintiff claimed that she suffered injury to her right shoulder "J" only. (Attached hereto as Exhibit is a copy of the WC C-3 Employee Claim form). 13. Additionally, plaintiff's counsel argues that report by Dr. Guy dated March 5, 2020 put your affirmant's office on notice that the plaintiff had suffered fracture of her eight rib. (Please see "F" Affirm. ¶ 5, and please see thereport by Dr. Guy dated March 5, 2020 attached as Exhibit to the plaintiff'scross-motion seeking to submit the amended bill of particulars). 14. Although it is unclear when such report dated March 5, 2020 was actually served because the plaintiff has failed to submit any proof of service of such report, it is certain that such "F" report could not been served prior to the filing of the Note of Issue, September 5, 2019. (Exhibit or "B" Exhibit to the plaintiff's cross-motion seeking to submit the amended billof particulars). 15. Since the report by Dr. Guy was exchanged at least 5 months after the Note of Issue plaintiff' had been filed, counsel cannot argue that your affirmant's office had notice of the newly alleged injuries to the plaintiff's right rib prior to the filing of the Note of Issue. 3 3 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 16. As to plaintiff s counsel argument that an authorization for employment records was provided (please see Affirm. ¶4), such authorization dated June 8, 2018 did not allow for production of any payroll records, and, although it stated,among other things, that 2018 W-2 form to be provided, since the authorization was issued on June it did not allow us to obtain the 2018 W- 8, 2018, effectively "K" 2 form since such form had not been issued at that time. (Attached hereto as Exhibit is a copy of such employment records authorization). 17. Additionally, plaintiff s counsel maintaiñs that your affirmant's office questioned plaintiff about her employment at her deposition (please see Affirm. 16) while itis true that the questions were asked regarding the plaintiffs employment, no questions were asked about time missed from work and any loss eamings now claimed since plaintifPs counsel stated on the reconi that the lost wages claim was not made. (Please see Page 21, Lines 16-17 of the Plaintiff s Deposition Transcript "G" attached as Exhibit to the plaintifPs motion seeking to submit the amended bill of particulars). 18. As evident from the transcript, after plaintiff s counsel stated that "no claim for lost eamings" was made, defendant's counsel moved to asking questions relating to events occurred on the date of the accident. (Please see Page 21, Lines 16-25 of the PlaintifPs Deposition Transcript attached "G" as Exhibit to the plaintiff s motion seeking to submit the amended bill of particulars). 19. Additionally, plaintifPs counsel reliance on Greco v. Five Garage Com., 123 A.D.2d 422 is misplaced. In Greco, the court granted motion to amend complaint to include language into the complaint saying that the plaintiff sustained a "serious injury". The plaintiffdid not seek to amend the bill of particulars to allege either new injuries or special damages that had not been alleged prior to the note of issue. (Id.) 4 4 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 20. Here, unlike in Greco, the plaintiff seeks the court's permission to submit the amended billof particulars approximately 18 months after filing of the Note of Issue, alleging new injury and special damages that were not pleaded prior to filing of the Note ofIssue. III. The Plaintiff Failed To Set Forth Any Reasonable Escuse For Over 18 Months Delay In Bringing Motion To Amend Bill Of Particulars And Failed To Show Any Causal Relationship Between The New Iniuries And The Accident 21. Plaintiff, who fails to set forth in his affidavit sufficient facts in support of motion to amend the bill of particulars and who offers no reasonable excuse for long delay in bringing such motion, is not entitled to leave to file amended billof particulars. Gonzales v. Texaco Inc., (2nd 71 A.D.3d 666, 668 Dept.) Citing Walter v. LeCesse Corp. 54 A.D.2d 1136, 388 N.Y.S.2d 776. 22. In Walter, the court held that "[w]here a case has long been certified as ready for trial,judicial discretion in allowing amendments should be discrete, circumspect, prudent and cautious". 23. "Moreover, when a plaintiff has been guilty of an extended delay in moving to amend, he or she must provide a reasonable excuse for the delay in making the motion and the thereof." (2nd merits Romanello v. Jason, 303 A.D.2d 670, 670, 756 N.Y.S.2d 657, 658 (2003) Dept.) 24. Here, similarly to Walter and Romanello, the plaintiff has failed to provide any reasonable excuse for filing her cross-motion seeking court's permission to submit her amêñded bill of particulars approximately 18 months after the Note of Issue was filed 25. Additionally, the plaintiff must show causal of alleged relationship newly injury with the accident. Maniscalco v. 32 A.D.2d (2nd Coleman, 671, 671, 300 N.Y.S.2d 618, 619 Dept.) Motion for leave to submit amended bill of particulars must be supported affidavit of by 5 5 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 person with knowledge of facts and affirmation of the plaintiffs attorney would not be sufficient to support such motion. Bernas v. Kepner 36 A.D.2d 58, 319 N.Y.S.2d 283. Affidavit of reasonable excuse for delay in making a motion to amend bill of particulars, together with a showing of merit in the proposed amendment, is required. Lycett v. Niagara Frontier Transit Systems, Inc. 81 A.D.2d 1034, 440 N.Y.S.2d 123. 26. Here, the plaintiff failed to make any showing that the new injuries, to wit: the fracture of right posterior eight rib, blunting of a costophrenic angle, pleural fluid, have any causal relationship with the subject accident. No affidavits were submitted with the cross-motion to amend the bill of particulars. 27. Plaintiff has failed to show any merit of claiming new injuries. 28. For the forgoing reasons, the plaintiff's motion should be denied in its entirety, "Supplemental" and the defendant's motion seeking to strike the purported Verified Bill of Particulars dated February 3, 2021 should be granted. And the plaintiff should be precluded from introducing any evidence regarding a fracture of right posterior eight rib, blunting of a costophrenic angle, pleural fluid, and the lost earnings claim. WHEREFORE, itis respectfully requested that this Court issue an Order denying the plaintiff's cross-motion and granting the Defendant's motion seeking an Order: "Supplemental" a) striking plaintiff's purported Verified Bill of Particulars dated February 3, 2021; b) precluding the plaintiff from offering any evidence at trial in connection with "Suppleiliernal" the purported Verified Bill of Particulars dated 3, February 2021 and alleged fracture of right posterior eight rib, of blunting a costophicñic angle, pleural fluid,and the lostearnings claim; and 6 6 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 66 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 c) granting such other and further relief as the court deems just and proper. Dated: Brooklyn, New York May 11, 2021 Yours, etc., BY: GENE VAK, ESQ. McMAH , MARTINE & GALLAGHER, LLP Attorneys for Defendant 795 FIFTH AVENUE CORPORATION 55 Washington Street, 7th Floor Brooklyn, New York 11201 (212) 747-1230 File No.: 553.0215 TO: SACCO & FILLAS, LLP Attorneys for Plaintiff THALIA AGATHOCLEOUS 7* 31-19 Newtown Avenue, Floor Astoria, New York 11102 (718) 746-3440 7 7 of 7 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 67 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 "I" EXHIBIT FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 67 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 NORTHWELL HEALTH Lenox Hill Hospital 100 East 77th 5treet,New York, NY 10075 Phone: (212)434-2935 Fax: (212)434-4899 Department of Radiology Final Report Attending: ALEK5EY LAZAREV Patient: AGATHOCLEDUS, THALIA Order By: JODI R BROWN AKA: AGATHOCLEDUS, THALIA Accession #: 36393590 MR#: 6043542 EPI #: 6570594 Pt Class: iNPATIENT DOB: FEMALE Dsch Date: Acet #: 103143394 Location: ORT Room #1 EXAM: XR RIBS-RIGHT-2 VIEWS PROCEDURE DATE: 01/06/2018 History· INTERPRETATION: Clinical Pain 3 views of the right ribs demoñstrates fracture right humerus. Medial !ocedon of right humeral head noted in relation to the glêñchumeral Joint no evideñcs of right rib fracture. No evidence of right pneumathcrax or pleural effusion. impressIon: Comm1r.uted fracture right humerus o evidence of right rib fracture patient." "Thank you forthe opportunity to participate In the care of this ERIC L CHARLES M.D., ATTENDING RADIOLOGIST This document hasbeen electronically sigried. Jari 6 2018 11:53AM Page10f 1 FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 68 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 "J" EXHIBIT FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 68 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 Em oyee Claim mover -arwommpems-mm C·.3 FEad Mstemea Of WMNdBM trweewrempmulonbeneAsbuummelssumb$ny R48L l)pt W punemly, ThbtumnuyabehaAgedmagnanea1wmmach.ahnamum. WUs0eseNamberglyoutnewng A YOUR MFORMA ) uese: zommerube 114dhgedates 4.sesseemy makr aReneNumberr2/21 annee On . KWBiouncedatennktrliyouhsetpegsMaBondAssatif Y No fgue orwhathnguage) 1 walk Eustnameduleassesdayseeramenerts)ageetmeefreerinimpu,ass ,.Eldyguloselmutommolkdlisemarergigymeng$magesdtdystri$syBoonst Yea No EL TUWtJOBuntisdaleoftistu$uyorIIness t unme.e p,µ dh whe-dphd? eme tidea a OPMThe Asumnd W der Octee sepay(meanemeeperpsypsee a sa semrossure ammamannaeners,•m•memempic O vs O N. s 8 a vouramr onmmes '5 1.Bdedh‡dyeducpdonentdnues t LDee d 93 5 ae....,-n,,,,a, ..- WAe , . ld fla 4.emerewemeamvansnout • Ono mm. sywen enemammmar FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 68 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 .. samunowne(swwueemer.aa4 nnhjaynew ye One kpe,we gvutelectemelleftheteter.cpstishofameosadrnarygnegat Yes O Ke sm Ormrweb Damepermia flanerwhwe täememmemutershme Irprmidewash ed,$menmaradaddrusehassmoreigabewencocanger IL+pveWGBeas@woS9· Greer adardsfe? _. agefrtimr 5.dfiddul ARpghmeshmennstwhomepwodin rrue OSumesep Ûhumplw 5es pl 4 maib preseepnesthetanaltersypsed? finwhee sole F. BEDIEALTIIEEllHiMTFORTHISlf W RDIE 1:%Ratisat$pfatesg yneriketwarmes ÚNarm anmhat (sidptly F4) 1Weepamsthods? C Yes .No a me-sou saka pew n. p sea.4 Dememes I ag.synam __. PhqM .L_,,_) Eyes emeymese es ye4e6nt ores Due . IveepedInt assa saladh as se se wheamens u mensCOMPumi mFAR FORitC43709EMBIWTNMHLFOMt O 8.wasumesentingaswmararee 07, O No weemnannewasamusii@$vunityariviatwat Qyn Q Man nautsetb aseen ageenytheardes est as a see e sonata ...... ..... - _t-JA4 dUI99lf flR3535 C -- EspdniabM cas(usinges,tz FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 69 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 "K" EXHIBIT FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 69 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 OCA Official Form No.: 960 AUTHORIZATION FOR RELEASE OF HEALTH INFORMATION PURSUANT TO HIPAA [This form has been approved by the New York State Department ofHealthi Patient Name Thalia Agathoc1eous Date of Birth: Social Number. Security Patient Address 110-29 55th Avenue NY , Flushing, I1368 I, or myauthorized request represcatative, thathealth informationregardingmy careand treatment be releasedas set forth on thisform: In accordance withNew York StateLaw and thePrivacy Rule ofthe Health InsurancePortabilityand AccountabilityAct of 1996 (HIPAA), I understandthat: 1. This authorizationmay include dbclosme ofinformation to relating ALCOHOL and DRUG ABUSE, MENTAL HEALTH except and CONFIDENTIAL HIV* RELATED INFORMATION if I place initials on TREATMENT, psychotherapy notes, only my the appropriatelinein Item9(a).In the eventthe healthinformationdescribed below includesany of thesetypes of and inf6rrûâtica, I initial the lineon thebox in Item9(a),I specifically authorizereleaseof suchinformation to thepersons(s)indisted in Item8. 2. IfI am authorizingthereleaseof HIV alcohol related, or drugtreatment,or mentalhealth treatmentinformation,the recipient is prohibitedfrom redisclosingsuch information withoutmy authorizationunlesspermitted to doso underfederalor state law,I understand thatI havea rightto requesta list ofpeople who may receive oruse my HIV relatedinformation withoutauthorization.IfI experience discrimi=:i= because ofthe releaseor disclosureofHIV-related information,I may contactthe New York StateDivision ofHuman Rights at (212) 480-2493 or the New York City Commission of human rights at (212)306-7450. These agenciesare responsiblefor protectingmy rights. 3. I havethe right to revokethisauthorizationat any timeby writingto the healthcareprovider below. listed I understandthatI may revoke thisauthorizationexceptto the extentthatactionhas alreadybeen taken basedon thisauthorization. 4. I understandthatsigning this authorization is voluntary. My treatment,payment, enrollmentin a healthplan,or eligibility forbenefits willnot be conditionedupon my authorizationofthisdisclosure. 5. Information disclosedunder thisauthorizationmight be redisclosed my the recipient(except as notedabove in Item 2), and this redisclosure may no longerbe protectedby federalor statelaw. 6. THIS AUTHORIZATION DOES NOT AUTHORIZE YOU TO DISCUSS MY HEALTH INFORMATION OR MEDICAL CARE WITH ANYONE OTHER THAN THE ATTORNEY OR GOVERNMENTAL AGENCY SPECIFIED IN ITEM 9 (b). 7. Name and address ofhealth provider or to entity releasethisinformation: Sbk Associates Inc,3 E 63rd St #IC, New York, NY 10065 8. Name and address ofperson(s) or categoryofperson to whom thisinformation willbe sent: McMuen, Martine & Gallagher, LLP, 55 Washington Street,7thFloor,Brooklyn, NY 11201 9(a). Specificinformationtobe released: O Medical Record from TO EntireMedical Record, including patient office histories, notes(except psychotherapy notes),test results,radiologystudies, films,referrals, consults,billingrecords,insurancerecords,and recordssent toyou by other healthcareproviders. GB Other: W-2'S and Attendance Reconis Include:(Indicateby Initialing) From 2016 to 2018 Alcohol/Drug Treatment Mental Health Information HIV-Related Information Authorization to DiscussHealth Information (b) ¤ By here initialing I authorize Initials Name of health care provider individual to discussmy healthinformation with my or a governmental attorney, agency, listed here: (Attorney/FirmName or Governmental Agency Name) 10. Reason forreleaseofinformation: 11. Dateor eventon which thisauthorizationwillexpire: O At requestof individual 2 Other:Legal Matter UPON CONCLUSION OF THIS MATTER 12. Ifnot name the patient, ofperson signing form: 13. Authorityto signon behalfof patient: SACCO & FILLAS, LLP BY: Tonino Sacco ATTORNEY-IN-FACT fquest' All itemson thisform have been completed and ns aboutthisform have beenanswered. In addi I havebeen provided a copy of theform. Signature of patient or representative auth ized by la *Human !r:::±36-y Virus th causes AIDS e ew York State Public Health Law protects information which reasonably could acmccas a HI =+ -ss orinfection and information a person's contacts. identify having y regarding FILED: QUEENS COUNTY CLERK 05/11/2021 08/19/2021 02:40 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 70 84 RECEIVED NYSCEF: 05/11/2021 08/19/2021 AFFIRMATION OF SERVICE BY MAIL AND EMAIL Gene Novak, Esq., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under penalty of perjury: That I am not a party to this action am over 18 years of age and resides in Brooklyn, New York. That on May 11, 2021, I served a true copy of the annexed AFFIRMATION IN OPPOSITION TO PLAINTIFF'S CROSS-MOTION AND IN REPLY AND FURTHER SUPPORT OF MOTION TO STRIKE AND TO PRECLUDE and for the following matter, by mailing via USPS Mail Service the same in a sealed envelope, with postage prepaid, in a post offi