Preview
FILED: NEW YORK COUNTY CLERK 11/01/2022 12:32 PM INDEX NO. 152084/2012
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 11/01/2022
EXHIBIT E
FILED: NEW YORK COUNTY CLERK 07/21/2020
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NYSCEF DOC. NO. 341
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X
DIANA LEWIS, AFFIRMATION
Plaintiff, IN SUPPORT
-against- Index No.: 152084/2012
CONSOLIDATED EDISON COMPANY OF NEW YORK,
INC., VERIZON OF NEW YORK, INC., TRIUMPH
CONSTRUCTION CORP., EMPIRE CITY SUBWAY,
(LIMITED), RESTANI CONSTRUCTION CORP. and
ROADWAY CONTRACTING, INC,
Defendants.
------------------------------------------------------------------------X
JENNINE A. GERRARD, an attorney at law duly licensed to practice in the State of
New York, hereby makes the following statements under the penalty of perjury:
1. I am a member of the firm of LEWIS, BRISBOIS, BISGAARD & SMITH,
attorneys for Defendants, VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY,
"Verizon"
(Hereinafter and "ECS,") in the above captioned matter and am fully familiar with the
facts and circumstances surrounding this matter.
2. This Affirmation is submitted in support of the within cross-
respectfully
motion for an Order pursuant to §2215, §3124 and §3126 and the New York Rules of Court
§202.21 as follows:
a) Vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter
from the trialcalendar; and
b) Compelling and permitting VERIZON and ECS to conduct discovery including
obtaining numerous outstanding authorizations for numerous health care providers,
SSDI and Plaintiff's treating endocrinologist as well as conduct a further deposition
of the plaintiff and independent medical examinations, including an orthopedic and a
psychological independent medical examinations, relating to injures alleged in
Plaintiff's expert reports served post Note of Issue, selected sections of medical
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3rd 4*
records served by plaintiff post Note of Issue, and Plaintiff s and
Supplemental Bill of Particulars served post Note of Issue; and
c) If this Court will not Vacate Plaintiff's Note of Issue, itis respectfully requested that
the trial of this matter be stayed until the above discovery is complete; or in the
alternative,
d) Granting such other and further relief as this Court deems just and proper.
FACTS
3. Plaintiff alleges that her accident occurred on October 22, 2011 when she
E.47th
tripped over a metal construction plate located in the west side cross-walk of Street at its
intersection with Madison Avenue, New York, NY. She claims to have sustained a tibial plateau
fracture of her left knee, along with various other injuries that have rendered her incapable of
walking. She recently underwent surgery at John's Hopkins to remove her piriformis muscle and
part of her sciatic nerve, but claims that she suffers from leftfoot drop as a result of the incident.
ARGUMENT
4. Itis respectfully requested that this Court vacate Plaintiff's Note of Issue and
strike this matter from the calendar because significant discovery remains outstanding.
VERIZON and ECS have not been afforded an opportunity to complete crucial discovery, as
they have not received authorizations for multiple health care providers, SSDI and Plaintiff s
treating endocrinologist. In addition, defendants need to conduct a further deposition and
independent medical examinations, including an orthopedic and a psychological independent
3rd 4*
medical examination, relating to new injures alleged in Plaintiff's recently served and
Supplemental Bill of Particulars, as well as recently-served excerpts of medical records and expert
reports served by plaintiff s counsel since the Note of Issue was filed. It is clear from Plaintiff s
extensive treatment history and the opinions expressed by some of her physicians that many of her
alleged injuries may stem from other causes than the trip and fall. As such, in addition to the
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Defendants'
experts who previously examined Plaintiff, based on her recent disclosure and
extensive treatment history an orthopedic and a psychological independent medical examination is
also needed to prepare for the defense of this matter.
5. VERIZON and ECS would be severely prejudiced if they are forced to defend
this case without having an opportunity to complete this discovery relating to plaintiff's alleged
injuries through her many health care providers. In the event this Court does not strike the Note
of Issue, itis requested that an Order be issued staying the trial of this matter until the above
discovery is complete, and granting such other and further relief as this Court deems just and
proper.
PROCEDURAL HISTORY
6. Plaintiff originally commenced this Action on April 24, 2012 against
Consolidated Edison Company of New York ("Con Edison"), Verizon New York, Inc., Triumph
Construction Corp., Empire City Subway Company and Restani Construction. All named
Defendants appeared in the Action by serving Answers.
7. On or about February 28, 2014, Plaintiff amended his Complaint to add an
entity named Roadway Contracting, Inc., who never appeared, as a direct Defendant. Plaintiff's
Amended Complaint is annexed hereto as Exhibit "A", Defendant Triumph's Answer to the
Amended Complaint is annexed hereto as Exhibit "B", and co-defendants Verizon and Empire
City Subway's Answer to the Amended Complaint is annexed hereto as Exhibit "C". The
parties discontinued all claims against Con Edison and Restani and they are no longer parties to
the case. (The Stipulation of Discontinuance as to these parties is annexed hereto as Exhibit
"D".
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8. On September 7, 2017 Plaintiff filed his Note of Issue and Certificate of
Readiness, asserting that discovery was complete. (A copy of the Note of Issue is annexed hereto
as Exhibit "E").
9. In approximately October/November of 2019, this office assumed the
representation of VERIZON and ESC from another firm. (Consent to Change Attorney form
annexed as Exhibit "F"). After a review of the file,itbecame evident that plaintiff had failed to
provide many authorizations for medical treatment rendered to the plaintiff allegedly as a result
of the claimed incident, as well as for other accidents and chronic medical conditions that she
suffers from, which defendants believe are related to, or the cause of, her claimed disability.
10. Since November of 2019, plaintiff's counsel has served your affirmant with a
continuous stream of Supplemental Bills of Particulars, exchanges of portions of medical records
and expert reports that refer to doctors/records which have not been provided by plaintiff. (See
Exhibit "G"). There is presently a demand for authorizations which was e-filed on 6/11/2020
which has garnered no response at all. (Exhibit "H"). There are many authorizations which have
been demanded as early as December 3, 2019,, which plaintiff's counsel has simply not provided.
Many, if not allof these providers are physicians whose names appear as treating physicians in the
many expert reports served by plaintiff since Note of Issue. In addition, many authorizations were
provided via email by plaintiff in late May of 2020 which are Arons authorizations, and not
providers'
authorizations which would allow defendants to obtain the records, even though same
were demanded.
11. As one small example of how defendants are not being provided with
authorizations for crucial records, plaintiff's counsel exchanged a 3101(d) and a report from the
plaintiff's treating endocrinologist, Dr. Zoel Zonstein in November 2019, two years after filing his
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Note of Issue. (Exhibit "I"). Plaintiff's counsel, Howard Engle, Esq., asked defense counsel to
conduct a remote deposition of his expert, who now lives in Israel, in order to preserve his
testimony for trial.In the body of Dr. Zonstein's report, he indicates that his opinion and expected
trial testimony as to causation and damages will be based on his 37 years of treatment of the
plaintiff. He refers to the plaintiff's medical history during that time in his report. Your affirmant
immediately canceled the planned virtual deposition via email on December 4, 2019, citing the lack
"J"
of records needed to question this expert. (Exhibit ). These records obviously must be turned
over in order to avoid preclusion of this expert, or better, to question him regarding the records that
formed the basis of his opinion. A small amount of Dr. Zonstein's records from his recent treatment
of the plaintiff at Montefiore were sent by Mr. Engle, yet they are not the 37 years of records that
Dr. Zonstein intends to base his opinion on. Further, contained in the small emailed package of
Montefiore records for Dr. Zonstein forwarded by plaintiff's counsel, he refers to a Neurologist, Dr.
Spiro, who has also been treating the plaintiff for her alleged injuries. Dr. Spiro's authorization was
demanded in December 2019 but has not yet been provided. (Exhibit "K").
12. In addition to Dr. Zonstein's report, plaintiff's counsel has served many
additional expert disclosures since November 2019, including Dr. Sheldon Simon, Dr. Aaron Filler,
Dr. George Osgood, and several others. Each of these disclosures contain reports which refer to
records that VERIZON and ECS have never been provided with, as well as tests that were
performed during their respective exams that were never provided by plaintiff. In addition to the
demands served by VERIZON and ECS on December 3, 2019 and June 11, 2020, we have just seen
a demand by codefendant TRIUMPH which listsmany new and previously undisclosed providers.
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13. On or about January 6, 2020, Plaintiff served a Supplemental Bill of
Particulars which alleges new nerve injuries in an attached report by Dr. Aaron Filler. (Exhibit
4th
"L"). On February 11, 2020 Plaintiff served a Supplemental Bill of Particulars in which she
alleges that Plaintiff underwent an operative procedure in December, 2019 to treat her left sided
Release"
piriformis syndrome in a procedure entitled 'Left Piriformis and left sciatic Nerve
4th
Neuroplasty to treat her left sided sciatic nerve compression. (A copy of Plaintiff's
Supplemental Bill of Particulars is annexed hereto as (Exhibit "M").
14. Plaintiff filed his Note of Issue in September, 2017. Since that time, after
certifying that all discovery was complete, he has continued to augment and change his
allegations and evade attempts to provide discovery that the defendants are entitled to. Clearly,
discovery is not complete and therefore the Note of Issue must be stricken to avoid undue
prejudice to all defendants.
LEGAL ARGUMENT
15. In New York, a motion to vacate a notice of trialshould be granted where itis
based upon a certificate of readiness which contains the erroneous statement that discovery was
(1st
completed or waived. See Savino v. Lewittes, 160 A.D.2d 176, 553 N.Y.S.2d 146 Dept.
1990). It is undisputed that discovery has now become incomplete, as Plaintiff has not yet
provided authorizations for numerous providers. Additionally, in light of the recent, January 20,
4th
2020 Third Supplemental Bill of Particulars and the February 11, 2020 Supplemental Bill of
Particulars, in which new injuries are alleged, VERIZON and ECS will need to conduct a further
deposition of Plaintiff, as well as independent medical examinations, including at a minimum, an
orthopedic and a psychological independent medical examination.
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16. Therefore, if this Court does not vacate the Note of Issue, then VERIZON and
ECS would be compelled to defend proximate cause and damages with no ammunition. This
type of result can only cause extreme prejudice to VERIZON and ECS. To avoid undue
prejudice to VERIZON and ECS, this case should be stricken from the trial calendar due to
plaintiff's continued disclosures of new expert reports containing new injuries and theories of
causation, a Third and Fourth Supplemental Bill of Particulars served after the Note of Issue
alleging new injuries, and numerous outstanding authorizations for medical treatment which are
necessary for the defense of this matter. If this Court does not strike this matter from the trial
calendar, itis requested that the Court issue an Order staying the trial of this matter and allowing
for the above discovery.
WHEREFORE, your affirmant respectfully requests that this Court issue an Order
pursuant to CPLR §3124 and §3126 and the New York Rules of Court §202.21 as follows:
Vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter from the trial
calendar; and compelling and permitting VERIZON and ECS to conduct discovery. The
outstanding discovery in this case consists of many outstanding authorizations, authorizations for
SSDI and Plaintiff's treating endocrinologist, as well as a further deposition and independent
medical examinations, including, at a minimum, an orthopedic examination and a psychological
3"1 4t¹¹
independent medical examination, relating to injures alleged in Plaintiff's and Supplemental
Bills of Particulars; or in the alternative if thisCourt will not Vacate Plaintiff's Note of Issue, itis
respectfully requested that the trialof this matter be stayed until the above discovery is complete;
and Granting such other and further relief as this Court deems just and proper.
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Dated: New York, New York
July 20, 2020
Yours, etc.
LEWIS BRISBOIS BISGAARD & SMITH LLP
Imdne A. Gerrard, Esq.
Attorneys For Defendants
VERIZON OF NEW YORK, INC.
and EMPIRE CITY SUBWAY
21't
77 Water Street, Floor
New York, New York 10005
(646) 783-0990
Our File No.: 44837-124
TO:
EDELMAN & EDELMAN
Attorneys for Plaintiff
61 Broadway, Suite 3010
New York, New York 10006
Paul A. Eschmann, Esq.
Ahmuty, Demers & McManus
Attorneys For Defendant
TRIUMPH CONSTRUCTION CORP.
1681
199 Water Street, Floor
New York, New York 10038
(212) 513-7788
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X
DIANA LEWIS, AFFIRMATION
OF GOOD FAITH
Plaintiff,
-against- Index No.: 152084/2012
CONSOLIDATED EDISON COMPANY OF NEW YORK, Returnable: 08/03/2020
INC., VERIZON OF NEW YORK, INC., TRIUMPH
CONSTRUCTION CORP., EMPIRE CITY SUBWAY,
(LIMITED), RESTANI CONSTRUCTION CORP. and
ROADWAY CONTRACTING, INC,
Defendants.
------------------------------------------------------------------------X
JENNINE A. GERRARD, ESQ, an attorney at law, duly admitted to practice law before
the Courts of the State of New York, hereby makes the following statements upon information
and belief and under the penalty of perjury:
1. I am a member of the firm of LEWIS BRISBOIS BISGAARD & SMITH,,
attorneys for the defendants, VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY
in the above captioned matter, and as such, I am fully familiar with the facts and circumstances
surrounding this matter.
2. This affirmation is submitted in support of the instant cross-motion for an Order
pursuant to CPLR §2215, §3124 and §3126 and the New York Rules of Court §202.21 as
follows: to vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter from
the trial calendar; and compelling and permitting VERIZON OF NEW YORK, INC. and EMPIRE
CITY SUBWAY to conduct discovery including numerous outstanding authorizations, IME's and
an additional deposition of plaintiff.
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3. There have been countless telephone conversations with plaintig's counsel as well
as emails exchanged that are inched in (Exhibit "G"). Despite our many coñversations and
correspondece regarding outstañdiñg discovery, plaintifs counsel continues to serve pleadings
adding new injuries, expert reports, selected portions of medical records and has not complied with
our dc-sñds to date. The instant cross-motion is therefore necessary to resolve discovery issues and
to avoid severely prejudicing the defense of VERIZON and ECS.
WHEREFORE, the intervention of the Court is necessary to resolve these outst=&g
discovery issues.
Dated: New York, New York
July 20, 2020
Yours, etc.
LEWIS BRISBOIS BISGAARD & SMITH LLP
.
Jennine A. Gerrard, Esq.
Attorneys For Defendants
Attorneys For Defendants
VERIZON OF NEW YORK, INC.
and EMPIRE CITY SUBWAY
21't
77 Water Street, Floor
New York, New York 10005
(646) 783-0990
Our File No.: 44837-124
TO:
EDELMAN & EDELMAN
Attorneys for Plaintiff
61 Broadway, Suite 3010
New York, New York 10006
Paul A. Eschmann, Esq.
Ahmuty, Demers & McManus
Attorneys For Defendant
TRIUMPH CONSTRUCTION CORP.
1681
199 Water Street, Floor
New York, New York 10038
(212) 513-7788
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X
DIANA LEWIS,
NOTICE OF CROSS-MOTION
Plaintiff,
-against- Hon. N. Bannon
Index No.: 152084/2012
CONSOLIDATED EDISON COMPANY OF NEW YORK,
INC., VERIZON OF NEW YORK, INC., TRIUMPH
CONSTRUCTION CORP., EMPIRE CITY SUBWAY,
(LIMITED), RESTANI CONSTRUCTION CORP. and
ROADWAY CONTRACTING, INC,
Defendants.
------------------------------------------------------------------------X
Upon the Affirmation of JENNINE A. GERRARD, ESQ., affirmed on the 20th day of
July, 2020 and upon exhibits annexed thereto, the Defendants, VERIZON OF NEW YORK,
INC. and EMPIRE CITY SUBWAY will cross-move this Court at the Courthouse located at 60
Centre Street, New York, NY on the 3rd day of August, 2020, at 9:30 a.m., or as soon thereafter
as counsel may be heard, for an Order pursuant to §2215, §3124 and §3126 and the New York
Rules of Court §202.21 as follows:
a) Vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter
from the trialcalendar; and
b) Compelling and permitting VERIZON OF NEW YORK, INC. and EMPIRE CITY
SUBWAY to conduct discovery including receiving multiple outstanding
authorizations for various health care providers, SSDI and Plaintiff's treating
endocrinologist as well as conduct a further deposition and independent medical
examinations, including an orthopedic and a psychological independent medical
3"1 441
examination, relating to injures alleged in Plaintiff's and Supplemental Bill of
Particulars and all expert reports served since Note of Issue; or in the alternative,
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c) If this Court will not Vacate Plaintiff's Note of Issue, itis respectfully requested that
the trial of this matter be stayed until the above discovery is complete; and
d) Cat-ng such other and further relief as this Court deems just and proper.
Dated: New York, New York
July 20, 2020
Yours, etc.
LEWIS BRISBOIS BISGAARD & SMITH LLP
Jennine A. Gerrard, Esq.
Attorneys For Defendants
VERIZON OF NEW YORK, INC.
and EMPIRE CITY SUBWAY
21't
77 Water Street, Floor
New York, New York 10005
(646) 783-0990
Our File No.: 44837-124
TO:
EDELMAN & EDELMAN
Attorneys for Plaintiff
61 Broadway, Suite 3010
New York, New York 10006
Paul A. Eschmann, Esq.
Ahmuty, Demers & McManus
Attorneys For Defendant
TRIUMPH CONSTRUCTION CORP.
1681
199 Water Street, Floor
New York, New York 10038
(212) 513-7788
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EXHIBIT A
FILED:
F ILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 07/21/2020
11/01/2022
07/14/2020 05:44
12:32
08:5 7 PM
AM|
INDEX
INDEX NO.
NO . 152084/2012
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/ 2012
NYSCEF
NYSCEF DOC.
DOC. NO.
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C EW3
EDELMAN & EDELMAN, P.C.
ArrORNEYS AT LAW
61 BROADWAY-SUTTE 3010
NEW YoRK, NEw YORK 10006
TELEPHONE: (212)943-1200
FACWILE: (212)943-0001
February 28, 2014
MARTINEDELMAN
MYRONS.ROSEN JEROMEEDELMAN(1913-2000)
DAVIDM.SCHUU,BR David M. Santoro,Esq.
PAULH.MALONEY IV Attorneyat Law
HOWARDENGLE 4 IrvingPlace, Room1800
New York,N.Y. 10003-3598
Michael Toolan,Esq.
Conway, Curtin
Farrell, & P.C
Kelly,
Attorneysat Law
48 Wall Street
New York,N.Y. 10005
Thomas E. Muldoon,Esq.
Barry,McTiernan & Moore
Attorneysat Law
55 Church Street
WhitePlains,N.Y. 10301
Paul Eschmann, Esq.
Ahmuty, Demers & McManus
Attorneysat Law
200 I.U.WilletsRoad
Albertson,N.Y. 11507
Re: Lewis v. Consolidated Edison Company of NY, Inc. etal.
Index Number: 152084/12
Preview
FILED: NEW YORK COUNTY CLERK 11/01/2022 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 11/01/2022 EXHIBIT E FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X DIANA LEWIS, AFFIRMATION Plaintiff, IN SUPPORT -against- Index No.: 152084/2012 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., VERIZON OF NEW YORK, INC., TRIUMPH CONSTRUCTION CORP., EMPIRE CITY SUBWAY, (LIMITED), RESTANI CONSTRUCTION CORP. and ROADWAY CONTRACTING, INC, Defendants. ------------------------------------------------------------------------X JENNINE A. GERRARD, an attorney at law duly licensed to practice in the State of New York, hereby makes the following statements under the penalty of perjury: 1. I am a member of the firm of LEWIS, BRISBOIS, BISGAARD & SMITH, attorneys for Defendants, VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY, "Verizon" (Hereinafter and "ECS,") in the above captioned matter and am fully familiar with the facts and circumstances surrounding this matter. 2. This Affirmation is submitted in support of the within cross- respectfully motion for an Order pursuant to §2215, §3124 and §3126 and the New York Rules of Court §202.21 as follows: a) Vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter from the trialcalendar; and b) Compelling and permitting VERIZON and ECS to conduct discovery including obtaining numerous outstanding authorizations for numerous health care providers, SSDI and Plaintiff's treating endocrinologist as well as conduct a further deposition of the plaintiff and independent medical examinations, including an orthopedic and a psychological independent medical examinations, relating to injures alleged in Plaintiff's expert reports served post Note of Issue, selected sections of medical 1 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 3rd 4* records served by plaintiff post Note of Issue, and Plaintiff s and Supplemental Bill of Particulars served post Note of Issue; and c) If this Court will not Vacate Plaintiff's Note of Issue, itis respectfully requested that the trial of this matter be stayed until the above discovery is complete; or in the alternative, d) Granting such other and further relief as this Court deems just and proper. FACTS 3. Plaintiff alleges that her accident occurred on October 22, 2011 when she E.47th tripped over a metal construction plate located in the west side cross-walk of Street at its intersection with Madison Avenue, New York, NY. She claims to have sustained a tibial plateau fracture of her left knee, along with various other injuries that have rendered her incapable of walking. She recently underwent surgery at John's Hopkins to remove her piriformis muscle and part of her sciatic nerve, but claims that she suffers from leftfoot drop as a result of the incident. ARGUMENT 4. Itis respectfully requested that this Court vacate Plaintiff's Note of Issue and strike this matter from the calendar because significant discovery remains outstanding. VERIZON and ECS have not been afforded an opportunity to complete crucial discovery, as they have not received authorizations for multiple health care providers, SSDI and Plaintiff s treating endocrinologist. In addition, defendants need to conduct a further deposition and independent medical examinations, including an orthopedic and a psychological independent 3rd 4* medical examination, relating to new injures alleged in Plaintiff's recently served and Supplemental Bill of Particulars, as well as recently-served excerpts of medical records and expert reports served by plaintiff s counsel since the Note of Issue was filed. It is clear from Plaintiff s extensive treatment history and the opinions expressed by some of her physicians that many of her alleged injuries may stem from other causes than the trip and fall. As such, in addition to the 2 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 Defendants' experts who previously examined Plaintiff, based on her recent disclosure and extensive treatment history an orthopedic and a psychological independent medical examination is also needed to prepare for the defense of this matter. 5. VERIZON and ECS would be severely prejudiced if they are forced to defend this case without having an opportunity to complete this discovery relating to plaintiff's alleged injuries through her many health care providers. In the event this Court does not strike the Note of Issue, itis requested that an Order be issued staying the trial of this matter until the above discovery is complete, and granting such other and further relief as this Court deems just and proper. PROCEDURAL HISTORY 6. Plaintiff originally commenced this Action on April 24, 2012 against Consolidated Edison Company of New York ("Con Edison"), Verizon New York, Inc., Triumph Construction Corp., Empire City Subway Company and Restani Construction. All named Defendants appeared in the Action by serving Answers. 7. On or about February 28, 2014, Plaintiff amended his Complaint to add an entity named Roadway Contracting, Inc., who never appeared, as a direct Defendant. Plaintiff's Amended Complaint is annexed hereto as Exhibit "A", Defendant Triumph's Answer to the Amended Complaint is annexed hereto as Exhibit "B", and co-defendants Verizon and Empire City Subway's Answer to the Amended Complaint is annexed hereto as Exhibit "C". The parties discontinued all claims against Con Edison and Restani and they are no longer parties to the case. (The Stipulation of Discontinuance as to these parties is annexed hereto as Exhibit "D". 3 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 8. On September 7, 2017 Plaintiff filed his Note of Issue and Certificate of Readiness, asserting that discovery was complete. (A copy of the Note of Issue is annexed hereto as Exhibit "E"). 9. In approximately October/November of 2019, this office assumed the representation of VERIZON and ESC from another firm. (Consent to Change Attorney form annexed as Exhibit "F"). After a review of the file,itbecame evident that plaintiff had failed to provide many authorizations for medical treatment rendered to the plaintiff allegedly as a result of the claimed incident, as well as for other accidents and chronic medical conditions that she suffers from, which defendants believe are related to, or the cause of, her claimed disability. 10. Since November of 2019, plaintiff's counsel has served your affirmant with a continuous stream of Supplemental Bills of Particulars, exchanges of portions of medical records and expert reports that refer to doctors/records which have not been provided by plaintiff. (See Exhibit "G"). There is presently a demand for authorizations which was e-filed on 6/11/2020 which has garnered no response at all. (Exhibit "H"). There are many authorizations which have been demanded as early as December 3, 2019,, which plaintiff's counsel has simply not provided. Many, if not allof these providers are physicians whose names appear as treating physicians in the many expert reports served by plaintiff since Note of Issue. In addition, many authorizations were provided via email by plaintiff in late May of 2020 which are Arons authorizations, and not providers' authorizations which would allow defendants to obtain the records, even though same were demanded. 11. As one small example of how defendants are not being provided with authorizations for crucial records, plaintiff's counsel exchanged a 3101(d) and a report from the plaintiff's treating endocrinologist, Dr. Zoel Zonstein in November 2019, two years after filing his 4 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 Note of Issue. (Exhibit "I"). Plaintiff's counsel, Howard Engle, Esq., asked defense counsel to conduct a remote deposition of his expert, who now lives in Israel, in order to preserve his testimony for trial.In the body of Dr. Zonstein's report, he indicates that his opinion and expected trial testimony as to causation and damages will be based on his 37 years of treatment of the plaintiff. He refers to the plaintiff's medical history during that time in his report. Your affirmant immediately canceled the planned virtual deposition via email on December 4, 2019, citing the lack "J" of records needed to question this expert. (Exhibit ). These records obviously must be turned over in order to avoid preclusion of this expert, or better, to question him regarding the records that formed the basis of his opinion. A small amount of Dr. Zonstein's records from his recent treatment of the plaintiff at Montefiore were sent by Mr. Engle, yet they are not the 37 years of records that Dr. Zonstein intends to base his opinion on. Further, contained in the small emailed package of Montefiore records for Dr. Zonstein forwarded by plaintiff's counsel, he refers to a Neurologist, Dr. Spiro, who has also been treating the plaintiff for her alleged injuries. Dr. Spiro's authorization was demanded in December 2019 but has not yet been provided. (Exhibit "K"). 12. In addition to Dr. Zonstein's report, plaintiff's counsel has served many additional expert disclosures since November 2019, including Dr. Sheldon Simon, Dr. Aaron Filler, Dr. George Osgood, and several others. Each of these disclosures contain reports which refer to records that VERIZON and ECS have never been provided with, as well as tests that were performed during their respective exams that were never provided by plaintiff. In addition to the demands served by VERIZON and ECS on December 3, 2019 and June 11, 2020, we have just seen a demand by codefendant TRIUMPH which listsmany new and previously undisclosed providers. 5 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 3"1 13. On or about January 6, 2020, Plaintiff served a Supplemental Bill of Particulars which alleges new nerve injuries in an attached report by Dr. Aaron Filler. (Exhibit 4th "L"). On February 11, 2020 Plaintiff served a Supplemental Bill of Particulars in which she alleges that Plaintiff underwent an operative procedure in December, 2019 to treat her left sided Release" piriformis syndrome in a procedure entitled 'Left Piriformis and left sciatic Nerve 4th Neuroplasty to treat her left sided sciatic nerve compression. (A copy of Plaintiff's Supplemental Bill of Particulars is annexed hereto as (Exhibit "M"). 14. Plaintiff filed his Note of Issue in September, 2017. Since that time, after certifying that all discovery was complete, he has continued to augment and change his allegations and evade attempts to provide discovery that the defendants are entitled to. Clearly, discovery is not complete and therefore the Note of Issue must be stricken to avoid undue prejudice to all defendants. LEGAL ARGUMENT 15. In New York, a motion to vacate a notice of trialshould be granted where itis based upon a certificate of readiness which contains the erroneous statement that discovery was (1st completed or waived. See Savino v. Lewittes, 160 A.D.2d 176, 553 N.Y.S.2d 146 Dept. 1990). It is undisputed that discovery has now become incomplete, as Plaintiff has not yet provided authorizations for numerous providers. Additionally, in light of the recent, January 20, 4th 2020 Third Supplemental Bill of Particulars and the February 11, 2020 Supplemental Bill of Particulars, in which new injuries are alleged, VERIZON and ECS will need to conduct a further deposition of Plaintiff, as well as independent medical examinations, including at a minimum, an orthopedic and a psychological independent medical examination. 6 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 16. Therefore, if this Court does not vacate the Note of Issue, then VERIZON and ECS would be compelled to defend proximate cause and damages with no ammunition. This type of result can only cause extreme prejudice to VERIZON and ECS. To avoid undue prejudice to VERIZON and ECS, this case should be stricken from the trial calendar due to plaintiff's continued disclosures of new expert reports containing new injuries and theories of causation, a Third and Fourth Supplemental Bill of Particulars served after the Note of Issue alleging new injuries, and numerous outstanding authorizations for medical treatment which are necessary for the defense of this matter. If this Court does not strike this matter from the trial calendar, itis requested that the Court issue an Order staying the trial of this matter and allowing for the above discovery. WHEREFORE, your affirmant respectfully requests that this Court issue an Order pursuant to CPLR §3124 and §3126 and the New York Rules of Court §202.21 as follows: Vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter from the trial calendar; and compelling and permitting VERIZON and ECS to conduct discovery. The outstanding discovery in this case consists of many outstanding authorizations, authorizations for SSDI and Plaintiff's treating endocrinologist, as well as a further deposition and independent medical examinations, including, at a minimum, an orthopedic examination and a psychological 3"1 4t¹¹ independent medical examination, relating to injures alleged in Plaintiff's and Supplemental Bills of Particulars; or in the alternative if thisCourt will not Vacate Plaintiff's Note of Issue, itis respectfully requested that the trialof this matter be stayed until the above discovery is complete; and Granting such other and further relief as this Court deems just and proper. 7 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 341 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 Dated: New York, New York July 20, 2020 Yours, etc. LEWIS BRISBOIS BISGAARD & SMITH LLP Imdne A. Gerrard, Esq. Attorneys For Defendants VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY 21't 77 Water Street, Floor New York, New York 10005 (646) 783-0990 Our File No.: 44837-124 TO: EDELMAN & EDELMAN Attorneys for Plaintiff 61 Broadway, Suite 3010 New York, New York 10006 Paul A. Eschmann, Esq. Ahmuty, Demers & McManus Attorneys For Defendant TRIUMPH CONSTRUCTION CORP. 1681 199 Water Street, Floor New York, New York 10038 (212) 513-7788 8 of 8 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 342 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X DIANA LEWIS, AFFIRMATION OF GOOD FAITH Plaintiff, -against- Index No.: 152084/2012 CONSOLIDATED EDISON COMPANY OF NEW YORK, Returnable: 08/03/2020 INC., VERIZON OF NEW YORK, INC., TRIUMPH CONSTRUCTION CORP., EMPIRE CITY SUBWAY, (LIMITED), RESTANI CONSTRUCTION CORP. and ROADWAY CONTRACTING, INC, Defendants. ------------------------------------------------------------------------X JENNINE A. GERRARD, ESQ, an attorney at law, duly admitted to practice law before the Courts of the State of New York, hereby makes the following statements upon information and belief and under the penalty of perjury: 1. I am a member of the firm of LEWIS BRISBOIS BISGAARD & SMITH,, attorneys for the defendants, VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY in the above captioned matter, and as such, I am fully familiar with the facts and circumstances surrounding this matter. 2. This affirmation is submitted in support of the instant cross-motion for an Order pursuant to CPLR §2215, §3124 and §3126 and the New York Rules of Court §202.21 as follows: to vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter from the trial calendar; and compelling and permitting VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY to conduct discovery including numerous outstanding authorizations, IME's and an additional deposition of plaintiff. 1 of 2 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 342 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 3. There have been countless telephone conversations with plaintig's counsel as well as emails exchanged that are inched in (Exhibit "G"). Despite our many coñversations and correspondece regarding outstañdiñg discovery, plaintifs counsel continues to serve pleadings adding new injuries, expert reports, selected portions of medical records and has not complied with our dc-sñds to date. The instant cross-motion is therefore necessary to resolve discovery issues and to avoid severely prejudicing the defense of VERIZON and ECS. WHEREFORE, the intervention of the Court is necessary to resolve these outst=&g discovery issues. Dated: New York, New York July 20, 2020 Yours, etc. LEWIS BRISBOIS BISGAARD & SMITH LLP . Jennine A. Gerrard, Esq. Attorneys For Defendants Attorneys For Defendants VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY 21't 77 Water Street, Floor New York, New York 10005 (646) 783-0990 Our File No.: 44837-124 TO: EDELMAN & EDELMAN Attorneys for Plaintiff 61 Broadway, Suite 3010 New York, New York 10006 Paul A. Eschmann, Esq. Ahmuty, Demers & McManus Attorneys For Defendant TRIUMPH CONSTRUCTION CORP. 1681 199 Water Street, Floor New York, New York 10038 (212) 513-7788 2 of 2 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 340 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X DIANA LEWIS, NOTICE OF CROSS-MOTION Plaintiff, -against- Hon. N. Bannon Index No.: 152084/2012 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., VERIZON OF NEW YORK, INC., TRIUMPH CONSTRUCTION CORP., EMPIRE CITY SUBWAY, (LIMITED), RESTANI CONSTRUCTION CORP. and ROADWAY CONTRACTING, INC, Defendants. ------------------------------------------------------------------------X Upon the Affirmation of JENNINE A. GERRARD, ESQ., affirmed on the 20th day of July, 2020 and upon exhibits annexed thereto, the Defendants, VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY will cross-move this Court at the Courthouse located at 60 Centre Street, New York, NY on the 3rd day of August, 2020, at 9:30 a.m., or as soon thereafter as counsel may be heard, for an Order pursuant to §2215, §3124 and §3126 and the New York Rules of Court §202.21 as follows: a) Vacate Plaintiff's Note of Issue and Certificate of Readiness and strike this matter from the trialcalendar; and b) Compelling and permitting VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY to conduct discovery including receiving multiple outstanding authorizations for various health care providers, SSDI and Plaintiff's treating endocrinologist as well as conduct a further deposition and independent medical examinations, including an orthopedic and a psychological independent medical 3"1 441 examination, relating to injures alleged in Plaintiff's and Supplemental Bill of Particulars and all expert reports served since Note of Issue; or in the alternative, 1 of 2 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 340 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 c) If this Court will not Vacate Plaintiff's Note of Issue, itis respectfully requested that the trial of this matter be stayed until the above discovery is complete; and d) Cat-ng such other and further relief as this Court deems just and proper. Dated: New York, New York July 20, 2020 Yours, etc. LEWIS BRISBOIS BISGAARD & SMITH LLP Jennine A. Gerrard, Esq. Attorneys For Defendants VERIZON OF NEW YORK, INC. and EMPIRE CITY SUBWAY 21't 77 Water Street, Floor New York, New York 10005 (646) 783-0990 Our File No.: 44837-124 TO: EDELMAN & EDELMAN Attorneys for Plaintiff 61 Broadway, Suite 3010 New York, New York 10006 Paul A. Eschmann, Esq. Ahmuty, Demers & McManus Attorneys For Defendant TRIUMPH CONSTRUCTION CORP. 1681 199 Water Street, Floor New York, New York 10038 (212) 513-7788 2 of 2 4817-6948-4993.1 FILED: NEW YORK COUNTY CLERK 07/21/2020 11/01/2022 05:44 12:32 PM INDEX NO. 152084/2012 NYSCEF DOC. NO. 343 416 RECEIVED NYSCEF: 07/21/2020 11/01/2022 EXHIBIT A FILED: F ILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/21/2020 11/01/2022 07/14/2020 05:44 12:32 08:5 7 PM AM| INDEX INDEX NO. NO . 152084/2012 1 5 2 0 84 / 2012 NYSCEF NYSCEF DOC. DOC. NO. NO . 343 416 33 1 RECEIVED D NYSCEF: N SCE 07/21/2020 11/01/2022 7/14/2020 C EW3 EDELMAN & EDELMAN, P.C. ArrORNEYS AT LAW 61 BROADWAY-SUTTE 3010 NEW YoRK, NEw YORK 10006 TELEPHONE: (212)943-1200 FACWILE: (212)943-0001 February 28, 2014 MARTINEDELMAN MYRONS.ROSEN JEROMEEDELMAN(1913-2000) DAVIDM.SCHUU,BR David M. Santoro,Esq. PAULH.MALONEY IV Attorneyat Law HOWARDENGLE 4 IrvingPlace, Room1800 New York,N.Y. 10003-3598 Michael Toolan,Esq. Conway, Curtin Farrell, & P.C Kelly, Attorneysat Law 48 Wall Street New York,N.Y. 10005 Thomas E. Muldoon,Esq. Barry,McTiernan & Moore Attorneysat Law 55 Church Street WhitePlains,N.Y. 10301 Paul Eschmann, Esq. Ahmuty, Demers & McManus Attorneysat Law 200 I.U.WilletsRoad Albertson,N.Y. 11507 Re: Lewis v. Consolidated Edison Company of NY, Inc. etal. Index Number: 152084/12