Motion-Secondary: Suzanne Schulman as Administratrix of the Estate of Brittney M. Schulman, Deceased, Alicia M Arundel, Olga Lipets, Mindy Grabina A/O/E AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY,, Steven Baruch A/O/E LAUREN BARUCH, deceased, AND STEVEN BARUCH, INDIVIDUALLY,, Joelle Dimonte, Melissa A Crai, Arthur A Belli Jr AS PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE E/O STEPHANIE BELLI v. Ultimate Class Limousine, Inc., Carlos F Pino, Romeo Dimon Marine Service, Inc., Steven D Romeo, Town Of Southold, County Of Suffolk, Cabot Coach Builders, Inc D/B/A Royale Limousine, Xyz Companies 1-5 NAME BEING FICTITIOUS BUT INTENDED TO BE THE REMANUFACTURERS, DISTRIBUTORS, AND/OR SELLERS OF THE 2007 LINCOLN TOWN CAR STRETCH LIMOUSINE INVOLVED IN THE COLLISION,

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                                FILED:         SUFFOLK          COUNTY        CLERK        06/21/2022             05:06       PM                     INDEX    NO.   611214/2015
   NYSCEF     DOC.   NO.   901                                                                                 RECEIVED      NYSCEF:    06/21/2022




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF SUFFOLK
                  ----      --------- --   -  -  --------- ------------------------     -------------X
                  SUZANNE SCHULMAN AS ADMINISTRATRIX OF THE ESTATE OF                                       Index No. 61121412015
                  BRITTNEY M.       SCHULMAN, DECEASED, ALICIA M. ARUNDAL, OLGA
                  LIPETS, MINDY GRAB INA, A/O/E AMY GRAB INA, AND MINDY
                  GRABINA INDIVIDUALLY, STEVEN BARUCH A/O/E LAUREN                                          REPLY
                  BARUCH, DECEASED, AND STEVEN BARUCH INDIVIDUALLY,                                         AFFIRMATION IN
                  JOELLE DIMONTE, MELISSA A. CRAI, ARTHUR A. BELLI, JR., AS                                 SUPPORT OF
                  PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI,                                           MOTION TO
                  DECEASED, AND AS THE ADMINISTRATOR OF THE E/O STEPHANIE                                   VACATE NOTE OF
                  BELLI,                                                                                    ISSUE BY
                                                               Plaintiffs,                                  DEFENDANT TOWN
                                                                                                            OF SOUTHOLD
                  -against -

                  UL TIMATE CLASS LIMOUSINE, INC., CARLOS F. PINO, ROMEO
                  DIMON MARINE SERVICES, INC., STEVEN D. ROMEO, TOWN OF
                  SOUTHOLD, COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC.
                  D/B/A ROYALE LIMOUSINE, XYZ COMPANIES                       1-5 NAME BEING
                  FICTITIOUS BUT INTENDED TO BE THE REMANUF ACTURERS,
                  DISTRIBOTORS, AND/OR SELERS OF THE 2007 LINCOLN TOWN CAR
                  STRETCH LIMOUSINE INVOLVED IN THE COLLISION,

                                                               Defendants.
                  -----  ------ ---------------- -------------------------------------------X

                           JOSHUA       S. SHTEIERMAN, an           attorney   duly  admitted to    practice  before   the  Courts   of

                  the  State  of New    York,   hereby   affirms   the  truth of the   following,   upon   information    and   belief,

                  under the penalty of perjury:

                           1.       I am   with   the firm   of VOLZ     &   VIGLIOTTA,        PLLC,     attorneys   for the  moving

                  Defendant,     TOWN       OF   SOUTHOLD,          and   as  such   I  am   fully  familiar   with   the   facts  and

                  circumstances     of this   matter   based   upon   the  file maintained     in my   office,  and   upon   personal

                  knowledge, where applicable.

                           2.       I submit this affirmation in reply to the opposition filed by counsel for the Plaintiff

                  and in further   support of the instant application, which seeks an order:            1) pursuant to 22 NYCRR

                  §202.21 (e), vacating the Note ofIssue as discovery            is not complete and the case        is not ready   for

                 trial ;or  2)  in  the  alternative,   an  Order   permitting    the  defendants     to complete     the  necessary




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                  remaining     discovery   and   extending    the  current   deadline    for the  filing  of  summary     judgment

                  motions for at least sixty (60) days; and 3) for any such further relief as this Court deems just and

                  proper.

                           3.       In the interests of judicial economy, the TOWN OF SOUTHOLD fully                      adopts and

                  incorporates    by  reference   the  Affirmation    of Charles    D.  Texiera,   dated   June  21,  2022,   and  the

                  arguments made therein which was submitted in support of the motion to vacate the Note ofIssue

                  and in reply   to the plaintiff DiMonte's       opposition thereto.    In sum, plaintiff DiMonte's        counsel's

                  affirmation    advocates    an  untenable   position,   namely    that  he  should   be  allowed    to continue    to

                  supplement and/or amend its discovery responses sine fine, without regard for the prejudice should

                  untimely disclosures cause.       Of course,    such position is preposterous.

                           4.       Critically,  counsel    for plaintiff DiMonte      misleads    the  Court   by   stating  that the

                  "Amended Bill of Particulars merely provides greater specificity with regard to the injuries to                  [the

                  plaintiffs] right eye." (emphasis added). (See Kardisch Affirmation in Opposition, at p.7). In fact,

                  the Amended Bill of Particulars adds a new claimed injury to the plaintiff s left eye which required

                  implementation of an artificial lens in 2017. (See Exhibit "E", annexed to Kardisch Affirmation at

                  ~12).  Plaintiffs   counsel   had   approximately      five (5)  years  to  amend    or  supplement     the  Bill  of

                  Particulars to add this additional claimed injury and surgery but instead waited until after this Court

                  ordered that discovery was complete to do so. It is hard to imagine such delay can be permitted by

                 this Court without permitting the defendants to engage in further discovery.

                           5.       Certainly,   the moving     defendants    are not advocating that plaintiff must submit to

                 oral examinations every time she visited the doctor, as plaintiffs counsel argues,                but rather when

                 a party   is alleging  an  entirely  new   injury,  to  an entirely   new   body   part, and   a resulting  surgery

                 thereto,  the  requisite   follow-up    discovery    should   be  permitted.   The   plethora   of cases    cited  by



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                  plaintiff support this proposition and support allowing the completion of additional discovery                    so

                  as  to avoid   prejudicing    a party.  See   e.g. Torre   v.  Cifarelli,  157  A.D.2d     713  (2d  Dept.   1990);

                  Karakostas v.      vis Rent A Car Sys., 306 A.D.2d 381          (2d Dept. 2003).

                           6.       Moreover,     plaintiff's  counsel   misstates   the  directive   from   the  Court   during   the

                  April   27,  2022   conference.    The   Court   did  not  deny   defendants'    request   to conduct    additional

                  discovery,    it denied    the  defendants'     request   for  a  further   adjournment      of  the   certification

                  conference in this matter. (See Plaintiff's Affirmation in Opposition, at p. 5). Contrary to plaintiff's

                  counsel's misinterpretation of the        Court's  directive, the   Court actually    invited the instant motion

                  should    the  defendants     feel  they   have    been   improperly     prejudiced     by   plaintiff's  untimely

                  disclosures.    It is without   a doubt   that  plaintiff's DiMonte's      untimely   disclosures    have  and   will

                  prejUdice the defendants, warranting the instant motion.

                           7.       Finally,  plaintiff's  counsel    does  not  oppose    the  moving    defendants'    request   that

                  should this Court not vacate the Note ofIssue, that it afford the defendants an additional sixty (60)

                  days to file  a summary judgment motion.           The request is made with the realization that regardless

                  of whether or not the Note ofIssue is vacated, the defendants have been provided, for the first time

                  nearly  six (6) years after requests for      same were made, with an authorization for no-fault records

                 that  must   be  processed   and   reviewed.    The  need   to  conduct   such   additional   discovery    will  take

                  away    from   its  statutorily  allowed    time   to  bring   a  motion    for  summary     judgment.     Perhaps,

                 plaintiff's counsel recognizes       such,  but either way his    silence on the    issue  is a concession that at

                 the very least such additional time should be granted.

                           8.       WHEREFORE,          for  the  reasons   set forth  herein   and  those   set forth  in the  Reply

                 Affirmation     of Charles   D.  Texiera    on  behalf of the    defendant,    COUNTY        OF   SUFFOLK,       it is

                 respectfully submitted that the Note ofIssue be vacated, or in the alternative that the Court extend



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                  the  deadline   by  which    defendants    must   file their respective    summary judgment motions,           for  a

                  period not less than sixty (60) days from the current deadline, together with such other relief that

                  the Honorable Court deems just and proper.

                  Dated:   June 21,2022
                           Nesconset, New York



                                                                                          AS.   SHTEIERMAN, ESQ.




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                   CERTIFICATE OF COMPLIANCE WITH UNIFORM CIVIL RULES SECTION 202.8-b

                            This Reply Affinnation in Support of Motion to Vacate Note ofIssue By Defendant Town
                   of Southold complies with the word count limit ofUnifonn Civil Rules Section 202.8-b(a)(ii).
                            This Reply Affinnation in Support of Motion to Vacate Note of Issue By Defendant Town
                   of Southold contains      1,006 words, excluding the parts of the Affinnation in Support exempted by
                   the  Unifonn    Civil  Rules   Section 202.8-b(b)     based upon the      word   count   of the  word-processing
                   system used to prepare the document.


                   Dated: Nesconset, New York
                            June 21, 2022



                                                                                                 ua S. Shteiennan
                                                                                             olz &   Vigliotta, PLLC
                                                                                           280 Smithtown Blvd
                                                                                           Nesconset, New York 11767
                                                                                           (631) 366-2700




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