Preview
FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E
NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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DONALD SCHOON, as Administrator of the Estate of RUBY
SCHOON, deceased, and DONALD SCHOON,
Individually, Index No. 24912/2015E
Plaintiffs,
-against- Reply Affirmation
LAZAR FEYGIN, KEVIN LOWE, MOHAMMED RASHID,
JOHN V. DELLOSSO, JUAN CABEZAS, THE BRONX
LEBANON HOSPITAL CENTER, SHAHIN GHARIB,
PATRICIA RIVERA-TOOLAN, FENAR THEMISTOCLE,
PARKVILLE MEDICAL HEALTH, P.C., ASTRAMED
PHYSICIAN, P.C., DAYTOP VILLAGE, INC., FENAR
THEMISTOCLE MD PLLC, DIANA KIM and SHENEQUA
McLEOD,
Defendants
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Brian Schochet, an attorney admitted to practice before the Courts of the
State of New York affirms the following:
1. I am the attorney for the plaintiff’s in this action and as such amm fully
familiar with the facts and circumstances stated herein.
2. This affirmation is submitted along with plaintiff’s reply memorandum of
law in Reply to defendant CABEZAS’ opposition to plaintiff’s motion to
strike the answer of the defendant CABEZAS along with related relief.
3. The Court during Oral argument conducted on October 28, 2021 gave
plaintiff permission to submit this reply.
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Interim Procedural History
4. Plaintiff’s cross-motion to strike was originally returnable on May 27,
2021 however this Court set the matter down for Oral argument on June
25, 2021. At that time the Counsel for the Defendant Cabezas asked
permission from the Court to adjourn the motion so as to permit them to
hire an investigator and to submit additional opposition papers
demonstrating its efforts to locate the defendant CABEZAS which would
be in addition to its barebone attorney affirmation filed with NYCEF on
June 17, 2016. Plaintiff was also given permission to submit reply papers
to those additional opposition papers when they are served.
5. The Court at that time agreed to adjourn the cross-motion to a date to be
supplied and indicated that the Court would give Cabezas until the end of
August to complete this investigation and report back to the Court.
However, because the Court had no available days available until October
21, 2021 for further argument. the parties were notified that such final
argument would occur at a conference scheduled on that date. Due to a
mix-up based upon the false perception that this was a discovery
conference and not a conference on the motion, that date was originally
cancelled and then rescheduled for October 28, 2021.
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6. As of the date of the final oral argument on October 28, 2021 no
supplemental opposition papers were served and filed by the attorney for
CABEZAS to outline there further efforts to locate the defendant after June
21, 2021. Instead at oral argument CABEZAS’s counsel reiterated its
excuse that CABEZAS whereabouts are currently unknown, but failed to
provide any further details concerning any attempts to locate the defendant,
other than what was contained in his opposition papers dated June 17,
2021 that had been submitted before the original argument date of June 21,
2021. In those papers counsel, without providing any details stated as
follows:
“Since defense counsel continued to be unable to locate
defendant CABEZAS despite subsequent efforts . . . While
plaintiff’s counsel characterizes the Affirmation in Support of
said motion as “woefully inadequate,” stating “we do not
know the efforts taken to locate its client due to the paucity of
the defendant’s papers,” counsel for CABEZAS was and
continues to be willing to submit an in-camera affirmation to
the Court regarding our efforts to locate Mr. CABEZAS.”
7. At Oral argument while defendant’s counsel failed to disclose what efforts
it had undertaken to locate its client or what efforts it had undertaken
during the pendency of the lawsuit to communicate with its client in order
to advise their client of his legal responsibilities that accompany being a
defendant in a lawsuit, including the need to make oneself available for an
examination before trial, he did make a remarkable admission, that his
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office had never been in contact with its client during the pendency of this
litigation, notwithstanding the fact that Juan Cabezas was personally
served with a Summons and Complaint approximately 6 years ago on
November 9, 2015 (See copy of affidavit of Service annexed as Exhibit
“A.”) and an answer was served and filed on his behalf on December 15,
2015, which was signed and verified by John Corgan, Esq, the attorney
who appeared at Oral Argument on October 28, 2021. (Exhibit “B”).
Aside from the fact that an attorney should not verify responses in an
answer without first speaking with his client, this answer was served
approximately 1 year and a half before Mr. CABEZAS was indicted on
April 17, 2017 (See exhibit “E” to plaintiff affirmation in support of the
cross-motion, A preliminary conference was held on August 23, 2016 (that
provided for the examination before trial of CABEZAS on or before
January 20, 2017,yet there was no communication with the client to inform
him of that date and despite conducting 3 sessions of plaintiff’s deposition,
where certainly communication with the defendant is required in order to
conduct a meaningful examination of his adversary, to discuss his version
and recollection of the events.
8. During Oral argument on October 18, 2021defense Counsel referred to an
uncited and apparently unreported lower Court decision which reportedly
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held that the appropriate remedy is preclusion and not the striking of a
pleading. Following argument I sent an E mail to defense counsel (Exhibit
“C”) requesting a copy of this unreported and uncited decision because I
wanted to see the circumstances involved in that case and whether the relief
of preclusion had been requested by the moving party so as to distinguish
such a holding from the instant case (even though such a decision has no
precedent value under the rule of Stare Decisis) which requires this Court
to follow the decisions of the Appellate Division First Department, or if
not previously ruled upon by this department the decision of other
Appellate Division and not that of Courts of equal jurisdiction.
9. CABEZA’S Counsel’s argument that he could provide sufficient details to
the Court if requested in an In Camera presentation fails to appreciate that
such details are required whether the Court request them or not and that
those details are required to be included in the record so argument can be
had whether those details spell out a reasonable excuse. Furthermore,
there is not nor has there ever been an adequate basis here to present the
defendant’s evidence In-Camera as Counsel has acknowledged that his
firm has not been in communication with his client at anytime during this
litigation and therefore there exists no confidential client-attorney
communications that is shielded from disclosure based upon any ethical
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rule of conduct. The fact that counsel may have discovered a reason that
the defendant has elected to disappear and make himself unavailable to
testify is similarly neither privileged or would be shielded from disclosure
by any ethical obligatiom to their client.
10. Indeed, I was now able to ascertain by a simple phone call to the
special prosecutor from the DEA who indicted Mr. Cabezas the reason
why CABEZAS has disappeared and can infer why he will not comply
with discovery obligations in this case. According to my phone
conversation with Kati Cornell, the DEA prosecutor that indited
Cabezas, on October 3, 2018, CABEZAS skipped bail and a bench
warrant was issued for his arrest in March 2018 but as he has
disappeared he has not been apprehended under that warrant nor tried
on the original charges to date. As such information, is neither
privileged as it is part of the public record, there is no basis for an in
camera presentation of this as defendant’s excuse for not appearing at
his deposition. Furthermore, CABEZA’S election to skip bail and
abscond from justice cannot ne considered a reasonable excuse as his
actions was a willful attempt to not only avoid his criminal liabilities
and responsibilities as a defendant in his criminal case but was a willful
decision to disappear and to forego his defense of this civil matter.
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Furthermore, the fact that an investigation to his current whereabouts,
if revealed, may result in his arrest and imprisonment, revealing the
results of that investigation is not privileged even if revealed to the
attorney by the client does not violate the ethical rule preventing an
attorney from revealing information disclosed in confidence by the
client to counsel, particularly when that client only represents the
defendant in a Civil matter.
11. Indeed, according to the sworn affirmation of Counsel “. In November
of 2020, counsel for defendant CABEZAS was uncertain of
defendant’s incarceration” demonstrating counsel had made no effort
to contact their client or determine his availability to testify in the 2 ½
year period after he had absconded from justice.
12. In any event, even if Counsel has a good faith belief that they
are barred from revealing information as a result of their investigation that
disclosed CABEZAS current location, if he in fact had been located, they
could have left that information out of their affirmation and that of their
investigator as such information would not be pertinent to his excuse in not
testifying at an Examination before trial. The bottom line is that the
defendant’s decision to abscond from justice and his refusal to testify, even
if such testimony could lead to legal jeopardy, as explained in the
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accompanying memorandum of Law, does not relieve that party’s
obligation to testify even when there are outstanding legal charges, and such
a refusal is still considered a willful failure to comply with court ordered
discovery requiring a striking of his pleading. Furthermore, the failure of
the defendant to keep in contact with his client and to timely inform counsel
of the fact that the defendant is missing and has absconded from justice and
therefore will not be participating in discovery will obviate any reasonable
excuses by counsel in its failure to produce its client for deposition. (see
Moriates v. Powertest Petroleum Co, 114 A.D.2d 868 (2 Dept, 2005)
discussed in greater detail in plaintiff accompanying memorandum if law.
12. Therefore as stated in my accompanying memorandum of law the Appellate
Law is clear that the failure to produce a defendant for Examination before
trial will not be excused because of the attorney’s loss of contact with that
defendant or where the defendant has “disappeared,” in the absence of a
nonconclusory affidavit that details and provides a reasonable excuse of a
defendant in failing to participate in his defense including that defendant
appearance at a court ordered Examination Before Trial and that the failure
of a client to keep in contact with his attorney is not considered a legally
acceptable reasonable excuse to avoid a finding of willful noncompliance
as well as a reasonable excuse by the attorney detailing that the attorney
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provided, when able to do so, instructions provided to the defendant
regarding a defendant’s legal responsibilities during the litigation , when
the attorney realized that he could not produce his client for deposition
because he had lost contact with him, and most importantly demonstrating
the specific efforts taken to find the client including the hiring of an
investigator, when those efforts were begun demonstrating that they were
begun in a timely manner and the fruits of that investigation and that the
absence of a showing of a reasonable excuse by the client or the absence
of a detailed affidavit by an investigator and the attorney detailing the
reasonable efforts taken to locate the client coupled with the failure of that
defendant to appear for his or her Court Ordered Examination before trial
mandates the either the striking of the answer or at the very least a
conditional order striking the defendant’s answer if such defendant does
not appear by a date certain selected by the Court (usually within 30 days)
and it is an abuse of discretion for a lower Court to deny such relief or
provide some lesser relief such as preclusion. Furthermore the fact that a
defendant willfully chooses to avoid his legal responsibility to appear for
deposition because he chose to abscond from justice does not constitute a
reasonable excuse to avoid the sanction of the striking of a pleading.
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13. Because of the CABEZAS utter failure to provide the Court with a legally
recognized excuse and counsel’s failure to provide the required detailed
affidavits to excuse said default and the Courts stated misperception that
there was only one case in the Second Department that has supported a
decision to Strike a “Defendant’s answer” for similar conduct, I asked the
Court permission to submit this reply to correct the Court’s misperception
(in fact there has been scores of Appellate Cases in the First Department
that have not only granted this relief but have held that the failure of a
lower Court to do so constituted an abuse of discretion) and to address the
utter failure of the defendant to meet their burden to oppose this motion
and requested and was given 2 weeks to do so. In fact as opposed to the
plethora of Appellate Decisions that held that the appropriate remedy for
such conduct is the striking of the pleading I was unable to find a single
Appellate decision that found that it was an appropriate exercise of
discretion to merely order a preclusion order except in circumstances
where the plaintiff specifically requested that relief or where that relief had
been stipulated to by the parties.
14. An order of preclusion, as stated in the accompanying memorandum of law
is not the appropriate sanction as it does not remedy a party’s inability to
obtain material and necessary discovery needed for the prosecution of this
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action. Not only does such an examination before trial provide the plaintiff
the ability to discobver facts not included in the medical chart of
PARKVILLE MEDICAL ASSOCIATES, CABEZAS’ employer. It also
deprives plaintiff the opportunity to obtain relevant information against the
cop-defendant FEYGIN regarding the extent he was supervising the
actions of CABEZAS his physician assistant and the communications if
any between those two defendants. Of importance is the fact that Dr.
FEYGIN claimed that CABEZAS referred the patient to a nephrologist in
part because the radiologist’s report of an ultrasound of the kidney he
ordered to evaluate a previously noted renal mass in the right kidney,
recommended that the patient undergo a CT scan to further evaluate this
issue if clinically indicated. While Dr. FEYGIN read the report and
initialed it on May 31, 2013, (See report annexed as exhibit “D”), FEYGIN
never ordered a CT Scan despite his stated concern that there may be a
cancerous mass in the right kidney. As the patient had been thereafter seen
in the office by the physician assistant CABEZAS and was never seen by
FEYGIN again , FEYGIN excused this oversight in not ordering the CT
Scan by claiming that there had been a referral by CABEZAS to a
nephrologist for this purpose (See Examination before trial of FEYGIN,
Exhibit “E” pg 108-109), notwithstanding the fact that the
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prescription for this referral merely listed renal failure (which was
based upon abnormal laboratory values) as the condition to be assessed by
the nephrologist. (Prescription annexed as Exhibit “F”) Therefore, the
failure to produce CABEZAS deprived plaintiff of material and necessary
information regarding whether the patient was referred to a nephrologist to
rule out a renal mass and whether the CABEZAS ever even saw the
ultrasound report that recommended the performance of a CT Scan, as that
report was only initialed by FEYGIN. In addition, without his examination
before trial, I cannot query Dr. CABEZAS why he had the patient fill out
an incontinence questionnaire July 13, 2013, in which she revealed she was
incontinent (“Exhibit G”)[a sign and symptom of urological cancer, the
underlying condition that is the subject of this failutre to diagnose claim) ,
notwithstanding the fact that his clinical note for that date makes no
reference to urinary 1symptoms (Exhibit “H”) As testified by Dr FEYGIN
“this form or a similar form was used at [his] office when a patient made
complaints involving the genital urinary so those complaints could be
evaluated by the physician or physician assistant.” (FEYGIN EBT pg.
133”) and therefore in the absence of his testimony, plaintiff cannot elicit
1
While the form lists Dr. FEYGIN as the provider, the form filled out for the dates the patient was seen by CABEZAS
referred to FEYGIN as the provider and according to FEYGIN he did not see the patient after March 27, 2013 after
which date the patient was being followed at his office by his PA CABEZAS.
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information that could reveal what those urinary complaints were. It should
also be noted that in an emergency room visit at Bronx Lebanon Hospital
less than 2 weeks later on July 26, 2013 because of a urinary complaint of
blood in her urine she gave a history of being “recently treated for an
infection” (See Bronx Lebanon ER note annexed as Exhibit “ I”) and this
symptom had been going on for the past two weeks. however she had not
seen any physician recently other than the physicians at Parkville and there
was no mention of Urinary Tract infection by CABEZAS or blood in the
urine, but she must have had some undocumented urinary complaints on
that date that lled to her being asked to fill out an incontinence form.
15. Lastly without taking his EBT, plaintiff has been deprived of the ability
to ask CABEZAS why there is no clinic note for August 28, 2013, even
though the patient was seen on that date and her insurance company was
billed for services rendered. (Exhibit I) This visit is particularly important
as this visit came between emergency room visits at Bronx Lebanon where
she repeatedly complained of blood in her urine and was reportedly
instructed to follow-up with her private Medical Doctor (who at this time
was Parkville and CABEZAS) for the misdiagnosed urinary tract infection
which in reality was being caused by her undiagnosed urinary tract cancer.
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16. Therefore, the deposition is materially and necessary not only to establish
the negligence and malpractice of the defendant CABEZAS and his
employer the defendant PARRKVILLE MEDICAL who would be
vicariously liable for his acts. to defend claims of comparative negligence
made not only by him but by each of the co-defendants based upon her
alleged failure to see the nephrologist and for claims against the co-
defendant FEYGIN for failing to act upon the recommendation of the
radiologist. Precluding CABEZAS therefore constitutes an inadequate
remedy as it not only helps this recalcitrant defendant but also benefits the
co-defendants, including FEYGIN and PARKVILLE who are represented
by other counsel by depriving the plaintiff of potential evidence that the to
address these claims. There is also a question left unresolved, due to the
failure to produce Dr. CABEZAS, why a referral form was not filled out,
which according to FEYGIN would be filled out and signed by the patient
a whenever a patient was sent for an outside test or evaluation (Feygin EBT
pgs 67-70) and whether the written prescription in the Parkville chart for
the patient to see a nephrologist to evaluate renal failure was actually given
to the decedent in light of the absence of a separate written referral form
co-signed by the patient.
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17. Wherefore it is respectfully requested that the instant motion be granted in
its entirety including the striking the answer of the defendant CABEZAS
or in the alternative conditionally striking said answer unless the defendant
appears for his examination before trial withing 30 days of the date of this
order.
Dated: August 4, 2021
____________________
Brian Schochet
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SUPREME
= COURT OF THE STATE OF NEW
YORK COUNTY OF BRONX
-----------------------------------------------------------------------------x
DONALD SCHOON, as Administrator of the Estate of RUBY
SCHOON, deceased, and DONALD SCHOON,
Individually, Index No. 24912/2015E
Plaintiffs,
-against-
LAZAR FEYGIN, KEVIN LOWE, MOHAMMED RASHID,
JOHN V. DELLOSSO, JUAN CABEZAS, THE BRONX LEBANON
HOSPITAL CENTER, SHAHIN GHARIB, PATRICIA
RIVERA-TOOLAN, , FENAR THEMISTOCLE, PARKVILLE Certification of Compliance
MEDICAL HEALTH, P.C., ASTRAMED PHYSICIAN, P.C., with Uniform Rules of the
DAYTOP VILLAGE, INC., FENAR THEMISTOCLE MD PLLC, Court 202.8b
DIANA KIM and SHENEQUA McLEOD,
Defendants
--------------------------------------------------------------------------------x
x
Brian Schochet, an attorney admitted to practice before the Courts of the State of
New York and the attorney for the plaintiff herein certifies and affirms that the annexed
_
Reply Affirmation contains 3272 words words as documented by the word processing program
= .
Microsoft word) on which this affirmation was created and therefore is in full compliance
with the Uniform Rules of The Court as amended as of February 1, 2021
Dated: November 4, 2021
_________________
Brian Schochet
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Preview
FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -----------------------------------------------------------------------------x DONALD SCHOON, as Administrator of the Estate of RUBY SCHOON, deceased, and DONALD SCHOON, Individually, Index No. 24912/2015E Plaintiffs, -against- Reply Affirmation LAZAR FEYGIN, KEVIN LOWE, MOHAMMED RASHID, JOHN V. DELLOSSO, JUAN CABEZAS, THE BRONX LEBANON HOSPITAL CENTER, SHAHIN GHARIB, PATRICIA RIVERA-TOOLAN, FENAR THEMISTOCLE, PARKVILLE MEDICAL HEALTH, P.C., ASTRAMED PHYSICIAN, P.C., DAYTOP VILLAGE, INC., FENAR THEMISTOCLE MD PLLC, DIANA KIM and SHENEQUA McLEOD, Defendants --------------------------------------------------------------------------------x Brian Schochet, an attorney admitted to practice before the Courts of the State of New York affirms the following: 1. I am the attorney for the plaintiff’s in this action and as such amm fully familiar with the facts and circumstances stated herein. 2. This affirmation is submitted along with plaintiff’s reply memorandum of law in Reply to defendant CABEZAS’ opposition to plaintiff’s motion to strike the answer of the defendant CABEZAS along with related relief. 3. The Court during Oral argument conducted on October 28, 2021 gave plaintiff permission to submit this reply. 1 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 Interim Procedural History 4. Plaintiff’s cross-motion to strike was originally returnable on May 27, 2021 however this Court set the matter down for Oral argument on June 25, 2021. At that time the Counsel for the Defendant Cabezas asked permission from the Court to adjourn the motion so as to permit them to hire an investigator and to submit additional opposition papers demonstrating its efforts to locate the defendant CABEZAS which would be in addition to its barebone attorney affirmation filed with NYCEF on June 17, 2016. Plaintiff was also given permission to submit reply papers to those additional opposition papers when they are served. 5. The Court at that time agreed to adjourn the cross-motion to a date to be supplied and indicated that the Court would give Cabezas until the end of August to complete this investigation and report back to the Court. However, because the Court had no available days available until October 21, 2021 for further argument. the parties were notified that such final argument would occur at a conference scheduled on that date. Due to a mix-up based upon the false perception that this was a discovery conference and not a conference on the motion, that date was originally cancelled and then rescheduled for October 28, 2021. 2 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 6. As of the date of the final oral argument on October 28, 2021 no supplemental opposition papers were served and filed by the attorney for CABEZAS to outline there further efforts to locate the defendant after June 21, 2021. Instead at oral argument CABEZAS’s counsel reiterated its excuse that CABEZAS whereabouts are currently unknown, but failed to provide any further details concerning any attempts to locate the defendant, other than what was contained in his opposition papers dated June 17, 2021 that had been submitted before the original argument date of June 21, 2021. In those papers counsel, without providing any details stated as follows: “Since defense counsel continued to be unable to locate defendant CABEZAS despite subsequent efforts . . . While plaintiff’s counsel characterizes the Affirmation in Support of said motion as “woefully inadequate,” stating “we do not know the efforts taken to locate its client due to the paucity of the defendant’s papers,” counsel for CABEZAS was and continues to be willing to submit an in-camera affirmation to the Court regarding our efforts to locate Mr. CABEZAS.” 7. At Oral argument while defendant’s counsel failed to disclose what efforts it had undertaken to locate its client or what efforts it had undertaken during the pendency of the lawsuit to communicate with its client in order to advise their client of his legal responsibilities that accompany being a defendant in a lawsuit, including the need to make oneself available for an examination before trial, he did make a remarkable admission, that his 3 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 office had never been in contact with its client during the pendency of this litigation, notwithstanding the fact that Juan Cabezas was personally served with a Summons and Complaint approximately 6 years ago on November 9, 2015 (See copy of affidavit of Service annexed as Exhibit “A.”) and an answer was served and filed on his behalf on December 15, 2015, which was signed and verified by John Corgan, Esq, the attorney who appeared at Oral Argument on October 28, 2021. (Exhibit “B”). Aside from the fact that an attorney should not verify responses in an answer without first speaking with his client, this answer was served approximately 1 year and a half before Mr. CABEZAS was indicted on April 17, 2017 (See exhibit “E” to plaintiff affirmation in support of the cross-motion, A preliminary conference was held on August 23, 2016 (that provided for the examination before trial of CABEZAS on or before January 20, 2017,yet there was no communication with the client to inform him of that date and despite conducting 3 sessions of plaintiff’s deposition, where certainly communication with the defendant is required in order to conduct a meaningful examination of his adversary, to discuss his version and recollection of the events. 8. During Oral argument on October 18, 2021defense Counsel referred to an uncited and apparently unreported lower Court decision which reportedly 4 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 held that the appropriate remedy is preclusion and not the striking of a pleading. Following argument I sent an E mail to defense counsel (Exhibit “C”) requesting a copy of this unreported and uncited decision because I wanted to see the circumstances involved in that case and whether the relief of preclusion had been requested by the moving party so as to distinguish such a holding from the instant case (even though such a decision has no precedent value under the rule of Stare Decisis) which requires this Court to follow the decisions of the Appellate Division First Department, or if not previously ruled upon by this department the decision of other Appellate Division and not that of Courts of equal jurisdiction. 9. CABEZA’S Counsel’s argument that he could provide sufficient details to the Court if requested in an In Camera presentation fails to appreciate that such details are required whether the Court request them or not and that those details are required to be included in the record so argument can be had whether those details spell out a reasonable excuse. Furthermore, there is not nor has there ever been an adequate basis here to present the defendant’s evidence In-Camera as Counsel has acknowledged that his firm has not been in communication with his client at anytime during this litigation and therefore there exists no confidential client-attorney communications that is shielded from disclosure based upon any ethical 5 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 rule of conduct. The fact that counsel may have discovered a reason that the defendant has elected to disappear and make himself unavailable to testify is similarly neither privileged or would be shielded from disclosure by any ethical obligatiom to their client. 10. Indeed, I was now able to ascertain by a simple phone call to the special prosecutor from the DEA who indicted Mr. Cabezas the reason why CABEZAS has disappeared and can infer why he will not comply with discovery obligations in this case. According to my phone conversation with Kati Cornell, the DEA prosecutor that indited Cabezas, on October 3, 2018, CABEZAS skipped bail and a bench warrant was issued for his arrest in March 2018 but as he has disappeared he has not been apprehended under that warrant nor tried on the original charges to date. As such information, is neither privileged as it is part of the public record, there is no basis for an in camera presentation of this as defendant’s excuse for not appearing at his deposition. Furthermore, CABEZA’S election to skip bail and abscond from justice cannot ne considered a reasonable excuse as his actions was a willful attempt to not only avoid his criminal liabilities and responsibilities as a defendant in his criminal case but was a willful decision to disappear and to forego his defense of this civil matter. 6 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 Furthermore, the fact that an investigation to his current whereabouts, if revealed, may result in his arrest and imprisonment, revealing the results of that investigation is not privileged even if revealed to the attorney by the client does not violate the ethical rule preventing an attorney from revealing information disclosed in confidence by the client to counsel, particularly when that client only represents the defendant in a Civil matter. 11. Indeed, according to the sworn affirmation of Counsel “. In November of 2020, counsel for defendant CABEZAS was uncertain of defendant’s incarceration” demonstrating counsel had made no effort to contact their client or determine his availability to testify in the 2 ½ year period after he had absconded from justice. 12. In any event, even if Counsel has a good faith belief that they are barred from revealing information as a result of their investigation that disclosed CABEZAS current location, if he in fact had been located, they could have left that information out of their affirmation and that of their investigator as such information would not be pertinent to his excuse in not testifying at an Examination before trial. The bottom line is that the defendant’s decision to abscond from justice and his refusal to testify, even if such testimony could lead to legal jeopardy, as explained in the 7 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 accompanying memorandum of Law, does not relieve that party’s obligation to testify even when there are outstanding legal charges, and such a refusal is still considered a willful failure to comply with court ordered discovery requiring a striking of his pleading. Furthermore, the failure of the defendant to keep in contact with his client and to timely inform counsel of the fact that the defendant is missing and has absconded from justice and therefore will not be participating in discovery will obviate any reasonable excuses by counsel in its failure to produce its client for deposition. (see Moriates v. Powertest Petroleum Co, 114 A.D.2d 868 (2 Dept, 2005) discussed in greater detail in plaintiff accompanying memorandum if law. 12. Therefore as stated in my accompanying memorandum of law the Appellate Law is clear that the failure to produce a defendant for Examination before trial will not be excused because of the attorney’s loss of contact with that defendant or where the defendant has “disappeared,” in the absence of a nonconclusory affidavit that details and provides a reasonable excuse of a defendant in failing to participate in his defense including that defendant appearance at a court ordered Examination Before Trial and that the failure of a client to keep in contact with his attorney is not considered a legally acceptable reasonable excuse to avoid a finding of willful noncompliance as well as a reasonable excuse by the attorney detailing that the attorney 8 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 provided, when able to do so, instructions provided to the defendant regarding a defendant’s legal responsibilities during the litigation , when the attorney realized that he could not produce his client for deposition because he had lost contact with him, and most importantly demonstrating the specific efforts taken to find the client including the hiring of an investigator, when those efforts were begun demonstrating that they were begun in a timely manner and the fruits of that investigation and that the absence of a showing of a reasonable excuse by the client or the absence of a detailed affidavit by an investigator and the attorney detailing the reasonable efforts taken to locate the client coupled with the failure of that defendant to appear for his or her Court Ordered Examination before trial mandates the either the striking of the answer or at the very least a conditional order striking the defendant’s answer if such defendant does not appear by a date certain selected by the Court (usually within 30 days) and it is an abuse of discretion for a lower Court to deny such relief or provide some lesser relief such as preclusion. Furthermore the fact that a defendant willfully chooses to avoid his legal responsibility to appear for deposition because he chose to abscond from justice does not constitute a reasonable excuse to avoid the sanction of the striking of a pleading. 9 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 13. Because of the CABEZAS utter failure to provide the Court with a legally recognized excuse and counsel’s failure to provide the required detailed affidavits to excuse said default and the Courts stated misperception that there was only one case in the Second Department that has supported a decision to Strike a “Defendant’s answer” for similar conduct, I asked the Court permission to submit this reply to correct the Court’s misperception (in fact there has been scores of Appellate Cases in the First Department that have not only granted this relief but have held that the failure of a lower Court to do so constituted an abuse of discretion) and to address the utter failure of the defendant to meet their burden to oppose this motion and requested and was given 2 weeks to do so. In fact as opposed to the plethora of Appellate Decisions that held that the appropriate remedy for such conduct is the striking of the pleading I was unable to find a single Appellate decision that found that it was an appropriate exercise of discretion to merely order a preclusion order except in circumstances where the plaintiff specifically requested that relief or where that relief had been stipulated to by the parties. 14. An order of preclusion, as stated in the accompanying memorandum of law is not the appropriate sanction as it does not remedy a party’s inability to obtain material and necessary discovery needed for the prosecution of this 10 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 action. Not only does such an examination before trial provide the plaintiff the ability to discobver facts not included in the medical chart of PARKVILLE MEDICAL ASSOCIATES, CABEZAS’ employer. It also deprives plaintiff the opportunity to obtain relevant information against the cop-defendant FEYGIN regarding the extent he was supervising the actions of CABEZAS his physician assistant and the communications if any between those two defendants. Of importance is the fact that Dr. FEYGIN claimed that CABEZAS referred the patient to a nephrologist in part because the radiologist’s report of an ultrasound of the kidney he ordered to evaluate a previously noted renal mass in the right kidney, recommended that the patient undergo a CT scan to further evaluate this issue if clinically indicated. While Dr. FEYGIN read the report and initialed it on May 31, 2013, (See report annexed as exhibit “D”), FEYGIN never ordered a CT Scan despite his stated concern that there may be a cancerous mass in the right kidney. As the patient had been thereafter seen in the office by the physician assistant CABEZAS and was never seen by FEYGIN again , FEYGIN excused this oversight in not ordering the CT Scan by claiming that there had been a referral by CABEZAS to a nephrologist for this purpose (See Examination before trial of FEYGIN, Exhibit “E” pg 108-109), notwithstanding the fact that the 11 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 prescription for this referral merely listed renal failure (which was based upon abnormal laboratory values) as the condition to be assessed by the nephrologist. (Prescription annexed as Exhibit “F”) Therefore, the failure to produce CABEZAS deprived plaintiff of material and necessary information regarding whether the patient was referred to a nephrologist to rule out a renal mass and whether the CABEZAS ever even saw the ultrasound report that recommended the performance of a CT Scan, as that report was only initialed by FEYGIN. In addition, without his examination before trial, I cannot query Dr. CABEZAS why he had the patient fill out an incontinence questionnaire July 13, 2013, in which she revealed she was incontinent (“Exhibit G”)[a sign and symptom of urological cancer, the underlying condition that is the subject of this failutre to diagnose claim) , notwithstanding the fact that his clinical note for that date makes no reference to urinary 1symptoms (Exhibit “H”) As testified by Dr FEYGIN “this form or a similar form was used at [his] office when a patient made complaints involving the genital urinary so those complaints could be evaluated by the physician or physician assistant.” (FEYGIN EBT pg. 133”) and therefore in the absence of his testimony, plaintiff cannot elicit 1 While the form lists Dr. FEYGIN as the provider, the form filled out for the dates the patient was seen by CABEZAS referred to FEYGIN as the provider and according to FEYGIN he did not see the patient after March 27, 2013 after which date the patient was being followed at his office by his PA CABEZAS. 12 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 information that could reveal what those urinary complaints were. It should also be noted that in an emergency room visit at Bronx Lebanon Hospital less than 2 weeks later on July 26, 2013 because of a urinary complaint of blood in her urine she gave a history of being “recently treated for an infection” (See Bronx Lebanon ER note annexed as Exhibit “ I”) and this symptom had been going on for the past two weeks. however she had not seen any physician recently other than the physicians at Parkville and there was no mention of Urinary Tract infection by CABEZAS or blood in the urine, but she must have had some undocumented urinary complaints on that date that lled to her being asked to fill out an incontinence form. 15. Lastly without taking his EBT, plaintiff has been deprived of the ability to ask CABEZAS why there is no clinic note for August 28, 2013, even though the patient was seen on that date and her insurance company was billed for services rendered. (Exhibit I) This visit is particularly important as this visit came between emergency room visits at Bronx Lebanon where she repeatedly complained of blood in her urine and was reportedly instructed to follow-up with her private Medical Doctor (who at this time was Parkville and CABEZAS) for the misdiagnosed urinary tract infection which in reality was being caused by her undiagnosed urinary tract cancer. 13 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 16. Therefore, the deposition is materially and necessary not only to establish the negligence and malpractice of the defendant CABEZAS and his employer the defendant PARRKVILLE MEDICAL who would be vicariously liable for his acts. to defend claims of comparative negligence made not only by him but by each of the co-defendants based upon her alleged failure to see the nephrologist and for claims against the co- defendant FEYGIN for failing to act upon the recommendation of the radiologist. Precluding CABEZAS therefore constitutes an inadequate remedy as it not only helps this recalcitrant defendant but also benefits the co-defendants, including FEYGIN and PARKVILLE who are represented by other counsel by depriving the plaintiff of potential evidence that the to address these claims. There is also a question left unresolved, due to the failure to produce Dr. CABEZAS, why a referral form was not filled out, which according to FEYGIN would be filled out and signed by the patient a whenever a patient was sent for an outside test or evaluation (Feygin EBT pgs 67-70) and whether the written prescription in the Parkville chart for the patient to see a nephrologist to evaluate renal failure was actually given to the decedent in light of the absence of a separate written referral form co-signed by the patient. 14 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 17. Wherefore it is respectfully requested that the instant motion be granted in its entirety including the striking the answer of the defendant CABEZAS or in the alternative conditionally striking said answer unless the defendant appears for his examination before trial withing 30 days of the date of this order. Dated: August 4, 2021 ____________________ Brian Schochet 15 of 16 FILED: BRONX COUNTY CLERK 11/04/2021 08:38 AM INDEX NO. 24912/2015E NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 11/04/2021 SUPREME = COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -----------------------------------------------------------------------------x DONALD SCHOON, as Administrator of the Estate of RUBY SCHOON, deceased, and DONALD SCHOON, Individually, Index No. 24912/2015E Plaintiffs, -against- LAZAR FEYGIN, KEVIN LOWE, MOHAMMED RASHID, JOHN V. DELLOSSO, JUAN CABEZAS, THE BRONX LEBANON HOSPITAL CENTER, SHAHIN GHARIB, PATRICIA RIVERA-TOOLAN, , FENAR THEMISTOCLE, PARKVILLE Certification of Compliance MEDICAL HEALTH, P.C., ASTRAMED PHYSICIAN, P.C., with Uniform Rules of the DAYTOP VILLAGE, INC., FENAR THEMISTOCLE MD PLLC, Court 202.8b DIANA KIM and SHENEQUA McLEOD, Defendants --------------------------------------------------------------------------------x x Brian Schochet, an attorney admitted to practice before the Courts of the State of New York and the attorney for the plaintiff herein certifies and affirms that the annexed _ Reply Affirmation contains 3272 words words as documented by the word processing program = . Microsoft word) on which this affirmation was created and therefore is in full compliance with the Uniform Rules of The Court as amended as of February 1, 2021 Dated: November 4, 2021 _________________ Brian Schochet 16 of 16