Preview
FILED: KINGS COUNTY CLERK 03/08/2019 12:32 AM INDEX NO. 521431/2016
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 03/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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KLARA KHUTORYANSKAYA,
Index No.: 521431/2016
Plaintiff,
-against- ATTORNEY AFFIRMATION
CROSS-MOTION TO VACATE
THE NOTE OF ISSUE
LASER & MICROSURGERY, P.C., d/b/a NY LASIK
LASER & MICROSURGERY INSTITUTE, BROOKLYN
EYE SURGERY CENTER, LLC, d/b/a BROOKLYN EYE
SURGERY CENTER, ALEXANDER RABINOVICH, M.D.,
and JOHN AND JANE DOES 1-100 (said names being
fictitious, it being the intention of Plaintiff to designate any
and all individuals, parties, corporations or entities if any
having or claiming a knowledge of the foregoing complaint),
Defendants.
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DEBORAH I. MEYER, being an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following under penalties of perjury:
1. I am a member of Ekblom & Partners, LLP attorneys for defendant ALEXANDER
RABINOVICH, M.D., herein. As such, I am completely familiar with the facts and circumstances
hereinafter set forth.
2. This affirmation is submitted in support of defendant’s cross-motion seeking an Order:
a) Pursuant to 22 NYCRR 202.21 and 3124(a) vacating the note of issue and certificate
of readiness on the grounds that discovery is not complete; and
b) Pursuant to 3212(a) extend the time for defendants to serve a motion for summary
judgment 120 days after the completion of the discovery, and
c) Granting such other and further relief as this Court deems just and proper.
3. No previous application for the relief requested herein has been previously made.
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FILED: KINGS COUNTY CLERK 03/08/2019 12:32 AM INDEX NO. 521431/2016
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 03/08/2019
4. This is a medical malpractice action in which plaintiff, alleges that defendants’ negligence
caused diminished vision loss to his left eye.
5. Plaintiff instituted the action on or about December 2, 2016 by filing a Summons and
Complaint. (A copy of the Summons & Complaint is annexed hereto as Exhibit “A”) Defendant Dr.
Alexander Rabinovich submitted an Answer accordingly. (A copy of his Verified Answer is annexed
hereto as Exhibit “B”)
6. Counsel for co-defendant Laser & Microsurgery, P.C., d/b/a NY Lasik Laser &
Microsurgery Institute has recently submitted a motion to the Court based upon the same factual and legal
background as the instant motion, and seeking relief similar to that which is requested herein. That
motion is presently returnable before the Court on February 20, 2019, and was supported by an Attorney
Affirmation of Jacqueline A. Wild, Esq. in support of the motion to vacate the Note of Issue, finish
discovery, and extend the time to serve a motion for summary judgment within 120 days after the
completion of discovery. In the interest of judicial economy, your affirmant hereby adopts the arguments
set forth in Ms. Wild’s Affirmation and concurs that defendant depositions are outstanding, IME,
discovery responses and document discovery.
7. Pursuant to NYCRR § 22 NYCRR 202.21, the Court may vacate the Note of Issue if
discovery has not yet been completed. See 22 NYCRR 202.21. As noted by Co-defendant’s motion,
defendants have not been deposed, the IME has not been performed and there is outstanding document
discovery requests among the parties that may require motion practice if not complied with. It is
imperative that discovery be complete and the parties have a reasonable amount of time to serve motions
for summary judgment as prescribed by law, 120 days after the close of discovery. See Brown v. Astoria
Federal Savings, 51 A.D.3d 961 (2d Dep’t 2008). The Court is aware that if discovery is not complete,
then the action should not be placed on the trial calendar. See Recon Car Corp. v. Chrysler Corp., 452
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NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 03/08/2019
N.Y.S.2d 326 (2d Dep’t 1982). Courts have consistently held that when discovery is not complete, even if
just the IME is outstanding, then the Note of Issue is to be stricken. See Pickering v. Union 15 Restaurant
Corp., 107 A.D.3d 450 (1st Dep’t 2013) (quoting Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389 [1st
Dep’t 2006]); see also Francescon v. Gucci America, 71 A.D.3d 528, 897 N.Y.S.2d 73 (1st Dept. 2010);
Alvarado v. Beth Israel Medical Center, 78 A.D.3d 873, 911 N.Y.S.2d 174 (2d Dept. 2010); Alba ex rel.
Rondon v. City of New York, 41 A.D. 3d 146, 838 N.Y.S.2d 41 (1st Dept. 2007); Sheets v. Liberty
Alliances, LLC, 37 A.D.3d 170, 830 N.Y.S.2d 56 (1st Dept. 2007). The purpose for vacating a note of
issue is to allow discovery to be actually completed. Id et al.
8. In addition, if the Court allows the Note of Issue to remain filed and let discovery be
completed then defendants request that the time to file the summary judgment motion be extended to 120
days after the discovery is complete. When a Note of Issue is filed stating that discovery has not been
completed, and the Court allows discovery to continue while keeping the Note of Issue filed then the
filing of a summary judgment motion should be extended to allow full and complete discovery prior to
the making of such motions. See Khan v. Macchia, 165 A.D.3d 637 (2d Dep’t 2018).
WHEREFORE, it is respectfully requested that the Court issue an Order to vacate the Note of
Issue in order to complete discovery and extend the summary judgment motion to 120 days after the
completion of discovery, or the alternative, if the Note of Issue remains to allow time to complete
discovery and extend the time to serve motions for summary judgment 120 days after the completion of
discovery; and granting such other and further relief as to this Court may seem just and proper.
Dated: New York, New York
January 17, 2019
EKBLOM & PARTNERS, LLP
By: Deborah I. Meyer, Esq.
DEBORAH I. MEYER, ESQ.
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Preview
FILED: KINGS COUNTY CLERK 03/08/2019 12:32 AM INDEX NO. 521431/2016 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 03/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x KLARA KHUTORYANSKAYA, Index No.: 521431/2016 Plaintiff, -against- ATTORNEY AFFIRMATION CROSS-MOTION TO VACATE THE NOTE OF ISSUE LASER & MICROSURGERY, P.C., d/b/a NY LASIK LASER & MICROSURGERY INSTITUTE, BROOKLYN EYE SURGERY CENTER, LLC, d/b/a BROOKLYN EYE SURGERY CENTER, ALEXANDER RABINOVICH, M.D., and JOHN AND JANE DOES 1-100 (said names being fictitious, it being the intention of Plaintiff to designate any and all individuals, parties, corporations or entities if any having or claiming a knowledge of the foregoing complaint), Defendants. ---------------------------------------------------------------------x DEBORAH I. MEYER, being an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under penalties of perjury: 1. I am a member of Ekblom & Partners, LLP attorneys for defendant ALEXANDER RABINOVICH, M.D., herein. As such, I am completely familiar with the facts and circumstances hereinafter set forth. 2. This affirmation is submitted in support of defendant’s cross-motion seeking an Order: a) Pursuant to 22 NYCRR 202.21 and 3124(a) vacating the note of issue and certificate of readiness on the grounds that discovery is not complete; and b) Pursuant to 3212(a) extend the time for defendants to serve a motion for summary judgment 120 days after the completion of the discovery, and c) Granting such other and further relief as this Court deems just and proper. 3. No previous application for the relief requested herein has been previously made. 1 FILED: KINGS COUNTY CLERK 03/08/2019 12:32 AM INDEX NO. 521431/2016 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 03/08/2019 4. This is a medical malpractice action in which plaintiff, alleges that defendants’ negligence caused diminished vision loss to his left eye. 5. Plaintiff instituted the action on or about December 2, 2016 by filing a Summons and Complaint. (A copy of the Summons & Complaint is annexed hereto as Exhibit “A”) Defendant Dr. Alexander Rabinovich submitted an Answer accordingly. (A copy of his Verified Answer is annexed hereto as Exhibit “B”) 6. Counsel for co-defendant Laser & Microsurgery, P.C., d/b/a NY Lasik Laser & Microsurgery Institute has recently submitted a motion to the Court based upon the same factual and legal background as the instant motion, and seeking relief similar to that which is requested herein. That motion is presently returnable before the Court on February 20, 2019, and was supported by an Attorney Affirmation of Jacqueline A. Wild, Esq. in support of the motion to vacate the Note of Issue, finish discovery, and extend the time to serve a motion for summary judgment within 120 days after the completion of discovery. In the interest of judicial economy, your affirmant hereby adopts the arguments set forth in Ms. Wild’s Affirmation and concurs that defendant depositions are outstanding, IME, discovery responses and document discovery. 7. Pursuant to NYCRR § 22 NYCRR 202.21, the Court may vacate the Note of Issue if discovery has not yet been completed. See 22 NYCRR 202.21. As noted by Co-defendant’s motion, defendants have not been deposed, the IME has not been performed and there is outstanding document discovery requests among the parties that may require motion practice if not complied with. It is imperative that discovery be complete and the parties have a reasonable amount of time to serve motions for summary judgment as prescribed by law, 120 days after the close of discovery. See Brown v. Astoria Federal Savings, 51 A.D.3d 961 (2d Dep’t 2008). The Court is aware that if discovery is not complete, then the action should not be placed on the trial calendar. See Recon Car Corp. v. Chrysler Corp., 452 2 FILED: KINGS COUNTY CLERK 03/08/2019 12:32 AM INDEX NO. 521431/2016 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 03/08/2019 N.Y.S.2d 326 (2d Dep’t 1982). Courts have consistently held that when discovery is not complete, even if just the IME is outstanding, then the Note of Issue is to be stricken. See Pickering v. Union 15 Restaurant Corp., 107 A.D.3d 450 (1st Dep’t 2013) (quoting Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389 [1st Dep’t 2006]); see also Francescon v. Gucci America, 71 A.D.3d 528, 897 N.Y.S.2d 73 (1st Dept. 2010); Alvarado v. Beth Israel Medical Center, 78 A.D.3d 873, 911 N.Y.S.2d 174 (2d Dept. 2010); Alba ex rel. Rondon v. City of New York, 41 A.D. 3d 146, 838 N.Y.S.2d 41 (1st Dept. 2007); Sheets v. Liberty Alliances, LLC, 37 A.D.3d 170, 830 N.Y.S.2d 56 (1st Dept. 2007). The purpose for vacating a note of issue is to allow discovery to be actually completed. Id et al. 8. In addition, if the Court allows the Note of Issue to remain filed and let discovery be completed then defendants request that the time to file the summary judgment motion be extended to 120 days after the discovery is complete. When a Note of Issue is filed stating that discovery has not been completed, and the Court allows discovery to continue while keeping the Note of Issue filed then the filing of a summary judgment motion should be extended to allow full and complete discovery prior to the making of such motions. See Khan v. Macchia, 165 A.D.3d 637 (2d Dep’t 2018). WHEREFORE, it is respectfully requested that the Court issue an Order to vacate the Note of Issue in order to complete discovery and extend the summary judgment motion to 120 days after the completion of discovery, or the alternative, if the Note of Issue remains to allow time to complete discovery and extend the time to serve motions for summary judgment 120 days after the completion of discovery; and granting such other and further relief as to this Court may seem just and proper. Dated: New York, New York January 17, 2019 EKBLOM & PARTNERS, LLP By: Deborah I. Meyer, Esq. DEBORAH I. MEYER, ESQ. 3