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FILED: NEW YORK COUNTY CLERK 05/21/2019 02:44 PM INDEX NO. 805302/2015
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 05/21/2019
EXHIBIT B
FILED: NEW .----YORK -...-....
COUNTY --.-.
CLERK --,05/21/2019 02:44 INDEX NO. 805302/2015
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NYSCEFDOC.
YSCEF DOC.NO.
NO. 7276 RECEIVED NYSCEF:
RECEIVED NYSCEF: 05/14/201
05/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-.--...-. . - ------··X
SHELLYANN HOFFMAN and OLUJlMI JOLAOSHO,
Index No.: 805302/2015
Plaintiffs,
AFFIRMATION IN
-against- OPPOSITIOIN
DEBRA TAUBEL, M.D., TlRSIT ASFAW, M.D., Assigned To:
DIMITRY YOUSHKO, M.D., MEGAN KWASNIAK, Judge Shulman
M.D., LARISSA STATHAKES, P.A., BROOKLYN
HOSPITAL NEW YORK PRESBYTERIAN HOSPITAL, Retum Date:
May 21, 2019
Defendants.
_....--,............---....-....--X
KENNETH BEAUZlLE, ESQ., being an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following to be true, upon informaticñ and
belief, under the penalties of perjury, as follows:
1. I am an associatê of the law firm of KAUFMAN BORGEEST & RYAN LLP in the
above-referenced matter and as such, I am fully familiar with the pleadiñÿs and proceedings
herstofore had herein based upon a review of the file maintained in this matter by Your
Affirmant's office.
2. This Affirmation is submitted in opposition to the motion by NEW YORK
PRESBYTERIAN, DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D. (hereinafter "moving
defendants") which seeks to vacate the April 25, 2019 Sp_grdered Stipulation of Discoñtinuance
signed by all parties except moving defendants. While Your Affirmañt is vehemsatly opposed to
vacating the Stipulation of Discontinuance, we have no positioñ as to whether Your Honor
should modify the language in the stipulation should plaintiff's counsel consent to same.
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FILED: NEW YORK COUNTY CLERK 05/21/2019 02:44 PM INDEX NO. 805302/2015
NYSCEFDOC.
YSCEF DOC. NO.
NO. 7276 RECEIVED NYSCEF:
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05/21/2019
FACTUAL & PROCEDURAL HISTORY
3. This is an action sounding in medicâI malpractice, lack of informed consent and
loss of consortium. Plaintiff â|Ieges that defendants were negligent in rendering medical,
surgical and diagnostic care and treatment to the Plaintiff. Plaintiff commenced this action by
filing a Summuno and Complaint in the office of the New York County Clerk on or about August
3, 2015. On March 25, 2019, plaintiff's counsel advised all parties that plaintiffs would
voluñtarily discontinue the case against DIMITRY YOUSHKO, M.D., MEGAN KWASNIAK, M.D.,
LARISSA STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER.
4, On April 8, 2019, all parties except moving defeñdants executed a Stipulation of
Discontinuance with Prejudice as to LARISSA STATHAKES, P .A., and BROOKLYN HOSPITAL
and others. (Exhibit "A"). On April 8, 2019 and April 10, 2019, the undersigned called moving
defendani.s'
counsel and left voice Inessages inquiring whether moving defendants would
consent to the Stipulation of Discontinuance.
defendants'
5. Moving counsel failed to respond to the undersigned's requests to
execute the Stipulation, thereby necessitating the undersigned to move to So-Order the
Stipulation on April 11, 2019.
6. After the motion was filed, moving defendants requested that plaintiff's counsel
modify the Stipulation of Disccatinuance to add language that would protect the moving
defendants'
interests. Plaintiff's counsel refused.
7. Moving defendants failed to timely submit oppesition to the undersigned's motion
to So-Order the Stipu!et!on of Discontinuance.
2
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8. On April 23, 2019, Counsel for Co-Defendant Dr. Youshko separately filed the
.Stipu!etion of Discontinuance. On April 25, 2019, Your Honor So-Ordered the St!pu!ation of
Discontinuance.
9. On April 26, 2019, moving Deferidants untimely filed oppeeition to the
undersigned's motion, admitting it was moot as the Court had already So-Ordered the
disccatinuance against all parties except the moving defendants.
ARGUMENT
10. CPLR §3217(b), provides in pertinent part, that an action may be disccñtinued,
so long as there is no prejudice to a substantial right of a party or some other inequity. Tucker v.
Tucker, 55 N.Y.2d 378 (1982). Such discontinuance should be granted upon Motion to the Court
and upon the terms and conditions as the Court deems proper.
11. Ordinarily, a party cannot be compelled to litigate and, absent special
circumstañces or improper ceasequences, a party's application for voluntary disccatinuance
should be granted. Seg, Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683 (1982); Parraquirre
v. 27th St. Holding, LLC, 37 A.D.3d 793, 831 N.Y.S.2d 460 (2d Dep't 2007); Mathias v. Daily
News, 301 A.D.2d 503, 752 N.Y.S.2d 896 (2d Dep't 2003); Urbonowicz v. Yarinsky, 290 A.D.2d
922, 923, 737 N.Y.S.2d 398 (2d Dep't 2002); Great Western Bank v Terio, 200 A.D.2d 608, 606
N.Y.S.2d 903 (2d Dep't 1994).
12. Moreover, the Court of Appee!s has found that it is appropriate to so-Order a
Stipu!etion of Discontinuance with Prejudice. S_eg, Conte v. Getty Petroleum Corp., 202 A.D.2d
621 (2d Dep't 1994) (Court may grant a motion to so-order a Stipulation of Discontinuance
proper."
"upon terms and conditions, as the court deems The discontinuance with prejudice is
3
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YSCE F DOC
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amongst the tools that the Court may employ in its discretion.) J,d,, at 822. See also, Brêñhcuse
v. Anthony Industries, Inc., 156 A.D.2d 411 (2d Dep't 1989).
circumstances" consequences"
13. Here, there are no "special or "improper to
warrant the vacatur of the So-Ordered Stipulation of Discontinuance in this action as to
LARISSA STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER. Plaintiff's counsel
signed the Stipulation to Disc0ñtiñue the action against defendants LARISSA STATHAKES,
P.A. and THE BROOKLYN HOSPITAL CENTER with prejudice. there are no cross-
Further,
claims asserted as to LARISSA STATHAKES, P.A. or THE BROOKLYN HOSPITAL CENTER
by any other party.
justice"
14. Moving defendants seek to vacats the Order in the "interests of to
eliminate claims which they believe are not valid against them. However, dispasition of such
claims is best left to a partial motion for summary judgment or a motion in limine at the time of
trial and not vacatur and mcdification of a So-Ordered Stipulation already signed by the Court.
justice"
The "interests of would be better served by leaving the So-Ordered Stipulation
undisturbed.
15. No prior application for the requested relief has been made herein.
defendants'
WHENEFORE, it is respêctfully requested that the Court deny the moving
motion in with respect to vacatiñg the Stipulation of Discontinuance in favor of LARISSA
STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER.
4
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NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 05/21/2019
YSCEF DOC. NO. 72 RECE
Dated: Valhalla, New York
May 14, 2019
KENNETH BEAUZILE, ESQ
TO: DOUGLAS & LONDON, P.C.
Attorneys for Plaintiff
59 Maiden Lane - 8th Floor
New York NY 10038
212-566-7500
GARSON & JAKUB, LLP
Attorneys for Defendant
DMITRY YOUSHKO, M.D.
New Address as of 9/1/18:
29 - Suite 1300
Broadway
New York, NY 10006
646-863-8980
AARONSON RAPPAPORT
FEINSTEIN & DEUTSCHE, LLP
Attorneys for Defendants
NEW YORK PRESBYTERIAN,
DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D.
600 Third Ave
Robert Deutsch
New York, NY 10016
Preview
FILED: NEW YORK COUNTY CLERK 05/21/2019 02:44 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 05/21/2019 EXHIBIT B FILED: NEW .----YORK -...-.... COUNTY --.-. CLERK --,05/21/2019 02:44 INDEX NO. 805302/2015 ..........- . ---.. ...., --...- --. -- ...PM NYSCEFDOC. YSCEF DOC.NO. NO. 7276 RECEIVED NYSCEF: RECEIVED NYSCEF: 05/14/201 05/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -.--...-. . - ------··X SHELLYANN HOFFMAN and OLUJlMI JOLAOSHO, Index No.: 805302/2015 Plaintiffs, AFFIRMATION IN -against- OPPOSITIOIN DEBRA TAUBEL, M.D., TlRSIT ASFAW, M.D., Assigned To: DIMITRY YOUSHKO, M.D., MEGAN KWASNIAK, Judge Shulman M.D., LARISSA STATHAKES, P.A., BROOKLYN HOSPITAL NEW YORK PRESBYTERIAN HOSPITAL, Retum Date: May 21, 2019 Defendants. _....--,............---....-....--X KENNETH BEAUZlLE, ESQ., being an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true, upon informaticñ and belief, under the penalties of perjury, as follows: 1. I am an associatê of the law firm of KAUFMAN BORGEEST & RYAN LLP in the above-referenced matter and as such, I am fully familiar with the pleadiñÿs and proceedings herstofore had herein based upon a review of the file maintained in this matter by Your Affirmant's office. 2. This Affirmation is submitted in opposition to the motion by NEW YORK PRESBYTERIAN, DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D. (hereinafter "moving defendants") which seeks to vacate the April 25, 2019 Sp_grdered Stipulation of Discoñtinuance signed by all parties except moving defendants. While Your Affirmañt is vehemsatly opposed to vacating the Stipulation of Discontinuance, we have no positioñ as to whether Your Honor should modify the language in the stipulation should plaintiff's counsel consent to same. 5639938 c: FILED: NEW YORK COUNTY CLERK 05/21/2019 02:44 PM INDEX NO. 805302/2015 NYSCEFDOC. YSCEF DOC. NO. NO. 7276 RECEIVED NYSCEF: RECEIVED NYSCEF: 05/14/201 05/21/2019 FACTUAL & PROCEDURAL HISTORY 3. This is an action sounding in medicâI malpractice, lack of informed consent and loss of consortium. Plaintiff â|Ieges that defendants were negligent in rendering medical, surgical and diagnostic care and treatment to the Plaintiff. Plaintiff commenced this action by filing a Summuno and Complaint in the office of the New York County Clerk on or about August 3, 2015. On March 25, 2019, plaintiff's counsel advised all parties that plaintiffs would voluñtarily discontinue the case against DIMITRY YOUSHKO, M.D., MEGAN KWASNIAK, M.D., LARISSA STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER. 4, On April 8, 2019, all parties except moving defeñdants executed a Stipulation of Discontinuance with Prejudice as to LARISSA STATHAKES, P .A., and BROOKLYN HOSPITAL and others. (Exhibit "A"). On April 8, 2019 and April 10, 2019, the undersigned called moving defendani.s' counsel and left voice Inessages inquiring whether moving defendants would consent to the Stipulation of Discontinuance. defendants' 5. Moving counsel failed to respond to the undersigned's requests to execute the Stipulation, thereby necessitating the undersigned to move to So-Order the Stipulation on April 11, 2019. 6. After the motion was filed, moving defendants requested that plaintiff's counsel modify the Stipulation of Disccatinuance to add language that would protect the moving defendants' interests. Plaintiff's counsel refused. 7. Moving defendants failed to timely submit oppesition to the undersigned's motion to So-Order the Stipu!et!on of Discontinuance. 2 5639938 FILED: - . NEW .---YORK --,....- ..-.. COUNTY - CLERK --,05/21/2019 ..-...-- ..--- --02:44 ..... PM INDEX NO. 805302/2015 ...., ..., YS CEF NYSCEF DOC. DOC. NO. NO. 7276 RECE IVED RECEIVED NYSCEF : 05/14/201 NYSCEF: 05/21/2019 8. On April 23, 2019, Counsel for Co-Defendant Dr. Youshko separately filed the .Stipu!etion of Discontinuance. On April 25, 2019, Your Honor So-Ordered the St!pu!ation of Discontinuance. 9. On April 26, 2019, moving Deferidants untimely filed oppeeition to the undersigned's motion, admitting it was moot as the Court had already So-Ordered the disccatinuance against all parties except the moving defendants. ARGUMENT 10. CPLR §3217(b), provides in pertinent part, that an action may be disccñtinued, so long as there is no prejudice to a substantial right of a party or some other inequity. Tucker v. Tucker, 55 N.Y.2d 378 (1982). Such discontinuance should be granted upon Motion to the Court and upon the terms and conditions as the Court deems proper. 11. Ordinarily, a party cannot be compelled to litigate and, absent special circumstañces or improper ceasequences, a party's application for voluntary disccatinuance should be granted. Seg, Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683 (1982); Parraquirre v. 27th St. Holding, LLC, 37 A.D.3d 793, 831 N.Y.S.2d 460 (2d Dep't 2007); Mathias v. Daily News, 301 A.D.2d 503, 752 N.Y.S.2d 896 (2d Dep't 2003); Urbonowicz v. Yarinsky, 290 A.D.2d 922, 923, 737 N.Y.S.2d 398 (2d Dep't 2002); Great Western Bank v Terio, 200 A.D.2d 608, 606 N.Y.S.2d 903 (2d Dep't 1994). 12. Moreover, the Court of Appee!s has found that it is appropriate to so-Order a Stipu!etion of Discontinuance with Prejudice. S_eg, Conte v. Getty Petroleum Corp., 202 A.D.2d 621 (2d Dep't 1994) (Court may grant a motion to so-order a Stipulation of Discontinuance proper." "upon terms and conditions, as the court deems The discontinuance with prejudice is 3 5639938 FILED: NEW YORK COUNTY CLERK 05/21/2019 02:44 PM INDEX NO. 805302/2015 YSCE F DOC NYSCEF . NO. DOC. NO. 7276 RECEIVED NYSCEF: 05/14/201 RECEIVED NYSCEF: 05/21/2019 amongst the tools that the Court may employ in its discretion.) J,d,, at 822. See also, Brêñhcuse v. Anthony Industries, Inc., 156 A.D.2d 411 (2d Dep't 1989). circumstances" consequences" 13. Here, there are no "special or "improper to warrant the vacatur of the So-Ordered Stipulation of Discontinuance in this action as to LARISSA STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER. Plaintiff's counsel signed the Stipulation to Disc0ñtiñue the action against defendants LARISSA STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER with prejudice. there are no cross- Further, claims asserted as to LARISSA STATHAKES, P.A. or THE BROOKLYN HOSPITAL CENTER by any other party. justice" 14. Moving defendants seek to vacats the Order in the "interests of to eliminate claims which they believe are not valid against them. However, dispasition of such claims is best left to a partial motion for summary judgment or a motion in limine at the time of trial and not vacatur and mcdification of a So-Ordered Stipulation already signed by the Court. justice" The "interests of would be better served by leaving the So-Ordered Stipulation undisturbed. 15. No prior application for the requested relief has been made herein. defendants' WHENEFORE, it is respêctfully requested that the Court deny the moving motion in with respect to vacatiñg the Stipulation of Discontinuance in favor of LARISSA STATHAKES, P.A. and THE BROOKLYN HOSPITAL CENTER. 4 5639938 FILED: NEW YORK COUNTY CLERK 05/21/2019 02:44 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 05/21/2019 YSCEF DOC. NO. 72 RECE Dated: Valhalla, New York May 14, 2019 KENNETH BEAUZILE, ESQ TO: DOUGLAS & LONDON, P.C. Attorneys for Plaintiff 59 Maiden Lane - 8th Floor New York NY 10038 212-566-7500 GARSON & JAKUB, LLP Attorneys for Defendant DMITRY YOUSHKO, M.D. New Address as of 9/1/18: 29 - Suite 1300 Broadway New York, NY 10006 646-863-8980 AARONSON RAPPAPORT FEINSTEIN & DEUTSCHE, LLP Attorneys for Defendants NEW YORK PRESBYTERIAN, DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D. 600 Third Ave Robert Deutsch New York, NY 10016