Preview
FILED:: NEW
|FILED YORK
QUEENS COUNTY
COUNTY CLERK
CLERK 01/09/2019
10/20/2017 05:46
04:40 PM| PM
INDEX
INDEX NO.
NO. 652336/2018
702978/2016
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 41
10 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/09/2019
10/20/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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DESMOND GARRETT,
AFFIRMATION IN
SUPPORT
Plaintiff,
-against- Index No.: 702978/16E
SEROTA ROOSEVELT, LLC., WESTERN BEEF
RETAIL, INC., and WESTERN BEEF
PROPERTIES, INC.,
Defendants.
-------------------------------------------------------X
BRIAN S. LENT, an attorney, duly admitted to practice before the courts of the State of
New York, affirms the following to be true under the penalties of perjury: I am an associate with
the Law Office of Robert E. Brown, PC, the attorney of record SEROTA ROOSEVELT, LLC.,
WESTERN BEEF RETAIL, INC., and WESTERN BEEF PROPERTIES, INC, and as such I am
familiar with the facts and circumstances of this action based upon my review of the file in this
matter.
I submit this affirmation in Compliance with UCR 202.7(f). Proper notice of the Order to
Show Cause in connection with this matter was given over 24 hours in advance to counsel for
Plaintiff.
I further make this affirmation in support of the within motion for an Order striking the
above captioned matter from the trial calendar on the grounds that material, relevant and
necessary discovery remains outstanding.
PROCEDURALBACKGROUND
1. Plaintiff claims that on August 14, 2015, while walking towards the Western Beef
supermarket located at 322 Nassau Road, Roosevelt, New York when he tripped but did
not fall on an allegedly defective sidewalk.
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INDEX
INDEX NO. 702978/2016
NO. 652336/2018
FILED:: QUEENS
IFILED NEW YORK COUNTY
COUNTY CLERK
CLERK 10 01/09/2019
/20 /2017 04 05:46
: 40 Pld PM
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 41
10 RECEIVED
RECEIVED NYSCEF: 10/20/2017
NYSCEF: 01/09/2019
2. On or about March 14, 2016, Plaintiff commenced this personal injury action by filing
the Summons and Complaint (Exhibit A).
3. On or about April 11, 2016, issue was joined by the service of a Verified Answer on
behalf of SEROTA ROOSEVELT, LLC., WESTERN BEEF RETAIL, INC., and
WESTERN BEEF PROPERTIES, INC. (Exhibit B)
4. On May 10, 2016, a Preliminary Conference was held before Justice Timothy J.
Dufficy (Exhibit C).
5. On August 31, 2016, Plaintiff's deposition was held at the office of plaintiff's counel.
Defendants'
6. Also on August 31, 2016, the deposition of witness Clifford Winston, an
assistant store manager was held at the office of Plaintiff's counsel.
7. An IME was performed by Dr. Jay Eneman, a Board certified orthopedic surgeon on
September 29, 2016. The Doctor's report was exchanged with Plaintiff's counsel on
October 20, 2016. (Exhibit D)
8. Thereafter, Plaintiff filed a Note of Issue dated June 27, 2016 (Exhibit E).
DISCOVERY SHOULD BE REOPENED BECAUSE PLAINTIFF HAS
UNDERGONE ADDITIONAL PROCEDURES RELATIVE TO THE SUBJECT
INCIDENT AND PLANS ON USING THE FACTS OF THE PROCEDURES AS PROOF
OF HIS DAMAGES AT THE TRIAL
9. The plaintiff served a Second Supplemental Bill of Particulars was served on or about
August 2, 2017. (Exhibit F)
10. On October 11, 2017, we received a Third Supplemeñtal Bill of Particulars which was
dated September 25, 2017. (Exhibit G) This latest Bill of Particulars stated that the
plaintiff had undergone another procedure, a lumbar medial branch radio frequency
branch ablation using fluoroscopy left L3/L4, L4/L5, L5/S1 allegedly needed due to the
subject incident.
11. The Plaintiff also annexed copies of the records from North Shore University Hospital,
including the operative report of Dr. Adam Schestak, with an authorization permitting
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FILED:: QUEENS
[FILED NEW YORK COUNTY
COUNTY CLERK
CLERK 01/09/2019
10/20/2017 04: 05:46
40 P1 PM
INDEX NO. 702978/2016
INDEX NO. 652336/2018
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 10
41 RECEIVED NYSCEF: 10/20/2017
RECEIVED NYSCEF: 01/09/2019
the Defendants to obtain copies of all records. It was also stated that further procedures
are anticipated.
12. The Third Süpplemental Bill of Particulars also indicated that the plaintiff had
undergone lumbar epidural steroid injections at L5/S1 on April 22, June 14 and
September 2, 2016, as well as lumbar facet injections under fluoroscopy on the left side
at L3/L4, L4/L5 and L5/S1 on July 12, 2017. The records for each of these procedures
had been previously exchanged by Plaintiff's counsel.
13. Before receiving the Third Supplemental Bill of Particulars on October 11, 2017,
Defendants were unaware of the fact that Plaintiff was still undergoing procedures
relative to the injuries from the subject accident.
14. The April 22, June 14 and the September 2, 2016 Lumbar epidural steroid injection at
L5/S1 and the lumbar facet injections under fluoroscopy on the left side at L3/L4,
L4/L5 and L5/S1 on July 12, 2017, were not disclosed until after the plaintiff's
deposition of August 31, 2016.
15. Furthermore, the aforementioned procedures were not disclosed until long after the
orthopedic IME was conducted on September 29, 2016.
16. Testimony and documents regarding these procedures are material, relevant and
necessary to complete discovery prior to the trial of this matter.
17. The lumbar epidural steroid injections at L5/S1 on April 22, June 14, 2016 were both
held prior to the filing of the Plaintiff's Note of Issue, yet disclosure was not made until
August 2, 2017.
18. The Defendants should be permitted to conduct a further deposition of the plaintiff
relative to the recently disclosed procedures, as well as the Plaintiff's current condition,
complaints and recent treatment,
19. The Defendants also needs to conduct a further IME or IMEs after obtaining the
records of all of these recently disclosed procedures.
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FILED:: NEW
|FILED YORK
QUEENS COUNTY
COUNTY CLERK
CLERK 01/09/2019
10/20/2017 05:46
04:40 PM| PM
INDEX
INDEX NO.
NO. 652336/2018
702978/2016
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 41
10 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/09/2019
10/20/2017
CONCLUSION
Defendants'
20. further request that this matter be stricken from the trial calendar until the
deposition of Plaintiff is held to question Plaintiff on each of the aforementioned
procedures, his current condition and complaints, as well as all treatment since the date
of the prior deposition.
21. Defendants have not made a previous application for the relief herein requested.
WHEREFORE, the undersigned respectfully requests that the motion be granted and an
Order be entered striking the above-captioned matter form the trial calendar on the grounds
that material, relevant and necessary discovery remains outstanding; and for such other and
further relief as to this Court seems just and proper.
Dated: Richmond, New York
October 20, 2017
Bri . Lent, Esq.
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Preview
FILED:: NEW |FILED YORK QUEENS COUNTY COUNTY CLERK CLERK 01/09/2019 10/20/2017 05:46 04:40 PM| PM INDEX INDEX NO. NO. 652336/2018 702978/2016 NYSCEF NYSCEF DOC. DOC. NO. NO. 41 10 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/09/2019 10/20/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------X DESMOND GARRETT, AFFIRMATION IN SUPPORT Plaintiff, -against- Index No.: 702978/16E SEROTA ROOSEVELT, LLC., WESTERN BEEF RETAIL, INC., and WESTERN BEEF PROPERTIES, INC., Defendants. -------------------------------------------------------X BRIAN S. LENT, an attorney, duly admitted to practice before the courts of the State of New York, affirms the following to be true under the penalties of perjury: I am an associate with the Law Office of Robert E. Brown, PC, the attorney of record SEROTA ROOSEVELT, LLC., WESTERN BEEF RETAIL, INC., and WESTERN BEEF PROPERTIES, INC, and as such I am familiar with the facts and circumstances of this action based upon my review of the file in this matter. I submit this affirmation in Compliance with UCR 202.7(f). Proper notice of the Order to Show Cause in connection with this matter was given over 24 hours in advance to counsel for Plaintiff. I further make this affirmation in support of the within motion for an Order striking the above captioned matter from the trial calendar on the grounds that material, relevant and necessary discovery remains outstanding. PROCEDURALBACKGROUND 1. Plaintiff claims that on August 14, 2015, while walking towards the Western Beef supermarket located at 322 Nassau Road, Roosevelt, New York when he tripped but did not fall on an allegedly defective sidewalk. 1 of 4 INDEX INDEX NO. 702978/2016 NO. 652336/2018 FILED:: QUEENS IFILED NEW YORK COUNTY COUNTY CLERK CLERK 10 01/09/2019 /20 /2017 04 05:46 : 40 Pld PM NYSCEF DOC. NYSCEF DOC. NO. NO. 41 10 RECEIVED RECEIVED NYSCEF: 10/20/2017 NYSCEF: 01/09/2019 2. On or about March 14, 2016, Plaintiff commenced this personal injury action by filing the Summons and Complaint (Exhibit A). 3. On or about April 11, 2016, issue was joined by the service of a Verified Answer on behalf of SEROTA ROOSEVELT, LLC., WESTERN BEEF RETAIL, INC., and WESTERN BEEF PROPERTIES, INC. (Exhibit B) 4. On May 10, 2016, a Preliminary Conference was held before Justice Timothy J. Dufficy (Exhibit C). 5. On August 31, 2016, Plaintiff's deposition was held at the office of plaintiff's counel. Defendants' 6. Also on August 31, 2016, the deposition of witness Clifford Winston, an assistant store manager was held at the office of Plaintiff's counsel. 7. An IME was performed by Dr. Jay Eneman, a Board certified orthopedic surgeon on September 29, 2016. The Doctor's report was exchanged with Plaintiff's counsel on October 20, 2016. (Exhibit D) 8. Thereafter, Plaintiff filed a Note of Issue dated June 27, 2016 (Exhibit E). DISCOVERY SHOULD BE REOPENED BECAUSE PLAINTIFF HAS UNDERGONE ADDITIONAL PROCEDURES RELATIVE TO THE SUBJECT INCIDENT AND PLANS ON USING THE FACTS OF THE PROCEDURES AS PROOF OF HIS DAMAGES AT THE TRIAL 9. The plaintiff served a Second Supplemental Bill of Particulars was served on or about August 2, 2017. (Exhibit F) 10. On October 11, 2017, we received a Third Supplemeñtal Bill of Particulars which was dated September 25, 2017. (Exhibit G) This latest Bill of Particulars stated that the plaintiff had undergone another procedure, a lumbar medial branch radio frequency branch ablation using fluoroscopy left L3/L4, L4/L5, L5/S1 allegedly needed due to the subject incident. 11. The Plaintiff also annexed copies of the records from North Shore University Hospital, including the operative report of Dr. Adam Schestak, with an authorization permitting 2 of 4 FILED:: QUEENS [FILED NEW YORK COUNTY COUNTY CLERK CLERK 01/09/2019 10/20/2017 04: 05:46 40 P1 PM INDEX NO. 702978/2016 INDEX NO. 652336/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 10 41 RECEIVED NYSCEF: 10/20/2017 RECEIVED NYSCEF: 01/09/2019 the Defendants to obtain copies of all records. It was also stated that further procedures are anticipated. 12. The Third Süpplemental Bill of Particulars also indicated that the plaintiff had undergone lumbar epidural steroid injections at L5/S1 on April 22, June 14 and September 2, 2016, as well as lumbar facet injections under fluoroscopy on the left side at L3/L4, L4/L5 and L5/S1 on July 12, 2017. The records for each of these procedures had been previously exchanged by Plaintiff's counsel. 13. Before receiving the Third Supplemental Bill of Particulars on October 11, 2017, Defendants were unaware of the fact that Plaintiff was still undergoing procedures relative to the injuries from the subject accident. 14. The April 22, June 14 and the September 2, 2016 Lumbar epidural steroid injection at L5/S1 and the lumbar facet injections under fluoroscopy on the left side at L3/L4, L4/L5 and L5/S1 on July 12, 2017, were not disclosed until after the plaintiff's deposition of August 31, 2016. 15. Furthermore, the aforementioned procedures were not disclosed until long after the orthopedic IME was conducted on September 29, 2016. 16. Testimony and documents regarding these procedures are material, relevant and necessary to complete discovery prior to the trial of this matter. 17. The lumbar epidural steroid injections at L5/S1 on April 22, June 14, 2016 were both held prior to the filing of the Plaintiff's Note of Issue, yet disclosure was not made until August 2, 2017. 18. The Defendants should be permitted to conduct a further deposition of the plaintiff relative to the recently disclosed procedures, as well as the Plaintiff's current condition, complaints and recent treatment, 19. The Defendants also needs to conduct a further IME or IMEs after obtaining the records of all of these recently disclosed procedures. 3 of 4 FILED:: NEW |FILED YORK QUEENS COUNTY COUNTY CLERK CLERK 01/09/2019 10/20/2017 05:46 04:40 PM| PM INDEX INDEX NO. NO. 652336/2018 702978/2016 NYSCEF NYSCEF DOC. DOC. NO. NO. 41 10 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/09/2019 10/20/2017 CONCLUSION Defendants' 20. further request that this matter be stricken from the trial calendar until the deposition of Plaintiff is held to question Plaintiff on each of the aforementioned procedures, his current condition and complaints, as well as all treatment since the date of the prior deposition. 21. Defendants have not made a previous application for the relief herein requested. WHEREFORE, the undersigned respectfully requests that the motion be granted and an Order be entered striking the above-captioned matter form the trial calendar on the grounds that material, relevant and necessary discovery remains outstanding; and for such other and further relief as to this Court seems just and proper. Dated: Richmond, New York October 20, 2017 Bri . Lent, Esq. 4 of 4