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FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------X
JOHN H. GUTIERREZ, Index No. 150266/2017
Plaintiff(s), AFFIRMATION OF
PARTIAL-OPPOSITION TO
PLAINTIFF'S CROSS
MOTION
-against-
FREDERICK V. TRAPP, GOJART AGOLI and
NERTILA GUZE,
Defendant(s).
____________-----------..--- --- -
--- .-..----..-..____---- X
SETH NIRENBERG, ESQ., an attorney duly licensed to practice law before the
Courts of the State of New York, hereby affirms upon information and belief and under
penalty of perjury as follows:
1. I am an associate of the law firm Abrams, Gorelick, Friedman & Jacobson,
LLP, counsel for defendant, FREDERICK V. TRAPP, and I am fully familiar with the
facts set forth below, except for those matters set forth upon information and belief which I
believe to be true.
2. I submit this affirmation in partial-opposition to the plaintiff's Cross-
Motion to the extent plaintiff seeks an Order setting this matter down for an immediate
trial on damages.
3. This action stems from a personal injuries allegedly suffered by the plaintiff
on April 28, 2016 in a four car chain-reaction collision.
4. For the sake of brevity, defendant TRAPP hereby adopts and incorporates
the procedural history of this case as described in plaintiff's Affirmation in Support of his
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NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018
Cross-Motion seeking an Order pursuant to CPLR §3212, granting Plaintiff Summary
Judgment on the issue of liability and setting this matter down for an immediate trial on
damages.
5. Foremost, should the Court determine that there is a question of fact
conceming the liability of the respective defendants, based upon its review of the
respective motions, then it is respectfully submitted that plaintiff's motion should be
denied.
6. However, if it is determined that defendant TRAPP was liable for the
subject accident then it is respectfully submitted that plaintiff is not entitled to an
immediate trial on damages. Defendant TRAPP is entitled to conduct all necessary
discovery regarding damages, which includes, but is not limited to, conducting physical
examinations of plaintiff with experts of defendant TRAPP'S choosing pursuant to CPLR
3101(d) and Uniform Court Rule 202.17.
7. Itshould be noted for the Court that a Stipulation was signed by allparties
in this case, extending the time for defendants to designate independent medical
examinations until 30 days after plaintiff responded to defendant TRAPP's Post-
Deposition Notice for Discovery and Inspection dated October 24, 2018 (a copy of the
Stipulation is annexed hereto as Exhibit "A").
8. On November 26, 2018 the undersigned's office received plaintiff's
Response to Post-Deposition Notice for Discovery and Inspection (copy annexed hereto as
Exhibit "B"). However, the authorization to obtain plaintiff's records for his two prior and
one subsequent work related accidents was defective.
9. Accordingly, the undersigned immediately sent plaintiff's counsel a letter
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FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018
dated December 3, 2018 (copy annexed hereto as Exhibit "C") detailing our need for new
workers'
compensation authorizations and reserved our right to designate physical
examination(s) of plaintiff until 30 days after the undersigned's office received the
correctedworkers'
compensation authorizations.
10. On December 19, 2018, the undersigned received an email from plaintiff's
counsel with the authorizations enclosed. The undersigned responded to plaintiff's
counsel's email noting, "Per my letter dated December 3, 2018, since I received the
authorization's today, I will designate plaintiff's IME(s) within 30 days from today (by my
thereafter."
count that is January 18, 2019) to be held 45 days An employee of plaintiff s
fme."
counsel responded, "Yep. That is A copy of the December 19, 2018 email exchange
is annexed hereto as Exhibit "D".
workers'
11. Thereafter, a hard copy of the new compensation authorizations
was received on December 26, 2018 (copy annexed hereto as Exhibit "E").
12. Additionally, should plaintiff s medical records or the independent medical
examination reports warrant such, defendant TRAPP has the right to argue plaintiff's
injury"
objectively documented injuries do not meet the "serious requirements of Section
5102(d) of the Insurance Law of the State of New York in a motion and, if necessary, at
the time of trial in front of a jury.
13. Based on the above, should the Court rule that liability is against defendant
TRAPP, it is respectfully requested that this Court deny plaintiff's request for an
immediate trial on damages and direct the parties to continue and complete any
outstanding discovery prior to this matter being set for trial.
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FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018
WHEREFORE, the defendant respectfully submits that plaintiff's cross-motion be denied
in its entirety, or at least to the extent itseeks and Order setting this matter down for an
immediate trial on damages.
Dated: New York, New York
December 26, 2018
ABRAMS, GORELICK, FRIEDMAN
& JACOBSON, LLP
Attorneys for Defendant
FREDERICK V. TRAPP
By: b Seth
(wh
Nirenbe
One Battery Park Pla th Floor,
New York, New York 10004
(212) 422-1200
File No.: 31478
TO: SCHWARTZAPFEL LAWYERS P.C.
Attorneys for Plaintiff
JOHN H. GUTIERREZ
600 Old Country Road, Suite 450
Garden City, NY 11530
(516) 342-2200
Your File No.: 1801184
MCMAHON, MARTINE, AND GALLAGHER, LLP
Attorneys for Defendants
GOJART AGOLI and NERTILA GUZE
55 Washington Street, Suite 720
Brooklyn, NY 11201
(212) 747-1230
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FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------X JOHN H. GUTIERREZ, Index No. 150266/2017 Plaintiff(s), AFFIRMATION OF PARTIAL-OPPOSITION TO PLAINTIFF'S CROSS MOTION -against- FREDERICK V. TRAPP, GOJART AGOLI and NERTILA GUZE, Defendant(s). ____________-----------..--- --- - --- .-..----..-..____---- X SETH NIRENBERG, ESQ., an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms upon information and belief and under penalty of perjury as follows: 1. I am an associate of the law firm Abrams, Gorelick, Friedman & Jacobson, LLP, counsel for defendant, FREDERICK V. TRAPP, and I am fully familiar with the facts set forth below, except for those matters set forth upon information and belief which I believe to be true. 2. I submit this affirmation in partial-opposition to the plaintiff's Cross- Motion to the extent plaintiff seeks an Order setting this matter down for an immediate trial on damages. 3. This action stems from a personal injuries allegedly suffered by the plaintiff on April 28, 2016 in a four car chain-reaction collision. 4. For the sake of brevity, defendant TRAPP hereby adopts and incorporates the procedural history of this case as described in plaintiff's Affirmation in Support of his 1 of 4 FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018 Cross-Motion seeking an Order pursuant to CPLR §3212, granting Plaintiff Summary Judgment on the issue of liability and setting this matter down for an immediate trial on damages. 5. Foremost, should the Court determine that there is a question of fact conceming the liability of the respective defendants, based upon its review of the respective motions, then it is respectfully submitted that plaintiff's motion should be denied. 6. However, if it is determined that defendant TRAPP was liable for the subject accident then it is respectfully submitted that plaintiff is not entitled to an immediate trial on damages. Defendant TRAPP is entitled to conduct all necessary discovery regarding damages, which includes, but is not limited to, conducting physical examinations of plaintiff with experts of defendant TRAPP'S choosing pursuant to CPLR 3101(d) and Uniform Court Rule 202.17. 7. Itshould be noted for the Court that a Stipulation was signed by allparties in this case, extending the time for defendants to designate independent medical examinations until 30 days after plaintiff responded to defendant TRAPP's Post- Deposition Notice for Discovery and Inspection dated October 24, 2018 (a copy of the Stipulation is annexed hereto as Exhibit "A"). 8. On November 26, 2018 the undersigned's office received plaintiff's Response to Post-Deposition Notice for Discovery and Inspection (copy annexed hereto as Exhibit "B"). However, the authorization to obtain plaintiff's records for his two prior and one subsequent work related accidents was defective. 9. Accordingly, the undersigned immediately sent plaintiff's counsel a letter 2 of 4 FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018 dated December 3, 2018 (copy annexed hereto as Exhibit "C") detailing our need for new workers' compensation authorizations and reserved our right to designate physical examination(s) of plaintiff until 30 days after the undersigned's office received the correctedworkers' compensation authorizations. 10. On December 19, 2018, the undersigned received an email from plaintiff's counsel with the authorizations enclosed. The undersigned responded to plaintiff's counsel's email noting, "Per my letter dated December 3, 2018, since I received the authorization's today, I will designate plaintiff's IME(s) within 30 days from today (by my thereafter." count that is January 18, 2019) to be held 45 days An employee of plaintiff s fme." counsel responded, "Yep. That is A copy of the December 19, 2018 email exchange is annexed hereto as Exhibit "D". workers' 11. Thereafter, a hard copy of the new compensation authorizations was received on December 26, 2018 (copy annexed hereto as Exhibit "E"). 12. Additionally, should plaintiff s medical records or the independent medical examination reports warrant such, defendant TRAPP has the right to argue plaintiff's injury" objectively documented injuries do not meet the "serious requirements of Section 5102(d) of the Insurance Law of the State of New York in a motion and, if necessary, at the time of trial in front of a jury. 13. Based on the above, should the Court rule that liability is against defendant TRAPP, it is respectfully requested that this Court deny plaintiff's request for an immediate trial on damages and direct the parties to continue and complete any outstanding discovery prior to this matter being set for trial. 3 of 4 FILED: NEW YORK COUNTY CLERK 12/26/2018 04:48 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/26/2018 WHEREFORE, the defendant respectfully submits that plaintiff's cross-motion be denied in its entirety, or at least to the extent itseeks and Order setting this matter down for an immediate trial on damages. Dated: New York, New York December 26, 2018 ABRAMS, GORELICK, FRIEDMAN & JACOBSON, LLP Attorneys for Defendant FREDERICK V. TRAPP By: b Seth (wh Nirenbe One Battery Park Pla th Floor, New York, New York 10004 (212) 422-1200 File No.: 31478 TO: SCHWARTZAPFEL LAWYERS P.C. Attorneys for Plaintiff JOHN H. GUTIERREZ 600 Old Country Road, Suite 450 Garden City, NY 11530 (516) 342-2200 Your File No.: 1801184 MCMAHON, MARTINE, AND GALLAGHER, LLP Attorneys for Defendants GOJART AGOLI and NERTILA GUZE 55 Washington Street, Suite 720 Brooklyn, NY 11201 (212) 747-1230 4 of 4