On December 23, 2016 a
Letter,Correspondence
was filed
involving a dispute between
Yona Unger,
and
Westchester County Health Care Corporation Westchester Medical Center,
for Special Proceedings - Other (Leave to serve late notic)
in the District Court of Westchester County.
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Alfred P. Vigorito Jason Aaron**
John W. Barker Michael J. Battiste
Gary W. Patterson, Jr.* Daniele DeZago*
Jeffrey R. Nichols Margaret Hilton**
Todd E. Gilbert** Elaine C. Iarocci*
Kevin D. Porter Lauren P. Ingvoldstad†*
Katrine Beck Jared C. La Porta *
Robert Boccio Adonaid Medina*
Gilbert H. Choi Leilani J. Rodriguez*
Kiki Chrisomallides** Victoria Ronemus
Adam S. Covitt Sasha Sagalovich
Eileen R. Fullerton** Janet H. Shin
Jerry Giardina Ruth L. Tisdale
Wayne M. Roth Karolina Wiadernaâ€
Susan A. Scaria Kyle J. Zrenda**
Scott A. Singer *
Mamie Stathatos-Fulgieri *
Susan A. Vari Of Counsel
Gregg D. Weinstock*** Margaret M. Crowley
Roseann V. Driscoll**
* Also Admitted to Practice in NJ Alexander M. Fear
** Also Admitted to Practice in CT Megan A. Lawless‡
*** Also Admitted to Practice in NJ, CT, and DC Frederick W. Vasselman*
‡ Also Admitted to Practice in NJ and PA Joanne Wischerth
†Admission Pending
February 17, 2017
Honorable Joan B. Lefkowitz
Westchester County Supreme Court
111 Martin Luther King Jr. Boulevard
White Plains, New York 10601
RE: Matter of Yona Unger v. Westchester Medical Center, et al.
Index Number: 69528/2016
Your Honor:
This letter is being submitted in support of Westchester Medical Center’s objection to
petitioner’s reply affirmation. As you are aware, this matter concerns petitioner’s motion to file a
Late Notice of Claim. The grounds for the objection are that portions of the reply are improper
and should be rejected by the Court.
In particular, in paragraph 7 of the reply, Ms. Pennisi affirms:
The left psoas muscle connects the spine to the left leg and is one of
the main hip flexors in the body. The femoral nerve develops within
the body of the psoas muscle from the posterior division of L2-L4.
It is well-settled that, in medical malpractice actions, statements that are not matters within
the ordinary experience and knowledge of laymen require expert medical opinion evidence.
Mosberg v. Elahi, 80 N.Y.2d 941 (1992) (citing Fiore v. Galang, 64 N.Y.2d 999, 1001 (1985)).
Ms. Pennisi has given no indication that she is qualified to offer this medical evidence and there
is no foundation for these statements in either of the expert affirmations supplied by petitioner.
115 E. Stevens Avenue • Suite 206 • Valhalla, New York 10595 • Phone: (914) 495-4805 • Fax: (914) 627-0122
300 Garden City Plaza • Suite 308 • Garden City, New York 11530 • Phone: (516) 282-3355 • Fax: (516) 908-4960
420 Lexington Avenue • Suite 219 • New York, New York 10170 • Phone: (929) 955-4500 • Fax: (929) 232-2041
Moreover, the above statements are clearly not within the ordinary experience and
knowledge of laymen. Ms. Pennisi has included these medical statements in furtherance of her
claim that Westchester Medical Center had knowledge of the alleged malpractice. Thus, it is
critical that the Court be made aware of the impropriety of these statements. Petitioner cannot now
provide new, unsubstantiated medical evidence, in an attempt to cure deficiencies in their original
motion papers. Accordingly, the Court should reject this portion of petitioner’s reply. See e.g.,
Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 (1st Dept. 1992) (Court rejected defendant’s reply papers
which contained a medical affidavit designed to cure the conclusory affidavit submitted with its
initial motion).
Additionally, petitioner’s Notice of Claim served on December 23, 2016 is a nullity
because petitioner did not receive leave of court to serve a late notice of claim. See Plaza v. New
York Health & Hosps. Corp., 97 A.D.3d 466, 467 (1st Dept. 2012) (service of a late notice of claim
without leave of court is a nullity).
Based on the foregoing, it is respectfully requested that the Court reject these baseless
statements set forth in petitioner’s reply.
Respectfully submitted,
Leilani Rodriguez, Esq.
Leilani Rodriguez, Esq.
2
Document Filed Date
February 17, 2017
Case Filing Date
December 23, 2016
Category
Special Proceedings - Other (Leave to serve late notic)
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Alfred P. Vigorito Jason Aaron** John W. Barker Michael J. Battiste Gary W. Patterson, Jr.* Daniele DeZago* Jeffrey R. Nichols Margaret Hilton** Todd E. Gilbert** Elaine C. Iarocci* Kevin D. Porter Lauren P. Ingvoldstad†* Katrine Beck Jared C. La Porta * Robert Boccio Adonaid Medina* Gilbert H. Choi Leilani J. Rodriguez* Kiki Chrisomallides** Victoria Ronemus Adam S. Covitt Sasha Sagalovich Eileen R. Fullerton** Janet H. Shin Jerry Giardina Ruth L. Tisdale Wayne M. Roth Karolina Wiaderna†Susan A. Scaria Kyle J. Zrenda** Scott A. Singer * Mamie Stathatos-Fulgieri * Susan A. Vari Of Counsel Gregg D. Weinstock*** Margaret M. Crowley Roseann V. Driscoll** * Also Admitted to Practice in NJ Alexander M. Fear ** Also Admitted to Practice in CT Megan A. Lawless‡ *** Also Admitted to Practice in NJ, CT, and DC Frederick W. Vasselman* ‡ Also Admitted to Practice in NJ and PA Joanne Wischerth †Admission Pending February 17, 2017 Honorable Joan B. Lefkowitz Westchester County Supreme Court 111 Martin Luther King Jr. Boulevard White Plains, New York 10601 RE: Matter of Yona Unger v. Westchester Medical Center, et al. Index Number: 69528/2016 Your Honor: This letter is being submitted in support of Westchester Medical Center’s objection to petitioner’s reply affirmation. As you are aware, this matter concerns petitioner’s motion to file a Late Notice of Claim. The grounds for the objection are that portions of the reply are improper and should be rejected by the Court. In particular, in paragraph 7 of the reply, Ms. Pennisi affirms: The left psoas muscle connects the spine to the left leg and is one of the main hip flexors in the body. The femoral nerve develops within the body of the psoas muscle from the posterior division of L2-L4. It is well-settled that, in medical malpractice actions, statements that are not matters within the ordinary experience and knowledge of laymen require expert medical opinion evidence. Mosberg v. Elahi, 80 N.Y.2d 941 (1992) (citing Fiore v. Galang, 64 N.Y.2d 999, 1001 (1985)). Ms. Pennisi has given no indication that she is qualified to offer this medical evidence and there is no foundation for these statements in either of the expert affirmations supplied by petitioner. 115 E. Stevens Avenue • Suite 206 • Valhalla, New York 10595 • Phone: (914) 495-4805 • Fax: (914) 627-0122 300 Garden City Plaza • Suite 308 • Garden City, New York 11530 • Phone: (516) 282-3355 • Fax: (516) 908-4960 420 Lexington Avenue • Suite 219 • New York, New York 10170 • Phone: (929) 955-4500 • Fax: (929) 232-2041 Moreover, the above statements are clearly not within the ordinary experience and knowledge of laymen. Ms. Pennisi has included these medical statements in furtherance of her claim that Westchester Medical Center had knowledge of the alleged malpractice. Thus, it is critical that the Court be made aware of the impropriety of these statements. Petitioner cannot now provide new, unsubstantiated medical evidence, in an attempt to cure deficiencies in their original motion papers. Accordingly, the Court should reject this portion of petitioner’s reply. See e.g., Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 (1st Dept. 1992) (Court rejected defendant’s reply papers which contained a medical affidavit designed to cure the conclusory affidavit submitted with its initial motion). Additionally, petitioner’s Notice of Claim served on December 23, 2016 is a nullity because petitioner did not receive leave of court to serve a late notice of claim. See Plaza v. New York Health & Hosps. Corp., 97 A.D.3d 466, 467 (1st Dept. 2012) (service of a late notice of claim without leave of court is a nullity). Based on the foregoing, it is respectfully requested that the Court reject these baseless statements set forth in petitioner’s reply. Respectfully submitted, Leilani Rodriguez, Esq. Leilani Rodriguez, Esq. 2