Preview
FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------_---------------..--------------------------------X
REGINA CAVER, as Administrator of the Estate of Index No.
GIRDINE CAVER a/k/a GIRDINE CAVER
VILLARROEL, Deceased, 521463/2016
Plaintiff,
-against-
REPLY AFFIRMATION
THE NEW YORK METHODIST HOSPIATAL and
HENRY TISCHLER, M.D., et al.,
Defendant.
---------------------------------------------------------------X
CYE E. ROSS, an attorney duly admitted to practice before the Courts of the
State of New York, hereby affirms under penalties of perjury:
1. I am the attorney for Plaintiff in the above-entitled action and as such I am
fully familiar with all of the facts and circumstances set forth herein.
2. I submit this Affirmation (1) in support of the motion by Plaintiff for an
order striking the answer of Defendants pursuant to CPLR 3126 (3) and for other
relief, and (3) in response to opposition papers submitted by Defendants.
"opposition" Defendants'
3. The submitted by law firm does not really
explain why the defendants have been unable to produce the protocols (documents
limited in size and scope) after so long a period of time. Nor does the law firm come
forward with any affirmations, letters, or papers from hospital assistants who are
allegedly searching for the protocols to explain why this simple task has not been
completed (or to put a finer point on it,explaining that the task has even been
undertaken). All we have, at this point, is a vague statement by an associate at
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FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018
Wilson, Elser, that does not even inform the Court of what specific actions she has
undertaken to obtain the documents.
FAILURE TO PROVIDE SPECIFIC PROTOCOLS REQUESTED
4. Since Defendants have failed to with two court Plaintiff has
comply orders,
requested relief under CPLR 3126. Defendants assert that plaintiff has not provided
any authority for the relief requested. As a matter of fact, CPLR 3126 (3) expressly
provides that a party may request an order striking a where there has been
pleading
a failure to comply with orders relating to discovery.
5. In this case, Plaintiff first requested production of the protocols in early
July of 2017. We did not ask for general documents. We specifically requested the
protocols and guidelines relating to fall precautions in effect between March 4, 2014
and March 11, 2014 and additional protocols and documents specifically referred to
in the New York Methodist Hospital records. The documents are directly related to
the most significant issues in the case.
6. There have been two court orders requiring Defendants to produce these
specific documents. The last court order required production two months ago!! If
this is not sufficient according to the defendants, then we would ask how many
court orders would have to flouted before the court would be justified in taking
action against defendants: three, four?
7. Defendants have failed to come forward with a good faith explanation for
this failure. There is no statement that any particular employee has been tasked
with the to find these documents, no statement that any particular paralegal or
duty
employee of Wilson, Elser has written a letter or has even sent an e-mail requesting
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FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018
these documents. When given an to explain
opportunity exactly what has been done
to try and retrieve the documents, defendants have not been forthcoming.
8. In the opposition papers, the for Elser claims that a
attorney Wilson,
partner from the firm was in the hospital in January. the second court
However,
order required production in December. so even ifthere were an illness at a later
time itwould not be relevant or significant.
9. The protocols certainly exist because specific reference to these protocols
appears on the New York Methodist Hospital records for Plaintiff. The refusal to
provide these documents, essential to the case, warrants a provided for in
penalty
CPLR 3126 (3).
DEFENDANTS'
DECISION TO REFUSE TO CONDUCT DEPOSITIONS
WAS IMPROPER
10. Defendants had no right to unilaterally cancel the depositions. Plaintiff
has already shown that a Bill of Particulars containing the alleged negligent acts of
Defendants was served. The Defendants requested that Plaintiff make changes in
the Bill of Particulars, but Plaintiff determined that the Bill of Particulars was
sufficient, and that a Supplemental Bill of Particulars did not have to be filed at this
time (prior to depositions and receipt of important documents from Defendants).
11. After receipt of the notice from Plaintiffs counsel stating that a
Supplemental Billof Particulars was not necessary or required, the attorneys for
Defendants did nothing. did not challenge the Plaintiffs position and did not
They
ask for relief from the Court.
12. The Plaintiff has asked this Court to strike the answer of Defendants, but
ifthe Court declines to provide that relief and gives Defendants yet another
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FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016
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extension of time, then the Court should set a firm date for depositions of all parties,
and provide that the dates cannot be adjourned without the permission of the Court.
Defendants'
Unless that is done the attorneys will always choose delay and always
try to manufacture a reason why depositions should not be held.
WHEREFORE, it isrespectfully requested that the motion be granted.
Dated: New York, New York
February 20, 2018
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FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018
SUPREME COURT OF STATE OF NEW YORK
COUNTY OF KINGS File No.: 521463/2016
REGINA CAVER, as Administrator of the Estate of GIRDINE CAVER a/k/a
GIRDINE CAVER VILLARROEL,
Plaintif f ,
- against -
THE NEW YORK METHODIST HOSPITAL AND HENRY M. D. "Jane/John l'
TISCHLER, , Doe No.
through "John/Jane No. 12"
Doe the last twelve names being fictitious, thei
true names being unknown to plaintiff, the persons intended the doctors,
being
therapists, registered nurses, licensed practical nurses, nurses aides,
employees and other agents of Defendant THE NEW YORK METHODIST HOSPITAL whc
treated or had a toward Plaintif f ' s decedent oi
duty during the period
Plaintiff's decedent's hospitalization therein from March 4, 2014 through Marcl
11, 2014,
Defendants.
REPLY AFFIRMATION
CYE E. ROSS
Attorney at Law
Attomey for PLAINTIFF
Officeand Post Of6ce Address, Telephone
30 Vesey Street
New York,New York 10007
(212)732-0843
TO: Signature (Rule 130-1.1-a)
Dated: ......................, 2018 ........ . . . ........‡... ...............................
CYE E. ROSS
..................................................
Attorney(s) for
PLEASE TAKE NOTICE:
[ ] NOTICE OF ENTRY
that the within isa (certified)true copy of a
entered in the officeof the clerk of the within named court on 2018
duly
[ ] NOTICE OF SETTLEMENT
that an order of which the within isa true copy
presented for settlement to the HON. on of the judges of the within named Court, at
willbe
M.
on 2018 at
Yours, etc.
5 of 5
Preview
FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------_---------------..--------------------------------X REGINA CAVER, as Administrator of the Estate of Index No. GIRDINE CAVER a/k/a GIRDINE CAVER VILLARROEL, Deceased, 521463/2016 Plaintiff, -against- REPLY AFFIRMATION THE NEW YORK METHODIST HOSPIATAL and HENRY TISCHLER, M.D., et al., Defendant. ---------------------------------------------------------------X CYE E. ROSS, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms under penalties of perjury: 1. I am the attorney for Plaintiff in the above-entitled action and as such I am fully familiar with all of the facts and circumstances set forth herein. 2. I submit this Affirmation (1) in support of the motion by Plaintiff for an order striking the answer of Defendants pursuant to CPLR 3126 (3) and for other relief, and (3) in response to opposition papers submitted by Defendants. "opposition" Defendants' 3. The submitted by law firm does not really explain why the defendants have been unable to produce the protocols (documents limited in size and scope) after so long a period of time. Nor does the law firm come forward with any affirmations, letters, or papers from hospital assistants who are allegedly searching for the protocols to explain why this simple task has not been completed (or to put a finer point on it,explaining that the task has even been undertaken). All we have, at this point, is a vague statement by an associate at 1 of 5 FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018 Wilson, Elser, that does not even inform the Court of what specific actions she has undertaken to obtain the documents. FAILURE TO PROVIDE SPECIFIC PROTOCOLS REQUESTED 4. Since Defendants have failed to with two court Plaintiff has comply orders, requested relief under CPLR 3126. Defendants assert that plaintiff has not provided any authority for the relief requested. As a matter of fact, CPLR 3126 (3) expressly provides that a party may request an order striking a where there has been pleading a failure to comply with orders relating to discovery. 5. In this case, Plaintiff first requested production of the protocols in early July of 2017. We did not ask for general documents. We specifically requested the protocols and guidelines relating to fall precautions in effect between March 4, 2014 and March 11, 2014 and additional protocols and documents specifically referred to in the New York Methodist Hospital records. The documents are directly related to the most significant issues in the case. 6. There have been two court orders requiring Defendants to produce these specific documents. The last court order required production two months ago!! If this is not sufficient according to the defendants, then we would ask how many court orders would have to flouted before the court would be justified in taking action against defendants: three, four? 7. Defendants have failed to come forward with a good faith explanation for this failure. There is no statement that any particular employee has been tasked with the to find these documents, no statement that any particular paralegal or duty employee of Wilson, Elser has written a letter or has even sent an e-mail requesting 2 of 5 FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018 these documents. When given an to explain opportunity exactly what has been done to try and retrieve the documents, defendants have not been forthcoming. 8. In the opposition papers, the for Elser claims that a attorney Wilson, partner from the firm was in the hospital in January. the second court However, order required production in December. so even ifthere were an illness at a later time itwould not be relevant or significant. 9. The protocols certainly exist because specific reference to these protocols appears on the New York Methodist Hospital records for Plaintiff. The refusal to provide these documents, essential to the case, warrants a provided for in penalty CPLR 3126 (3). DEFENDANTS' DECISION TO REFUSE TO CONDUCT DEPOSITIONS WAS IMPROPER 10. Defendants had no right to unilaterally cancel the depositions. Plaintiff has already shown that a Bill of Particulars containing the alleged negligent acts of Defendants was served. The Defendants requested that Plaintiff make changes in the Bill of Particulars, but Plaintiff determined that the Bill of Particulars was sufficient, and that a Supplemental Bill of Particulars did not have to be filed at this time (prior to depositions and receipt of important documents from Defendants). 11. After receipt of the notice from Plaintiffs counsel stating that a Supplemental Billof Particulars was not necessary or required, the attorneys for Defendants did nothing. did not challenge the Plaintiffs position and did not They ask for relief from the Court. 12. The Plaintiff has asked this Court to strike the answer of Defendants, but ifthe Court declines to provide that relief and gives Defendants yet another 3 of 5 FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018 extension of time, then the Court should set a firm date for depositions of all parties, and provide that the dates cannot be adjourned without the permission of the Court. Defendants' Unless that is done the attorneys will always choose delay and always try to manufacture a reason why depositions should not be held. WHEREFORE, it isrespectfully requested that the motion be granted. Dated: New York, New York February 20, 2018 4 of 5 FILED: KINGS COUNTY CLERK 02/20/2018 12:05 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/20/2018 SUPREME COURT OF STATE OF NEW YORK COUNTY OF KINGS File No.: 521463/2016 REGINA CAVER, as Administrator of the Estate of GIRDINE CAVER a/k/a GIRDINE CAVER VILLARROEL, Plaintif f , - against - THE NEW YORK METHODIST HOSPITAL AND HENRY M. D. "Jane/John l' TISCHLER, , Doe No. through "John/Jane No. 12" Doe the last twelve names being fictitious, thei true names being unknown to plaintiff, the persons intended the doctors, being therapists, registered nurses, licensed practical nurses, nurses aides, employees and other agents of Defendant THE NEW YORK METHODIST HOSPITAL whc treated or had a toward Plaintif f ' s decedent oi duty during the period Plaintiff's decedent's hospitalization therein from March 4, 2014 through Marcl 11, 2014, Defendants. REPLY AFFIRMATION CYE E. ROSS Attorney at Law Attomey for PLAINTIFF Officeand Post Of6ce Address, Telephone 30 Vesey Street New York,New York 10007 (212)732-0843 TO: Signature (Rule 130-1.1-a) Dated: ......................, 2018 ........ . . . ........‡... ............................... CYE E. ROSS .................................................. Attorney(s) for PLEASE TAKE NOTICE: [ ] NOTICE OF ENTRY that the within isa (certified)true copy of a entered in the officeof the clerk of the within named court on 2018 duly [ ] NOTICE OF SETTLEMENT that an order of which the within isa true copy presented for settlement to the HON. on of the judges of the within named Court, at willbe M. on 2018 at Yours, etc. 5 of 5