Preview
FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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REGINA CAVER, as Administrator of the Estate of
GIRDINE CAVER a/k/a GIRDINE CAVER
VILLARROEL, Deceased,
Plaintiff,
Index # 521463/2016
-against-
AFFIRMATION IN
THE NEW YORK METHODIST HOSPITAL AND SUPPORT OF MOTION
1"
HENRY TISCHLER, M.D., "Jane/John Doe No.
12"
through "John/Jane Doe No. the last twelve names
being fictitious, their true names being unknown to
plaintiff, the persons intended being the doctors, therapists,
registered nurses, licensed practical nurses, nurses aides,
employees and other agents of Defendant THE NEW
YORK METHODIST HOSPITAL who treated or had a
duty toward Plaintiff's decedent during the period of
Plaintiff's decedent's hospitalization therein from March 4,
2014 through March 11, 2014·,
Defendants.
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Miller K. Blalock, an attorney duly admitted before the courts of the State of New York,
hereby affirms, under penalties of perjury, the following:
1. I am an associate at WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER
LLP, attorneys of record for Defendants NEW YORK-PRESBYTERIAN/BROOKLYN
METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL and HENRY
TISCHLER, M.D., ("Defendants") in the above-referenced matter, and as such, I am familiar with
the facts and circumstances surrounding this action. ,
2. This Affirmation is submitted in support of a motion seeking an order for the
following relief:
(d) Pursuant to 22 N.Y.C.R.R. 202.21(e), vacating Plaintiff's Note of
Issue and Certificate of Readiness and striking this action from the
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trial calendar on the grounds that there remains outstanding
discovery to be completed prior to and in preparation for trial;
Defendants'
(e) Pursuant to CPLR § 3212(a) extending time to move
for summary judgment until 120 days from the completion of all
discovery; and
(f) For such other and further relief as this Court deems just and proper.
PROCEDURAL HISTORY
3. This action sounding in medical malpractice was commenced on behalf of Plaintiff
REGINA CAVER, as Administrator of the Estate of GIRDINE CAVER a/k/a GIRDINE CAVER
VILLARROEL by the filing of a Summons and Complaint on or about December 2, 2016. A copy
of the Summons and Verified Complaint is annexed hereto as Exhibit "A".
4. Issue was joined by service of an Answer on or about April 19, 2017. A copy of
Defendants'
Verified Answer is annexed hereto as Exhibit "B".
5. On September 8, 2017, all parties appeared for a preliminary conference. A copy
of the preliminary conference Order is annexed hereto as Exhibit "C". Pursuant to that order, the
Note of Issue was to be filed by August 15, 2018.
6. Plaintiff's deposition was held on April 13, 2018.
7. All parties appeared before the Court on April 16, 2018, for a compliance
conference. A copy of the compliance conference Order is annexed hereto as Exhibit "D".
Pursuant to that Order, the Note of Issue was to be filed on or before November 13, 2018.
8. Plaintiff designated Barbara Kosiorowska, RN, as a witness to be deposed on behalf
of Defendant NEW YORK-PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a
THE NEW YORK METHODIST HOSPITAL. The deposition of Nurse Kosiorowska was held
on July 16, 2018.
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9. On September 17, 2018, Lamarcia Parkin, BSN, MSN, was also deposed on behalf
of Defendant NEW YORK-PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a
THE NEW YORK METHODIST HOSPITAL.
10. Plaintiff subsequently identified two individuals, Ms. Carolyn Friedman and Nurse
Lydia Myrovitch, as additional witnesses to be deposed on behalf of Defendant NEW YORK-
PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK
METHODIST HOSPITAL.
11. A final pre-Note of Issue conference was held on November 8, 2018. On that date,
an Order was entered outlining the outstanding paper discovery and delineating a schedule for the
Defendant depositions. A of the final pre- Note of Issue conference Order is
remaining copy
annexed hereto as Exhibit "E".
8th
12. Pursuant to the November Order, the depositions of designated witnesses
Carolyn Friedman and Nurse Lydia Myrovitch are to be held on or before January 30, 2019. The
deposition of Defendant HENRY TISCHLER, M.D, is to be held on or before February 28, 2019.
At present, all discovery and depositions outlined in the final pre-note order continue to remain
outstanding.
13. On November 13, 2018, Plaintiff filed the Note of Issue. Accordingly, the instant
Motion is timely. A copy of the Note of Issue with Certificate of Readiness is annexed hereto as
Exhibit "F".
14. No application for the requested relief has previously been sought.
LEGAL ARGUMENT
I. The Note Of Issue And Certificate Of Readiness Should Be Vacated And The Matter
Stricken From The Trial Calendar As Significant Discovery Remains Outstanding
And The Matter Is Not Ready For Trial
15. 22 NYCRR § 202.21(e) provides, in relevant part:
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. .. [A]ny party to the action or special proceeding may move to vacate the
note of issue, upon affidavit showing in what respects the case is not ready
for trial....(Emphasis supplied).
16. Accordingly, a motion to strike Plaintiff's Note of Issue and Certificate of
Readiness should be granted when material and necessary discovery has not been completed.
Savino v. Lewittes, 160 A.D.2d 176 (1st Dep't 1990); Barnett v. DeMian, 207 A.D.2d 693(1st
Dep't 1994); Friedman & Kaplan v. Hoffman, 166 A.D.2d 188 (1st Dep't 1990).
17. As is evidenced by the Order dated November 8, 2018, allnecessary discovery has
not been completed. Critical discovery remains outstanding, including the depositions of two
witnesses designated to be deposed on behalf of Defendant NEW YORK-
PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK
METHODIST HOSPITAL and named Defendant HENRY TISCHLER, M.D.
18. Based on the foregoing, it is clear that vital discovery and disclosure remains
outstanding in this matter. The outstanding discovery is potentially relevant to liability and
Defendants'
damages issues. Without such discovery, the ability to adequately evaluate Plaintiff's
claims, prepare a defense, and proceed to trial will be impaired. The outstanding discovery
enumerated above is relevant, material, and necessary to the defense of this action. As such, it
would be prejudicial to the defense of this action if this Court were to deem discovery complete
and to mark this matter trial ready.
19. Therefore, it isrespectfully submitted that Plaintiff's Note of Issue and Certificate
of Readiness should be vacated and a new Note of Issue date should be assigned.
Defendants'
H. Time To File A Motion For Summary Judgment Should Be Extended To
One Hundred Twenty Days Following Completion Of Discovery
20. Given the amount of outstanding discovery in this matter, it is respectfully
Defendants'
requested that time to move for summary judgment be extended until one hundred
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twenty (120) days after the completion of discovery to avoid further prejudice to Defendants. As
discussed above, critical discovery remains outstanding. In addition to preparing a defense for
Defendants'
purposes oftrial, such discovery is pertinent to the ability to assess the appropriateness
of a motion for summary judgment, and to successfully move for same.
CONCLUSION
21. Because substantial discovery remains outstanding, this case is not yet ready for
trial.For this reason, itis respectfully requested that this Court issue an Order vacating Plaintiff's
Note of Issue and Certificate of Readiness, removing the case from the Court's trialcalendar, and
Defendants'
extending time to move for summary judgment to 120 days after completion of all
discovery.
WHEREFORE, Defendants respectfully request that the Court grant this motion in its
entirety and for such other and further relief as this Court may deem just and proper.
Dated: New York, New York
December 3, 2018
Yours, etc.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
By:
Miller . Blalock, Esq.
Attorneys for Defendants
NEW YORK-PRESBYTERIAN/BROOKLYN
METHODIST HOSPITAL s/h/a THE NEW YORK
METHODIST HOSPITAL and HENRY TISCHLER, M.D.
150 East 42nd Street
New York, New York 10007
(212) 490-3000
File No. 25110.00141
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TO: CYE E. ROSS
Attorney for Plaintiff
30 Vesey Street, Suite 1800
New York, NY 10007
(212) 732-0843
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Preview
FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X REGINA CAVER, as Administrator of the Estate of GIRDINE CAVER a/k/a GIRDINE CAVER VILLARROEL, Deceased, Plaintiff, Index # 521463/2016 -against- AFFIRMATION IN THE NEW YORK METHODIST HOSPITAL AND SUPPORT OF MOTION 1" HENRY TISCHLER, M.D., "Jane/John Doe No. 12" through "John/Jane Doe No. the last twelve names being fictitious, their true names being unknown to plaintiff, the persons intended being the doctors, therapists, registered nurses, licensed practical nurses, nurses aides, employees and other agents of Defendant THE NEW YORK METHODIST HOSPITAL who treated or had a duty toward Plaintiff's decedent during the period of Plaintiff's decedent's hospitalization therein from March 4, 2014 through March 11, 2014·, Defendants. -------------------------------------------------------------------X Miller K. Blalock, an attorney duly admitted before the courts of the State of New York, hereby affirms, under penalties of perjury, the following: 1. I am an associate at WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, attorneys of record for Defendants NEW YORK-PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL and HENRY TISCHLER, M.D., ("Defendants") in the above-referenced matter, and as such, I am familiar with the facts and circumstances surrounding this action. , 2. This Affirmation is submitted in support of a motion seeking an order for the following relief: (d) Pursuant to 22 N.Y.C.R.R. 202.21(e), vacating Plaintiff's Note of Issue and Certificate of Readiness and striking this action from the 9461496v.1 1 of 6 FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018 trial calendar on the grounds that there remains outstanding discovery to be completed prior to and in preparation for trial; Defendants' (e) Pursuant to CPLR § 3212(a) extending time to move for summary judgment until 120 days from the completion of all discovery; and (f) For such other and further relief as this Court deems just and proper. PROCEDURAL HISTORY 3. This action sounding in medical malpractice was commenced on behalf of Plaintiff REGINA CAVER, as Administrator of the Estate of GIRDINE CAVER a/k/a GIRDINE CAVER VILLARROEL by the filing of a Summons and Complaint on or about December 2, 2016. A copy of the Summons and Verified Complaint is annexed hereto as Exhibit "A". 4. Issue was joined by service of an Answer on or about April 19, 2017. A copy of Defendants' Verified Answer is annexed hereto as Exhibit "B". 5. On September 8, 2017, all parties appeared for a preliminary conference. A copy of the preliminary conference Order is annexed hereto as Exhibit "C". Pursuant to that order, the Note of Issue was to be filed by August 15, 2018. 6. Plaintiff's deposition was held on April 13, 2018. 7. All parties appeared before the Court on April 16, 2018, for a compliance conference. A copy of the compliance conference Order is annexed hereto as Exhibit "D". Pursuant to that Order, the Note of Issue was to be filed on or before November 13, 2018. 8. Plaintiff designated Barbara Kosiorowska, RN, as a witness to be deposed on behalf of Defendant NEW YORK-PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL. The deposition of Nurse Kosiorowska was held on July 16, 2018. 9461496v.1 2 of 6 FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018 9. On September 17, 2018, Lamarcia Parkin, BSN, MSN, was also deposed on behalf of Defendant NEW YORK-PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL. 10. Plaintiff subsequently identified two individuals, Ms. Carolyn Friedman and Nurse Lydia Myrovitch, as additional witnesses to be deposed on behalf of Defendant NEW YORK- PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL. 11. A final pre-Note of Issue conference was held on November 8, 2018. On that date, an Order was entered outlining the outstanding paper discovery and delineating a schedule for the Defendant depositions. A of the final pre- Note of Issue conference Order is remaining copy annexed hereto as Exhibit "E". 8th 12. Pursuant to the November Order, the depositions of designated witnesses Carolyn Friedman and Nurse Lydia Myrovitch are to be held on or before January 30, 2019. The deposition of Defendant HENRY TISCHLER, M.D, is to be held on or before February 28, 2019. At present, all discovery and depositions outlined in the final pre-note order continue to remain outstanding. 13. On November 13, 2018, Plaintiff filed the Note of Issue. Accordingly, the instant Motion is timely. A copy of the Note of Issue with Certificate of Readiness is annexed hereto as Exhibit "F". 14. No application for the requested relief has previously been sought. LEGAL ARGUMENT I. The Note Of Issue And Certificate Of Readiness Should Be Vacated And The Matter Stricken From The Trial Calendar As Significant Discovery Remains Outstanding And The Matter Is Not Ready For Trial 15. 22 NYCRR § 202.21(e) provides, in relevant part: 9461496v.1 3 of 6 FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018 . .. [A]ny party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial....(Emphasis supplied). 16. Accordingly, a motion to strike Plaintiff's Note of Issue and Certificate of Readiness should be granted when material and necessary discovery has not been completed. Savino v. Lewittes, 160 A.D.2d 176 (1st Dep't 1990); Barnett v. DeMian, 207 A.D.2d 693(1st Dep't 1994); Friedman & Kaplan v. Hoffman, 166 A.D.2d 188 (1st Dep't 1990). 17. As is evidenced by the Order dated November 8, 2018, allnecessary discovery has not been completed. Critical discovery remains outstanding, including the depositions of two witnesses designated to be deposed on behalf of Defendant NEW YORK- PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL and named Defendant HENRY TISCHLER, M.D. 18. Based on the foregoing, it is clear that vital discovery and disclosure remains outstanding in this matter. The outstanding discovery is potentially relevant to liability and Defendants' damages issues. Without such discovery, the ability to adequately evaluate Plaintiff's claims, prepare a defense, and proceed to trial will be impaired. The outstanding discovery enumerated above is relevant, material, and necessary to the defense of this action. As such, it would be prejudicial to the defense of this action if this Court were to deem discovery complete and to mark this matter trial ready. 19. Therefore, it isrespectfully submitted that Plaintiff's Note of Issue and Certificate of Readiness should be vacated and a new Note of Issue date should be assigned. Defendants' H. Time To File A Motion For Summary Judgment Should Be Extended To One Hundred Twenty Days Following Completion Of Discovery 20. Given the amount of outstanding discovery in this matter, it is respectfully Defendants' requested that time to move for summary judgment be extended until one hundred 9461496v.1 4 of 6 FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018 twenty (120) days after the completion of discovery to avoid further prejudice to Defendants. As discussed above, critical discovery remains outstanding. In addition to preparing a defense for Defendants' purposes oftrial, such discovery is pertinent to the ability to assess the appropriateness of a motion for summary judgment, and to successfully move for same. CONCLUSION 21. Because substantial discovery remains outstanding, this case is not yet ready for trial.For this reason, itis respectfully requested that this Court issue an Order vacating Plaintiff's Note of Issue and Certificate of Readiness, removing the case from the Court's trialcalendar, and Defendants' extending time to move for summary judgment to 120 days after completion of all discovery. WHEREFORE, Defendants respectfully request that the Court grant this motion in its entirety and for such other and further relief as this Court may deem just and proper. Dated: New York, New York December 3, 2018 Yours, etc. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Miller . Blalock, Esq. Attorneys for Defendants NEW YORK-PRESBYTERIAN/BROOKLYN METHODIST HOSPITAL s/h/a THE NEW YORK METHODIST HOSPITAL and HENRY TISCHLER, M.D. 150 East 42nd Street New York, New York 10007 (212) 490-3000 File No. 25110.00141 9461496v.1 5 of 6 FILED: KINGS COUNTY CLERK 12/03/2018 01:26 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2018 TO: CYE E. ROSS Attorney for Plaintiff 30 Vesey Street, Suite 1800 New York, NY 10007 (212) 732-0843 9461496v.1 6 of 6