Preview
FILED: KINGS COUNTY CLERK 12/27/2018 05:02 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
REGINA CAVER, as Administrator of the Estate of Index No. 521463/2016
GIRDINE CAVER a/k/a GIRDINE CAVER VILLARROEL,
Deceased,
Plaintiff,
against
THE NEW YORK METHODIST HOSPITAL AND HENRY
1"
TISCHLER, M.D., "Jane/John Doe No. through
12"
"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
Plaintiffs decedent during the period of Plaintiffs
decedent's hospitalization therein from March 4, 2014
through March 11, 2014,
Defendants· AFFIRMATION IN OPPOSITION
CYE E. ROSS, ESQ., an attorney duly admitted to practice before the Courts of
the State of New York, hereby states upon penalties of perjury:
1. I am the attorney for Plaintiff in this action, and as such I am fully
familiar with all of the facts and circumstances setforth herein.
2. I submit this Affirmation in opposition to the request made by
attorneys for Defendants New York Methodist Hospital and Henry Tischler, M.D. to
vacate the Note of Issue and strike this case from the trial calendar and, in the
alternative to extend the time for Defendants to file a motion for summary judgment.
3. As a preliminary matter, itshould be noted that the attorneys
for Defendants have engaged in consistent delaying tactics designed to thwart
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Plaintiff's ability to conduct discovery. It took three compliance conferences before
Defendant was willing to produce any witnesses for examinations before trial.
4. A final compliance conference was scheduled by the Court for
Order"
November 8, 2018, and on that date a "Final Pre-Note was issued by the Court.
(See Exhibit A). On the very top of the order itstates that "Plaintiff must filea Note of
11/13/18."
Issue on or before To make matters clear, the Court gave Plaintiff only
five days to file a Note of Issue. Plaintiff complied with the Order of the Court and
filed a Note of Issue. Plaintiff also complied with the terms of the Order by filing a
Supplemental Bill of Particulars. (The Supplemental Bill of Particulars served by
Plaintiff is annexed hereto as Exhibit B).
5. To penalize Plaintiff, by now vacating the Note of Issue, would
contradict common sense, since Plaintiff was ordered to file a Note of Issue even
though there was some discovery not completed.
6. Attorneys for both Plaintiff and Defendants signed the order at
the bottom of the page. The Defendants never filed a Notice of Appeal with respect to
this Order. As a result, any right to complain about provisions contained in the order
or to object about the requirement that Plaintiff file a Note of Issue has now expired.
DEFENDANTS DO NOT HAVE GOOD CAUSE TO REQUEST AN EXTENTION
OF TIME TO FILE A SUMMARYJUDGMENT MOTION
7. The attorneys for Defendants have requested that the time to
move for summary judgment be extended to 120 days after the filing of the Note of
Issue. Under the rules, the time limit can only be extended if Defendants come
cause."
forward with "good
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8. Defendants have failed to come close to meeting this
requirement. The Plaintiff has complied with all requirements under the Final Pre-
Note Order. It is the defendants who have failed to produce crucial witnesses to be
deposed and have needlessly delayed discovery.
9. The Defendants produced nurse Barbara Kosiorowska for
deposition on July 16, 2018 after months of delay. They produced LaMarcia Parkin
on September 17, 2018 to testify about the record keeping process and the protocols
issued by the defendant hospital (because the attorneys for Defendants advised us
that she was the one with knowledge about the record keeping process). However,
this was just a delaying tactic because Ms. Parkin explained at the deposition that she
had no knowledge about the particular protocols maintained by the hospital and that
the actual person with knowledge was Carolyn Friedman (See deposition transcript
pgs. 20-23 Exhibit C).
10. For the past four months we have been trying to schedule a
deposition of Carolyn Friedman and also nurse Lydia Myrovitch, but the attorneys for
Defendants have ignored our requests. On October 17, 2018 Notice to Take the
Deposition of those individuals was e-filed (see Exhibit D). We made subsequent
telephone requests to determine if the dates for depositions were available, but we
received no response.
11. The Final Pre-Note order provides that depositions of Carolyn
Friedman and Lydia Myrovitch must be completed by the end of January, 2019. We
have been trying to arrange specific dates for these depositions since early November.
Steven Sarshik, Esq., who is acting as Of Counsel for my office in this matter, made a
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number of telephone calls to attorney Miller Blalock, Esq. of Wilson, Elser to request
specific dates. Ms. Blalock was unable to provide any specific dates.
12. On December 17, 2018 I wrote a letter to Ms. Blalock stating that
the law firm of Wilson, Elser was not cooperating with us because it was not providing
dates for depositions. (See Exhibit E). Despite numerous telephone conversations
we still could not obtain any dates from the attorneys for Defendants.
13. As can be seen, any delays with respect to the taking of
Defendants'
depositions are delays with respect to witnesses and are clearly the fault
of the Defendants. The Defendants have all the available information they need to
make a motion for judgment - should wish to make a motion for
summary they
summary judgment. As a result, no good cause has been shown to extend any time
limits.
14. The motion by Defendants should be denied.
Dated: New York, New York
December 27, 2018
CYE E. SS
L:\Accidents\CAVER, GIRDINE\AFFIRMATION IN OPPOSITION.12.26.18.docx
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FILED: KINGS COUNTY CLERK 12/27/2018 05:02 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS REGINA CAVER, as Administrator of the Estate of Index No. 521463/2016 GIRDINE CAVER a/k/a GIRDINE CAVER VILLARROEL, Deceased, Plaintiff, against THE NEW YORK METHODIST HOSPITAL AND HENRY 1" TISCHLER, M.D., "Jane/John Doe No. through 12" "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 Plaintiffs decedent during the period of Plaintiffs decedent's hospitalization therein from March 4, 2014 through March 11, 2014, Defendants· AFFIRMATION IN OPPOSITION CYE E. ROSS, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby states upon penalties of perjury: 1. I am the attorney for Plaintiff in this action, and as such I am fully familiar with all of the facts and circumstances setforth herein. 2. I submit this Affirmation in opposition to the request made by attorneys for Defendants New York Methodist Hospital and Henry Tischler, M.D. to vacate the Note of Issue and strike this case from the trial calendar and, in the alternative to extend the time for Defendants to file a motion for summary judgment. 3. As a preliminary matter, itshould be noted that the attorneys for Defendants have engaged in consistent delaying tactics designed to thwart 1 of 4 FILED: KINGS COUNTY CLERK 12/27/2018 05:02 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/27/2018 Plaintiff's ability to conduct discovery. It took three compliance conferences before Defendant was willing to produce any witnesses for examinations before trial. 4. A final compliance conference was scheduled by the Court for Order" November 8, 2018, and on that date a "Final Pre-Note was issued by the Court. (See Exhibit A). On the very top of the order itstates that "Plaintiff must filea Note of 11/13/18." Issue on or before To make matters clear, the Court gave Plaintiff only five days to file a Note of Issue. Plaintiff complied with the Order of the Court and filed a Note of Issue. Plaintiff also complied with the terms of the Order by filing a Supplemental Bill of Particulars. (The Supplemental Bill of Particulars served by Plaintiff is annexed hereto as Exhibit B). 5. To penalize Plaintiff, by now vacating the Note of Issue, would contradict common sense, since Plaintiff was ordered to file a Note of Issue even though there was some discovery not completed. 6. Attorneys for both Plaintiff and Defendants signed the order at the bottom of the page. The Defendants never filed a Notice of Appeal with respect to this Order. As a result, any right to complain about provisions contained in the order or to object about the requirement that Plaintiff file a Note of Issue has now expired. DEFENDANTS DO NOT HAVE GOOD CAUSE TO REQUEST AN EXTENTION OF TIME TO FILE A SUMMARYJUDGMENT MOTION 7. The attorneys for Defendants have requested that the time to move for summary judgment be extended to 120 days after the filing of the Note of Issue. Under the rules, the time limit can only be extended if Defendants come cause." forward with "good 2 2 of 4 FILED: KINGS COUNTY CLERK 12/27/2018 05:02 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/27/2018 8. Defendants have failed to come close to meeting this requirement. The Plaintiff has complied with all requirements under the Final Pre- Note Order. It is the defendants who have failed to produce crucial witnesses to be deposed and have needlessly delayed discovery. 9. The Defendants produced nurse Barbara Kosiorowska for deposition on July 16, 2018 after months of delay. They produced LaMarcia Parkin on September 17, 2018 to testify about the record keeping process and the protocols issued by the defendant hospital (because the attorneys for Defendants advised us that she was the one with knowledge about the record keeping process). However, this was just a delaying tactic because Ms. Parkin explained at the deposition that she had no knowledge about the particular protocols maintained by the hospital and that the actual person with knowledge was Carolyn Friedman (See deposition transcript pgs. 20-23 Exhibit C). 10. For the past four months we have been trying to schedule a deposition of Carolyn Friedman and also nurse Lydia Myrovitch, but the attorneys for Defendants have ignored our requests. On October 17, 2018 Notice to Take the Deposition of those individuals was e-filed (see Exhibit D). We made subsequent telephone requests to determine if the dates for depositions were available, but we received no response. 11. The Final Pre-Note order provides that depositions of Carolyn Friedman and Lydia Myrovitch must be completed by the end of January, 2019. We have been trying to arrange specific dates for these depositions since early November. Steven Sarshik, Esq., who is acting as Of Counsel for my office in this matter, made a 3 3 of 4 FILED: KINGS COUNTY CLERK 12/27/2018 05:02 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 12/27/2018 number of telephone calls to attorney Miller Blalock, Esq. of Wilson, Elser to request specific dates. Ms. Blalock was unable to provide any specific dates. 12. On December 17, 2018 I wrote a letter to Ms. Blalock stating that the law firm of Wilson, Elser was not cooperating with us because it was not providing dates for depositions. (See Exhibit E). Despite numerous telephone conversations we still could not obtain any dates from the attorneys for Defendants. 13. As can be seen, any delays with respect to the taking of Defendants' depositions are delays with respect to witnesses and are clearly the fault of the Defendants. The Defendants have all the available information they need to make a motion for judgment - should wish to make a motion for summary they summary judgment. As a result, no good cause has been shown to extend any time limits. 14. The motion by Defendants should be denied. Dated: New York, New York December 27, 2018 CYE E. SS L:\Accidents\CAVER, GIRDINE\AFFIRMATION IN OPPOSITION.12.26.18.docx 4 4 of 4