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FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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xxxxxx xxxxxxxx, on behalf of xxxxx
xxxxxxxx, an infant under the age of 18, and Index No. 26910/2012
xxxxxx xxxxxxxx, Individually,
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
RONALD J. TADDEO, M.D., RICHARD PITCH,
M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC
CENTER, FAMILY PSYCHOLOGY OF LONG
ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN
PHARMACEUTICALS, INC. and ZYDUS
PHARMACEUTICALS (USA), INC.,
Defendant.
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2. xxxxxx xxxxxxx, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury:
3. I am a partner with NAPOLI SHKOLNIK, PLLC, attorneys for the plaintiff, and
based on my review of the file I am familiar with the facts and circumstances of this matter.
4. I make this affirmation in Support of Plaintiff’s Order to Show Cause seeking an
Order:
a. Permitting Plaintiff’s Expert to Testify Remotely by Live Video at the Trial of
this Matter; or
b. In the alternative, allowing plaintiff’s expert to sit for video testimony outside of
trial and then presented to the jury during trial as a preservation deposition; or
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c. In the alternative, adjourning this trial to a date when plaintiff’s expert can travel
to New York to give in-person testimony;
d. For such other and further relief as this Court deems just and proper under
the circumstances.
5. In accordance with CPLR 2217(B), no application for this relief has been
previously made.
PRELIMINARY STATEMENT
6. This is a medical malpractice action for the negligent prescription of the
medication Topamax (topiramate) to xxxxxx xxxxxxxx by Defendant RONALD TADDEO, M.D.,
and SHORE PSYCHIATRIC CENTER prior to and during xxxxxx xxxxxxxx’s pregnancy.
Topamax is a dangerous and contraindicated medication to pregnant women with dangerous side
effects.
7. Plaintiff claims that defendants deviated from good and accepted medical practice
when prescribing this medication; by prescription of a contraindicated and dangerous
medication; by failing to warn the Plaintiff of the risks or counsel Plaintiff on alternatives, by
failing to order the appropriate tests, and by failing to appreciate the significance of the effects
of these medications, among other claims, which ultimately causing Plaintiff’s son to be born
with a cleft lip and palate, and suffer additional significant pain and suffering.
8. Plaintiff’s intends to call at trial Dr. Russell Reid, a maxillofacial surgeon, who is
expected to testify as to causation and damages, including how a cleft lip and palate develops in
utero, how it is causally linked with exposure to teratogenic medications taken by the mother
during pregnancy; and the injuries and surgical and medical treatment the infant plaintiff has
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undergone and will undergo into the future.
9. Significantly, counsel for defendants consents to the use of live video testimony
at this trial.
PROCEDURAL HISTORY
10. This action was commenced on June 30, 2012 in Suffolk County Supreme Court
through the filing of a Summons and Complaint (A copy of which is annexed hereto at Exhibit
A).
11. Thereafter, issue was joined by the service of Defendants' Answer on or about
November 9, 2012 (A copy of Defendants' Answer is annexed hereto at Exhibit "B").
12. Plaintiff exchanged a Verified Bill of Particulars on or about December 12,
2013. Plaintiff served a Supplemental Bill of Particulars on or about August 15, 2022. (A copy
of both are annexed hereto at Exhibit "C”).
13. Plaintiff’ exchanged her expert Russell Reid, M.D., Ph.D, pursuant to CPLR
3101(d) on July 18, 2022. A copy of the expert exchange is annexed hereto at Exhibit D.
14. On March 15, 2015 during the CCP Ready Day Conference, jury selection was
set for May 22, 2023, with a trial date scheduled for May 30, 2023.
15. Plaintiff’s expert is a practicing craniomaxillofacial surgeon based in Chicago,
Illinois. After the trial date was set, Plaintiff learned that Dr. Reid would no longer be available
to testify in person due to his surgery schedule; but that he would be able to testify on June 1st
via remote video conferencing.
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16. Your affirmant conferred with Anina Monte, counsel for Defendants to discuss
this issue when it arose. Counsel agreed, that rather than adjourn the trial of this matter, that
remote testimony would be acceptable, pending approval of the as-then-unknown trial judge.
17. Jury selection was held on May 22-23 and your Honor was assigned the trial of
this matter at its conclusion. Upon that time, plaintiff learned of your Honor’s rules requiring
in-person testimony, which necessitated the within application.
ARGUMENT
THIS COURT SHOULD PERMIT PLAINTIFF’S EXPERT TO TESTIFY VIA LIVE
VIDEO CONFERENCE AT TRIAL
18. This court has the authority to allow for the witness to testify via live video conference
at trial. The Judiciary Law authorizes courts in New York, at their discretion, “to devise and
make new process and forms of proceedings, necessary to carry into effect the powers and
jurisdiction possessed by it.” N.Y. Judiciary Law § 2-b (3) (McKinney). The Guide to New York
Evidence notes that “[i]n the exercise of the court’s responsibility to supervise and oversee the
conduct of a hearing or trial, the mode and order of presenting evidence and examining witnesses
is committed to the sound discretion of the court.” Guide to New York Evidence § 1.07(1).1
19. A plaintiff or a witness may testify at trial via video. Gabriel v. Johnson's L.P.
Gas Service, Inc., 98 AD3d 168, 179 (4th Dept. 2012) (“to deprive plaintiffs of the opportunity
to testify at trial via video would be tantamount to depriving them of their day in court”);
American Bank Note Corp. v. Daniele, 81 AD3d 500, 501 (1st Dept. 2011) (“[t]he decision to
allow a party or witness to testify via video conference link is left to a trial court's discretion”);
Superior Sales & Salvage, Inc. v. Time Release Sciences, Inc., 227 A.D.2d 987, 987 (4th Dept.
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1996) (the court allowed for testimony by speakerphone); Claim of Hoffman, 138 A.D.2d 785,
786 (3rd Dept. 1988) (the court held that the testimony over the telephone did not deprive the
claimant of its due process rights).
20. In a case of first impression, a trial court has allowed for a woman in poor physical
condition living in Florida to testify via telephone conference at trial. Ferrante by Ferrante v.
Ferrante, 127 Misc. 2d 352, 353 (Sup. Ct. Queens. County. 1985). The Court added that
procedure for conducting the telephone inquest was practical and effective. Id.
21. In the context of the ongoing COVID-19 pandemic, New York courts have
recognized that remote hearings are “safe … feasible, fair, and preferable to further postponing
trial.” See Ciccone v. One W. 64th St., Inc., 2020 WL 5362065, at *4 (N.Y. Sup. Ct. Sept. 4,
2020) (ordering remote hearing in civil matter over objections from one party), citing A.S. v.
N.S., 68 Misc. 3d 767 (N.Y. Sup. Ct. 2020); Bonilla v. State, 2021 WL 318406, at *2 (N.Y. Ct.
Cl. Jan. 22, 2021) (collecting cases, and observing that “[g]iven the authority the Court to adopt
remote procedures under section 2-b, and the extraordinary equities weighing in favor of the use
of such procedures to address our current predicament, all courts confronted with the question
during the past year have found it both permissible and advisable to compel a party to participate
in virtual proceedings.”).
22. The Court of Appeals have held that said that the Courts have the authority to use
improvised substitute for in-person testimony pursuant to Judiciary Law § 2-b (3) when
“necessary to carry into effect the powers… possessed by the court”. People v. Wrotten, 14 NY3d
33 (2009). Courts have been following Wrotten and have allowed live testimony through Skype.
People v. Novak, 41 Misc. 3d 733, 736 (Crim. Ct. Sullivan County 2013). The court in Novak
adds that Skype communication is reliable and accurate. Id.
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23. The Second Department has held that directing the out-of-state depositions to be
conducted by videoconferencing was proper (Provident Life and Cas. Ins. Co. v. Brittenham,
283 AD2d 629, 630 [2d Dept 2001]). “An exception to [CPLR 3110 (1), which states that
depositions should take place within the county the action is pending,] is where a party
demonstrates that examination in that county would cause ‘undue hardship”’ (LaRusso v
Brookstone, Inc., 52 AD3d 576, 577 [2d Dept 2008]). CPLR 3103 [a] gives Courts great
discretion: “the court may issue a protective order at any time on its own initiative” (Hoffman v
Kraus, 260 AD2d 435, 437 [2d Dept 1999] [internal citations omitted]). “[W]hile the CPLR does
not specifically provide for court-ordered video conferencing of depositions, case law does”
(Matter of Herman, 924 NYS2d 309, 309 [Sup Ct, Nassau County 2011]). “[T]he court may
exercise its discretion to order that the deposition be conducted by electronic means
notwithstanding that one of the parties refuses to so stipulate” (Matter of Singh, 22 Misc3d 288,
290 [Sup Ct, Bronx County 2008] [citations omitted] [emphasis added]).
24. Suffolk County Supreme Court has ordered that depositions be held remotely due
to the convenience and financial hardship of the defendant and stating that “video conferencing
is a method being utilized by both Courts and other tribunals as a viable method in lieu of
physical appearance” (Kozak v Marshall, 808 NYS2d 918, 918 [Sup Ct, Suffolk County 2005]).
25. As both parties consent to remote video testimony of Plaintiff’s expert witness, it
is respectfully submitted that this portion of plaintiff's Order to Show Cause be granted.
IN THE ALTERNATIVE, THIS COURT SHOULD ALLOW PLAINTIFF TO
PRESERVE HER EXPERT’S TESTIMONY AND ALLOW SAID TESTIMONY BE
PLAYED AT TRIAL
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26. While live video testimony of plaintiff’s expert during the trial is of course
preferred, in the interest of judicial economy and to reduce the possibility of technical
difficulties during the live-stream, plaintiff presents using a preservation deposition of her
expert as an alternative. We would be able to take the deposition testimony of the expert with
opposing counsel while the trial is ongoing, and then present it to the jury at a time agreed
upon by the Court.
27. Pursuant to CPLR 3101(a)(3) “The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court finds: that the witness is dead; or that
the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out
of the United States, unless it appears that the absence of the witness was procured by the
party offering the deposition; or that the witness is unable to attend or testify because of age,
illness, infirmity, or imprisonment; or that the party offering the deposition has been unable
to procure the attendance of the witness by subpoena; or upon application and notice, that
such exceptional circumstances exist as to make it desirable, in the interest of justice and with
due regard to the importance of presenting testimony of witnesses orally in open court, to
allow the deposition to be used; or the witness is an expert witness whose testimony has been
procured by videotape as provided for under Rule 30(b)(4).”
28. As defendants’ counsel will be able to question the witness fully, there no undue
prejudice to the defendant should the Court elect this method.
IN THE EVENT THAT IN PERSON APPEARANCES SHALL BE REQUIRED, THIS
COURT SHOULD ADJOURN THE TRIAL SO AS TO ALLOW PLAINTIFF’S
CAUSATION EXPERT TO APPEAR
29. The granting of trial adjournments is within the discretion of the trial court, and
should not interfered with absent an abuse of discretion. Harper v. Han Chang, 267 AD2d 1011
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(4th Dept. 1999). However, liberality should be exercised in granting postponements or
continuances of trials in order to obtain material evidence and to prevent miscarriages of justice.
Id. Discretion is more narrowly construed where fundamental rights are at issue, or where brief
adjournments are requested to secure a witness. See Matter of Housing Development Fund Co.
v. Co. of Rockland, 134 AD2d 594 (2nd Dept. 1987) and Alario v. DeMarco, 149 AD2d 587
(2nd Dept. 1989).
30. Although an application for an adjournment is addressed to the sound discretion
of the trial court, it is an improvident exercise of discretion to deny such a request where the
evidence is material, the application is properly made and is not made for the purposes of delay,
and where the need for an adjournment does not result from a failure to exercise due diligence. In
the Matter of Shepherd, 286 AD2d 336 (2nd Dept. 2001). “It is well settled that it is an abuse of
discretion to deny a continuance where the application complies with the requirements of the law
and is not made merely for delay, where the evidence is material and where the need for a
continuance does not result from a failure to exercise due diligence.” Cirino v. St. John, 146
AD2d 912 (3rd Dept. 1989).
31. The Plaintiff’s expert's testimony is material and, in fact, critical, to the defense
of this matter. This application is made for an unforeseen and legitimate reason, and has not been
made for the sole purpose of delaying the trial. The expert's unavailability is not due to a failure
of due diligence to secure his presence at the time of trial, but due to unforeseen circumstances
due to his surgical commitments. Therefore, under the circumstances presented, an adjournment
of the trial is warranted.
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32. Unfortunately, due to the procedure of this Court, the parties were not assigned a
trial judge until May 23rd, after a jury was selected. The parties do not wish to adjourn the trial
further and agree that remote testimony is acceptable, subject to the Court’s permission.
33. In the event that this Court will not permit remote testimony, plaintiff is
constrained to request this adjournment, to avoid undue prejudice from the absence of a material
expert witness and evidence.
34. No previous application for the relief sought has been made or is pending. This is
not a frivolous motion.
WHEREFORE, plaintiff prays that this Honorable Court grant Plaintiff’s application
in its entirety and for such other and further and different relief as this Honorable Court may
deem just and proper.
Dated: May 24, 2023
Melville, New York
Yours, etc.,
NAPOLI SHKOLNIK, PLLC
_____________________________
xxxxxx L. xxxxxxx
Napoli Shkolnik, PLLC
Attorneys for the Plaintiff
400 Broadhollow Road – Suite 305
Melville, NY 11747
212-397-1000
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Preview
FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------X xxxxxx xxxxxxxx, on behalf of xxxxx xxxxxxxx, an infant under the age of 18, and Index No. 26910/2012 xxxxxx xxxxxxxx, Individually, Plaintiff, AFFIRMATION IN SUPPORT -against- RONALD J. TADDEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN PHARMACEUTICALS, INC. and ZYDUS PHARMACEUTICALS (USA), INC., Defendant. -----------------------------------------------------------------X 2. xxxxxx xxxxxxx, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 3. I am a partner with NAPOLI SHKOLNIK, PLLC, attorneys for the plaintiff, and based on my review of the file I am familiar with the facts and circumstances of this matter. 4. I make this affirmation in Support of Plaintiff’s Order to Show Cause seeking an Order: a. Permitting Plaintiff’s Expert to Testify Remotely by Live Video at the Trial of this Matter; or b. In the alternative, allowing plaintiff’s expert to sit for video testimony outside of trial and then presented to the jury during trial as a preservation deposition; or 1 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 c. In the alternative, adjourning this trial to a date when plaintiff’s expert can travel to New York to give in-person testimony; d. For such other and further relief as this Court deems just and proper under the circumstances. 5. In accordance with CPLR 2217(B), no application for this relief has been previously made. PRELIMINARY STATEMENT 6. This is a medical malpractice action for the negligent prescription of the medication Topamax (topiramate) to xxxxxx xxxxxxxx by Defendant RONALD TADDEO, M.D., and SHORE PSYCHIATRIC CENTER prior to and during xxxxxx xxxxxxxx’s pregnancy. Topamax is a dangerous and contraindicated medication to pregnant women with dangerous side effects. 7. Plaintiff claims that defendants deviated from good and accepted medical practice when prescribing this medication; by prescription of a contraindicated and dangerous medication; by failing to warn the Plaintiff of the risks or counsel Plaintiff on alternatives, by failing to order the appropriate tests, and by failing to appreciate the significance of the effects of these medications, among other claims, which ultimately causing Plaintiff’s son to be born with a cleft lip and palate, and suffer additional significant pain and suffering. 8. Plaintiff’s intends to call at trial Dr. Russell Reid, a maxillofacial surgeon, who is expected to testify as to causation and damages, including how a cleft lip and palate develops in utero, how it is causally linked with exposure to teratogenic medications taken by the mother during pregnancy; and the injuries and surgical and medical treatment the infant plaintiff has 2 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 undergone and will undergo into the future. 9. Significantly, counsel for defendants consents to the use of live video testimony at this trial. PROCEDURAL HISTORY 10. This action was commenced on June 30, 2012 in Suffolk County Supreme Court through the filing of a Summons and Complaint (A copy of which is annexed hereto at Exhibit A). 11. Thereafter, issue was joined by the service of Defendants' Answer on or about November 9, 2012 (A copy of Defendants' Answer is annexed hereto at Exhibit "B"). 12. Plaintiff exchanged a Verified Bill of Particulars on or about December 12, 2013. Plaintiff served a Supplemental Bill of Particulars on or about August 15, 2022. (A copy of both are annexed hereto at Exhibit "C”). 13. Plaintiff’ exchanged her expert Russell Reid, M.D., Ph.D, pursuant to CPLR 3101(d) on July 18, 2022. A copy of the expert exchange is annexed hereto at Exhibit D. 14. On March 15, 2015 during the CCP Ready Day Conference, jury selection was set for May 22, 2023, with a trial date scheduled for May 30, 2023. 15. Plaintiff’s expert is a practicing craniomaxillofacial surgeon based in Chicago, Illinois. After the trial date was set, Plaintiff learned that Dr. Reid would no longer be available to testify in person due to his surgery schedule; but that he would be able to testify on June 1st via remote video conferencing. 3 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 16. Your affirmant conferred with Anina Monte, counsel for Defendants to discuss this issue when it arose. Counsel agreed, that rather than adjourn the trial of this matter, that remote testimony would be acceptable, pending approval of the as-then-unknown trial judge. 17. Jury selection was held on May 22-23 and your Honor was assigned the trial of this matter at its conclusion. Upon that time, plaintiff learned of your Honor’s rules requiring in-person testimony, which necessitated the within application. ARGUMENT THIS COURT SHOULD PERMIT PLAINTIFF’S EXPERT TO TESTIFY VIA LIVE VIDEO CONFERENCE AT TRIAL 18. This court has the authority to allow for the witness to testify via live video conference at trial. The Judiciary Law authorizes courts in New York, at their discretion, “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” N.Y. Judiciary Law § 2-b (3) (McKinney). The Guide to New York Evidence notes that “[i]n the exercise of the court’s responsibility to supervise and oversee the conduct of a hearing or trial, the mode and order of presenting evidence and examining witnesses is committed to the sound discretion of the court.” Guide to New York Evidence § 1.07(1).1 19. A plaintiff or a witness may testify at trial via video. Gabriel v. Johnson's L.P. Gas Service, Inc., 98 AD3d 168, 179 (4th Dept. 2012) (“to deprive plaintiffs of the opportunity to testify at trial via video would be tantamount to depriving them of their day in court”); American Bank Note Corp. v. Daniele, 81 AD3d 500, 501 (1st Dept. 2011) (“[t]he decision to allow a party or witness to testify via video conference link is left to a trial court's discretion”); Superior Sales & Salvage, Inc. v. Time Release Sciences, Inc., 227 A.D.2d 987, 987 (4th Dept. 4 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 1996) (the court allowed for testimony by speakerphone); Claim of Hoffman, 138 A.D.2d 785, 786 (3rd Dept. 1988) (the court held that the testimony over the telephone did not deprive the claimant of its due process rights). 20. In a case of first impression, a trial court has allowed for a woman in poor physical condition living in Florida to testify via telephone conference at trial. Ferrante by Ferrante v. Ferrante, 127 Misc. 2d 352, 353 (Sup. Ct. Queens. County. 1985). The Court added that procedure for conducting the telephone inquest was practical and effective. Id. 21. In the context of the ongoing COVID-19 pandemic, New York courts have recognized that remote hearings are “safe … feasible, fair, and preferable to further postponing trial.” See Ciccone v. One W. 64th St., Inc., 2020 WL 5362065, at *4 (N.Y. Sup. Ct. Sept. 4, 2020) (ordering remote hearing in civil matter over objections from one party), citing A.S. v. N.S., 68 Misc. 3d 767 (N.Y. Sup. Ct. 2020); Bonilla v. State, 2021 WL 318406, at *2 (N.Y. Ct. Cl. Jan. 22, 2021) (collecting cases, and observing that “[g]iven the authority the Court to adopt remote procedures under section 2-b, and the extraordinary equities weighing in favor of the use of such procedures to address our current predicament, all courts confronted with the question during the past year have found it both permissible and advisable to compel a party to participate in virtual proceedings.”). 22. The Court of Appeals have held that said that the Courts have the authority to use improvised substitute for in-person testimony pursuant to Judiciary Law § 2-b (3) when “necessary to carry into effect the powers… possessed by the court”. People v. Wrotten, 14 NY3d 33 (2009). Courts have been following Wrotten and have allowed live testimony through Skype. People v. Novak, 41 Misc. 3d 733, 736 (Crim. Ct. Sullivan County 2013). The court in Novak adds that Skype communication is reliable and accurate. Id. 5 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 23. The Second Department has held that directing the out-of-state depositions to be conducted by videoconferencing was proper (Provident Life and Cas. Ins. Co. v. Brittenham, 283 AD2d 629, 630 [2d Dept 2001]). “An exception to [CPLR 3110 (1), which states that depositions should take place within the county the action is pending,] is where a party demonstrates that examination in that county would cause ‘undue hardship”’ (LaRusso v Brookstone, Inc., 52 AD3d 576, 577 [2d Dept 2008]). CPLR 3103 [a] gives Courts great discretion: “the court may issue a protective order at any time on its own initiative” (Hoffman v Kraus, 260 AD2d 435, 437 [2d Dept 1999] [internal citations omitted]). “[W]hile the CPLR does not specifically provide for court-ordered video conferencing of depositions, case law does” (Matter of Herman, 924 NYS2d 309, 309 [Sup Ct, Nassau County 2011]). “[T]he court may exercise its discretion to order that the deposition be conducted by electronic means notwithstanding that one of the parties refuses to so stipulate” (Matter of Singh, 22 Misc3d 288, 290 [Sup Ct, Bronx County 2008] [citations omitted] [emphasis added]). 24. Suffolk County Supreme Court has ordered that depositions be held remotely due to the convenience and financial hardship of the defendant and stating that “video conferencing is a method being utilized by both Courts and other tribunals as a viable method in lieu of physical appearance” (Kozak v Marshall, 808 NYS2d 918, 918 [Sup Ct, Suffolk County 2005]). 25. As both parties consent to remote video testimony of Plaintiff’s expert witness, it is respectfully submitted that this portion of plaintiff's Order to Show Cause be granted. IN THE ALTERNATIVE, THIS COURT SHOULD ALLOW PLAINTIFF TO PRESERVE HER EXPERT’S TESTIMONY AND ALLOW SAID TESTIMONY BE PLAYED AT TRIAL 6 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 26. While live video testimony of plaintiff’s expert during the trial is of course preferred, in the interest of judicial economy and to reduce the possibility of technical difficulties during the live-stream, plaintiff presents using a preservation deposition of her expert as an alternative. We would be able to take the deposition testimony of the expert with opposing counsel while the trial is ongoing, and then present it to the jury at a time agreed upon by the Court. 27. Pursuant to CPLR 3101(a)(3) “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: that the witness is dead; or that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting testimony of witnesses orally in open court, to allow the deposition to be used; or the witness is an expert witness whose testimony has been procured by videotape as provided for under Rule 30(b)(4).” 28. As defendants’ counsel will be able to question the witness fully, there no undue prejudice to the defendant should the Court elect this method. IN THE EVENT THAT IN PERSON APPEARANCES SHALL BE REQUIRED, THIS COURT SHOULD ADJOURN THE TRIAL SO AS TO ALLOW PLAINTIFF’S CAUSATION EXPERT TO APPEAR 29. The granting of trial adjournments is within the discretion of the trial court, and should not interfered with absent an abuse of discretion. Harper v. Han Chang, 267 AD2d 1011 7 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 (4th Dept. 1999). However, liberality should be exercised in granting postponements or continuances of trials in order to obtain material evidence and to prevent miscarriages of justice. Id. Discretion is more narrowly construed where fundamental rights are at issue, or where brief adjournments are requested to secure a witness. See Matter of Housing Development Fund Co. v. Co. of Rockland, 134 AD2d 594 (2nd Dept. 1987) and Alario v. DeMarco, 149 AD2d 587 (2nd Dept. 1989). 30. Although an application for an adjournment is addressed to the sound discretion of the trial court, it is an improvident exercise of discretion to deny such a request where the evidence is material, the application is properly made and is not made for the purposes of delay, and where the need for an adjournment does not result from a failure to exercise due diligence. In the Matter of Shepherd, 286 AD2d 336 (2nd Dept. 2001). “It is well settled that it is an abuse of discretion to deny a continuance where the application complies with the requirements of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from a failure to exercise due diligence.” Cirino v. St. John, 146 AD2d 912 (3rd Dept. 1989). 31. The Plaintiff’s expert's testimony is material and, in fact, critical, to the defense of this matter. This application is made for an unforeseen and legitimate reason, and has not been made for the sole purpose of delaying the trial. The expert's unavailability is not due to a failure of due diligence to secure his presence at the time of trial, but due to unforeseen circumstances due to his surgical commitments. Therefore, under the circumstances presented, an adjournment of the trial is warranted. 8 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 32. Unfortunately, due to the procedure of this Court, the parties were not assigned a trial judge until May 23rd, after a jury was selected. The parties do not wish to adjourn the trial further and agree that remote testimony is acceptable, subject to the Court’s permission. 33. In the event that this Court will not permit remote testimony, plaintiff is constrained to request this adjournment, to avoid undue prejudice from the absence of a material expert witness and evidence. 34. No previous application for the relief sought has been made or is pending. This is not a frivolous motion. WHEREFORE, plaintiff prays that this Honorable Court grant Plaintiff’s application in its entirety and for such other and further and different relief as this Honorable Court may deem just and proper. Dated: May 24, 2023 Melville, New York Yours, etc., NAPOLI SHKOLNIK, PLLC _____________________________ xxxxxx L. xxxxxxx Napoli Shkolnik, PLLC Attorneys for the Plaintiff 400 Broadhollow Road – Suite 305 Melville, NY 11747 212-397-1000 9 of 10 FILED: SUFFOLK COUNTY CLERK 05/24/2023 09:59 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 200 RECEIVED NYSCEF: 05/24/2023 10 of 10