Preview
FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ANTONIO ESPINOSA, Index No.: 515277/2018
Plaintiff, AFFIRMATION IN SUPPORT
OF MOTON FOR CONTEMPT
-against-
MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC.
Defendants.
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MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC.
Third-Party Plaintiff,
-against-
GILMAR DESIGN CORPORATION,
Third-Party Defendant.
------------------------------------------------------------------------X
Richard B. Polner, as a partner of RAWLE & HENDERSON LLP, duly admitted to practice
law before the Courts of the State of New York affirms pursuant to C.P.L.R. §2106, upon
information and belief, the following to be true under penalty of perjury:
1. I am a partner in the Law Firm RAWLE & HENDERSON LLP Attorneys for
Defendant GILMAR DESIGN CORPORATION, (hereinafter “Gilmar”) in this action, and as such
I am fully familiar with the facts and circumstances set forth herein.
2. This affirmation is submitted in support of Gilmar’s Order to Show cause seeking,
inter alia, an order holding non-party Alpha 3T MRI in contempt of court for failure to obey a
subpoena duces tecum pursuant to NY CPLR §2308, costs and sanction, and preclusion of all
parties from offering any evidence or testimony pertaining to any records, documents, information,
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diagnostic studies, testing, or films from Alpha 3T MRI or introducing at trial any such records,
documentation, or films.
PROCEDURAL HISTORY
3. The only provision of the CPLR that requires all pleadings to be attached to a
motion is §3212(b). As this is not a motion for summary judgment, Gilmar is not required to attach
copies of all pleadings.
4. A copy of plaintiff’s Bill of Particulars dated April 6, 2020 is annexed hereto as
Exhibit A. Plaintiff alleges personal injuries as a result of a January 11, 2018 construction
accident.
LAW
5. CPLR §3101(a)(4) prescribes:
There shall be full disclosure of all matter material and necessary in the prosecution
or defense of an action, regardless of the burden of proof by: … (4) any other
person, upon notice stating the circumstances or reasons such disclosure is sought
or required.
6. “The purpose of a subpoena duces tecum is to compel the production of specific
documents that are relevant and material to facts at issue in a pending judicial proceeding.” Velez
v. Hunts Point Mult-Serv. Ctr., Inc., 29 A.D.3d 104, 112; 811 N.Y.S.2d 5, 7 (1st Dept. 2006).
7. CPLR §2308(a) provides that “failure to comply with a subpoena issued by a judge,
clerk or officer of the court shall be punishable as a contempt of court.” “In order to find that
contempt has occurred in a given case, it must be determined that a lawful order of the court,
clearly expressing an unequivocal mandate, was in effect. It must appear, with a reasonable degree
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of certainty that the order has been disobeyed. Moreover, the party to be held in contempt must
have had knowledge of the court’s order, although it is not necessary that the order actually have
been served upon the party. Finally, prejudice to the right of a party to the litigation must be
demonstrated.” Matter of McCormick v. Axelrod, 59 N.Y.2d 574 (1993), citing Judiciary Law §753
subd. A).
8. It is within a trial court’s authority to determine the nature of the penalty for violations
of discovery obligations. Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Global Strat, Inc., 22
N.Y.3d 877, 976 N.Y.S.2d 678, (2013) (pertaining to a party’s alleged failure to disclose pursuant
CPLR §3126). Failure to obey a duly issued subpoena constitutes contempt of court. Commissioner
of Labor v. Hinman, 103 A.D.2d 886, 478 N.Y.S.2d 116 (1st Dept. 1984) (At issue was the
disobedience of a subpoena pursuant to CPLR §5251). The non-compliance with a subpoena does
not have to be willful or deliberate. Id. All that is necessary for a finding of civil contempt is the
lack of compliance with a subpoena that “impairs, impedes, or prejudices the rights of a party.” Id.
at 887 and 119. In a concurring opinion, Judge Altman observed that when a non-party witness has
information necessary for the trial preparation of a party, preclusion of that witness’ testimony at
trial is appropriate if the witness fails to appear for a subpoenaed deposition. Ludwigsen v. American
Transp. Lines, 242 A.D.2d 523, 662 N.Y.S.2d 271 (2d Dept. 1997).
NON-PARTY ALPHA 3T MRI DISOBEYED A SUBPOENA
9. Gilmar’s subpoena was personally served on Alpha 3T MRI at its office located at
145 East 32nd Street, New York, NY 10016 on October 11, 2022. The subpoena sought, inter alia,
Diffusion Tensor Imaging (“DTI”) and MR Spectroscopy tests and analyses, performed on the
plaintiff, and the associated raw source volumetric and DTI data, demographic data of each control
patient in the normative comparison group, and analytical and statistical methods used to generate
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the interpretation report. The subpoena also directed the requested documentation be produced on
October 28, 2022 at the office of Rawle & Henderson, LLP, 14 Wall Street, New York, NY. A
copy of the subpoena duces tecum and affidavit of service are annexed collectively hereto as
Exhibit B.
10. As the subpoenaed records from Alpha 3T MRI were not received, on February 14,
2023, Danielle Kuchinskas of this office emailed Alpha 3T MRI and inquired about the status of
the records. As no response was received, on March 1, 2023, Ms. Kuchinskas sent her prior email
with a further request for the records to Alpha 3T MRI. On March 1, 2023, an email reply
was received simply stating: “Dr. Hussman passed away. We do not have that information.” The
fact that Dr. Hussman is deceased does not prevent Alpha 3T MRI from providing the subpoenaed
documentation. Alpha 3T MRI is still in existence as evidenced by their March 1, 2023 response.
The current custodian of Alpha 3T MRI’s records has the ability to provide the subpoenaed
records. Hence, Dr. Hussman’s death is no excuse for Alpha 3T MRI’s non-compliance with the
subpoena. A copy of the aforesaid email correspondence is annexed collectively hereto as Exhibit
C.
11. As set forth above, Alpha 3T MRI did not produce the documentation at the place
and date set forth in the subpoena and, to date, has failed to comply with the subpoena. As Alpha
3T MRI has disobeyed a subpoena, duly issued by an officer of the court, it should be punished
for contempt of court.
12. In light of the foregoing, the movant has satisfied all of the requirements entitling
it to the relief requested herein.
13. The subpoena duces tecum served on non-party Alpha 3T MRI was a lawful order
of the Court, issued by an officer of the Court, attorney Richard B. Polner, a partner of Rawle &
Henderson, LLP, counsel for Gilmar.
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14. The subpoena expressed an unequivocal mandate that non-party Alpha 3T MRI
provide certain imaging and associated documentation. That order has been disobeyed as nonparty
Alpha 3T MRI has failed to provide the requested imaging and associated documentation.
15. Alpha 3T MRI had knowledge of the order as it was personally served with a copy
of the subpoena.
16. Gilmar has suffered prejudice as a result of Alpha 3T MRI’s failure to provide the
requested imaging and associated documentation. Without such documentation, a complete
assessment of the plaintiff’s injuries cannot be made by Gilmar’s medical expert. Further, the
requested documentation used by Alpha 3T MRI to analyze the results of the Diffuse Tensor
Imaging (DTI) and MR spectroscopy testing performed on the plaintiff, Antonio Espinosa, is
subject to expert interpretation. Alpha 3T MRI’s failure to comply with the subpoena has deprived
Gilmar’s medical expert essential information and records to evaluate the reported results of the
DTI and MR Spectroscopy testing. Consequently, Gilmar’s rights and ability to prepare a defense
regarding the plaintiff’s alleged injuries have been irrevocably impaired, as a result of Alpha 3T
MRI’s refusal to comply with Gilmar’s subpoena.
17. For the reasons set forth herein, the instant Order to Show Cause should be granted.
18. No prior request has been made for the instant relief.
WHEREFORE, third-party defendant/second third-party defendant GILMAR
CONSTRUCTION CORP. demands that this Order to Show Cause be granted in its entirety and an
Order be issued: Holding non-party Alpha 3T MRI, in Contempt of Court for willful refusal to
comply with a subpoena duces tecum issued by an officer of the court seeking the imaging, records,
information, and raw data set forth in the subpoena duces tecum, (2) Imposing costs and fines upon
the non-party Alpha 3T MRI for its contempt of court and failure to obey the subpoena duces
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tecum issued by an officer of the court seeking the imaging and data set forth in the subpoena
duces tecum, (3) Precluding any party from offering at trial any evidence or testimony, by any
witness expert or otherwise, pertaining to any records, documents, information, raw data,
diagnostic studies, testing, or films from Alpha 3T MRI or introducing at trial any records,
documents, information, raw data, diagnostic studies, testing, or films from Alpha 3T MRI; and
for such other and further relief as this honorable Court deems just and proper.
Dated: New York, New York
June 6, 2023
Yours, etc.
RAWLE & HENDERSON LLP
___________
___________________
Richard B. Polner, Esq.
RAWLE & HENDERSON LLP
Attorneys for Third-Party Defendant
GILMAR DESIGN CORPORATION
14 Wall Street, 27th Floor
(212) 323-7070
New York, New York 10005-2101
Our File No.: 805030
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Preview
FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X ANTONIO ESPINOSA, Index No.: 515277/2018 Plaintiff, AFFIRMATION IN SUPPORT OF MOTON FOR CONTEMPT -against- MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Defendants. ------------------------------------------------------------------------X MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Third-Party Plaintiff, -against- GILMAR DESIGN CORPORATION, Third-Party Defendant. ------------------------------------------------------------------------X Richard B. Polner, as a partner of RAWLE & HENDERSON LLP, duly admitted to practice law before the Courts of the State of New York affirms pursuant to C.P.L.R. §2106, upon information and belief, the following to be true under penalty of perjury: 1. I am a partner in the Law Firm RAWLE & HENDERSON LLP Attorneys for Defendant GILMAR DESIGN CORPORATION, (hereinafter “Gilmar”) in this action, and as such I am fully familiar with the facts and circumstances set forth herein. 2. This affirmation is submitted in support of Gilmar’s Order to Show cause seeking, inter alia, an order holding non-party Alpha 3T MRI in contempt of court for failure to obey a subpoena duces tecum pursuant to NY CPLR §2308, costs and sanction, and preclusion of all parties from offering any evidence or testimony pertaining to any records, documents, information, 17031407-1 1 of 6 FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023 diagnostic studies, testing, or films from Alpha 3T MRI or introducing at trial any such records, documentation, or films. PROCEDURAL HISTORY 3. The only provision of the CPLR that requires all pleadings to be attached to a motion is §3212(b). As this is not a motion for summary judgment, Gilmar is not required to attach copies of all pleadings. 4. A copy of plaintiff’s Bill of Particulars dated April 6, 2020 is annexed hereto as Exhibit A. Plaintiff alleges personal injuries as a result of a January 11, 2018 construction accident. LAW 5. CPLR §3101(a)(4) prescribes: There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof by: … (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. 6. “The purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” Velez v. Hunts Point Mult-Serv. Ctr., Inc., 29 A.D.3d 104, 112; 811 N.Y.S.2d 5, 7 (1st Dept. 2006). 7. CPLR §2308(a) provides that “failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court.” “In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with a reasonable degree 17031407-1 2 of 6 FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023 of certainty that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party. Finally, prejudice to the right of a party to the litigation must be demonstrated.” Matter of McCormick v. Axelrod, 59 N.Y.2d 574 (1993), citing Judiciary Law §753 subd. A). 8. It is within a trial court’s authority to determine the nature of the penalty for violations of discovery obligations. Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Global Strat, Inc., 22 N.Y.3d 877, 976 N.Y.S.2d 678, (2013) (pertaining to a party’s alleged failure to disclose pursuant CPLR §3126). Failure to obey a duly issued subpoena constitutes contempt of court. Commissioner of Labor v. Hinman, 103 A.D.2d 886, 478 N.Y.S.2d 116 (1st Dept. 1984) (At issue was the disobedience of a subpoena pursuant to CPLR §5251). The non-compliance with a subpoena does not have to be willful or deliberate. Id. All that is necessary for a finding of civil contempt is the lack of compliance with a subpoena that “impairs, impedes, or prejudices the rights of a party.” Id. at 887 and 119. In a concurring opinion, Judge Altman observed that when a non-party witness has information necessary for the trial preparation of a party, preclusion of that witness’ testimony at trial is appropriate if the witness fails to appear for a subpoenaed deposition. Ludwigsen v. American Transp. Lines, 242 A.D.2d 523, 662 N.Y.S.2d 271 (2d Dept. 1997). NON-PARTY ALPHA 3T MRI DISOBEYED A SUBPOENA 9. Gilmar’s subpoena was personally served on Alpha 3T MRI at its office located at 145 East 32nd Street, New York, NY 10016 on October 11, 2022. The subpoena sought, inter alia, Diffusion Tensor Imaging (“DTI”) and MR Spectroscopy tests and analyses, performed on the plaintiff, and the associated raw source volumetric and DTI data, demographic data of each control patient in the normative comparison group, and analytical and statistical methods used to generate 17031407-1 3 of 6 FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023 the interpretation report. The subpoena also directed the requested documentation be produced on October 28, 2022 at the office of Rawle & Henderson, LLP, 14 Wall Street, New York, NY. A copy of the subpoena duces tecum and affidavit of service are annexed collectively hereto as Exhibit B. 10. As the subpoenaed records from Alpha 3T MRI were not received, on February 14, 2023, Danielle Kuchinskas of this office emailed Alpha 3T MRI and inquired about the status of the records. As no response was received, on March 1, 2023, Ms. Kuchinskas sent her prior email with a further request for the records to Alpha 3T MRI. On March 1, 2023, an email reply was received simply stating: “Dr. Hussman passed away. We do not have that information.” The fact that Dr. Hussman is deceased does not prevent Alpha 3T MRI from providing the subpoenaed documentation. Alpha 3T MRI is still in existence as evidenced by their March 1, 2023 response. The current custodian of Alpha 3T MRI’s records has the ability to provide the subpoenaed records. Hence, Dr. Hussman’s death is no excuse for Alpha 3T MRI’s non-compliance with the subpoena. A copy of the aforesaid email correspondence is annexed collectively hereto as Exhibit C. 11. As set forth above, Alpha 3T MRI did not produce the documentation at the place and date set forth in the subpoena and, to date, has failed to comply with the subpoena. As Alpha 3T MRI has disobeyed a subpoena, duly issued by an officer of the court, it should be punished for contempt of court. 12. In light of the foregoing, the movant has satisfied all of the requirements entitling it to the relief requested herein. 13. The subpoena duces tecum served on non-party Alpha 3T MRI was a lawful order of the Court, issued by an officer of the Court, attorney Richard B. Polner, a partner of Rawle & Henderson, LLP, counsel for Gilmar. 17031407-1 4 of 6 FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023 14. The subpoena expressed an unequivocal mandate that non-party Alpha 3T MRI provide certain imaging and associated documentation. That order has been disobeyed as nonparty Alpha 3T MRI has failed to provide the requested imaging and associated documentation. 15. Alpha 3T MRI had knowledge of the order as it was personally served with a copy of the subpoena. 16. Gilmar has suffered prejudice as a result of Alpha 3T MRI’s failure to provide the requested imaging and associated documentation. Without such documentation, a complete assessment of the plaintiff’s injuries cannot be made by Gilmar’s medical expert. Further, the requested documentation used by Alpha 3T MRI to analyze the results of the Diffuse Tensor Imaging (DTI) and MR spectroscopy testing performed on the plaintiff, Antonio Espinosa, is subject to expert interpretation. Alpha 3T MRI’s failure to comply with the subpoena has deprived Gilmar’s medical expert essential information and records to evaluate the reported results of the DTI and MR Spectroscopy testing. Consequently, Gilmar’s rights and ability to prepare a defense regarding the plaintiff’s alleged injuries have been irrevocably impaired, as a result of Alpha 3T MRI’s refusal to comply with Gilmar’s subpoena. 17. For the reasons set forth herein, the instant Order to Show Cause should be granted. 18. No prior request has been made for the instant relief. WHEREFORE, third-party defendant/second third-party defendant GILMAR CONSTRUCTION CORP. demands that this Order to Show Cause be granted in its entirety and an Order be issued: Holding non-party Alpha 3T MRI, in Contempt of Court for willful refusal to comply with a subpoena duces tecum issued by an officer of the court seeking the imaging, records, information, and raw data set forth in the subpoena duces tecum, (2) Imposing costs and fines upon the non-party Alpha 3T MRI for its contempt of court and failure to obey the subpoena duces 17031407-1 5 of 6 FILED: KINGS COUNTY CLERK 06/06/2023 11:38 AM INDEX NO. 515277/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 06/06/2023 tecum issued by an officer of the court seeking the imaging and data set forth in the subpoena duces tecum, (3) Precluding any party from offering at trial any evidence or testimony, by any witness expert or otherwise, pertaining to any records, documents, information, raw data, diagnostic studies, testing, or films from Alpha 3T MRI or introducing at trial any records, documents, information, raw data, diagnostic studies, testing, or films from Alpha 3T MRI; and for such other and further relief as this honorable Court deems just and proper. Dated: New York, New York June 6, 2023 Yours, etc. RAWLE & HENDERSON LLP ___________ ___________________ Richard B. Polner, Esq. RAWLE & HENDERSON LLP Attorneys for Third-Party Defendant GILMAR DESIGN CORPORATION 14 Wall Street, 27th Floor (212) 323-7070 New York, New York 10005-2101 Our File No.: 805030 17031407-1 6 of 6