Motion to Compel Discovery in Joan Gray v. Smbc Capital Markets, Inc.| Trellis.Law

On August 27, 2020 a Motion-Secondary was filed involving a dispute between Joan Gray, and Smbc Capital Markets, Inc., for Torts - Other (Employment Discrimination) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/03/2023 10:03 AM INDEX NO. 156852/2020
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 05/03/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
JOAN GRAY, :
: Index No. 156852/2020
Plaintiff, :
: IAS Part 130
- against - :
: NYSCEF
SMBC CAPITAL MARKETS, INC., :
: Motion Sequence No. 4
Defendant. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

AFFIRMATION OF JOHN T. DINAPOLI, ESQ. IN SUPPORT OF SMBC’S MOTION
TO COMPEL DISCOVERY AND TO COMPEL PLAINTIFF’S DEPOSITION

I, JOHN T. DINAPOLI, ESQ., an attorney duly admitted to practice before the courts

of the State of New York, hereby affirm the following under penalty of perjury:

1. I am a member of the Bar of this Court and Counsel at the law firm of Seyfarth

Shaw LLP, attorneys for Defendant SMBC Capital Markets, Inc. (“SMBC”) in the above-

captioned action. I submit this Affirmation in support of SMBC’s Motion to Compel

Discovery and to Compel Plaintiff’s Deposition. I know the facts testified to in this

Affirmation to be true based upon my own personal knowledge and a review of the

documents.

I. EVENTS AND EXHIBITS RELEVANT TO SMBC’S MOTION TO COMPEL
DISCOVERY

2. On December 4, 2020, SMBC served its First Request for the Production of

Documents on Gray. Attached as “Exhibit A” is a true and accurate copy of Defendant’s

First Request for the Production of Documents.

3. On February 5, 2021, Gray served her Responses and Objections to

Defendant’s First Request for the Production of Documents. Attached as “Exhibit B” is a

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true and accurate copy of Plaintiff’s Responses and Objections Defendant’s First Request for

the Production of Documents.

4. Relevant to this motion, SMBC requested, and Gray objected to, the

following:

• SMBC’s Document Request. No. 6: “All documents or communications prepared or
maintained by any physician, hospital, clinic, physical therapist, psychologist,
psychiatrist, therapist, social worker, or any other health care provider who evaluated
Plaintiff or provided treatment to Plaintiff, from January 1, 2010 to the present, including,
but not limited to, medical records, reports, consultation notes, medication prescriptions,
MRI records, X-rays, statements made for the purpose of obtaining or maintaining
benefits, and statements of charges for services, products or medication rendered to you.
In addition to providing all documents that are responsive to this request, provide
Defendant’s attorneys with fully-executed authorizations, in the form annexed hereto at
Tab A, permitting Defendant’s attorneys to obtain all of your health care records.”
DiNapoli Aff. Ex. B at 3.

• Gray’s Responses and Objections to SMBC’s Document Request No. 6:
Objection: “This seeks private and protected health care records and is not
reasonably calculated to lead to admissible evidence. Subject to and without
waiver, Plaintiff is in the process of obtaining her relevant health care records
related to her damages claims in this lawsuit and will produce such records
subject to a confidentiality agreement.” Id. at 3-4.

• SMBC Document Request No. 7: “All documents or communications prepared or
maintained by any physician, hospital, clinic, physical therapist, psychologist,
psychiatrist, therapist, social worker, or any other health care provider who evaluated
Plaintiff or provided treatment to Plaintiff concerning any claimed emotional distress,
pain and suffering, or for any other reason Plaintiff claims is related to the claims and
allegations set forth in Complaint. This includes, but is not limited to, medical records,
reports, consultation notes, medication prescriptions, MRI records, X-rays, statements
made for the purpose of obtaining or maintaining benefits, and statements of charges for
services, products or medication rendered to you. In addition to providing all documents
that are responsive to this request, provide Defendant’s attorneys with fully-executed
authorizations, in the form annexed hereto at Tab A, permitting Defendant’s attorneys to
obtain all of your health care records.” Id. at 4.

• Gray’s Responses and Objections to SMBC’s Document Request No. 6: “See
response to No. 6 above.” Id.

• SMBC Document Request No. 8. “All documents or communications concerning any
source of income that Plaintiff received from any source, whether as an employee, owner,
partner, independent contractor or otherwise, between 2016 and the present, including,
but not limited to, all federal, state, and local income tax returns and Internal Revenue
Service W-2 and 1099 tax forms. In addition to providing all documents that are

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responsive to this request, provide Defendant’s attorneys with a fully-executed
authorization, in the form annexed hereto at Tab B.” Id.

• Gray’s Responses and Objections to SMBC’s Document Request No. 8:
“Objection: This is overbroad and seeks private and privileged tax and financial
documents of Plaintiff and her husband which are not reasonably calculated to
lead to admissible evidence. Subject to and without waiver of these objections,
please see Plaintiff’s W-2s from Defendant produced herewith for the years 2017,
2018 and 2019 and related compensation documents, at P000001 to P000009.”
Id. at 4-5.

• SMBC Document Request No. 21. All documents or communications concerning the
time spent by Plaintiff on any other businesses or profession, other than her employment
with Defendant, in which Plaintiff was an owner, co-owner, shareholder, partner,
operator, consultant, independent contractor, or employee from 2016 to the present. Id. at
8.

• Gray’s Responses and Objections to SMBC’s Document Request No. 21: “See
response to No. 2 above. Id. at 8 (Response No. 2 states: Objection: Overbroad
and burdensome. Most documents sought, such as work emails and calendars, are
in the possession of Defendant, not Plaintiff who no longer has access to such
documents. Subject to and without waiver, please see documents produced
herewith at P000001 to P000365.” Id.

5. Thereafter, the parties engaged in discussions and negotiations regarding a

Stipulated Confidentiality Agreement and Protective Order. The parties were not able to

agree on a proposed Stipulated Confidentiality Agreement and Protective Order and

submitted this dispute to the Court for resolution.

6. On September 22, 2021, the Court issued its ruling on SMBC’s Motion for a

Protective Order. NYSCEF No. 32 (Motion Seq. No. 002).

7. Thereafter, the parties submitted a Proposed Confidentiality Agreement and

Protective Order, which the Court approved. Attached as “Exhibit C” is a true and accurate

copy of the Court’s So Ordered Confidentiality Agreement and Protective Order, NYSCEF

No. 36.

8. The Confidentiality Agreement and Protective Order provides: “The party or

person producing or disclosing discovery material may designate as ‘Confidential’ that

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material it reasonably and in good faith believes contains: . . . . ii. Materials or information of

a personal, sensitive or intimate nature, including but limited to social security numbers,

compensation information, and other similar information.” DiNapoli Aff. Ex. C § 2(a).

9. It also contains procedures for challenging “Confidential” designations. Under

Section 4 of the Confidentiality Agreement and Protective Order, “Any party may object to

the designation of any documents as Confidential Material and the parties shall confer in

good faith to attempt to resolve the objection. If the parties are unable to resolve the

objection, the dispute may be submitted to the Court by the designating party.

Notwithstanding such objection, the document(s) marked as Confidential Material and the

contents thereof shall be treated as Confidential Material pursuant to the terms of this order

until a contrary determination is made by written agreement of the parties or by order of the

Court.” DiNapoli Aff. Ex. C § 4.

10. Confidential Material can be disclosed to the Court, provided that the

designating party be given advance notice so that party can file a motion to seal the

Confidential Material. Specifically, Section 6(d) of the Confidentiality Agreement and

Protective Order provides: “Confidential Material and the contents thereof may be used by

the parties and the parties’ counsel solely for purposes of prosecuting or defending the

Action. Documents and information designed as Confidential shall not be disclosed or made

known by the parties and/or their counsel to any other person, except as follows: d. to the

judges and employees of the Supreme Court of the State of New York, New York County, or

appropriate appellate court pursuant to the filing of a court paper or in connection with a

hearing, trail, motion, or request for court intervention in the Action, or as otherwise agreed

to by the parties or as ordered by the Court, provided that if any Confidential Material is

disclosed in a court paper or at a hearing or trial, the filing party, if different than the
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designating party, shall give advance notice to the designating party so that the designating

party can file a motion to seal the Confidential Material, unless the parties agree otherwise in

writing or the Court so orders.” DiNapoli Aff. Ex. C § 6(d).

11. On May 6, 2022, Gray produced records from her health care providers to

SMBC. Gray marked all of these records “Confidential.” Gray also redacted portions of

medical records that she felt contained “non-related, private, protected health care

information.” Attached as “Exhibit D” is a true and accurate copy of Plaintiff Joan Gray’s

Health Care Redaction Log.

12. On October 4, 2022, SMBC demanded that Gray provide signed authorizations

for the release of her medical files for those individuals from whom she sought treatment and

identified during discovery. In support of its position, SMBC cited Gray to Cynthia B. v.

New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-57 (1983) (“It is well settled that a party

must provide duly executed and acknowledged written authorizations for the release of

pertinent medical records under the liberal discovery provisions of the CPLR when that party

has waived the physician-patient privilege by affirmatively putting his or her physical or

mental condition in issue.”). DiNapoli Aff. Ex. E at 5. Attached as “Exhibit E” is a true and

accurate copy of SMBC’s Letter to Gray’s Counsel, dated October 4, 2022.

13. In the same letter, SMBC noted that Gray has not produced documents

relevant to SMBC’s defenses concerning Gray’s mitigation efforts. DiNapoli Aff. Ex. E at

5-6. Specifically, SMBC requested, among other categories of information, documents

regarding any source of income Gray received and documents concerning time spent by Gray

on other businesses. DiNapoli Aff. Ex. E. at 5-6.

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14. Gray did not respond to SMBC’s October 4, 2022. SMBC sent another letter

on November 8, 2022. Attached as “Exhibit F” is a true and accurate copy of SMBC’s

Letter to Gray’s Counsel, dated November 8, 2022.

15. In this letter, SMBC renewed its request for fully executed authorizations for

the release of her medical records and detailed several issues with Gray’s redactions of these

records. Specifically, SMBC noted:

Plaintiff refused to provide medical releases and improperly redacted portions
of the medical records she did produce. Many of these redactions appear to
remove responsive information directly relevant to Plaintiff’s allegations of
emotional distress. For example, the records Plaintiff produced from Doctor
Taubman note a visit on May 18, 2018. During this visit, Plaintiff mentioned
work-related anxiety. (P000747.) But Plaintiff redacted a past diagnosis she
received (P000748), one of the medications she was prescribed (P000749), and
one of the two diagnoses she received during the visit (P000750). In another
visit on July 30, 2018, Plaintiff again appears to complain of work-related
stress, but improperly redacted one of the two diagnoses she received.
(P000751 to P000753.) In other portions, Plaintiff redacted pages of Dr.
Taubman’s assessment and plan. (P000759 to P000762.)

DiNapoli Aff. Ex. F at 2.

16. SMBC also renewed its request for documents regarding any source of income

Gray received and time spent on any business (other than SMBC) in which Gray had, or has,

an ownership interest in or was an employee. DiNapoli Aff. Ex. F at 2.

17. SMBC renewed request was directly supported by Gray’s statement to another

individual in her own documents. Specifically, SMBC directed Gray’s counsel to a page in

her document production where she told an employee at a staffing company: “I have not

worked since 2019 but have been assisting at my family business due to the pandemic and

now I am ready to get back into the work force.” Attached as “Exhibit G” is a true and

accurate copy of Gray’s Document Production Stamped P001015 (emphasis added).

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18. In its November 8, 2022 letter, SMBC provided Gray with notice in

accordance with Section 6(d) of the Confidentiality Agreement and Protective Order that

SMBC intended to include copies of Gray’s redacted medical records, that she stamped

“Confidential,” as exhibits to SMBC’s anticipated motion to compel Gray to provide signed

medical authorizations and disclose the information she redacted in her medical records.

DiNapoli Aff. Ex. F at 3 (“Should Plaintiff continue to refuse and force SMBC to ask the

Court for relief, we provide notice in accordance with Section 6(d) of the Confidentiality

Agreement and Protective Order that we intend to file documents stamped P000677 to

P000849 as exhibits to our motion to compel.”).

19. On December 16, 2022, I and Ravi Sattiraju conferred over these and other

discovery issues through videoconference. The videoconference lasted approximately thirty

minutes.

20. On January 3, 2023, Gray confirmed her role and/or interest in a business

operated by her husband, but claimed that she did not derive any income from this business,

and thus, she claimed it did not relate to her damages claim. Gray also asserted that the

information she redacted in her medical records did not “relate to her emotional distress

claim” and unredacting these portions of her medical records “would constitute a major

violation of her privacy.” DiNapoli Aff. Ex. H at 1. Attached as “Exhibit H” is a true and

accurate copy of Mr. Sattiraju’s Email to SMBC’s Counsel.

21. SMBC responded to Mr. Sattiraju’s correspondence on January 13, 2023, and

again objected to Gray’s positions on medical records and mitigation efforts. Attached as

“Exhibit I” is a true and accurate copy of SMBC’s Counsel’s Email to Mr. Sattiraju.

22. Regarding Gray’s mitigation efforts and medical documents, SMBC’s

correspondence noted:
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Under Plaintiff’s own admission, she has been “assisting at [her] family
business due to the pandemic” since 2019. P001015. You note that her “role”
at this business has not changed since her termination. Her admission
contradicts your assertion. In any event, SMBC is entitled to documents
where Plaintiff is listed on the payroll, any work schedules that she is on,
documents sufficient to establish her ownership interest in this business, and
any distributions she received from it. This should be produced forthwith.

….

By claiming emotional distress damages, SMBC is entitled to review her
medical records in their entirety. She has waived any claim to privacy by
putting this in controversy. You cannot unilaterally decide to conceal
diagnoses and medications she was prescribed during the time she alleges she
suffered emotional distress. This is improper. Your “redaction log” notes this
material is “privileged, Non-related healthcare information.” It is not. Even if
you claim that Plaintiff has certain “unrelated” psychological conditions, their
existence goes directly to her claimed emotional distress damages. Those
conditions, and the medications her doctors prescribed for those conditions,
may cause some or all of the same symptoms for which she is claiming
damages from SMBC. As such, SMBC has a right to her entire medical
records unless she intends to withdraw her claim for emotional distress
damages. See McLeod v. Metro. Transp. Auth., No. 105945/2011, 2015 WL
2190780, at *4 (Sup. Ct. N.Y. Cnty. 2015) (“It is well settled that a party must
provide duly executed and acknowledged written authorizations for the release
of pertinent medical records under the liberal discovery provisions of the
CPLR when that party has waived the physician-patient privilege by
affirmatively putting his or her physical or mental condition in issue.” (internal
quotation and citation omitted)).

DiNapoli Aff. Ex. I at 1-2.

23. On January 23, 2023, I and Mr. Sattiraju conferred over these and other

discovery issues through videoconference. The videoconference lasted approximately fifteen

minutes. Mr. Sattiraju informed SMBC that Gray would not produce the requested

information concerning the business that she has an ownership interest in, provide signed

medical authorizations, or unredact the medical documents previously provided. Mr.

Sattiraju stated that he would memorialize Gray’s position on outstanding issues in a

subsequent email.

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24. On January 24, 2023, Mr. Sattiraju provided an email regarding Gray’s

position on certain discovery issues. Relevant to this motion, Mr. Sattiraju informed

SMBC’s counsel that should SMBC seek to include Gray’s medical records as exhibits to its

anticipated motion to compel Gray’s medical information, he expected SMBC to move to

seal these records, notwithstanding the unambiguous language of the Confidentiality

Agreement and Protective Order that requires the designating party (i.e., Gray) to move to

seal such records. DiNapoli Aff. Ex. J. at 1. Attached as “Exhibit J” is a true and accurate

copy of Mr. Sattiraju’s Email to SMBC’s Counsel.

25. On February 15, 2023, SMBC informed Mr. Sattiraju that it was Gray’s

obligation to file a motion to seal, not SMBC’s obligation, that SMBC gave Gray the

required notice on November 8, 2022, that it intended to include such documents with its

anticipated motion, and that it further contested Gray’s designation of these medical records

as “Confidential” under Paragraph 4 of the Confidentiality Agreement and Protective Order.

DiNapoli Aff. Ex. K at 2. Attached as “Exhibit K” is a true and accurate copy of SMBC’s

Email to Mr. Sattiraju.

26. The medical records Plaintiff produced contain numerous redactions, some of

which go on for pages. For example, Plaintiff produced records from one of her medical

providers that notes a visit on May 18, 2018, at which time Plaintiff was still employed by

SMBC. Gray mentioned work-related anxiety during this visit, but redacted a past diagnosis

she received, one of the medications she was prescribed during the visit, and one of the two

diagnoses she received during the visit. In another appointment with the same provider on

July 30, 2018, Gray again appears to complain of work-related stress, but improperly

redacted one of the two diagnoses she received during that visit. In other portions, Gray

redacted pages of her provider’s assessment and plan.
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27. During discovery, the parties produced the following documents relevant to

SMBC’s Motion to Compel Discovery and for Protective Orders:

28. Email from G. Moore to R. Milberg, Re: Follow up from conversation July 19,

dated July 20, 2018, Bates numbered SMBC-005239 to SMBC-005240. A true and accurate

copy of this document is attached as “Exhibit L.”

29. Email from G. Moore to J. Gray, Re: Joan – Paul 1/9 Meeting Notes, dated

January 22, 2019, Bates numbered SMBC-002832 to SMBC-002839. A true and accurate

copy of this document is attached as “Exhibit M.”

30. To date, Gray has not brought the parties’ dispute regarding the “Confidential”

designation of her medical records to the Court’s attention, as required by the

Confidentiality Agreement and Protective Order.

31. To date, Gray has not moved to seal her medical records, as required by the

Confidentiality Agreement and Protective Order.

II. EVENTS AND EXHIBITS RELEVANT TO SMBC’S MOTION TO COMPEL
PLAINTIFF’S DEPOSITION

32. SMBC has attempted to take Plaintiff’s deposition on several occasions.

33. On October 6, 2020, Gray attempted to serve notices of deposition for thirteen

individuals on SMBC.

34. On October 22, 2020, SMBC objected to Gray’s notices of deposition, as the

matter had not been joined at the time and the Court did not provide Gray with leave to serve

the notices of deposition before SMBC filed its responsive pleading. CPLR 3106 (“Leave of

the court, granted on motion, shall be obtained if notice of the taking of the deposition of a

party is served by the plaintiff before that party’s time for serving a responsive pleading has

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expired.”). Attached as “Exhibit N” is a true and accurate copy of the email to Gray’s

counsel that contained SMBC’s objections to the notices of deposition.

35. On October 28, 2020, SMBC filed its Answer.

36. SMBC filed a notice to take Gray’s deposition contemporaneously with its

Answer. Attached as “Exhibit O” is a true and accurate copy of Defendant’s Notice of

Deposition for Plaintiff.

37. Rather that have Gray re-file her notices of deposition, Gray and SMBC

agreed that the notices of deposition would deemed to be filed as of the date the parties were

able to meet and confer about the case, with SMBC maintaining priority of deposition for

Gray. See Serio v. Rhulen, 29 A.D.3d 1195 (3d Dep’t 2006) (“As a general rule, in the

absence of `special circumstances,’ priority of examination belongs to the defendant if a

notice therefor is served within the time to answer; otherwise, priority belongs to the party

who first serves a notice of examination.”). Attached as “Exhibit P” is a true and accurate

copy of email correspondence between counsel confirming this agreement.

38. On November 2, 2020, the parties conferred by videoconference.

Accordingly, SMBC deemed Gray’s deposition notices served as of this date.

39. On July 19, 2022, SMBC served its Revised Notice of Deposition for Plaintiff,

in which it noticed September 21, 2022, to take Plaintiff’s deposition. Attached as “Exhibit

Q” is a true and accurate copy of SMBC’s Revised Notice of Deposition for Plaintiff.

40. On September 19, 2022, Gray wrote to SMBC regarding certain purported

document deficiencies and requested approximately ten separate categories of additional

documents.

41. On October 4, 2022, SMBC responded to Gray’s letter.

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42. On November 8, 2022, SMBC produced several documents requested by Gray

in her September 19, 2022 letter.

43. On November 16, 2022, SMBC served its Second Revised Notice of

Deposition for Plaintiff, in which it noticed November 30, 2022, to take Plaintiff’s

deposition. Attached as “Exhibit R” is a true and accurate copy of SMBC’s Second

Revised Notice of Deposition for Plaintiff.

44. On November 21, 2022, Gray proposed and, on the following day, SMBC

agreed to, a Proposed Stipulation and Order requesting all factual discovery, including fact

depositions, be completed by February 28, 2023.

45. On November 29, 2022, Gray’s counsel filed the Proposed Stipulation and

Order.

46. On December 23, 2022, SMBC served its Third Revised Notice of Deposition

for Plaintiff, in which it noticed February 15, 2023, to take Plaintiff’s Deposition. Attached

as “Exhibit S” is a true and accurate copy of SMBC’s Third Revised Notice of Deposition

for Plaintiff.

47. The parties agreed to adjourn the February 15, 2023 date due to a personal

matter involving one of Plaintiff’s lawyers.

48. On February 7, 2023, SMBC served its Fourth Revised Notice of Deposition

for Plaintiff, in which it noticed March 15, 2022, to take Plaintiff’s deposition. Attached as

“Exhibit T” is a true and accurate copy of SMBC’s Fourth Revised Notice of Deposition for

Plaintiff.

49. On March 7, 2023, Gray’s counsel informed SMBC that they would not

produce Gray to be deposed until SMBC produced certain categories of documents.

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50. On March 8, 2023, the parties agreed, through email, that SMBC would take

Gray’s deposition on April 4, 2023, which Gray’s counsel made contingent on receiving

certain documents. Though done through email, this constituted SMBC’s Fifth Revised

Notice. Attached as “Exhibit U” is a true and accurate copy of Gray’s Email to SMBC’s

Counsel.

51. On March 29, 2023, SMBC notified Gray’s counsel that its collection and

review of the additional documents Gray was seeking was taking longer than expected and

sought to adjourn the April 4, 2023 deposition date. Attached as “Exhibit V” is a true and

accurate copy of SMBC’s Email to Gray.

52. On April 12, 2023, SMBC served its Sixth Notice of Deposition, in which it

noticed May 16, 2023, to take Plaintiff’s deposition. Gray’s counsel noted both were

available on May 16, 2023. Attached as “Exhibit W” is a true and accurate copy of SMBC’s

Sixth Revised Notice of Deposition for Plaintiff.

53. On April 18, 2023, Gray’s counsel informed SMBC that they were

“adjourning plaintiff’s deposition” until they believe SMBC’s production is “complete.”

DiNapoli Aff. Ex. X at 2. Attached as “Exhibit X” is a true and accurate copy of Gray’s

Letter to SMBC’s Counsel.

54. On April 20, 2023, SMBC informed Gray that it intended to proceed with

Gray’s deposition on May 16, 2023. DiNapoli Aff. Ex. Y at 2. Attached as “Exhibit Y” is a

true and accurate copy of SMBC’s Letter to Gray’s Counsel.

55. On May 1, 2023, I spoke with Mr. Sattiraju over the phone regarding the status

of Plaintiff’s deposition. The call lasted approximately five minutes. Mr. Sattiraju later

confirmed by email that Plaintiff.

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III. COPIES OF THE PLEADINGS

56. In accordance with Section 202.8-a(a) of the Uniform Civil Rules for the

Supreme Court & the County Court, the following pleadings are included:

57. Attached as “Exhibit Z” is a true and accurate copy of Plaintiff’s Complaint.

58. Attached as “Exhibit AA” is a true and accurate copy of SMBC’s Answer.

59. Attached as “Exhibit BB” is a true and accurate copy of Plaintiff’s Amended

Complaint, deemed filed by the Court’s November 15, 202 Order, NYSCEF No. 45

(“ORDERED that the plaintiff’s motion for leave to amend the complaint herein is granted,

and the amended complaint in the proposed form annexed to the moving papers shall be

deemed served upon service of a copy of this order with notice of entry thereof;”).

60. Attached as “Exhibit CC” is a true and accurate copy of SMBC’s Answer to

Plaintiff’s Amended Complaint.

Dated: New York, New York
May 2, 2023 Respectfully submitted,

SEYFARTH SHAW LLP

By: /s/ John T. DiNapoli
John T. DiNapoli

John DiNapoli, Esq.
620 Eighth Avenue
New York, NY 10018
Tel: (212) 218-3355
jdinapoli@seyfarth.com

Lynn Kappelman, Esq.
Seaport East
Two Seaport Lane, Suite 300
Boston, MA 02210-2028
Tel: (617) 946-4888
lkappelman@seyfarth.com

Attorneys for Defendant

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CERTIFICATION OF WORD COUNT

I hereby certify that the word count of this affirmation complies with the word limits of

22 New York Codes, Rules and Regulations § 202.8-b. According to the word-processing system

used to prepare this affirmation, the total word count for all printed text exclusive of the material

omitted under 22 N.Y.C.R.R. § 202.8-b(b) is 4,109 words.

Dated: New York, New York
May 2, 2023 Respectfully submitted,

SEYFARTH SHAW LLP

By: /s/ John T. DiNapoli
John T. DiNapoli

John DiNapoli, Esq.
620 Eighth Avenue
New York, NY 10018
Tel: (212) 218-3355
jdinapoli@seyfarth.com

Attorneys for Defendant

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Document Filed Date

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Case Filing Date

August 27, 2020

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Motion-Secondary: Joan Gray v. Smbc Capital Markets, Inc.

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