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FILED: KINGS COUNTY CLERK 10/10/2019 05:16 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/10/2019
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,
Wilson Elser
File No.
against
251100.0014
THE NEW YORK METHODIST HOSPITAL AND
1"
HENRY TISCHLER, M.D., "Jane/John Doe No.
12"
through "John/Jane Doe No. the last twelve
names being fictitious, their true names being
unknown to plaintiff, the persons intended being the
doctors, therapists, registered nurses, licensed
practical nurses, nurses aides, employees and other
agents of Defendant THE NEW YORK METHODIST
HOSPITAL who treated or had a duty toward
AFFIRMATION OF
Plaintiff's decedent during the period of Plaintiffs
,S ATTORNEY
decedent s hospitalization therem from March 4,
2014 through March 11, 2014,
Defendants.
CYE E. ROSS, ESQ., an attorney duly admitted to practice before the Courts of the State
of New York, hereby affirms under penalties of perjury:
1. I am the attorney for the Plaintiff in the above-entitled action, and as such I
am fully familiar with all of the facts and circumstances set forth herein.
2. I submit this affirmation in support of the motion by Plaintiff to strike the
answer of Defendants for failure to set a date for the deposition of Defendant Henry Tischler,
M.D.
3. This suit involves a fall by Plaintiff's decedent Girdine Caver that occurred
at New York Methodist Hospital. The Administrator of the Estate of Girdine Caver
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FILED: KINGS COUNTY CLERK 10/10/2019 05:16 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/10/2019
commenced a suit in Supreme Court alleging malpractice and negligence on the part of the
Defendants. A copy of the Verified Complaint is annexed hereto as Exhibit A.
4. A copy of the Verified Answer of Defendants is annexed hereto as Exhibit
B.
5. The Plaintiff attempted for many months in 2018 to obtain the depositions
of the nurses who treated Plaintiff and Dr. Henry Tischler, a defendant in this action, however
Defendant's attorneys refused to co-operate.
6. On November 8, 2018, an order was issued in the Final Conference Part with
respect to Discovery (See Exhibit C). The order provided, inter alia, that Defendant was to
produce nurse Myrovitch for deposition on or before January 30, 2019, nurse Friedman on
or before January 30, 2019, and Dr. Tischler on or before February 28, 2019.
Defendants'
7. Despite the order, attorneys engaged in dilatory tactics, and
refused to provide copies of the hospital protocols, claiming incorrectly that it did not have
computer records of the protocols.
8. Once the depositions of the nurses were completed, Plaintiff asked
Defendants'
attorneys to schedule the deposition of Dr. Tischler, but the requests were
ignored.
9. It ismy understanding that in July of this year, Steven B. Sarshik, Esq., who
Defendants'
has served as Of Counsel with respect to Plaintiff's action, informed attorneys
that Plaintiff intended to sever the action against Dr. Tischler and discontinue the action
against Dr. Tischler. This communication was an error and Plaintiff does not intend to
discontinue the action against Dr. Tischler.
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FILED: KINGS COUNTY CLERK 10/10/2019 05:16 PM INDEX NO. 521463/2016
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/10/2019
Defendants'
10. I sent a number of letters to the law firm asking for dates for
the deposition of Dr. Tischler. (See Exhibit "D"). The last letter was sent on September 24,
2019. Despite these letters, the law firm has not provided us with a date.
11. It ismy understanding that Steven B. Sarshik, Esq., called the law firm and
asked for a date for a deposition on October 3, 2019. The request was met with a text
response on October 3 from an associate at the firm: "Hi, Mr. Sarshik, on the Caver matter,
Paul Karp is the attorney handling this case. He is on trial. We are working on getting dates
soon."
for Dr. Tischler. Hopefully, we'll have dates for his deposition
12. Another week has passed and the law firm has still not provided any
proposed dates for the examination. Perhaps waiting for Defendants to finally focus on this
matter would not be a serious problem if there were still a long period of time until trial.
However, this matter has been on the trial calendar for almost a year and there must be a
trial in the next few months. Plaintiff should not have to conduct a deposition on the eve of
trial because the Defendant has not cooperated during discovery.
WHEREFORE, it isrespectfully requested that the motion be granted.
Dated: New York, New York
October 10, 2019
CYE . ROSS
GIRDINE\AFFIRMATION
L:\Accidents\CAVER, OF PLAINTIFF'SATTORNEY.10.8.19.docx
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FILED: KINGS COUNTY CLERK 10/10/2019 05:16 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/10/2019 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, Wilson Elser File No. against 251100.0014 THE NEW YORK METHODIST HOSPITAL AND 1" HENRY TISCHLER, M.D., "Jane/John Doe No. 12" through "John/Jane Doe No. the last twelve names being fictitious, their true names being unknown to plaintiff, the persons intended being the doctors, therapists, registered nurses, licensed practical nurses, nurses aides, employees and other agents of Defendant THE NEW YORK METHODIST HOSPITAL who treated or had a duty toward AFFIRMATION OF Plaintiff's decedent during the period of Plaintiffs ,S ATTORNEY decedent s hospitalization therem from March 4, 2014 through March 11, 2014, Defendants. CYE E. ROSS, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms under penalties of perjury: 1. I am the attorney for the Plaintiff in the above-entitled action, and as such I am fully familiar with all of the facts and circumstances set forth herein. 2. I submit this affirmation in support of the motion by Plaintiff to strike the answer of Defendants for failure to set a date for the deposition of Defendant Henry Tischler, M.D. 3. This suit involves a fall by Plaintiff's decedent Girdine Caver that occurred at New York Methodist Hospital. The Administrator of the Estate of Girdine Caver 1 of 3 FILED: KINGS COUNTY CLERK 10/10/2019 05:16 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/10/2019 commenced a suit in Supreme Court alleging malpractice and negligence on the part of the Defendants. A copy of the Verified Complaint is annexed hereto as Exhibit A. 4. A copy of the Verified Answer of Defendants is annexed hereto as Exhibit B. 5. The Plaintiff attempted for many months in 2018 to obtain the depositions of the nurses who treated Plaintiff and Dr. Henry Tischler, a defendant in this action, however Defendant's attorneys refused to co-operate. 6. On November 8, 2018, an order was issued in the Final Conference Part with respect to Discovery (See Exhibit C). The order provided, inter alia, that Defendant was to produce nurse Myrovitch for deposition on or before January 30, 2019, nurse Friedman on or before January 30, 2019, and Dr. Tischler on or before February 28, 2019. Defendants' 7. Despite the order, attorneys engaged in dilatory tactics, and refused to provide copies of the hospital protocols, claiming incorrectly that it did not have computer records of the protocols. 8. Once the depositions of the nurses were completed, Plaintiff asked Defendants' attorneys to schedule the deposition of Dr. Tischler, but the requests were ignored. 9. It ismy understanding that in July of this year, Steven B. Sarshik, Esq., who Defendants' has served as Of Counsel with respect to Plaintiff's action, informed attorneys that Plaintiff intended to sever the action against Dr. Tischler and discontinue the action against Dr. Tischler. This communication was an error and Plaintiff does not intend to discontinue the action against Dr. Tischler. 2 2 of 3 FILED: KINGS COUNTY CLERK 10/10/2019 05:16 PM INDEX NO. 521463/2016 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/10/2019 Defendants' 10. I sent a number of letters to the law firm asking for dates for the deposition of Dr. Tischler. (See Exhibit "D"). The last letter was sent on September 24, 2019. Despite these letters, the law firm has not provided us with a date. 11. It ismy understanding that Steven B. Sarshik, Esq., called the law firm and asked for a date for a deposition on October 3, 2019. The request was met with a text response on October 3 from an associate at the firm: "Hi, Mr. Sarshik, on the Caver matter, Paul Karp is the attorney handling this case. He is on trial. We are working on getting dates soon." for Dr. Tischler. Hopefully, we'll have dates for his deposition 12. Another week has passed and the law firm has still not provided any proposed dates for the examination. Perhaps waiting for Defendants to finally focus on this matter would not be a serious problem if there were still a long period of time until trial. However, this matter has been on the trial calendar for almost a year and there must be a trial in the next few months. Plaintiff should not have to conduct a deposition on the eve of trial because the Defendant has not cooperated during discovery. WHEREFORE, it isrespectfully requested that the motion be granted. Dated: New York, New York October 10, 2019 CYE . ROSS GIRDINE\AFFIRMATION L:\Accidents\CAVER, OF PLAINTIFF'SATTORNEY.10.8.19.docx 3 3 of 3