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FILED: BRONX COUNTY CLERK 05/12/2022 11:30 AM INDEX NO. 21169/2011E
NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 05/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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KELLEY PHILLIPS, Index No.: 21169/2011e
Plaintiff,
AFFIRMATION IN
- against - SUPPORT
DREW SWISS and MONTEFIORE MEDICAL CENTER,
Defendants.
-----------------------------------------------------------------------X
MICHELLE BOCHNER, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following, upon information and belief,
pursuant to CPLR §2106:
1. I am a Partner at the law firm of KIERNAN TREBACH LLP, counsel for the
Defendant, MONTEFIORE MEDICAL CENTER (the “Moving Defendant”), in the above-
entitled action. As such, I am fully familiar with the facts and circumstances as set forth herein,
the source of my knowledge being the file maintained by my office in the course of handling this
matter.
2. This motion is submitted in support of an Order pursuant to CPLR 8501 (a) and
8503, directing plaintiff to post a bond in the amount of no less than $7,500.00 as security for
costs, and granting such other and further relief as this Court deems just and proper.
3. Plaintiff KELLEY PHILLIPS commenced the above-captioned action arising out
of a motor vehicle accident that occurred on June 3, 2010 at approximately 10:30 a.m. on
Bainbridge Avenue at East 211th Street, Bronx, New York. See Exhibit “A”; NYSCEF Doc. No.
16.
4. Plaintiff herein is a resident of the State of Florida, as confirmed by the Verified
Bill of Particulars dated March 27, 2014. See Exhibit “B” and NYSCEF Doc. No. 48.
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5. This case is pending in Supreme Court, Bronx County. Plaintiff has not been
granted permission to proceed as a poor person and is a confirmed resident of Florida. As such,
the within motion is proper.
6. CPLR §8501(a) provides in relevant part: “as of right. Except where the plaintiff
has been granted permission to proceed as a poor person…upon motion by the defendant without
notice, the court or a judge thereof shall order security for costs to be given by the plaintiffs where
none of them is…a resident of the state where the motion is made.” CPLR §8501(a).
7. §8501(a) further sets forth that “security for costs shall be given by an undertaking
in an amount of five hundred dollars within the city of New York…or such greater amount as shall
be fixed by the court that the plaintiff shall pay all legal costs awarded to the defendant.”
8. CPLR §8503 provides, in pertinent part:
Security for costs shall be given by an undertaking in an amount of
five hundred dollars in counties within the city of New York, and
two hundred fifty dollars in all other counties, or such greater
amount as shall be fixed by the court that the plaintiff shall pay all
legal costs awarded to the defendant.
9. The Courts have held that a motion for security under CPLR §8501(a) can be made
without regard to plaintiff’s likelihood of success and that the statute should be strictly applied.
See Manente v Sorecon Corp., 22 AD2d 954, 255 NYS2d 1016 [1964]; see also Small v Stern, 65
AD3d 1326, 885 NYS2d 626 [2009]; Verdino v Alexandrou, 253 AD2d 553, 554, 677 NYS2d 368
[1998]; Gonzalez v Flushing Hosp. Med. Ctr., 245 AD2d 543, 666 NYS2d 502 [1997]; Scharaga
v Schwartzberg, 149 AD2d 578, 580, 540 NYS2d 451 [1989]).
10. Accordingly, it is respectfully requested that the Court grant the within motion and
post a bond for security to be paid by plaintiff.
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WHEREFORE it is respectfully submitted that the within motion should be granted in its
entirety.
Dated: Garden City, New York
May 11, 2022
Yours, etc.,
KIERNAN TREBACH LLP
By: _______________________________________
Michelle Bochner, Esq.
Attorneys for Defendants
MONTEFIORE MEDICAL CENTER
1305 Franklin Avenue, Suite 301
Garden City, NY 11530
Telephone No.: (212) 268-7535
File No.: 1978.0009
TO:
Michael A. Rose, Esq.
HACH & ROSE, LLP
Attorneys for Plaintiff
KELLEY PHILLIPS
112 Madison Avenue, 10th Floor
New York, New York 10016
(212) 779-0057
Linda Montes, Esq.
O’CONNOR MACGUINESS CONTE DOYLE
OLESON WATAON & LOFTUS, LLP
Attorneys for Defendant
DREW SWISS
One Barker Avenue, Suite 675
White Plains, New York 10601
(914) 948-4500
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CERTIFICATION OF COMPLIANCE WITH 22 NYCRR 202.8-b
I hereby certify, pursuant to 22 NYCRR 202.8-b, that the foregoing AFFIRMATION IN
SUPPORT complies with the word count limit set forth in the aforementioned section.
The total number of words inclusive of headings and footnotes, and exclusive of the
caption, table of contents, table of authorities, and signature block, is 684.
Dated: New York, New York
May 11, 2022
_____________________________________
MICHELLE BOCHNER, ESQ.
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Preview
FILED: BRONX COUNTY CLERK 05/12/2022 11:30 AM INDEX NO. 21169/2011E NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 05/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X KELLEY PHILLIPS, Index No.: 21169/2011e Plaintiff, AFFIRMATION IN - against - SUPPORT DREW SWISS and MONTEFIORE MEDICAL CENTER, Defendants. -----------------------------------------------------------------------X MICHELLE BOCHNER, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following, upon information and belief, pursuant to CPLR §2106: 1. I am a Partner at the law firm of KIERNAN TREBACH LLP, counsel for the Defendant, MONTEFIORE MEDICAL CENTER (the “Moving Defendant”), in the above- entitled action. As such, I am fully familiar with the facts and circumstances as set forth herein, the source of my knowledge being the file maintained by my office in the course of handling this matter. 2. This motion is submitted in support of an Order pursuant to CPLR 8501 (a) and 8503, directing plaintiff to post a bond in the amount of no less than $7,500.00 as security for costs, and granting such other and further relief as this Court deems just and proper. 3. Plaintiff KELLEY PHILLIPS commenced the above-captioned action arising out of a motor vehicle accident that occurred on June 3, 2010 at approximately 10:30 a.m. on Bainbridge Avenue at East 211th Street, Bronx, New York. See Exhibit “A”; NYSCEF Doc. No. 16. 4. Plaintiff herein is a resident of the State of Florida, as confirmed by the Verified Bill of Particulars dated March 27, 2014. See Exhibit “B” and NYSCEF Doc. No. 48. 1 of 4 FILED: BRONX COUNTY CLERK 05/12/2022 11:30 AM INDEX NO. 21169/2011E NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 05/12/2022 5. This case is pending in Supreme Court, Bronx County. Plaintiff has not been granted permission to proceed as a poor person and is a confirmed resident of Florida. As such, the within motion is proper. 6. CPLR §8501(a) provides in relevant part: “as of right. Except where the plaintiff has been granted permission to proceed as a poor person…upon motion by the defendant without notice, the court or a judge thereof shall order security for costs to be given by the plaintiffs where none of them is…a resident of the state where the motion is made.” CPLR §8501(a). 7. §8501(a) further sets forth that “security for costs shall be given by an undertaking in an amount of five hundred dollars within the city of New York…or such greater amount as shall be fixed by the court that the plaintiff shall pay all legal costs awarded to the defendant.” 8. CPLR §8503 provides, in pertinent part: Security for costs shall be given by an undertaking in an amount of five hundred dollars in counties within the city of New York, and two hundred fifty dollars in all other counties, or such greater amount as shall be fixed by the court that the plaintiff shall pay all legal costs awarded to the defendant. 9. The Courts have held that a motion for security under CPLR §8501(a) can be made without regard to plaintiff’s likelihood of success and that the statute should be strictly applied. See Manente v Sorecon Corp., 22 AD2d 954, 255 NYS2d 1016 [1964]; see also Small v Stern, 65 AD3d 1326, 885 NYS2d 626 [2009]; Verdino v Alexandrou, 253 AD2d 553, 554, 677 NYS2d 368 [1998]; Gonzalez v Flushing Hosp. Med. Ctr., 245 AD2d 543, 666 NYS2d 502 [1997]; Scharaga v Schwartzberg, 149 AD2d 578, 580, 540 NYS2d 451 [1989]). 10. Accordingly, it is respectfully requested that the Court grant the within motion and post a bond for security to be paid by plaintiff. 2 of 4 FILED: BRONX COUNTY CLERK 05/12/2022 11:30 AM INDEX NO. 21169/2011E NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 05/12/2022 WHEREFORE it is respectfully submitted that the within motion should be granted in its entirety. Dated: Garden City, New York May 11, 2022 Yours, etc., KIERNAN TREBACH LLP By: _______________________________________ Michelle Bochner, Esq. Attorneys for Defendants MONTEFIORE MEDICAL CENTER 1305 Franklin Avenue, Suite 301 Garden City, NY 11530 Telephone No.: (212) 268-7535 File No.: 1978.0009 TO: Michael A. Rose, Esq. HACH & ROSE, LLP Attorneys for Plaintiff KELLEY PHILLIPS 112 Madison Avenue, 10th Floor New York, New York 10016 (212) 779-0057 Linda Montes, Esq. O’CONNOR MACGUINESS CONTE DOYLE OLESON WATAON & LOFTUS, LLP Attorneys for Defendant DREW SWISS One Barker Avenue, Suite 675 White Plains, New York 10601 (914) 948-4500 3 of 4 FILED: BRONX COUNTY CLERK 05/12/2022 11:30 AM INDEX NO. 21169/2011E NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 05/12/2022 CERTIFICATION OF COMPLIANCE WITH 22 NYCRR 202.8-b I hereby certify, pursuant to 22 NYCRR 202.8-b, that the foregoing AFFIRMATION IN SUPPORT complies with the word count limit set forth in the aforementioned section. The total number of words inclusive of headings and footnotes, and exclusive of the caption, table of contents, table of authorities, and signature block, is 684. Dated: New York, New York May 11, 2022 _____________________________________ MICHELLE BOCHNER, ESQ. 4 of 4