Preview
FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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NAJAH STEVENS,
PLAINTIFF’S
Plaintiff, OPPOSITION TO
DEFENDANTS’
-against- DAMAGES MOTION IN
LIMINE
IRT PARTNERSHIP and SDHR MANAGEMENT, LLC,
Index No.: 521039/2017
Defendant.
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Memorandum of
Law
Plaintiff intends, and the Court should permit her, to introduce demonstrative evidence
during testimony via an expert witness. Specifically at issue is animated but photorealistic
illustrations describing and permitting the jury to visualization the injuries and resulting surgeries
Plaintiff has undergone. This type of demonstrative evidence is no different than the
commonplace use of photographs, anatomical models and diagrams at trial.
The Court should deny Defendants’ motion in limine seeking an Order precluding
Plaintiff from introducing demonstrative illustrations as untimely and as contrary to the standards
of admissibility for demonstrative evidence at trial.
Plaintiff also notes contrary to Defendants’ contention that five (5) demonstrative aids, as
opposed to four, were previously exchanged.
DEFENDANTS’ NEVER REJECTED PLAINTIFF’S MEDICAL
ILLUSTRATIONS
At the outset, Plaintiff, through her attorney, served an “Exchange of Illustrations” upon
Defendants and notified counsel of her intention to proffer the series of drawings at issue
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depicting the procedures in photorealistic detail. The exchange was served on October 30, 2023.
It is only now, on the day before a damages of trial, that Defendants raise any objection.
It is clear the timing of said objection is untimely and designed to cause surprise. This is
particularly the case as the illustrations have been discussed with the Court and the substance of
the illustrations have never been previously objected to. As such, the Court should summarily
reject Defendants’ application.
PLAINTIFF’S MEDICAL ILLUSTRATIONS FAIRLY AND ACCURATELY DEPICT
PLAINTIFF’S INJURIES AND SURGERIES, WHICH WILL HELP THE JURY
UNDERSTAND THE SAME, THEREBY CONSTITUTING ADMISSABLE
DEMONSTRATIVE EVIDENCE AT TRIAL
New York State has long recognized that the trial court is well within its discretion to
permit demonstrative evidence of injury in order to allow jurors to actually see the injury and its
effects for themselves. In the critical Court of Appeals decision
Harvey v. Mazel Partners, 79 NY2d 218, 223 (1992), the Court stated the law on the issue as
follows:
We have in past cases recognized the importance of demonstrative evidence and have
allowed parties to exhibit their injuries to the members of the jury. In Mulhado v.
Brooklyn City R. R. Co. (30 NY 370), for example, we permitted a plaintiff injured in an
accident on a city railroad car to exhibit his injured arm to the jury. In Clark v. Brooklyn
Hgts. R. R. Co. (177 NY 359), the Trial Judge permitted the plaintiff, who had been
injured in a collision, to leave the witness stand assisted and to exhibit himself to the jury
in the act of writing his name and taking a drink of water. The display was designed to
illustrate the plaintiff's testimony that he was afflicted by a tremor and could use his
hands only with difficulty. We stated that the decision whether to permit such
demonstrative evidence was entrusted to the discretion of the Trial Judge. “The object of
all evidence is to inform the trial tribunal of the material facts, which are relevant as
bearing upon the issue, in order that the truth may be elicited and that a just determination
of the controversy may be reached. It is not objectionable, in these cases, that the
evidence may go beyond the oral narrative and may be addressed to the senses; provided
that it be kept within reasonable limits by the exercise of a fair judicial discretion” (Id., at
361). Although we noted the possibility of simulation and deception and the potential for
unfairness to the defendant, we did not overturn the judgment of the lower courts because
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we considered the decision ultimately a matter of judicial discretion (Id., at 362).
In order to lay a foundation for the admission of demonstrative evidence, the proponent
need only satisfy a three-factor test and establish the following:
1. The evidence is relevant;
2. That the evidence fairly and accurately depicts that which it represents;
3. That the evidence would help the jury understanding the testimony.
See, People v. McHugh, 124 Misc.2d 559, 476 N.Y.S.2d 721 (Holding that a computer
reenactment was closely akin to the charts and diagrams routinely used by experts when
testifying, finding no significant difference between a computer-generated reenactment of an
accident or one which might be hand-drawn by an expert during trial testimony, and that the
same was proper to admit where a defendant, charged with manslaughter and driving while
intoxicated sought to introduce via expert testimony a computer-animated reenactment of the
subject accident) (Sup. Ct., Bronx Cnty. 1984); See, Kartychak v. Consolidated Edison of New
York, Inc., 304 AD2d 487 (1st Dept., 2003); Axelrod v. Rosenbaum, 205 AD2d 722 (2d Dept.,
1994); See, Liuni v. Haubert, 289 AD2d 729 (3d Dept., 2001) (illustrations can accompany
opinion evidence when they will assist the trier of fact).
In short, properly authenticated diagrams and photographs are
admissible. See, Richardson, ON EVIDENCE, 11th Edition, §§ 4-211, 4-212. And authentication
“merely requires ‘evidence sufficient to support a finding that the matter in question is what its
proponent claims.’” Prince, Richardson on Evidence, § 4-203 (citing F.R.E. § 901(a)). Thus,
illustrations that depict the anatomy of Plaintiff's injured body parts or the anatomy of his related
surgeries are admissible. The court has even found that any markings made to the illustrations
are equally admissible, as long as the witness using the aide establishes that the markings are
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correct. See, Clegg v. Metrop. S.R. Co., 1 AD 207, 37 NYS 130 (2d Dept. 1896), aff'd, 159 N.Y.
550 (1899) (additions to exhibit authenticated by witness permissible and noting “the propriety
of allowing a witness thus to aid his oral evidence has, so far as I know, never been questioned”).
Indeed, excluding such evidence and thereby preventing the jury from making their own
observations has been held an abuse of discretion. See, Dictz v. Aronson, 244 AD 746 (2d Dept.
1935). See also, Schaffer v. Rockmacher, 38 AD2d 835 (2d Dept., 1972); Isler v. Starke, 18
AD2d 1027 (2d Dept., 1963).
This is true even where the demonstrative evidence will tend to incite the jury against the
opposing party. To that point, Defendants curiously rely on People v. Pobliner, 32 N.Y.2d 356,
370 (1973) to argue that the prejudicial effects of Plaintiff’s illustrations outweighs the probative
value they might have and as such the illustrations should be precluded. While Plaintiff does not
agree with this general characterization of his illustrations, Pobliner does not even set out or
articulate this standard. That portion of Defendants’ motion papers that quote Pobliner is
incomplete and misleading.
Instead, Pobliner states:
Photographic evidence should be excluded only if its sole purpose is to arouse the
emotions of the jury and to prejudice the defendant (see Ann., Evidence—Photograph
of Corpse, 73 A.L.R.2d 769, 802—807, supra; cf. People v. Rial, 25 A.D.2d 28, 30, 266
N.Y.S.2d 426, 429; People v. Lewis, 7 A.D.2d 732, 180 N.Y.S.2d 606, Supra).
People v. Pobliner, 32 N.Y.2d 356, 370, 298 N.E.2d 637, 645–46 (1973)(emphasis added).
As the Court of Appeals further explained, the fact it might “portray a gruesome
spectacle and may tend to arouse passion and resentment against the defendant in the minds of
the jury” does not present grounds for excluding such evidence. People v. Pobliner, 32 N.Y.2d
356, 370, 298 N.E.2d 639-70 (1973).
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The illustrations at issue certainly are not designed for the “sole purpose” of arousing the
jury’s emotions and prejudicing the Defendants as the illustrations are not offered for this
purpose at all. Instead, the illustrations create for the jury a time line of the nature, scope and
development of Plaintiff’s injuries, past surgical procedures, and expected future surgical
procedures. The illustrations depict Plaintiff’s internal injuries and surgeries that cannot
otherwise be demonstrated by inspection of the Plaintiff or at all by their very nature. All
evidence sought to be admitted will be presented to the Court and jury supported by an
appropriate foundation and further supported by foundations created by Expert Witnesses.
These illustrations are brought to Court to provide the jury with an understandable picture
of the bones and orthopedic structure of the muscles, nerves and surrounding tissues that are not
visible on the surface of the body, the systems of the body that were injured, to show the nature
of the damage to the body systems that were implicated in the plaintiff's injuries, and
demonstrate the nature of the fusion surgeries alleged. See generally, Colon v. New York City
Housing Authority, 248 AD2d 254, 255 (1st Dept., 1998) (photographs depicting the infant
plaintiff's injury were not unduly inflammatory, and were properly admitted to help the jury
evaluate the medical testimony and assess plaintiff's pain and suffering); McNaier v. Manhattan
R. Co., 123 NY 664 (human skull admissible to explain injuries).
Moreover, Defendants’ own motion practice confirms for the Court that the illustrations
at issue are relevant and accurate. Ms. Kouril also notes the importance in her moving papers of
demonstrative aids. It’s only Plaintiff’s, apparently, that she finds objectionable.
As such, Plaintiff has satisfied the three-factor test and established the admissibility of his
medical illustrations.
COUNSEL’S APPLICATION TO PRECLUDE TESTIMONY REGARDING FUTURE
TREATMENT INVADES THE PROVENCE OF THE JURY AND CONTRADICTS HER
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OWN EXPERT REPORT
At the outset, Plaintiff notes that Defendants have misrepresented the context of the
testimony cited by plaintiff. Moreover,
Additionally, Counsel’s reliance on plaintiff’s counsel’s trial strategy has absolutely no
bearing on future medical treatment and Defendants’ presumption is laughable. Moreover, both
Plaintiff and Defendants’ expert reports have been exchanged and both speak to future medical
treatment.
All of Defendants’ remaining arguments are without basis in law and go only to matters
of credibility and findings of fact properly within the province of the jury.
Furthermore, with respect to Defendants’ argument that Ms. Stevens “unilateral decision to forgo
completing her physical therapy should constrain her ability to claim pain and suffering” again
misstates law and fact. Additionally, there is absolutely no evidence in the record that plaintiff
was non-complaint with medical treatment. Moreover, Plaintiff’s medical expert will opine as to
the reasonableness of treatment and Defendants’ are free to do the same. Lastly, none of the
cases cited by Defendants stand for the proposition proposed in their argument. Indeed, one such
case discusses the drilling of wells and is apropos of nothing.
PLAINTIFF NEVER CLAIMED HOUSEHOLD SERVICE
Defendants’ application as to “Point IV” is confused. Plaintiff has never made a claim for
loss of household services. As such, Defendants’ application is moot. Plaintiff’s ability to
perform or not perform household chores herself is relevant and Defendants are free to cross
Plaintiff on the same.
PLAINTIFF NEVER CLAIMED HER ORTHOPEDIC INJURY EXACERBATED HER
PULMONARY HYPERTENSION
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Defendants’ application as to “Point V” is also confused. Plaintiff has never made a claim
that Defendants caused her pre-existing pulmonary hypertension and Plaintiff has also never
claimed that her orthopedic injury exaggerated her pulmonary hypertension. As such,
Defendants’ application is moot. Plaintiff’s ability to enjoy her life as a result of her orthopedic
injury is what is claimed and relevant and Defendants are free to cross Plaintiff on the same.
CONCLUSION
For all of the foregoing reasons, this Court should deny Defendants’ application for an
Order precluding Plaintiff from introducing medical illustrations depicting plaintiff’s orthopedic
injuries and past and expected future surgeries.
The Court should deny the remainder of Defendants’ application as moot and invading
the province of the jury without support in law or fact.
Dated: New York, New York
November 7, 2023
Yours, etc.,
___________________________________________
Ashley Jacoby, Esq.
WINGATE RUSSOTTI SHAPIRO MOSES &
HALPERIN, LLP
Attorneys for Plaintiff
NAJAH N. STEVENS
420 Lexington Avenue
Suite 2700
New York, NY 10170
Tel: 212-986-7353
TO: Jeffrey B. Gold
The Gold Law Firm
Attorney for Defendant
SDHR MANAGEMENT, LLC
IRT PARTNERSHIP
1666 Newbridge Road
2nd Floor
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Bellmore, NY 11710
(516) 512-6334
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Preview
FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X NAJAH STEVENS, PLAINTIFF’S Plaintiff, OPPOSITION TO DEFENDANTS’ -against- DAMAGES MOTION IN LIMINE IRT PARTNERSHIP and SDHR MANAGEMENT, LLC, Index No.: 521039/2017 Defendant. --------------------------------------------------------------------X Memorandum of Law Plaintiff intends, and the Court should permit her, to introduce demonstrative evidence during testimony via an expert witness. Specifically at issue is animated but photorealistic illustrations describing and permitting the jury to visualization the injuries and resulting surgeries Plaintiff has undergone. This type of demonstrative evidence is no different than the commonplace use of photographs, anatomical models and diagrams at trial. The Court should deny Defendants’ motion in limine seeking an Order precluding Plaintiff from introducing demonstrative illustrations as untimely and as contrary to the standards of admissibility for demonstrative evidence at trial. Plaintiff also notes contrary to Defendants’ contention that five (5) demonstrative aids, as opposed to four, were previously exchanged. DEFENDANTS’ NEVER REJECTED PLAINTIFF’S MEDICAL ILLUSTRATIONS At the outset, Plaintiff, through her attorney, served an “Exchange of Illustrations” upon Defendants and notified counsel of her intention to proffer the series of drawings at issue 1 1 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 depicting the procedures in photorealistic detail. The exchange was served on October 30, 2023. It is only now, on the day before a damages of trial, that Defendants raise any objection. It is clear the timing of said objection is untimely and designed to cause surprise. This is particularly the case as the illustrations have been discussed with the Court and the substance of the illustrations have never been previously objected to. As such, the Court should summarily reject Defendants’ application. PLAINTIFF’S MEDICAL ILLUSTRATIONS FAIRLY AND ACCURATELY DEPICT PLAINTIFF’S INJURIES AND SURGERIES, WHICH WILL HELP THE JURY UNDERSTAND THE SAME, THEREBY CONSTITUTING ADMISSABLE DEMONSTRATIVE EVIDENCE AT TRIAL New York State has long recognized that the trial court is well within its discretion to permit demonstrative evidence of injury in order to allow jurors to actually see the injury and its effects for themselves. In the critical Court of Appeals decision Harvey v. Mazel Partners, 79 NY2d 218, 223 (1992), the Court stated the law on the issue as follows: We have in past cases recognized the importance of demonstrative evidence and have allowed parties to exhibit their injuries to the members of the jury. In Mulhado v. Brooklyn City R. R. Co. (30 NY 370), for example, we permitted a plaintiff injured in an accident on a city railroad car to exhibit his injured arm to the jury. In Clark v. Brooklyn Hgts. R. R. Co. (177 NY 359), the Trial Judge permitted the plaintiff, who had been injured in a collision, to leave the witness stand assisted and to exhibit himself to the jury in the act of writing his name and taking a drink of water. The display was designed to illustrate the plaintiff's testimony that he was afflicted by a tremor and could use his hands only with difficulty. We stated that the decision whether to permit such demonstrative evidence was entrusted to the discretion of the Trial Judge. “The object of all evidence is to inform the trial tribunal of the material facts, which are relevant as bearing upon the issue, in order that the truth may be elicited and that a just determination of the controversy may be reached. It is not objectionable, in these cases, that the evidence may go beyond the oral narrative and may be addressed to the senses; provided that it be kept within reasonable limits by the exercise of a fair judicial discretion” (Id., at 361). Although we noted the possibility of simulation and deception and the potential for unfairness to the defendant, we did not overturn the judgment of the lower courts because 2 2 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 we considered the decision ultimately a matter of judicial discretion (Id., at 362). In order to lay a foundation for the admission of demonstrative evidence, the proponent need only satisfy a three-factor test and establish the following: 1. The evidence is relevant; 2. That the evidence fairly and accurately depicts that which it represents; 3. That the evidence would help the jury understanding the testimony. See, People v. McHugh, 124 Misc.2d 559, 476 N.Y.S.2d 721 (Holding that a computer reenactment was closely akin to the charts and diagrams routinely used by experts when testifying, finding no significant difference between a computer-generated reenactment of an accident or one which might be hand-drawn by an expert during trial testimony, and that the same was proper to admit where a defendant, charged with manslaughter and driving while intoxicated sought to introduce via expert testimony a computer-animated reenactment of the subject accident) (Sup. Ct., Bronx Cnty. 1984); See, Kartychak v. Consolidated Edison of New York, Inc., 304 AD2d 487 (1st Dept., 2003); Axelrod v. Rosenbaum, 205 AD2d 722 (2d Dept., 1994); See, Liuni v. Haubert, 289 AD2d 729 (3d Dept., 2001) (illustrations can accompany opinion evidence when they will assist the trier of fact). In short, properly authenticated diagrams and photographs are admissible. See, Richardson, ON EVIDENCE, 11th Edition, §§ 4-211, 4-212. And authentication “merely requires ‘evidence sufficient to support a finding that the matter in question is what its proponent claims.’” Prince, Richardson on Evidence, § 4-203 (citing F.R.E. § 901(a)). Thus, illustrations that depict the anatomy of Plaintiff's injured body parts or the anatomy of his related surgeries are admissible. The court has even found that any markings made to the illustrations are equally admissible, as long as the witness using the aide establishes that the markings are 3 3 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 correct. See, Clegg v. Metrop. S.R. Co., 1 AD 207, 37 NYS 130 (2d Dept. 1896), aff'd, 159 N.Y. 550 (1899) (additions to exhibit authenticated by witness permissible and noting “the propriety of allowing a witness thus to aid his oral evidence has, so far as I know, never been questioned”). Indeed, excluding such evidence and thereby preventing the jury from making their own observations has been held an abuse of discretion. See, Dictz v. Aronson, 244 AD 746 (2d Dept. 1935). See also, Schaffer v. Rockmacher, 38 AD2d 835 (2d Dept., 1972); Isler v. Starke, 18 AD2d 1027 (2d Dept., 1963). This is true even where the demonstrative evidence will tend to incite the jury against the opposing party. To that point, Defendants curiously rely on People v. Pobliner, 32 N.Y.2d 356, 370 (1973) to argue that the prejudicial effects of Plaintiff’s illustrations outweighs the probative value they might have and as such the illustrations should be precluded. While Plaintiff does not agree with this general characterization of his illustrations, Pobliner does not even set out or articulate this standard. That portion of Defendants’ motion papers that quote Pobliner is incomplete and misleading. Instead, Pobliner states: Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant (see Ann., Evidence—Photograph of Corpse, 73 A.L.R.2d 769, 802—807, supra; cf. People v. Rial, 25 A.D.2d 28, 30, 266 N.Y.S.2d 426, 429; People v. Lewis, 7 A.D.2d 732, 180 N.Y.S.2d 606, Supra). People v. Pobliner, 32 N.Y.2d 356, 370, 298 N.E.2d 637, 645–46 (1973)(emphasis added). As the Court of Appeals further explained, the fact it might “portray a gruesome spectacle and may tend to arouse passion and resentment against the defendant in the minds of the jury” does not present grounds for excluding such evidence. People v. Pobliner, 32 N.Y.2d 356, 370, 298 N.E.2d 639-70 (1973). 4 4 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 The illustrations at issue certainly are not designed for the “sole purpose” of arousing the jury’s emotions and prejudicing the Defendants as the illustrations are not offered for this purpose at all. Instead, the illustrations create for the jury a time line of the nature, scope and development of Plaintiff’s injuries, past surgical procedures, and expected future surgical procedures. The illustrations depict Plaintiff’s internal injuries and surgeries that cannot otherwise be demonstrated by inspection of the Plaintiff or at all by their very nature. All evidence sought to be admitted will be presented to the Court and jury supported by an appropriate foundation and further supported by foundations created by Expert Witnesses. These illustrations are brought to Court to provide the jury with an understandable picture of the bones and orthopedic structure of the muscles, nerves and surrounding tissues that are not visible on the surface of the body, the systems of the body that were injured, to show the nature of the damage to the body systems that were implicated in the plaintiff's injuries, and demonstrate the nature of the fusion surgeries alleged. See generally, Colon v. New York City Housing Authority, 248 AD2d 254, 255 (1st Dept., 1998) (photographs depicting the infant plaintiff's injury were not unduly inflammatory, and were properly admitted to help the jury evaluate the medical testimony and assess plaintiff's pain and suffering); McNaier v. Manhattan R. Co., 123 NY 664 (human skull admissible to explain injuries). Moreover, Defendants’ own motion practice confirms for the Court that the illustrations at issue are relevant and accurate. Ms. Kouril also notes the importance in her moving papers of demonstrative aids. It’s only Plaintiff’s, apparently, that she finds objectionable. As such, Plaintiff has satisfied the three-factor test and established the admissibility of his medical illustrations. COUNSEL’S APPLICATION TO PRECLUDE TESTIMONY REGARDING FUTURE TREATMENT INVADES THE PROVENCE OF THE JURY AND CONTRADICTS HER 5 5 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 OWN EXPERT REPORT At the outset, Plaintiff notes that Defendants have misrepresented the context of the testimony cited by plaintiff. Moreover, Additionally, Counsel’s reliance on plaintiff’s counsel’s trial strategy has absolutely no bearing on future medical treatment and Defendants’ presumption is laughable. Moreover, both Plaintiff and Defendants’ expert reports have been exchanged and both speak to future medical treatment. All of Defendants’ remaining arguments are without basis in law and go only to matters of credibility and findings of fact properly within the province of the jury. Furthermore, with respect to Defendants’ argument that Ms. Stevens “unilateral decision to forgo completing her physical therapy should constrain her ability to claim pain and suffering” again misstates law and fact. Additionally, there is absolutely no evidence in the record that plaintiff was non-complaint with medical treatment. Moreover, Plaintiff’s medical expert will opine as to the reasonableness of treatment and Defendants’ are free to do the same. Lastly, none of the cases cited by Defendants stand for the proposition proposed in their argument. Indeed, one such case discusses the drilling of wells and is apropos of nothing. PLAINTIFF NEVER CLAIMED HOUSEHOLD SERVICE Defendants’ application as to “Point IV” is confused. Plaintiff has never made a claim for loss of household services. As such, Defendants’ application is moot. Plaintiff’s ability to perform or not perform household chores herself is relevant and Defendants are free to cross Plaintiff on the same. PLAINTIFF NEVER CLAIMED HER ORTHOPEDIC INJURY EXACERBATED HER PULMONARY HYPERTENSION 6 6 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 Defendants’ application as to “Point V” is also confused. Plaintiff has never made a claim that Defendants caused her pre-existing pulmonary hypertension and Plaintiff has also never claimed that her orthopedic injury exaggerated her pulmonary hypertension. As such, Defendants’ application is moot. Plaintiff’s ability to enjoy her life as a result of her orthopedic injury is what is claimed and relevant and Defendants are free to cross Plaintiff on the same. CONCLUSION For all of the foregoing reasons, this Court should deny Defendants’ application for an Order precluding Plaintiff from introducing medical illustrations depicting plaintiff’s orthopedic injuries and past and expected future surgeries. The Court should deny the remainder of Defendants’ application as moot and invading the province of the jury without support in law or fact. Dated: New York, New York November 7, 2023 Yours, etc., ___________________________________________ Ashley Jacoby, Esq. WINGATE RUSSOTTI SHAPIRO MOSES & HALPERIN, LLP Attorneys for Plaintiff NAJAH N. STEVENS 420 Lexington Avenue Suite 2700 New York, NY 10170 Tel: 212-986-7353 TO: Jeffrey B. Gold The Gold Law Firm Attorney for Defendant SDHR MANAGEMENT, LLC IRT PARTNERSHIP 1666 Newbridge Road 2nd Floor 7 7 of 8 FILED: KINGS COUNTY CLERK 11/07/2023 08:33 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 11/07/2023 Bellmore, NY 11710 (516) 512-6334 8 8 of 8