Motion-Secondary: Carlton L. Moitt Jr. as Administrator of the Estate of CYNTHIA MOITT v. Throgs Neck Operating Co.Llc, Throgs Neck Rehabilitation & Nursing Center, Elena Vezza Md

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                                FILED: BRONX COUNTY CLERK 06/08/2021 11:57 AM                                                   INDEX NO. 35921/2020E
NYSCEF DOC. NO. 31                                                                     RECEIVED NYSCEF: 06/08/2021




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF BRONX
          ========================================X
          CARLTON L. MOITT JR., as Administrator of the ESTATE
          OF CYNTHIA MOITT,                                               Index No.: 35921/2020E


                                                Plaintiff,                AFFIRMATION IN
                           -against-                                      SUPPORT


          THROGS NECK OPERATING CO. LLC., THROGS NECK
          REHABILITATION & NURSING CENTER, and ELENA
          VEZZA, M.D.,
                                    Defendants.

          ========================================X

                 MICHAEL A. FRUHLING, an attorney duly admitted to practice law in the Courts of the

          State of New York, affirms the following to be true under the penalties of perjury:

                 1.      I am a member of the law firm of GERSOWITZ, LIBO & KOREK P.C., attorneys

          for Plaintiff, CARLTON MOITT JR., as Administrator of the Estate of CYNTHIA MOITT, and

          as such, I am familiar with the proceedings heretofore had herein.

                 2.      This Affirmation is submitted in support of the within motion for an Order (1)

          extending the time for Plaintiff to file a Notice of Medical Malpractice Action pursuant to CPLR

          3406; and (2) deeming Plaintiff’s Notice of Medical Malpractice Action duly served and filed,

          nunc pro tunc. (Annexed hereto as Exhibit “A” is a copy of the proposed Notice of Medical

          Malpractice Action).

                 3.      The within action was brought to recover for the severe personal injuries sustained

          by the Plaintiff, CARLTON MOITT JR., as Administrator of the Estate of CYNTHIA MOITT,

          as a result of the medical malpractice and negligence of the Defendants herein.

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FILED: BRONX COUNTY CLERK 06/08/2021 11:57 AM                                                     INDEX NO. 35921/2020E
NYSCEF DOC. NO. 31                                                                        RECEIVED NYSCEF: 06/08/2021




                                         PROCEDURAL HISTORY

                   4.    This action was commenced on December 31, 2020, by the e-filing of a

          Certificate of Merit, Summons and Verified Complaint with the Clerk of the Court, County of

          Bronx. Service of the Certificate of Merit, Summons and Verified Complaint was effectuated on

          the Defendants on January 22, 2021. Thereafter, the affidavits of service were e-filed with the

          Court.

                   5.    Issue was joined on behalf of Defendants THROGS NECK OPERATING CO.

          LLC., THROGS NECK REHABILITATION & NURSING CENTER, on January 29, 2021 and

          Defendant, ELENA VEZZA, M.D., on March 8, 2021 (Copies of the pleadings are annexed to

          the proposed Notice of Medical Malpractice Action, annexed hereto Exhibit A.)

                   6.   On May 7, 2021 and June 2, 2021, your affirmant served defense counsel with

          Verified Bills of Particulars. (Copies of the Bills of Particulars are annexed to the proposed

          Notice of Medical Malpractice Action as Exhibit A.)

                   7.   As a result of the increased workload, your affirmant's office failed to file a Notice

          of Medical Malpractice Action within sixty (60) days of the date of joinder of issue.

                   8.    Defendants, having been served with Bills of Particulars, will suffer no prejudice

          should this Court grant Plaintiff’s application. Plaintiff’s failure to file a Notice of Medical

          Malpractice Action within sixty (60) days of joinder of issue was unintentional.

                   9.    Finally, this Court should be aware that dismissal of an action is not an authorized

          sanction for failure to timely file a notice of malpractice action. Tewari v. Tsoutsouras, 75

          N.Y.2d 1 (1989); Bradstreet v. Kruger, 162 A.D.2d 966, 557 N.Y.S.2d 1 (4th Dep't 1990).




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FILED: BRONX COUNTY CLERK 06/08/2021 11:57 AM                                                     INDEX NO. 35921/2020E
NYSCEF DOC. NO. 31                                                                        RECEIVED NYSCEF: 06/08/2021




                 10.       Accordingly, it is respectfully requested that this Court issue an Order (1)

          extending the time for Plaintiff to file a Notice of Medical Malpractice Action pursuant to CPLR

          3406 and (2) deeming Plaintiff’s Notice of Medical Malpractice Action duly served and filed,

          nunc pro tunc.

                 WHEREFORE, your affirmant respectfully requests that the within motion be granted in

          its entirety and for such other and further relief which this Court deems just and proper.

          Dated: New York, New York
                 June 7, 2021

                                                          _________________________
                                                          MICHAEL A. FRUHLING




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