Preview
FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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HELENA CYGAN,
Index No.: 715037/2021
Plaintiff,
-against- RESPONSE TO THIRD-
PARTY DEFENDANT’S
COMBINED DEMANDS
ANDREW GOUZOULIS and JOSEPH TOMLINSON,
Defendants.
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ANDREW GOUZOULIS and JOSEPH TOMLINSON,
Third-Party Plaintiffs,
-against-
ZABKA DELI, INC.,
Third-Party Defendant.
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Plaintiff, HELENA CYGAN, by her attorneys, BLOCK O’TOOLE & MURPHY, LLP,
responding to Third-Party Defendant, ZABKA DELI, INC.’s, Combined Demands dated February
15, 2023, alleges, upon information and belief, as follows:
RESPONSE TO DEMAND FOR THE NAMES AND ADDRESSES OF WITNESSES,
INCLUDING NOTICE WITNESSES
Vanessa Wieslawa. Plaintiff reserves the right to amend and/or supplement this response
should additional witnesses become available through discovery and/or investigation, up to and
including the time of trial. Plaintiff reserves the right to call anyone that is identified during
discovery as having knowledge of the premises at issue.
RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF ANY
STATEMENT OF THIRD-PARTY DEFENDANT
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Upon information and belief, Plaintiff is not in possession of any statements responsive to
this demand. Plaintiff reserves the right to amend and/or supplement this response should any
statements become available through discovery and/or investigation, up to and including the time
of trial.
RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF MEDICAL
INFORMATION AND AUTHORIZATIONS
Enclosed please find copies of medical records currently in Plaintiff’s possession from the
following medical providers:
• Lenox Hill Radiology, 55-01 Myrtle Ave, Queens, NY 11385;
• Lenox Hill Radiology | Columbus Circle Imaging, 5 Columbus Cir Floor 9, New
York, NY 10019;
• Centers Urgent Care, 6122G Fresh Pond Road, Middle Village, NY 11379;
• Kevin E. Wright, M.D., 51 East 25th Street, 6th Floor, New York, NY 10010;
• McCulloch Orthopaedic Surgical Services, PLLC, 110 Duane Street, Manhattan,
NY 10007-9993;
• New York Sports and Joints Orthopaedic Specialists, 110 Duane Street, Ground
Floor, New York, NY 10007;
• Grzegorz Kozikowski, MD / Comprehensive Pain Medicine, 60-51 69th Avenue,
Ridgewood, NY 11385;
• Jerzy Wawerski, MD, 66-57 Forest Avenue, Ridgewood, NY 11385;
• Precision Accelerad, 222 East 68th Street, New York, NY 10065;
• Center for Musculoskeletal and Neurological Care, 110 Duane Street, New York,
NY 10007;
• New Horizon Surgical Center, L.L.C., 680 Broadway, Suite 201, Paterson, NJ
07514;
• Fresh Pond Physical Therapy, 68-05 Fresh Pond Road, Ridgewood, NY 11385;
• Surgicore Surgical Center, 444 Market Street, Suite 1, Saddle Brook, NJ 07663.
Annexed hereto are duly executed HIPAA compliant authorizations to obtain Plaintiff’s
medical and billing records from the following medical providers:
• Lenox Hill Radiology, 55-01 Myrtle Ave, Queens, NY 11385;
• Lenox Hill Radiology | Columbus Circle Imaging, 5 Columbus Cir Floor 9, New
York, NY 10019;
• Centers Urgent Care, 6122G Fresh Pond Road, Middle Village, NY 11379;
• Kevin E. Wright, M.D., 51 East 25th Street, 6th Floor, New York, NY 10010;
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• McCulloch Orthopaedic Surgical Services, PLLC, 110 Duane Street, Manhattan,
NY 10007-9993;
• New York Sports and Joints Orthopaedic Specialists, 110 Duane Street, Ground
Floor, New York, NY 10007;
• Grzegorz Kozikowski, MD / Comprehensive Pain Medicine, 60-51 69th Avenue,
Ridgewood, NY 11385;
• Jerzy Wawerski, MD, 66-57 Forest Avenue, Ridgewood, NY 11385;
• Precision Accelerad, 222 East 68th Street, New York, NY 10065;
• Fresh Pond Physical Therapy, 68-05 Fresh Pond Road, Ridgewood, NY 11385;
• Center for Musculoskeletal and Neurological Care, 110 Duane Street, New York,
NY 10007;
• New Horizon Surgical Center, L.L.C., 680 Broadway, Suite 201, Paterson, NJ
07514;
• Surgicore Surgical Center, 444 Market Street, Suite 1, Saddle Brook, NJ 07663;
• JRX Pharmacy, 65-15 Fresh Pond Road, Ridgewood, NY 11385.
DEMAND FOR DISCOVERY AND INSPECTION OF PHOTOGRAPHS, VIDEOS AND
AUDIO RECORDINGS
Enclosed is one (1) photograph is Plaintiff’s possession. Plaintiff reserves the right to
supplement this response should any additional photographs depicting the condition of the
premises at the time and place of the happening of the occurrence become available through
discovery and/or investigation, up to and including the time of trial.
RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF
INCOME TAX RETURNS
Objection. Third-Party Defendant was a Plaintiff’s employer at the time of the accident
and, therefore, has access to Plaintiff’s employment records. Plaintiff is also providing a HIPAA
authorization to obtain Plaintiff’s records directly from Workers’ Compensation Insurance Carrier.
See Plaintiff’s response, infra.
RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF
ACCIDENT REPORT
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Upon information and belief, Plaintiff is not in possession of any items responsive to this
demand. Plaintiff reserves the right to amend and/or supplement this response should any items
become available through discovery and/or investigation, up to and including the time of trial.
RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF ATTORNEYS’
NAMES
BLOCK O’TOOLE & MURPHY, LLP
Attorneys for Plaintiff
HELENA CYGAN
One Penn Plaza, Suite 5315
New York, New York 10119
Phone: (212) 736-5300
AHMUTY DEMERS & McMANUS, ESQS.
Attorneys for Defendants/Third-Party Plaintiffs
ANDREW GOUZOULIS and
JOSEPH TOMLINSON
200 I.U. Willets Road
Albertson, New York 11507
Phone (516) 535-1832
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Third-Party Defendant
ZABKA DELI, INC.
50 Route 111, Suite 314
Smithtown, New York 11787
Phone (631) 724-8833
RESPONSE TO DEMAND FOR AUTHORIZATIONS TO DISCOVER AND INSPECT
PLAINTIFF’S SCHOOL RECORDS
Not Applicable. Plaintiff was not a student at the time of the accident.
RESPONSE TO DEMAND FOR AUTHORIZATIONS TO DISCOVER AND INSPECT
PLAINTIFF’S WORKERS’ COMPENSATION FILE
Annexed hereto is a duly executed HIPAA-compliant authorization to obtain a copy of
Plaintiff’s file from the Workers’ Compensation carrier, WESCO Insurance Company’s,
authorized agent, AmTrust Financial Services, Inc., PO Box 89404, Cleveland, OH 44101-1935.
Claim Number: 3364445-1.
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RESPONSE TO DEMAND FOR AUTHORIZATIONS TO DISCOVER AND INSPECT
PLAINTIFF’S EMPLOYMENT RECORDS
Third-Party Defendant ZABKA DELI is in possession of Plaintiff’s employment records
as Plaintiff was employed by said Third-Party Defendant.
RESPONSE TO DEMAND FOR INFORMATION RE EXPERT(S)
PURSUANT TO CPLR 3101(D)
Plaintiff has not retained the services of an expert witness to date. If Plaintiff retains an
expert witness, the identity of same, the complete qualifications and the summary of the grounds
for the expert’s opinion on which such he/she is expected to testify of same will be forwarded to
defense counsel under separate cover.
RESPONSE TO DEMAND PURSUANT TO CPLR 4545
Upon information and belief, all or part of Plaintiff’s treatment was and/or is being covered
by the Workers’ Compensation Insurance Carrier – WESCO Insurance Company, PO Box 6935,
Cleveland, OH 44101-1935.
RESPONSE TO DEMAND FOR STATEMENT OF MONETARY DAMAGES
PURSUANT TO CPLR 3017(C)
Plaintiff objects to this demand as improper pursuant to the CPLR. Plaintiff has not
pleaded a cause of action against Third-Party Defendant, ZABKA DELI, INC.
RESPONSE TO DEMAND FOR HIPAA AUTHORIZATIONS FOR TRIAL
Trial Authorizations will be provided within the time period set by the Court in a Court
Order issued in this Action.
REQUEST FOR NOTICE OF NON-EMERGENCY SURGERY AS PER CPLR 3121(A)
Objection. Improper demand. “[T]he condition of one’s body is not the type of evidence
that is subject to a spoilation analysis.” “The state of one’s body is fundamentally different from
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inanimate evidence, and medical treatment, including surgery, is entirely distinct from the
destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate.
To find that a person has an “obligation,” to preserve his or her body in an injured state so that a
defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our
own bodies.” Id. “Plaintiffs must be free to determine when to undergo medical treatments based
on personal factors such as doctor’s advice and their specific pain and discomfort level. It would
be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an
injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the
injury.” See Gilliam v Uni Holdings, 201 AD3d 83 [1st Dept 2021], lv to appeal dismissed, 38
NY3d 1119 [2022]. See also Fadeau v Corona Indus. Corp., 217 AD3d 1 [2d Dept 2023].
RESPONSE TO DEMAND TO PRESERVE PLAINTIFF’S SOCIAL MEDIA
ACCOUNTS
Plaintiff objects to this demand. Irrelevant Demand. Third-Party Defendant seeks information that
is invasive of the Plaintiff’s privacy and is irrelevant to any issue in this action. Such information is not
calculated to lead to the discovery of evidence, and would result in the disclosure of information where
such disclosure would violate the privacy rights of the Plaintiff.
RESPONSE TO DEMAND FOR CELL PHONE RECORDS
Plaintiff objects to this request on the ground that it is overbroad and unduly burdensome.
It thus seeks documents that are neither relevant to the issues in dispute in this action nor
reasonably calculated to lead to the discovery of admissible evidence. See Carpio v. Leahy
Mechanical Corp., 30 AD3d 554, 816 N.Y.S.2d 762; Auerbach v. Klein, 30 A.D.3d 451, 816
N.Y.S.2d 376.
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RESPONSE TO NOTICE OF EBT
Plaintiff is ready and willing to appear at her deposition on the designated by the parties
on consent date and time.
RESPONSE TO NOTICE OF REFUSAL TO ACCEPT SERVICE OF PAPERS BY FAX
Acknowledged.
RESPONSE TO DEMAND PURSUANT TO MEDICAID/MEDICARE
Plaintiff objects to the demand whether Plaintiff ever received benefits from Medicare
and/or Medicaid as improper, unduly burdensome and not reasonably calculated to uncover
discoverable material that would further any defense to any cause of action.
Upon information and belief, Plaintiff has not made a claim or received Medicare benefits
as a result of the subject accident. The information regarding Medicaid benefits will be provided
under separate cover, if applicable.
RESPONSE TO DEMAND FOR PRODUCTION AS TO PRIOR AND SUBSEQUENT
RELATED INJURIES AND CONDITIONS
Plaintiff objects to this demand as overly broad, ambiguous, requesting the inference of a
legal conclusion, and otherwise improper for a demand for documents pursuant to the CPLR.
Without waiving said objection, upon information and belief, Plaintiff did not have any prior or
subsequent accidents.
RESPONSE TO DEMAND PURSUANT TO CPLR 306-C
Plaintiff objects to this demand as improper, unduly burdensome and not reasonably
calculated to uncover discoverable material that would further any defense to any cause of action.
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RESPONSE TO DEMAND FOR PRIOR PLEADINGS AND DISCOVERY
Third-Party Defendant is referred to NYSCEF as this Action is an e-filed case and all
documents are available for public access.
PLEASE TAKE FURTHER NOTICE, that Plaintiff reserves the right to supplement,
amend or modify each of the above responses upon receipt of additional discovery and
information, up to and including the time of trial.
PLEASE TAKE FURTHER NOTICE, that at the time of trial plaintiff will rely on the
information provided in these records.
Dated: New York, New York
October 13, 2023
Yours, etc.
____________________________
OLGA BAGINSKI, ESQ.
BLOCK O’TOOLE & MURPHY, LLP
Attorneys for Plaintiff
HELENA CYGAN
One Penn Plaza, Suite 5315
New York, New York 10119
Phone: (212) 736-5300
Our File No.: 5016
TO: DEVITT SPELLMAN BARRETT, LLP
Attorneys for Third-Party Defendant
ZABKA DELI, INC.
50 Route 111, Suite 314
Smithtown, New York 11787
Phone (631) 724-8833
CC: AHMUTY DEMERS & McMANUS, ESQS.
Attorneys for Defendants/Third-Party Plaintiffs
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ANDREW GOUZOULIS and
JOSEPH TOMLINSON
200 I.U. Willets Road
Albertson, New York 11507
Phone (516) 535-1832
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Olga Baginski, being duly sworn, deposes and says:
I am over 18 years of age, I am not a party to the action, and I reside in Bergen County, in
the State of New Jersey.
I served a true copy of the annexed PLAINTIFF’S RESPONSE TO THIRD-PARTY
DEFENDANT’S COMBINED DEMANDS on October 13, 2023 by e-filing same to NYSCEF,
by e-mailing same, and/or depositing a true copy thereof enclosed in a post-paid wrapper, in an
official depository where in the ordinary course of business would come under the exclusive care
and custody of the U.S. Postal Service within New York State, addressed to each of the following
persons at the last known address set forth after each name:
DEVITT SPELLMAN BARRETT, LLP
50 Route 111, Suite 314
Smithtown, New York 11787
AHMUTY DEMERS & McMANUS, ESQS.
200 I.U. Willets Road
Albertson, New York 11507
___________________________
Olga Baginski
Sworn to before me on this
13th Day of October, 2023
____________________________
NOTARY PUBLIC
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Preview
FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------X HELENA CYGAN, Index No.: 715037/2021 Plaintiff, -against- RESPONSE TO THIRD- PARTY DEFENDANT’S COMBINED DEMANDS ANDREW GOUZOULIS and JOSEPH TOMLINSON, Defendants. --------------------------------------------------------------------X ANDREW GOUZOULIS and JOSEPH TOMLINSON, Third-Party Plaintiffs, -against- ZABKA DELI, INC., Third-Party Defendant. --------------------------------------------------------------------X Plaintiff, HELENA CYGAN, by her attorneys, BLOCK O’TOOLE & MURPHY, LLP, responding to Third-Party Defendant, ZABKA DELI, INC.’s, Combined Demands dated February 15, 2023, alleges, upon information and belief, as follows: RESPONSE TO DEMAND FOR THE NAMES AND ADDRESSES OF WITNESSES, INCLUDING NOTICE WITNESSES Vanessa Wieslawa. Plaintiff reserves the right to amend and/or supplement this response should additional witnesses become available through discovery and/or investigation, up to and including the time of trial. Plaintiff reserves the right to call anyone that is identified during discovery as having knowledge of the premises at issue. RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF ANY STATEMENT OF THIRD-PARTY DEFENDANT 1 1 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 Upon information and belief, Plaintiff is not in possession of any statements responsive to this demand. Plaintiff reserves the right to amend and/or supplement this response should any statements become available through discovery and/or investigation, up to and including the time of trial. RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF MEDICAL INFORMATION AND AUTHORIZATIONS Enclosed please find copies of medical records currently in Plaintiff’s possession from the following medical providers: • Lenox Hill Radiology, 55-01 Myrtle Ave, Queens, NY 11385; • Lenox Hill Radiology | Columbus Circle Imaging, 5 Columbus Cir Floor 9, New York, NY 10019; • Centers Urgent Care, 6122G Fresh Pond Road, Middle Village, NY 11379; • Kevin E. Wright, M.D., 51 East 25th Street, 6th Floor, New York, NY 10010; • McCulloch Orthopaedic Surgical Services, PLLC, 110 Duane Street, Manhattan, NY 10007-9993; • New York Sports and Joints Orthopaedic Specialists, 110 Duane Street, Ground Floor, New York, NY 10007; • Grzegorz Kozikowski, MD / Comprehensive Pain Medicine, 60-51 69th Avenue, Ridgewood, NY 11385; • Jerzy Wawerski, MD, 66-57 Forest Avenue, Ridgewood, NY 11385; • Precision Accelerad, 222 East 68th Street, New York, NY 10065; • Center for Musculoskeletal and Neurological Care, 110 Duane Street, New York, NY 10007; • New Horizon Surgical Center, L.L.C., 680 Broadway, Suite 201, Paterson, NJ 07514; • Fresh Pond Physical Therapy, 68-05 Fresh Pond Road, Ridgewood, NY 11385; • Surgicore Surgical Center, 444 Market Street, Suite 1, Saddle Brook, NJ 07663. Annexed hereto are duly executed HIPAA compliant authorizations to obtain Plaintiff’s medical and billing records from the following medical providers: • Lenox Hill Radiology, 55-01 Myrtle Ave, Queens, NY 11385; • Lenox Hill Radiology | Columbus Circle Imaging, 5 Columbus Cir Floor 9, New York, NY 10019; • Centers Urgent Care, 6122G Fresh Pond Road, Middle Village, NY 11379; • Kevin E. Wright, M.D., 51 East 25th Street, 6th Floor, New York, NY 10010; 2 2 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 • McCulloch Orthopaedic Surgical Services, PLLC, 110 Duane Street, Manhattan, NY 10007-9993; • New York Sports and Joints Orthopaedic Specialists, 110 Duane Street, Ground Floor, New York, NY 10007; • Grzegorz Kozikowski, MD / Comprehensive Pain Medicine, 60-51 69th Avenue, Ridgewood, NY 11385; • Jerzy Wawerski, MD, 66-57 Forest Avenue, Ridgewood, NY 11385; • Precision Accelerad, 222 East 68th Street, New York, NY 10065; • Fresh Pond Physical Therapy, 68-05 Fresh Pond Road, Ridgewood, NY 11385; • Center for Musculoskeletal and Neurological Care, 110 Duane Street, New York, NY 10007; • New Horizon Surgical Center, L.L.C., 680 Broadway, Suite 201, Paterson, NJ 07514; • Surgicore Surgical Center, 444 Market Street, Suite 1, Saddle Brook, NJ 07663; • JRX Pharmacy, 65-15 Fresh Pond Road, Ridgewood, NY 11385. DEMAND FOR DISCOVERY AND INSPECTION OF PHOTOGRAPHS, VIDEOS AND AUDIO RECORDINGS Enclosed is one (1) photograph is Plaintiff’s possession. Plaintiff reserves the right to supplement this response should any additional photographs depicting the condition of the premises at the time and place of the happening of the occurrence become available through discovery and/or investigation, up to and including the time of trial. RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF INCOME TAX RETURNS Objection. Third-Party Defendant was a Plaintiff’s employer at the time of the accident and, therefore, has access to Plaintiff’s employment records. Plaintiff is also providing a HIPAA authorization to obtain Plaintiff’s records directly from Workers’ Compensation Insurance Carrier. See Plaintiff’s response, infra. RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF ACCIDENT REPORT 3 3 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 Upon information and belief, Plaintiff is not in possession of any items responsive to this demand. Plaintiff reserves the right to amend and/or supplement this response should any items become available through discovery and/or investigation, up to and including the time of trial. RESPONSE TO DEMAND FOR DISCOVERY AND INSPECTION OF ATTORNEYS’ NAMES BLOCK O’TOOLE & MURPHY, LLP Attorneys for Plaintiff HELENA CYGAN One Penn Plaza, Suite 5315 New York, New York 10119 Phone: (212) 736-5300 AHMUTY DEMERS & McMANUS, ESQS. Attorneys for Defendants/Third-Party Plaintiffs ANDREW GOUZOULIS and JOSEPH TOMLINSON 200 I.U. Willets Road Albertson, New York 11507 Phone (516) 535-1832 DEVITT SPELLMAN BARRETT, LLP Attorneys for Third-Party Defendant ZABKA DELI, INC. 50 Route 111, Suite 314 Smithtown, New York 11787 Phone (631) 724-8833 RESPONSE TO DEMAND FOR AUTHORIZATIONS TO DISCOVER AND INSPECT PLAINTIFF’S SCHOOL RECORDS Not Applicable. Plaintiff was not a student at the time of the accident. RESPONSE TO DEMAND FOR AUTHORIZATIONS TO DISCOVER AND INSPECT PLAINTIFF’S WORKERS’ COMPENSATION FILE Annexed hereto is a duly executed HIPAA-compliant authorization to obtain a copy of Plaintiff’s file from the Workers’ Compensation carrier, WESCO Insurance Company’s, authorized agent, AmTrust Financial Services, Inc., PO Box 89404, Cleveland, OH 44101-1935. Claim Number: 3364445-1. 4 4 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 RESPONSE TO DEMAND FOR AUTHORIZATIONS TO DISCOVER AND INSPECT PLAINTIFF’S EMPLOYMENT RECORDS Third-Party Defendant ZABKA DELI is in possession of Plaintiff’s employment records as Plaintiff was employed by said Third-Party Defendant. RESPONSE TO DEMAND FOR INFORMATION RE EXPERT(S) PURSUANT TO CPLR 3101(D) Plaintiff has not retained the services of an expert witness to date. If Plaintiff retains an expert witness, the identity of same, the complete qualifications and the summary of the grounds for the expert’s opinion on which such he/she is expected to testify of same will be forwarded to defense counsel under separate cover. RESPONSE TO DEMAND PURSUANT TO CPLR 4545 Upon information and belief, all or part of Plaintiff’s treatment was and/or is being covered by the Workers’ Compensation Insurance Carrier – WESCO Insurance Company, PO Box 6935, Cleveland, OH 44101-1935. RESPONSE TO DEMAND FOR STATEMENT OF MONETARY DAMAGES PURSUANT TO CPLR 3017(C) Plaintiff objects to this demand as improper pursuant to the CPLR. Plaintiff has not pleaded a cause of action against Third-Party Defendant, ZABKA DELI, INC. RESPONSE TO DEMAND FOR HIPAA AUTHORIZATIONS FOR TRIAL Trial Authorizations will be provided within the time period set by the Court in a Court Order issued in this Action. REQUEST FOR NOTICE OF NON-EMERGENCY SURGERY AS PER CPLR 3121(A) Objection. Improper demand. “[T]he condition of one’s body is not the type of evidence that is subject to a spoilation analysis.” “The state of one’s body is fundamentally different from 5 5 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.” Id. “Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.” See Gilliam v Uni Holdings, 201 AD3d 83 [1st Dept 2021], lv to appeal dismissed, 38 NY3d 1119 [2022]. See also Fadeau v Corona Indus. Corp., 217 AD3d 1 [2d Dept 2023]. RESPONSE TO DEMAND TO PRESERVE PLAINTIFF’S SOCIAL MEDIA ACCOUNTS Plaintiff objects to this demand. Irrelevant Demand. Third-Party Defendant seeks information that is invasive of the Plaintiff’s privacy and is irrelevant to any issue in this action. Such information is not calculated to lead to the discovery of evidence, and would result in the disclosure of information where such disclosure would violate the privacy rights of the Plaintiff. RESPONSE TO DEMAND FOR CELL PHONE RECORDS Plaintiff objects to this request on the ground that it is overbroad and unduly burdensome. It thus seeks documents that are neither relevant to the issues in dispute in this action nor reasonably calculated to lead to the discovery of admissible evidence. See Carpio v. Leahy Mechanical Corp., 30 AD3d 554, 816 N.Y.S.2d 762; Auerbach v. Klein, 30 A.D.3d 451, 816 N.Y.S.2d 376. 6 6 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 RESPONSE TO NOTICE OF EBT Plaintiff is ready and willing to appear at her deposition on the designated by the parties on consent date and time. RESPONSE TO NOTICE OF REFUSAL TO ACCEPT SERVICE OF PAPERS BY FAX Acknowledged. RESPONSE TO DEMAND PURSUANT TO MEDICAID/MEDICARE Plaintiff objects to the demand whether Plaintiff ever received benefits from Medicare and/or Medicaid as improper, unduly burdensome and not reasonably calculated to uncover discoverable material that would further any defense to any cause of action. Upon information and belief, Plaintiff has not made a claim or received Medicare benefits as a result of the subject accident. The information regarding Medicaid benefits will be provided under separate cover, if applicable. RESPONSE TO DEMAND FOR PRODUCTION AS TO PRIOR AND SUBSEQUENT RELATED INJURIES AND CONDITIONS Plaintiff objects to this demand as overly broad, ambiguous, requesting the inference of a legal conclusion, and otherwise improper for a demand for documents pursuant to the CPLR. Without waiving said objection, upon information and belief, Plaintiff did not have any prior or subsequent accidents. RESPONSE TO DEMAND PURSUANT TO CPLR 306-C Plaintiff objects to this demand as improper, unduly burdensome and not reasonably calculated to uncover discoverable material that would further any defense to any cause of action. 7 7 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 RESPONSE TO DEMAND FOR PRIOR PLEADINGS AND DISCOVERY Third-Party Defendant is referred to NYSCEF as this Action is an e-filed case and all documents are available for public access. PLEASE TAKE FURTHER NOTICE, that Plaintiff reserves the right to supplement, amend or modify each of the above responses upon receipt of additional discovery and information, up to and including the time of trial. PLEASE TAKE FURTHER NOTICE, that at the time of trial plaintiff will rely on the information provided in these records. Dated: New York, New York October 13, 2023 Yours, etc. ____________________________ OLGA BAGINSKI, ESQ. BLOCK O’TOOLE & MURPHY, LLP Attorneys for Plaintiff HELENA CYGAN One Penn Plaza, Suite 5315 New York, New York 10119 Phone: (212) 736-5300 Our File No.: 5016 TO: DEVITT SPELLMAN BARRETT, LLP Attorneys for Third-Party Defendant ZABKA DELI, INC. 50 Route 111, Suite 314 Smithtown, New York 11787 Phone (631) 724-8833 CC: AHMUTY DEMERS & McMANUS, ESQS. Attorneys for Defendants/Third-Party Plaintiffs 8 8 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 ANDREW GOUZOULIS and JOSEPH TOMLINSON 200 I.U. Willets Road Albertson, New York 11507 Phone (516) 535-1832 9 9 of 10 FILED: QUEENS COUNTY CLERK 10/13/2023 02:32 PM INDEX NO. 715037/2021 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 10/13/2023 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) Olga Baginski, being duly sworn, deposes and says: I am over 18 years of age, I am not a party to the action, and I reside in Bergen County, in the State of New Jersey. I served a true copy of the annexed PLAINTIFF’S RESPONSE TO THIRD-PARTY DEFENDANT’S COMBINED DEMANDS on October 13, 2023 by e-filing same to NYSCEF, by e-mailing same, and/or depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository where in the ordinary course of business would come under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: DEVITT SPELLMAN BARRETT, LLP 50 Route 111, Suite 314 Smithtown, New York 11787 AHMUTY DEMERS & McMANUS, ESQS. 200 I.U. Willets Road Albertson, New York 11507 ___________________________ Olga Baginski Sworn to before me on this 13th Day of October, 2023 ____________________________ NOTARY PUBLIC 10 10 of 10