Motion,Ex Parte: Valerie Austin, Amanda Dillon v. Pawan K Rao Md, Brian Changlai Md, Jeanne Bishop Md, Ovid Neulander Md

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                                FILED: ONONDAGA COUNTY CLERK 01/04/2024 02:01 PM                                            INDEX NO. 007476/2018
NYSCEF DOC. NO. 282                                                                 RECEIVED NYSCEF: 01/04/2024




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF ONONDAGA
          ______________________________________________

          VALERIE AUSTIN and AMANDA DILLON, as
          co-administrators for the ESTATE OF LARRY C. AUSTIN,

                                                    Plaintiffs,      NOTICE OF MOTION
                                                                     IN LIMINE
                               vs.                                   INDEXNO.:007476/2018
                                                                     JUDGE:LAMENDOLA
          PAWAN K. RAO, M.D.; BRIAN CHANGLAI, M.D.;
          JEANNE BISHOP, M.D.; and OVID NEULANDER, M.D.;

                                              Defendants.
          _______________________________________________

          Motion By:
                                     Sugarman Law Firm, LLP, attorneys for defendant Ovid Neulander,
                                     M.D.

          Motion Returnable:
                                     Date: January 22, 2024
                                     Time: 10:00 a.m.
                                     Place: Onondaga County Courthouse
                                            401 Montgomery Street
                                            Syracuse, New York 13202

          Supporting Papers:
                                     Affirmation of Zachary M. Mattison, Esq., dated January 4, 2024,
                                     with attached exhibits; Memorandum of Law, dated January 4,
                                     2024; and all the pleadings previously served.

          Relief Demanded:
                                     An order limiting the proof offered by plaintiffs Valerie Austin and
                                     Amanda Dillon, as Co-Administrators for the Estate of Larry C.
                                     Austin (“plaintiffs”) at trial by

                                        (1) Precluding the plaintiffs from offering evidence or testimony
                                            of any alleged deviation from the standard of care by Dr.
                                            Neulander that was dismissed when this Court ruled on Dr.
                                            Neulander’s motion for summary judgment and/or that was
                                            not identified in the general surgeon affidavit they offered in
                                            opposition to Dr. Neulander’s motion for summary
                                            judgment;



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FILED: ONONDAGA COUNTY CLERK 01/04/2024 02:01 PM                                               INDEX NO. 007476/2018
NYSCEF DOC. NO. 282                                                                    RECEIVED NYSCEF: 01/04/2024




                                          (2) Precluding the plaintiffs from offering any evidence or
                                              testimony from their internal medicine expert, Ray Forbes,
                                              M.D., regarding alleged deviations from the standard of care
                                              by Dr. Neulander;

                                          (3) Precluding the plaintiffs from offering cumulative evidence
                                              or testimony from their expert witnesses;

                                          (4) Precluding the plaintiffs from offering or eliciting evidence
                                              or testimony that misstates the dates and number of times Dr.
                                              Neulander saw the decedent;

                                          (5) Precluding the plaintiffs from suggesting that the
                                              photographs of the decedent after his discharge from St.
                                              Joseph’s Hospital fairly or accurately reflect his condition
                                              when he was seen by Dr. Neulander, and for a limiting
                                              instruction, and limiting the number of photographs the
                                              plaintiffs can show the jury;

                                          (6) Precluding the plaintiffs from offering or eliciting any
                                              evidence or testimony regarding prior medical malpractice
                                              actions or OPMC proceedings against Dr. Neulander,
                                              including evidence or testimony regarding how those actions
                                              and/or proceedings were resolved; and

                                          (7) Precluding the plaintiffs from mentioning Robert Neulander
                                              in the presence of the jury and for a special instruction to the
                                              jury on this issue

          Grounds for Relief
          Demanded:
                                      Common law rules of evidence

          Demand is made pursuant to CPLR 2214(b) and CPLR 2215 that answering affidavits and any
          notice of cross-motion be served at least seven (7) days before the return date of the motion.

          Dated: January 4, 2024
                                              _________________________________
                                              Zachary M. Mattison, Esq.
                                              SUGARMAN LAW FIRM, LLP
                                              Attorneys for Ovid Neulander, M.D.
                                              Office and Post Office Address
                                              211 West Jefferson Street, Suite 20
                                              Syracuse, New York 13202
                                              Telephone: (315) 474-2943
                                              zmattison@sugarmanlaw.com

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FILED: ONONDAGA COUNTY CLERK 01/04/2024 02:01 PM                                       INDEX NO. 007476/2018
NYSCEF DOC. NO. 282                                                              RECEIVED NYSCEF: 01/04/2024




          TO:

          Matthew E. Whritenour, Esq.
          KNYCH & WHRITENOUR, LLC
          Attorneys for Valerie Austin and Amanda Dillon, as co-administrators
          of the Estate of Larry C. Austin, Deceased
          Office and Post Office Address
          One Park Place
          300 South State Street, Suite 404
          Syracuse, New York 13202
          Telephone: (315) 472-1175

          Catherine A. Gale, Esq.
          GALE, GALE & HUNT, LLC
          Attorneys for Jeanne Bishop, M.D.
          Office and Post Office Address
          PO Box 97
          Fayetteville, New York 13066-0097
          Telephone: (315) 637-3663




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