Motion,Ex Parte: Vera Itzhakov as Proposed Administrator of the Estate of IRENA BELIAKHOV, Deceased, Vera Itzhakov Individually v. Coney Island Hospital, New York City Health And Hospitals Corporation

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                                FILED: KINGS COUNTY CLERK 01/31/2024 11:53 AM                                                        INDEX NO. 507320/2021
NYSCEF DOC. NO. 29                                                                            RECEIVED NYSCEF: 01/31/2024




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF KINGS
          -------------------------------------------------------------------- x   Index No. 507320/2021
          VERA ITZHAKOV, as Administrator of the                               :
          Estate of IRENA BELIAKHOV, Deceased, and VERA :
          ITZHAKOV, Individually,                                              :
                                                                               :
                                     Plaintiffs,                                   NOTICE OF MOTION
                   -against-                                                   :
                                                                               :
          CONEY ISLAND HOSPITAL and NEW YORK CITY :
          HEALTH AND HOSPITALS CORPORATION,                                    :   Hon. Consuelo Mallafre
                                                                               :   Melendez
                                      Defendants.                              :
          --------------------------------------------------------------------
                                                                               x

                  PLEASE TAKE NOTICE that upon the annexed Affirmation of Christopher P. Fox, Esq.

          dated the 31st day of January 2024, and the Exhibits annexed thereto; Affidavit of Luis Castrillon,

          dated the 16th day of January 2024, and the Exhibits annexed thereto; Affirmation of Good Faith

          dated the 31st day of January 2024; and upon all prior pleadings and proceedings heretofore had

          herein, the Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION s/h/a

          CONEY ISLAND HOSPITAL and NEW YORK CITY HEALTH AND HOSPITALS

          CORPORATION, will move the Supreme Court, Kings County, before the Hon. Consuelo

          Mallafre Malendez, located at 360 Adams Street, Brooklyn, New York 11201, on the 21st day of

          February 2024 at 9:30 a.m., or as soon thereafter as counsel may be heard, for an Order:

                  (1)      Dismissing this action pursuant to CPLR § 3126 for Plaintiff’s (i) violation of the

                           Compliance Conference Order dated February 3, 2023, which required “Plaintiff to

                           produce all original video and audio recordings and original photographs,” (ii)

                           failure to comply with CPLR 3101(i) which requires “full disclosure of any films,

                           photographs, video tapes or audio tapes,” and (iii) spoliation of various original

                           audio recordings.


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FILED: KINGS COUNTY CLERK 01/31/2024 11:53 AM                                                       INDEX NO. 507320/2021
NYSCEF DOC. NO. 29                                                                        RECEIVED NYSCEF: 01/31/2024




                            or, in the alternative,

                 (2)        Precluding Plaintiff from offering any media (including video and audio recordings

                            and photographs) into evidence at trial or from eliciting any testimony concerning

                            any media pursuant to CPLR § 3126.

                 and,

                 (3)        For such other and further relief as this Court deems just and proper

                 PLEASE TAKE FURTHER NOTICE that pursuant to CPLR Rule 2214(b), answering

          papers, if any, shall be served upon the undersigned at least seven (7) days prior to the return date

          of this motion.

          Dated: New York, New York
                 January 31, 2024

                                                          FURMAN KORNFELD & BRENNAN LLP

                                                          Christopher P. Fox
                                                          Christopher P. Fox, Esq.
                                                          Attorneys for Defendant
                                                          Of Counsel to Andrea Cohen, Esq.
                                                          NEW YORK CITY HEALTH AND HOSPITALS
                                                          CORPOIRATION s/h/a CONEY ISLAND
                                                          HOSPITAL and NEW YORK CITY HEALTH
                                                          AND HOSPITALS CORPORATION
                                                          Wall Street Plaza
                                                          88 Pine Street – 32nd Floor
                                                          New York, New York 10005
                                                          (212) 867-4100
                                                          FKB File 625.250




          TO:    THE JACOB D. FUCHSBERG LAW FIRM, LLP
                 Attorneys for Plaintiff
                 3 Park Ave – 37th Floor
                 New York, New York 10016
                 (212) 869-3500


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