Preview
FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333
NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024
STATE OF NEW YORK SUPREME COURT
COUNTY OF ONEIDA
X
SHELLY STUDER, REPLY AFFIDAVIT
PLAINITFF, IN FURTHERANCE OF
DEFENDANTS'
vs. MOTION FOR
SUMMARY JUDGMENT
DRN COUNSELING-CONSULTING SERVICES
LCSW, PLLC, and DOMINICK NICOTERA, INDEX NO: EFCA2020-000333
DEFENDANTS.
X
COUNTY OF ONEIDA )
) ss.:
STATE OF NEW YORK )
DAVID A. LONGERETTA ESQ. being duly sworn deposes and states as follows:
1. That your deponent is an attorney duly admitted to the practice of law in all
Courts of the State of New York, and I maintain my offices at 298 Genesee Street, Utica, New
York 13502.
2. That your deponent is the for the DRN Counseling-
attorney Defendants,
Consulting Services LCSW, PLLC (hereinafter referred to as "DRN") and Dominick Nicotera
d /a DRN Counseling and Consulting Services or DRN-Cornerstone (hereinafter referred to as
"Dominick"). In my representative capacity, I have become fully familiar with the relevant facts
and circumstances surrounding the instant matter. I make this Affidavit in Reply to the Affidavit
of Plaintiff, Shelly Studer, the Affirmation of Merritt S. Locke, Esq. and Memorandum of Law
Defendants'
by Merritt S. Locke and in further support of the Motion for Summary Judgment
seeking dismissal of all six causes of action in Plaintiff's Complaint.
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LEGAL STANDARD
3. Inasmuch both parties have relied on the cases of Forest v Jewish Guild for the
Blind, 3 NY3d 295 and Jacobsen v New York City Health & Hosps. Corp. 22 NY3d 824, 834
(2014), for the proposition that the Plaintiff must meet every element to state a prima facie case
"disability'
of discrimination based on a within the meaning of the Executive Law, this Reply
will focus on Plaintiff's failure to meet those elements through compelling party admissions,
irrefutable documentary evidence and sworn deposition testimony of direct witnesses.
Defendants'
4. While Plaintiff's counsel is critical of recitation of the similar
standards and requirements that a plaintiff also must meet every element under the ADA, those
references are made to demonstrate that "Plaintiff s hysterectomy only temporarily limited
Plaintiff, and, consequently, does not qualify as a long-term impairment protected under the
ADA"
Anderson v United Conveyor Supply Co. 461 F. Supp. 2d 699 at 706.
5. Indeed, in the Plaintiff's two-page Discharge Instructions dated August 21, 2019,
her doctors similarly categorized Plaintiffs robotic laparoscopic hysterectomy as a temporary
limitation when it noted "[1]imited [a]ctivity for 1 week after surgery. No lifting of heavy
week"
objects...Resume normal activity in moderation after 1 (NYSCEF # 226) (Exhibit "V").
"V"
6. That Exhibit also includes a post operative follow up appointment with Dr.
Flint dated September 6, 2019, submitted in support of her Affidavit. Despite the Plaintiff having
admitted that she never provided that document to the Defendants "[n]o I didn't [even] request
it"
(NYSCEF # 208; 204:3-16), the attachment of that office note as Exhibit "L", in reverse
chronological order ahead of the Discharge Instructions dated August 21, 2019, is misleading.
That follow up note is dated after the date Ms. Studer now alleges for the first time that she
provided those Discharge Instructions to Dominick on September 5, 2019, at the Candace Linder
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Unemployment meeting and not the Continuity of Care Document ("CCD") she first testified
"third"
was the time she provided to anything to DRN, but in early or mid-August 2019 as
discussed below.
7. Attaching an office note from Dr. Flint dated one day dated after she now alleges
she provided the Discharge Instructions to Dominick on September 5, 2019, is misleading
because the Plaintiff admitted that Dr. Flint's September 6, 2019 office note (as revised two and
one-half two and one-half years later), was never provided to Dominick because she didn't even
request it. This colloquy is an irrelevant distraction and an attempt to rewrite her deposition
testimony, as further documented below.
PLAINTIFF'S FIRST, SECOND AND THIRD CAUSES OF ACTION
ALLEGING INTENTIONAL DISCRIMINATION, FAILURE TO
PROVIDE REASONABLE ACCOMODATIONS AND RETALIATION
SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO MEET
EVERY ELEMENT REQUIRED TO SUSTAIN A CAUSE OF ACTION BASED
ON HER TEMPORARY DISABILITY OR NEED FOR ACCOMODATIONS
8. As documented in your deponent's initial Affirmation, the Plaintiff eventually
produced a print-out from her patient portal, labeled Continuity of Care Document ("CCD"),
which however was printed on August 16, 2020, thirteen (13) months after the date she alleged
to have provided it to Dominick. She testified that CCD was provided either early or mid-August
2019 (See NYSCEF # 208; 112:22-25 and NYSDEF #226-Bates Stamp by Plaintiff # 34-37).
That prior production of medical records selectively produced by the Plaintiff, on its face,
demonstrates that it does not contain any of the restrictions alleged in the Complaint.
"third"
9. Plaintiff's deposition testimony was that she hand-delivered a document to
Dominick on September 3, 2019, at the Candace Linder unemployment hearing (See NYSCEF #
208; 116:1-11).
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10. In her Complaint she also alleged that "[o]n September 3, 2019, Plaintiff alleged
she provided Defendant Nicotera with a doctor's note advising him of her restrictions on
returning to work including, but not limited to, only being partial weight bearing and to have
tolerated"
significant rest until further movement could be (See NYSCEF # 215 at ¶ 13)
(emphasis added).
11. We now know of at least two inconsistencies in her testimony and allegations.
First, the Candace Linder hearing took place on September 5, 2019, not September 3, 2019, as
first alleged in her Complaint and then in her testimony above. Plaintiff now alleges in her
Affidavit for the very first time, that she provided the Discharge Instructions from August 21,
2019, to Dominick on September 5, 2019, and not the non-existent CCD that she previously
note"
testified to or the "doctors as specifically alleged in her Complaint.
12. Secondly, after finally receiving the complete medical records (NYSCEF # 227-
note"
228), there is no "doctor advising of any restrictions on returning to work as alleged in her
Complaint or anything resembling the CCD printed thirteen (13) months after the date she
alleged to have provided to Dominick. The Plaintiff never moved to amend her Complaint and is
bound by her pleadings. Plaintiff has failed to carry her initial burden to establish notice of any
restrictions or limitations prior to her surgery on August 21, 2019.
13. There also is no other medical record containing the restrictions that Plaintiff
alleged in her Complaint. She now states in her Affidavit that "despite the doctor telling me
'6- to- weeks'
upon discharge it would be 8 time period before I would be released to work
restrictions"
without any (See Studer Affidavit ¶ 41) (emphasis added).
doctor"
14. Ms. Studer's instant Affidavit stating she was "told by her after discharge
that it would be "6- to- 8 weeks-time period before I would be released to work without any
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restrictions", constitutes a further admission that none of those alleged restrictions were
contained in any of the two alleged instances she claims to have provided to Dominick prior to
her surgery.
15. Ms. Studer now alleges she gave Dominick the Discharge Instructions dated
August 21, 2019 on September 5, 2019. Even if true (which Dominick adamantly denies), on its
face it indicated only "[1]imited [a]ctivity for 1 week after surgery". By that time three weeks had
already elapsed since her surgery. As demonstrated below, at that time Ms. Studer also admitted
that she never requested further time out of work and instead she offered to perform light audit
work from home (see below).
16. We also know from the Plaintiff's own calendar and billing sheets that on
September 3, 2019, she was not in the office for the Candace Linder hearing on that date.
Instead, Ms. Studer self-scheduled eleven (11) clinical contacts beginning at 9:00am through
5:00pm on September 3, 2019 (NYSCEF # 211). That is the date she first alleged in her
Complaint to have provided Dominick with the CCD printed thirteen 13 months later. She also
submitted her therapist invoices for the same date range between September 2, 2019 through
September 5, 2019, showing twenty-one (21) self-scheduled clinical contacts. Her invoices for
that same period were verified by her mother Kelly Strong, who initialed her invoices for
approval (NYSCEF # 206 p. 31/35).
17. Notwithstanding the failed attempt to distract attention from the allegations
contained in her Complaint, by combining Dr. Flint's note of September 6, 2019 with the
Discharge Instructions, on that date Dr. Flint indicated she performed a thorough physical
examination of the Plaintiff and further indicated a normal physical and neurological exam,
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noted patient is currently sexually active, and commented that the patient denied pain or bleeding
well" post-
and is "doing operatively (NYSCEF # 226 pp. 3-5).
18. The Plaintiff now attempts to rely on that portion of the note that states
"precautions reviewed, to continue with restrictions. RTO 6 weeks". However, as Plaintiff
admitted she never provided that note to the Defendants because as she testified "[n]o I didn't
"conveniently"
[even] request it". Instead, she accused Defendants of omitting that portion. The
Defendants are the party who exhibited that entire note for the purpose of demonstrating the
foregoing and the fact that it was never provided to the Defendants.
19. Ms. Locke, who is aware of that testimony, at ¶ 49 (f) in her Affirmation,
nonetheless joins the attempt by Plaintiff to mislead the Court, by alleging "Defendant Nicotera
conveniently leaves out the entire statement from Dr. Flint on September 6, 2019, medical
record". Instead of providing an affidavit from Dr. Flint, Ms. Locke offered her unqualified
interpretation of that medical note. The overriding compelling indisputable fact is that Ms.
Studer never provided that office note because she never requested it. Therefore, the retroactive
change on March 1, 2022, to fit Plaintiff's narrative remains is an irrelevant attempted
misleading distraction.
20. As admitted by the Plaintiff in her pleadings and testimony, Dominick continued
easy"
an interactive process when he nonetheless advised the Plaintiff to "take it and "listen to
body" need"
your and "take whatever time you etc. Ms. Studer's calendar and Therapist invoices
for the balance of September demonstrate she did just that (NYSCEF # 231).
21. Ms. Locke also references the retroactive office note made dated March 1, 2022,
two and half (2 ½) years after the office visit on September 6, 2029, without any corresponding
office visit related to Plaintiff's surgery on August 21, 2019, but both she and the Plaintiff fail to
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provide any reasonable explanation for that irregular retroactive note. The circumstances of the
retroactive note are within the sole knowledge of the Plaintiff, who completely ignores that note
made shortly after the first date of her deposition on February 10, 2022. Therefore, the Plaintiff
has again failed to meet her burden to explain the circumstances of that clearly irregular
occurrence.
22. The obvious reason somebody prompted that entry without any corresponding
office visit, is because the original notes made contemporaneously with the office visit of
well" post-
September 6, 2019, indicated that the patient denied pain or bleeding and is "doing
operatively. That contradicts Ms. Studer's narrative. That contradictory note now conforms to
her narrative because it states "[p]atient was to remain on restrictions given bleeding and pain".
23. Ms. Locke's reference to that note addendum and in an attempt to create a
"conveniently"
distraction for the Defendants by accusing the Defendants for omitting that quote
is the real attempted misleading distraction because it was the Defendants who first exhibited
that entire office note, to demonstrate it was never requested or provided, a fact known to both
Ms. Locke and Ms. Studer.
24. The ultimate question which Plaintiff failed to answer in her opposition, is if she
now is relying, for the first time, on a note she never even requested, is why she didn't she
provide it to Defendants to demonstrate restrictions or request accommodation. Instead, in direct
contravention of her new claim that Defendants knew "the surgery would be six (6) to eight (8)
period"
week recovery (Studer Affidavit ¶ 34), she testified:
Q: [After] your surgery, did you make a request to Dominick to stay out of work for
a period of time and do not work at all?
A: No.
Q: You never asked Dominick to let you stay at home for two weeks and do no
work?
A: To stay home for two weeks and do no work? No.
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(NYSCEF # 208 p. 124:1-8).
25. In fact, the Plaintiff admitted that despite not making any such requests, in DRN's
continuing interactive process, Plaintiff offered to do audit work while she rested at home. This
was confirmed in a text message from Plaintiff to Dominick which stated she could work from
home, and that she just had to take it easy.
Q: Okay. But that's not responsive. Did you agree to do audit work while
you stayed home?
A: Yes.
Q: And did you send a text out to them saying I could do work at home, I just
have to take it easy?
MS. LOCKE: Form.
A; Yes.
(NYSCEF # 208 p. 125:8-14).
26. The Plaintiff also admitted that up to mid-September, Dominick was still
slow"
encouraging her to "take it (NYSCEF # 208 p. 135:3-6).
27. Both Ms. Studer's Affidavit and Ms. Locke's Affirmation completely ignore these
party admissions and irrefutable documentary evidence which established the real sequence of
events and not the failed attempted revisionist portrayal.
28. In her Affidavit, Ms. Studer claims "[i]n March or April of 2019, [while and
independent contractor] I began having issues with pains in my stomach and was admitted to the
hospital"
and then "[a]fter I was discharged, I provided paperwork to Defendant Nicotera...I
did not ask for accommodations [while an independent contractor]...and did not keep a copy of
work"
my records, as I was not anticipating missing (Studer Affidavit ¶ 32) (emphasis added).
29. Then in ¶ 34 she states "[after] a brief meeting with my doctor in June/July 2019,
on August 1, 2019, I advised Defendant Nicotera by phone the surgery would be six (6) to eight
period"
(8) week recovery and then states "I also gave him paperwork from that meeting
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(summary of office visit). I did not keep a copy as again I was not going to miss any work until
surgery"
the actual (emphasis added).
"provided' "gave"
30. Ms. Studer's repeated claim that she of Dominick paperwork is
belied by the complete copy of her medical records which Defendants eventually obtained copies
"paperwork"
of on August 23, 2023. Absolutely nowhere in those medical records is there any to
support those claims (NYSCEF #227 & #228). If Ms. Studer felt that somehow those medical
records are incomplete, she could have easily supplied them in her opposition but instead states
copy" copy"
"she didn't keep a or "did not keep a for both alleged instances.
31. Ms. Studer could have easily accessed her patient portal like she did to provide
the CCD document dated thirteen (13) months after her surgery to request whatever she claims
she provided but missing from the complete records, but again failed in her burden.
32. What that CCD does reveal is that she had an office encounter with Dr. Flint on
June 18, 2019, not June/July 2019 as she states (NYSCEF # 225). If as she swears, she provided
visit"
the "summary of office which indicated the need for prolonged absence from work, that
would completely defeat her claim of intentional or retaliatory discrimination based on a
"disability"
because as admitted by the Plaintiff the terms and her acceptance of employment did
not occur until July 2019.
"disability"
33. If DRN were discriminating against Ms. Studer because
Preview
FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA X SHELLY STUDER, REPLY AFFIDAVIT PLAINITFF, IN FURTHERANCE OF DEFENDANTS' vs. MOTION FOR SUMMARY JUDGMENT DRN COUNSELING-CONSULTING SERVICES LCSW, PLLC, and DOMINICK NICOTERA, INDEX NO: EFCA2020-000333 DEFENDANTS. X COUNTY OF ONEIDA ) ) ss.: STATE OF NEW YORK ) DAVID A. LONGERETTA ESQ. being duly sworn deposes and states as follows: 1. That your deponent is an attorney duly admitted to the practice of law in all Courts of the State of New York, and I maintain my offices at 298 Genesee Street, Utica, New York 13502. 2. That your deponent is the for the DRN Counseling- attorney Defendants, Consulting Services LCSW, PLLC (hereinafter referred to as "DRN") and Dominick Nicotera d /a DRN Counseling and Consulting Services or DRN-Cornerstone (hereinafter referred to as "Dominick"). In my representative capacity, I have become fully familiar with the relevant facts and circumstances surrounding the instant matter. I make this Affidavit in Reply to the Affidavit of Plaintiff, Shelly Studer, the Affirmation of Merritt S. Locke, Esq. and Memorandum of Law Defendants' by Merritt S. Locke and in further support of the Motion for Summary Judgment seeking dismissal of all six causes of action in Plaintiff's Complaint. 1 1 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 LEGAL STANDARD 3. Inasmuch both parties have relied on the cases of Forest v Jewish Guild for the Blind, 3 NY3d 295 and Jacobsen v New York City Health & Hosps. Corp. 22 NY3d 824, 834 (2014), for the proposition that the Plaintiff must meet every element to state a prima facie case "disability' of discrimination based on a within the meaning of the Executive Law, this Reply will focus on Plaintiff's failure to meet those elements through compelling party admissions, irrefutable documentary evidence and sworn deposition testimony of direct witnesses. Defendants' 4. While Plaintiff's counsel is critical of recitation of the similar standards and requirements that a plaintiff also must meet every element under the ADA, those references are made to demonstrate that "Plaintiff s hysterectomy only temporarily limited Plaintiff, and, consequently, does not qualify as a long-term impairment protected under the ADA" Anderson v United Conveyor Supply Co. 461 F. Supp. 2d 699 at 706. 5. Indeed, in the Plaintiff's two-page Discharge Instructions dated August 21, 2019, her doctors similarly categorized Plaintiffs robotic laparoscopic hysterectomy as a temporary limitation when it noted "[1]imited [a]ctivity for 1 week after surgery. No lifting of heavy week" objects...Resume normal activity in moderation after 1 (NYSCEF # 226) (Exhibit "V"). "V" 6. That Exhibit also includes a post operative follow up appointment with Dr. Flint dated September 6, 2019, submitted in support of her Affidavit. Despite the Plaintiff having admitted that she never provided that document to the Defendants "[n]o I didn't [even] request it" (NYSCEF # 208; 204:3-16), the attachment of that office note as Exhibit "L", in reverse chronological order ahead of the Discharge Instructions dated August 21, 2019, is misleading. That follow up note is dated after the date Ms. Studer now alleges for the first time that she provided those Discharge Instructions to Dominick on September 5, 2019, at the Candace Linder 2 2 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 Unemployment meeting and not the Continuity of Care Document ("CCD") she first testified "third" was the time she provided to anything to DRN, but in early or mid-August 2019 as discussed below. 7. Attaching an office note from Dr. Flint dated one day dated after she now alleges she provided the Discharge Instructions to Dominick on September 5, 2019, is misleading because the Plaintiff admitted that Dr. Flint's September 6, 2019 office note (as revised two and one-half two and one-half years later), was never provided to Dominick because she didn't even request it. This colloquy is an irrelevant distraction and an attempt to rewrite her deposition testimony, as further documented below. PLAINTIFF'S FIRST, SECOND AND THIRD CAUSES OF ACTION ALLEGING INTENTIONAL DISCRIMINATION, FAILURE TO PROVIDE REASONABLE ACCOMODATIONS AND RETALIATION SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS FAILED TO MEET EVERY ELEMENT REQUIRED TO SUSTAIN A CAUSE OF ACTION BASED ON HER TEMPORARY DISABILITY OR NEED FOR ACCOMODATIONS 8. As documented in your deponent's initial Affirmation, the Plaintiff eventually produced a print-out from her patient portal, labeled Continuity of Care Document ("CCD"), which however was printed on August 16, 2020, thirteen (13) months after the date she alleged to have provided it to Dominick. She testified that CCD was provided either early or mid-August 2019 (See NYSCEF # 208; 112:22-25 and NYSDEF #226-Bates Stamp by Plaintiff # 34-37). That prior production of medical records selectively produced by the Plaintiff, on its face, demonstrates that it does not contain any of the restrictions alleged in the Complaint. "third" 9. Plaintiff's deposition testimony was that she hand-delivered a document to Dominick on September 3, 2019, at the Candace Linder unemployment hearing (See NYSCEF # 208; 116:1-11). 3 3 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 10. In her Complaint she also alleged that "[o]n September 3, 2019, Plaintiff alleged she provided Defendant Nicotera with a doctor's note advising him of her restrictions on returning to work including, but not limited to, only being partial weight bearing and to have tolerated" significant rest until further movement could be (See NYSCEF # 215 at ¶ 13) (emphasis added). 11. We now know of at least two inconsistencies in her testimony and allegations. First, the Candace Linder hearing took place on September 5, 2019, not September 3, 2019, as first alleged in her Complaint and then in her testimony above. Plaintiff now alleges in her Affidavit for the very first time, that she provided the Discharge Instructions from August 21, 2019, to Dominick on September 5, 2019, and not the non-existent CCD that she previously note" testified to or the "doctors as specifically alleged in her Complaint. 12. Secondly, after finally receiving the complete medical records (NYSCEF # 227- note" 228), there is no "doctor advising of any restrictions on returning to work as alleged in her Complaint or anything resembling the CCD printed thirteen (13) months after the date she alleged to have provided to Dominick. The Plaintiff never moved to amend her Complaint and is bound by her pleadings. Plaintiff has failed to carry her initial burden to establish notice of any restrictions or limitations prior to her surgery on August 21, 2019. 13. There also is no other medical record containing the restrictions that Plaintiff alleged in her Complaint. She now states in her Affidavit that "despite the doctor telling me '6- to- weeks' upon discharge it would be 8 time period before I would be released to work restrictions" without any (See Studer Affidavit ¶ 41) (emphasis added). doctor" 14. Ms. Studer's instant Affidavit stating she was "told by her after discharge that it would be "6- to- 8 weeks-time period before I would be released to work without any 4 4 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 restrictions", constitutes a further admission that none of those alleged restrictions were contained in any of the two alleged instances she claims to have provided to Dominick prior to her surgery. 15. Ms. Studer now alleges she gave Dominick the Discharge Instructions dated August 21, 2019 on September 5, 2019. Even if true (which Dominick adamantly denies), on its face it indicated only "[1]imited [a]ctivity for 1 week after surgery". By that time three weeks had already elapsed since her surgery. As demonstrated below, at that time Ms. Studer also admitted that she never requested further time out of work and instead she offered to perform light audit work from home (see below). 16. We also know from the Plaintiff's own calendar and billing sheets that on September 3, 2019, she was not in the office for the Candace Linder hearing on that date. Instead, Ms. Studer self-scheduled eleven (11) clinical contacts beginning at 9:00am through 5:00pm on September 3, 2019 (NYSCEF # 211). That is the date she first alleged in her Complaint to have provided Dominick with the CCD printed thirteen 13 months later. She also submitted her therapist invoices for the same date range between September 2, 2019 through September 5, 2019, showing twenty-one (21) self-scheduled clinical contacts. Her invoices for that same period were verified by her mother Kelly Strong, who initialed her invoices for approval (NYSCEF # 206 p. 31/35). 17. Notwithstanding the failed attempt to distract attention from the allegations contained in her Complaint, by combining Dr. Flint's note of September 6, 2019 with the Discharge Instructions, on that date Dr. Flint indicated she performed a thorough physical examination of the Plaintiff and further indicated a normal physical and neurological exam, 5 5 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 noted patient is currently sexually active, and commented that the patient denied pain or bleeding well" post- and is "doing operatively (NYSCEF # 226 pp. 3-5). 18. The Plaintiff now attempts to rely on that portion of the note that states "precautions reviewed, to continue with restrictions. RTO 6 weeks". However, as Plaintiff admitted she never provided that note to the Defendants because as she testified "[n]o I didn't "conveniently" [even] request it". Instead, she accused Defendants of omitting that portion. The Defendants are the party who exhibited that entire note for the purpose of demonstrating the foregoing and the fact that it was never provided to the Defendants. 19. Ms. Locke, who is aware of that testimony, at ¶ 49 (f) in her Affirmation, nonetheless joins the attempt by Plaintiff to mislead the Court, by alleging "Defendant Nicotera conveniently leaves out the entire statement from Dr. Flint on September 6, 2019, medical record". Instead of providing an affidavit from Dr. Flint, Ms. Locke offered her unqualified interpretation of that medical note. The overriding compelling indisputable fact is that Ms. Studer never provided that office note because she never requested it. Therefore, the retroactive change on March 1, 2022, to fit Plaintiff's narrative remains is an irrelevant attempted misleading distraction. 20. As admitted by the Plaintiff in her pleadings and testimony, Dominick continued easy" an interactive process when he nonetheless advised the Plaintiff to "take it and "listen to body" need" your and "take whatever time you etc. Ms. Studer's calendar and Therapist invoices for the balance of September demonstrate she did just that (NYSCEF # 231). 21. Ms. Locke also references the retroactive office note made dated March 1, 2022, two and half (2 ½) years after the office visit on September 6, 2029, without any corresponding office visit related to Plaintiff's surgery on August 21, 2019, but both she and the Plaintiff fail to 6 6 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 provide any reasonable explanation for that irregular retroactive note. The circumstances of the retroactive note are within the sole knowledge of the Plaintiff, who completely ignores that note made shortly after the first date of her deposition on February 10, 2022. Therefore, the Plaintiff has again failed to meet her burden to explain the circumstances of that clearly irregular occurrence. 22. The obvious reason somebody prompted that entry without any corresponding office visit, is because the original notes made contemporaneously with the office visit of well" post- September 6, 2019, indicated that the patient denied pain or bleeding and is "doing operatively. That contradicts Ms. Studer's narrative. That contradictory note now conforms to her narrative because it states "[p]atient was to remain on restrictions given bleeding and pain". 23. Ms. Locke's reference to that note addendum and in an attempt to create a "conveniently" distraction for the Defendants by accusing the Defendants for omitting that quote is the real attempted misleading distraction because it was the Defendants who first exhibited that entire office note, to demonstrate it was never requested or provided, a fact known to both Ms. Locke and Ms. Studer. 24. The ultimate question which Plaintiff failed to answer in her opposition, is if she now is relying, for the first time, on a note she never even requested, is why she didn't she provide it to Defendants to demonstrate restrictions or request accommodation. Instead, in direct contravention of her new claim that Defendants knew "the surgery would be six (6) to eight (8) period" week recovery (Studer Affidavit ¶ 34), she testified: Q: [After] your surgery, did you make a request to Dominick to stay out of work for a period of time and do not work at all? A: No. Q: You never asked Dominick to let you stay at home for two weeks and do no work? A: To stay home for two weeks and do no work? No. 7 7 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 (NYSCEF # 208 p. 124:1-8). 25. In fact, the Plaintiff admitted that despite not making any such requests, in DRN's continuing interactive process, Plaintiff offered to do audit work while she rested at home. This was confirmed in a text message from Plaintiff to Dominick which stated she could work from home, and that she just had to take it easy. Q: Okay. But that's not responsive. Did you agree to do audit work while you stayed home? A: Yes. Q: And did you send a text out to them saying I could do work at home, I just have to take it easy? MS. LOCKE: Form. A; Yes. (NYSCEF # 208 p. 125:8-14). 26. The Plaintiff also admitted that up to mid-September, Dominick was still slow" encouraging her to "take it (NYSCEF # 208 p. 135:3-6). 27. Both Ms. Studer's Affidavit and Ms. Locke's Affirmation completely ignore these party admissions and irrefutable documentary evidence which established the real sequence of events and not the failed attempted revisionist portrayal. 28. In her Affidavit, Ms. Studer claims "[i]n March or April of 2019, [while and independent contractor] I began having issues with pains in my stomach and was admitted to the hospital" and then "[a]fter I was discharged, I provided paperwork to Defendant Nicotera...I did not ask for accommodations [while an independent contractor]...and did not keep a copy of work" my records, as I was not anticipating missing (Studer Affidavit ¶ 32) (emphasis added). 29. Then in ¶ 34 she states "[after] a brief meeting with my doctor in June/July 2019, on August 1, 2019, I advised Defendant Nicotera by phone the surgery would be six (6) to eight period" (8) week recovery and then states "I also gave him paperwork from that meeting 8 8 of 38 FILED: ONEIDA COUNTY CLERK 02/01/2024 09:48 AM INDEX NO. EFCA2020-000333 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/01/2024 (summary of office visit). I did not keep a copy as again I was not going to miss any work until surgery" the actual (emphasis added). "provided' "gave" 30. Ms. Studer's repeated claim that she of Dominick paperwork is belied by the complete copy of her medical records which Defendants eventually obtained copies "paperwork" of on August 23, 2023. Absolutely nowhere in those medical records is there any to support those claims (NYSCEF #227 & #228). If Ms. Studer felt that somehow those medical records are incomplete, she could have easily supplied them in her opposition but instead states copy" copy" "she didn't keep a or "did not keep a for both alleged instances. 31. Ms. Studer could have easily accessed her patient portal like she did to provide the CCD document dated thirteen (13) months after her surgery to request whatever she claims she provided but missing from the complete records, but again failed in her burden. 32. What that CCD does reveal is that she had an office encounter with Dr. Flint on June 18, 2019, not June/July 2019 as she states (NYSCEF # 225). If as she swears, she provided visit" the "summary of office which indicated the need for prolonged absence from work, that would completely defeat her claim of intentional or retaliatory discrimination based on a "disability" because as admitted by the Plaintiff the terms and her acceptance of employment did not occur until July 2019. "disability" 33. If DRN were discriminating against Ms. Studer because