Preview
FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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VERA ITZHAKOV, as Administrator of the :
Estate of IRENA BELIAKHOV, Deceased, and VERA :
ITZHAKOV, Individually, :
:
Plaintiffs, ATTORNEY
-against- : REPLY
: AFFIRMATION
CONEY ISLAND HOSPITAL and NEW YORK CITY :
HEALTH AND HOSPITALS CORPORATION, :
:
Defendants. :
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x
CHRISTOPHER P. FOX, an attorney duly admitted to practice law before the courts of
The State of New York, affirms the following under penalty of perjury pursuant to CPLR Rule
2106:
1. I am an attorney duly admitted to practice law before the courts of The State of
New York, and I am an Associate at Furman Kornfeld & Brennan LLP, attorneys for the defendant
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION s/h/a CONEY ISLAND
HOSPITAL AND NEW YORK CITY HEALTH AND HOSPITALS CORPORATION. This
Reply Affirmation is made upon information and belief founded upon the records maintained in
this matter by my office, which I believe to be true and accurate. As such, I am fully familiar with
the facts and circumstances herein.
2. I submit this affirmation in further support of the instant motion which seeks an
Order:
a. 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,
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photographs, video tapes or audio tapes,” and (iii) spoliation of various original
audio recordings.
or, in the alternative,
b. 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,
c. For such other and further relief as this Court deems just and proper.
PRELIMINARY STATEMENT
3. Plaintiff’s late-filed opposition is a woefully inadequate attempt to prevent the
dismissal of this action because:
• Plaintiff does not dispute that she failed to provide the court-ordered original media
files and has not provided any media files concerning the decedent’s admission to
New York Presbyterian Hospital.
• Plaintiff admits that she lost key evidence (in particular, the original audio files and
her husband’s cellphone which contained key recordings) despite agreeing at her
50H exam more than three years ago to preserve recordings and photographs.
• Plaintiff’s opposition is unsupported by any expert opinion and, as such, is
incapable of refuting the detailed technology-based opinions of Defendant’s
cellphone forensics expert, Luis Castrillon (who explained why none of the
produced media files are the court-ordered original files, outlined the missing data,
and explained that non-forensically imaged/extracted files, such as those produced
here, can be manipulated by readily available applications).
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• Plaintiff’s argument against dismissal – her claim that she “acted in good faith”
during discovery – is in fact contradicted by her ongoing failure to provide the
original files, violation of multiple court orders, spoliation, and her late filing of her
opposition. And,
• Plaintiff’s offer to make just one of the many phones that created media files during
decedent’s hospital admissions available for inspection is completely inadequate.
Plaintiff was ordered to produce all original media files, not a singular phone for
inspection, and, Plaintiff, as the producing party, is required to bear the cost of
extracting and producing those files in a forensically sound manner.
Significantly, Plaintiff does not even oppose the preclusion branch of Defendant’s motion. While
Plaintiff’s willful and contumacious conduct requires the dismissal of this action, the Court should,
at the very least, preclude Plaintiff from using any media in this action for her conduct and failure
to oppose preclusion.
ARGUMENT
I. THE COURT SHOULD DISREGARD PLAINTIFF’S UNTIMELY OPPOSITION
4. Defendant filed this motion on January 31, 2024, with a return date of February 21,
2024. As such, Plaintiff’s opposition was due no later than February 14, 2024, in accordance with
CPLR 2214(b). However, Plaintiff neither served her opposition by that date nor sought an
adjournment of the return date from Defendant’s counsel. Rather, at 5.37 p.m. on February 15,
2024, Plaintiff’s counsel belatedly e-filed Plaintiff’s opposition. Plaintiff’s opposition is untimely
and should be disregarded by the Court. Moreover, Plaintiff’s failure to timely serve her
opposition in accordance with CPLR 2214(b) is a continuation of her willful and contumacious
conduct. Such gamesmanship only further justifies the outright dismissal of this action pursuant
to CPLR § 3126.
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II. THE COURT SHOULD DISMISS THIS ACTION
A. Plaintiff Does Not Dispute That She Violated The Court’s Orders, Has Failed
To Produce The Court-Ordered Original Files, And Has Spoliated Evidence
5. First, Plaintiff does not dispute that she has not provided the original video and
audio recordings and original photographs that she was ordered to produce by the February 2023
Compliance Conference. See, gen., Plaintiff’s Opposition; see also, Affirmation In Support, ¶¶24-
31.
6. Second, Plaintiff’s opposition fails to include any expert opinion and, as such, is
incapable of refuting the detailed technology-based opinions of Defendant’s expert, Luis
Castrillon. Rather, Plaintiff merely submitted an attorney affirmation in opposition. That
affirmation, by a lay-person, is incapable of refuting Defendant’s expert opinions concerning
Plaintiff’s failure to provide the original files and the implications of failing to do so. See,
Dombrowski v. Moore, 299 A.D.2d 949, 951 (4th Dept. 2002) (“Lay witnesses may only testify
concerning facts and not to their opinions and conclusions drawn from the facts).
7. Third, Plaintiff, in her opposition (1) admits that she has lost evidence (i.e., audio
files and her husband’s iPhone on which Plaintiff states that he made recordings of conversations
with NYCHHC staff), and (2) does not dispute that she agreed to preserve media files (photographs
and videos) at her 50H exam more than three years ago. See Plaintiff’s Opposition, ¶7; see also
Affirmation In Support, ¶34.1 That loss, at the very least, constitutes negligent spoliation. See,
Strong v. City of New York, 112 A.D.3d 15, 22 (1st Dept. 2013) (“[T]he negligent erasure of
audiotapes can certainly give rise to the imposition of spoliation sanctions under New York's
1
Plaintiff likewise previously admitted such spoliation in an earlier affidavit in which she stated, “I am unable to
locate the audio files with the original timestamp.” See Affirmation In Support, Ex. “U” (Plaintiff’s Affidavit), ¶2.
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common-law spoliation doctrine, if the alleged spoliator was on notice that the audiotapes might
be needed for future litigation”).
8. Fourth, Plaintiff’s repeated claim that she has displayed “good faith” during the
discovery process (see Plaintiff’s Opposition, ¶6, 8) is belied by the fact that Plaintiff repeatedly
failed to produce the original files despite Defendant, on multiple occasions, informing Plaintiff
that the files provided to date were not the original files. See Affirmation In Support, Exs. “O,”
“P,” “Q,” “R,” “S” and “T.”
9. Fifth, Plaintiff’s counsel’s conclusory claim that Defendant has not established the
relevance of the lost discovery (see Plaintiff’s Opposition, ¶9) is disingenuous as the Court, when
ordering Plaintiff to produce that discovery in the February 2023 Compliance Conference Order,
already endorsed its relevancy. See Affirmation In Support, Ex. “N” (February 2023 Compliance
Conference Order), Directive No. 1.2
10. In the end, this action must be dismissed because Plaintiff has willfully and
contumaciously – for more than one year – failed to provide the court-ordered original files (i.e.,
“the original files that were created immediately at the time of the occurrence of the respective
event which they depict,” not “duplicate files created on a later date”), with all data detailing the
date and device on which they were created. See Affirmation In Support, Ex. “N” (February 2023
Compliance Conference Order), Directive No. 1. Moreover, Plaintiff admits that she lost key
evidence (despite agreeing to preserve media files more than three years ago).
2
Plaintiff’s further attempts to obfuscate the issues by gratuitously arguing that Defendant has not fully responded to
her combined demands. As Plaintiff has not made a cross-motion, this is not before the Court. In any event, Plaintiff
waived that argument as she did not seek to include a response Plaintiff’s combined demands in the last six compliance
conference orders in this action. See Affirmation In Support, Exs. “I,” “J,” “K,” “L,” “N” and “W.” Furthermore,
Plaintiff’s claim that “Defendants [sic] have also refused to comply with the compliance order by refusing to produce
Dr. Fazylov for deposition” (Plaintiff’s Affirmation, ¶18) is undermined by the fact that the Court, in the December
2023 Compliance Conference Order, directed that Dr. Fazylov’s deposition will proceed once a decision has been
issued on the instant motion. See, Id., Ex. “W.”
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B. Plaintiff’s Offer To Make Just One Of Multiple Cellphones Available For
Defendant To Inspect Is No Substitute For Complying With The Court’s
Order That She Produce All Original Files And Violates The Principle That
The Producing Party Bears The Cost Of Making Their Production
11. First, Plaintiff’s offer to make one cellphone available for Defendant’s expert to
extract the original files that Plaintiff was required by the February 2023 Order to produce, but did
not, violates the rule that Plaintiff, as the producing party, should bear the cost of searching for,
retrieving, and producing the original media files and their metadata. See, U.S. Bank Nat. Ass'n v.
GreenPoint Mortg. Funding, Inc., 94 A.D.3d 58, 62 (1st Dept. 2012) (“[I]t is the producing party
that is to bear the cost of the searching for, retrieving, and producing documents, including
electronically stored information”). Plaintiff’s offer to make just one of multiple cellphones
available for inspection is not, and cannot be, a substitute for Plaintiff’s compliance with the
February 2023 Order.
12. Second, to the extent that Plaintiff is arguing that her failure to produce the original
files with the original metadata should be excused because she does not have the technical
proficiency to do so, that argument has been routinely rejected and should be rejected here. See,
Doe v. Bivins, No. 150400/2017, 2018 WL 3439805, at *2 (Sup. Ct., N.Y. Cty. 2018) (“Plaintiff's
excuse for not providing metadata is that she possesses neither the technical proficiency to produce
such metadata nor the resources to retain a forensic technological expert to pursue a search for the
metadata … This is not a meritorious excuse. The producing party is required to bear the initial
cost for searching for, retrieving and producing discovery”).
13. Third, Plaintiff’s offer to make just one phone available for inspection fails to
identify what happened to the other phone(s) on which video and audio recordings were made and
photographs taken. As explained by Defendant’s cellphone forensics expert, “EXIF data for five
(5) image files [provided by Plaintiff] show they were all created by a Samsung mobile device,
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Model: SM-N960U.” See Castrillon Affidavit, ¶11. Yet Plaintiff, in her opposition, only refers to
two iPhones creating media files (one of which she states is now lost) and does not explain what
happened to that Samsung phone. See Plaintiff’s Opposition, ¶5.
14. In the end, Plaintiff’s offer to produce just one phone for inspection (and not the
multiple phones that created media in this action), is no excuse for her failure to comply with the
February 2023 Compliance Conference Order which required her to produce all original files, with
all data concerning the device from which they were obtained and the date that they were created.
See Affirmation In Support, Ex. “N” (February 2023 Compliance Conference Order), Directive
No. 1.
III. IF THE COURT DOES NOT DISMISS THIS ACTION, IT SHOULD PRECLUDE
PLAINTIFF FROM OFFERING ANY MEDIA INTO EVIDENCE AT TRIAL OR
FROM ELICITING TESTIMONY CONCERNING SUCH MEDIA
15. If the court does not dismiss this action, it should preclude plaintiff from offering
any media into evidence at trial or from eliciting testimony concerning such media because of
Plaintiff’s willful and contumacious failure to comply with the Court’s Orders and CPLR 3101(i),
spoliation, and failure to oppose the preclusion branch of Defendant’s motion.
16. First, as noted in Defendant’s moving papers, Plaintiff has willfully and
contumaciously (1) failed to provide the original video and audio recordings and original
photographs as required by the February 2023 Compliance Conference Order, (2) failed to make
full disclosure of all photographs, video tapes and audio tapes as required by CPLR 3101(i)
(including an almost two year delay in providing any media in this action), and (3) spoliated
various original audio files that Plaintiff was required to produce pursuant to CPLR 3101(i) and
was on notice to preserve at her 50H examination, which Defendant sought by its Notice of
Discovery and Inspection dated May 7, 2021.
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17. Second, in her opposition, Plaintiff does not even oppose the preclusion prong of
Defendant’s motion. Rather, Plaintiff states that “even if the Court finds that we have acted
willfully and contumaciously, we respectfully submit that the appropriate remedy is to preclude
these files from being offered at trial.” See Plaintiff’s Affirmation, ¶20.
18. In light of Plaintiff’s willful and contumacious conduct and failure to oppose the
preclusion branch of Defendant’s motion, the court should, at the very least, grant that branch of
Defendant’s motion.
WHEREFORE it is respectfully requested that an Order be entered (1) pursuant to CPLR
§ 3126, dismissing this action for Plaintiff’s violation of the Compliance Conference Order dated
February 3, 2023, which required “Plaintiff to produce all original video and audio recordings and
original photographs”; failure to comply with CPLR 3101(i) which requires “full disclosure of any
films, photographs, video tapes or audio tapes”; and spoliation of various original audio
recordings; or, in the alternative, (2) pursuant to CPLR § 3126, 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, and (3) for such other and further relief that this
Court deems just and proper.
Dated: New York, New York
February 20, 2024
Christopher P. Fox
Christopher P. Fox
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CERTIFICATION
IT IS HEREBY CERTIFIED pursuant to Uniform Civil Rule 202.8-b(c) that the
foregoing Attorney Reply Affirmation was prepared on a computer using Times New Roman
typeface, size 12 font, and double line spacing.
IT IS FURTHER CERTIFIED that the total number of words in this Attorney Reply
Affirmation, inclusive of point headings and footnotes and exclusive of the caption and the
signature block, is 2230, and is thereby in compliance with the limit set by the court.
Dated: New York, New York
February 20, 2024
Christopher P. Fox
Christopher P. Fox
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Preview
FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 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, ATTORNEY -against- : REPLY : AFFIRMATION CONEY ISLAND HOSPITAL and NEW YORK CITY : HEALTH AND HOSPITALS CORPORATION, : : Defendants. : -------------------------------------------------------------------- x CHRISTOPHER P. FOX, an attorney duly admitted to practice law before the courts of The State of New York, affirms the following under penalty of perjury pursuant to CPLR Rule 2106: 1. I am an attorney duly admitted to practice law before the courts of The State of New York, and I am an Associate at Furman Kornfeld & Brennan LLP, attorneys for the defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION s/h/a CONEY ISLAND HOSPITAL AND NEW YORK CITY HEALTH AND HOSPITALS CORPORATION. This Reply Affirmation is made upon information and belief founded upon the records maintained in this matter by my office, which I believe to be true and accurate. As such, I am fully familiar with the facts and circumstances herein. 2. I submit this affirmation in further support of the instant motion which seeks an Order: a. 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, 1 1 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 photographs, video tapes or audio tapes,” and (iii) spoliation of various original audio recordings. or, in the alternative, b. 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, c. For such other and further relief as this Court deems just and proper. PRELIMINARY STATEMENT 3. Plaintiff’s late-filed opposition is a woefully inadequate attempt to prevent the dismissal of this action because: • Plaintiff does not dispute that she failed to provide the court-ordered original media files and has not provided any media files concerning the decedent’s admission to New York Presbyterian Hospital. • Plaintiff admits that she lost key evidence (in particular, the original audio files and her husband’s cellphone which contained key recordings) despite agreeing at her 50H exam more than three years ago to preserve recordings and photographs. • Plaintiff’s opposition is unsupported by any expert opinion and, as such, is incapable of refuting the detailed technology-based opinions of Defendant’s cellphone forensics expert, Luis Castrillon (who explained why none of the produced media files are the court-ordered original files, outlined the missing data, and explained that non-forensically imaged/extracted files, such as those produced here, can be manipulated by readily available applications). 2 2 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 • Plaintiff’s argument against dismissal – her claim that she “acted in good faith” during discovery – is in fact contradicted by her ongoing failure to provide the original files, violation of multiple court orders, spoliation, and her late filing of her opposition. And, • Plaintiff’s offer to make just one of the many phones that created media files during decedent’s hospital admissions available for inspection is completely inadequate. Plaintiff was ordered to produce all original media files, not a singular phone for inspection, and, Plaintiff, as the producing party, is required to bear the cost of extracting and producing those files in a forensically sound manner. Significantly, Plaintiff does not even oppose the preclusion branch of Defendant’s motion. While Plaintiff’s willful and contumacious conduct requires the dismissal of this action, the Court should, at the very least, preclude Plaintiff from using any media in this action for her conduct and failure to oppose preclusion. ARGUMENT I. THE COURT SHOULD DISREGARD PLAINTIFF’S UNTIMELY OPPOSITION 4. Defendant filed this motion on January 31, 2024, with a return date of February 21, 2024. As such, Plaintiff’s opposition was due no later than February 14, 2024, in accordance with CPLR 2214(b). However, Plaintiff neither served her opposition by that date nor sought an adjournment of the return date from Defendant’s counsel. Rather, at 5.37 p.m. on February 15, 2024, Plaintiff’s counsel belatedly e-filed Plaintiff’s opposition. Plaintiff’s opposition is untimely and should be disregarded by the Court. Moreover, Plaintiff’s failure to timely serve her opposition in accordance with CPLR 2214(b) is a continuation of her willful and contumacious conduct. Such gamesmanship only further justifies the outright dismissal of this action pursuant to CPLR § 3126. 3 3 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 II. THE COURT SHOULD DISMISS THIS ACTION A. Plaintiff Does Not Dispute That She Violated The Court’s Orders, Has Failed To Produce The Court-Ordered Original Files, And Has Spoliated Evidence 5. First, Plaintiff does not dispute that she has not provided the original video and audio recordings and original photographs that she was ordered to produce by the February 2023 Compliance Conference. See, gen., Plaintiff’s Opposition; see also, Affirmation In Support, ¶¶24- 31. 6. Second, Plaintiff’s opposition fails to include any expert opinion and, as such, is incapable of refuting the detailed technology-based opinions of Defendant’s expert, Luis Castrillon. Rather, Plaintiff merely submitted an attorney affirmation in opposition. That affirmation, by a lay-person, is incapable of refuting Defendant’s expert opinions concerning Plaintiff’s failure to provide the original files and the implications of failing to do so. See, Dombrowski v. Moore, 299 A.D.2d 949, 951 (4th Dept. 2002) (“Lay witnesses may only testify concerning facts and not to their opinions and conclusions drawn from the facts). 7. Third, Plaintiff, in her opposition (1) admits that she has lost evidence (i.e., audio files and her husband’s iPhone on which Plaintiff states that he made recordings of conversations with NYCHHC staff), and (2) does not dispute that she agreed to preserve media files (photographs and videos) at her 50H exam more than three years ago. See Plaintiff’s Opposition, ¶7; see also Affirmation In Support, ¶34.1 That loss, at the very least, constitutes negligent spoliation. See, Strong v. City of New York, 112 A.D.3d 15, 22 (1st Dept. 2013) (“[T]he negligent erasure of audiotapes can certainly give rise to the imposition of spoliation sanctions under New York's 1 Plaintiff likewise previously admitted such spoliation in an earlier affidavit in which she stated, “I am unable to locate the audio files with the original timestamp.” See Affirmation In Support, Ex. “U” (Plaintiff’s Affidavit), ¶2. 4 4 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 common-law spoliation doctrine, if the alleged spoliator was on notice that the audiotapes might be needed for future litigation”). 8. Fourth, Plaintiff’s repeated claim that she has displayed “good faith” during the discovery process (see Plaintiff’s Opposition, ¶6, 8) is belied by the fact that Plaintiff repeatedly failed to produce the original files despite Defendant, on multiple occasions, informing Plaintiff that the files provided to date were not the original files. See Affirmation In Support, Exs. “O,” “P,” “Q,” “R,” “S” and “T.” 9. Fifth, Plaintiff’s counsel’s conclusory claim that Defendant has not established the relevance of the lost discovery (see Plaintiff’s Opposition, ¶9) is disingenuous as the Court, when ordering Plaintiff to produce that discovery in the February 2023 Compliance Conference Order, already endorsed its relevancy. See Affirmation In Support, Ex. “N” (February 2023 Compliance Conference Order), Directive No. 1.2 10. In the end, this action must be dismissed because Plaintiff has willfully and contumaciously – for more than one year – failed to provide the court-ordered original files (i.e., “the original files that were created immediately at the time of the occurrence of the respective event which they depict,” not “duplicate files created on a later date”), with all data detailing the date and device on which they were created. See Affirmation In Support, Ex. “N” (February 2023 Compliance Conference Order), Directive No. 1. Moreover, Plaintiff admits that she lost key evidence (despite agreeing to preserve media files more than three years ago). 2 Plaintiff’s further attempts to obfuscate the issues by gratuitously arguing that Defendant has not fully responded to her combined demands. As Plaintiff has not made a cross-motion, this is not before the Court. In any event, Plaintiff waived that argument as she did not seek to include a response Plaintiff’s combined demands in the last six compliance conference orders in this action. See Affirmation In Support, Exs. “I,” “J,” “K,” “L,” “N” and “W.” Furthermore, Plaintiff’s claim that “Defendants [sic] have also refused to comply with the compliance order by refusing to produce Dr. Fazylov for deposition” (Plaintiff’s Affirmation, ¶18) is undermined by the fact that the Court, in the December 2023 Compliance Conference Order, directed that Dr. Fazylov’s deposition will proceed once a decision has been issued on the instant motion. See, Id., Ex. “W.” 5 5 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 B. Plaintiff’s Offer To Make Just One Of Multiple Cellphones Available For Defendant To Inspect Is No Substitute For Complying With The Court’s Order That She Produce All Original Files And Violates The Principle That The Producing Party Bears The Cost Of Making Their Production 11. First, Plaintiff’s offer to make one cellphone available for Defendant’s expert to extract the original files that Plaintiff was required by the February 2023 Order to produce, but did not, violates the rule that Plaintiff, as the producing party, should bear the cost of searching for, retrieving, and producing the original media files and their metadata. See, U.S. Bank Nat. Ass'n v. GreenPoint Mortg. Funding, Inc., 94 A.D.3d 58, 62 (1st Dept. 2012) (“[I]t is the producing party that is to bear the cost of the searching for, retrieving, and producing documents, including electronically stored information”). Plaintiff’s offer to make just one of multiple cellphones available for inspection is not, and cannot be, a substitute for Plaintiff’s compliance with the February 2023 Order. 12. Second, to the extent that Plaintiff is arguing that her failure to produce the original files with the original metadata should be excused because she does not have the technical proficiency to do so, that argument has been routinely rejected and should be rejected here. See, Doe v. Bivins, No. 150400/2017, 2018 WL 3439805, at *2 (Sup. Ct., N.Y. Cty. 2018) (“Plaintiff's excuse for not providing metadata is that she possesses neither the technical proficiency to produce such metadata nor the resources to retain a forensic technological expert to pursue a search for the metadata … This is not a meritorious excuse. The producing party is required to bear the initial cost for searching for, retrieving and producing discovery”). 13. Third, Plaintiff’s offer to make just one phone available for inspection fails to identify what happened to the other phone(s) on which video and audio recordings were made and photographs taken. As explained by Defendant’s cellphone forensics expert, “EXIF data for five (5) image files [provided by Plaintiff] show they were all created by a Samsung mobile device, 6 6 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 Model: SM-N960U.” See Castrillon Affidavit, ¶11. Yet Plaintiff, in her opposition, only refers to two iPhones creating media files (one of which she states is now lost) and does not explain what happened to that Samsung phone. See Plaintiff’s Opposition, ¶5. 14. In the end, Plaintiff’s offer to produce just one phone for inspection (and not the multiple phones that created media in this action), is no excuse for her failure to comply with the February 2023 Compliance Conference Order which required her to produce all original files, with all data concerning the device from which they were obtained and the date that they were created. See Affirmation In Support, Ex. “N” (February 2023 Compliance Conference Order), Directive No. 1. III. IF THE COURT DOES NOT DISMISS THIS ACTION, IT SHOULD PRECLUDE PLAINTIFF FROM OFFERING ANY MEDIA INTO EVIDENCE AT TRIAL OR FROM ELICITING TESTIMONY CONCERNING SUCH MEDIA 15. If the court does not dismiss this action, it should preclude plaintiff from offering any media into evidence at trial or from eliciting testimony concerning such media because of Plaintiff’s willful and contumacious failure to comply with the Court’s Orders and CPLR 3101(i), spoliation, and failure to oppose the preclusion branch of Defendant’s motion. 16. First, as noted in Defendant’s moving papers, Plaintiff has willfully and contumaciously (1) failed to provide the original video and audio recordings and original photographs as required by the February 2023 Compliance Conference Order, (2) failed to make full disclosure of all photographs, video tapes and audio tapes as required by CPLR 3101(i) (including an almost two year delay in providing any media in this action), and (3) spoliated various original audio files that Plaintiff was required to produce pursuant to CPLR 3101(i) and was on notice to preserve at her 50H examination, which Defendant sought by its Notice of Discovery and Inspection dated May 7, 2021. 7 7 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 17. Second, in her opposition, Plaintiff does not even oppose the preclusion prong of Defendant’s motion. Rather, Plaintiff states that “even if the Court finds that we have acted willfully and contumaciously, we respectfully submit that the appropriate remedy is to preclude these files from being offered at trial.” See Plaintiff’s Affirmation, ¶20. 18. In light of Plaintiff’s willful and contumacious conduct and failure to oppose the preclusion branch of Defendant’s motion, the court should, at the very least, grant that branch of Defendant’s motion. WHEREFORE it is respectfully requested that an Order be entered (1) pursuant to CPLR § 3126, dismissing this action for Plaintiff’s violation of the Compliance Conference Order dated February 3, 2023, which required “Plaintiff to produce all original video and audio recordings and original photographs”; failure to comply with CPLR 3101(i) which requires “full disclosure of any films, photographs, video tapes or audio tapes”; and spoliation of various original audio recordings; or, in the alternative, (2) pursuant to CPLR § 3126, 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, and (3) for such other and further relief that this Court deems just and proper. Dated: New York, New York February 20, 2024 Christopher P. Fox Christopher P. Fox 8 8 of 9 FILED: KINGS COUNTY CLERK 02/20/2024 08:50 PM INDEX NO. 507320/2021 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 02/20/2024 CERTIFICATION IT IS HEREBY CERTIFIED pursuant to Uniform Civil Rule 202.8-b(c) that the foregoing Attorney Reply Affirmation was prepared on a computer using Times New Roman typeface, size 12 font, and double line spacing. IT IS FURTHER CERTIFIED that the total number of words in this Attorney Reply Affirmation, inclusive of point headings and footnotes and exclusive of the caption and the signature block, is 2230, and is thereby in compliance with the limit set by the court. Dated: New York, New York February 20, 2024 Christopher P. Fox Christopher P. Fox 9 9 of 9