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FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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LARRY ASHKINAZY,
Index No.: 100148/2014
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
GARY PILLERSDORF P.C. &/OR LLC, GARY B.
PILLERSDORF PLP &/OR LLP, ESTATE OF GARY B.
PILLERSDORF, THE PILLERSDORF LAW FIRM,
PILLERSDORF & PILLERSDORF, GARY B.
PILLERSDORF & ASSOCIATES, GARY B.
PILLERSDORF & ASSOCIATES, P.C., JOHN & JANE
DOES (1, 2, 3, et al.), TRUE NAME UNKNOWN,
Defendants.
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ANTHONY J. PROSCIA, an attorney duly admitted to practice before the Courts of this
State and aware of the penalties of perjury, affirms the truth of the following:
1. I am a partner with the law firm of Kaufman Dolowich LLP, attorneys for the
Defendants, GARY PILLERSDORF P.C. &/OR LLC, GARY B. PILLERSDORF PLP &/OR
LLP, ESTATE OF GARY B. PILLERSDORF, THE PILLERSDORF LAW FIRM,
PILLERSDORF & PILLERSDORF, GARY B. PILLERSDORF & ASSOCIATES, and GARY B.
PILLERSDORF & ASSOCIATES, P.C. ( collectively “Defendants”). As such, I am fully familiar
with the facts and circumstances set forth herein based upon a review of the file maintained by my
office.
PRELIMINARY STATEMENT
2. This Affirmation is submitted in support of Defendants’ motion for an Order:
(i) pursuant to CPLR 3212, awarding the Defendants summary judgment and
dismissing the Plaintiff’s Amended Verified Complaint, due to Plaintiff’s willful
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refusal and failure to comply with this Court’s Orders directing him to comply with
his discovery obligations herein;
(ii) or, in the alternative, pursuant to CPLR 3126(3), striking the Plaintiff’s Amended
Verified Complaint and dismissing the action, due to Plaintiff’s willful refusal and
failure to comply with this Court’s Orders directing him to comply with his
discovery obligations herein; and
(iii) granting such other different and further relief as the Court deems just and proper.
STATEMENT OF PERTINENT FACTS
3. Plaintiff’s action sounds in legal malpractice, breach of contract, fraudulent
inducement, and breach of fiduciary duty relating to Defendants’ legal representation of Plaintiff
– as trial counsel – in an underlying personal injury action, captioned Larry Ashkinazy v.
Consolidated Edison Company of New York, Inc., Index Number 114048/2003 (the “Underlying
Action”).
A. Plaintiff’s Underlying Action And Agreed-To Reduced Judgment Therein
4. The Underlying Action arose from personal injuries Plaintiff sustained in a scooter
accident in New York City in August 2002.
5. In August 2008 – and post-note of issue, Plaintiff retained Pillersdorf as his trial
counsel in the Underlying Action.
6. After an approximate two-week trial, on September 22, 2008, the jury awarded a
Plaintiff’s verdict for approximately $15 million.
7. This Underlying Action judgment was reduced by the trial court as excessive in
response to Con Edison’s post-trial motion to set aside the verdict.
8. Following the trial, Con Edison also appealed the Underlying Action judgment.
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9. The Defendants did not represent Plaintiff with respect to the Underlying Action
appeal.
10. On appeal, the First Department vacated the Underlying Action judgment as again
excessive and remanded it for a new trial, unless Plaintiff agreed to reduce the judgment by
approximately $5.5 million. See Ashkinazy v. Consolidated Edison Company of New York, Inc.,
78 A.D.3d 434 (1st Dep’t 2010).
11. Plaintiff thereafter voluntarily agreed to reduce his damages recovery.
12. The Underlying Action proposed judgment was submitted in February 2011, which
set forth the damage amounts as follows:
$1.5 million for past pain and suffering;
$3.5 million for future pain and suffering;
$900,000 for future home health services;
$551,685.72 in past lost earnings;
$6,180 in past medical expenses; and
$427,000 in future medical expenses.
13. The Underlying Action proposed judgment also included costs and 9% interest
from the date of verdict (September 22, 2008), calculated as follows: (1) $329,524.20 for past
incurred damages; (2) $943,050.47 for future damages; and (3) $648,640.19 for the attorneys’ fees.
14. Plaintiff’s recovery in the Underlying Action totaled nearly $9 million.
B. Plaintiffs’ Allegations Against The Defendants With Respect
To Their Representation Of Plaintiff In The Underlying Action
15. As Plaintiff’s trial counsel, the Defendants secured Plaintiff a judgment in the
Underlying Action of approximately $15 million.
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16. The trial court and then the First Department both determined that the Underlying
Action judgment was excessive.
17. While Plaintiff had the opportunity to retry the Underlying Action, he instead chose
to agree to a reduced judgment as against Con Edison.
18. Notwithstanding the foregoing, and despite the fact that Defendants secured an
eight-figure verdict for Plaintiff, Plaintiff alleges that the Defendants were negligent in the
handling of the Underlying Action, insofar as (i) they were negligent in the handling of the trial,
including failing to introduce appropriate evidence regarding future medical expenses, pain and
suffering, and future physical rehabilitation expenses; (ii) they improperly structured Plaintiff’s
settlement annuity; and (iii) they improperly calculating monies due to Plaintiff under the
settlement.
C. Plaintiff’s Failure To Appropriately Respond To Defendants’
Written Discovery Demands For Nearly Nine (9) Years
19. Plaintiff commenced this action in February 2014, and subsequently served his
Complaint herein. [Ex. A.]
20. After the Defendants interposed an Answer, [Ex. B], in June 2015, they served
various discovery demands upon Plaintiff.
21. Pertinent to the instant motion, the Defendants served the following written
discovery upon Plaintiff in June 2015:
(1) Defendants’ First Notice of Discovery and Inspection, dated June 15, 2015;
(2) Defendants’ Demand for Medical Information and Authorizations, dated June 15,
2015; and
(3) Defendants’ Demand for Collateral Source Information, dated June 15, 2015.
[Exs. C, D-1, D-2.]
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22. The Defendants have attempted for nearly nine (9) to get the Plaintiff to comply
with his discovery obligations herein, and he still fails to do so.
23. While the Defendants’ prior, second discovery motion was pending, in December
2020, Plaintiff served (i) a Response to Defendants’ First Notice for Discovery and Inspection,
dated December 20, 2020; (ii) Response to Defendants’ Demand for Medical Information and
Authorizations, dated December 20, 2020; and (iii) Response to Defendants’ Demand for
Collateral Source Information, dated December 20, 2020. [Exs. E-1, E-2, E-3.]
D. The Court’s March 2023 Order
24. The tortured history of discovery herein is detailed within this Court’s Order, dated
March 7, 2023 (the “March 2023 Order”), [Ex. F], which substantively decided the Defendants’
fourth discovery motion herein.
25. Within the March 2023 Order, “the Court [found] that plaintiff has failed to comply
with several orders directing him to furnish discovery, including authorizations.” [Ex. F at p. 4.]
26. The Court also found: “There is no dispute their neither the medical authorizations
nor collateral source authorizations were furnished.” [Id.]
27. Moreover, the Court further found that plaintiff failed to furnish a verification that
in accordance with 22 NYCRR 202.20-c, noting: “Here plaintiff concedes that there was no such
affidavit attached to plaintiff’s response dated December 20, 2020.” [Id.]
28. Finally, this Court found that Plaintiff “failed to respond to 39, 42 and 43 of the
June 15 demand for discovery and inspection,” as “Plaintiff does not dispute that the responses
were never provided.” [Id.]
29. As a result of the Plaintiff’s failure to fully, properly and adequately respond to the
Defendants’ written discovery demands, the March 2023 Order directs Plaintiff:
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(1) to “furnish medical authorizations for twenty-five (25) medical providers and
authorizations for collateral source records from three (3) providers, as demanded
in the June 15, 2015 demands, within forty-five (45) days” [Ex. F at p. 5];
(2) to “provide an affidavit that the limited documents produced is complete, as
directed in the above decision, within forty-five (45) days” [Id.];
(3) to “furnish responses to paragraphs 39, 42 and 43 of the June 15, 2015 demand,
within forty-five (45) days.”
[Id.]
30. The March 2023 further warns Plaintiff as to the consequences for his continued
failure to comply with his discovery obligations, stating:
ORDERED that in the event plaintiff fails to comply with the above directives, the
court may strike plaintiff’s pleadings, upon written notice to the court[.]
[Id.]
E. The Court’s May 2023 Order
31. Plaintiff completely ignored and did not comply with the Court’s March 2023
Order.
32. Your Affiant advised the Court of Plaintiff’s continued non-compliance at a May
9, 2023 conference.
33. Following the May 9th conference, the Court issued an Order, dated May 24, 2023
(the “May 2023 Order”). [Ex. G.]
34. Within the May 2023 Order, the Court gave Plaintiff another chance to comply with
the March 2023 Order and his discovery obligations, giving Plaintiff until June 5, 2023 to do so.
[Id. at p. 2.]
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35. The March 2023 again warns Plaintiff as to the consequences for his continued
failure to comply with his discovery obligations, stating:
ORDERED that in the event plaintiff fails to comply with the above directive, the
court may strike plaintiff’s pleadings, upon written notice to the court[.]
[Ex. G at p. 2.]
F. Plaintiff Ignores And Does Not Comply With The March
2023 Order And The May 2023 Order By June 5, 2023
36. Plaintiff did not comply with the directives within this Court’s March 2023 Order
and the May 2023 Order by the June 5, 2023 deadline.
37. Additionally, Plaintiff has not attempted to comply in any manner whatsoever with
this Court’s March 2023 Order and the May 2023 Order.
ARGUMENT
POINT I
THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT
AND DISMISSAL OF THE ACTION, DUE TO THE COURT’S
SELF-EFFECTUATING CONDITIONAL MARCH 2023 AND MAY 2023 ORDERS
38. It is well-settled that a self-effectuating conditional order becomes absolute and
final upon a party’s failure to comply with said order. Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74,
80 (2010); Northway Engineering, Inc. v. Felix Industries, Inc., 77 N.Y.2d 332, 336 (1991);
Ubozoh v. Mueller, 204 A.D.3d 485, 485 (1st Dep’t 2022) (“the order became absolute”); Crump
v. City of New York, 67 A.D.2d 634, 634 (1st Dep’t 1979); Piemonte v. JSF Realty, LLC, 140
A.D.3d 1145, 1146 (2d Dep’t 2016); Alphonse v. UBJ Inc., 266 A.D.2d 171 (2d Dep’t 1999).
39. Here, the March 2023 Order and the May 2023 Order are self-effectuating
conditional orders.
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40. Specifically, under the March 2023 Order and the May 2023 Order, this Court
directed Plaintiff to comply with still-outstanding discovery related to the failure to provide (i)
medical authorizations; (ii) collateral source information authorizations; (iii) a 22 NYCRR 202.20-
c affidavit regarding the completeness of his document production; and (iv) responses to requests
39, 42 and 43 within the Defendants’ June 2015 notice for discovery and inspection.
41. Within the March 2023 Order and the May 2023 Order, this Court also expressly
warned Plaintiff regarding his continued failure to comply with his discovery obligations, to wit –
the striking of his Amended Verified Complaint. [See Exs. F at p. 5, G at p. 2.]
42. As a result of the foregoing, the Defendants submit that the striking of Plaintiff’s
Amended Verified Complaint was automatic, absolute and final when Plaintiff failed to comply
with the directives of the Court within the deadlines set by the Court.
43. It is also well-settled that when a self-effectuating conditional order prevents a
plaintiff from establishing his prima facie case, the defendant is entitled to summary judgment and
dismissal of the action. Northway Engineering, Inc., 77 N.Y.2d at 336-37; Ubozoh, 204 A.D.3d
at 485 (“As a result, plaintiff will not be able to make a prima facie case, and the complaint should
be dismissed in its entirety.”); Tejeda v. 750 Gerard Properties Corp., 272 A.D.2d 124, 124 (1st
Dep’t 2000); Video-Cinema Films, Inc. v. Seaboard Sur. Co., 237 A.D.2d 135, 135 (1st Dep’t
1997); Becerril by Francis v. Skate Way Roller Rink, Inc., 184 A.D.2d 365, 366 (1st Dep’t 1992);
Crump, 67 A.D.2d at 634-35; Piemonte, 140 A.D.3d at 1147; Panagiotou v. Samaritan Village,
Inc., 66 A.D.3d 979 (2d Dep’t 2009); Alphonse, 266 A.D.2d at 171; LeFrois Foods Corp. v. Policy
Advancing Corp., 59 A.D.2d 1013, 1014 (4th Dep’t 1977); Rockaway Medical & Diagnostic, P.C.
v. Chubb Insurance Co., 81 Misc.3d 128(A) (Sup. Ct. Queens Cnty. Oct. 6, 2023); Platovsky v.
Bernstein, 77 Misc.3d 1210(A) (Sup. Ct. Bronx Cnty. 2022).
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44. Here, the striking of Plaintiff’s Amended Verified Complaint is “the equivalent of
the death penalty in civil litigation.” Connors, McKinney Practice Commentary, Cons Laws of
NY, Book 7B, CPLR 3126:8.
45. Given that Plaintiff’s Amended Verified Complaint has been stricken, the case is
over.
46. The Defendants are entitled to summary judgment and dismissal of the instant
action against them, with prejudice.
47. Moreover, given the written discovery being intentionally withheld by the Plaintiff
from the Defendants (i.e., discovery associated with his alleged medical injuries, his receipt of
collateral source payments, and his refusal to vouch that his document production is complete),
Plaintiff cannot establish any of the elements of a legal malpractice claim against the Defendants
– cannot prove that the Defendants breached an applicable standard of care, that the Defendants’
alleged conduct was a “but for” cause of any purported injuries sustained, or that he has sustained
actual and ascertainable damages.
48. Accordingly, the Defendants respectfully submit that, based upon the self-
effectuating March 2023 and May 2023 Orders, Plaintiff’s Amended Verified Complaint is
stricken, and they are entitled to summary judgment and dismissal of the action, with prejudice.
POINT II
IN THE ALTERNATIVE, THE COURT SHOULD
STRIKE PLAINTIFF’S AMENDED VERIFIED COMPLAINT,
DUE TO HIS ONGOING WILLFUL REFUSAL TO
COMPLY WITH HIS DISCOVERY OBLIGATIONS
49. If this Court determines that its prior March 2023 and May 2023 Orders are not
self-effectuating, the Defendants submit that they are nevertheless entitled to an Order, striking the
Plaintiff’s Amended Verified Complaint and dismissal of the action, with prejudice.
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50. The Court has broad discretion to supervise disclosure in a civil action, which must
be exercised to facilitate the resolution of an action. See Kamhi v. Dependable Delivery Service,
Inc., 234 A.D.2d 34 (1st Dep’t 1996).
51. Pursuant to CPLR 3126, a court can strike the pleading of a party that fails to
provide discovery. See Fish and Richardson, P.C. v. Schindler, 75 A.D.3d 219 (1st Dep’t 2010).
52. CPLR 3126 provides, in relevant part:
If any party, or a person who at the time a deposition is taken or an
examination or inspection is made is an officer, director, member,
employee or agent of a party or otherwise under a party's control,
refuses to obey an order for disclosure or willfully fails to disclose
information which the court finds ought to have been disclosed
pursuant to this article, the court may make such orders with regard
to the failure or refusal as are just, among them:
* * *
an order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
any part thereof, or rendering a judgment by default against the
disobedient party.
53. New York courts routinely issue orders precluding a party from putting forth
evidence when that party willfully fails to provide discovery. See e.g., Horizon Inc. v. Wolkowicki,
55 A.D.3d 337 (1st Dep’t 2008); Sanchez v. City of New York, 266 A.D.2d 127 (1st Dep’t 1999);
Russell v. B&B Industries, Inc., 309 A.D.2d 914 (2d Dep’t 2003).
54. Absent an improvident exercise of discretion, the determination to impose
sanctions for conduct that frustrates the purpose of the CPLR will not be disturbed. See e.g., Cigna
Prop. & Cas. Co. v. Decoration & Design Bldg. Pshp., 268 A.D.2d 223, 224 (1st Dep’t 2000);
Lotardo v. Lotardo, 31 A.D.3d 504 (2d Dep’t 2006).
55. Herein, as detailed at length supra, Plaintiff has repeatedly refused to fulfill his
discovery obligations herein.
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56. In the March 2023 Order, this Court determined that Plaintiff “failed to comply
with several orders directing him to furnish discovery ….” [Ex. F at p. 4.]
57. In the March 2023 Order, the Court gave Plaintiff a last chance to comply with his
discovery obligations within forty-five days. [Id. at pp. 4-5.]
58. Plaintiff did not do so and again failed to comply with an order of this Court.
59. In the May 2023 Order, the Court gave Plaintiff a second last chance to comply by
June 5, 2023, [Ex. G at p. 2.]
60. Plaintiff again did not do so.
61. For nearly nine (9) years, Plaintiff has ignored his discovery obligations herein.
62. And even after his obligations were pared down in the March 2023 Order, Plaintiff
still ignored his obligations and completely stifled all discovery herein.
63. Plaintiff’s conduct – more than nine (9) years of delay and evasion – is beyond
egregious.
64. Plaintiff’s overt refusal to comply with his discovery obligations and blatant
disregard of orders from this Court are nothing but willful and contumacious that cannot be
countenanced.
65. Defendants respectfully submit that, if this Court determines that its prior March
2023 and May 2023 Orders are not self-effectuating, then the Defendants are entitled to
enforcement of the prior March 2023 and May 2023 Orders, and to a Section 3126(3) striking of
the Plaintiff’s Amended Verified Complaint and dismissal of the action, with prejudice.
CONCLUSION
66. WHEREFORE, the Defendants respectfully request that this Court issue an Order:
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(i) pursuant to CPLR 3212, awarding the Defendants summary judgment and
dismissing the Plaintiff’s Complaint, due to Plaintiff’s willful refusal and failure to
comply with this Court’s Orders directing him to comply with his discovery
obligations herein;
(ii) or, in the alternative, pursuant to CPLR 3126(3), striking the Plaintiff’s Amended
Verified Complaint and dismissing the action, due to Plaintiff’s willful refusal and
failure to comply with this Court’s Orders directing him to comply with his
discovery obligations herein; and
(iii) for such other different and further relief as the Court deems just and proper.
Dated: New York, New York
March 11, 2024
_________________________________
ANTHONY J. PROSCIA, ESQ.
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WORD COUNT CERTIFICATION
Pursuant to 22 NYCRR 202.8-b(a), the foregoing Affirmation of Anthony J. Proscia in
Support, dated March 11, 2024 is 2,842 words, excluding the caption and signature block.
Dated: New York, New York
March 11, 2024
_________________________________
ANTHONY J. PROSCIA, ESQ.
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Preview
FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X LARRY ASHKINAZY, Index No.: 100148/2014 Plaintiff, AFFIRMATION IN SUPPORT -against- GARY PILLERSDORF P.C. &/OR LLC, GARY B. PILLERSDORF PLP &/OR LLP, ESTATE OF GARY B. PILLERSDORF, THE PILLERSDORF LAW FIRM, PILLERSDORF & PILLERSDORF, GARY B. PILLERSDORF & ASSOCIATES, GARY B. PILLERSDORF & ASSOCIATES, P.C., JOHN & JANE DOES (1, 2, 3, et al.), TRUE NAME UNKNOWN, Defendants. ------------------------------------------------------------------------X ANTHONY J. PROSCIA, an attorney duly admitted to practice before the Courts of this State and aware of the penalties of perjury, affirms the truth of the following: 1. I am a partner with the law firm of Kaufman Dolowich LLP, attorneys for the Defendants, GARY PILLERSDORF P.C. &/OR LLC, GARY B. PILLERSDORF PLP &/OR LLP, ESTATE OF GARY B. PILLERSDORF, THE PILLERSDORF LAW FIRM, PILLERSDORF & PILLERSDORF, GARY B. PILLERSDORF & ASSOCIATES, and GARY B. PILLERSDORF & ASSOCIATES, P.C. ( collectively “Defendants”). As such, I am fully familiar with the facts and circumstances set forth herein based upon a review of the file maintained by my office. PRELIMINARY STATEMENT 2. This Affirmation is submitted in support of Defendants’ motion for an Order: (i) pursuant to CPLR 3212, awarding the Defendants summary judgment and dismissing the Plaintiff’s Amended Verified Complaint, due to Plaintiff’s willful 1 1 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 refusal and failure to comply with this Court’s Orders directing him to comply with his discovery obligations herein; (ii) or, in the alternative, pursuant to CPLR 3126(3), striking the Plaintiff’s Amended Verified Complaint and dismissing the action, due to Plaintiff’s willful refusal and failure to comply with this Court’s Orders directing him to comply with his discovery obligations herein; and (iii) granting such other different and further relief as the Court deems just and proper. STATEMENT OF PERTINENT FACTS 3. Plaintiff’s action sounds in legal malpractice, breach of contract, fraudulent inducement, and breach of fiduciary duty relating to Defendants’ legal representation of Plaintiff – as trial counsel – in an underlying personal injury action, captioned Larry Ashkinazy v. Consolidated Edison Company of New York, Inc., Index Number 114048/2003 (the “Underlying Action”). A. Plaintiff’s Underlying Action And Agreed-To Reduced Judgment Therein 4. The Underlying Action arose from personal injuries Plaintiff sustained in a scooter accident in New York City in August 2002. 5. In August 2008 – and post-note of issue, Plaintiff retained Pillersdorf as his trial counsel in the Underlying Action. 6. After an approximate two-week trial, on September 22, 2008, the jury awarded a Plaintiff’s verdict for approximately $15 million. 7. This Underlying Action judgment was reduced by the trial court as excessive in response to Con Edison’s post-trial motion to set aside the verdict. 8. Following the trial, Con Edison also appealed the Underlying Action judgment. 2 2 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 9. The Defendants did not represent Plaintiff with respect to the Underlying Action appeal. 10. On appeal, the First Department vacated the Underlying Action judgment as again excessive and remanded it for a new trial, unless Plaintiff agreed to reduce the judgment by approximately $5.5 million. See Ashkinazy v. Consolidated Edison Company of New York, Inc., 78 A.D.3d 434 (1st Dep’t 2010). 11. Plaintiff thereafter voluntarily agreed to reduce his damages recovery. 12. The Underlying Action proposed judgment was submitted in February 2011, which set forth the damage amounts as follows: $1.5 million for past pain and suffering; $3.5 million for future pain and suffering; $900,000 for future home health services; $551,685.72 in past lost earnings; $6,180 in past medical expenses; and $427,000 in future medical expenses. 13. The Underlying Action proposed judgment also included costs and 9% interest from the date of verdict (September 22, 2008), calculated as follows: (1) $329,524.20 for past incurred damages; (2) $943,050.47 for future damages; and (3) $648,640.19 for the attorneys’ fees. 14. Plaintiff’s recovery in the Underlying Action totaled nearly $9 million. B. Plaintiffs’ Allegations Against The Defendants With Respect To Their Representation Of Plaintiff In The Underlying Action 15. As Plaintiff’s trial counsel, the Defendants secured Plaintiff a judgment in the Underlying Action of approximately $15 million. 3 3 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 16. The trial court and then the First Department both determined that the Underlying Action judgment was excessive. 17. While Plaintiff had the opportunity to retry the Underlying Action, he instead chose to agree to a reduced judgment as against Con Edison. 18. Notwithstanding the foregoing, and despite the fact that Defendants secured an eight-figure verdict for Plaintiff, Plaintiff alleges that the Defendants were negligent in the handling of the Underlying Action, insofar as (i) they were negligent in the handling of the trial, including failing to introduce appropriate evidence regarding future medical expenses, pain and suffering, and future physical rehabilitation expenses; (ii) they improperly structured Plaintiff’s settlement annuity; and (iii) they improperly calculating monies due to Plaintiff under the settlement. C. Plaintiff’s Failure To Appropriately Respond To Defendants’ Written Discovery Demands For Nearly Nine (9) Years 19. Plaintiff commenced this action in February 2014, and subsequently served his Complaint herein. [Ex. A.] 20. After the Defendants interposed an Answer, [Ex. B], in June 2015, they served various discovery demands upon Plaintiff. 21. Pertinent to the instant motion, the Defendants served the following written discovery upon Plaintiff in June 2015: (1) Defendants’ First Notice of Discovery and Inspection, dated June 15, 2015; (2) Defendants’ Demand for Medical Information and Authorizations, dated June 15, 2015; and (3) Defendants’ Demand for Collateral Source Information, dated June 15, 2015. [Exs. C, D-1, D-2.] 4 4 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 22. The Defendants have attempted for nearly nine (9) to get the Plaintiff to comply with his discovery obligations herein, and he still fails to do so. 23. While the Defendants’ prior, second discovery motion was pending, in December 2020, Plaintiff served (i) a Response to Defendants’ First Notice for Discovery and Inspection, dated December 20, 2020; (ii) Response to Defendants’ Demand for Medical Information and Authorizations, dated December 20, 2020; and (iii) Response to Defendants’ Demand for Collateral Source Information, dated December 20, 2020. [Exs. E-1, E-2, E-3.] D. The Court’s March 2023 Order 24. The tortured history of discovery herein is detailed within this Court’s Order, dated March 7, 2023 (the “March 2023 Order”), [Ex. F], which substantively decided the Defendants’ fourth discovery motion herein. 25. Within the March 2023 Order, “the Court [found] that plaintiff has failed to comply with several orders directing him to furnish discovery, including authorizations.” [Ex. F at p. 4.] 26. The Court also found: “There is no dispute their neither the medical authorizations nor collateral source authorizations were furnished.” [Id.] 27. Moreover, the Court further found that plaintiff failed to furnish a verification that in accordance with 22 NYCRR 202.20-c, noting: “Here plaintiff concedes that there was no such affidavit attached to plaintiff’s response dated December 20, 2020.” [Id.] 28. Finally, this Court found that Plaintiff “failed to respond to 39, 42 and 43 of the June 15 demand for discovery and inspection,” as “Plaintiff does not dispute that the responses were never provided.” [Id.] 29. As a result of the Plaintiff’s failure to fully, properly and adequately respond to the Defendants’ written discovery demands, the March 2023 Order directs Plaintiff: 5 5 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 (1) to “furnish medical authorizations for twenty-five (25) medical providers and authorizations for collateral source records from three (3) providers, as demanded in the June 15, 2015 demands, within forty-five (45) days” [Ex. F at p. 5]; (2) to “provide an affidavit that the limited documents produced is complete, as directed in the above decision, within forty-five (45) days” [Id.]; (3) to “furnish responses to paragraphs 39, 42 and 43 of the June 15, 2015 demand, within forty-five (45) days.” [Id.] 30. The March 2023 further warns Plaintiff as to the consequences for his continued failure to comply with his discovery obligations, stating: ORDERED that in the event plaintiff fails to comply with the above directives, the court may strike plaintiff’s pleadings, upon written notice to the court[.] [Id.] E. The Court’s May 2023 Order 31. Plaintiff completely ignored and did not comply with the Court’s March 2023 Order. 32. Your Affiant advised the Court of Plaintiff’s continued non-compliance at a May 9, 2023 conference. 33. Following the May 9th conference, the Court issued an Order, dated May 24, 2023 (the “May 2023 Order”). [Ex. G.] 34. Within the May 2023 Order, the Court gave Plaintiff another chance to comply with the March 2023 Order and his discovery obligations, giving Plaintiff until June 5, 2023 to do so. [Id. at p. 2.] 6 6 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 35. The March 2023 again warns Plaintiff as to the consequences for his continued failure to comply with his discovery obligations, stating: ORDERED that in the event plaintiff fails to comply with the above directive, the court may strike plaintiff’s pleadings, upon written notice to the court[.] [Ex. G at p. 2.] F. Plaintiff Ignores And Does Not Comply With The March 2023 Order And The May 2023 Order By June 5, 2023 36. Plaintiff did not comply with the directives within this Court’s March 2023 Order and the May 2023 Order by the June 5, 2023 deadline. 37. Additionally, Plaintiff has not attempted to comply in any manner whatsoever with this Court’s March 2023 Order and the May 2023 Order. ARGUMENT POINT I THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT AND DISMISSAL OF THE ACTION, DUE TO THE COURT’S SELF-EFFECTUATING CONDITIONAL MARCH 2023 AND MAY 2023 ORDERS 38. It is well-settled that a self-effectuating conditional order becomes absolute and final upon a party’s failure to comply with said order. Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80 (2010); Northway Engineering, Inc. v. Felix Industries, Inc., 77 N.Y.2d 332, 336 (1991); Ubozoh v. Mueller, 204 A.D.3d 485, 485 (1st Dep’t 2022) (“the order became absolute”); Crump v. City of New York, 67 A.D.2d 634, 634 (1st Dep’t 1979); Piemonte v. JSF Realty, LLC, 140 A.D.3d 1145, 1146 (2d Dep’t 2016); Alphonse v. UBJ Inc., 266 A.D.2d 171 (2d Dep’t 1999). 39. Here, the March 2023 Order and the May 2023 Order are self-effectuating conditional orders. 7 7 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 40. Specifically, under the March 2023 Order and the May 2023 Order, this Court directed Plaintiff to comply with still-outstanding discovery related to the failure to provide (i) medical authorizations; (ii) collateral source information authorizations; (iii) a 22 NYCRR 202.20- c affidavit regarding the completeness of his document production; and (iv) responses to requests 39, 42 and 43 within the Defendants’ June 2015 notice for discovery and inspection. 41. Within the March 2023 Order and the May 2023 Order, this Court also expressly warned Plaintiff regarding his continued failure to comply with his discovery obligations, to wit – the striking of his Amended Verified Complaint. [See Exs. F at p. 5, G at p. 2.] 42. As a result of the foregoing, the Defendants submit that the striking of Plaintiff’s Amended Verified Complaint was automatic, absolute and final when Plaintiff failed to comply with the directives of the Court within the deadlines set by the Court. 43. It is also well-settled that when a self-effectuating conditional order prevents a plaintiff from establishing his prima facie case, the defendant is entitled to summary judgment and dismissal of the action. Northway Engineering, Inc., 77 N.Y.2d at 336-37; Ubozoh, 204 A.D.3d at 485 (“As a result, plaintiff will not be able to make a prima facie case, and the complaint should be dismissed in its entirety.”); Tejeda v. 750 Gerard Properties Corp., 272 A.D.2d 124, 124 (1st Dep’t 2000); Video-Cinema Films, Inc. v. Seaboard Sur. Co., 237 A.D.2d 135, 135 (1st Dep’t 1997); Becerril by Francis v. Skate Way Roller Rink, Inc., 184 A.D.2d 365, 366 (1st Dep’t 1992); Crump, 67 A.D.2d at 634-35; Piemonte, 140 A.D.3d at 1147; Panagiotou v. Samaritan Village, Inc., 66 A.D.3d 979 (2d Dep’t 2009); Alphonse, 266 A.D.2d at 171; LeFrois Foods Corp. v. Policy Advancing Corp., 59 A.D.2d 1013, 1014 (4th Dep’t 1977); Rockaway Medical & Diagnostic, P.C. v. Chubb Insurance Co., 81 Misc.3d 128(A) (Sup. Ct. Queens Cnty. Oct. 6, 2023); Platovsky v. Bernstein, 77 Misc.3d 1210(A) (Sup. Ct. Bronx Cnty. 2022). 8 8 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 44. Here, the striking of Plaintiff’s Amended Verified Complaint is “the equivalent of the death penalty in civil litigation.” Connors, McKinney Practice Commentary, Cons Laws of NY, Book 7B, CPLR 3126:8. 45. Given that Plaintiff’s Amended Verified Complaint has been stricken, the case is over. 46. The Defendants are entitled to summary judgment and dismissal of the instant action against them, with prejudice. 47. Moreover, given the written discovery being intentionally withheld by the Plaintiff from the Defendants (i.e., discovery associated with his alleged medical injuries, his receipt of collateral source payments, and his refusal to vouch that his document production is complete), Plaintiff cannot establish any of the elements of a legal malpractice claim against the Defendants – cannot prove that the Defendants breached an applicable standard of care, that the Defendants’ alleged conduct was a “but for” cause of any purported injuries sustained, or that he has sustained actual and ascertainable damages. 48. Accordingly, the Defendants respectfully submit that, based upon the self- effectuating March 2023 and May 2023 Orders, Plaintiff’s Amended Verified Complaint is stricken, and they are entitled to summary judgment and dismissal of the action, with prejudice. POINT II IN THE ALTERNATIVE, THE COURT SHOULD STRIKE PLAINTIFF’S AMENDED VERIFIED COMPLAINT, DUE TO HIS ONGOING WILLFUL REFUSAL TO COMPLY WITH HIS DISCOVERY OBLIGATIONS 49. If this Court determines that its prior March 2023 and May 2023 Orders are not self-effectuating, the Defendants submit that they are nevertheless entitled to an Order, striking the Plaintiff’s Amended Verified Complaint and dismissal of the action, with prejudice. 9 9 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 50. The Court has broad discretion to supervise disclosure in a civil action, which must be exercised to facilitate the resolution of an action. See Kamhi v. Dependable Delivery Service, Inc., 234 A.D.2d 34 (1st Dep’t 1996). 51. Pursuant to CPLR 3126, a court can strike the pleading of a party that fails to provide discovery. See Fish and Richardson, P.C. v. Schindler, 75 A.D.3d 219 (1st Dep’t 2010). 52. CPLR 3126 provides, in relevant part: If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: * * * an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. 53. New York courts routinely issue orders precluding a party from putting forth evidence when that party willfully fails to provide discovery. See e.g., Horizon Inc. v. Wolkowicki, 55 A.D.3d 337 (1st Dep’t 2008); Sanchez v. City of New York, 266 A.D.2d 127 (1st Dep’t 1999); Russell v. B&B Industries, Inc., 309 A.D.2d 914 (2d Dep’t 2003). 54. Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR will not be disturbed. See e.g., Cigna Prop. & Cas. Co. v. Decoration & Design Bldg. Pshp., 268 A.D.2d 223, 224 (1st Dep’t 2000); Lotardo v. Lotardo, 31 A.D.3d 504 (2d Dep’t 2006). 55. Herein, as detailed at length supra, Plaintiff has repeatedly refused to fulfill his discovery obligations herein. 10 10 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 56. In the March 2023 Order, this Court determined that Plaintiff “failed to comply with several orders directing him to furnish discovery ….” [Ex. F at p. 4.] 57. In the March 2023 Order, the Court gave Plaintiff a last chance to comply with his discovery obligations within forty-five days. [Id. at pp. 4-5.] 58. Plaintiff did not do so and again failed to comply with an order of this Court. 59. In the May 2023 Order, the Court gave Plaintiff a second last chance to comply by June 5, 2023, [Ex. G at p. 2.] 60. Plaintiff again did not do so. 61. For nearly nine (9) years, Plaintiff has ignored his discovery obligations herein. 62. And even after his obligations were pared down in the March 2023 Order, Plaintiff still ignored his obligations and completely stifled all discovery herein. 63. Plaintiff’s conduct – more than nine (9) years of delay and evasion – is beyond egregious. 64. Plaintiff’s overt refusal to comply with his discovery obligations and blatant disregard of orders from this Court are nothing but willful and contumacious that cannot be countenanced. 65. Defendants respectfully submit that, if this Court determines that its prior March 2023 and May 2023 Orders are not self-effectuating, then the Defendants are entitled to enforcement of the prior March 2023 and May 2023 Orders, and to a Section 3126(3) striking of the Plaintiff’s Amended Verified Complaint and dismissal of the action, with prejudice. CONCLUSION 66. WHEREFORE, the Defendants respectfully request that this Court issue an Order: 11 11 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 (i) pursuant to CPLR 3212, awarding the Defendants summary judgment and dismissing the Plaintiff’s Complaint, due to Plaintiff’s willful refusal and failure to comply with this Court’s Orders directing him to comply with his discovery obligations herein; (ii) or, in the alternative, pursuant to CPLR 3126(3), striking the Plaintiff’s Amended Verified Complaint and dismissing the action, due to Plaintiff’s willful refusal and failure to comply with this Court’s Orders directing him to comply with his discovery obligations herein; and (iii) for such other different and further relief as the Court deems just and proper. Dated: New York, New York March 11, 2024 _________________________________ ANTHONY J. PROSCIA, ESQ. 12 12 of 13 FILED: NEW YORK COUNTY CLERK 03/11/2024 09:51 PM INDEX NO. 100148/2014 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 03/11/2024 WORD COUNT CERTIFICATION Pursuant to 22 NYCRR 202.8-b(a), the foregoing Affirmation of Anthony J. Proscia in Support, dated March 11, 2024 is 2,842 words, excluding the caption and signature block. Dated: New York, New York March 11, 2024 _________________________________ ANTHONY J. PROSCIA, ESQ. 13 13 of 13