Preview
FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 08/10/2023
Exhibit I
FILED: WESTCHESTER COUNTY CLERK 08/10/2023
10/24/2022 02:11
05:08 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 184
110 RECEIVED NYSCEF: 08/10/2023
10/24/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
------------------------------------------------------------------- Index No.: 61665/2021
NEIL B. RICE,
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION TO
DEFENDANT’S OMNIBUS
LEE R. EINSIDLER, MOTION TO COMPEL
As Administrator of the Estate of DISCOVERY
Aaron Michael Einsidler aka
Aaron M. Einsidler
Defendant.
-------------------------------------------------------------------
ROBERT S. ROSMAN, an attorney duly admitted to practice before the Courts of the State of
New York, hereby affirms the following to be true, upon information and belief, pursuant to CPLR
2106 and under the penalties of perjury:
1. I am the principal o ROSMAN LEGAL, P.C., the attorneys of record for the
Plaintiff, NEIL B. RICE herein.
2. Defendant LEE R. EINSIDLER, is the administrator of the Estate of Aaron M.
Einsidler.
3. Aaron M. Einsidler is the deceased (hereinafter “Aaron” or “Decedent”) against
whom Plaintiff alleges tort claims.
4. I submit this affirmation in opposition to Defendant’s omnibus motion to compel
discovery from Plaintiff.
5. I make this affirmation based on personal knowledge of the facts and circumstances
and after a review of the files maintained at my office in connection with the instant proceeding
and the related allegations therein.
6. Both Defendant and Plaintiff have each sought pre-trial information from the other
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FILED: WESTCHESTER COUNTY CLERK 08/10/2023
10/24/2022 02:11
05:08 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 184
110 RECEIVED NYSCEF: 08/10/2023
10/24/2022
pursuant to Preliminary Conference Order dated March 28, 2022 (NYSCEF Doc. No. 33).
7. This Preliminary Conference Order was entered after conference(s) facilitated by
the court attorney during which the Parties negotiated for various pre-trial devices that included
authorization required from Plaintiff, reciprocal demands for discovery and inspection, and
reciprocal examinations before trial.
8. Neither party advocated for interrogatories as one of the pre-trial tools.
9. Defendant served upon Plaintiff a demand for a bill of particulars, a demand for a
supplemental bill of particulars, demand for discovery and inspection, and a set of interrogatories.
10. It is Plaintiff’s position that Plaintiff has responded appropriately and in good faith
to the demand(s) for bill of particulars, for discovery and inspection, and Defendant’s
interrogatories.
11. Plaintiff’s counsel had notified Defendant’s counsel of Plaintiff’s concerns that
Defendant’s discovery demands were overbroad (NYSCEF Doc. 100). Upon information and
belief, Defendant’s counsel agreed to narrowly tailor discovery demands but not in writing so that
Plaintiff’s counsel would be responsible for providing narrowly tailored responses to which
Defendant could then object.
12. Plaintiff argues that Defendant’s motion to compel is unnecessary and premature.
Defendant’s omnibus motion disregards the extent to which Plaintiff has
already complied with, and continues to produce, ongoing discovery requests.
13. Defendant’s omnibus motion to compel disclosure disregards the extent to which
Plaintiff has already complied with, and continues to produce, ongoing discovery requests.
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FILED: WESTCHESTER COUNTY CLERK 08/10/2023
10/24/2022 02:11
05:08 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 184
110 RECEIVED NYSCEF: 08/10/2023
10/24/2022
14. Plaintiff has provided Defendant with seven different HIPAA release forms, with
the broadest possible authorizations, for all available medical, mental health, alcohol and substance
abuse treatments, including any and all professional notes, which may exist since 2007 to present.
15. The collection and production of documents requested by Defendant from NBR
Properties is taking longer than expected because it involves reaching out to third-party
professionals who maintain the business and accounting records for that corporation.
16. Expert testimony concerning Plaintiff’s mental and emotional state of health is
currently being sought, and any evaluations of Plaintiff will be produced and provided to
Defendant.
Defendant’s omnibus motion overlooks Defendant’s improper
requests pursuant to Articles 30 and 31 of the CPLR.
17. Defendant’ omnibus motion to compel disclosure overlooks Defendant’s misuse of
pretrial tools pursuant to Articles 30 and 31 of the CPLR.
18. Defendant improperly relies on a request for a bill of particulars to obtain
evidentiary material (NYSCEF Doc. Nos. 86 and 90).
19. “A bill of particulars is not a form of disclosure. Unlike the disclosure devices
authorized in CPLR article 31, a bill of particulars is of limited scope and may not be used to obtain
evidentiary material.” Bouton v. Suffolk County, 509 N.Y.S.2d 846, 847 (2d Dep’t 1986) (quoting
Ginsberg v. Ginsberg, 479 N.Y.S.2d 233 [2d Dep’t 1984]).
20. A complaint that is factually vague and generalizes alleged injuries requires a bill
of particulars to narrow the issues sufficiently to permit a reasonable defense. The purpose of a
verified bill of particulars is to “amplify the pleadings, limit the proof and prevent surprise at trial”
Miccarelli v. Fleiss, 631 N.Y.S.2d 159, 160 (1st Dep’t 1995).
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FILED: WESTCHESTER COUNTY CLERK 08/10/2023
10/24/2022 02:11
05:08 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 184
110 RECEIVED NYSCEF: 08/10/2023
10/24/2022
21. The bill of particulars “need not, however, provide evidentiary material or
information to be gleaned from expert testimony.” Felock v. Albany Medical Center Hospital,
258 A.D.2d 772, 773 (3d Dep’t 1999) (citing Liddell v. Cree, 233 AD 2d 593 [3d Dep’t 1996];
Mildred Heyward v. Ellenville Community Hospital et al., 215 A.D.2d 967 [3d Dep’t 1995])
22. Here, Plaintiff Rice’s complaint clearly details the specific acts and omissions
comprising the tort claims alleged by Plaintiff. See Felock at 773 (in any action for personal
injuries, the bill of particulars requires only a [g]eneral statement of the acts or omissions
constituting the negligence claimed,” citing Rockefeller v Hwang, 106 AD2d 817, 818 [3d Dep’t
1984]; Coughlin v Festin, 53 AD2d 800 [3d Dep’t 1976]).
23. Defendant’s demands for bill of particulars ask for information that should be
obtained by disclosure tools.
24. Plaintiff responded appropriately to the demands for bill of particulars based upon
the parameters of a proper bill of particulars.
25. Because Defendant Einsidler’s “demand for particulars is patently improper in the
first instance, no penalty should ever attach for failure to respond..” Bouton v. Suffolk County,
509 N.Y.S.2d 846, 125 A.D.2d 620 (2d Dep’t. 1986).
26. The evidentiary information sought by Defendant is more appropriately obtained
through the previously provided HIPAA authorizations or in upcoming depositions.
27. In regard to interrogatories, the Preliminary Conference Order does not provide for
their service upon the respective parties; it is Plaintiff’s position that the parties have waived their
right to interrogatories.
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FILED: WESTCHESTER COUNTY CLERK 08/10/2023
10/24/2022 02:11
05:08 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 184
110 RECEIVED NYSCEF: 08/10/2023
10/24/2022
WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant's motion in its
entirety and grant Plaintiff such other and further relief as to this Court may deem just and proper
Dated: White Plains, New York
October 24 2022
rt S. Rosman, sq.
ROSMAN LEGAL P.C.
Attorneys for Plaintiff
7-11 S. Broadway, Suite 209
White Plains, NY 10601
(914) 339-9870
rob@rosmanlegal.com
steve@rosmanlegal.com
To: YANKWITT LLP
140 Grand Street, Suite 705
White Plains, New York 10601
Tel: (914) 686-1500
Fax: (914) 487-5000
Attorneys for Defendant Lee R. Einsidler
Administrator of The Estate of Aaron
Michael Einsidler
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Preview
FILED: WESTCHESTER COUNTY CLERK 08/10/2023 02:11 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 08/10/2023 Exhibit I FILED: WESTCHESTER COUNTY CLERK 08/10/2023 10/24/2022 02:11 05:08 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 184 110 RECEIVED NYSCEF: 08/10/2023 10/24/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ------------------------------------------------------------------- Index No.: 61665/2021 NEIL B. RICE, Plaintiff, -against- AFFIRMATION IN OPPOSITION TO DEFENDANT’S OMNIBUS LEE R. EINSIDLER, MOTION TO COMPEL As Administrator of the Estate of DISCOVERY Aaron Michael Einsidler aka Aaron M. Einsidler Defendant. ------------------------------------------------------------------- ROBERT S. ROSMAN, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following to be true, upon information and belief, pursuant to CPLR 2106 and under the penalties of perjury: 1. I am the principal o ROSMAN LEGAL, P.C., the attorneys of record for the Plaintiff, NEIL B. RICE herein. 2. Defendant LEE R. EINSIDLER, is the administrator of the Estate of Aaron M. Einsidler. 3. Aaron M. Einsidler is the deceased (hereinafter “Aaron” or “Decedent”) against whom Plaintiff alleges tort claims. 4. I submit this affirmation in opposition to Defendant’s omnibus motion to compel discovery from Plaintiff. 5. I make this affirmation based on personal knowledge of the facts and circumstances and after a review of the files maintained at my office in connection with the instant proceeding and the related allegations therein. 6. Both Defendant and Plaintiff have each sought pre-trial information from the other 1 of 5 FILED: WESTCHESTER COUNTY CLERK 08/10/2023 10/24/2022 02:11 05:08 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 184 110 RECEIVED NYSCEF: 08/10/2023 10/24/2022 pursuant to Preliminary Conference Order dated March 28, 2022 (NYSCEF Doc. No. 33). 7. This Preliminary Conference Order was entered after conference(s) facilitated by the court attorney during which the Parties negotiated for various pre-trial devices that included authorization required from Plaintiff, reciprocal demands for discovery and inspection, and reciprocal examinations before trial. 8. Neither party advocated for interrogatories as one of the pre-trial tools. 9. Defendant served upon Plaintiff a demand for a bill of particulars, a demand for a supplemental bill of particulars, demand for discovery and inspection, and a set of interrogatories. 10. It is Plaintiff’s position that Plaintiff has responded appropriately and in good faith to the demand(s) for bill of particulars, for discovery and inspection, and Defendant’s interrogatories. 11. Plaintiff’s counsel had notified Defendant’s counsel of Plaintiff’s concerns that Defendant’s discovery demands were overbroad (NYSCEF Doc. 100). Upon information and belief, Defendant’s counsel agreed to narrowly tailor discovery demands but not in writing so that Plaintiff’s counsel would be responsible for providing narrowly tailored responses to which Defendant could then object. 12. Plaintiff argues that Defendant’s motion to compel is unnecessary and premature. Defendant’s omnibus motion disregards the extent to which Plaintiff has already complied with, and continues to produce, ongoing discovery requests. 13. Defendant’s omnibus motion to compel disclosure disregards the extent to which Plaintiff has already complied with, and continues to produce, ongoing discovery requests. 2 of 5 FILED: WESTCHESTER COUNTY CLERK 08/10/2023 10/24/2022 02:11 05:08 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 184 110 RECEIVED NYSCEF: 08/10/2023 10/24/2022 14. Plaintiff has provided Defendant with seven different HIPAA release forms, with the broadest possible authorizations, for all available medical, mental health, alcohol and substance abuse treatments, including any and all professional notes, which may exist since 2007 to present. 15. The collection and production of documents requested by Defendant from NBR Properties is taking longer than expected because it involves reaching out to third-party professionals who maintain the business and accounting records for that corporation. 16. Expert testimony concerning Plaintiff’s mental and emotional state of health is currently being sought, and any evaluations of Plaintiff will be produced and provided to Defendant. Defendant’s omnibus motion overlooks Defendant’s improper requests pursuant to Articles 30 and 31 of the CPLR. 17. Defendant’ omnibus motion to compel disclosure overlooks Defendant’s misuse of pretrial tools pursuant to Articles 30 and 31 of the CPLR. 18. Defendant improperly relies on a request for a bill of particulars to obtain evidentiary material (NYSCEF Doc. Nos. 86 and 90). 19. “A bill of particulars is not a form of disclosure. Unlike the disclosure devices authorized in CPLR article 31, a bill of particulars is of limited scope and may not be used to obtain evidentiary material.” Bouton v. Suffolk County, 509 N.Y.S.2d 846, 847 (2d Dep’t 1986) (quoting Ginsberg v. Ginsberg, 479 N.Y.S.2d 233 [2d Dep’t 1984]). 20. A complaint that is factually vague and generalizes alleged injuries requires a bill of particulars to narrow the issues sufficiently to permit a reasonable defense. The purpose of a verified bill of particulars is to “amplify the pleadings, limit the proof and prevent surprise at trial” Miccarelli v. Fleiss, 631 N.Y.S.2d 159, 160 (1st Dep’t 1995). 3 of 5 FILED: WESTCHESTER COUNTY CLERK 08/10/2023 10/24/2022 02:11 05:08 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 184 110 RECEIVED NYSCEF: 08/10/2023 10/24/2022 21. The bill of particulars “need not, however, provide evidentiary material or information to be gleaned from expert testimony.” Felock v. Albany Medical Center Hospital, 258 A.D.2d 772, 773 (3d Dep’t 1999) (citing Liddell v. Cree, 233 AD 2d 593 [3d Dep’t 1996]; Mildred Heyward v. Ellenville Community Hospital et al., 215 A.D.2d 967 [3d Dep’t 1995]) 22. Here, Plaintiff Rice’s complaint clearly details the specific acts and omissions comprising the tort claims alleged by Plaintiff. See Felock at 773 (in any action for personal injuries, the bill of particulars requires only a [g]eneral statement of the acts or omissions constituting the negligence claimed,” citing Rockefeller v Hwang, 106 AD2d 817, 818 [3d Dep’t 1984]; Coughlin v Festin, 53 AD2d 800 [3d Dep’t 1976]). 23. Defendant’s demands for bill of particulars ask for information that should be obtained by disclosure tools. 24. Plaintiff responded appropriately to the demands for bill of particulars based upon the parameters of a proper bill of particulars. 25. Because Defendant Einsidler’s “demand for particulars is patently improper in the first instance, no penalty should ever attach for failure to respond..” Bouton v. Suffolk County, 509 N.Y.S.2d 846, 125 A.D.2d 620 (2d Dep’t. 1986). 26. The evidentiary information sought by Defendant is more appropriately obtained through the previously provided HIPAA authorizations or in upcoming depositions. 27. In regard to interrogatories, the Preliminary Conference Order does not provide for their service upon the respective parties; it is Plaintiff’s position that the parties have waived their right to interrogatories. 4 of 5 FILED: WESTCHESTER COUNTY CLERK 08/10/2023 10/24/2022 02:11 05:08 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 184 110 RECEIVED NYSCEF: 08/10/2023 10/24/2022 WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant's motion in its entirety and grant Plaintiff such other and further relief as to this Court may deem just and proper Dated: White Plains, New York October 24 2022 rt S. Rosman, sq. ROSMAN LEGAL P.C. Attorneys for Plaintiff 7-11 S. Broadway, Suite 209 White Plains, NY 10601 (914) 339-9870 rob@rosmanlegal.com steve@rosmanlegal.com To: YANKWITT LLP 140 Grand Street, Suite 705 White Plains, New York 10601 Tel: (914) 686-1500 Fax: (914) 487-5000 Attorneys for Defendant Lee R. Einsidler Administrator of The Estate of Aaron Michael Einsidler 5 of 5