Preview
FILED: KINGS COUNTY CLERK 11/22/2019 01:01 PM INDEX NO. 513369/2015
NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 11/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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GWENDOLYN WILLIAMS, Individually and as Parent
and Natural Guardian of T.C., a minor under the age
Index No.: 513369/2015E
of fourteen (14),
Plaintiffs,
AFFIRMATION_R[
OPPOSITION TO
-against-
DEFENDANT'S ORDER TO
SHOW CAUSE TO PRECLUDE
PATRICK ATSE NCHO, GREGORY ISKHAKOV,
and VALENTINA CIOTTI,
Defendants.
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AVINOAM COHEN, an attorney duly licensed to practice law in the State of New York
hereby affirms the truth of the following statements under penalty of perjury pursuant to CPLR
2106:
1. I am the managing member of A. COHEN LAW FIRM, P.C., attorneys of record
for the above-mentioned Plaintiffs, and as such, I am fully familiar with the facts and
circumstances contained herein.
2. This affirmation is submitted in opposition to Defendant's motion seeking to
preclude the testimony of Plaintiff's designated expert, Dr. Eric L. Freeman ("Dr. Freeman"), or
in the alternative, precluding Dr. Freeman from testifying concerning the history of the subject
accident as related by the Plaintiff, and from offering any testimony concerning the Plaintiff's
medical complaints; whatever that is intended to mean.
3. By way of reference, this action involves a T-Bone collision that occurred on June
18, 2015, when Plaintiffs were passengers in the vehicle operated by Defendant PATRICK ATSE
NCHO ("Ncho").
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4. On November 7, 2019 a jury deliberated and returned a verdict finding that
Defendant NCHO was 100% at fault for the June 18, 2015 accident while his co-defendant,
GREGORY ISKHAKOV ("Gregory"), was not at fault.
5. Insofar as liability of Defendant has already been decided by a jury, the issues to
be determined at the anticipated trial is one for damages and injuries which will include past pain
and suffering, future pain and suffering, past medical expenses and future medical expenses.
6. It is axiomatic that Ncho and his attorneys will conjure up any excuse to prevent
Plaintiff from proving the nature and extent of her injuries as a result of Defendant's sole
negligence.
DEFENDANT'S MOTION SHOULD BE DENIED IN ITS ENTIRETY
AS PLAINTIFF HAS FULLY COMPLIED WITH CPLR 6 3101(d)(1)
7. CPLR § 3101(d) requires parties to disclose the identities of any expert witnesses
and a reasonable detail of the subject matter each expert witness expects to testify to. See CPLR
§ 3101 (d)(1)(i).
8. Furthermore, CPLR § 3101(d)(1)(i) states in pertinent part: "However, where a
party for good cause show retains an expert an insufficient period of time before the
commencement of trial to give appropriate notice thereof, the party shall not, thereupon be
precluded from introducing the expert's testimony at the trial solely on the grounds of
paragraph."
noncompliance with this CPLR § 3101(d)(1)(i).
9. A basic reading of the statute, as affirmed by the Second Department, strongly
suggests that CPLR § 3101(d) does not prescribe time limits with respect to service of expert
witness disclosures, "nor does it mandate that a party be precluded from proffering expert
statute."
testimony merely because of noncompliance with the Arcamone-Makinano v. Britton
Property, Inc., 117 A.D.3d 889, 986 N.Y.S.2d 372 (2d Dep't 2014) (citing Burbige v. Siben &
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Ferber, 115 A.D.3d 632 (2d Dept 2014).) When the request for an expert witness disclosure is
made during discovery, the answering party is not obligated to respond during discovery "unless
trial.'"
it 'expects to call [that expert] as an expert witness at Rivers v. Birnbaum, 102 A.D.3d 26,
953 N.Y.S.2d 232 (2d Dept 2012) (citing, CPLR 3101(d)(1)(i)).
10. There is also no insinuation or allegation that Plaintiff's excusable "delay in
retaining the expert and serving the expert witness notice was willful or intentional, or that the
delay."
defendant was prejudiced as a result of the Hoberg v. Shree Granesh, LLC, 85 A.D.3d
965, 967, 926 N.Y.S.2d 578, 580 (2d Dep't 2011).
11. The gravamen of Defendant's argument is that Plaintiff's expert witness disclosure
was untimely as Plaintiff previously retained Dr. Joshua Mitgang, M.D. as the expert witness only
to learn on November 2019 - two weeks before selection for damages and one
13, (2) jury nearly
month prior to the commencement of the damages trial - that "Dr. would not be
(1) Mitgang
available to testify in December as counsel had represented to the Court, but rather itwas now his
about' 2019."
intention to call Dr. Eric Freeman as an expert witness 'on or December 2, See
Defendant's Affirmation in Support, at ¶¶ 16-18.
12. Defendant misconstrues the law with respect to service of the disclosures and cites
cases incongruous to the holdings within the Second Department or actually support Plaintiff's
contention that she is permitted to supplement her expert disclosure prior to trial. See, e.g., Carter
v. Isabella Geriatric Ctr., Inc., 2009 N.Y. Misc. LEXIS 4430, *15, 2009 NY Slip Op 31919(U),
surprise"
10 (N.Y. Sup. Ct. 2009) (finding that "defendant cannot claim undue prejudice or by
Plaintiff's supplemental disclosures).
13. Critically, Defendant omits the fact that Dr. Freeman did in fact opine as to his
medical conclusions, the documents he reviewed and his report concerning causation and
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Plaintiff's damages. See Supplemental Expert Disclosure of Eric L. Freeman, M.D., annexed
1."
hereto as "Exhibit
14. Most importantly, Defendants have failed to cite to any case law supporting the
trial"
proposition that thirty (30) days prior to a potential trial is considered the "eve of as to cause
prejudice and trigger preclusion of the proposed expert testimony.
15. In Ramsen A. v. New York City Housing Authority, 112 A.D.34 439, 976 N.Y.S.2d
73 (1st Dep't 2013), the First Department found that two months prior to trial was "not the eve of
trial."
Id. at 440.
16. In McDermott v. Alvey, Inc., 198 A.D.2d 95, 603 N.Y.S.2d 162 (1st Dep't 1993),
for instance, the First Department properly affirmed the Supreme Court's denial of preclusion
where Plaintiff retained an economist expert approximately one month prior to trial but did not
immediately identify the economist until days before the trial. Even in that case, that Court
concluded there was "no proof of intentional or willful failure to disclose, on plaintiff's part, and
an absence of prejudice to the parties opposing the testimony [and that] plaintiff's counsel's
preclusion."
payment of a sum of $ 1,500 for itslack of diligence more appropriate than an order of
Id. at 163.
17. In this case, Plaintiff's first designated expert, Dr. Mitgang, could not make time
for an examination of Plaintiff and review of her medical records despite his promises to the
undersigned to the contrary. Moreover, in light of your Affirmant's initial disclosure, it is
impossible to force Dr. Mitgang to testify when he presented work conflicts.
18. Plaintiff was left with no choice but to act quickly, and to expeditiously supplement
her expert disclosure and designate Dr. Freeman; a well-known expert witness who examined
Plaintiff on November 12, 2019 and rendered a report, which was subsequently electronically filed.
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1"
See "Exhibit and NYSCEF Doc. No. 239.
19. Defendant has been fully aware from the Bills of Particulars, dated April 18, 2016
that Plaintiff planned to plead and prove compensatory and special damages.
20. Insofar as Plaintiff's injuries and damages are pleaded in the Bill of Particulars,
there is no prejudice by Plaintiff's expert witness disclosures regarding Plaintiff's additional claims
perhaps not fully elaborated in the Bill of Particulars. See Defendant's Exhibit C. Furthermore,
compounding the absence of prejudice is the Defendant's awareness that the anticipated trial is
one for damages and injuries only, as liability has been previously determined against Defendant
by the now disbanded jury.
21. Generally, in determining whether to preclude expert testimony for an untimely
service of an expert witness disclosure pursuant to CPLR § 3101(d), a Court must consider
the prejudice to the opposing party in allowing the expert to testify despite the late disclosure and
whether such failure to disclose was willful or intentional. Hayden v. Gordon, 91 A.D.3d 819, 937
N.Y.S.2d 299 (2d Dep't 2012); Gayz v. Kirby, 41 A.D.3d 782, 839 N.Y.S.2d 196 (2d Dep't 2007));
See also, Cruz v. Gustitos, 51 A.D.3d 963, 858 N.Y.S.2d 791 (2d Dep't 2008).
22. At the outset, as discussed above, "[p]reclusion for failure to comply with CPLR
3101 (d) is improper 'unless there is evidence of intentional or willful failure to disclose and a
prejudice.'"
showing of Gayz, supra, 41 A.D.3d 782, 839 N.Y.S.2d 196 ; See also, Cruz, supra,
51 A.D.3d 963, 858 N.Y.S.2d 791 (same).
23. As a Trial Court reviewing Appellate precedent stated in Einheber v. Bodenheimer,
12 Misc.3d 1177, 820 N.Y.S.2d 842 (Sup. Ct. N.Y. Cty. 2006), courts have made clear that
preclusion for failure to comply with CPLR 3101(d) is improper "unless there is evidence of
intentional or willful failure to disclose and a showing of prejudice by the opposing
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party."
Shopsin v. Siben & Siben, 289 A.D.2d 220, 221 (2d Dep't 1991). See also, Busse v. Clark
Equip. Co., 182 A.D.2d 525, 526 (1st Dep't 1992) (denying preclusion of expert testimony
because moving party failed to show prejudice); Douglass v. St.Joseph's Hosp., 246 A.D.2d 695,
696 (3d Dep't 1998); Citron v. Northern Dutchess Hosp., 198 A.D.2d 618, 603 N.Y.S.2d 639 (3d
Dep't 1993) ("Although the testimony deviated from the expert witness statement, defendant was
not deliberately deceived or misled by plaintiff's expert witness report").
24. Defendant bears the initialburden of showing prejudice, and as shown above, that
is not possible in the instant case. Put simply, Defendant failed to establish any prejudice or
demonstrate that plaintiff willfully or intentionally failed to serve the expert witness disclosures at
an earlier time or defied any court orders mandating such disclosure.
25. Defendant cannot plausibly claim prejudice as a result of being served with
Plaintiff's Expert Witness Disclosures approximately two (2) weeks prior to the anticipated date
for jury selection.
26. For all of the reasons stated above, Defendant has not been prejudiced and should
not be surprised, given the fact he received the Bill of Particulars pleading damages on or about
April 18, 2016. Thus, his motion should be denied in its entirety.
WHEREFORE, it is respectfully requested that the Defendant's Order to Show Cause
seeking to: (1) preclude the testimony of Plaintiff's designated expert, Dr. Eric L. Freeman; or (2)
in the alternative, precluding Dr. Freeman from testifying concerning the history of the subject
accident as related by the Plaintiff, and from offering any testimony concerning the Plaintiff's
medical complaints must be denied in its entirety.
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NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 11/22/2019
Dated: November 22, 2019
Valley Stream, NY
'
A. Cohen Firm, P.Cp
By: A i Cohen, Esq.
11 Sunrise Plaza, Suite # 304
Valley Stream, NY 11580
Tel. (516) 341-7770
Fax. (516) 977-3142
Avi@acohenlawfirm.com
Attorneys for Plaintiffs
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