Preview
(FILED: KINGS COUNTY CLERK 01/20/2015 11:44 AM INDEX NO. 508009/2013
NYSCEF DOC. NO.; 19 RECEIVED NYSCEF 01/20/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
enna ==. een wan ane.
NATHANIEL, GRAYTON, an Infant, by his mother and
natural guardian, SHERRI SKIDMORE,
Index No.: 508009/2013
Plaintiff,
- against - AFFIRMATION IN SUPPORT
VASUDHA VISWANATHAN, M.D., CALIXTO
CAZANO, M.D., RAJENDRA BHAYANI, M.D:
FERNANDO GINEBRA, M.D., SONY LOISEAU, M.D:
and WYCKOFF HEIGHTS MEDICAL CENTER,
Defendants.
een ee nn eK
DAVID S. YOHAY, an attorney admitted to the practice of law before the courts of the State
of New York, and noi a party to the above-entitled cause, affirms the following to be true, upon
information and belief, under the penalties of perjury pursuant to CPLR § 2106
1 T am associated with the law firm of COSTELLO, SHEA & GAFFNEY LLP.
attorneys for defendants, VASUDHA VISWANATHAN, M.D., CALIXTO CAZANO, M.D. and
FERNANDO GINEBRA, M.D., and as such, am fully familiar with the facts and circumstances set
forth herein.
2. This affirmation is respectfully submitted in support of defendants’ within motion for
an Order
@) Pursuant to CPLR § 3124, compelling co-defendant, WYCKOFF HEIGHTS
MEDICAL CENTER, to comply with defendants’ demand for plaintiff's
medical records and produce same; and.
(b) For such other and further relief as this Court may deem just and proper.
3 This medical malpractice action allegedly arises from personal injuries sustained by
the infant plaintiff, NATHANIEL GRAYTON, as a result ofan elective procedure to have a skin tag
removed from the anterior surface of his neck, which procedure was performed on April 2, 2009 at
o-defendant, WYCKOFF HEIGHTS MEDICAL CENTER.
4 The above-entitled action was electronically filed on December 17, 2013, and issue
was first joined on January 15, 2014 when Arshack, Hajek & Lehrman, PLLC filed and served a
Verified Answer on behalf of co-defendant, WYCKOFF HEIGHTS MEDICAL CENTER. Plaintiff
|
filed a Request for Judicial Intervention and Notice of Medical Malpractice Action on March 17,
2014. A preliminary conference was held June 30, 2014.
5 On August 5, 2014, the defendants represented by this office served a demand on co-
defendants, WYCKOFF HEIGHTS MEDICAL CENTER and SONY LOISEAU, M_D., for a copy
of all medical records pertaining to the infant plaintiff, NATHANIEL GRAYTON. A copy of this
demand is annexed hereto as Exhibit “A.”
6 On August 21, 2014, September 4, 2014, September 22, 2014, October 1, 2014,
October 8, 2014, October 30, 2014, November 21, 2014, December 30, 2014 and January 14, 2015,
a total of nine occasions, your affirmant contacted the office of Arshack, Hajek & Lehrman, PLLC,
a counsel for co-defendant WYCKOFF HEIGHTS MEDICAL CENTER, in an effort to obtain a copy
of plaintiff's medical records pursuant to the demand served on August 5, 2014.
Q
7 On November 21, 2014, a paralegal from the office of counsel for co-defendant,
WYCKOFF HEIGHTS MEDICAL CENTER, represented that she was in possession of the
demanded medical records and that they would be forwarded to your affirmant’s office before
Thanksgiving. However, 60 days from the date of this representation, more than five months from
1
In accordance with GBL § 399-ddd(6) and 22 NYCRR § 202.5(e), please be advised that the infant plaintiff's
Social Security number and date of birth, except the year thereof, have been redacted.
2
L the date of the demand and over a year and a month since this action was filed, co-defendant still has
not produced a copy of plaintiff's medical records.
8 Under CPLR § 3124, “[i]f'a person fails to respond to or comply with any request,
notice, interrogatory, demand, question or order under this article, except a notice to admit under
section 3123, the party seeking disclosure may move to compel compliance or a response.” Co-
defendant, WYCKOFF HEIGHTS MEDICAL CENTER, has utterly failed to comply, timely or
otherwise, with defendants’ straightforward demand for a copy of plaintiff's medical records. The
importance of these particular medical records cannot be overstated as ail claims of negligence in
il
this matter arise from treatment rendered to the infant plaintiff, NATHANIEL GRAYTON, at co-
defendant hospital. Accordingly, the demanded medical records are clearly material and necessary
in the defense of this action, see CPLR § 3101(a), and, as such, “will assist preparation for trial by
sharpening the issues and reducing delay and prolixity.” Allen v. Crowell-Collier Publ. Co., 21
N.Y.2d 403, 406, 235 N.E.2d 430 (1968). Without a copy of co-defendant’s hospital chart,
defendants are unable to investigate the facts, evaluate plaintiffs claims and formulate a defense.
9 It should be noted that given the ordinarily uncontested and pro forma nature of the
relief sought, defendants regret having to make the instant motion. However, the persistent refusal
of co-defendant, WYCKOFF HEIGHTS MEDICAL CENTER, to produce a copy of plaintiff's
medical records notwithstanding the nine prior attempts at amicable resolution made by defendants
have left defendants with no recourse other than to seck the Court’s intervention.
WHEREFORE, it is respectfully requested that this Honorable Court grant defendants’
within motion in its entirety along with any other and further relief that this Court may deem just and
proper.
Dated: New York, New York
January 20, 2015
a
hye
DAVID S. YOuAY
4
Preview
(FILED: KINGS COUNTY CLERK 01/20/2015 11:44 AM INDEX NO. 508009/2013 NYSCEF DOC. NO.; 19 RECEIVED NYSCEF 01/20/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS enna ==. een wan ane. NATHANIEL, GRAYTON, an Infant, by his mother and natural guardian, SHERRI SKIDMORE, Index No.: 508009/2013 Plaintiff, - against - AFFIRMATION IN SUPPORT VASUDHA VISWANATHAN, M.D., CALIXTO CAZANO, M.D., RAJENDRA BHAYANI, M.D: FERNANDO GINEBRA, M.D., SONY LOISEAU, M.D: and WYCKOFF HEIGHTS MEDICAL CENTER, Defendants. een ee nn eK DAVID S. YOHAY, an attorney admitted to the practice of law before the courts of the State of New York, and noi a party to the above-entitled cause, affirms the following to be true, upon information and belief, under the penalties of perjury pursuant to CPLR § 2106 1 T am associated with the law firm of COSTELLO, SHEA & GAFFNEY LLP. attorneys for defendants, VASUDHA VISWANATHAN, M.D., CALIXTO CAZANO, M.D. and FERNANDO GINEBRA, M.D., and as such, am fully familiar with the facts and circumstances set forth herein. 2. This affirmation is respectfully submitted in support of defendants’ within motion for an Order @) Pursuant to CPLR § 3124, compelling co-defendant, WYCKOFF HEIGHTS MEDICAL CENTER, to comply with defendants’ demand for plaintiff's medical records and produce same; and. (b) For such other and further relief as this Court may deem just and proper. 3 This medical malpractice action allegedly arises from personal injuries sustained by the infant plaintiff, NATHANIEL GRAYTON, as a result ofan elective procedure to have a skin tag removed from the anterior surface of his neck, which procedure was performed on April 2, 2009 at o-defendant, WYCKOFF HEIGHTS MEDICAL CENTER. 4 The above-entitled action was electronically filed on December 17, 2013, and issue was first joined on January 15, 2014 when Arshack, Hajek & Lehrman, PLLC filed and served a Verified Answer on behalf of co-defendant, WYCKOFF HEIGHTS MEDICAL CENTER. Plaintiff | filed a Request for Judicial Intervention and Notice of Medical Malpractice Action on March 17, 2014. A preliminary conference was held June 30, 2014. 5 On August 5, 2014, the defendants represented by this office served a demand on co- defendants, WYCKOFF HEIGHTS MEDICAL CENTER and SONY LOISEAU, M_D., for a copy of all medical records pertaining to the infant plaintiff, NATHANIEL GRAYTON. A copy of this demand is annexed hereto as Exhibit “A.” 6 On August 21, 2014, September 4, 2014, September 22, 2014, October 1, 2014, October 8, 2014, October 30, 2014, November 21, 2014, December 30, 2014 and January 14, 2015, a total of nine occasions, your affirmant contacted the office of Arshack, Hajek & Lehrman, PLLC, a counsel for co-defendant WYCKOFF HEIGHTS MEDICAL CENTER, in an effort to obtain a copy of plaintiff's medical records pursuant to the demand served on August 5, 2014. Q 7 On November 21, 2014, a paralegal from the office of counsel for co-defendant, WYCKOFF HEIGHTS MEDICAL CENTER, represented that she was in possession of the demanded medical records and that they would be forwarded to your affirmant’s office before Thanksgiving. However, 60 days from the date of this representation, more than five months from 1 In accordance with GBL § 399-ddd(6) and 22 NYCRR § 202.5(e), please be advised that the infant plaintiff's Social Security number and date of birth, except the year thereof, have been redacted. 2 L the date of the demand and over a year and a month since this action was filed, co-defendant still has not produced a copy of plaintiff's medical records. 8 Under CPLR § 3124, “[i]f'a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” Co- defendant, WYCKOFF HEIGHTS MEDICAL CENTER, has utterly failed to comply, timely or otherwise, with defendants’ straightforward demand for a copy of plaintiff's medical records. The importance of these particular medical records cannot be overstated as ail claims of negligence in il this matter arise from treatment rendered to the infant plaintiff, NATHANIEL GRAYTON, at co- defendant hospital. Accordingly, the demanded medical records are clearly material and necessary in the defense of this action, see CPLR § 3101(a), and, as such, “will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406, 235 N.E.2d 430 (1968). Without a copy of co-defendant’s hospital chart, defendants are unable to investigate the facts, evaluate plaintiffs claims and formulate a defense. 9 It should be noted that given the ordinarily uncontested and pro forma nature of the relief sought, defendants regret having to make the instant motion. However, the persistent refusal of co-defendant, WYCKOFF HEIGHTS MEDICAL CENTER, to produce a copy of plaintiff's medical records notwithstanding the nine prior attempts at amicable resolution made by defendants have left defendants with no recourse other than to seck the Court’s intervention. WHEREFORE, it is respectfully requested that this Honorable Court grant defendants’ within motion in its entirety along with any other and further relief that this Court may deem just and proper. Dated: New York, New York January 20, 2015 a hye DAVID S. YOuAY 4