Preview
FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------X
NATHANIEL GRAYTON, an Infant, by his mother
and natural guardian, SHERRI SKIDMORE, Index # 508009/13
Plaintiff, AFFIRMATION
- against -
VASUDHA VISWANATHAN, M.D., CALIXTO
CAZANO, M.D., RAJENDRA BHAYANI, M.D.,
FERNANDO GINEBRA, M.D., SONY LOSEAU, M.D.
and WYCKOFF HEIGHT'S MEDICAL CENTER,
Defendants.
----------------- X
COUNSELORS:
EDWARD NICHOLSON, ESQ., an attorney duly admitted to practice law in the courts of
the State of New York, hereby affirms the following, pursuant to th penalties of perjury:
1. Your affirmant is an attorney at law, associated with SCHIAVETTI, CORGAN
DiEDWARDS, WEINBERG and NICHOLSON, LLP, the attorneys for the Defendant
CALIXTO CAZANO, M.D. and FERNANDO GINEBRA, M.D. (hereiñafter "moving
defendants"), and as such is fully samiliar with all the facts and circumstances as hereinafter set
forth.
2. This affirmation is executed upon information and belief, the sources of which are
the files and records maintained by the law offices of SCHIAVETTI, CORGAN, DiEDWARDS
WEINBERG and NICHOLSON, LLP, pertaining to this matter.
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3. That this affirmation is submitted in support of the instant motion which seeks an
Order:
defendants'
a) Extending time by which to move for summary judgment pursuant to
CPLR § 3212 in lieu of outstanding discovery owing on the case;
b) For such other and further relief as this Court deems just and proper.
4. No previous application for the relief herein prayed for has been made.
BRIEF FACTUAL AND PROCEDURAL HISTORY
5. This case sounds in medical malpractice wherein Plaintiff alleges that the
Defendants failed to timely recognize and treat laryngospasm. As a result of same, plaintiff alleges
that he was caused to sustain respiratory arrest, pneumothorax, bradycardia, tachycardia,
cardiorespiratory failure, cardiopulmañary arrest, and frequent colds and asthma.
6. This action was commenced by the filing of a Summons and Complaint on This
action was co-ced by the filing of a Summons and Complaint on December 17, 2013. (See,
Exhibit "A"). Issue was joined by service of a Verified Answer on behalf of defendants Calixto
Cazano, M.D. and Fernando Ginebra, M.D. on February 14, 2014. (See, Exhibit "B"). On 01
about May 30, 2014, plaintiff's counsel served Verified Bill of Particulars as to all defendants.
(See, Exhibit "C").
7. A Preliminary Conference was held on June 30, 2014, and an Order was set forth
the pertinent terms of which was that plaintiff, Sherri Skidmore's deposition was to be held on or
before October 22, 2014. (See, Exhibit "D").
8. Plaintiff's deposition did not proceed on October 22, 2014, as ordered by the Court.
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9. A compliance Conference was held on March 30, 2015, and an Order was set forth
pursuant to which plaintiff's deposition was to be held on or before June 10, 2015. (See, Exhibit
"E").
10. The deposition of the plaintiff Sherri Skidmore was completed over the course of
two days of questioning on October 23, 2015 and May 17, 2016.
11. The deposition of defendant Vasudha Viswanathan, M.D. was held on June 21,
2016.
12. On November 1, 2018, at this counsel's request, a further court conference was held
on the matter which directed that plaintiff was to file their Note of Issue by December 19, 2019; and
defendants'
that time by which to move for summary judgment was extended to April 5, 2019. (See,3
Exhibit "F"). The Order also set forth dates on which the depocitione were to be!
remaining party
conducted, to wit, Dr. Cazano on or before November 30, 2018; Dr. Bhayani on or befor
December 21, 2018; Dr. Ginebra on or before December 21, 2018; Dr. Louiseau on or before
January 15, 2019; and a witness on behalf of Wycoff Heights Medical Center on or before February
5, 2019, with plaintiff to designate said witness by November 30, 2018. To date, none of these
aforementioned depositions have gone forward due to scheduling conflicts amongst counsel.
13. On December 14, 2018, plaintiff filed their Note of Issue and Certificate of Trial
Readiness despite the fact that upwards of five defendant depositions remained outstanding on the
case. (See, Exhibit "G").
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LEGAL ARGUMENT
THE COURT SHOULD REMOVE THIS MATTER FROM THE TRIAL CALENDAR
PURSUANT TO §202.21 OF THE NEW YORK UNIFORM COURT RULES
14. The filing of plaintiffs Note of Issue is premature beemise there is discovery which
remains outstanding. It is well-settled law that "[p]arties to an action are entitled to reasoñable
discovery of any facts bearing on the controversy which will assist in preparation for trial by
prolixity"
sharpeñiñg the issues and reducing delay and Fell v. Presbyterian Hosoital in the City
of New York, 98 A.D. 2d 624,469, N.Y.S. 2d 37 (1st Dept. 1983); see also, Allen v. Crowell-Collier
Publishing Co., 21 N.Y.S. 2d 403, 288 N.Y.S. 2d 449 (1968). The purpose of pretrial disclosure is
to ensure that parties and witnesses fully disclose allfacts bearing on the controversy before trial so
as to avoid surprise and prevent litigation from becoming a game. See, Siegel, New York Practice
2d, §345.
Plaintiffs'
15. counsel erroneously and misleadingly sets forth that the case at bar is
completed,"
ready for trial as "discovery proceedings now known to be necessary are "there has
been compliance with any order issued pursuant to pre-calendar rules 22 NYCRR §§ 202.12 and
202.56" waived."
and "physical examination (See, Exhibit "G").
16. In the present case, significant discovery rersaiñs outstanding, the absence of which
will necessarily prejudice the moving defendants in properly prepariñg a defense to this lawsuit.
Specifically, the following remains outstanding:
- Deposition of Defendant Dr. Cazano;
- Deposition of Defendant Dr. Bhayani;
- Deposition of Dr. Ginebra;
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- Deposition of Dr. Louiseau;
- Deposition of Wycoff Heights Medical Center.
17. Given the significant outstanding discovery eñümerated above, it is respectfully
submitted that the moving defendants have illustrated that this case is not ready for trial,and that
defendants'
the moving time within which to move for summary judgment should be extended to
sixty (60) days after the completion of alldiscovery.
WHEREFORE, for allof the aforementioned reasons, itis respectfully requested that this
Honorable Court grant the instant motion in its entirety,together with such other and further relief
as this Court deems just and proper.
Dated: New York, New York
March 27, 2019
Yours, etc.
SCHIAVETTI, CORGAN, DiEDWARDS,
WE1NBERG & NICHOLSON, LLP
By:
EDWARD NICHOLSON
Attorneys for Defendants
Dr. Calixto Cazano and
Dr, Fernando Ginebra
Office and P.O. Address
14*
575 Eighth Avenue, Floor
New York, New York 10018
(212) 541-9100
TO: LEVINE & GROSSMAN
Attorneys for the Plaintiffs
114 Old Country Road, #460
Mineola, NY 11501
(516) 248-7575
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BROWN, GRUTTADARO, GAUJEAN & PRATTO
Attorneys for Defendant, Dr. Bhayanai
10*
One North Broadway, Floor
White Plains, NY 10601
(914) 949-5300
COSTELLO SHEA & GAFFNEY
Attorneys for Defendant, Dr. Viswanathan
12*
44 Wall Street, Floor
New York, NY 10005
(212) 483-9600
ARSHACK HAJEK & LEHRMANN
Attorneys for Defendant, Wyckoff Heights Medical Center
1790 Broadway
New York, NY 10019
(212) 582-6500
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NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019
CERTIFICATION
I hereby certify that on March 28, 2019, I served the foregoing ORDER TO SHOW CAUSE
AND AFFIRMATION, on behalf of CALIXTO CAZANO, M.D. and FERNANDO
GINEBRA, M.D., as follows:
electronically via the Electronic Court Filing System (ECF) addressed to each of the following
persons at the lastknown address set forth after each name:
LEVINE & GROSSMAN, ESQS.
Attorneys for Plaintiffs
114 OLD COUNTRY ROAD
MINEOLA, NEW YORK 11501
516 248-7575
BROWN, GRUTTADARO, GAUJEAN & PRATTO
Attorneys for Defendant, Dr. Bhayanai
10d2
One North Broadway, Floor
White Plains, NY 10601
(914) 949-5300
COSTELLO SHEA & GAFFNEY
Attorneys for Defendant, Dr. Viswañathañ
100 Merrick Road
East Building, Suite 218
Rockville Centre, New York 11570
(212) 483-9600
ARSHACK HAJEK & LEHRMANN
Attorneys for Defendant, Wyckoff Heights Medical Center
1790 Broadway
New York, NY 10019
(212) 582-6500
I'm aware that if any of the foregoing statements made by me are willfully false, I am subject to
punishment.
Dated: New York, New York
March 28, 2019
/s/Edward Nicholson_
EDWARD NICHOLSON
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Preview
FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------X NATHANIEL GRAYTON, an Infant, by his mother and natural guardian, SHERRI SKIDMORE, Index # 508009/13 Plaintiff, AFFIRMATION - against - VASUDHA VISWANATHAN, M.D., CALIXTO CAZANO, M.D., RAJENDRA BHAYANI, M.D., FERNANDO GINEBRA, M.D., SONY LOSEAU, M.D. and WYCKOFF HEIGHT'S MEDICAL CENTER, Defendants. ----------------- X COUNSELORS: EDWARD NICHOLSON, ESQ., an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms the following, pursuant to th penalties of perjury: 1. Your affirmant is an attorney at law, associated with SCHIAVETTI, CORGAN DiEDWARDS, WEINBERG and NICHOLSON, LLP, the attorneys for the Defendant CALIXTO CAZANO, M.D. and FERNANDO GINEBRA, M.D. (hereiñafter "moving defendants"), and as such is fully samiliar with all the facts and circumstances as hereinafter set forth. 2. This affirmation is executed upon information and belief, the sources of which are the files and records maintained by the law offices of SCHIAVETTI, CORGAN, DiEDWARDS WEINBERG and NICHOLSON, LLP, pertaining to this matter. 1 of 7 FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 3. That this affirmation is submitted in support of the instant motion which seeks an Order: defendants' a) Extending time by which to move for summary judgment pursuant to CPLR § 3212 in lieu of outstanding discovery owing on the case; b) For such other and further relief as this Court deems just and proper. 4. No previous application for the relief herein prayed for has been made. BRIEF FACTUAL AND PROCEDURAL HISTORY 5. This case sounds in medical malpractice wherein Plaintiff alleges that the Defendants failed to timely recognize and treat laryngospasm. As a result of same, plaintiff alleges that he was caused to sustain respiratory arrest, pneumothorax, bradycardia, tachycardia, cardiorespiratory failure, cardiopulmañary arrest, and frequent colds and asthma. 6. This action was commenced by the filing of a Summons and Complaint on This action was co-ced by the filing of a Summons and Complaint on December 17, 2013. (See, Exhibit "A"). Issue was joined by service of a Verified Answer on behalf of defendants Calixto Cazano, M.D. and Fernando Ginebra, M.D. on February 14, 2014. (See, Exhibit "B"). On 01 about May 30, 2014, plaintiff's counsel served Verified Bill of Particulars as to all defendants. (See, Exhibit "C"). 7. A Preliminary Conference was held on June 30, 2014, and an Order was set forth the pertinent terms of which was that plaintiff, Sherri Skidmore's deposition was to be held on or before October 22, 2014. (See, Exhibit "D"). 8. Plaintiff's deposition did not proceed on October 22, 2014, as ordered by the Court. -2- 2 of 7 FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 9. A compliance Conference was held on March 30, 2015, and an Order was set forth pursuant to which plaintiff's deposition was to be held on or before June 10, 2015. (See, Exhibit "E"). 10. The deposition of the plaintiff Sherri Skidmore was completed over the course of two days of questioning on October 23, 2015 and May 17, 2016. 11. The deposition of defendant Vasudha Viswanathan, M.D. was held on June 21, 2016. 12. On November 1, 2018, at this counsel's request, a further court conference was held on the matter which directed that plaintiff was to file their Note of Issue by December 19, 2019; and defendants' that time by which to move for summary judgment was extended to April 5, 2019. (See,3 Exhibit "F"). The Order also set forth dates on which the depocitione were to be! remaining party conducted, to wit, Dr. Cazano on or before November 30, 2018; Dr. Bhayani on or befor December 21, 2018; Dr. Ginebra on or before December 21, 2018; Dr. Louiseau on or before January 15, 2019; and a witness on behalf of Wycoff Heights Medical Center on or before February 5, 2019, with plaintiff to designate said witness by November 30, 2018. To date, none of these aforementioned depositions have gone forward due to scheduling conflicts amongst counsel. 13. On December 14, 2018, plaintiff filed their Note of Issue and Certificate of Trial Readiness despite the fact that upwards of five defendant depositions remained outstanding on the case. (See, Exhibit "G"). -3- 3 of 7 FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 LEGAL ARGUMENT THE COURT SHOULD REMOVE THIS MATTER FROM THE TRIAL CALENDAR PURSUANT TO §202.21 OF THE NEW YORK UNIFORM COURT RULES 14. The filing of plaintiffs Note of Issue is premature beemise there is discovery which remains outstanding. It is well-settled law that "[p]arties to an action are entitled to reasoñable discovery of any facts bearing on the controversy which will assist in preparation for trial by prolixity" sharpeñiñg the issues and reducing delay and Fell v. Presbyterian Hosoital in the City of New York, 98 A.D. 2d 624,469, N.Y.S. 2d 37 (1st Dept. 1983); see also, Allen v. Crowell-Collier Publishing Co., 21 N.Y.S. 2d 403, 288 N.Y.S. 2d 449 (1968). The purpose of pretrial disclosure is to ensure that parties and witnesses fully disclose allfacts bearing on the controversy before trial so as to avoid surprise and prevent litigation from becoming a game. See, Siegel, New York Practice 2d, §345. Plaintiffs' 15. counsel erroneously and misleadingly sets forth that the case at bar is completed," ready for trial as "discovery proceedings now known to be necessary are "there has been compliance with any order issued pursuant to pre-calendar rules 22 NYCRR §§ 202.12 and 202.56" waived." and "physical examination (See, Exhibit "G"). 16. In the present case, significant discovery rersaiñs outstanding, the absence of which will necessarily prejudice the moving defendants in properly prepariñg a defense to this lawsuit. Specifically, the following remains outstanding: - Deposition of Defendant Dr. Cazano; - Deposition of Defendant Dr. Bhayani; - Deposition of Dr. Ginebra; -4- 4 of 7 FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 - Deposition of Dr. Louiseau; - Deposition of Wycoff Heights Medical Center. 17. Given the significant outstanding discovery eñümerated above, it is respectfully submitted that the moving defendants have illustrated that this case is not ready for trial,and that defendants' the moving time within which to move for summary judgment should be extended to sixty (60) days after the completion of alldiscovery. WHEREFORE, for allof the aforementioned reasons, itis respectfully requested that this Honorable Court grant the instant motion in its entirety,together with such other and further relief as this Court deems just and proper. Dated: New York, New York March 27, 2019 Yours, etc. SCHIAVETTI, CORGAN, DiEDWARDS, WE1NBERG & NICHOLSON, LLP By: EDWARD NICHOLSON Attorneys for Defendants Dr. Calixto Cazano and Dr, Fernando Ginebra Office and P.O. Address 14* 575 Eighth Avenue, Floor New York, New York 10018 (212) 541-9100 TO: LEVINE & GROSSMAN Attorneys for the Plaintiffs 114 Old Country Road, #460 Mineola, NY 11501 (516) 248-7575 -5- 5 of 7 FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 BROWN, GRUTTADARO, GAUJEAN & PRATTO Attorneys for Defendant, Dr. Bhayanai 10* One North Broadway, Floor White Plains, NY 10601 (914) 949-5300 COSTELLO SHEA & GAFFNEY Attorneys for Defendant, Dr. Viswanathan 12* 44 Wall Street, Floor New York, NY 10005 (212) 483-9600 ARSHACK HAJEK & LEHRMANN Attorneys for Defendant, Wyckoff Heights Medical Center 1790 Broadway New York, NY 10019 (212) 582-6500 -6- 6 of 7 FILED: KINGS COUNTY CLERK 03/28/2019 01:38 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2019 CERTIFICATION I hereby certify that on March 28, 2019, I served the foregoing ORDER TO SHOW CAUSE AND AFFIRMATION, on behalf of CALIXTO CAZANO, M.D. and FERNANDO GINEBRA, M.D., as follows: electronically via the Electronic Court Filing System (ECF) addressed to each of the following persons at the lastknown address set forth after each name: LEVINE & GROSSMAN, ESQS. Attorneys for Plaintiffs 114 OLD COUNTRY ROAD MINEOLA, NEW YORK 11501 516 248-7575 BROWN, GRUTTADARO, GAUJEAN & PRATTO Attorneys for Defendant, Dr. Bhayanai 10d2 One North Broadway, Floor White Plains, NY 10601 (914) 949-5300 COSTELLO SHEA & GAFFNEY Attorneys for Defendant, Dr. Viswañathañ 100 Merrick Road East Building, Suite 218 Rockville Centre, New York 11570 (212) 483-9600 ARSHACK HAJEK & LEHRMANN Attorneys for Defendant, Wyckoff Heights Medical Center 1790 Broadway New York, NY 10019 (212) 582-6500 I'm aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: New York, New York March 28, 2019 /s/Edward Nicholson_ EDWARD NICHOLSON 7 of 7