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FILED: NASSAU COUNTY CLERK 04/19/2013 INDEX NO. 601537/2012
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
X
RYAN JONES, by his Father and Natural Guardian, AFFIRMATION
DARELL JONES, IN SUPPORT
Plaintiffs,
Index No.: 601537/12
-against-
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMAGING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON,
M.D., MARK J. DECKER, M.D. and LOWELL B. BAREK,
M.D.,
Defendants.
IC 0 UN S ELO RS:
YUKO ANN NAKAHARA, an attorney duly admitted to practice law in the Courts
of the State of New York, and an associate of the law firm of MARTIN CLEARWATER &
BELL LLP, attorneys of record for defendant, MARK J. DECKER, M.D. ("Dr. DECKER"),
hereby affirms the following to be true under the penalties of perjury:
1. I am fully familiar with the facts and circumstances of this action by virtue of
a review of the legal file maintained by the law office of Martin Clearwater & LLP. Bell,
2. This affirmation is respectfully submitted in support of defendant’s instant
on for an Order:
a. Pursuant to CPLR 3126, dismissing the Complaint dated August 8, 2012 for
plaintiffs’ failure to provide outstanding discovery pursuant to moving
defendant’s demands dated October 23, 2012; or,
b. Pursuant to CPLR 3126, precluding plaintiffs from offering any evidence or
testimony at the time of trial, or in dispositive motion practice against moving
defendant, for plaintiffs’ continued failure to provide outstanding discovery
pursuant to moving defendant’s demands dated October 23, 2012; and,
C. Granting such other and further relief as this Court deems just and proper.
EXHIBITS
3. The following exhibits are annexed hereto for the Court's consideration:
"A" Plaintiff's Summons & Complaint dated August 8, 2012;
"B" Defendant Dr. DECKER's, Answer & combined discovery demands
dated October 23, 2013;
"C" Moving defendant's good faith letter requesting outstanding discovery
dated February 19, 2013; and,
PROCEDURAL HISTORY
4. The instant action was commenced by the filing of a Summons and Verified
Complaint with the Clerk of the Supreme Court, Nassau County on or about August 8, 2012.
SeeExhibit "A".
5. Thereafter on October 23, 2012, an Answer was interposed by this firm on
behalf of defendant, Dr. DECKER.SeeExhibits "B".
6. As plaintiffs had not yet served any responses to defendant Dr. DECKER's
discovery demands, including but not limited to, a Demand for a Verified Bill of
articulars, your affirmant's office sent a good faith letter to plaintiffs' counsel regarding the
discovery owed on February 19, 2013. SeeExhibit "C".
7. Despite defense counsel's good faith efforts to obtain outstanding discovery,
have not yet provided any discovery to date.
8. Accordingly, the following discovery remains outstanding:
(1) Response to defendant's Demand for Bill of Particulars dated October
23, 2012;
(2) Response to defendant's Demand for Authorizations dated October 23,
2012;
(3) Response to defendant's Demand for Medicaid/Medicare Lien
Information dated October 23, 2012;
(4) Response to defendant's Notice of Discovery & Inspection of
Documents dated October 23, 2012;
(5) Response to defendant's Notice of Discovery & Inspection of
Statements dated October 23, 2012;
20302481 .DOC
(6) Response to defendant’s Demand for CPLR 4545Information dated
October 23, 2012;
(7) Response to defendant’s Demand for Discovery of Expert Witnesses
dated October 23, 2012;
(8) Response to defendant’s Demand for Names of Witnesses dated
October 23, 2012; and,
(9) Response to defendant’s Notice of Discovery & Inspection of
Photographic Evidence dated October 23, 2012.
9. It is without question that the parties cannot move forward in any aspect of
this litigation (i.e. depositions, etc.) without first receiving the above listed discovery.
ARGUMENT
10. Here, plaintiffs have disregarded defendant’s discovery demands, despite
defense counsel’s good faith effort to obtain same.
11. It is well-settled that the burden of proving that the requested subject matter is
not discoverable is on the party opposing such discovery. Witt v. Triangle Steel Products
Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210 (2d Dept 1984); see alsoTwenty Four Hour Fuel
Oil Corp., 226 A.D.2d 175, 640 N.Y.S.2d 114. Here, plaintiff has neither objected to any of
the requested discovery, nor requested an extension of time to provide same.
13. CPLR 3126 states in pertinent part:
If any party, or a person who at the time a deposition is taken or an
examination or inspection is made. . . refuses to obey an order for
disclosure or wilfully fails to disclose information which the court
finds ought to have been disclosed. . . , the court may make such
orders with regard to the failure or refusal as are just, among them,
(2) an order prohibiting the disobedient party from supporting or
opposing designated claims or defenses...; or (3) 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 of default against the disobedient party.
14. Plaintiffs’ continued failure to provide the requested discovery has
demonstrated an intentional delay in prosecuting this action. Their actions have
demonstrated an unwillingness to cooperate with defendant, and an intention to engage in
203 0248 1. !30C
unnecessary and costly judicial intervention. CPLR 3126(3) provides that a party’s refusal
disclose information which ought to be disclosed may result in sanctions, including an
"dismissing the action, or any part thereof." Thus, as plaintiffs have continuously
failed to provide discovery that the Court previously directed him to disclose, the Court
should dismiss plaintiff’s action in it entirety.
15. Alternatively, plaintiffs should be precluded from presenting any evidence in
support of their claim at the time of trial, or in any dispositive motions that may be made.
WHEREFORE, based upon the foregoing, it is respectfully requested that this Court
grant the within motion in its entirety, together with such other and further relief as this Court
deems just and proper.
’Dated: New York, New York
April 19, 2013
/
Yuko Ann Nakahara
2030248_I .DOC
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FILED: NASSAU COUNTY CLERK 04/19/2013 INDEX NO. 601537/2012 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/19/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X RYAN JONES, by his Father and Natural Guardian, AFFIRMATION DARELL JONES, IN SUPPORT Plaintiffs, Index No.: 601537/12 -against- ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMAGING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., MARK J. DECKER, M.D. and LOWELL B. BAREK, M.D., Defendants. IC 0 UN S ELO RS: YUKO ANN NAKAHARA, an attorney duly admitted to practice law in the Courts of the State of New York, and an associate of the law firm of MARTIN CLEARWATER & BELL LLP, attorneys of record for defendant, MARK J. DECKER, M.D. ("Dr. DECKER"), hereby affirms the following to be true under the penalties of perjury: 1. I am fully familiar with the facts and circumstances of this action by virtue of a review of the legal file maintained by the law office of Martin Clearwater & LLP. Bell, 2. This affirmation is respectfully submitted in support of defendant’s instant on for an Order: a. Pursuant to CPLR 3126, dismissing the Complaint dated August 8, 2012 for plaintiffs’ failure to provide outstanding discovery pursuant to moving defendant’s demands dated October 23, 2012; or, b. Pursuant to CPLR 3126, precluding plaintiffs from offering any evidence or testimony at the time of trial, or in dispositive motion practice against moving defendant, for plaintiffs’ continued failure to provide outstanding discovery pursuant to moving defendant’s demands dated October 23, 2012; and, C. Granting such other and further relief as this Court deems just and proper. EXHIBITS 3. The following exhibits are annexed hereto for the Court's consideration: "A" Plaintiff's Summons & Complaint dated August 8, 2012; "B" Defendant Dr. DECKER's, Answer & combined discovery demands dated October 23, 2013; "C" Moving defendant's good faith letter requesting outstanding discovery dated February 19, 2013; and, PROCEDURAL HISTORY 4. The instant action was commenced by the filing of a Summons and Verified Complaint with the Clerk of the Supreme Court, Nassau County on or about August 8, 2012. SeeExhibit "A". 5. Thereafter on October 23, 2012, an Answer was interposed by this firm on behalf of defendant, Dr. DECKER.SeeExhibits "B". 6. As plaintiffs had not yet served any responses to defendant Dr. DECKER's discovery demands, including but not limited to, a Demand for a Verified Bill of articulars, your affirmant's office sent a good faith letter to plaintiffs' counsel regarding the discovery owed on February 19, 2013. SeeExhibit "C". 7. Despite defense counsel's good faith efforts to obtain outstanding discovery, have not yet provided any discovery to date. 8. Accordingly, the following discovery remains outstanding: (1) Response to defendant's Demand for Bill of Particulars dated October 23, 2012; (2) Response to defendant's Demand for Authorizations dated October 23, 2012; (3) Response to defendant's Demand for Medicaid/Medicare Lien Information dated October 23, 2012; (4) Response to defendant's Notice of Discovery & Inspection of Documents dated October 23, 2012; (5) Response to defendant's Notice of Discovery & Inspection of Statements dated October 23, 2012; 20302481 .DOC (6) Response to defendant’s Demand for CPLR 4545Information dated October 23, 2012; (7) Response to defendant’s Demand for Discovery of Expert Witnesses dated October 23, 2012; (8) Response to defendant’s Demand for Names of Witnesses dated October 23, 2012; and, (9) Response to defendant’s Notice of Discovery & Inspection of Photographic Evidence dated October 23, 2012. 9. It is without question that the parties cannot move forward in any aspect of this litigation (i.e. depositions, etc.) without first receiving the above listed discovery. ARGUMENT 10. Here, plaintiffs have disregarded defendant’s discovery demands, despite defense counsel’s good faith effort to obtain same. 11. It is well-settled that the burden of proving that the requested subject matter is not discoverable is on the party opposing such discovery. Witt v. Triangle Steel Products Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210 (2d Dept 1984); see alsoTwenty Four Hour Fuel Oil Corp., 226 A.D.2d 175, 640 N.Y.S.2d 114. Here, plaintiff has neither objected to any of the requested discovery, nor requested an extension of time to provide same. 13. CPLR 3126 states in pertinent part: If any party, or a person who at the time a deposition is taken or an examination or inspection is made. . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed. . . , the court may make such orders with regard to the failure or refusal as are just, among them, (2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses...; or (3) 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 of default against the disobedient party. 14. Plaintiffs’ continued failure to provide the requested discovery has demonstrated an intentional delay in prosecuting this action. Their actions have demonstrated an unwillingness to cooperate with defendant, and an intention to engage in 203 0248 1. !30C unnecessary and costly judicial intervention. CPLR 3126(3) provides that a party’s refusal disclose information which ought to be disclosed may result in sanctions, including an "dismissing the action, or any part thereof." Thus, as plaintiffs have continuously failed to provide discovery that the Court previously directed him to disclose, the Court should dismiss plaintiff’s action in it entirety. 15. Alternatively, plaintiffs should be precluded from presenting any evidence in support of their claim at the time of trial, or in any dispositive motions that may be made. WHEREFORE, based upon the foregoing, it is respectfully requested that this Court grant the within motion in its entirety, together with such other and further relief as this Court deems just and proper. ’Dated: New York, New York April 19, 2013 / Yuko Ann Nakahara 2030248_I .DOC