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INDEX NO. 805132/2012
(FILED: NEW YORK COUNTY CLERK 1172072012)
NYSCEF DOC. NO. 69 RECEIVED NYSCEF 11/20/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
EDWARD SCARANO and SUSAN SCARANO,
Index No: 805132/2012
Plaintiffs,
- against - AFFIRMATION IN
OPPOSITION
DEANVAFIADIS, D.D.S., Individually and d/b/a NEW
YORK SMILE INSTITUTE, GARY GOLDSTEIN,
D.D.S., GARY RUTH, D.D.S., MAXILLOFACIAL
SURGERY SERVICES, L.L.C., GEORGE
ANASTRASSOV, M.D., D.D.S., BABAK GHALILI,
D.D.S., and "JOHN DOE, M.D.", the name being
fictitious but intended to be the Anesthesiologist who
rendered services on plaintiff
on September 21, 2011,
Defendants.
COUNSELORS:
BARBARA S. FINGER, an attorney duly admitted to practice law before the
Courts in the State of New York affirms the following under the penalties of perjury:
1 I am a member of the law firm of WENICK & FINGER, P.C., attorneys
for the defendant GARY RUTH, D.D.S., and as such am familiar with the facts and
proceedings based upon my review of the files maintained by this office in defense of this
litigation.
2 This affirmation is submitted in opposition to plaintiff's motion to compel
disclosure.
3 Insofar as plaintiff failed to serve a good faith letter requesting compliance
with these demands, plaintiff's motion is premature and may not be considered by this
Court. Plaintiff failed to include an Affidavit of Good Faith or demonstrate that the
plaintiff has made a good faith effort to resolve this discovery issues in violation of 22
NYCRR § 202.7 (a) and (c).
4 22 NYCRR § 202.7 in relevant part states the following:
(a) There shall be compliance with the procedures prescribed in the CPLR for the
bringing of motions. In addition, except as provided in subdivision (d) of this section, no
motion shall be filed with the court unless there have been served and filed with the
motion papers (1) a notice of motion, and (2) with respect to a motion relating to
disclosure or to a bill of particulars, an affirmation that counsel has conferred with
counsel for the opposing party in a good faith effort to resolve the issues raised by the
motion.
(b) The affirmation of the good faith effort to resolve the issues raised by the
motion shall indicate the time, place and nature of the consultation and the issues
discussed and any resolutions, or shall indicate good cause why no such conferral with
counsel for opposing parties was held.
5 New York courts have found that the moving party must demonstrate that
they have “they made a diligent effort to resolve this discovery dispute.” Amherst
Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1055, 816 N.Y.S.2d 782 (4th Dep’t
2006) citing to ( Baez_v. Sugrue, 300 A.D.2d 519, 521, 752 N.Y.S.2d 385 (2nd Dep’t
2002); see also Blade v. Town of N. Hempstead, 277 A.D.2d 268, 715 N.Y.S.2d 735
(2nd Dep’t 2000); Barnes v. NYNEX, Inc., 274 A.D.2d 368, 711 N.Y.S.2d 893 (2nd
Dep’t 2000).
6 Plaintiff has wholly failed to show any good faith in resolving this
discovery issue. For this reason alone, plaintiffs motion should be denied.
7 Moreover, this defendant has already responded to plaintiff's demands.
Attached hereto as Exhibit A is a copy of Dr. Ruth’s response to combined demand,
copy of the letter with Dr. Ruth’s insurance information and copy of the letter
transmitting a copy of Dr. Ruth’s records.
8 Thus, Dr. Ruth has fully complied with all outstanding discovery demands
and there is no basis whatsoever for plaintiff's motion.
WHEREFORE it is respectfully requested that this Court deny plaintiff's motion
to strike Dr. Gary Ruth’s answer.
Dated: New York, New York
November 19, 2012 2 /
Per lp wz &
Barbara S. Finger
Gu
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INDEX NO. 805132/2012 (FILED: NEW YORK COUNTY CLERK 1172072012) NYSCEF DOC. NO. 69 RECEIVED NYSCEF 11/20/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EDWARD SCARANO and SUSAN SCARANO, Index No: 805132/2012 Plaintiffs, - against - AFFIRMATION IN OPPOSITION DEANVAFIADIS, D.D.S., Individually and d/b/a NEW YORK SMILE INSTITUTE, GARY GOLDSTEIN, D.D.S., GARY RUTH, D.D.S., MAXILLOFACIAL SURGERY SERVICES, L.L.C., GEORGE ANASTRASSOV, M.D., D.D.S., BABAK GHALILI, D.D.S., and "JOHN DOE, M.D.", the name being fictitious but intended to be the Anesthesiologist who rendered services on plaintiff on September 21, 2011, Defendants. COUNSELORS: BARBARA S. FINGER, an attorney duly admitted to practice law before the Courts in the State of New York affirms the following under the penalties of perjury: 1 I am a member of the law firm of WENICK & FINGER, P.C., attorneys for the defendant GARY RUTH, D.D.S., and as such am familiar with the facts and proceedings based upon my review of the files maintained by this office in defense of this litigation. 2 This affirmation is submitted in opposition to plaintiff's motion to compel disclosure. 3 Insofar as plaintiff failed to serve a good faith letter requesting compliance with these demands, plaintiff's motion is premature and may not be considered by this Court. Plaintiff failed to include an Affidavit of Good Faith or demonstrate that the plaintiff has made a good faith effort to resolve this discovery issues in violation of 22 NYCRR § 202.7 (a) and (c). 4 22 NYCRR § 202.7 in relevant part states the following: (a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. (b) The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. 5 New York courts have found that the moving party must demonstrate that they have “they made a diligent effort to resolve this discovery dispute.” Amherst Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1055, 816 N.Y.S.2d 782 (4th Dep’t 2006) citing to ( Baez_v. Sugrue, 300 A.D.2d 519, 521, 752 N.Y.S.2d 385 (2nd Dep’t 2002); see also Blade v. Town of N. Hempstead, 277 A.D.2d 268, 715 N.Y.S.2d 735 (2nd Dep’t 2000); Barnes v. NYNEX, Inc., 274 A.D.2d 368, 711 N.Y.S.2d 893 (2nd Dep’t 2000). 6 Plaintiff has wholly failed to show any good faith in resolving this discovery issue. For this reason alone, plaintiffs motion should be denied. 7 Moreover, this defendant has already responded to plaintiff's demands. Attached hereto as Exhibit A is a copy of Dr. Ruth’s response to combined demand, copy of the letter with Dr. Ruth’s insurance information and copy of the letter transmitting a copy of Dr. Ruth’s records. 8 Thus, Dr. Ruth has fully complied with all outstanding discovery demands and there is no basis whatsoever for plaintiff's motion. WHEREFORE it is respectfully requested that this Court deny plaintiff's motion to strike Dr. Gary Ruth’s answer. Dated: New York, New York November 19, 2012 2 / Per lp wz & Barbara S. Finger Gu