Preview
FILED: ERIE COUNTY CLERK 07/26/2020 07:20 PM INDEX NO. 802559/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/26/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
RICHARD DORIO
Plaintiff, AFFIRMATION IN
OPPOSITION
CHARLAP DENTAL SERVICES, PLLC, et al.,
Defendants. Index No.: 802559/2019
_____________________________________
VINCENT T. PARLATO, ESQ., being duly sworn pursuant to CPLR § 2106, deposes
and says that:
1. I am an attorney admitted to practice law in the Courts of the State of
New York. I am an associate attorney with the law firm VanDette Penberthy LLP,
attorneys for the Plaintiff. As such, I am fully familiar with the facts and proceedings
asserted herein, except those stated upon information and belief, and as to those, I
am informed and believe them to be true.
2. I submit this Affirmation in Opposition to Defendants’ motion to
preclude evidence or to compel discovery. (See NYSCEF Doc. Nos. 13 et seq.).
3. This is a dental malpractice action where the injuries claimed concern
Plaintiff’s teeth, mouth, gums, and the pain and suffering allegedly caused by
Defendants’ negligence in failing to fully remove one of Plaintiff’s wisdom teeth. (See
NYSCEF Doc. No. 1). The claim arose on or about September 2, 2016. (See NYSCEF
Doc. No. 1at ¶4).
4. Following the filing off this motion, Defendants were provided with an
Amended Verified Bill of Particulars (“AVBOP”) that eliminated “life’s enjoyment”
“inability to engage in social activities,” “emotional anguish,” and “loss of employment
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and career” claims. (Compare AVBOP, annexed hereto as Exhibit A at ¶7 with
NYSCEF Doc. No. 18 at ¶7).
5. Defendants seek “overall quality of life” or “general quality of life”
discovery, as the apparent predicate for this motion. (See NYSCEF Doc. No. 22 at pg.
1). However, given that Plaintiff’s claims are not nearly as broad as Defendants
argue, their specious arguments of undue prejudice that could result by not having a
plenary and unfettered access to Plaintiff’s medical records (far beyond that of the
mouth and teeth) should be rejected.
6. Defendants have also demanded (overbroadly) “any pharmacies that the
Plaintiff used to fill scripts ordered by his treating physicians, dentists, or other
health care providers[,]” among other overbroad demands. (NYSCEF Doc. No. 22, at
pg. 2).
7. Defendants request unlimited records of Plaintiff’s primary care
physician, Dr. Michael Calabrese. However, Defendants have already been provided
with an authorization for Dr. Calabrese, appropriately limited to the mouth and
teeth. (See NYSCEF Doc. No. 20).
8. Next, Defendants request unrestricted authorizations for pharmacy
records; however, defendants are already in receipt of a Walgreens’ Pharmacy
authorization, appropriately limited to the mouth and teeth. (See Emails and
correspondence, annexed hereto as Exhibit B).
9. Defendants request an urgent care authorization relative to a February
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26, 2019 visit, for ear pain, speculating that there is some possible relationship
between the claimed injuries and this treatment.
10. Defendants’ perhaps most improperly overbroad demand seeks hospital
and ER records of the last four years, again, with little explanation as to how an
entire four years of these records are relevant to the injuries to the mouth area, other
than to suggest that TMJ is a common dental issue and is thus relevant. (See
NYSCEF Doc. No. 14 at ¶¶2, 30). Even so, it is respectfully submitted that the
demand for these authorizations for any and all of Plaintiff’s hospital records of the
last for years is grossly overbroad.
11. Defendants also overbroadly request a list of providers for Plaintiff’s
auto accidents, once again absent any reasonable and relevant basis to the body parts
at issue in this case, i.e., the mouth and teeth. Defendants argument that injuries to
the neck, head and wrist in the December 30, 2019 and January 21, 2020 motor
vehicle accidents are relevant is strained.
12. The discovery demands, as a basis for this motion, are palpably
improper as they are overbroad. The motion should be denied on this basis. (See
Plaintiff’s Memorandum of Law).
13. It is also respectfully submitted that the motion should be denied in
light of the provision to defense counsel of Plaintiff’s Amended Verified Bill of
Particulars (“AVBOP”). (See Amended Verified Bill of Particulars, annexed hereto as
Exhibit A).
14. Defendants argue that the “broad allegations” and claims have placed
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Plaintiff’s “entire medical condition at issue due to the broad nature of his complaints”
such as to warrant unlimited authorizations disclosure. (See NYSCEF Doc. No. 14 at
¶ 26). However, as the AVBOP indicates, the “tendons, ligaments, blood vessels, and
soft tissue” etc. claims clearly relate to “the injured area.” (See Exhibit A at ¶7).
This is properly read to indicate the mouth area. (See id.). Defendants’
argument that this claim places Plaintiff’s “entire medical condition at issue” should
be rejected and brushed aside.
15. Following Defendants’ motion, on July 20, 2020, your affiant provided
defense counsel with a PDF of Plaintiff’s AVBOP via email (after defense counsel
stated that a page was missing from the copy that was previously mailed to him).
16. As is detailed (and plainly apparent) therein the AVBOP, Plaintiff’s
injuries concern the mouth and teeth area. (See Exhibit A at ¶7). The AVBOP does
not make “overall quality of life” or “general quality of life” claims. (See Exhibit A).
17. “Life’s enjoyment,” “inability to engage in social activities,” “emotional
anguish,” and “loss of employment and career” claims are no longer any part of the
Bill of Particulars, as a result of this amendment. (Compare Exhibit A at ¶7 with
NYSCEF Doc. No. 18).
18. Moreover, Defendants have already been provided with a HIPAA
authorization for Plaintiff’s Walgreens’ treatment, appropriately limited. (See
Exhibit B).
19. Your affiant requested defense counsel withdraw this motion, following
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provision of the AVBOP to defense counsel. Defense counsel’s office thereafter
indicated it would not withdraw the motion. (See Exhibit B).
20. For the above reasons, the discovery sought is not relevant. (See Exhibit
A). Because the motion has not been withdrawn, it should be denied.
21. Additionally, the preclusion motion is entirely unwarranted because
Plaintiff has not engaged in anything nearing the kind of extreme conduct necessary
to warrant such a harsh remedy. (See Plaintiff’s Memorandum of Law in Opposition).
This component of the motion should also be denied.
22. Finally, Defendants’ motion is procedurally defective and should not be
considered because Defendants have improperly cited to caselaw in an affirmation.
(See Plaintiff’s Memorandum of Law; see also Decision and Order, annexed hereto as
Exhibit C).
WHEREFORE, for the reasons set forth above, the annexed Exhibits, and
accompanying Memorandum of Law in Opposition, Defendants’ motion should be
denied in its entirety, together with any such other and further relief as the Court
may deem just and proper.
DATED: Buffalo, New York VANDETTE PENBERTHY LLP
July 26, 2020
By: Vincent T. Parlato
Vincent T. Parlato, Esq.
227 Niagara Street
Buffalo, New York 14201
(716) 803-8400
vparlato@vanpenlaw.com
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Preview
FILED: ERIE COUNTY CLERK 07/26/2020 07:20 PM INDEX NO. 802559/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE RICHARD DORIO Plaintiff, AFFIRMATION IN OPPOSITION CHARLAP DENTAL SERVICES, PLLC, et al., Defendants. Index No.: 802559/2019 _____________________________________ VINCENT T. PARLATO, ESQ., being duly sworn pursuant to CPLR § 2106, deposes and says that: 1. I am an attorney admitted to practice law in the Courts of the State of New York. I am an associate attorney with the law firm VanDette Penberthy LLP, attorneys for the Plaintiff. As such, I am fully familiar with the facts and proceedings asserted herein, except those stated upon information and belief, and as to those, I am informed and believe them to be true. 2. I submit this Affirmation in Opposition to Defendants’ motion to preclude evidence or to compel discovery. (See NYSCEF Doc. Nos. 13 et seq.). 3. This is a dental malpractice action where the injuries claimed concern Plaintiff’s teeth, mouth, gums, and the pain and suffering allegedly caused by Defendants’ negligence in failing to fully remove one of Plaintiff’s wisdom teeth. (See NYSCEF Doc. No. 1). The claim arose on or about September 2, 2016. (See NYSCEF Doc. No. 1at ¶4). 4. Following the filing off this motion, Defendants were provided with an Amended Verified Bill of Particulars (“AVBOP”) that eliminated “life’s enjoyment” “inability to engage in social activities,” “emotional anguish,” and “loss of employment 1 of 5 FILED: ERIE COUNTY CLERK 07/26/2020 07:20 PM INDEX NO. 802559/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/26/2020 and career” claims. (Compare AVBOP, annexed hereto as Exhibit A at ¶7 with NYSCEF Doc. No. 18 at ¶7). 5. Defendants seek “overall quality of life” or “general quality of life” discovery, as the apparent predicate for this motion. (See NYSCEF Doc. No. 22 at pg. 1). However, given that Plaintiff’s claims are not nearly as broad as Defendants argue, their specious arguments of undue prejudice that could result by not having a plenary and unfettered access to Plaintiff’s medical records (far beyond that of the mouth and teeth) should be rejected. 6. Defendants have also demanded (overbroadly) “any pharmacies that the Plaintiff used to fill scripts ordered by his treating physicians, dentists, or other health care providers[,]” among other overbroad demands. (NYSCEF Doc. No. 22, at pg. 2). 7. Defendants request unlimited records of Plaintiff’s primary care physician, Dr. Michael Calabrese. However, Defendants have already been provided with an authorization for Dr. Calabrese, appropriately limited to the mouth and teeth. (See NYSCEF Doc. No. 20). 8. Next, Defendants request unrestricted authorizations for pharmacy records; however, defendants are already in receipt of a Walgreens’ Pharmacy authorization, appropriately limited to the mouth and teeth. (See Emails and correspondence, annexed hereto as Exhibit B). 9. Defendants request an urgent care authorization relative to a February 2 2 of 5 FILED: ERIE COUNTY CLERK 07/26/2020 07:20 PM INDEX NO. 802559/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/26/2020 26, 2019 visit, for ear pain, speculating that there is some possible relationship between the claimed injuries and this treatment. 10. Defendants’ perhaps most improperly overbroad demand seeks hospital and ER records of the last four years, again, with little explanation as to how an entire four years of these records are relevant to the injuries to the mouth area, other than to suggest that TMJ is a common dental issue and is thus relevant. (See NYSCEF Doc. No. 14 at ¶¶2, 30). Even so, it is respectfully submitted that the demand for these authorizations for any and all of Plaintiff’s hospital records of the last for years is grossly overbroad. 11. Defendants also overbroadly request a list of providers for Plaintiff’s auto accidents, once again absent any reasonable and relevant basis to the body parts at issue in this case, i.e., the mouth and teeth. Defendants argument that injuries to the neck, head and wrist in the December 30, 2019 and January 21, 2020 motor vehicle accidents are relevant is strained. 12. The discovery demands, as a basis for this motion, are palpably improper as they are overbroad. The motion should be denied on this basis. (See Plaintiff’s Memorandum of Law). 13. It is also respectfully submitted that the motion should be denied in light of the provision to defense counsel of Plaintiff’s Amended Verified Bill of Particulars (“AVBOP”). (See Amended Verified Bill of Particulars, annexed hereto as Exhibit A). 14. Defendants argue that the “broad allegations” and claims have placed 3 3 of 5 FILED: ERIE COUNTY CLERK 07/26/2020 07:20 PM INDEX NO. 802559/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/26/2020 Plaintiff’s “entire medical condition at issue due to the broad nature of his complaints” such as to warrant unlimited authorizations disclosure. (See NYSCEF Doc. No. 14 at ¶ 26). However, as the AVBOP indicates, the “tendons, ligaments, blood vessels, and soft tissue” etc. claims clearly relate to “the injured area.” (See Exhibit A at ¶7). This is properly read to indicate the mouth area. (See id.). Defendants’ argument that this claim places Plaintiff’s “entire medical condition at issue” should be rejected and brushed aside. 15. Following Defendants’ motion, on July 20, 2020, your affiant provided defense counsel with a PDF of Plaintiff’s AVBOP via email (after defense counsel stated that a page was missing from the copy that was previously mailed to him). 16. As is detailed (and plainly apparent) therein the AVBOP, Plaintiff’s injuries concern the mouth and teeth area. (See Exhibit A at ¶7). The AVBOP does not make “overall quality of life” or “general quality of life” claims. (See Exhibit A). 17. “Life’s enjoyment,” “inability to engage in social activities,” “emotional anguish,” and “loss of employment and career” claims are no longer any part of the Bill of Particulars, as a result of this amendment. (Compare Exhibit A at ¶7 with NYSCEF Doc. No. 18). 18. Moreover, Defendants have already been provided with a HIPAA authorization for Plaintiff’s Walgreens’ treatment, appropriately limited. (See Exhibit B). 19. Your affiant requested defense counsel withdraw this motion, following 4 4 of 5 FILED: ERIE COUNTY CLERK 07/26/2020 07:20 PM INDEX NO. 802559/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/26/2020 provision of the AVBOP to defense counsel. Defense counsel’s office thereafter indicated it would not withdraw the motion. (See Exhibit B). 20. For the above reasons, the discovery sought is not relevant. (See Exhibit A). Because the motion has not been withdrawn, it should be denied. 21. Additionally, the preclusion motion is entirely unwarranted because Plaintiff has not engaged in anything nearing the kind of extreme conduct necessary to warrant such a harsh remedy. (See Plaintiff’s Memorandum of Law in Opposition). This component of the motion should also be denied. 22. Finally, Defendants’ motion is procedurally defective and should not be considered because Defendants have improperly cited to caselaw in an affirmation. (See Plaintiff’s Memorandum of Law; see also Decision and Order, annexed hereto as Exhibit C). WHEREFORE, for the reasons set forth above, the annexed Exhibits, and accompanying Memorandum of Law in Opposition, Defendants’ motion should be denied in its entirety, together with any such other and further relief as the Court may deem just and proper. DATED: Buffalo, New York VANDETTE PENBERTHY LLP July 26, 2020 By: Vincent T. Parlato Vincent T. Parlato, Esq. 227 Niagara Street Buffalo, New York 14201 (716) 803-8400 vparlato@vanpenlaw.com 5 5 of 5