Preview
FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------- x
AFFIRMATION IN
M W, an infant by his Mother and Natural Guardian, SUPPORT OF MOTION TO
ULDEAN LONDON, and ULDEAN LONDON,
Individually. VACATE ORDER AND
COMPEL DISCOVERY
PLAINTIFFS
-against-
Index #: 015107/2013
THE CIY OF NEW YORK, NEW YORK CITY City File #: 2013-042474
DEPARTMENT OF EDUCATION and THE NEW YORK
BOARD OF EDUCATION, Assigned Judge: Hon K. Levine
Defendants
----------------------------------------------------------------------x IAS Part: 25
WILLIAM G. RIVES, an attorney admitted to practice in the State of New York
and an Assistant Corporation Counsel in the office of JAMES E. JOHNSON, Corporation
Counsel of the City of New York, the attorney of record for the City of New York affirms
the truth of the following under the penalties of perjury pursuant to CPLR 2106, upon
information and belief based upon the records maintained in this office:
1. This affirmation is submitted on behalf of the defendants THE CIY OF NEW
YORK, NEW YORK CITY DEPARTMENT OF EDUCATION and THE NEW YORK
BOARD OF EDUCATION (hereinafter “municipal defendants”), in support of their motion for
an Order vacating CC order dated January 22, 2019 and compelling further discovery, pursuant
to CPLR 3124.
2. This is an action to recover damages for personal injuries allegedly sustained by
plaintiff MW, a minor at the time, (hereinafter “plaintiff”) in a slip and fall that occurred in a
restroom on school premises on April 9, 2013 in the County of Kings, State of New York.” See
Plaintiff’s Notice of Claim, annexed hereto as Exhibit A. Plaintiff alleges that the municipal
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defendants were negligent in the care, custody, control, and supervision at the premises known as
P.S. 375 located at 46 McKeever Place, Brooklyn, in Kings County, New York.
3. Plaintiff commenced this action by purchase of an index number on or about
August 16, 2013, and subsequent service of a summons and complaint on or about September 5,
2013. Municipal defendants joined issue by service of an answer on September 25, 2013. The
pleadings are annexed collectively hereto as Exhibit B.
4. Plaintiff served a Bill of Particulars on November 5, 2013, and a supplemental
Bill of Particulars on April 23, 2015. Among the claims made in the bills of particulars, plaintiff
alleges that the fall in the bathroom resulted in the exacerbation to an injury to his hip, which
required surgery approximately one year prior to the trip and fall in the school restroom. Copies
of the bills of particulars are annexed hereto as Exhibit C.
5. The parties entered into a Preliminary Conference order on January 27, 2014. A
copy of the Preliminary Conference order is annexed hereto as Exhibit D. Plaintiff was required
to provide “authorizations to obtain copies of the actual records of all treating and examining
healt care providers … for injuries specified in the bill of particulars, within 90 days.” See
Exhibit D at III.
6. At a compliance conference held January 22, 2019, the court ordered discovery
complete upon the plaintiff’s appearance at an IME. Prior to signing the order, upon information
and belief, counsel for defendants verbally requested an authorization for medical records from
the infant plaintiff’s treating pediatrician, and was informed by plaintiff’s counsel that the
plaintiff did not have a treating pediatrician. A copy of the compliance conference order is
annexed hereto as Exhibit E.
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7. Subsequently, defendants received and reviewed a copy of plaintiff’s insurance
billing records. A review of the records shows that plaintiff did consult a pediatrician several
times in the two year span the records included. The billing records for Affinity Health Plan are
annexed hereto as Exhibit F.
8. On May 13, 2020, this office served a supplemental demand for authorizations
for plaintiff’s pediatrician. A copy of the demand is annexed hereto as Exhibit G.
9. 1On June 26, plaintiff replied with a letter refusing to provide the authorizations.
A copy of the refusal letter is annexed thereto as Exhibit H.
10. This office, on June 25, 2020 sent correspondence to plaintiff’s office again
requesting the authorizations. Plaintiff has refused. A copy of the letter is annexed hereto as
Exhibit I .
ARGUMENT
I. THE PORTION OF THE COMPLIANCE CONFERENCE ORDER OF
JANUARY 22, 2019 CLOSING DISCOVERY SHOULD BE VACATED
11. CPLR 5105(a) reads in pertinent part: :
Relief from judgment or order
(a) On Motion. The court which rendered a judgment or order may
relieve a party from it upon such terms as may be just, on motion
of any interested person with such notice as the court may direct,
upon the ground of:
........
2. newly-discovered evidence which, if introduced at the trial,
would probably have produced a different result and which could
not have been discovered in time to move for a new trial under
section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse
party; or
..........
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12. As alluded to above, it was only after the compliance conference of January 22,
2019 that defendants became aware of that plaintiff had consulted with a pediatrician. And then
only through insurance billing records, and not through any disclosure by plaintiff.
13. Under these circumstances, it is well within the court’s discretion under CPLR
5105(a)(2) to vacate the portion of the compliance conference order which declares discovery
closed. The production of an authorization will not prejudice plaintiff or significantly delay the
proceeding See e.g. Eng v. Sichenzia,, 7 A.D.3d 754 (2nd Dep’t, 2004) (Supreme court
providently exercised its discretion to vacate a prior order granting the plaintiffs' ex parte motion
for an extension of time within which to serve a summons and complaint upon him where
plaintiffs failed to advise the court that defendant had informed them that he wished to receive
notice of any such motion for an extension and that he would vigorously oppose such a motion.)
Braisted v Bullock, 133 A.D.2d 438 (2nd Dep’t 1987) (Court should have granted defendants’
motion to vacate default in light of meritorious defense, minimal delay, and lack of prejudice to
plaintiff as result of delay.)
14. Here, the plaintiff’s consultation with a pediatrician was not discovered by
defendants until after the compliance conference order had been issued. The issue of causation is
disputed in this matter. The evidence available to defendants indicates that the infant plaintiff
may have been suffering from a growth disorder, Blount’s Disease. If true it is possible that the
infant plaintiff did not fall due to any negligence on the part of the defendants, but rather fell
because the disorder. Denying defendants access to all the medical records related to plaintiff’s
injury will severely hamper defendants ability to mount a defense at trial.
15. There is no direct evidence that plaintiffs’ counsel has engaged in “fraud,
misrepresentation, or other misconduct” [CPLR 5105(a)(2)] in not disclosing the entire infant
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plaintiff’s medical treatment related to the injury. It is entirely possible the client may have
neglected to inform counsel. Nevertheless, now that there is evidence of a treating pediatrician, it
is imperative that defendant be afforded the ability to mount a full and fair defense,
II. PLAINTIFF SHOULD BE COMPELLED TO COMPLY WITH
PRELIMINARY CONFERENCE ORDER DATED JANUARY 27, 2014
DESPITE THE COMPLIANCE CONFERENCE ORDER
16. Pursuant to CPLR 3101(a), “[t]here shall be full disclosure of all matter material
and necessary in the prosecution or defense of an action, regardless of the burden of proof[.]”
The Court of Appeals has explained that the words “material and necessary” should be construed
liberally “to require disclosure, upon request, of any facts bearing on the controversy which will
assist preparation for trial by sharpening the issues and reducing delay and prolixity. Allen v
Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968). The test, according to the Court of
Appeals, “is one of usefulness and reason.” Id. The purpose of disclosure is to ascertain the
truth. “If there is any possibility that the information is sought in good faith for possible use as
evidence-in-chief or in rebuttal or for cross-examination, it should be considered ‘evidence
material …in the prosecution or defense’” [citation omitted]. Allen, 21 N.Y.2d at 407, citing In
re Genesee Valley Union Trust Co. of Rochester, 21 A.D.2d 843, 844 (4th Dep’t 1964).
17. Pursuant to the preliminary conference order dated January 27, 2014: “Plaintiff
shall provide HIPAA compliant authorizations for copies of the actual records of treating and
examining health care providers, including diagnostic tests, x-rays and MRIs, CT Scans for
injuries specified in the Bill of Particulars within 90 days.” See Exhibit D, Section III.
18. During the course of discovery defendants received billing records from Affinity
Health Plan (Exhibit F). According to the records the infant plaintiff was billed for visits to
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Quality Pediatrics, P.C several times prior to the incident which resulted in this lawsuit.
Furthermore, Affinity Health Plan was billed for consultations with Dr. Hadi M. Ahmad both
before and after the incident. Dr. Ahmad is listed on the MD.com website as a pediatrician. See
https://www.md.com/doctor/hadi-ahmad-md.
19. Whether plaintiffs’ counsel’s failure to adhere to the PC order and disclose a
treating physician was intentional or an oversight, the omission of a treating physician’s records
hampers defendants ability to formulate a proper defense. Defendants are asking for a HIPAA
compliant authorization. The production of one will not be unduly burdensome on plaintiff, nor
will it delay the proceedings in this matter.
20. Without the appropriate medical records, the municipal defendants cannot
develop a proper defense to plaintiff’s claim of injuries. The municipal defendants will be
severely prejudiced if forced to proceed to trialwithout all medical records relating plaintiff’s
current and prior injuries. The absence of such critical disclosure undoubtedly establishes that the
instant action is far from ready for trial. The City would be severely prejudiced if forced to
defend this case at this juncture without said discovery. See Amoroso v. City of New York, 66
A.D.3d 618, 619 (2d Dept. 2009).
21. The municipal defendants have made a timely motion to vacate that portion of the
compliance conference order that declares discovery closed, and to compel the production of a
HIPAA compliant authorization for the records of the infant plaintiff’s pediatrician. To deny the
motion would not be in the interest of the full disclosure of all matter material and necessary, as
required by CPLR 3101(a)
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WHEREFORE, it is respectfully requested that this Court grant the municipal
defendants'
motion in its entirety, and for such other and further relief as this Court deems just
and proper.
Dated: September 21, 2020
Brooklyn, New York
* *
W .
Digitally signed by WilliamG.Rives
DN:cn=WilliamG. Rives,o=NYC
aw Department,ou=Tort Division,
®'ª us
P Date:f620.09.2112:13:46-04'00'
WILLIAM G. RIVES
Assistant Corporation Counsel
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Index No.: 15107/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
M W, an infant by his Mother and Natural Guardian, ULDEAN
LONDON, and ULDEAN LONDON, Individually.
PLAINTIFFS
-against-
THE CIY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF EDUCATION and THE NEW YORK
BOARD OF EDUCATION,
Defendants
NOTICE OF MOTION, AFFIRMATION IN SUPPORT, AND
EXHIBITS
JAMES E. JOHNSON
Corporation Counsel of the City of New York
Attorneys for Defendants
350 Jay Street, 8th Floor
Brooklyn, New York 11201
Of Counsel: William G. Rives
Tel.: (646) 581-8031
City File No.: 2013-042474
Due and timely service is hereby admitted.
Brooklyn, N.Y. ........................................... , 2019
........................................................................ Esq.
Attorney for ............................................................
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Preview
FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------- x AFFIRMATION IN M W, an infant by his Mother and Natural Guardian, SUPPORT OF MOTION TO ULDEAN LONDON, and ULDEAN LONDON, Individually. VACATE ORDER AND COMPEL DISCOVERY PLAINTIFFS -against- Index #: 015107/2013 THE CIY OF NEW YORK, NEW YORK CITY City File #: 2013-042474 DEPARTMENT OF EDUCATION and THE NEW YORK BOARD OF EDUCATION, Assigned Judge: Hon K. Levine Defendants ----------------------------------------------------------------------x IAS Part: 25 WILLIAM G. RIVES, an attorney admitted to practice in the State of New York and an Assistant Corporation Counsel in the office of JAMES E. JOHNSON, Corporation Counsel of the City of New York, the attorney of record for the City of New York affirms the truth of the following under the penalties of perjury pursuant to CPLR 2106, upon information and belief based upon the records maintained in this office: 1. This affirmation is submitted on behalf of the defendants THE CIY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION and THE NEW YORK BOARD OF EDUCATION (hereinafter “municipal defendants”), in support of their motion for an Order vacating CC order dated January 22, 2019 and compelling further discovery, pursuant to CPLR 3124. 2. This is an action to recover damages for personal injuries allegedly sustained by plaintiff MW, a minor at the time, (hereinafter “plaintiff”) in a slip and fall that occurred in a restroom on school premises on April 9, 2013 in the County of Kings, State of New York.” See Plaintiff’s Notice of Claim, annexed hereto as Exhibit A. Plaintiff alleges that the municipal 1 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 defendants were negligent in the care, custody, control, and supervision at the premises known as P.S. 375 located at 46 McKeever Place, Brooklyn, in Kings County, New York. 3. Plaintiff commenced this action by purchase of an index number on or about August 16, 2013, and subsequent service of a summons and complaint on or about September 5, 2013. Municipal defendants joined issue by service of an answer on September 25, 2013. The pleadings are annexed collectively hereto as Exhibit B. 4. Plaintiff served a Bill of Particulars on November 5, 2013, and a supplemental Bill of Particulars on April 23, 2015. Among the claims made in the bills of particulars, plaintiff alleges that the fall in the bathroom resulted in the exacerbation to an injury to his hip, which required surgery approximately one year prior to the trip and fall in the school restroom. Copies of the bills of particulars are annexed hereto as Exhibit C. 5. The parties entered into a Preliminary Conference order on January 27, 2014. A copy of the Preliminary Conference order is annexed hereto as Exhibit D. Plaintiff was required to provide “authorizations to obtain copies of the actual records of all treating and examining healt care providers … for injuries specified in the bill of particulars, within 90 days.” See Exhibit D at III. 6. At a compliance conference held January 22, 2019, the court ordered discovery complete upon the plaintiff’s appearance at an IME. Prior to signing the order, upon information and belief, counsel for defendants verbally requested an authorization for medical records from the infant plaintiff’s treating pediatrician, and was informed by plaintiff’s counsel that the plaintiff did not have a treating pediatrician. A copy of the compliance conference order is annexed hereto as Exhibit E. 2 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 7. Subsequently, defendants received and reviewed a copy of plaintiff’s insurance billing records. A review of the records shows that plaintiff did consult a pediatrician several times in the two year span the records included. The billing records for Affinity Health Plan are annexed hereto as Exhibit F. 8. On May 13, 2020, this office served a supplemental demand for authorizations for plaintiff’s pediatrician. A copy of the demand is annexed hereto as Exhibit G. 9. 1On June 26, plaintiff replied with a letter refusing to provide the authorizations. A copy of the refusal letter is annexed thereto as Exhibit H. 10. This office, on June 25, 2020 sent correspondence to plaintiff’s office again requesting the authorizations. Plaintiff has refused. A copy of the letter is annexed hereto as Exhibit I . ARGUMENT I. THE PORTION OF THE COMPLIANCE CONFERENCE ORDER OF JANUARY 22, 2019 CLOSING DISCOVERY SHOULD BE VACATED 11. CPLR 5105(a) reads in pertinent part: : Relief from judgment or order (a) On Motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: ........ 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party; or .......... 3 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 12. As alluded to above, it was only after the compliance conference of January 22, 2019 that defendants became aware of that plaintiff had consulted with a pediatrician. And then only through insurance billing records, and not through any disclosure by plaintiff. 13. Under these circumstances, it is well within the court’s discretion under CPLR 5105(a)(2) to vacate the portion of the compliance conference order which declares discovery closed. The production of an authorization will not prejudice plaintiff or significantly delay the proceeding See e.g. Eng v. Sichenzia,, 7 A.D.3d 754 (2nd Dep’t, 2004) (Supreme court providently exercised its discretion to vacate a prior order granting the plaintiffs' ex parte motion for an extension of time within which to serve a summons and complaint upon him where plaintiffs failed to advise the court that defendant had informed them that he wished to receive notice of any such motion for an extension and that he would vigorously oppose such a motion.) Braisted v Bullock, 133 A.D.2d 438 (2nd Dep’t 1987) (Court should have granted defendants’ motion to vacate default in light of meritorious defense, minimal delay, and lack of prejudice to plaintiff as result of delay.) 14. Here, the plaintiff’s consultation with a pediatrician was not discovered by defendants until after the compliance conference order had been issued. The issue of causation is disputed in this matter. The evidence available to defendants indicates that the infant plaintiff may have been suffering from a growth disorder, Blount’s Disease. If true it is possible that the infant plaintiff did not fall due to any negligence on the part of the defendants, but rather fell because the disorder. Denying defendants access to all the medical records related to plaintiff’s injury will severely hamper defendants ability to mount a defense at trial. 15. There is no direct evidence that plaintiffs’ counsel has engaged in “fraud, misrepresentation, or other misconduct” [CPLR 5105(a)(2)] in not disclosing the entire infant 4 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 plaintiff’s medical treatment related to the injury. It is entirely possible the client may have neglected to inform counsel. Nevertheless, now that there is evidence of a treating pediatrician, it is imperative that defendant be afforded the ability to mount a full and fair defense, II. PLAINTIFF SHOULD BE COMPELLED TO COMPLY WITH PRELIMINARY CONFERENCE ORDER DATED JANUARY 27, 2014 DESPITE THE COMPLIANCE CONFERENCE ORDER 16. Pursuant to CPLR 3101(a), “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof[.]” The Court of Appeals has explained that the words “material and necessary” should be construed liberally “to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. Allen v Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968). The test, according to the Court of Appeals, “is one of usefulness and reason.” Id. The purpose of disclosure is to ascertain the truth. “If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered ‘evidence material …in the prosecution or defense’” [citation omitted]. Allen, 21 N.Y.2d at 407, citing In re Genesee Valley Union Trust Co. of Rochester, 21 A.D.2d 843, 844 (4th Dep’t 1964). 17. Pursuant to the preliminary conference order dated January 27, 2014: “Plaintiff shall provide HIPAA compliant authorizations for copies of the actual records of treating and examining health care providers, including diagnostic tests, x-rays and MRIs, CT Scans for injuries specified in the Bill of Particulars within 90 days.” See Exhibit D, Section III. 18. During the course of discovery defendants received billing records from Affinity Health Plan (Exhibit F). According to the records the infant plaintiff was billed for visits to 5 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 Quality Pediatrics, P.C several times prior to the incident which resulted in this lawsuit. Furthermore, Affinity Health Plan was billed for consultations with Dr. Hadi M. Ahmad both before and after the incident. Dr. Ahmad is listed on the MD.com website as a pediatrician. See https://www.md.com/doctor/hadi-ahmad-md. 19. Whether plaintiffs’ counsel’s failure to adhere to the PC order and disclose a treating physician was intentional or an oversight, the omission of a treating physician’s records hampers defendants ability to formulate a proper defense. Defendants are asking for a HIPAA compliant authorization. The production of one will not be unduly burdensome on plaintiff, nor will it delay the proceedings in this matter. 20. Without the appropriate medical records, the municipal defendants cannot develop a proper defense to plaintiff’s claim of injuries. The municipal defendants will be severely prejudiced if forced to proceed to trialwithout all medical records relating plaintiff’s current and prior injuries. The absence of such critical disclosure undoubtedly establishes that the instant action is far from ready for trial. The City would be severely prejudiced if forced to defend this case at this juncture without said discovery. See Amoroso v. City of New York, 66 A.D.3d 618, 619 (2d Dept. 2009). 21. The municipal defendants have made a timely motion to vacate that portion of the compliance conference order that declares discovery closed, and to compel the production of a HIPAA compliant authorization for the records of the infant plaintiff’s pediatrician. To deny the motion would not be in the interest of the full disclosure of all matter material and necessary, as required by CPLR 3101(a) 6 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 WHEREFORE, it is respectfully requested that this Court grant the municipal defendants' motion in its entirety, and for such other and further relief as this Court deems just and proper. Dated: September 21, 2020 Brooklyn, New York * * W . Digitally signed by WilliamG.Rives DN:cn=WilliamG. Rives,o=NYC aw Department,ou=Tort Division, ®'ª us P Date:f620.09.2112:13:46-04'00' WILLIAM G. RIVES Assistant Corporation Counsel 7 of 8 FILED: KINGS COUNTY CLERK 09/21/2020 12:41 PM INDEX NO. 15107/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/21/2020 Index No.: 15107/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS M W, an infant by his Mother and Natural Guardian, ULDEAN LONDON, and ULDEAN LONDON, Individually. PLAINTIFFS -against- THE CIY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION and THE NEW YORK BOARD OF EDUCATION, Defendants NOTICE OF MOTION, AFFIRMATION IN SUPPORT, AND EXHIBITS JAMES E. JOHNSON Corporation Counsel of the City of New York Attorneys for Defendants 350 Jay Street, 8th Floor Brooklyn, New York 11201 Of Counsel: William G. Rives Tel.: (646) 581-8031 City File No.: 2013-042474 Due and timely service is hereby admitted. Brooklyn, N.Y. ........................................... , 2019 ........................................................................ Esq. Attorney for ............................................................ 8 of 8