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FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
TANYA MALLORY,
Index No. 452540/15
Plaintiff,
AFFIRMATION
-against- IN SUPPORT
THE CITY OF NEW YORK, CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., AND
VERIZON NEW YORK, INC., ROBINSON S.
KASSIEM AND JACOB A. RIVERS,
Defendants.
LESLIE LOPEZ, an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following to be true under the penalties of
perjury:
1. I am an associate attorney in the law offices of DESENA &
SWEENEY, LLP, attorneys of record for defendants, ROBINSON S. KASSIEM and
"defendants"
JACOB A. RIVERS, (hereinafter, the "defendants") and as such, am familiar with the
facts and circumstances of this action. The source of my knowledge and information
are the records maintained by your affirmant's office in the course of the defense of this
action.
defendants'
2. I submit this affirmation in support of motion for an
order pursuant to CPLR 3126 dismissing plaintiff's Complaint by reason of her willful
failure and refusal to furnish the defendants with discovery as directed in the
necessary
April 5, 2016 Case Scheduling Order, September 26, 2017 Amended Case Scheduling
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Order and Stipulation dated March 6, 2018, including appearing for her deposition and
to physical medical examinations.
submitting
3. This action arises from an accident which occurred at 40 East 86th
Street and 1st in New York of New on October 2013.
Avenue, City, County York, 02,
4. The plaintiff, TANYA MALLORY, commenced this suit against the
defendants ROBINSON S. KASSIEM and JACOB A. RIVERS by filing
a Summons and
Verified Complaint dated March 2014 in Supreme Court - Bronx
27, County bearing
index number 301883/14. A second Summons and Verified Complaint dated
December 31, 2014 stemming
from the same accident was filed by plaintiff against THE
CITY OF NEW YORK, ROBINSON S. KASSIEM and JACOB A. RIVERS, in Supreme
Court - Bronx index number 20005/2015. Plaintiff then filed a
County bearing
Supplemental Summons and Amended Verified Complaint dated March 9, 2015
against THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC., VERIZON NEW YORK, INC., ROBINSON S. KASSIEM and JACOB A.
in Supreme Court - Bronx under index number 20005/15. Plaintiff
RIVERS, County
institued yet another seprate action against CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC., and VERIZON NEW YORK, INC., on August 22, 2016 in
Supreme Court - New York index number 157104/2017. Copies of the
County bearing
aforementioned pleadings are collectively annexed hereto as Exhibit "A".
5. Defendants ROBINSON S. KASSIEM and JACOB A. RIVERS
appeared in the first action initiated plaintiff under Bronx County index number
by
301883/14 action service of a Verified Answer dated May 4, 2015 and again on
by May
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2015 to the Complaint instituted under Bronx index number 20005/15. Co-
4, County
defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and
VERIZON NEW YORK, INC., served their respective Answers to the Complaint
institued plaintiff in Supreme Court - New York index number
by County bearing
157104/16. Copies of the Verified Answers are collectively annexed hereto as Exhibit
II ll
g
6. Pursuant to motion practice, all matters were consolidated and
transferred from Bronx County to New York County bearing index number 452540/15.
"C"
Annexed hereto as Exhibit is the Court Order granting change of venue and
consolidation.
7. On April 5, 2017 and October 06, 2017 respectively, a Case
Scheduling Order and Amended Case Scheduling Order was entered into by the parties
directing plaintiff to provide all outstanding discovery within 45 days from the date of
said Orders and thereafter, appear for a deposition and post deposition physical
medical examinations. As of the date of this motion, none of the requested
discovery
has been provided and the deposition of plaintiff and post deposition physical medical
examinations have not been completed. A copy of the Case Scheduling Order and
Amended Case Scheduling Order are collectively annexed hereto as Exhibit "D".
8. Pursuant to the Stipulation dated March 6, 2018, plaintiff's
deposition was scheduled to proceed on May 14, 2018 and submit to physical medical
examinations within 45 days of said deposition. This stipulation further ordered
plaintiff to respond to the Amended Case Scheduling Order dated October 6, 2018. As
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of the date of this motion, plaintiff has been willfully and purposefully ignored this
Court's directives. A copy of the March 6, 2018 Stipulation is annexed hereto as Exhibit
II
Elf
9. On March 7, 2018, your affirmant's office received plaintiff's
purported Bill of Particulars dated February 15, 2018 which failed to particularize the
following items as demanded in defendants ROBINSON S. KASSIEM and JACOB A.
RIVERS's Demand for a Verified Bill of Particulars dated May 4, 2015:
3. Statement of the acts or omissions constituting the negligence
claimed as they allegedly relate to this defendant(s).
4. State by section and title, statutes, regulations, rules, ordinances
and any other laws it will be claimed were violated by this specific
defendant.
6. Length of time confined to: (1) hospital(s) giving name and
address of hospital(s), (2) bed, (3) house; (b) Length of time totally
disabled, (c) Length of time partially disabled.
7. State the occupation, employment or trade of the plaintiff(s)
setting forth: (a) name of employer(s); (b) address of employer(s); (c)
name of the plaintiff's direct supervisor; (d) the number of working
days incapacitated; (e) rate of pay and (f) total loss of earnings claimed.
8. Separately state amounts claimed as special damages for each of
the following, itemizing special damages for each provider: (a)
physician's services, (b) medical supplies, (c) hospital charges, (d) x-ray
expenses, (e) nurse's services, (f) loss of earnings, (g) other expenses
(itemized).
16. Set forth in what respect plaintiff(s) sustained a serious injury, as
defined in subdivision four of the Insurance Law, Section 5102(d).
17. Set forth in what respect plaintiff(s) sustained an economic loss
greater than basic economic loss, as defined subdivision one of the
Insurance Law, Section 5102(a).
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19. State the amounts of purported lien(s) or lawful
any lien(s)
against plaintiff's recovery, and if any are known to the plaintiff(s), state
the basis of said lien(s), the date(s) said lien(s) were established,
asserted, filed, and/or perfected and state the name(s) of any
lienholder(s) or purported lienholder(s).
20. State the basis for the claim that defendants are and
jointly
severally liable.
"F" defendants'
Collectively annexed hereto as Exhibit is Demand for a Verified Bill of
Particulars dated May 4, 2015 and plaintiff's purported Verified Bill of Particulars dated
February 15, 2018.
10. Plaintiff's purported Bill of Particulars and responses are
discovery
wholly unacceptable. The defendants have attempted to address the unresponsive
"3"
nature of plaintiff's Bill of Particulars at paragraph the allegations of
regarding
conduct"
"reckless referenced in the purported Bill of Particulars and allegations of
"negligence"
made in the Complaint. The Bill of Particulars does not in any way
differentiate between ordinary negligence and "reckless conduct". Moreover, "gross,
reckless"
culpable, criminal and are the equivalent of each other in the and
meaning
sense when applied to "negligence". Fundamentally, these descriptors or adjectives
"negligence" negligence" more..."
render or "ordinary Matter Jenson v.
something of
Fletcher, 303 N.Y. 639 (1951). As such, the plaintiff should be required to particularize
his differentiation of negligence and reckless conduct (or withdraw the language
completely).
"4"
11. At paragraph of plaintiff's purported Bill of Particulars
demanding plaintiff state by section and title, statutes, regulations, rules, ordinances
and other laws it will be claimed were violated these specific defendants,
any by
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plaintiff's purported Bill of Particulars recites miscellaneous Vehicle and Traffic Laws
but not limited to § 388, 1101, 1110, 1140, 1146, 1180, 1212, and 1126
"...including along
with all other applicable Statutes, Ordinances, Rules and Regulations that the Court will
take judicial notice of at the time of trial". There Courts have held, where plaintiff
alleges a statutory violation, the plaintiff will be required to the statutes, laws,
specify
rules or regulations claimed to have been violated (Smith v. Woodbury Farms & Realty
Corp., 265 App. Div. 885). The Court may, at its discretion, take judicial notice of the
contents of the statutory violations alleged; it ishowever, the plaintiff's to
responsibility
particularize them.
"6"
12. Paragraph of plaintiff's purported Bill of Particulars fails to
defendants'
provide any response to demand for the length of time plaintiff was
confined to bed stating same will "be provided under separate cover". As of the date of
this motion, plaintiff has yet to serve the defendants with the exact length of time
plaintiff was allegedly confined to her bed. It is well settled, the purpose of a Bill of
Particulars is to amplify the pleadings to amplify the pleadings, limit the proof and
prevent surprise at the trial. CPLR 3043 (a)(7) requires plaintiff in a personal
injury
action to the length of time confined to bed. Again, while the Court may, "at its
specify
discretion, limit the court in in a proper case, one or more of the
denying any
particulars...or in a proper case, in other further or different particulars", it
granting
remains plaintiff's obligation to the defendants to with the length
specify particularity
of time plaintiff was confined to her bed where the Complaint alleges
especially
plaintiff was rendered "...sick, sore, lame and disabled".
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"7"
13. At paragraph of plaintiff's purported Bill of Particulars
plaintiff provide the particulars of plaintiff's employment, plaintiff
demanding
indicates she was disabled from her employment as a Human Resources Administrator
defendants'
for "approximately two (2) months but objected to demand for the number
of days incapacitated, rate of pay and total loss of earnings claimed,
working opining
same was an improper demand for a Bill of Particulars. Moreover, where plaintiff is
lost earnings and inability to attend her usual occupation, defendants are
claiming
entitled to an unrestricted authorization to substantiate plaintiff's alleged disability and
total amounts claimed as loss of earnings, with name and address of the employer.
Plaintiff purposefully neglected to enclose an employment authorization despite
defendants'
best efforts.
"8"
14. Paragraph plaintiff's purported Bill of Particulars fails to
particularize the demand to separately state amounts claimed as special damages for
physician'
each of the following, itemizing special damages for each provider: (a) physician's
nurse'
services, (b) medical supplies, (c) hospital charges, (d) x-ray expenses, (e) nurse's
services, loss of earnings, (g) other expenses (itemized). It is defendant's contention
(f)
that in a personal injury action where plaintiff is claiming approximately $23,000 in
special damages, defendants are entitled to a computation as to how plaintiff arrived at
that conclusion. Further, in paragraph "17", plaintiff alleges loss in excess of basic
economic loss due to various medical facilities including "prescription drugs,
psychiatric, physical and occupational therapy and rehabilitation, and any other
services" services"
professional health but fails to identify what "other are. Defendants
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demanded plaintiff provide a Supplemental Bill of Particulars with a detailed statement
particularizing the exact dollar amount spent on medical services and "other". An
illustration of the lack of particulars is demonstrated in plaintiff's response to
paragraphs 8 and 17 of the defendant's demand for the particulars of plaintiff's
economic loss claim.
"16"
15. Plaintiff, at paragraph of the purported Bill of Particulars,
alleges prevention from "substantially all of the material acts which
performing
constitute such person's usual and customary daily activities". In a personal injury
life"
action, claims equivalent to "loss of enjoyment of places plaintiff's entire physical
condition in controversy, insofar as plaintiff have experienced other
especially may
medical problems before or since the accident thereby
potentially debilitating entitling
defendant to unrestricted authorizations. (See, Dibble v. Consolidated Rail Corp., supra; cf.,
Clark v. Pople, 244 AD2d 958.) Upon review of the authorizations provided in plaintiff's
Bill of Particulars, plaintiff not only failed to address the authorizations to
properly
defendants'
office, but counsel for plaintiff neglected to provide an authorization
for a release of pharmacy records to substantiate alleged out-of-pocket
allowing
expenses. Moreover, the authorization for Lenox Hill Hospital was restricted in time.
Defendants continue their demand new and unrestricted authorizations properly
addressed to DeSena & Sweeney, LLP at 1500 Lakeland Avenue, Bohemia, New York
11716.
"19"
16. The demand for lien information at paragraph requests
plaintiff "[p]rovide a response to our demand pursuant to Medicare/Medicaid
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Mandatory Reporting Law and Demand Pursuant for Disclosure as to
Medicare/SSDI/SSI and/or Medicaid Information and include all applicable
authorizations for plaintiff's Medicare, Medicaid, SSI, SSDI, disability, and Worker's
Compensation records. Plaintiff states: "[1]iens: are unknown at this time and will be
supplemented under separate cover. Defendants find it difficult to comprehend how
plaintiff - five years since the of the initial pleadings - is still unaware of
(5) filing any
liens against their client. Defendants remind plaintiff that Federal law "requires
Medicaid recipients to cooperate with the State in identifying, and
providing
information to assist the State in pursuing, any third party who may be liable to pay for
care and services available under the plan, unless good cause exists for the refusal to
cooperate."
See, Calvanese v. Calvanese, 93 N.Y.2d 111 (1999). Plaintiff therefore must
assert absolutely whether or not she was the recipient of any Federal health programs.
17. Plaintiff's purported Bill of Particulars does not particularize the
joint and several liabilities of each individual defendant as alleged in paragraph 65 of
the March 9, 2015 Amended Summons and Verified Complaint. In order to properly
defend this action, defendants ROBINSON S. KASSIEM and JACOB A. RIVERS are
entitled to a particularized statement as to how moving defendants were said to be
jointly and severally liable, especially insofar as such information can limit
significantly
defendants'
the exposure to their equitable share of fault.
18. On March 19, 2018, your affirmant's office sent correspondence to
plaintiff's counsel in a good faith attempt to cure the deficiencies in the Bill of
"3"
Particulars concerning paragraph for a statement of the acts or onussions
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the negligence claimed as they allegedly relate to this defendant(s);
constituting
"4"
paragraph demanding plaintiff state by section and title, statutes, regulations, rules,
ordinances and any other laws it will be claimed were violated by this specific
"6"
defendant; paragraph demanding plaintiff state the nature, location and extent of
"7"
claimed injuries; paragraph demanding plaintiff state the occupation, employment
or trade of the plaintiff(s) setting forth: (a) name of employer(s); (b) address of
employer(s); (c) name of the plaintiff's direct supervisor; (d) the number of
working
"8"
days incapacitated; (e) rate of pay and (f) total loss of earnings claimed; paragraph
plaintiff separately state amounts claimed as special damages for each of
demanding
the following, itemizing special damages for each provider: (a) physician's services, (b)
medical supplies, (c) hospital charges, (d) x-ray expenses, (e) nurse's services, (f) loss of
"16"
earnings, (g) other expenses (itemized); paragraph demanding plaintiff set forth in
what respect plaintiff(s) sustained a serious injury, as defined in subdivision four of the
"17"
Insurance Law, Section 5102(d); paragraph demanding plaintiff set forth in what
respect plaintiff(s) sustained an economic loss greater than basic economic loss, as
"19"
defined subdivision one of the Insurance Law, Section 5102(a); paragraph
plaintiff state the amounts of any purported lien(s) or lawful lien(s) against
demanding
plaintiff's recovery, and if any are known to the plaintiff(s), state the basis of said lien(s),
the date(s) said lien(s) were established, asserted, filed, and/or perfected and state the
"20"
name(s) of lienholder(s) or purported lienholder(s); and paragraph demanding
any
plaintiff state the basis for the claim that defendants are jointly and severally liable; as
well as properly
addressed unrestricted HIPAA authorizations allowing defendants to
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obtain plaintiff's pharmacy records, time and attendance records from her employer,
medical records from Lenox Hill Hospital, Dr. Emmanuel Hosten, Central Park Physical
Med and Rehab, and No-Fault File State Farm Insurance Company. To date, plaintiff
has willfully
failed and refused to timely comply with necessary discovery. A copy of
defendants'
good faith attempt is annexed hereto as Exhibit "G".
19. CPLR 3126(3) provides that an action can be dismissed based upon
a party's willful failure to obey an order for disclosure. See N.Y. CIV. PRAC. L. & R.
3126(3); see also Laverne v. hicorporated Village of Laurel Hollow, 18 N.Y.2d 635, 272
N.Y.S.2d 780 (1966), app'l dismissed, 386 U.S. 682 (1967) (holding that failure of plaintiff
to with prior Court Orders disclosure resulted in dismissal of
comply compelling
complaint); Kirkland v. Hospital of Brooklyn, hic., 187 A.D.2d 566,
Co171i71ll7lity
589 N.Y.S.2d 1006 (2d Dept. 1992) dismissal of complaint was proper where
(holding
plaintiff failed to comply with despite prior Court Orders). Additionally, the
discovery
in the above discovery has delayed plaintiff's deposition and post
delay providing
deposition physical medical examinations; defendants would be severely prejudiced
should this matter continue without the necessary discovery.
20. In the present action, plaintiff TANYA MALLORY has willfully
failed and refused to comply with the Case Scheduling Order dated April 5, 2016,
Amended Case Scheduling Order dated September 26, 2017 and Stipulation dated
March 6, 2018 by not providing defendants ROBINSON S. KASSIEM and JACOB A.
RIVERS with a Supplemental Bill of Particulars and properly addressed unrestricted
HIPAA authorizations, as well as failure to appear for a deposition and post deposition
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physical medical examinations. Therefore, it is requested that this Court strike the
plaintiff's Complaint for her failure to comply with the Court's Orders, or in the
alternative, compel plaintiff to comply with the Case Scheduling Order, Amended Case
Order and Stipulation by providing all the discovery outlined
Scheduling outstanding
in this motion as well as appearing for a deposition and post deposition physical
medical examinations, or be precluded from offering any evidence or testimony at trial.
21. No application for the relief sought herein has been made to this or
any Court.
WHEREFORE, defendant, ROBINSON S. KASSIEM and JACOB A.
RIVERS, respectfully request that this Court enter an Order pursuant to CPLR §3126(3),
striking the Complaint of plaintiff, TANYA MALLORY, on the grounds that plaintiff
has failed to provide a Supplemental Bill of Particulars and proper HIPAA
authorizations in compliance with the Case Order dated April 5, 2016,
Scheduling
Amended Case Scheduling Order dated September 26, 2017 and Stipulation dated
March 6, 2018, or in the alternative, plaintiff to comply with the above
compelling
Orders, or be precluded from offering any evidence at trial in support of her claims,
and/or for such other and further relief as to this Court seems just and proper.
~7
Dated: Bohemia, New York
June 12, 2018
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FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TANYA MALLORY, Index No. 452540/15 Plaintiff, AFFIRMATION -against- IN SUPPORT THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., AND VERIZON NEW YORK, INC., ROBINSON S. KASSIEM AND JACOB A. RIVERS, Defendants. LESLIE LOPEZ, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am an associate attorney in the law offices of DESENA & SWEENEY, LLP, attorneys of record for defendants, ROBINSON S. KASSIEM and "defendants" JACOB A. RIVERS, (hereinafter, the "defendants") and as such, am familiar with the facts and circumstances of this action. The source of my knowledge and information are the records maintained by your affirmant's office in the course of the defense of this action. defendants' 2. I submit this affirmation in support of motion for an order pursuant to CPLR 3126 dismissing plaintiff's Complaint by reason of her willful failure and refusal to furnish the defendants with discovery as directed in the necessary April 5, 2016 Case Scheduling Order, September 26, 2017 Amended Case Scheduling 1 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 Order and Stipulation dated March 6, 2018, including appearing for her deposition and to physical medical examinations. submitting 3. This action arises from an accident which occurred at 40 East 86th Street and 1st in New York of New on October 2013. Avenue, City, County York, 02, 4. The plaintiff, TANYA MALLORY, commenced this suit against the defendants ROBINSON S. KASSIEM and JACOB A. RIVERS by filing a Summons and Verified Complaint dated March 2014 in Supreme Court - Bronx 27, County bearing index number 301883/14. A second Summons and Verified Complaint dated December 31, 2014 stemming from the same accident was filed by plaintiff against THE CITY OF NEW YORK, ROBINSON S. KASSIEM and JACOB A. RIVERS, in Supreme Court - Bronx index number 20005/2015. Plaintiff then filed a County bearing Supplemental Summons and Amended Verified Complaint dated March 9, 2015 against THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., VERIZON NEW YORK, INC., ROBINSON S. KASSIEM and JACOB A. in Supreme Court - Bronx under index number 20005/15. Plaintiff RIVERS, County institued yet another seprate action against CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and VERIZON NEW YORK, INC., on August 22, 2016 in Supreme Court - New York index number 157104/2017. Copies of the County bearing aforementioned pleadings are collectively annexed hereto as Exhibit "A". 5. Defendants ROBINSON S. KASSIEM and JACOB A. RIVERS appeared in the first action initiated plaintiff under Bronx County index number by 301883/14 action service of a Verified Answer dated May 4, 2015 and again on by May 2 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 2015 to the Complaint instituted under Bronx index number 20005/15. Co- 4, County defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and VERIZON NEW YORK, INC., served their respective Answers to the Complaint institued plaintiff in Supreme Court - New York index number by County bearing 157104/16. Copies of the Verified Answers are collectively annexed hereto as Exhibit II ll g 6. Pursuant to motion practice, all matters were consolidated and transferred from Bronx County to New York County bearing index number 452540/15. "C" Annexed hereto as Exhibit is the Court Order granting change of venue and consolidation. 7. On April 5, 2017 and October 06, 2017 respectively, a Case Scheduling Order and Amended Case Scheduling Order was entered into by the parties directing plaintiff to provide all outstanding discovery within 45 days from the date of said Orders and thereafter, appear for a deposition and post deposition physical medical examinations. As of the date of this motion, none of the requested discovery has been provided and the deposition of plaintiff and post deposition physical medical examinations have not been completed. A copy of the Case Scheduling Order and Amended Case Scheduling Order are collectively annexed hereto as Exhibit "D". 8. Pursuant to the Stipulation dated March 6, 2018, plaintiff's deposition was scheduled to proceed on May 14, 2018 and submit to physical medical examinations within 45 days of said deposition. This stipulation further ordered plaintiff to respond to the Amended Case Scheduling Order dated October 6, 2018. As 3 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 of the date of this motion, plaintiff has been willfully and purposefully ignored this Court's directives. A copy of the March 6, 2018 Stipulation is annexed hereto as Exhibit II Elf 9. On March 7, 2018, your affirmant's office received plaintiff's purported Bill of Particulars dated February 15, 2018 which failed to particularize the following items as demanded in defendants ROBINSON S. KASSIEM and JACOB A. RIVERS's Demand for a Verified Bill of Particulars dated May 4, 2015: 3. Statement of the acts or omissions constituting the negligence claimed as they allegedly relate to this defendant(s). 4. State by section and title, statutes, regulations, rules, ordinances and any other laws it will be claimed were violated by this specific defendant. 6. Length of time confined to: (1) hospital(s) giving name and address of hospital(s), (2) bed, (3) house; (b) Length of time totally disabled, (c) Length of time partially disabled. 7. State the occupation, employment or trade of the plaintiff(s) setting forth: (a) name of employer(s); (b) address of employer(s); (c) name of the plaintiff's direct supervisor; (d) the number of working days incapacitated; (e) rate of pay and (f) total loss of earnings claimed. 8. Separately state amounts claimed as special damages for each of the following, itemizing special damages for each provider: (a) physician's services, (b) medical supplies, (c) hospital charges, (d) x-ray expenses, (e) nurse's services, (f) loss of earnings, (g) other expenses (itemized). 16. Set forth in what respect plaintiff(s) sustained a serious injury, as defined in subdivision four of the Insurance Law, Section 5102(d). 17. Set forth in what respect plaintiff(s) sustained an economic loss greater than basic economic loss, as defined subdivision one of the Insurance Law, Section 5102(a). 4 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 19. State the amounts of purported lien(s) or lawful any lien(s) against plaintiff's recovery, and if any are known to the plaintiff(s), state the basis of said lien(s), the date(s) said lien(s) were established, asserted, filed, and/or perfected and state the name(s) of any lienholder(s) or purported lienholder(s). 20. State the basis for the claim that defendants are and jointly severally liable. "F" defendants' Collectively annexed hereto as Exhibit is Demand for a Verified Bill of Particulars dated May 4, 2015 and plaintiff's purported Verified Bill of Particulars dated February 15, 2018. 10. Plaintiff's purported Bill of Particulars and responses are discovery wholly unacceptable. The defendants have attempted to address the unresponsive "3" nature of plaintiff's Bill of Particulars at paragraph the allegations of regarding conduct" "reckless referenced in the purported Bill of Particulars and allegations of "negligence" made in the Complaint. The Bill of Particulars does not in any way differentiate between ordinary negligence and "reckless conduct". Moreover, "gross, reckless" culpable, criminal and are the equivalent of each other in the and meaning sense when applied to "negligence". Fundamentally, these descriptors or adjectives "negligence" negligence" more..." render or "ordinary Matter Jenson v. something of Fletcher, 303 N.Y. 639 (1951). As such, the plaintiff should be required to particularize his differentiation of negligence and reckless conduct (or withdraw the language completely). "4" 11. At paragraph of plaintiff's purported Bill of Particulars demanding plaintiff state by section and title, statutes, regulations, rules, ordinances and other laws it will be claimed were violated these specific defendants, any by 5 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 plaintiff's purported Bill of Particulars recites miscellaneous Vehicle and Traffic Laws but not limited to § 388, 1101, 1110, 1140, 1146, 1180, 1212, and 1126 "...including along with all other applicable Statutes, Ordinances, Rules and Regulations that the Court will take judicial notice of at the time of trial". There Courts have held, where plaintiff alleges a statutory violation, the plaintiff will be required to the statutes, laws, specify rules or regulations claimed to have been violated (Smith v. Woodbury Farms & Realty Corp., 265 App. Div. 885). The Court may, at its discretion, take judicial notice of the contents of the statutory violations alleged; it ishowever, the plaintiff's to responsibility particularize them. "6" 12. Paragraph of plaintiff's purported Bill of Particulars fails to defendants' provide any response to demand for the length of time plaintiff was confined to bed stating same will "be provided under separate cover". As of the date of this motion, plaintiff has yet to serve the defendants with the exact length of time plaintiff was allegedly confined to her bed. It is well settled, the purpose of a Bill of Particulars is to amplify the pleadings to amplify the pleadings, limit the proof and prevent surprise at the trial. CPLR 3043 (a)(7) requires plaintiff in a personal injury action to the length of time confined to bed. Again, while the Court may, "at its specify discretion, limit the court in in a proper case, one or more of the denying any particulars...or in a proper case, in other further or different particulars", it granting remains plaintiff's obligation to the defendants to with the length specify particularity of time plaintiff was confined to her bed where the Complaint alleges especially plaintiff was rendered "...sick, sore, lame and disabled". 6 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 "7" 13. At paragraph of plaintiff's purported Bill of Particulars plaintiff provide the particulars of plaintiff's employment, plaintiff demanding indicates she was disabled from her employment as a Human Resources Administrator defendants' for "approximately two (2) months but objected to demand for the number of days incapacitated, rate of pay and total loss of earnings claimed, working opining same was an improper demand for a Bill of Particulars. Moreover, where plaintiff is lost earnings and inability to attend her usual occupation, defendants are claiming entitled to an unrestricted authorization to substantiate plaintiff's alleged disability and total amounts claimed as loss of earnings, with name and address of the employer. Plaintiff purposefully neglected to enclose an employment authorization despite defendants' best efforts. "8" 14. Paragraph plaintiff's purported Bill of Particulars fails to particularize the demand to separately state amounts claimed as special damages for physician' each of the following, itemizing special damages for each provider: (a) physician's nurse' services, (b) medical supplies, (c) hospital charges, (d) x-ray expenses, (e) nurse's services, loss of earnings, (g) other expenses (itemized). It is defendant's contention (f) that in a personal injury action where plaintiff is claiming approximately $23,000 in special damages, defendants are entitled to a computation as to how plaintiff arrived at that conclusion. Further, in paragraph "17", plaintiff alleges loss in excess of basic economic loss due to various medical facilities including "prescription drugs, psychiatric, physical and occupational therapy and rehabilitation, and any other services" services" professional health but fails to identify what "other are. Defendants 7 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 demanded plaintiff provide a Supplemental Bill of Particulars with a detailed statement particularizing the exact dollar amount spent on medical services and "other". An illustration of the lack of particulars is demonstrated in plaintiff's response to paragraphs 8 and 17 of the defendant's demand for the particulars of plaintiff's economic loss claim. "16" 15. Plaintiff, at paragraph of the purported Bill of Particulars, alleges prevention from "substantially all of the material acts which performing constitute such person's usual and customary daily activities". In a personal injury life" action, claims equivalent to "loss of enjoyment of places plaintiff's entire physical condition in controversy, insofar as plaintiff have experienced other especially may medical problems before or since the accident thereby potentially debilitating entitling defendant to unrestricted authorizations. (See, Dibble v. Consolidated Rail Corp., supra; cf., Clark v. Pople, 244 AD2d 958.) Upon review of the authorizations provided in plaintiff's Bill of Particulars, plaintiff not only failed to address the authorizations to properly defendants' office, but counsel for plaintiff neglected to provide an authorization for a release of pharmacy records to substantiate alleged out-of-pocket allowing expenses. Moreover, the authorization for Lenox Hill Hospital was restricted in time. Defendants continue their demand new and unrestricted authorizations properly addressed to DeSena & Sweeney, LLP at 1500 Lakeland Avenue, Bohemia, New York 11716. "19" 16. The demand for lien information at paragraph requests plaintiff "[p]rovide a response to our demand pursuant to Medicare/Medicaid 8 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 Mandatory Reporting Law and Demand Pursuant for Disclosure as to Medicare/SSDI/SSI and/or Medicaid Information and include all applicable authorizations for plaintiff's Medicare, Medicaid, SSI, SSDI, disability, and Worker's Compensation records. Plaintiff states: "[1]iens: are unknown at this time and will be supplemented under separate cover. Defendants find it difficult to comprehend how plaintiff - five years since the of the initial pleadings - is still unaware of (5) filing any liens against their client. Defendants remind plaintiff that Federal law "requires Medicaid recipients to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan, unless good cause exists for the refusal to cooperate." See, Calvanese v. Calvanese, 93 N.Y.2d 111 (1999). Plaintiff therefore must assert absolutely whether or not she was the recipient of any Federal health programs. 17. Plaintiff's purported Bill of Particulars does not particularize the joint and several liabilities of each individual defendant as alleged in paragraph 65 of the March 9, 2015 Amended Summons and Verified Complaint. In order to properly defend this action, defendants ROBINSON S. KASSIEM and JACOB A. RIVERS are entitled to a particularized statement as to how moving defendants were said to be jointly and severally liable, especially insofar as such information can limit significantly defendants' the exposure to their equitable share of fault. 18. On March 19, 2018, your affirmant's office sent correspondence to plaintiff's counsel in a good faith attempt to cure the deficiencies in the Bill of "3" Particulars concerning paragraph for a statement of the acts or onussions 9 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 the negligence claimed as they allegedly relate to this defendant(s); constituting "4" paragraph demanding plaintiff state by section and title, statutes, regulations, rules, ordinances and any other laws it will be claimed were violated by this specific "6" defendant; paragraph demanding plaintiff state the nature, location and extent of "7" claimed injuries; paragraph demanding plaintiff state the occupation, employment or trade of the plaintiff(s) setting forth: (a) name of employer(s); (b) address of employer(s); (c) name of the plaintiff's direct supervisor; (d) the number of working "8" days incapacitated; (e) rate of pay and (f) total loss of earnings claimed; paragraph plaintiff separately state amounts claimed as special damages for each of demanding the following, itemizing special damages for each provider: (a) physician's services, (b) medical supplies, (c) hospital charges, (d) x-ray expenses, (e) nurse's services, (f) loss of "16" earnings, (g) other expenses (itemized); paragraph demanding plaintiff set forth in what respect plaintiff(s) sustained a serious injury, as defined in subdivision four of the "17" Insurance Law, Section 5102(d); paragraph demanding plaintiff set forth in what respect plaintiff(s) sustained an economic loss greater than basic economic loss, as "19" defined subdivision one of the Insurance Law, Section 5102(a); paragraph plaintiff state the amounts of any purported lien(s) or lawful lien(s) against demanding plaintiff's recovery, and if any are known to the plaintiff(s), state the basis of said lien(s), the date(s) said lien(s) were established, asserted, filed, and/or perfected and state the "20" name(s) of lienholder(s) or purported lienholder(s); and paragraph demanding any plaintiff state the basis for the claim that defendants are jointly and severally liable; as well as properly addressed unrestricted HIPAA authorizations allowing defendants to 10 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 obtain plaintiff's pharmacy records, time and attendance records from her employer, medical records from Lenox Hill Hospital, Dr. Emmanuel Hosten, Central Park Physical Med and Rehab, and No-Fault File State Farm Insurance Company. To date, plaintiff has willfully failed and refused to timely comply with necessary discovery. A copy of defendants' good faith attempt is annexed hereto as Exhibit "G". 19. CPLR 3126(3) provides that an action can be dismissed based upon a party's willful failure to obey an order for disclosure. See N.Y. CIV. PRAC. L. & R. 3126(3); see also Laverne v. hicorporated Village of Laurel Hollow, 18 N.Y.2d 635, 272 N.Y.S.2d 780 (1966), app'l dismissed, 386 U.S. 682 (1967) (holding that failure of plaintiff to with prior Court Orders disclosure resulted in dismissal of comply compelling complaint); Kirkland v. Hospital of Brooklyn, hic., 187 A.D.2d 566, Co171i71ll7lity 589 N.Y.S.2d 1006 (2d Dept. 1992) dismissal of complaint was proper where (holding plaintiff failed to comply with despite prior Court Orders). Additionally, the discovery in the above discovery has delayed plaintiff's deposition and post delay providing deposition physical medical examinations; defendants would be severely prejudiced should this matter continue without the necessary discovery. 20. In the present action, plaintiff TANYA MALLORY has willfully failed and refused to comply with the Case Scheduling Order dated April 5, 2016, Amended Case Scheduling Order dated September 26, 2017 and Stipulation dated March 6, 2018 by not providing defendants ROBINSON S. KASSIEM and JACOB A. RIVERS with a Supplemental Bill of Particulars and properly addressed unrestricted HIPAA authorizations, as well as failure to appear for a deposition and post deposition 11 of 12 FILED: NEW YORK COUNTY CLERK 06/13/2018 03:03 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/13/2018 physical medical examinations. Therefore, it is requested that this Court strike the plaintiff's Complaint for her failure to comply with the Court's Orders, or in the alternative, compel plaintiff to comply with the Case Scheduling Order, Amended Case Order and Stipulation by providing all the discovery outlined Scheduling outstanding in this motion as well as appearing for a deposition and post deposition physical medical examinations, or be precluded from offering any evidence or testimony at trial. 21. No application for the relief sought herein has been made to this or any Court. WHEREFORE, defendant, ROBINSON S. KASSIEM and JACOB A. RIVERS, respectfully request that this Court enter an Order pursuant to CPLR §3126(3), striking the Complaint of plaintiff, TANYA MALLORY, on the grounds that plaintiff has failed to provide a Supplemental Bill of Particulars and proper HIPAA authorizations in compliance with the Case Order dated April 5, 2016, Scheduling Amended Case Scheduling Order dated September 26, 2017 and Stipulation dated March 6, 2018, or in the alternative, plaintiff to comply with the above compelling Orders, or be precluded from offering any evidence at trial in support of her claims, and/or for such other and further relief as to this Court seems just and proper. ~7 Dated: Bohemia, New York June 12, 2018 12 of 12