Preview
FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------------------------------------------------------X
MICHELE SEARLES, Index No.: 603342/2016
Plaintiff,
NOTICE OF MOTION
-against-
SHELLY J.
.1. EPSTEIN, M.D., SUZANNE L. TUNZEL,
M.D., NORTH SHORE PSYCHIATRIC
CONSULTANTS, P.C. and ST. CATHERINE OF
SIENA MEDICAL CENTER,
Defendants.
___________________________________________________--------------X
S I R S :
Pl EASE TAKE NOTICE, that upon the annexed affirmation of Jaclyn A. Martini, sworn
27th
to the day of March, 2018, and the pleadings and proceedings heretofore had herein, the
undersigned will move this Court before lion. Robert F. Quinlan at the Supreme Court, Suffolk
190' o'
County, 1 Court Street, Riverhead, New York, on the day of April, 2018 at 9:30 clock in
the forenoon of that day or as soon thereafter as counsel can be heard for an Order:
1) Pursuant to 22 NYCRR 202.27(b) based on plaintiff's failure to comply with the
Court orders directing her to appear by counsel or proceed pro-se;
2) Permitting defendant, Shelley Epstein, M.D., to enter judgment against the plaintiff;
3) and for such other and further relief as this Court may deem just and proper.
PLEASE TAKE FURTH ER NOTICE, that you are required to serve answering affidavits
seven days before the date set for the hearing of this motion (12 days if by mail) or be precluded
from offering opposition hereto.
Dated: Mineola, New York
March 27„2018
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FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018
BARTL TT LLP
By:
J LYN A. MARTINI
Attorneys or Defendants
SHELLEY J. EPSTElN, M.D.
170 Old Country Road, Suite 400
Mineola, New York 11501
(516) 877-2900
TO:
Bower Law, P.C.
Attorneys for Defendant
ST. CATHERINE OF SIENA
MEDICAL CENTER
1220 RXR Plaza
Uniondale, NY 11556
Gordon & Silber, P.C.
Attorneys for Defendant
SUZANNI-.,'
SUZANNE L. TUZEL, M.D.
355 Lexington Avenue
New York, NY 10017
Smith, Sovik, Kendrick & Sugnet, P.C.
Attorneys for Defendant
NORTH SHORE PSYCHIATRIC CONSULTANTS, P.C.
90 Merrick Avenue, Suite 502
East Meadow, NY 11554
Michele Searles
775 Plantation Drive, Unit 22
Little River, SC 29566
(Via First Class Mail and
Certified Mail Return Receipt Requested)
2
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FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------------------------------------------------------X
MICHELE SEARLES, Index No.: .603342/2016
603342/2016
Plaintiff,
SUPPOR'I'
AFFIRMATION IN SUPPORT
-against- OF MOTION
SHELLY J. EPSTEIN, M.D., SUZANNE L. TUNZEL,
M.D., NORTH SHORE PSYCHIATRIC
CONSULTANTS, P.C. and ST. CATHERINE OF
SIENA MEDICAL CENTER,
Defendants.
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JACLYN A. MARTINI, an attorney duly admitted to practice in the State of New York,
affirms under the penaltics of perjury that I am associated with Bartlett LLP, the attorneys for
defendant, SHELLEY J. EPSTEIN, and I am fully familiar with this action.
1. This affirmation is respectfully submitted in support of your affirmant's motion seeking
an Order dismissing this action with prejudice: 1) Pursuant to 22 NYCRR 202.27(b) based on
plaintiff's failure to comply with the court orders directing her to appear by counsel or proceed
pro-se; 2) permitting defendant, SHELLEY EPSTEIN, M.D. to enter judgment against the
plaintiff; and for such other and further relief as this Court may deem just and proper.
2. This action was commenced with the filing of a Summons and Notice on March 2,
2016. Thereafter, a Complaint was filed on April 1, 2016. Defendant, SHELLEY J. EPSTEIN,
interposed an Answer on April 19, 2016. A preliminary conference was held on August 31, 2016.
The deposition of the plaintiff was then completed on April 18, 2017.
3. Shortly after, on August 14, 2017, counsel representing the plaintiff at that time,
KAYE and LENCHNER. moved by Order to Shov, Cause to be relieved as counsel. The court
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FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018
issued an order on December 5, 2017 granting KAYE and LENCHNER leave to withdraw as
counsel. In addition, that court order stayed the action for (30) days following service of notice
to appoint a new attorney pursuant to CPLR 321 (c) by defendant upon plaintiff. This order also
required plaintiff or an attorney on behalf of the plaintiff to appear for a compliance conference
on March 12, 2018. (Exhibit "A"). The order with Notice of Entry was served upon all parties
on December 8, 2017. (Exhibit "B") Your affirmant then served a Notice pursuant to CPLR
321 upon Ms. Searles on December 14, 2017. (Exhibit "C") Ms. Scarles was served with both
the Order and the Notice pursuant to CPLR 321 by regular and certified mail.
4. On March 13, 2018, defense counsel appeared before Honorable Robert F. Quinlan
for a compliance conference on this matter, as required by the recent order. Ms. Scarles not only
failed to appear but did not advise the court or any of the defendants of her intentions with regard
aL Tll ' a'JX'' ' J' s ' 1~ l'd w J
to this case. Plaintiff is in direct violation of the court order.
5. The court scheduled a further compliance conference for April 19, 2018. The
parties were informed that the court would accept the plaintiff's failure to comply with the court's
directives as grounds for a motion to dismiss.
6. Section 202.27 of the Uniform Rules for the Trial Courts provides:
"
at any scheduled call of a calendar or at any conference, if all parties do not appear
and proceed or announce their readiness to proceed immediately or subject to the
engagement of counsel, the judge may note the default on the record and enter an order
as follows: ..... (b) If the defendant appears but the plaintiff does not, the judge may
cross-claims."
disn>iss
dismiss thc action and may order severance
a seve@ace of counterclaims or
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FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018
plaintifI'
7. In this case, plaintiff is in default of the December 5, 2017 Court Order which
required her to proceed by retaining new counsel or appearing pro-se. Ms. Searles not only failed
to appear but did not advise the court or any of the defendants of her intentions with regard to this
case.
ol'
8. Due to the plaintiff s disregard of the court's directive to appear for conference,
and failure to communicate with the defendants and the court, this action warrants dismissal of the
complaint with prejudice pursuant to 22 NYCRR 202.27 b.
WHEREFORE, your affirmant respectfully requests that the within motion be granted in
its entirely, and for such other and further relief as this Court may deem just and proper.
Dated: Mineola, New York
March 27, 2018
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FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK Index No.: 603342/2016
MICHELE SEARLES,
Plaintiff,
-against-
SHELLY J. EPSTEIN, M.D., SUZANNE L. TUNZEL, M.D., NORTH SHORE
PSYCHIATRIC CONSULTANTS, P.C. and ST. CATHERINE OF SIENA MEDICAL
CENTER.,
Defendants.
NOTICE OF MOTION; AFFIRMATION IN SUPPORT
& EXHIBITS
BARTLETT LLP
Attorneys for Defendant
SHELLEY J. EPSTEIN, M.D.
Office & P.O. Address
170 Old Country Road
Mineola, New York 11501
Tel: (516) 877-2900
Bartlett File No.: 900.0012
Pursuant to 22 NYCRR §l30-1.1-a, the undersigned certifies that, to the best of my knowledge,
information and belief, formed after an inquiry reasonable under the circumstances. the
presentation of these papers or the contentions therein are not frivolous as defined in §130-1.l(c).
Dated: March 27, 2018 By: f4eaf e A 7&vetùw
JACLYN A. MARTINI, ESQ.
TO: ALL PARTIES
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Preview
FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X MICHELE SEARLES, Index No.: 603342/2016 Plaintiff, NOTICE OF MOTION -against- SHELLY J. .1. EPSTEIN, M.D., SUZANNE L. TUNZEL, M.D., NORTH SHORE PSYCHIATRIC CONSULTANTS, P.C. and ST. CATHERINE OF SIENA MEDICAL CENTER, Defendants. ___________________________________________________--------------X S I R S : Pl EASE TAKE NOTICE, that upon the annexed affirmation of Jaclyn A. Martini, sworn 27th to the day of March, 2018, and the pleadings and proceedings heretofore had herein, the undersigned will move this Court before lion. Robert F. Quinlan at the Supreme Court, Suffolk 190' o' County, 1 Court Street, Riverhead, New York, on the day of April, 2018 at 9:30 clock in the forenoon of that day or as soon thereafter as counsel can be heard for an Order: 1) Pursuant to 22 NYCRR 202.27(b) based on plaintiff's failure to comply with the Court orders directing her to appear by counsel or proceed pro-se; 2) Permitting defendant, Shelley Epstein, M.D., to enter judgment against the plaintiff; 3) and for such other and further relief as this Court may deem just and proper. PLEASE TAKE FURTH ER NOTICE, that you are required to serve answering affidavits seven days before the date set for the hearing of this motion (12 days if by mail) or be precluded from offering opposition hereto. Dated: Mineola, New York March 27„2018 1 of 6 FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018 BARTL TT LLP By: J LYN A. MARTINI Attorneys or Defendants SHELLEY J. EPSTElN, M.D. 170 Old Country Road, Suite 400 Mineola, New York 11501 (516) 877-2900 TO: Bower Law, P.C. Attorneys for Defendant ST. CATHERINE OF SIENA MEDICAL CENTER 1220 RXR Plaza Uniondale, NY 11556 Gordon & Silber, P.C. Attorneys for Defendant SUZANNI-.,' SUZANNE L. TUZEL, M.D. 355 Lexington Avenue New York, NY 10017 Smith, Sovik, Kendrick & Sugnet, P.C. Attorneys for Defendant NORTH SHORE PSYCHIATRIC CONSULTANTS, P.C. 90 Merrick Avenue, Suite 502 East Meadow, NY 11554 Michele Searles 775 Plantation Drive, Unit 22 Little River, SC 29566 (Via First Class Mail and Certified Mail Return Receipt Requested) 2 2 of 6 FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X MICHELE SEARLES, Index No.: .603342/2016 603342/2016 Plaintiff, SUPPOR'I' AFFIRMATION IN SUPPORT -against- OF MOTION SHELLY J. EPSTEIN, M.D., SUZANNE L. TUNZEL, M.D., NORTH SHORE PSYCHIATRIC CONSULTANTS, P.C. and ST. CATHERINE OF SIENA MEDICAL CENTER, Defendants. ---------------------------------------------------------------------X JACLYN A. MARTINI, an attorney duly admitted to practice in the State of New York, affirms under the penaltics of perjury that I am associated with Bartlett LLP, the attorneys for defendant, SHELLEY J. EPSTEIN, and I am fully familiar with this action. 1. This affirmation is respectfully submitted in support of your affirmant's motion seeking an Order dismissing this action with prejudice: 1) Pursuant to 22 NYCRR 202.27(b) based on plaintiff's failure to comply with the court orders directing her to appear by counsel or proceed pro-se; 2) permitting defendant, SHELLEY EPSTEIN, M.D. to enter judgment against the plaintiff; and for such other and further relief as this Court may deem just and proper. 2. This action was commenced with the filing of a Summons and Notice on March 2, 2016. Thereafter, a Complaint was filed on April 1, 2016. Defendant, SHELLEY J. EPSTEIN, interposed an Answer on April 19, 2016. A preliminary conference was held on August 31, 2016. The deposition of the plaintiff was then completed on April 18, 2017. 3. Shortly after, on August 14, 2017, counsel representing the plaintiff at that time, KAYE and LENCHNER. moved by Order to Shov, Cause to be relieved as counsel. The court 3 of 6 FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018 issued an order on December 5, 2017 granting KAYE and LENCHNER leave to withdraw as counsel. In addition, that court order stayed the action for (30) days following service of notice to appoint a new attorney pursuant to CPLR 321 (c) by defendant upon plaintiff. This order also required plaintiff or an attorney on behalf of the plaintiff to appear for a compliance conference on March 12, 2018. (Exhibit "A"). The order with Notice of Entry was served upon all parties on December 8, 2017. (Exhibit "B") Your affirmant then served a Notice pursuant to CPLR 321 upon Ms. Searles on December 14, 2017. (Exhibit "C") Ms. Scarles was served with both the Order and the Notice pursuant to CPLR 321 by regular and certified mail. 4. On March 13, 2018, defense counsel appeared before Honorable Robert F. Quinlan for a compliance conference on this matter, as required by the recent order. Ms. Scarles not only failed to appear but did not advise the court or any of the defendants of her intentions with regard aL Tll ' a'JX'' ' J' s ' 1~ l'd w J to this case. Plaintiff is in direct violation of the court order. 5. The court scheduled a further compliance conference for April 19, 2018. The parties were informed that the court would accept the plaintiff's failure to comply with the court's directives as grounds for a motion to dismiss. 6. Section 202.27 of the Uniform Rules for the Trial Courts provides: " at any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows: ..... (b) If the defendant appears but the plaintiff does not, the judge may cross-claims." disn>iss dismiss thc action and may order severance a seve@ace of counterclaims or 4 of 6 FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018 plaintifI' 7. In this case, plaintiff is in default of the December 5, 2017 Court Order which required her to proceed by retaining new counsel or appearing pro-se. Ms. Searles not only failed to appear but did not advise the court or any of the defendants of her intentions with regard to this case. ol' 8. Due to the plaintiff s disregard of the court's directive to appear for conference, and failure to communicate with the defendants and the court, this action warrants dismissal of the complaint with prejudice pursuant to 22 NYCRR 202.27 b. WHEREFORE, your affirmant respectfully requests that the within motion be granted in its entirely, and for such other and further relief as this Court may deem just and proper. Dated: Mineola, New York March 27, 2018 5 of 6 FILED: SUFFOLK COUNTY CLERK 03/27/2018 12:05 PM INDEX NO. 603342/2016 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No.: 603342/2016 MICHELE SEARLES, Plaintiff, -against- SHELLY J. EPSTEIN, M.D., SUZANNE L. TUNZEL, M.D., NORTH SHORE PSYCHIATRIC CONSULTANTS, P.C. and ST. CATHERINE OF SIENA MEDICAL CENTER., Defendants. NOTICE OF MOTION; AFFIRMATION IN SUPPORT & EXHIBITS BARTLETT LLP Attorneys for Defendant SHELLEY J. EPSTEIN, M.D. Office & P.O. Address 170 Old Country Road Mineola, New York 11501 Tel: (516) 877-2900 Bartlett File No.: 900.0012 Pursuant to 22 NYCRR §l30-1.1-a, the undersigned certifies that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances. the presentation of these papers or the contentions therein are not frivolous as defined in §130-1.l(c). Dated: March 27, 2018 By: f4eaf e A 7&vetùw JACLYN A. MARTINI, ESQ. TO: ALL PARTIES 6 of 6