Motion for Writ in Dino Bonavita v. Syed Mujahid Sayeed Md, Precision Surgery Of New York, Pc, North Shore University Hospital, Northwell Health| Trellis.Law

On August 24, 2018 a Motion-Secondary was filed involving a dispute between Dino Bonavita, and North Shore University Hospital, Northwell Health, Precision Surgery Of New York, Pc, Syed Mujahid Sayeed Md, for Torts - Medical, Dental, or Podiatrist Malpractice in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 08/20/2021 03:36 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 08/20/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------------------------------------- -----X

DINO BONAVITA,

Plaintiffs, AFFIRMATION IN
SUPPORT
-against-

Index No.:
SYED MUJAHID SAYEED, M.D., PRECISION 611506/2018

SURGERY OF NEW YORK, P.C., NORTH SHORE
UNIVERSITY HOSPITAL, and NORTHWELL HEALTH,

Defendants.
-X

Arjeta Albani, an attorney duly admitted to practice before the Courts of the State of New

York, affirms the following to be true under penalties of perjuly:

1. I am associated with the law offices of CAITLIN ROBIN & ASSOCIATES, PLLC,

attorneys for DINO BONAVITA in connection with the above-referenced matter, and, as such, I

am fully familiar with the facts and circumstances surrounding this case through a file maintained

by my office.

2. This affirmation is submitted in support of plaintiff's motion for an Order pursuant

to CPLR § 3216 striking Defendants SYED MUJAHID SAYEED, M.D., and PRECISION

SURGERY OF NEW YORK, P.C.,'s Answers for failure to provide a supplemental response to

Plaintiff's Post-Deposition Demands, striking Defeñdañts SYED MUJAHID SAYEED, M.D., and

PRECISION SURGERY OF NEW YORK, P.C.,'s Answers for failure to notice and IME or confirm

the IME is waived, and for such other and further relief as this Court deems just and proper.

3. This is an action alleging that Defendants caused various personal injuries by

deviating from the good and accepted standards of medical practice in their care, treatment, testing,

and surgical services rendered to the Plaintiff. (See Summons and Complaint annexed hereto as

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Exhibit "A"). Defendants SYED MUJAHID SAYEED, M.D., and PRECISION SURGERY OF

NEW YORK, P.C., appeared by serving Answers on September 28, 2018. (See Answers annexed

hereto as Exhibit "B").

DEFENDANTS' TO
ANSWERS SHOULD BE STRICKEN FOR FAILURE PROVIDE
DISCOVERY

4. It is well settled that "where a party disobeys a court order, and by his [or her]

conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within

the broad discretion of the trial court". Castrignano v. Flynn. 255 A.D.2d 352, 353, 679 N.Y.S.2d

674; see CPLR 3126(3); Ranfort v. Peak Tours, 250 A.D.2d 747, 672 N.Y.S.2d 918; Frias v.

Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 4351 Iiubacka v. Town of N. Hempstead, 240 A.D.2d

374. 657 N.Y.S.2d 770.

5. On September 23, 2020, Defendant Syed Mujahid Sayeed, M.D. had his

examination before trialheld virtually via Zoom. (See Defendant's Deposition Transcript annexed

hereto as Exhibit "C"). On that same day, Plaintiff served a Post-Deposition Notice for Discovery

& Inspection and Post-Deposition Demands. (See Plaintiff's Post-Deposition Notice for Discovery

& Inspection and Post-Deposition Demands annexed hereto as Exhibit "D").

6. On October 29, 2020, Plaintiff made a good-faith attempt by lettercorrespondence

to obtain the requested discovery. (See Plaintiff's good faith correspondence annexed hereto as

Exhibit "E"). Defendants served their Partial Response to Plaintiff's Post Deposition Demands

on November 10, 2020. (See Defendants Partial Response to Plaintiff's Post-Deposition Demands

Defendants'
annexed hereto as Exhibit "F"). responses indicate that a search was being conducted

for the following items that would be provided under separate cover: (a) copy of the April 10, 2018

letter from the insurance company referenced in Dr. Sayeed's letter; (b) names and employment

status, and ifno longer employed, last known address, of all billers and coders involved in the

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billing of Dino Bonavita's account; (c) any and allemails from Dr. Sayeed and Precision Surgery

ofNew York, P.C. to Dr. Greenberg; and (d) any and all emails sent from Dr. Sayeed and Precision

Surgery of New York P.C. to any radiologist who performed imaging of Dino Bonavita. (See

Exhibit "F"). The Plaintiff's post deposition demands were directly relevant to the Plaintiff's

allegations and were requested based on the deposition testimony of Dr. Sayeed. The Defendants

SYED MUJAHID SAYEED, M.D., and PRECISION SURGERY OF NEW YORK, P.C. have

stillnot provided a supplemental response nearly a year after serving its initial response.

7. On January 7, 2021, Plaintiff sent a letter seeking responses to the discovery

demands. (See Plaintiff's good faith correspondence annexed hereto as Exhibit "G").

8. On January 23, 2021 a conference was held with the Court in which the outstanding

discovery items were discussed and the Court directed the parties to exchange outstanding

discovery and that Defendants were to notice a doctor to perform Plaintiff's IME or confirm that

same is waived. The Court also indicated that a certification conference would be held in April

2021.

9. Defendants failed to provide a supplemental response and failed to either notice an

IME or confirm that same is waived.

10. On April 15, 2021, a virtual conference was held on the case, however Defendants

SYED MUJAHID SAYEED, M.D., and PRECISION SURGERY OF NEW YORK, P.C. counsel

did not appear. The conference was held and Plaintiff sent an email memorializing the conference

and again requesting the outstanding discovery and whether the Defendants intended to notice an

IME. (See Email Correspondence dated April 15, 2021 annexed hereto as Exhibit "H").

11. On June 10, 2021, Plaintiff made yet another good-faith attempt by email and letter

correspondence to obtain the outstanding supplemental response to discovery and confirmation

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that the IME is waived since a notice of IME had yet to be received. (See Plaintiff's email

correspondence annexed hereto as Exhibit "I"; see also Plaintiff's letter correspondence annexed

hereto as Exhibit "J").

12. Plaintiff sent letter correspondence dated June 23, 2021 notifying Defendants that

to date that a physical examination has not been completed on our client and requested, yet again,

that Defendants the outstanding requested discovery. (See Plaintiff's letter correspondence

annexed hereto as Exhibit "K").

13. On or about August 10, 2021 at 11:00 AM, the undersigned made a telephone call

with Deborah Dyclanan from Dorf & LLP. Here Plaintiff made their final good-
attorney Nelson,

faith attempt to obtain the outstanding requested discovery.

14. Plaintiff has made several good faith attempts to obtain complete responses to our

Post-Deposition Demands. Good faith letters for outstanding discovery were served, along with

emails and a phone call.

15. To date Defendants have failed to provide complete and supplemented responses

to Plaintiff's Post-Deposition Demands despite Plaintiff's good faith attempt to obtain the

following discovery:

(a) Copy of the April 10, 2018 letterfrom the insurance company referenced in Dr.

Sayeed's letter;

(b) Names and employment status, and if no longer employed, lastknown address

of all billers and coders involved in the billing of Plaintiff's account;

P.C. to Dr. Greenberg;

(d) Any and all emails sent from Dr. Sayeed and Precisions Surgery of New York

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P.C. to any radiologist who performed imaging on the Plaintiff; and

(e) Notice as to Defendants position on conducting an independent medical

examination on the Plaintiff.

Defendants'
16. failure to comply, and/or provide complete responses to Plaintiff's

outstanding discovery demands, necessitated the instant motion.

17. The sanctions for non-disclosure are provided by C.P.L.R. Section 3126, which

state in pertinent part: "If any party........refuses to obey an Order for disclosure or willfully fails

to disclose information which the court finds ought to be disclosed, the Court may make such

orders with regard to the failure or refusal as are just, among them:

2. An order prohibiting the disobedient party from supporting or opposing

designated claims or defenses, from producing in evidence designated things or

items of testimony, or from introducing any evidence of the physical, mental or

blood condition sought to be determined, or from using certain witness; or

"
3. an order striking out pleadings, . ..

18. The New York State Court of Appeals has stated that where a party disobeys a court

order and by his conduct, frustrates the disclosure scheme provided by the C.P.L.R., it iswithin

the discretion of the trial court to strike the pleading of the defaulting party. See e.g. Zletz v

Wetanson, 67 NY2d 711, 499 N.Y.S.2d 933 (1986).

19. At the outset, itshould be noted that the express terms of CPLR §3126 allowing for

sanctions, including the striking of a pleading, are not only available to the Court when a party has

failed to comply with an order of the Court, but also upon the mere failure of a party to willfully

disclose information which the Court finds out to have been disclosed pursuant to Article 31. See

CPLR §3126

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20. Similarly, and consistent with the express language of CPLR §3126, there is no

chance"
requirement of a "last warning or conditional order before a party's pleading in struck by

the Court. Menkes v. Delikat, 148 AD3d 442 (1st Dep't., 2017); Fish v. Schiner, 75 AD3d 219

(1st Dep't., 2010)(defendant's answer stricken based upon a pattern of disobeying court orders and

failing to provide discovery). The imposition of sanctions pursuant to CPLR §3126 is within the

sound discretion of the trial court. Id.

21. In Arts4All v. Hancock (54 AD3d 286), the First Department stated, "Appellate

Courts have recognized that, under the Individual Assignment System, substantial deference

should be accorded to the trialcourt's considerable discretion to compel compliance with discovery

orders, and, absent clear abuse, a penalty imposed in accordance with CPLR 3126 should not

disturbed"
readily be citing Sawh v. Bridges, 120A.D.2d 74, 79, 507 N.Y.S.2d 632 [1986], appeal

dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312 [1987] ).. The First Department

stated further, "the public policy favoring resolution of cases on their merits is not promoted by

permitting a party to a single such matter to impose an undue burden on judicial resources to the

detriment of all other litigants. Nor is the efficient disposition of the business before the courts

advanced by undermining the authority of the trial court to supervise the parties who appear before

it."

22. Similarly, the Second Department has stated recently that "the willful and

contumacious character of a party's conduct can be inferred from either the repeated failure to

respond to demands or comply with discovery orders, without demonstrating a reasonable excuse

for these failures, or the failure to comply with court-ordered discovery over an extended period

time"
of (emphasis added)(citing Wolf v Flowers, 122 AD3d at 729 (2d Dep't. 2012); Mears v

Long, 149 AD3d 823 (2d Dep't., 2017)]; Lazar, Sanders. Thaler & Assoc., LLP v Lazar 131 AD3d

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at 1134; Brandenbur v Count of Rockland Sewer Dist. litState of N.Y.. 27 AD3d at 681); see also,

Commisso v. Orshan, 85 AD3d 845 (2d Dep't., 2011)(remedy of striking a pleading is warranted

where a party's failure to comply with court ordered disclosure is willful and contumacious;

inference of willfulness may be based upon a party's repeated failure to comply with discovery

demands or court orders); Morgenstern v. Jeffsam Corp., 78 AD3d 913 (2d Dep't., 2010)(same).

23. Defendants willful and contumacious refusal to provide Plaintiff with complete

respoilses to our outstanding discovery has prolonged the discovery process. Accordingly, the

Defendant's Answer should be stricken.

24. In the alternative, the Court should grant the issuance of a conditional order striking

Defendants'
Answer unless they provide the Plaintiff with responses to their outstanding demands.

25. In the alternative, should this Court decide not to strike Defendant's Answer,

Defendant should be compelled to respond to Plaintiff's discovery demands on a certain date.

WHEREFORE, plaintiff respectfully requests that this Court grant an Order pursuant to

CPLR § 3216 striking Defendants SYED MUJAHID SAYEED, M.D., and PRECISION

SURGERY OF NEW YORK, P.C.,'s Answers for failure to provide a supplemental response to

Plaintiff's Post-Deposition Demands, strildng Defendants SYED MUJAHID SAYEED, M.D., and

PRECISION SURGERY OF NEW YORK, P.C.,'s Answers for failure to notice and IME or confmn

the IME is waived, and for such other and further relief as this Court deems just and proper.

Dated: New York, New York
August 20, 2021

You , etc.

ARJE A ALBANI
CAITLIN ROBIN & ASSOCIATES

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Attorneys for Plaintiff(s)
30 Broad Street, Suite 702

New York, NY 10004

(646) 524-6026

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AFFIDAVIT OF SERVICE

STATE OF NEW YORK, COUNTY OF NEW YORK ss.:

Arjeta Albani being duly sworn, deposes and says:

I am over 18 years of age, I am not a party to the action, and I reside in Kings County in the State
of New York.

I served a true copy of the annexed
. .

NOTICE OF MOTION

on April 19, 2021

by filing via ECF and by mailing the same in a sealed envelope, with postage prepaid thereon, in

a post office or official depository of the U.S. Postal Service within the State of New York,
addressed to the last known address of the addressee as indicated below:

To: Deborah Dyckman, Esq.
Dorf & Nelson, LLP
555 Theodore Fremd Avenue

Rye, New York 10580

Nicole Klein, Esq.
Rubin Paterniti Gonzalez Rizzo Kaufman, LLP
1225 Franklin Avenue, Suite 200
Garden City, New York 11530

Arjeta Albani

Sworn to b e me April 19, 2021

Notary Public

(h j in Now Yort
( o

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

DINO BONAVITA,

Plaintiffs,

-against-

SYED MUJAHID SAYEED, M.D., PRECISION
SURGERY OF NEW YORK, P.C., NORTH SHORE UNIVERSITY HOSPITAL, and

NORTHWELL HEALTH,

Defendants.

NOTICE OF MOTION

CAITLIN ROBIN & ASSOCIATES PLLC
Attorneys for Plaintiff
DINO BONAVITA
30 Broad St. Suite 702
New York, New York 10004

(646) 524-6026

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Case Info

Judge

Thomas Rademaker Track Judge’s New Case

Case No.

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Document Filed Date

August 20, 2021

Case Filing Date

August 24, 2018

County

Parties

ALBANI, ARJETA Attorney for the Plaintiff
ANDRIEUX, MELISSA GRACE Attorney for the Defendants
BENVENUTO, THOMAS J Attorney for the Defendants
CRISCUOLO, ANGELA MARIA Attorney for the Defendant
Dino Bonavita Plaintiff
DYCKMAN, DEBORAH A Attorney for the Defendant
FRASER, CHRISTIANA MARY Attorney for the Defendant
JAVER, DAVID MEIR Attorney for the Defendant
KLEIN, NICOLE LYNNE Attorney for the Defendant
KLEIN, NICOLE LYNNE Attorney for the Defendants
LAUGHLIN, MARK ALEXANDER Attorney for the Plaintiff
LIN, LINDA MAY Attorney for the Defendant
LYDDANE, JOHN LAWRENCE ASHTON Attorney for the Defendant
North Shore University Hospital Defendant
Northwell Health Defendant
PATERNITI, JOHN DAVID Attorney for the Defendant
Precision Surgery Of New York, PC Defendant
QUINLAN, TERI ANN Attorney for the Defendant
ROBIN, CAITLIN ANNE Attorney for the Plaintiff
RUSSO, KERRIANNE Attorney for the Defendant
Syed mujahid Sayeed MD Defendant
VOLKOMMER, KEVIN SCOTT Attorney for the Plaintiff
JUAN GONZALEZ Attorney
JOHN LANZETTA Attorney
Monica Wang Attorney
STEVEN RUBIN Attorneys for Defendants
AVRAHAM SCHWARTZ
CHRISTINA PAPADOPOULOS Attorney
KEVIN ROSENBERG Attorney
LINDA LIN Attorneys for Defendants
STAESHA RATH Attorneys for Plaintiffs

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Motion-Secondary: Dino Bonavita v. Syed Mujahid Sayeed Md, Precision Surgery Of New York, Pc, North Shore University Hospital, Northwell Health

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Case Info

Parties