Preview
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------------------------------------------------------------X
DINO BONAVITA, AFFIRMATION IN
OPPOSITION TO
Plaintiffs, CROSS-MOTION
AND IN FURTHER
-against- SUPPORT OF
MOTION
SYED MUJAHID SAYEED, M.D., PRECISION
SURGERY OF NEW YORK, P.C., NORTH SHORE Index No.:
UNIVERSITY HOSPITAL, and NORTHWELL HEALTH, 611506/2018
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 perjury:
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 opposition to Defendants SYED MUJAHID
SAYEED, M.D., and PRECISION SURGERY OF NEW YORK, P.C.,’s cross-motion and in
further support of Plaintiff’s motion to strike for failure to respond to discovery and failure to
notice an IME or confirm IME waived, and for such other and further relief as this Court deems
just and proper.
DEFENDANTS’ CROSS-MOTION SHOULD BE DENIED
3. Defendant’s cross motion asks this court to either compel Plaintiff to respond to the
demand for physical examination reports, to preclude plaintiff from introducing evidence of his
current physical condition and prognosis, to compel plaintiff to appear for a physical examination,
1 of 6
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021
and for such other and further relief as the Court may deem proper.
4. However, Defendants have misrepresented to this court that Plaintiff has not
responded to the demand for physical examination reports as Plaintiff has responded multiple times
to said demand.
5. On October 9, 2020, Plaintiff served a letter responding to Defendant’s demand for
Physical Examination stating that Plaintiff is not in possession of any reports of physical
examination other than what might be contained in the Plaintiff’s medical records for which
authorizations had been provided. (See October 9, 2020 Letter annexed hereto as Exhibit “A”).
Attached to this letter, Plaintiff also included a CD with courtesy copies of the medical records
reflecting the injuries alleged in Plaintiff’s Bill of Particulars and Complaint.
6. Then, on February 5, 2021, Plaintiff responded to yet another letter inquiring about
physical examinations, stating Plaintiff has not undergone any IME or physical examinations with
relation to this lawsuit and duly executed authorizations for all of Plaintiff’s medical records had
been previously provided. (See February 5, 2021 letter annexed hereto as Exhibit “B”).
7. Defendants then inquired yet again regarding medical examination reports, to
which Plaintiff responded on June 23, 2021 that Plaintiff has not undergone any independent
medical examinations and our office has not had the Plaintiff examined, but that all authorizations
had been previously provided. (See June 23, 2021 letter annexed hereto as Exhibit “C”).
8. Plaintiff has provided all relevant medical records and authorizations to obtain these
records directly from the Plaintiff’s treatment providers. The Defendant had more than enough
time to designate a physician for IME if it wished, and never did.
9. Plaintiff inquired numerous times throughout the course of discovery if Defendant
intended to designate a physician to perform an IME, but has failed to do so. Codefendant North
2 of 6
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021
Shore University Hospital confirmed that they waived the IME of Plaintiff, however Defendant
has neither confirmed waiving the IME or designated a physician for IME. The Defendant’s failure
to notice an IME in this matter should not in turn preclude the Plaintiff from providing testimony
regarding his current medical condition.
10. Therefore, the Defendants’ cross-motion should be denied in its entirety, and the
Plaintiff’s motion should be granted. Should this Court decline to strike Defendant’s Answer, the
Court should issue an Order deeming the IME of the Plaintiff waived.
DEFENDANTS’ DISCOVERY RESPONSES ARE INSUFFICIENT
11. Defendants argue that the motion to strike should be denied as moot as they have
provided the requested discovery. While Plaintiff acknowledges that Defendants have responded
to the outstanding discovery demands subsequent to the filing of this motion, Defendants have not
satisfactorily responded to said demands.
12. Defendants’ initial response, dated November 10, 2020, stated that the “responding
defendants are making a search for this information and, to the extent it exists, will be provided
under separate cover.” (See Exhibit “F” to Plaintiff’s motion). Defendants failed to provide a
supplemental response to this demand, which necessitated the filing of the Plaintiff’s motion to
strike.
13. During the pendency of this motion, Defendant served an Affidavit in response to
Post Deposition Demands stating “To the best recollection of the responding defendant, there were
no email messages sent to or received from Dr. Greenberg pertaining to the treatment of Mr.
Bonavita… there were no email messages sent to or received from the radiologists who performed
imaging of Mr. Bonavita.” (See Exhibit “C” to Defendant’s cross-motion). Clearly, the
Defendants’ response was woefully insufficient and required an actual search for these records.
3 of 6
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021
Accordingly, Plaintiff’s counsel contacted Defendant’s counsel to advise that an actual search
would be required.
14. Thereafter, Defendant provided a supplemental response as to the items Plaintiff
requested clarification on, stating “Dr. Sayeed performed a diligent search through G-mail for any
email sent from Dr. Sayeed and Precision Surgery of New York, P.C., using the terms ‘Dino,’
‘Bonavita,’ and ‘Greenberg.’ There are no email messages sent to or received from Dr. Greenberg
referrable to the treatment of Mr. Bonavita… Dr. Sayeed performed a diligent search through G-
mail for any email sent from Dr. Sayeed and Precision Surgery of New York, P.C., using the terms
any radiologists who performed imaging of Dino Bonavita using the terms ‘Dino,’ ‘Bonavita’ and
“Zprad.’ There are no email messages sent to or received from any radiologists who performed
imaging of Dino Bonavita referable to the treatment of Mr. Bonavita.” (See Exhibit “G” to
Defendants’ cross-motion).
15. Upon receipt and review of the Defendants’ response, a telephone conference was
held with Ms. Lin (Defendant’s counsel) during which Plaintiff’s counsel (Mr. Kim and myself)
discussed the response and the issues with said response. Mr. Kim, who handles e-discovery for
our firm and is well versed with electronic searches of email servers, advised that the response was
deficient for failure to indicate whether the terms utilized during the search were each input
separately, with the results of each reviewed for responsiveness, or ifDefendant ran the search
using the three terms simultaneously. Plaintiff simply requires a further clarification to be sure that
the Defendant did not erroneously omit relevant search results from disclosure.
16. Accordingly, Defendant has not sufficiently responded to the discovery demands.
WHEREFORE, plaintiff respectfully requests that this Court grant an Order pursuant to
CPLR § 3216 striking Defendants SYED MUJAHID SAYEED, M.D., and PRECISION
4 of 6
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021
SURGERY OF NEW YORK, P.C.,’s Answers for failure to provide a supplemental response to
Plaintiff’s Post-Deposition Demands, striking Defendants 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.
Dated: New York, New York
August 20, 2021
Yours, etc.
ARJETA ALBANI
CAITLIN ROBIN & ASSOCIATES
Attorneys for Plaintiff(s)
30 Broad Street, Suite 702
New York, NY 10004
(646) 524-6026
5 of 6
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021
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.
AFFIRMATION IN OPPOSITION TO CROSS-MOTION AND IN FURTHER SUPPORT
OF MOTION
CAITLIN ROBIN & ASSOCIATES PLLC
Attorneys for Plaintiff
DINO BONAVITA
30 Broad St. Suite 702
New York, New York 10004
(646) 524-6026
6 of 6
Preview
FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------------------------------------------------------------X DINO BONAVITA, AFFIRMATION IN OPPOSITION TO Plaintiffs, CROSS-MOTION AND IN FURTHER -against- SUPPORT OF MOTION SYED MUJAHID SAYEED, M.D., PRECISION SURGERY OF NEW YORK, P.C., NORTH SHORE Index No.: UNIVERSITY HOSPITAL, and NORTHWELL HEALTH, 611506/2018 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 perjury: 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 opposition to Defendants SYED MUJAHID SAYEED, M.D., and PRECISION SURGERY OF NEW YORK, P.C.,’s cross-motion and in further support of Plaintiff’s motion to strike for failure to respond to discovery and failure to notice an IME or confirm IME waived, and for such other and further relief as this Court deems just and proper. DEFENDANTS’ CROSS-MOTION SHOULD BE DENIED 3. Defendant’s cross motion asks this court to either compel Plaintiff to respond to the demand for physical examination reports, to preclude plaintiff from introducing evidence of his current physical condition and prognosis, to compel plaintiff to appear for a physical examination, 1 of 6 FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021 and for such other and further relief as the Court may deem proper. 4. However, Defendants have misrepresented to this court that Plaintiff has not responded to the demand for physical examination reports as Plaintiff has responded multiple times to said demand. 5. On October 9, 2020, Plaintiff served a letter responding to Defendant’s demand for Physical Examination stating that Plaintiff is not in possession of any reports of physical examination other than what might be contained in the Plaintiff’s medical records for which authorizations had been provided. (See October 9, 2020 Letter annexed hereto as Exhibit “A”). Attached to this letter, Plaintiff also included a CD with courtesy copies of the medical records reflecting the injuries alleged in Plaintiff’s Bill of Particulars and Complaint. 6. Then, on February 5, 2021, Plaintiff responded to yet another letter inquiring about physical examinations, stating Plaintiff has not undergone any IME or physical examinations with relation to this lawsuit and duly executed authorizations for all of Plaintiff’s medical records had been previously provided. (See February 5, 2021 letter annexed hereto as Exhibit “B”). 7. Defendants then inquired yet again regarding medical examination reports, to which Plaintiff responded on June 23, 2021 that Plaintiff has not undergone any independent medical examinations and our office has not had the Plaintiff examined, but that all authorizations had been previously provided. (See June 23, 2021 letter annexed hereto as Exhibit “C”). 8. Plaintiff has provided all relevant medical records and authorizations to obtain these records directly from the Plaintiff’s treatment providers. The Defendant had more than enough time to designate a physician for IME if it wished, and never did. 9. Plaintiff inquired numerous times throughout the course of discovery if Defendant intended to designate a physician to perform an IME, but has failed to do so. Codefendant North 2 of 6 FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021 Shore University Hospital confirmed that they waived the IME of Plaintiff, however Defendant has neither confirmed waiving the IME or designated a physician for IME. The Defendant’s failure to notice an IME in this matter should not in turn preclude the Plaintiff from providing testimony regarding his current medical condition. 10. Therefore, the Defendants’ cross-motion should be denied in its entirety, and the Plaintiff’s motion should be granted. Should this Court decline to strike Defendant’s Answer, the Court should issue an Order deeming the IME of the Plaintiff waived. DEFENDANTS’ DISCOVERY RESPONSES ARE INSUFFICIENT 11. Defendants argue that the motion to strike should be denied as moot as they have provided the requested discovery. While Plaintiff acknowledges that Defendants have responded to the outstanding discovery demands subsequent to the filing of this motion, Defendants have not satisfactorily responded to said demands. 12. Defendants’ initial response, dated November 10, 2020, stated that the “responding defendants are making a search for this information and, to the extent it exists, will be provided under separate cover.” (See Exhibit “F” to Plaintiff’s motion). Defendants failed to provide a supplemental response to this demand, which necessitated the filing of the Plaintiff’s motion to strike. 13. During the pendency of this motion, Defendant served an Affidavit in response to Post Deposition Demands stating “To the best recollection of the responding defendant, there were no email messages sent to or received from Dr. Greenberg pertaining to the treatment of Mr. Bonavita… there were no email messages sent to or received from the radiologists who performed imaging of Mr. Bonavita.” (See Exhibit “C” to Defendant’s cross-motion). Clearly, the Defendants’ response was woefully insufficient and required an actual search for these records. 3 of 6 FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021 Accordingly, Plaintiff’s counsel contacted Defendant’s counsel to advise that an actual search would be required. 14. Thereafter, Defendant provided a supplemental response as to the items Plaintiff requested clarification on, stating “Dr. Sayeed performed a diligent search through G-mail for any email sent from Dr. Sayeed and Precision Surgery of New York, P.C., using the terms ‘Dino,’ ‘Bonavita,’ and ‘Greenberg.’ There are no email messages sent to or received from Dr. Greenberg referrable to the treatment of Mr. Bonavita… Dr. Sayeed performed a diligent search through G- mail for any email sent from Dr. Sayeed and Precision Surgery of New York, P.C., using the terms any radiologists who performed imaging of Dino Bonavita using the terms ‘Dino,’ ‘Bonavita’ and “Zprad.’ There are no email messages sent to or received from any radiologists who performed imaging of Dino Bonavita referable to the treatment of Mr. Bonavita.” (See Exhibit “G” to Defendants’ cross-motion). 15. Upon receipt and review of the Defendants’ response, a telephone conference was held with Ms. Lin (Defendant’s counsel) during which Plaintiff’s counsel (Mr. Kim and myself) discussed the response and the issues with said response. Mr. Kim, who handles e-discovery for our firm and is well versed with electronic searches of email servers, advised that the response was deficient for failure to indicate whether the terms utilized during the search were each input separately, with the results of each reviewed for responsiveness, or ifDefendant ran the search using the three terms simultaneously. Plaintiff simply requires a further clarification to be sure that the Defendant did not erroneously omit relevant search results from disclosure. 16. Accordingly, Defendant has not sufficiently responded to the discovery demands. WHEREFORE, plaintiff respectfully requests that this Court grant an Order pursuant to CPLR § 3216 striking Defendants SYED MUJAHID SAYEED, M.D., and PRECISION 4 of 6 FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021 SURGERY OF NEW YORK, P.C.,’s Answers for failure to provide a supplemental response to Plaintiff’s Post-Deposition Demands, striking Defendants 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. Dated: New York, New York August 20, 2021 Yours, etc. ARJETA ALBANI CAITLIN ROBIN & ASSOCIATES Attorneys for Plaintiff(s) 30 Broad Street, Suite 702 New York, NY 10004 (646) 524-6026 5 of 6 FILED: NASSAU COUNTY CLERK 11/10/2021 05:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 11/10/2021 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. AFFIRMATION IN OPPOSITION TO CROSS-MOTION AND IN FURTHER SUPPORT OF MOTION CAITLIN ROBIN & ASSOCIATES PLLC Attorneys for Plaintiff DINO BONAVITA 30 Broad St. Suite 702 New York, New York 10004 (646) 524-6026 6 of 6