Preview
FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019
STATE OF NEW YORK :SUPREME COURT
COUNTY OF ERIE
AFFIRMATION IN SUPPORT
CHARLES FREDRICK,
Assigned Justice:
Plaintiff
Hon. Donna M. Siwek, JSC
vs.
Index No.: 805595/2018
LAUREN BECKSTEIN, JOSEPH G. BROWN,
Defendants.
Amy E. Belmont, an attorney duly admitted to practice law in the Courts of the State of
New York, affirms the following statement to be true under the penalties of perjury pursuant to
CPLR Section 2106:
1. I am the attorney for the defendant, Lauren Beckstein, and am familiar with the
facts, circumstances, and proceedings regarding the instant action.
2. I make this affirmation in support of the defendant's Motion for an Order
pursuant to CPLR 3042 and CPLR 3124, precluding the plaintiff from giving evidence at the trial
of this action on the ground that there has been a failure on the part of said plaintiff to comply
with defendant's request to amend the Bill of Particulars removing all claims related to the left
knee and respond to defendant's requests for authorizations, or in the alternative, for an Order
compelling the plaintiff to amend the Bill of Particulars and provide requested authorizations,
and for such other and further relief as may be just and proper.
3. This action for alleged personal injuries arose out of a motor vehicle accident that
occurred on or about February 5, 2016 at approximately 5:24 pm at the intersection of Allegany
Road and Route 5 & 20 in the Town of Hanover, County of Chautauqua and State of New York.
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4. This action was commenced by service of a Summons and Complaint filed with
the Erie Clerk on or about April 2018 and issue was joined the service of the of co-
County 9, by
defendant Brown's Answer on April 24, 2018 and service of defendant Beckstein's Answer on
May 11, 2018. (Exhibit A).
5. Plaintiff's Verified Bill of Particulars is attached hereto as Exhibit C. Plaintiff
claims injuries and aggravations and exacerbations of prior conditions to his neck, back, and left
knee including a left knee tear (Exhibit C, 14). Plaintiff claims he qualifies under significant
limitation of use, permanent consequential limtiation of use, and 90/180 categories. (Exhibit C,
18).
6. Plaintiff's Examination Before Trial was conducted on May 13, 2019. Plaintiff
was explicitly asked ifhe was making any claims related to his left leg and left knee as a result of
"NO."
the subject accident and his answer was Relevant portions of Plaintiff's Examination
Before Trial Transcript is attached hereto as Exhibit D, p. 56-57).
7. In accordance with the applicable rules of this Court, on May 17, 2019 a written
request was made to plaintiff's counsel requesting that he amend his Bill of Particulars to remove
any claims related to the plaintiff's left knee following plaintiff s deposition in this matter in
which plaintiff testified under oath that he was not making a claim related to the left knee.
(Exhibit E).
8. On May 17, 2019, a written request was also made to plaintiff s counsel
authorizations for: No-fault authorizations for Progressive- claim no.
requesting 1)
0120029157772 & 15458282000 for DOL 11/8/2002 (Plaintiff testified to being involved in a
prior motor vehicle accident around 2001 and he treated with a chiropractor at the very least for
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FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019
his spine) (see Exhibit D, p. 57); 2) Dr. Pawlowski, and 3) Employment authorzations for Lily
Dale- Fellowships of the Double A Smart and
Spirit, McDonald's, Renaissance, Vineyard, Tech,
the contruction company plaintiff worked for in West Virginia following the subject accident.
Plaintiff has worked for these employers following the subject accident. (Exhibit D, p. 16, 30,
90).
9. A second written request was made to plaintiff's counsel by correspondence dated
June 24, 2019 in a good faith attempt to resolve the discovery issues without Court intervention,
(Exhibit F).
10. Your affirmant has failed to receive plaintiff's amended Bill of Particulars or
numerous requested authorizations necessitating the instant motion.
11. Said discovery is material and necessary to the defense of this action.
12. CPLR §3126 provides the penalties for failing to comply with an order of the
Court or to disclose material, which the Court deems, should have been disclosed.
13. No prior application for this relief has been made.
WHEREFORE, your affirmant prays for an Order pursuant to CPLR 3042 and CPLR
3124, precluding the plaintiff from giving evidence at the trial of this action on the ground that
there has been a failure on the part of said plaintiff to comply with defendant's request to amend
the Bill of Particulars removing all claims related to the left knee and respond to defendant's
requests for authorizations, or in the alternative, for an Order compelling the plaintiff to ameñd
the Bill of Particulars and provide requested authorizations, and for such other and further relief
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FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019
as may be just and proper.
DATED: Buffalo, New York
August 20, 2019
: Am , Belmont, Esq.
Law fice of Daniel R. Archilla
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Preview
FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019 STATE OF NEW YORK :SUPREME COURT COUNTY OF ERIE AFFIRMATION IN SUPPORT CHARLES FREDRICK, Assigned Justice: Plaintiff Hon. Donna M. Siwek, JSC vs. Index No.: 805595/2018 LAUREN BECKSTEIN, JOSEPH G. BROWN, Defendants. Amy E. Belmont, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following statement to be true under the penalties of perjury pursuant to CPLR Section 2106: 1. I am the attorney for the defendant, Lauren Beckstein, and am familiar with the facts, circumstances, and proceedings regarding the instant action. 2. I make this affirmation in support of the defendant's Motion for an Order pursuant to CPLR 3042 and CPLR 3124, precluding the plaintiff from giving evidence at the trial of this action on the ground that there has been a failure on the part of said plaintiff to comply with defendant's request to amend the Bill of Particulars removing all claims related to the left knee and respond to defendant's requests for authorizations, or in the alternative, for an Order compelling the plaintiff to amend the Bill of Particulars and provide requested authorizations, and for such other and further relief as may be just and proper. 3. This action for alleged personal injuries arose out of a motor vehicle accident that occurred on or about February 5, 2016 at approximately 5:24 pm at the intersection of Allegany Road and Route 5 & 20 in the Town of Hanover, County of Chautauqua and State of New York. 1 of 4 FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019 4. This action was commenced by service of a Summons and Complaint filed with the Erie Clerk on or about April 2018 and issue was joined the service of the of co- County 9, by defendant Brown's Answer on April 24, 2018 and service of defendant Beckstein's Answer on May 11, 2018. (Exhibit A). 5. Plaintiff's Verified Bill of Particulars is attached hereto as Exhibit C. Plaintiff claims injuries and aggravations and exacerbations of prior conditions to his neck, back, and left knee including a left knee tear (Exhibit C, 14). Plaintiff claims he qualifies under significant limitation of use, permanent consequential limtiation of use, and 90/180 categories. (Exhibit C, 18). 6. Plaintiff's Examination Before Trial was conducted on May 13, 2019. Plaintiff was explicitly asked ifhe was making any claims related to his left leg and left knee as a result of "NO." the subject accident and his answer was Relevant portions of Plaintiff's Examination Before Trial Transcript is attached hereto as Exhibit D, p. 56-57). 7. In accordance with the applicable rules of this Court, on May 17, 2019 a written request was made to plaintiff's counsel requesting that he amend his Bill of Particulars to remove any claims related to the plaintiff's left knee following plaintiff s deposition in this matter in which plaintiff testified under oath that he was not making a claim related to the left knee. (Exhibit E). 8. On May 17, 2019, a written request was also made to plaintiff s counsel authorizations for: No-fault authorizations for Progressive- claim no. requesting 1) 0120029157772 & 15458282000 for DOL 11/8/2002 (Plaintiff testified to being involved in a prior motor vehicle accident around 2001 and he treated with a chiropractor at the very least for 2 of 4 FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019 his spine) (see Exhibit D, p. 57); 2) Dr. Pawlowski, and 3) Employment authorzations for Lily Dale- Fellowships of the Double A Smart and Spirit, McDonald's, Renaissance, Vineyard, Tech, the contruction company plaintiff worked for in West Virginia following the subject accident. Plaintiff has worked for these employers following the subject accident. (Exhibit D, p. 16, 30, 90). 9. A second written request was made to plaintiff's counsel by correspondence dated June 24, 2019 in a good faith attempt to resolve the discovery issues without Court intervention, (Exhibit F). 10. Your affirmant has failed to receive plaintiff's amended Bill of Particulars or numerous requested authorizations necessitating the instant motion. 11. Said discovery is material and necessary to the defense of this action. 12. CPLR §3126 provides the penalties for failing to comply with an order of the Court or to disclose material, which the Court deems, should have been disclosed. 13. No prior application for this relief has been made. WHEREFORE, your affirmant prays for an Order pursuant to CPLR 3042 and CPLR 3124, precluding the plaintiff from giving evidence at the trial of this action on the ground that there has been a failure on the part of said plaintiff to comply with defendant's request to amend the Bill of Particulars removing all claims related to the left knee and respond to defendant's requests for authorizations, or in the alternative, for an Order compelling the plaintiff to ameñd the Bill of Particulars and provide requested authorizations, and for such other and further relief 3 of 4 FILED: ERIE COUNTY CLERK 08/20/2019 02:17 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/20/2019 as may be just and proper. DATED: Buffalo, New York August 20, 2019 : Am , Belmont, Esq. Law fice of Daniel R. Archilla 4 of 4