FILED: KINGS COUNTY CLERK 03/23/ :15 PM INDEX NO /2016 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/23/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X LAKISHA TAYLOR as Administratrix of the Estate of JADA DANIELLE DUNCAN, Deceased and On behalf of her Distributees and Next of Kin, and WARREN DUNCAN, Individually, -against- Plaintiffs, Index No.: /2016E AFFIRMATION IN SUPPORT OF CROSS-MOTIONS & IN OPPOSITION TO PLAINTIFFS MOTION EBENEZER KOFI ODOOM, M.D., STEPHEN E. OWUSU, D.P.M., M.A., MOUNT ZION PODIATRY, P.C., ROBERT SOLOMON, M.D., EXPRESS MOBILE DIAGNISTIC SERVICES, INC., SENIORCARE EMERGENCY MEDICAL SERVICES, INC., CHARLES WILBORNE and STEVEN VEGA, Defendants X JOHN P. RANCOURT, an attorney duly admitted and licensed to the practice of law in the courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1. I am associated with the law firm KAUFMAN BORGEEST & RYAN LLP, attorneys for Defendants SENIORCARE EMERGENCY MEDICAL SERVICES, INC., CHARLES WILBORNE, and STEVEN VEGA (hereinafter SeniorCare Defendants ), and as such, am fully familiar with the facts and circumstances of this matter as hereinafter set forth by virtue of review of the file maintained by this office. for an order: 2. This Affirmation is respectfully submitted in support of the within Cross-Motion a. staying the instant litigation in its entirety as to all Defendants in accordance with the automatic stay provision of the September 21, 2017, Order Commencing Liquidation Proceedings & Granting An Injunction & Automatic Stay of Proceedings and the February 8, 2018, Order of Clarification, 1 of 30

2 both issued by the Fifth Judicial Circuit in the Court of Common Pleas for the State of South Carolina, County of Richland, in connection with the Oceanus Insurance Company, A Risk Retention Group, insolvency proceedings; b. denying Plaintiffs Motion brought by Notice of Motion dated March 7, 2018, in its entirety and as to all requested relief therein; and c. for any such other, further, and different relief that this Court may deem just and proper. 3. This Affirmation is also submitted in opposition to Plaintiffs Motion by Notice of Motion dated March 7, 2018, for an order: a. pursuant to CPLR 3124 and 3126, striking Defendants Answers based on the purported failure to comply with discovery identified in the Preliminary Conference Order or, alternatively, compelling Defendants compliance therewith, including commencement of party depositions; and b. declaring the automatic stay provision of the September 21, 2017, Order Commencing Liquidation Proceedings & Granting An Injunction & Automatic Stay of Proceedings issued by The Court of Common Pleas, Fifth Judicial Circuit, State of South Carolina, Richland County in connection with the Oceanus Insurance Company, RRG, insolvency proceedings not applicable to the instant litigation; or c. in the event this Court finds the automatic stay applies to the instant litigation, severing all claims against the Oceanusinsured Defendant, Robert Solomon, M.D., pursuant to CPLR 603; and d. for any such other, further, and different relief that this Court may deem just and proper. 4. Additionally, his Affirmation is submitted in support of the Cross-Motion on behalf of Codefendant Robert Solomon, M.D., (hereinafter Dr. Solomon ) brought by Notice of Motion dated March 19, 2018, seeking identical relief. 2 of 30

3 PROCEDURAL HISTORY 3. This action was commenced by the electronic filing of a Summons and Verified Complaint dated December 2, 2016, in the Supreme Court of the State of New York, County of Kings, on December 30, 2016, received by the New York State Courts Electronic Filing (hereinafter NYSCEF ) on January 20, 2017 (annexed hereto as Exhibit A ). The Complaint asserts five causes of action sounding in medical malpractice and alleges conscious pain and suffering, wrongful death, and loss of services and society on behalf of the Plaintiff-decedent s husband, derivatively. Ex. A. Notwithstanding the prolix, all-encompassing allegations asserted in the Complaint which were clearly designed to encompass every aspect of medical care and treatment, it can be gleaned that Plaintiffs case is predicated on a purported failure to diagnose a thrombus in the decedent s right lower extremity caused fatal pulmonary embolism on May 17, Id. 4. Issue was duly joined by service of Verified Answers on behalf of all Defendants, save for Defendant EXPRESS MOBILE DIAGNOSTIC SERVICES, INC. (see Pl. s Mot., Groman Aff., Ex. C [Verified Answers for all appearing Defendants are annexed thereto]); the SeniorCare Defendants interposed Verified Answers on February 7, 2017, and May 25, 2017 (annexed hereto as Exhibit B ). Concomitant with service of Verified Answers, the SeniorCare Defendants served various demands, including Combined Demands (annexed hereto as Exhibit C ). 5. Plaintiffs served Verified Bills of Particulars dated June 30, 2017, but uploaded to NYSCEF on July 23, 2017, asserting broad, boilerplate medical malpractice claims from April 18, 2016, through May 17, 2016, virtually identical as to all Defendants (annexed hereto as Exhibit D ). 3 of 30

4 6. A Preliminary Conference was held on July 7, 2017, and an outline for disclosure was memorialized in the corresponding Preliminary Conference Order (annexed hereto as Exhibit E ). Plaintiffs counsel stipulated in the Preliminary Conference Order to, inter alia, further specify and particularize the claims in the Bills of Particulars, serve authorizations for hospital and medical treatment, serve authorizations for all treating and examining health care providers, including radiology, revise certain authorizations previously served to the extent the law firm listed as receiving the records was accurate, serve a proper authorization for the medical examiner, and to respond to outstanding demands, including Combined Demands. Ex. E; see also, Ex. C. 7. On August 31, 2017, a petition was filed to commence liquidation proceedings for the Oceanus Insurance Company, a Risk Retention Group (hereinafter Oceanus ), in South Carolina where Oceanus is domiciled and soon thereafter, on September 21, 2017, an Order Commencing Liquidation Proceedings & Granting An Injunction & Automatic Stay was issued by the Honorable L. Casey Manning, Chief Administrative Judge for the Fifth Judicial Circuit in the Court of Common Pleas for the State of South Carolina, County of Richland (hereinafter Liquidation Order ) duly filed by the Clerk of the Court, County of Richland, on September 27, 2017 (annexed hereto as Exhibit F ). 8. The Notice of Injunction and Automatic Stay section of the Oceanus Liquidation Order delineates, in no uncertain terms, prohibited actions which would violate the Order, including: - The transaction of further business; - Interference with the Liquidator or with a proceeding under Chapter 27 of Title 38 of the Code; - Waste of the insurer s assets: - Dissipation and transfer of bank accounts; - The institution or further prosecution of any actions or proceedings; 4 of 30

5 - The obtaining of preferences, judgments, attachments, garnishments, or liens against the insurer, its assets, or its policyholders; - The levying of execution against the insurer, its assets, or its policyholders; - Any other threatened or contemplated action that might lessen the value of the insurer s assets or prejudice the rights of policyholders, creditors, or shareholders, or the administration of any proceeding under Chapter 27 of Title 38 of the South Carolina Code. Ex. F, p Oceanus had operated as an insurance company providing medical professional liability insurance services to individual practitioners and physicians groups throughout the United States. Ex. F, & Since Defendant Dr. Solomon maintained insurance coverage with Oceanus during the time period at issue, on October 4, 2017, in a letter copied to counsel for all parties, counsel for Dr. Solomon advised the then-presiding judge, the Honorable Gloria M. Dabiri, J.S.C., that the instant matter was stayed in its entirety due to the recent commencement of Oceanus insolvency proceedings, pursuant to the Liquidation Order which included an automatic stay provision as to all proceedings against policyholders since Dr. Solomon is a policyholder (annexed hereto as Exhibit G ). However, when apprised of the situation, Plaintiffs counsel contacted Judge Dabiri to dispute this, taking the opposition position that the Oceanus stay was not applicable to this case. See Pl. Mot., Groman Aff., & 3. Accordingly, Judge Dabiri directed the parties to submit letter briefs on the applicability of the Oceanus stay in the instant matter. Id. Thereafter, oral argument was held on this issue on January 5, 2018, but shortly thereafter counsel for all parties were advised by from Judge Dabiri s part that motion practice would be required to determine the applicability of the Oceanus stay in this case. Id. 11. On October 12, 2017, Associate Deputy Clerk Darrell M. Joseph of the Appellate Division, Supreme Court of the State of New York, Second Judicial Department, sent a letter to all counsel on the Hala v. Orange Regional Medical Center, et al., case pending in the Supreme 5 of 30

6 Court of the State of New York, County of Orange, Index Number 3221/2014, with an appeal pending in the Appellate Division, Second Department, Appellate Division Docket Number , advising that the appeals in that docket were stayed pursuant to the Oceanus Liquidation Order in light of the appellant s status as an Oceanus-insured (annexed hereto as Exhibit H ). 12. An Order of Clarification dated February 8, 2018, was issued by the Honorable L. Casey Manning, Chief Administrative Judge for the Fifth Judicial Circuit in the Court of Common Pleas for the State of South Carolina, County of Richland, which states, in pertinent part: It has been brought to the attention of the Court that there is some confusion amount the Bench and Bar in other jurisdictions as to whether the injunction and automatic stay set forth in the [Liquidation Order] which is applicable to all persons and proceedings and which prohibits, among other things, the institution of further prosecution of any actions or proceedings includes prohibiting actions against the policyholders of Oceanus which would be the insured physicians which are also referred to as covered providers and additional named insureds of Oceanus Insurance Company. So as to clarify my Order of September 21, 2017, this Order is to confirm that the automatic stay prohibiting the institution of further prosecutions of any actions or proceedings includes prohibiting actions or proceedings against the policyholders, covered providers and additional named insureds of Oceanus Insurance Company. (Annexed hereto as Exhibit I ). 13. By Notice of Motion dated February 8, 2018, Plaintiffs moved for a default judgment against Defendant Express Mobile Diagnostic Services, Inc., who had not answered or otherwise appeared in this action; Plaintiffs Motion was later granted on March 19, 2018 (annexed hereto as Exhibit J ). 6 of 30

7 14. To date, in violation of the Preliminary Conference Order, Plaintiffs have failed to respond to Combined Demands, serve a significant amount of authorizations, and provide adequate bills of particulars. Ex. C, E. APPLICABLE LAW 15. Section of the Uniform Civil Rules for the Supreme Court and the County Court, requires litigants to make a showing of good faith efforts made prior to motion practice to resolve any discovery disputes in an effort to conserve judicial resources and not clog the courts with discovery motions. Thus, when a motion relates to disclosure, an affirmation of good faith must be annexed wherein counsel for the movant affirms that a good faith effort was made to resolve the issues raised in the motion before seeking court intervention. Id. 16. Pursuant to CPLR 603, [i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue (emphasis added). 17. CPLR 3124 provides, in pertinent part: If a person fails to respond or comply with any request, notice, interrogatory, demand, question or order under this article the party seeking disclosure may move to compel compliance or a response. 18. Under CPLR 3126, penalties for refusal to comply with orders or willful failure to disclose include, inter alia, an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, an order striking out pleadings or parts thereof, or dismissing the action or any part thereof. 7 of 30

8 ARGUMENT I. PLAINTIFFS APPLICATION TO STRIKE DEFENDANTS ANSWERS BASED ON A FALSE CLAIM THAT DEFENDANTS HAVE NOT COMPLIED WITH DISCOVERY IS FRIVOLOUS, DISINGENUOUS, WHOLLY WITHOUT MERIT, FAILS TO COMPORT WITH REQUIREMENTS OF GOOD FAITH, AND LACKS ANY ARGUMENT OR EXPLANATION IN SUPPORT. 19. Plaintiffs Motion includes an application to strike Defendants Answers based on a purported failure to comply with the directives in the Preliminary Conference Order or, alternatively, to compel Defendants to proceed with said discovery and depositions. Pl. Mot., Groman Aff., & 1a. However, Plaintiffs Affirmation in Support is devoid of any mention, explanation, or argument on this issue or even some indication of what said discovery specifically refers to and that Defendants need to proceed with. Id. 20. In addition, Plaintiffs fail to demonstrate compliance with good faith requirements, including an affirmation of good faith and evidence of express good faith requests for compliance annexed to their motion papers, attesting that Plaintiffs made good faith efforts to obtain said discovery before burdening the Court with a baseless motion to strike/compel. 22 NYCRR New York Courts have broad discretion in supervising disclosure and in fashioning just remedies for a litigant s failure to comply with disclosure orders. Gibbs v. St. Barnabas Hosp., N.E.2d 277, 16 N.Y.3d 74 (2011). It has been consistently held that a party s willful and contumacious failure to comply with demands for disclosure warrants sanctions, including the striking of a pleading. See Gibbs, 16 N.Y.3d 74; Wilson v. West Hempstead Generals Football Club, Inc., 286 A.D.2d 438, 438, 729 N.Y.S.2d 509, 510 (2d Dep t 2001); Bodine v. Ladjevardi, 284 A.D.2d 351, 352, 726 N.Y.S.2d 129, 130 (2d Dep t 2001); Krajca v. Panza, 262 A.D.2d 612, 612, 693 N.Y.S.2d 185, 186 (2d Dep t 1999). 8 of 30

9 22. Here, Plaintiffs vague application to strike Defendants Answers a remedy of last resort that would cripple the defense of this case not only fails to identify said discovery that the four separate defense firms in this action have apparently all not complied with but Plaintiffs have not served written requests for compliance of said discovery through good faith efforts, and Plaintiffs have failed to demonstrate the requisite willful and contumacious conduct necessary to warrant the drastic measure of striking a party s pleading Plaintiffs also conveniently ignore the fact that all Defendants have unanimously maintained the case has been subject to the Oceanus stay since approximately six weeks after the Preliminary Conference. 23. Plaintiffs brazenly make this application despite their own default on the directives in the Preliminary Conference Order. Ex. E. Specifically, Plaintiffs have not responded completely to the SeniorCare Defendants Combined Demands, have not served adequate and proper bills of particulars, have not removed the inappropriate language from the Bills of Particulars, and have not served HIPAA-compliant authorizations for medical records from treating and examining health care providers, the medical examiner, and in response to Defendants demands. Id. 24. As such, Plaintiffs application to strike Defendants Answers or compel compliance based on a false claim for unspecified said discovery is frivolous, wholly without merit, disingenuous, hypocritical, and does not comport with the requirements of good faith. Moreover, Plaintiffs failed to submit any details or argument whatsoever on this issue and certainly failed to demonstrate the requisite willful and contumacious conduct. Accordingly, Plaintiffs application should be summarily denied. 9 of 30

10 II. THIS CASE IS STAYED PURSUANT TO THE AUTOMATIC STAY IMPOSED BY THE OCEANUS LIQUIDATION ORDER. 25. It goes without saying that Plaintiffs contentions that Oceanus is technically not a party to the instant action or attempted to interject itself into this proceeding is without merit. The implication of a defunct insurer s delinquency proceedings on litigation against an insured has been heavily litigated and there is no requirement that Oceanus itself appear in this matter. See e.g., Dambrot v. REJ Long Beach, LLC, 39 A.D.3d 797, 836 N.Y.S.2d 194 (2d Dep t 2007); Beecher v. Lewis Press Co., 238 A.D.2d 927, 661 N.Y. S.2d 116 (4th Dep t 1997). 26. The Oceanus Liquidation Order specifically addresses third parties as it grants an injunction and automatic stay to all persons and proceedings that may waste assets, obtain adverse judgments, or lessen the value of the insurer s assets or prejudice the rights of policyholders, a point that was further clarified in a subsequent Order. Ex. F, I. Plaintiffs argument that Oceanus, as the proponent of the stay, has the burden of establishing entitlement is mistaken and misplaced. All Defendants in this case would be considered proponents of the stay since Defendants unanimously support its applicability and enforcement. 27. Similarly, Plaintiffs contention that Defendants and Oceanus have not submitted any evidence or moved in any manner to stay the proceedings is disingenuous at best. Pl. Mot., Groman Aff., & 4. Through counsel, all Defendants have submitted letter briefs with considerable citations to controlling caselaw in support of the stay in this case pursuant to Judge Dabiri s directives in addition to the South Carolina Orders. Ex. F, G, I. 28. Since Dr. Solomon s coverage through Oceanus remains uncontested, Plaintiffs citation to Santa v. Azure Nightclub, Incorporated, 2015 N.Y. Misc. LEXIS 324, 2015 Slip Op 30175(U) (N.Y. Sup. Ct., Bronx Cnty. 2015), is misplaced as the facts of Santa have no bearing on the instant matter. The defendant in Santa purportedly had coverage through multiple carriers 10 of 30

11 but there were questions of which was implicated as well as the solvency of the entities since some or all may have been operating as unlicensed outfits that had not formally incorporated. Id. The court referred to the carrier in out-of-state liquidation as defendant s alleged insurers because the defendant had not provided the court with conclusive evidence to substantiate which carrier it maintained applicable coverage, alluding to this being a repeated issue in the case. Id. Also of note, the defendant was moving to stay the action; the Santa decision makes no reference to an automatic stay imposed by the court governing the liquidation proceedings. Id. 29. The notion that the Oceanus liquidation only applies to the recovery stage and therefore the implications of the liquidation should only be addressed if and when Plaintiffs obtain a verdict is patently false and would completely undermine the purpose of insolvency protection laws. In addition to providing debtors with a breathing spell the purpose of the bankruptcy stay is furthering equity in distribution among creditors by forestalling a race to the courthouse to deplete the debtor s assets independently. Johnson v. Magee Rentals, Inc., 478 B.R. 235, (S. Dist. Miss. 2012); see also In re Anthony, 481 B.R. 602, 621 (Dist. Neb. 2012). Thus, debtors are not subject to undue expense of pending litigation costs while the focusing on organizing the estate s affairs and creditors are protected from other potential creditors gaining an unfair advantage by recovering monetarily from the debtor in piecemeal diminution of the total assets available for distribution. Allowing Plaintiffs here to continue prosecution in the face of the Oceanus Liquidation Order specifically prohibiting such action would not only contradict the intent of insolvency protections, but such actions would be taken in violation of the automatic stay and thus void without effect and potentially entitle Oceanus to damages. Gaddy v. SE Prop. Holdings, LLC, 218 So. 3d 315, , 2016 Ala. LEXIS 70, *11 (2016). 11 of 30

12 30. Plaintiffs assertions that a South Carolina court cannot impose a stay in New York and that New York and South Carolina lack reciprocity under the Uniform Insurers Liquidation Act ( UILA ) and the National Association of Insurance Commissioners Rehabilitation and Liquidation Model Act are erroneous conclusions based on misinterpretations of law. In forming this position, Plaintiffs appear to have relied solely on an author-made chart in Appendix A of a 1991 law review article which is completely devoid of citation or source. Stephen W. Schwab, et al., Cross-Border Insurance Insolvencies: The Search for a Forum Concursus, 12:3 U. Pa. J. Int l Bus. L. 304, 373 (1991), available at ohnmitchell12u.pa.j.int'lbus.l.303(1991).pdf. 31. To the contrary, New York will customarily afford comity to out-of-state orders pursuant to the Full Faith and Credit Clause of the United States Constitution absent unusual circumstances. U.S. Const. art. IV, 1. For example, in Dambrot v. REJ Long Beach, LLC, 39 A.D.3d 797, 799, 836 N.Y.S.2d 194, 194 (2d Dep t 2007), the Second Department held that a stay imposed by an out-of-state court in an insolvency proceeding enjoining and restraining all claims against the insureds of the delinquent insurer was entitled to full faith and credit. 32. In fact, New York Courts, including the Appellate Division, Second Department, have already found the automatic stay provision of the Oceanus Liquidation Order to be valid, enforceable, and applicable to actions pending in New York. Hala v. Orange Regional Med. Ctr., et al., App. Div. 2d Dep t Docket No , Sup. Ct., Orange Cnty. Index No. 3221/2014; Ex. H. 33. In 1940, New York adopted the UILA with the main purpose in mind of providing a uniform system for the orderly and equitable administration of the assets and 12 of 30

13 liabilities of defunct multistate insurers. G. C. Murphy Co. v. Reserve Ins. Co., 54 N.Y.2d 69, 77, 429 N.E.2d 111, 115 (1981); see also Levin v. Nat l Colonial Ins. Co., 1 N.Y.3d 350, 806 N.E.2d 473 (2004). The UILA mandates recognition of liquidation orders from other states that have enacted the UILA. Ambassador Ins. Co. v. Allied Programs Corp., 564 N.Y.S.2d 54, 55, 165 A.D.2d 806 (1st Dep t 1990). Notwithstanding, New York will still recognize orders from states that have similar standards of uniform distribution in multistate insurer deficiency proceedings, defining reciprocal state as any state other than this state in which in substance and effect the provisions of this act are in force, including the provisions requiring that the insurance commissioner or equivalent insurance supervisory official be the receiver of a delinquent insurer. N.Y. Ins. Law 7408(b)(6). 34. By design, the insolvency laws of New York are intended to foster the paramount interest of the various States in seeing that insurance companies domiciled in their respective boundaries are liquidated in a uniform, orderly and equitable manner without interference from external tribunals. G. C. Murphy Co. v. Reserve Ins. Co., 54 N.Y.2d 69, 81, 429 N.E.2d 111, 117 (1981). As it follows, even when delinquency proceedings are pending in a state that has not adopted the UILA and New York does not otherwise afford reciprocal state status, a New York court may still extend comity and enforce another state s stay. E.g., A.B. Med. Servs. PLLC v. Highlands Ins. Co., 4 Misc.3d 1020(A), 791 N.Y.S.2d 867 (N.Y. Civ. Ct., N.Y. Cnty., Spec. Term 2004); see also U.S. Const. art. IV, 1; CPLR Courts in UILA states have considered South Carolina a reciprocal state through its adoption of the Insurers Supervision, Rehabilitation and Liquidation Model Act of 1989, a version of the UILA. Matter of Mutual Ben. Life Ins. Co., 258 N.J. Super. 356, , 609 A.2d 768, (App. Div. 1992); see also Propak Logistics v. Found. Ins. Co., 2007 U.S. 13 of 30

14 Dist. LEXIS 58199, *7 (W. Dist. Ark. 2007) ( South Carolina has adopted a version of the [UILA]. ); Hobbs v. Don Mealey Chevrolet, 642 So. 2d 1149, 1158, 1994 Fla. App. LEXIS 9171, *28 (Fla. Ct. of App., 5th Dist. 1994) (acknowledging virtually identical provisions in South Carolina s version of the [UILA] ). The laws in South Carolina have substantially comparable provisions [to the UILA] requiring the commissioner of insurance to be the domiciliary receiver of a domestic insurer undergoing liquidation, supporting a single, cohesive, uniform handling of the rehabilitation through a single state, and lessening the problems of interstate rehabilitation and liquidation by facilitating cooperation between the states in the liquidation process and by extending the scope of personal jurisdiction over debtors of the insurer outside [the] [s]tate. Matter of Mutual Ben. Life Ins. Co., 258 N.J. Super. at 369 (citations omitted). 36. Like New York, South Carolina affords reciprocity to states having equivalent statutory provisions, defining "reciprocal state" as any state other than this State in which in substance and effect subsection (a) of Section , Section , Section , and Sections through are in force, and in which provisions are in force requiring that the director, his designee, or equivalent official be the receiver of a delinquent insurer, and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers. S.C.C (17); see also Smalls v. Weed, 293 S.C. 364, 360 S.E.2d 531 (Ct. App. 1987). Accordingly, both New York and South Carolina would consider the other a reciprocal state since they have equivalent statutory framework. 37. In support of a uniform standard for multistate insurer delinquency proceedings to ensure fair and equitable distribution of assets, New York routinely endorses and upholds out-ofstate stay orders whether by mutual adoption of a multistate insurer law, reciprocity by 14 of 30

15 comparison of statutes, or under the Full Faith and Credit Clause. Under any of those approaches, a South Carolina court s order would clearly qualify for endorsement in a New York court. Thus, the Oceanus Liquidation Order has a binding effect in New York and on the case at bar. 38. Plaintiffs reference to the National Association of Insurance Commissioners ( NAIC ) Rehabilitation and Liquidation Model Act ( IRLM ) is misguided. IRLM came out in 1955 and was adopted by NAIC in 1968 but later replaced by the Insurer Receivership Model Act ( IRMA ) in 2005; in fact, although Plaintiffs refer to the 1955 act, the 2005 act is actually cited. In re Freestone Ins. Co., 143 A.3d 1234, n.4 (Del. Ch. 2016). Regardless, all of the multistate insurer acts are updated versions of the Uniform Insurers Liquidation Act of Id. Arguably, all fifty states and the District of Columbia have reciprocity in insurer delinquency proceedings because they have each enacted some version of the model/uniform acts. Id. 39. If this Court were to find the Oceanus Stay did not pertain to the instant matter and permit Plaintiffs to continue prosecution, there is no reason why every other similarlysituated plaintiff would not be permitted to continue prosecution of their respective cases which would frustrate the spirit of insolvency laws and intent of the stay. The costs of having to defend against such suits would not only drain the estate and the judicial resources of the liquidation court, but the case management of the suits themselves would also interfere with the [] orderly liquidation of the estate. Matter of Liquidation of Midland Ins. Co., 18 Misc.3d 1117(A), 856 N.Y.S.2d 498 (Sup. Ct., N.Y. Cnty. 2008). As such, this case should be stayed in its entirety. 40. In moving papers, Plaintiffs advance a convoluted argument that public policy considerations are not applicable to the instant litigation of note, the entire argument on this 15 of 30

16 point is devoid of any supporting reference or citation. Pl. Mot., Groman Aff., & 5. Plaintiffs claim that public policy does not apply to this case because Plaintiffs are seeking a money judgment against the policyholder Dr. Solomon and not directly against the defunct insurer Oceanus. Id. This rule appears to have been concocted by Plaintiffs as it is based on flawed logic ignoring general concepts of insurance coverage. Regardless, Plaintiffs unsupported assertion that [a]ny public policy considerations that could be relied on by defendants do not apply in this case can be restated as whatever Defendants position may be, it does not apply, which is absurd. Id. 41. Even if, arguendo, Plaintiffs could demonstrate likelihood of success on the merits or an inadequate remedy if the stay was upheld or the case was not severed, they still could not overcome the considerable public policy interests, well-established laws protecting insolvent insurers, and resulting prejudice to Defendants if the stay is not applied to all Defendants. III. SEVERANCE IS INAPPROPRIATE. 42. If this Court determines the Oceanus Liquidation Order is applicable to the instant action and enforces the automatic stay, Plaintiffs alternatively request severance of the case against Defendant Dr. Solomon. While it is certainly within the Court s discretion to order severance, it is well settled that severance should be exercised sparingly. Shanley v. Callanan Industries, Inc., 429 N.E.2d 104, 107, 54 N.Y.2d 52, 57 (1981). Moreover, severance is improper when the insolvent defendant is an integral party or when there are complex and intertwined legal and factual issues present which warrant a single trial in the interests of judicial economy and to avoid inconsistent verdicts. Also relevant to the determination is consideration 16 of 30

17 of whether the decision to sever or not to sever will result in prejudice to a substantial right of any of the parties and here, Plaintiffs have failed to offer any compelling argument of prejudice to a substantial right; as such, severance is inappropriate. 43. In a personal injury action, severance of a bankrupt defendant subjecting the case to an automatic bankruptcy stay in order to minimize delay of prosecution is improper when the bankrupt defendant is an integral party, plaintiffs claims against the defendants are intertwined, and severance would substantially prejudice the rights of defendants to litigate any possible counterclaims. Kelty v. G.M.L.B. Enterprises, Inc., 176 A.D.2d 483, 483, 574 N.Y.S.2d 519, 519 (1st Dep t 1991). Severance would be particularly improper in the case at bar because it would be prejudicial to Defendants, adversely affect the Oceanus liquidation, and is not conducive to judicial economy. 44. Further, severance would be premature since this case is in its infancy and there has been very little discovery exchanged since the Oceanus liquidation proceedings began approximately six weeks after the Preliminary Conference. Ex. E, F. Since this case is in its infancy and the claims Plaintiffs asserted are virtually identical as to all Defendants, the complete identity and connections between the parties remains unknown; nevertheless, there is a common question of law and fact. Uptown Healthcare Mgt., Inc. v. Rivkin Radler LLP, 116 A.D.3d 631, 631, 985 N.Y.S.2d 17, 17 (1st Dep t 2014). 45. Defendants have also not had an opportunity to obtain discovery from Dr. Solomon and, if severed, he would not be subject to discovery in this action which would create the need for future litigation, especially while his case is stayed. Plaintiff s argument that a severance order can be accompanied by a court order preserving [Defendants ] right to depose Dr. Solomon conveniently ignores the practical considerations that Defendants would be 17 of 30

18 saddled with when attempting to depose Dr. Solomon if his case was severed and stayed. For example, while Dr. Solomon s case is subject to the automatic stay, any actions by his counsel, including costs associated with obtaining and reviewing necessary records and transcripts, meeting and preparing Dr. Solomon, and representing him at the deposition would violate the Liquidation Order, diminish the insurer s assets, considered void without effect, and may entitle Oceanus to damages from Dr. Solomon, his counsel, and/or Defendants. Ex. F, p. 9-11; see also, Gaddy v. SE Prop. Holdings, LLC, 218 So. 3d 315, , 2016 Ala. LEXIS 70, *11 (2016). Another example would be if Defendants attempt to depose Dr. Solomon once the automatic stay can be lifted. So as not to violate the Liquidation Order, the stay would have to be lifted beforehand, which would require Plaintiffs involvement to complete the necessary steps, including negotiation and execution of any stipulations and payment of any associated fees in order to lift the stay. Defendants could then be in a position where they are beholden to Plaintiffs for any discovery or claims related to Dr. Solomon which would put Plaintiffs at an unfair advantage and frustrate Defendants ability to defend this case. It is clear that the only purpose severance of Dr. Solomon would serve is to reallocate the complex issues related to the Oceanus insolvency to Defendants whilst retaining control of the severed action against Dr. Solomon. 46. Indeed, Plaintiffs are correct that no crossclaims have been asserted but this is a brand new case in which the basic and essential facts are still in development for Defendants; some of the parties own records have not been exchanged and authorizations to obtain the decedent s ancillary records have not been served. If Dr. Solomon is severed and discovery reveals an obligation for his indemnification or contribution, those would be precisely the sort of claims that would adversely affect the Oceanus estate and violate the Liquidation Order. 18 of 30

19 47. In support of the argument to sever Dr. Solomon, Plaintiffs advance the bare conclusory assessment that severance is appropriate because Dr. Solomon is not an indispensable party. Despite the lack of information as to how Dr. Solomon is not an indispensable party, Plaintiffs aver the severance issue is analogous to two cases with distinctly discordant facts and issues to the instant matter. Pl. Mot., Groman Aff., &13; Rosenbaum v. Dane & Murphy, Inc., 189 A.D.2d 760, 592 N.Y.S.2d 391 (2d Dep t 1993) (involving property damaged in a warehouse fire; severance was appropriate because the bankrupt defendant who operated the warehouse was the agent/employee of a codefendant subject to vicarious liability; in addition, prior to the stay the bankrupt insurer had denied coverage on this claim and the bankrupt defendant was seeking a declaratory judgment against the bankrupt insurer); Lottes v. Slater, 114 A.D.2d 580, 494 N.Y.S.2d 438 (3d Dep t 1985) (a golfer sued the golf course, golf cart rental company, golf cart supplier, and two golf cart manufacturers because there was no way to determine which of the two actually manufactured the golf cart that hit him and caused injuries; the bankrupt defendant one of the manufacturers was properly severed because the two manufacturers were joint tortfeasors and a contribution claim would not require the case to be relitigated; in addition, the case had already been stayed for six years). Neither case provides insight on the determination and analysis of whether Dr. Solomon would not be deemed an indispensable party in the case at bar. 48. In reality, based on Plaintiffs moving papers, Dr. Solomon would be an indispensable party. Plaintiffs claim the failure to diagnose a right lower extremity thrombus led to fatal pulmonary embolism. Pl. Mot., Groman Aff., & 2. Since the existence of thrombi cannot be diagnosed by clinical presentation alone, depending on the fact-specific circumstances, Doppler ultrasound imaging could be the modality of choice for detection and diagnosis. 19 of 30

20 Plaintiffs claim there was a failure to take a proper Doppler and that Dr. Solomon is the sole radiologist in this action. Pl. Mot., Groman Aff., && 2 (emphasis added), 13. Therefore, Doppler imaging was performed and Plaintiffs are claiming a purported failure to diagnose was due to improper imaging or a failure to diagnose on imaging considering formal interpretation and report of imaging would presumably be performed by a radiologist then Dr. Solomon would definitely be an indispensable party since his involvement could be critical to fact finding and case analysis. To be clear, since the records have not been exchanged or received this is speculation based on Plaintiffs allegations and arguments in moving papers evincing that at this point in the litigation severance is improper. 49. In addition to strong public policy supporting the stay, [t]he duplication of effort, waste of judicial resources, and possibility of inconsistent rulings in the absence of a stay outweigh any prejudice to plaintiff. OneBeacon Am. Ins. Co. v. Colgate-Palmolive Co., 96 A.D.3d 541, 541, 949 N.Y.S.2d 14, 14 (1st Dep t 2012). The evidence to be introduced by Plaintiffs as to the liability of the Dr. Solomon and remaining Defendants will be the same and presumably the defenses proffered by all Defendants will be the same which would invite inconsistent rulings on questions of fact and law if the case were severed. Such duplication is the antithesis of judicial economy. 50. By the same token, a single trial will also conserve Plaintiffs resources in the long run by not having to litigate multiple actions. 51. In Barrett v. New York City Health and Hospitals Corporation, 150 A.D.3d 949, 55 N.Y.S.3d 318 (2d Dep t 2017) the Second Department reversed a severance order of the Supreme Court, Kings County, and reaffirmed the tenet that [a]lthough it is within a trial court s discretion to grant a severance, this discretion should be exercised sparingly.[s]everance is 20 of 30

21 generally inappropriate where the claims against the defendants involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial. Barrett, 150 A.D.3d (internal citations omitted). In Barrett, the plaintiff commenced an action against New York Health and Hospitals Corporation in 2012 alleging medical malpractice in the failure to diagnose a blood clot while being treated at Kings County Hospital Center in 2010 which later led to a stroke. Id. During discovery, after the defendant learned of prior treatment for the same condition at Long Island College Hospital (LICH), a third-party action was commenced against LICH. Id. at 950. The third-party action was severed by the Trial Court after the plaintiff filed the note of issue but the order was reversed by the Appellate Division, Second Department, which held it to be an improvident exercise of discretion since there were factual and legal issues in common. Id. at In New York Schools Insurance Reciprocal v. Milburn Sales Company, Incorporated, 138 A.D.3d 940, 941, 31 N.Y.S.3d 102, 103 (2d Dep t 2016), the Second Department reiterated that severance is a discretion that should be exercised sparingly (citations omitted). The Court further noted that [s]everance is generally inappropriate where the claims against the defendants involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial (citations omitted). Id. The Appellate Department also noted that [t]he only prejudice cited by the plaintiff was that resulting from delay, however, any potential prejudice resulting from the delay was outweighed by the interests of judicial economy and consistency of verdicts that would be served by having a single trial (citation omitted). Id.; see also, Shanley v. Callanan Industries, Inc., 54 N.Y.2d 52, 57 (1981) (severance should be exercised sparingly [w]here complex issues are intertwined it would be better not to fragment trials, but to facilitate one complete and 21 of 30

22 comprehensive hearing.[f]ragmentation increases litigation and places an unnecessary burden on court facilities by requiring two separate trials instead of one ); Herrera v. Municipal Hous. Auth. of City of Yonkers, 107 A.D.3d 949, 949, 966 N.Y.S.2d 891, 891 (2d Dep t 2013) (severance inappropriate for an action involving indemnification, when the actions involve common factual and legal issues, a single trial is appropriate in the interest of judicial economy and to avoid the possibility of inconsistent verdicts ); Zili v. City of N.Y., 105 A.D.3d 949, 950, 963 N.Y.S.2d 684, 685 (2d Dep t 2013) (severance was providently denied by the Supreme Court, Kings County, since [t]he causes of action asserted against all of the defendants present common factual and legal issues, and [the proponents of severance] failed to establish that a single trial would result in prejudice of a substantial right.any potential prejudice is outweighed by the possibility of inconsistent verdicts in the event that the cause of action against them were tried separately ); N.Y. Cent. Mut. Ins. Co. v. McGee, 87 A.D.3d 622, 624, 928 N.Y.S.2d 360, 362 (2d Dep t 2011) (as it would not be in the interests of consistency of verdicts and judicial economy for the plaintiff to have commenced multiple actions, severance after the fact would be equally improper); Curreri v. Heritage Prop. Inv. Trust, Inc., 48 A.D.3d 505, 507, 852 N.Y.S.2d 278, 282 (2d Dep t 2008) (severance was an improvident exercise of discretion since there are common factual and legal issues involved and the interests of judicial economy and consistency of verdicts will be served by having a single trial ); Boeke v. Our Lady of Pompei School, 73 A.D.3d 825, 826, 901 N.Y.S.2d 336, 338 (2d Dep t 2010) (reversing the Supreme Court, Kings County, decision to grant severance since the actions involve common factual and legal issues a single trial is appropriate in the interest of judicial economy and to avoid the possibility of inconsistent jury verdicts ); Mothersil v. Town Sports Int l, 24 A.D.3d 424, 424, 804 N.Y.S.2d 687, 687 (2d Dep t 2005) (the Supreme Court, Kings County, properly 22 of 30

23 denied severance where there were common factual and legal issues and the proponents of severance failed to establish that a single trial would result in prejudice of a substantial right); Ingoglia v. Leshaj, 1 A.D.3d 482, 485, 769 N.Y.S.2d 40, 44 (2d Dep t 2003) (with common factual issues, the interests of judicial economy and consistency would only be served in having a single trial); Villatoro v. Talt, 269 A.D.2d 390, 391, 702 N.Y.S.2d 381, 383 (2d Dep t 2000) (severance inappropriate where there are common factual and legal issues and a single trial is appropriate in the interest of judicial economy and to avoid the possibility of inconsistent jury verdicts ; further, a short stay would not unduly prejudice the plaintiffs); Morford v. A. Sulka & Co., 79 A.D.2d 502, 502, 433 N.Y.S.2d 573, 574 (1st Dep t 1980) (severance is a matter of judicial discretion that is soundly exercised where the separate trial involves an issue which does not touch upon the merits of the main controversy ); Schutt v. Dynasty Transp. Of Ohio, Inc., 2015 N.Y. Misc. LEXIS 2237, 2015 NY Slip Op (N.Y. Sup. Ct., Suffolk Cnty. 2015) (severance inappropriate when there are common questions of fact and law); Boyce v. N.Y.C. Hous. Auth., 42 Misc.3d 1234(A) *5, 988 N.Y.S.2d 521 (N.Y. Sup. Ct., Queens Cnty. 2014) ( [t]his court finds therefore, that since there are common factual and legal issues involved, the interests of judicial economy and consistency of verdicts will be served by having a single trial ); Johnson v. Methodist Hosp. of Brooklyn, 27 Misc.2d 1050, 1052, 210 N.Y.S.2d 888, 890 (N.Y. Sup. Ct., Kings Cnty. 1960) (if severance were granted there would be the possibility of a great waste of time, duplication of effort and evidence, with the necessity of two trials, as well as a severe financial burden upon the plaintiff.[t]his was never the intent of the legislators in promulgating the section ). 53. The instant case is readily distinguishable from the cases upon which Plaintiffs rely in support of severance, in particular Moy v. Saint Vincent s Hospital and Medical Center of 23 of 30

24 New York, 92 A.D.3d 651, 938 N.Y.S.2d 328 (2d Dep t 2012). See also Kharmah v. Metro. Chiropractic Ctr., 288 A.D.2d 94, 733 N.Y.S.2d 165 (1st Dep t 2001); Weber v. Baccarat, Inc., 70 A.D.3d 487, 896 N.Y.S.2d 12 (1st Dep t 2010); Golden v. Moscowitz, 194 A.D.2d 385, 598 N.Y.S.2d 522 (1st Dep t 1993); Rosenbaum v. Dane & Murphy, Inc., 189 A.D.2d 760, 592 N.Y.S.2d 391 (2d Dep t 1993); CenTrust Serv., Inc. v. Guterman, 160 A.D.2d 416, 554 N.Y.S.2d 113 (1st Dep t 1990); Lottes v. Slater, 114 A.D.2d 580, 494 N.Y.S.2d 438 (3d Dep t 1985). 54. In Moy, the plaintiff commenced the action against defendants St. Vincent s Hospital and Michael G. Wayne, a physician, to recover damages for medical malpractice and the Second Department held severance of Dr. Wayne from the insolvent defendant hospital was appropriate. 92 A.D.3d 651, 651, 938 N.Y.S.2d 328, 328 (2d Dep t 2012). Howbeit, it is impossible to analogize the instant case to Moy since the Moy decision is devoid of any facts or circumstances that gave rise to litigation aside from the characterization of defendant Michael G. Wayne as a physician and there is no prior or subsequent case history available. Id. (According to his biography, Dr. Wayne specializes in Hepatobiliary-Pancreatic and General Surgery [available at If the Moy plaintiff s case against St. Vincent s Hospital was solely based on vicarious liability for Dr. Wayne as the plaintiff s private physician, then severance may have been appropriate in that case since the facility and no other parties were named, leading one to believe there were no independent claims against the facility; however, the instant case is not a situation of a physician and a facility that may be vicariously liable for the physician. Moy, 92 A.D.3d 651. Also conspicuously absent from Moy is a recitation of the procedural history or any discussion on the reason severance was originally denied by the trial court. Id. Since the Moy plaintiff was appealing an order dated February 24, 2010, which denied his motion to sever Dr. Wayne from 24 of 30

25 the causes of action against the hospital; there is reason to believe there may have been more to this motion than the plaintiff s motion to sever the insolvent defendant, possibly a motion for severance in anticipation of insolvency since St. Vincent s Hospital did not file for chapter 11 relief until April 14, 2010 (St. Vincent s Catholic Medical Centers chapter 11 filings, available at Moy, 92 A.D.3d at 651. Nonetheless, without more information the application of this decision and its relevance to the case at hand is unknown. 55. Indeed, the Moy Court does not discuss the reasoning behind their reversal either other than prejudice to plaintiff if required to wait for bankruptcy proceedings, asserting the oftcited proposition, [i]t has been generally held that the balance of equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 U.S.C. 362(a) and codefendants request a stay of the entire action. Id. (citations omitted). Here, Plaintiffs reliance on this quote to establish prejudice in mere delay of proceedings is severely misguided. A review of the line of cases in which this or similar quotes can be found reveals that the prejudice to the plaintiffs was not based on inconvenience and the mere delay of time; instead, the circumstances can be categorized as (1) a delay coupled with particularly precarious age or health circumstances resulting in overwhelming hardship; (2) situations where it would be futile or meaningless to wait for the conclusion of the insolvency proceeding (e.g., notice of denial of coverage; realization the party has no liability); or (3) that discovery was complete and the case had already been on the trial calendar. See, e.g., Katz v. Mt. Vernon Dialysis, LLC, 121 A.D.3d 856, 994 N.Y.S.2d 661 (2d Dep t 2014) ( prejudice to the 86-year-old injured plaintiff in being required to await the conclusion of the bankruptcy proceeding ); Weber v. Baccarat, Inc., 70 A.D.3d 487, 896 N.Y.S.2d 12 (1st Dep t 2010) ( discovery had been completed and the case was ready to go to trial at the time [the] bankruptcy petition was filed ); Rapini v. New Plan Excel 25 of 30

26 Realty Trust, Inc., 8 A.D.3d 1013, 778 N.Y.S.2d 347 (4th Dep t 2004) (delay was obviously prejudicial considering the plaintiff was 83 years old when he fell 2-4 years prior); Kharmah v. Metro. Chiropractic Ctr., 288 A.D.2d 94, 733 N.Y.S.2d 165 (1st Dep t 2001) (after discovery had completed, defendant chiropractors filed for chapter 7, but they did not maintain professional liability insurance during the period in question); Lottes v. Slater, 114 A.D.2d 580, 494 N.Y.S.2d 438 (3d Dep t 1985) (case had been stayed already for six years awaiting a reorganization) Golden v. Moscowitz, 194 A.D.2d 385, 598 N.Y.S.2d 522 (1st Dep t 1993) ( [d]iscovery had been completed and the case was ready to go to trial at the time the bankruptcy petition was filed ); Rosenbaum v. Dane & Murphy, Inc., 189 A.D.2d 760, 592 N.Y.S.2d 391 (2d Dep t 1993) (insolvent defendant was an employee of a solvent defendant; action could continue against the solvent employee defendant since the insolvent defendant would emerge without assets); CenTrust Serv., Inc. v. Guterman, 160 A.D.2d 416, 554 N.Y.S.2d 113 (1st Dep t 1990) (involving false representation in a partnership; plaintiff could sever and proceed only on causes of action not involving insolvent defendant s property); Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1076 (3d Cir. 1983) ( we cannot ignore the fact that plaintiffs and crucial witnesses are dying, often from the very disease that have led to these actions ); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1199 (6th Cir. 1983) ( plaintiffs and crucial witnesses are dying.time is of the essence in the prosecution of asbestos cases ). 56. When the aforementioned conditions are not present and the issues are complex and intertwined, such as the instant case, severance is inappropriate and the inconvenience of a delay in time alone is not considered prejudicial to a plaintiff. In County of Chenango Industrial Development Agency v. Lockwood Greene Engineers, Incorporated, the Third Department held: Courts, in exercising their discretion, should grant severance sparingly. This is particularly true where complex issues are intertwined. In such cases, it would 26 of 30