FILED: KINGS COUNTY CLERK 02/09/ :50 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/09/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS â â â â â â â â X -- â â â â â â â -- â â â â â â â â â â â â â -- â â X DRUCELLA HARRIS, Index No.: /15 Plaintiff, -against- -ag ainst- AFFIRMATION IN SUPPORT NEW YORK CITY HOUSING AUTHORITY, and THE CITY OF NEW YORK X Defendants. WILLIAM P. PAWLOW, an attorney admitted to practice law before the Courts of New York State, affirms the truth of the following statements under penalties of perjury: 1. I am a member of the firm of Herzfeld 8 Rubin, P.C., attorneys for defendant/third-party plaintiff New York City Housing Authority ("NYCHA"), and, as such, am fully familiar with the facts and circumstances of this action from my review of the file maintained by our office in connection with this case. I submit this affirmation in support of NYCHA's motion for an Order: (a) pursuant to 22 NYCRR (e), striking this matter from the Ready Trial Calendar, based on plaintiff's recent service of two Supplemental Bill of Particulars and failure to provide outstanding discovery; (b) pursuant to CPLR 3101, 3124 and 3126 compelling plaintiff to provide all outstanding HIPAA compliant authorizations; appear for a further deposition; appear for independent medical examination or precluding plaintiff from offering any evidence or testimony at trial relating to the injuries alleged in plaintiff's two Verified Supplemental Bill of Particulars; 5 1 of 7

2 (c) granting defendant New York City Housing Authority such other and further relief, as may be just, proper and equitable under the circumstances. 2. This action involves a claim for conscious pain and suffering. The incident which is the subject matter of this lawsuit involves a trip and fall on a sidewalk located in front of 841D and 845A Gates Avenue, Brooklyn, NY on October 10, Annexed hereto for the Court's convenience are the following Exhibits: Exhibit A: Plaintiff's Summons and Verified Complaint dated March 19, 2015; Exhibit B: Defendant, NYCHA's Verified Answer dated April 28, 2015; Exhibit C: Plaintiff's Verified Bill of Particulars dated September 24, 2015; Exhibit D: Plaintiffs' Note of Issue and Certificate of Readiness dated January 27, Exhibit E: Plaintiff's Verified Supplemental Bill of Particulars dated January 27, Exhibit F: Defendant NYCHA's motion to Strike Plaintiff's Certificate of Readiness dated February 16, Exhibit G: Order of Justice Bernard Graham dated April 26, Exhibit H: Defendant NYCHA's Demand for Authorizations dated June 15, Exhibit 1: Further Examination Before Trial of Plaintiff Drucella Harris dated June 19, Exhibit J: Defendant NYCHA's Demand for Authorizations dated July 5, Exhibit K: Defendant NYCHA's Demand for Authorizations dated July 7, Exhibit L: Defendant NYCHA's Demand for Authorizations dated July 11, 6 2 of 7

3 Exhibit M: Plaintiff's Verified Supplemental Bill of Particulars dated December 19, Exhibit N: Plaintiff's Verified Supplemental Bill of Particulars dated December 29, and, Exhibit O: Defendant NYCHA's good faith letter dated February 2, Plaintiffs commenced the within action by filing a Summons and Complaint on March 19, Exhibit "A". A Verified Answer was served on behalf of NYCHA on April 28, Exhibit "B". 5. Plaintiff served a Verified Bill of Particulars on September 24, Exhibit "C". On January 27, 2017, plaintiff filed a Note of Issue and Certificate of Readiness. Exhibit "D". Along with his Note of Issue plaintiff served a Supplemental Verified Bill of Particulars. Exhibit "E". By Notice of Motion dated February 16, 2017, defendant NYCHA moved to Strike Plaintiff's Note of Issue. Exhibit "F". 6. On April 26, 2017, Justice Bernard Graham issued an Order requiring plaintiff to provide additional discovery and appear for a further deposition. Exhibit "G". On June 15, 2017, defendant NYCHA served a Demand for Authorizations upon plaintiff. Exhibit "H". Plaintiff appeared for a further deposition on June 19, Exhibit "I". As a result of plaintiff's further deposition testimony defendant NYCHA served demands for authorizations on July 5, 2017, July 7, 2017 and July 11, Exhibits "J", "K" and "L". 7. On December 19, 2017 and December 29, 2017 plaintiff served a Verified Supplemental Bill of Particulars alleging a total right knee replacement and a future lumbar surgery at L-2 and L4-5. Exhibits "M" and "N". 8. On February 2, 2017, defendant NYCHA sent a good faith letter to plaintiff's counsel outlining the authorizations owed to NYCHA. Exhibit "O". To date, 7 3 of 7

4 plaintiff's counsel has not responded. Furthermore, on February 5, 2018, the undersigned followed up with a phone call to plaintiff's counsel. I left a message with Mr. Weinstein's answering service. I have not received a return call. THIS MATTER IS NOT TRIAL READY AS THE FOLLOWING ITEMS OF DISCOVERY REMAIN OUTSTANDING. 9. As the pertinent procedural history outlined above makes clear, material and necessary discovery remains outstanding in this matter. To date, the following items of discovery remain outstanding: a. A further examination before trial of the plaintiff, relating to her December 2017 total knee replacement and her future back surgery. b. Further independent medical examination of the plaintiff. c. HIPAA compliant authorizations for the release of plaintiff's medical records from the following entities: Jean Schmidt; Stuart Green; Dr. Hyunsook Ohm; Dr. Pierre Beau Brun; Herbert Kwasnik; AG Urgent Care; Bijoy Mehia; Dr. Phillipe Day; Dr. Al Adams; Stanley Newfield; Howard Friedman; William Vanderwall; Dr. Marcos Cruz; Dr. Eduard Rozner; Lenox Hill Radiology; Long Island Jewish Medical Center; and, Integra Partners. Social Security Disability Board; Plaintiff's alleged right knee replacement surgery; Dr. Tischler; Dr. Baum; 8 4 of 7

5 Non-privileged legal file of law firm that represented plaintiff in her application for disability benefits; Facility on Joralemon Street where plaintiff appeared for a physical examination as part of her disability application; Plaintiff's car service; Plaintiff's MRIs since November 14, AAA Home Care; Dr. Onianwa; Dr. Dumas; Dr. Elazar; Dr. Harif Ahmed; Dr. Rajen Mehta; Methodist Hospital; Visiting Nurses Service of New York; NY Community Hospital; and, 2016 IRS Records. 10. With thirty-five (35) authorizations outstanding, a further Examination Before Trial and a further Independent Medical Examination, clearly, this action is not trial ready and should be stricken from the Court's Trial Calendar. 11. What is more, compelling this defendant to proceed to trial without the benefit of full discovery denies it of its constitutional right to due process. Although it is true that a court has the power "to control its own calendar and the disposition of business before it...no matter how pressing the need for expedition of cases, the court may not deprive the parties of the fundamental rights to which they are entitled" (Lipson v. Dime Savings Bank, FSB, 203 A.D. 2d 161, 610 N.Y.S.2d 261 [1St Dept. 1994]). The right to conduct discovery is a fundamental right. Id.; see also, Matter of Hochberg v. Davies, 171 A.D.2d 192, 575 N.Y.S.2d 311 (1st Dept. 1991) (fundamental rights of litigants must not be ignored "no matter how pressing the need for expedition of cases"). Directing a party to proceed to a trial or party' hearing without affording it the opportunity to conduct discovery is a violation of that party's constitutional rights to due process of law (City of New York v. State of New York, 130 A.D.2d 433, 515 N.Y.S.2d 764 [1st Dept. 1987]). 9 5 of 7

6 12. The very purpose of the statement of readiness is to keep off the Trial Calendar those cases which are not ready for trial. Elisha Najjar et al. v. National Kinney Corp.,., 89 A.D.2d 545 (2d Dept. 1982). Where plaintiff filed the Note of Issue despite plaintiff's failure to provide complete discovery responses, defendant's motion to vacate the Note of Issue was properly granted. Quality Health Products v. Geico General Ins. Co., 2012 N.Y. Misc. LEXIS 4155; 2012 NY Slip Op 51645U (2d (2 oept. 2012). 13. Moreover, where plaintiffs' certificate of readiness contained erroneous statements that discovery had been completed, defendant's motion to vacate the Note of Issue was also appropriately granted. Axis Chiropractic, PLLC v. Geico General Ins. Co., 29 Misc.3d 134A; 920 N.Y.S.2d 239 (2d (2 oept. 2010); see also Queens Chiropractic Management, P.C. v. Country Wide Insurance Company, 23 Misc.3d 142A; 889 N.Y.S.2d 883 (2d oept. 2009), in which the Court upheld the striking of the Note of Issue where plaintiff failed to appear for a deposition and did not comply with other discovery demands. 14. Allowing this action to remain on the Trial Calendar, rewards plaintiffs for their failure to timely complete discovery. Such conduct should not be condoned by permitting this action to stand on the Trial Calendar. 15. Based on the foregoing, this matter is clearly not trial ready and should be stricken from the Court's Trial Calendar. WHEREFORE, defendant, NEW YORK CITY HOUSING AUTHORITY, respectfully requests that this Court grant an Order: (a) pursuant to 22 NYCRR (e), striking this matter from the Ready Trial Calendar, based on plaintiff's recent service of two Supplemental Bill of Particulars and failure to provide outstanding discovery; (b) pursuant to CPLR 3101, 3124 and 3126 compelling plaintiff to provide all outstanding HIPAA compliant authorizations; appear for a 10 6 of 7

7 further deposition; appear for independent medical examination or precluding plaintiff from offering any evidence or testimony at trial relating to the injuries alleged in plaintiff's two Verified Supplemental Bill of Particulars; (c) granting defendant New York City Housing Authority such other and further relief, as may be just, proper and equitable under the circumstances. Dated: New York, New York February 9, 2018 Yours, etc. ' By HER FELD K RU ~P.C> i ).ih am. Pawlow Attorneys for Defendant New York City Housing Authority 125 Broad Street New York, New York (212) of 7