FILED: KINGS COUNTY CLERK 08/03/ :57 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 08/03/2016

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1 FILED: KINGS COUNTY CLERK 08/03/ :57 PM INDEX NO /2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 08/03/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x ABDUL CHOUDHRY - against - Plaintiff, TIMOTHY REISH, M.D., INSALL SCOTT KELLY INSTITUTE, JASON DALLING, M.D. and LENOX HILL HOSPITAL AT MEETH, AFFIRMATION IN SUPPORT OF CROSS-MOTION Index No E Defendant. DANIEL W. MILSTEIN, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms under the penalties of perjury and upon information and belief as follows: 1. I am an associate with the law firm of AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP, attorneys for defendant TIMOTHY REISH, M.D. in the above entitled matter. As such, I am fully familiar with all the facts and circumstance of this action based upon a review of the file maintained in your affirmant's office for the defense of the within matter. 2. This Affirmation is submitted in support of the instant application seeking an Order: Pursuant to CPLR 3042(d) and 3126(3) dismissing the above-entitled action with prejudice for plaintiffs' willful and intentional failure to comply with defendants' discovery demands; or in the alternative pursuant to CPLR 3042(c) and 3126(2) precluding plaintiff from presenting any evidence in support of his claims at trial; or in the alternative pursuant to CPLR 3124, compelling plaintiff to comply with and respond to the outstanding discovery demands served by moving defendant within ten (10) days of the Court's Order and for such other and further relief as this Court deems just and proper under the circumstances DOCX } 1 of 6

2 3. This action sounds in medical malpractice, regarding an open reduction internal fixation of the left clavicle. PROCEDURAL HISTORY 4. Plaintiff commenced this action with the filing of a Summons and Complaint on or about July 9, See Summons and Complaint, annexed hereto as Exhibit A. 5. Defendant joined issue with the service of a Verified Answer as to DR. REISH on or about September 21, See Verified Answer, annexed hereto as Exhibit B. Included with the Verified Answer were discovery demands, also annexed hereto as Exhibit B. 6. A Preliminary Conference was held on February 19, At the conference, the plaintiff was ordered to provide pieces of discovery, including a Supplemental Bill of Particulars, within 30 days. A copy of the order is annexed hereto as Exhibit C. This office has not received a Supplemental Bill of Particulars to date. 7. As numerous items of discovery remained outstanding, including authorizations and a Supplemental Bill of Particulars, defendant herein served a follow-up letter for outstanding discovery dated April 27, A copy of said letter is annexed hereto as Exhibit D. To date, defendant herein has not received a response to this correspondence. 8. On May 17, 2016, defendant herein served a demand for authorizations. A copy of said demand is annexed hereto as Exhibit E. To date, defendant herein has not received a response to this demand. 9. Because voluminous discovery remained outstanding, as noted above, defendant herein served another follow-up letter dated June 14, A copy of said letter is annexed hereto as Exhibit F. Yet again, plaintiff failed to respond. { DOCX } -2-2 of 6

3 10. To date, plaintiff has failed to provide a Supplemental Bill of Particulars, and authorizations remain outstanding. ARGUMENT 11. CPLR 3126 provides, in relevant part, that: If any party...refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. 12. CPLR 3126 thus grants courts the authority to dismiss a case for a party's failure to comply with discovery orders. In Kihl v. Pfeffer, 94 N.Y.2d 118 (1999), the Court of Appeals wrote, "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders... as are just, including dismissal of an action (CPLR 3126).'" Id. at Recurrently, CPLR 3126 has been construed literally to give the Supreme Court discretion to dismiss the party's pleadings as a sanction for dilatory conduct in response to discovery demands. (See e.g. Zelz v. Wetanson, 67 NYS2d 711 (1986); Lowit v. Korelitz, 152 AD2d 506 (1st Dep't 1989); Berman v. Szpilzinger, 580 NY2d 324 (1st Dep't 1992); Schwartzman v. Zupzalgen, 791 NYS2d 569, 570 (2d Dep't 2005) (finding that the plaintiffs failure to adequately respond to discovery demands and court directives to comply with demands without adequate explanation is willful, contumacious conduct). In Cespedes v. Mike & Jac { DOCX } -3-3 of 6

4 r I 1 Trucking Corp., the First Department defined willful as" failing to provide responsive answers upon appearing, or when the failures to appear or comply is repetitive." Cespedes, 305 A.D.2d 222, 222 (N.Y. App. Div. 1st Dep't 2003) (internal citations omitted). Likewise, the Second Department has written, "The Supreme Court providently exercised its discretion in granting the defendants' cross motion to dismiss the complaint pursuant to CPLR 3126 because the plaintiffs' willful and contumacious conduct can be inferred from their repeated failures to provide outstanding authorizations both in response to the defendants' demands and in compliance with the Supreme Court's orders, and to comply with the Supreme Court's directive to provide a further bill of particulars." Batshever v. Jafar, 73 A.D.3d 1108, (N.Y. App. Div. 2d Dep't 2010) (internal citations omitted). See also Field v. Bao, 2016 N.Y. Slip Op (N.Y. App. Div. 2d Dep't, 2016). 14. Upon such showing the burden shifts to the opposing party to demonstrate a reasonable excuse. Fish & Richardson, P.C. v Schindler, 75 A.D.3d 219, 220 (N.Y. App. Div. 1st Dep't 2010); Reidel v Ryder TRS, Inc., 13 A.D.3d 170, 171 (N.Y. App. Div. 1st Dept 2004). To date, plaintiff has yet to proffer any excuse, let alone a reasonable one, for his failure to comply with discovery and failure to move this case forward. 15. In the instant matter, plaintiff has failed to comply with all discovery demands served since the inception of this case. Pursuant to CPLR 3042(c), if a party fails to respond to a demand in a timely fashion, the party seeking the Bill of Particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to subdivision (d), which provides that if a party served with a demand for a Bill of Particulars willfully fails to provide particulars, the Court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in CPLR Such relief pursuant to ( DOCX } -4-4 of 6

5 CPLR 3126 includes an Order by the Court dismissing plaintiff's action for failure to respond to the Demand for a Bill of Particulars, and/or precluding plaintiff from introducing any evidence for which a Bill of Particulars has been demanded. 16. Not only has plaintiff failed to respond to defendants' numerous discovery demands, but at no point has plaintiff made any objection to the demands; requested any extension of time to respond; and/or offer any excuse for the delay. Just as in Batshever, plaintiff has willfully and contumaciously failed to provide authorizations or a Bill of Particulars, or any other item of discovery in response to defendant's demands and the court's numerous orders. 17. The defendants are prejudiced by plaintiffs continued inactivity and delays. Allowing the plaintiff to continue this case, despite repeated indifference to its prosecution, would be unduly prejudicial and create a severe and unfair burden on the defendants. The prejudice is worsened and the interests of the moving defendant is adversely affected by virtue of the fact that there is an action pending and time is passing without the ability to adequately investigate the allegations; inability to preserve potential witnesses, as their memories may fade; and delay in reaching an ultimate disposition of the case. Furthermore, plaintiffs delay and noncompliance has caused the defendants to incur unnecessary and burdensome expenses in seeking relief for these issues. 18. As a result, plaintiff s Complaint should be dismissed in its entirety for plaintiffs willful failure to respond to defendant's various discovery demands. Alternatively, if the Court is not inclined to dismiss the action, your affirmant requests that pursuant to CPLR 3126 (2), plaintiff be precluded from introducing evidence at the time of trial, with respect to the discovery demanded and/or pursuant to CPLR 3124, plaintiff be directed to comply with and respond to all demands served within twenty (20) days of this Court's Order. { DOCX } -5-5 of 6

6 other court. 19. No prior application for the relief sought herein has been made to this court or any WHEREFORE, it is respectfully requested that the within motion be granted in its entirety, and plaintiff's Complaint be dismissed, with prejudice, together with such other and further relief as this Court deems just and proper. Dated: New York, New York August 3, 2016 DANIEL W. MILSTEIN { DOCX } -6-6 of 6