FILED: NEW YORK COUNTY CLERK 10/12/ :47 PM INDEX NO /2016 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/19/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /2016 JEANNETTE SWEAT, -against- Plaintiff, NOTICE OF MOTION ELIAS KASSPIDIS, M.D. and LENOX HILL HOSPITAL, Defendants X PLEASE TAKE NOTICE that upon the annexed affirmation of ANDREW J. PIÑON, ESQ. dated October 12, 2018, the exhibits annexed hereto and upon all the pleadings and proceedings heretofore and herein, defendant, ELIAS KASSAPIDIS, M.D., s/h/a ELIAS KASSPIDIS, M.D., will move this Court at the Supreme Court, New York County, Room 130, 60 Centre Street, New York, New York on November 2, 2018, at 9:30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an Order: a. Pursuant to Uniform Rule (e), vacating the plaintiff's Note of Issue and Certificate of Readiness filed on September 24, 2018 and striking the action from the Court's trial calendar on the grounds that all pre-trial discovery is not complete and this matter is not ready for trial; b. Pursuant to CPLR Article 31, compelling the plaintiff to provide outstanding discovery; c. Pursuant to CPLR 3212, extending the defendants time to file a motion for summary judgment to 120 days after the completion of all depositions; and, d. For such other and further relief this Court deems just and proper. 1 of 10

2 PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are required to be served on the undersigned at least seven days prior to the return date of this motion pursuant to CPLR 2214(b). Dated: New York, New York October 12, 2018 Yours, etc. DECORATO COHEN SHEEHAN & FEDERICO, L By: Andrew J. iñon, Esq. Attorneys for D fendant ELIAS KASSAPIDIS, M.D. s/h/a ELIAS KASSPIDIS, M.D. 14th 90 Broad Street, New York, New York (212) TO: TRIEF & OLK Attorneys for Plaintiff 150 East 58th Street, 34th Floor New York, New York (212) WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorneys for Defendant LENOX HILL HOSPITAL 42nd 150 East Street New York, New York (212) of 10

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: JEANNETTE SWEAT, /2016 Plaintiff, -against- AFFIRMATION IN SUPPORT ELIAS KASSPIDIS, M.D. and LENOX HILL HOSPITAL, Defendants. -- X ANDREW J. PIÑON, an attorney duly admitted to practice law in the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am an associate of the law firm of DECORATO COHEN SHEEHAN & FEDERICO, LLP, attorneys of record for defendant ELIAS KASSAPIDIS, M.D., s/h/a ELIAS KASSPIDIS, M.D., in the above-referenced matter. 2. I am fully familiar with the facts and circumstances surrounding this action based upon a review of the file maintained by this office during the course of this litigation. 3. I submit this affirmation in support of the within motion for an order: (a) Pursuant to Uniform Rule (e), vacating the plaintiff's Note of Issue and Certificate of Readiness filed on September 24, 2018 and striking the action from the Court's trial calendar on the grounds that all pre-trial discovery is not complete and this matter is not ready for trial; (b) pursuant to CPLR Article 31, compelling the plaintiff to provide outstanding discovery; (c) pursuant to CPLR 3212, extending the defendant's 3 of 10

4 time to file a motion for summary judgment to 120 days after the completion of all depositions; and, (d) for such other and further relief this Court deems just and proper. NATURE OF CASE 4. This action sounds in claims of medical malpractice regarding Jeannette Sweat. PROCEDURAL HISTORY 5. This action was commenced by the filing and service of a Summons and Complaint on or about February 16, (EXHIBIT "A.") 6. Issue was joined as to defendant, ELIAS KASSAPIDIS, M.D. s/h/a ELIAS KASSPIDIS, M.D., with the service of a Verified Answer on or about April 7, (EXHIBIT "B.") 7. Verified Bill of Particulars as to defendant, ELIAS KASSAPIDIS, M.D. s/h/a ELIAS KASSPIDIS, M.D., was served on or about April 26, (EXHIBIT "C.") 8. To date, the depositions of all parties have been held. However, the further deposition of plaintiff regarding her subsequent back surgery remains outstanding. 9. On August 7, 2018, a Status Conference was held before the Honorable Eileen Rakower. An Order was entered, requiring that the "further EBT of plaintiff limited to 'new' surgery (post-ebt surgery) to take place on Sept[ember] 7." A Note of Issue deadline of September 25, 2018 was provided. (EXHIBIT "D.") 4 of 10

5 10. Despite the Court Order, the handling attorney at this office was forced to adjourn plaintiff's deposition on the afternoon before the court-ordered date due to a medical emergency. 11. This handling attorney resigned suddenly due to the aforesaid medical emergency. A new deposition date was not thereafter scheduled. 12. Nonetheless, plaintiff filed the Note of Issue and Certificate of Readiness on September 24, (EXHIBIT "E.") 13. This office reached out to plaintiff's counsel on October 10, 2018, inquiring whether they would voluntary produce their client. 14. Plaintiff's counsel declined to voluntarily produce plaintiff for a further deposition. However, plaintiff stated they would provide the medical records having to do with plaintiff's back surgery, and any subsequent physical therapy or other records reflecting her mobility after the surgery. (EXHIBIT "F.") 15. Our office requested that counsel produce these medical records by October 11, 2018, in light up the pending deadline to move to strike the Note of Issue. (EXHIBIT "F.") 16. However, said records were not received. LEGAL ARGUMENTS A. Plaintiff's Note of Issue and Certificate of Readiness Must be Vacated Pursuant to Uniform Rule (e) as Significant Discovery Remains Outstanding. 17. Under 22 NYCRR (e) "...any party to (an) action or special proceeding may move to vacate the Note of Issue, upon affidavit, showing in what 5 of 10

6 respects the case is not ready for trial, the Court may vacate the Note of Issue if it appears that a material fact and the Certificate of Readiness is incorrect, or that the Certificate of Readiness fails to comply with the requirements of this section in some material respect." 18. A Note of Issue should be vacated when it is based upon a Certificate of Readiness which contains an erroneous fact, such as that discovery has not been completed. See e.g. D_eephaven Distressed Oonortunities Tradings. Ltd. v 3V Capital Master Fund Ltd.,90 A.D.3d 499, 500, 935 N.Y.S.2d 266, 266 (13 Dep't. 2011); Gomes v. Valentine Realty LLC, 32 A.D.3d 699, 700, 822 N.Y.S.2d 2 (1st Dep't. 2006); Club Italia, Inc. v. Italian Fashion Trading, Inc., 268 A.D.2d 219, , 701 N.Y.S.2d 34, 35 (1st Dept. 2000); Savino v. Lewittes, 160 A.D.2d 176, , 553 N.Y.S.2d 146, 148 (1st Dept. 1990). 19. In this case, plaintiff has served and filed the Note of Issue and Certificate of Readiness, despite the fact that the previously court-ordered further deposition of plaintiff remains outstanding. This defendant will be greatly prejudiced if forced to defend this action without the benefit of complete discovery, which has only failed to be completed due to unforeseen circumstances. 20. For the reasons more fully set forth above, we respectfully submit that necessary pre-trial discovery has yet to be completed. In light of the significant outstanding discovery yet to be completed in this matter, the instant motion is necessary to vacate plaintiff's premature Note of Issue and Certificate of Readiness pursuant to 22 NYCRR (e). 6 of 10

7 B. Defendant Has Established Good Cause, Permitting an Extension of Time to File Their Motion for Summary Judgment Should the Note of Issue be Permitted to Stand. 21. In the event that plaintiff's Note of Issue and Certificate of Readiness are permitted to stand, pending the completion of discovery, the instant defendants request an Order, pursuant to CPLR 3212, granting the defendants 120 days from the completion of all depositions to file a motion for summary judgment. 22. Upon a showing of good cause, C.P.L.R. 3212(a) allows the Court to extend the time allowed to file a motion for summary judgment. The Court of Appeals has found good cause to extend this time where a defendant moved to strike the Note of Issue based upon it being filed before all depositions were completed. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 733 N.E.2d 203, 206, 711 N.Y.S.2d 131, 134 (N.Y. 2000). The First Department, following Gonzalez, has also held that good cause exists to extend the time to file a summary judgment motion where discovery has not been completed. See e.g. Butt v. Bovis Lend Lease LMB, Inc.,47 A.D.3d 338, 847 N.Y.S.2d 84 (13t Dep't. 2007); Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 824 N.Y.S.2d 3 (13t Dep't. 2006). 23. According to the applicable case-law referenced within this Affirmation, the instant defendants have met the standard of "good cause shown" in their request for an extension of time to file a summary judgment motion, as party depositions are not yet complete due to a sudden medical emergency. 24. It is therefore respectfully requested that, should the Court decline to vacate the Note of Issue, the Court issue and Order extending the defendant's time to file for 7 of 10

8 summary judgment to 120 days after discovery is complete and Order that the plaintiff must produce the medical records related to her back surgery and any records related to her mobility, and appear for a further deposition limited to her new surgery by a date certain. WHEREFORE, the moving defendants respectfully requests that this Honorable court grant the present application in its entirety, along with such other and further relief as this Court deems just and proper. Dated: New York, New York October 12, 2018 Yours, etc. DECORATO COHEN SHEEHAN & FEDERICO, Andrew iñon, Esq. Attorneys for efendant ELIAS KASSAPIDIS, M.D. s/h/a ELIAS KASSPIDIS, M.D. 14th 90 Broad Street, New York, New York (212) TO: TRIEF & OLK Attorneys for Plaintiff 150 East 58th Street, 34th Floor New York, New York (212) WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorneys for Defendant LENOX HILL HOSPITAL 42nd 150 East Street New York, New York (212) of 10

9 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ======== ---================ - X Index No.: JEANNETTE SWEAT, /2016 Plaintiff, -against- AFFIRMATION OF GOOD FAITH ELIAS KASSPIDIS, M.D. and LENOX HILL HOSPITAL, Defendants X ANDREW J. PIÑON, an attorney duly admitted to practice law in the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am an associate with the law firm of DECORATO COHEN SHEEHAN & FEDERICO, LLP, attorneys' of record for defendant, ELIAS KASSAPIDIS, M.D., s/h/a ELIAS KASSPIDIS, M.D.,, in the above-referenced matter. As such, I am fully familiar with the facts and circumstances asserted herein. 2. A good faith effort has been made to avoid this motion by correspondence dated October 10, 2018 (attached hereto as Exhibit "F.") Date: New York, New York October 12, 2018 ANDRE PIÑON 9 of 10

10 Index No /2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JEANETTE SWEAT, Plaintiff, -against- ELIAS KASSPIDIS, M.D. and LENOX HILL HOSPITAL, Defendants. NOTICE OF MOTION, AFFIRMATION IN SUPPORT and AFFIRMATION IN GOOD FAITH DeCORATO COHEN SHEEHAN & FEDERICO, LLP Attorneys for Defendant ELIAS KASSAPIDIS, M.D., s/h/a ELIAS KASSPIDIS, M.D. 90 Broad Street, 14 Floor New York, New York (212) of 10