FILED: QUEENS COUNTY CLERK 05/06/ :22 PM INDEX NO /2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/06/2016

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1 FILED: QUEENS COUNTY CLERK 05/06/ :22 PM INDEX NO /2014 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/06/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS x MARY LOUISE PORTANOVA individually and MARY LOUISE PORTAVOVA as Executor of the ESTATE of JOHN PORTANOVA, Plaintiffs, Index No.: /14 AFFIRMATION IN SUPPORT -against- ALEXANDER FALKOVSKY, D.O., KUNJURAMAN CHANDRAMOHAN, M.D., REISA F. ULLMAN, M.D., MARK FONROSE, M.D., FRANKLIN HOSPITAL MEDICAL CENTER, FRANKLIN HOSPITAL, FRANKLIN GENERAL HOSPITAL and NORTH SHORE- LONG ISLAND JEWISH HEALTH SYSTEM, INC., Defendants x Jody A. Shelmidine, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following, pursuant to the penalties of perjury: 1. I am an attorney duly licensed to practice law before the Courts of the State of New York. I am associated with the law firm GABRIELE & MARANO, LLP, attorneys of record for defendant, ALEXANDER FALKOVSKY, D.O., in the above-captioned action. 2. I am fully familiar with the facts and circumstances regarding the above-captioned matter set forth herein, the basis of which are the files maintained in these offices, which are believed to be complete and accurate. 3. This affirmation is submitted in support of this Motion for an Order: 1 of 16

2 a. Dismissing the plaintiffs complaint pursuant to CPLR 3126 for their willful and contumacious behavior in failing to provide defendant with an authorization to obtain plaintiffs phone records; b. Pursuant to CPLR Sections 3124 and 3126, compelling disclosure of outstanding discovery with a conditional Order of Dismissal should plaintiff fail to comply with disclosure c. Pursuant to 22 N.Y.C.R.R (e), vacating plaintiffs Note of Issue and Certificate of Readiness and striking the case from the trial calendar, or, alternatively; d. Pursuant to CPLR 3212(a), extending the time of defendant, ALEXANDER FALKOVSKY, D.O., to move for summary judgment to 120 days following the date of completion of all depositions and discovery in this case; and e. For such other and further relief as to this Court seems just and proper. STATEMENT PURSUANT TO CPLR 2217(b) 4. No prior application has been made for the relief sought herein. CERTIFICATION PURSUANT TO 22 NYCRR a(b) 5. I hereby certify pursuant to 22 NYCRR a(b) that, to the best of my knowledge, information and belief, formed after an inquiry reasonably under the circumstances, the presentation of the papers listed below or the contentions are not frivolous as defined in 22 NYCRR (c). RELEVANT PROCEDURAL HISTORY & STATEMENT OF FACTS 6. This is an action sounding in medical malpractice where the plaintiffs allege that the defendants failed to diagnose a MRSA infection, resulting in osteomyelitis of the 2 of 16

3 thoracic spine, laminectomy, and fusion in a the plaintiff, Mary Louise Portanova, a then 55 year-old married female. 7. This action was commenced by plaintiffs by the filing of their summons and complaint on or about February 6, (Exhibit A ). Issue was joined by defendant, ALEXANDER FALKOVSKY, D.O., through the service of their Verified Answer on or about March 10, 2014, along with various discovery demands (Exhibit A ). 8. On or about March 25, 2014, plaintiffs served a Bill of Particulars as to defendant, ALEXANDER FALKOVSKY, D.O. (Exhibit A ). On or about April 28, 2014, the plaintiffs served a Supplemental Bill of Particulars as to defendant, ALEXANDER FALKOVSKY, D.O. (Exhibit A ). The Bill of Particulars and allege, among other things, that Dr. Falkovsky the failure to: properly treat and order follow-up care during and after Plaintiff s January 23, 2012 appointment; and, abandoning the patient. The Supplemental Bill of Particulars allege, among other things, the failure by defendant to in failing order and obtain proper consultations and procedures on a timely basis; failing to properly treat and order appropriate and adequate follow-up care during and after the January 23, 2012 appointment; in failing to properly monitor plaintiff; in causing and failing to avoid additional emergency and hospital 3 of 16

4 admissions; and, defendants were otherwise reckless, careless, and negligent. 9. On June 24, 2014, a Preliminary Conference was held in this matter (Exhibit A ). 10. The examination before trial of plaintiff, Mary Louise Portanova, occurred on November 18, 2014, and December 8, 2014 (Exhibit B ). The examination before trial of plaintiff, John Portanova, occurred on December 8, 2014 (Exhibit C ). The examination before trial of defendant, Alexander Falkovsky, D.O. occurred on December 16, 2014(Exhibit D ). 11. On or about April 14, 2015, the plaintiff, John Portanova, passed. (Exhibit E ). Pursuant to Honorable Peter J. O Donoghue s order, which was filed on January 11, 2016, plaintiff, Mary Louise Portanova was substituted as Executor of the Estate of John Portanova (Exhibit E ). 12. A compliance conference was held on January 6, 2016, which directed the plaintiff s counsel to file a Note of Issue and Certificate of Readiness on or before April 18, 2016 (Exhibit F ). 13. On April 18, 2016, the plaintiffs filed a Note of Issue with Certificate of Readiness (Exhibit G ). The Certificate of Readiness accurately reflect that depositions are not complete, which included depositions of Dr. Mossammat M. 4 of 16

5 Mansur and an employee of co-defendant, Franklin Hospital (Exhibit G ). 14. On or about January 20, 2015, February 5, 2015, and April 27, 2016, your affirmant s office served Demands that sought for plaintiff to provide Authorizations and Produce Documents and Information (Exhibit H ). 15. On or about November 9, 2015, the defendant served a Demand for an Authorization for the cell phone and landline phone records of plaintiffs and a Demand to Produce plaintiffs itemized telephone call logs to include their numbers and account numbers for each provider (Exhibit I ). 16. In good faith efforts, your affirmant s office and plaintiffs counsel attempted to resolve the outstanding discovery issues through various correspondence and communications. (Exhibit J ). On or about April 27, 2016, your affirmant wrote to plaintiffs counsel regarding the discovery that remained outstanding, which included the following (Exhibit J ): a. Providing an authorization for the Mary Louise Portanova and John Portanova s cell phone and landline phone records for the dates of November 23, 2011 through February 28, 2012, which the authorization is to include the telephone and account number. b. Providing an authorization for CVS with section 9a initialed, which permits for the release of alcohol/drug treatment, mental health information, and HIV related information. 5 of 16

6 c. Providing an authorization for Lenox Hill Hospital. d. Providing a response to if plaintiff located any information, and an authorization to obtain records, regarding Blue Cross coverage. e. Produce for production or an affirmative statement regarding: (1) any medicine bottles, prescriptions, warning labels, aterials, medicine bags or medical supplies which were utilized by the plaintiffs between November 2011 and February 4, 2012; (2) any receipts of the wheelchair and any other out-of-pocket expenses; (3) any gardener bills or statements. 17. With the exception of an authorization for plaintiffs telephone records, which the plaintiffs counsel blatantly refuses to provide, the plaintiffs counsel assured your affirmant he would provide response to the outstanding discovery; yet, to date, your affirmant s office has not received same. As such, the within motion is necessary to compel plaintiff to provide the outstanding discovery. 18. Finally, on April 13, 2016, the plaintiffs counsel demanded that counsel for Franklin Hospital identify the doctor who discharged plaintiff, Mary Portanova, from the ER on December 26, 2011, stating if the doctor was an employee, and if not a current employee, to provide the last known address. (Exhibit K ). As such, there are additional depositions and discovery that remains outstanding before this matter is ready for trial. 6 of 16

7 19. As there remains a significant amount of discovery to be completed and the defendant s rights would be prejudiced, this motion is necessary and this case is not ready for trial. ARGUMENT THE PLAINTIFFS CASE SHOULD BE DISMISSED FOR THE WILLFUL AND CONTUMACIOUS FAILURE TO DISCLOSE INFORMATION 20. The plaintiff, Mary Louise Portanova, testified at her examination before trial of November 18, 2014 including to the following (Exhibit B ): a. She did not recall calling Dr. Falkovsky s office and being told to go to the ER (p.104). b. Sometime after a visit with Dr. Falkovsky, her pain changed but she can t recall if she or her husband called Dr. Falkovsky to tell him that the pain changed (p.123). 21. The plaintiff, Mary Louise Portanova, testified at her examination before trial of December 8, 2014 including to the following (Exhibit B ): a. (Assuming) the records reflect that on January 27, 2012, her husband was informed of lab results by Dr. Falkovsky s office; but, this did not refresh her recollection of receiving a telephone call from Dr. Falkovsky s office (p.247). b. She did not recall Dr. Falkovsky s office telling her to follow up with his office relative to lab results (p.248). c. She did not recall Dr. Falkovsky advising that if her condition worsened to go to his office or the ER. She did not recall her husbanding calling Dr. Falkovsky in January of 2012 or early February 2012 where the doctor advised for her to go to the ER (p.254). 7 of 16

8 22. The plaintiff, John Portanova, testified at his examination before trial of December 8, 2014 including to the following (Exhibit C ): a. He did not recall receiving a phone call from Dr. Falkovsky s office on January 27, 2012 (p.107). b. He did not recall but indicated that it was possible that a phone call was made to him on January 27 th, 2012, to advise him of his wife s blood test results (p.107). c. He called Dr. Falkovsky s office between January 23 (2012) to next hospital admission to advise Dr. Falkovsky that his wife s condition changed; but, he did not recall the day or time of the call but said it was possible the conversation occurred on February 1, 2012 (p.109). When he placed the call, he spoke with Dr. Falkovsky (p.110). d. (Before February 1, 20102) He did not recall if he followed upon on Dr. Falkovsky s advise to call him if his wife s condition did not get better (p.110). 23. The defendant, Alexander Flakovsky, D.O., testified at his examination before trial of December 16, 2014 including to the following (Exhibit D ): a. (Following the January 23, 2012 visit) The very next day his secretary, as per his request, call the husband and the husband said that she s feeling much better (p.156); she s doing fine, no pain, she s okay (p.168). b. On January 27, 2012, the husband was informed. He put down on the lab work that he wanted to see the patient and it was documented that the husband was informed that the doctor wanted to see her shortly (p.170). c. There was a couple of conversations prior (to January 31, 2012 admission) because the husband called Dr. Falkovsky and the he called the husband. Dr. Falkovsky thinks it came to the 8 of 16

9 point where they had conversations almost every day (pp ). 24. On or about November 9, 2015, the defendant served a Demand for an Authorization for the cell phone and landline phone records of plaintiffs, to include their numbers and account numbers for each provider, and a Demand to Produce plaintiffs itemized telephone call logs (Exhibit I ). 25. The plaintiffs phone records are discoverable as CPLR 3101 provides that parties must disclose all matter material and necessary in the prosecution or defense of an action. The Court must liberally" interpret in favor of disclosure so long as the information sought meets the test of usefulness and reason. See Congel v. Malfitano, 84 AD 3d 1145(2nd Dept. 2011); Scalone v. Phelps Mem. Hosp., 184 AD 2d 65 (2nd Dept. 1992). 26. In the instant matter, the phone records, among other things, are discoverable at this stage of litigation as they are documents that may disclose proof of communications conducted between the parties, which would result in revelation of admissible evidence. The broad disclosure requirement under New York and precedent includes for the disclosure of documents which may lead to the disclosure of admissible proof." Matter of Southampton Taxpayers Against Reassessment v. Assessor of the Village of Southampton, 176 A.D.2d 795 (2nd Dept. 1991). 9 of 16

10 27. The plaintiffs absolute refusal to provide an authorization for discoverable information is blatant behavior that raises to the level of willful and contumacious that warrants the dismissal of their case. 28. CPLR 3126 provides: 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: An order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; An order striking out pleadings or dismissing the action. 29. The Court of Appeals noted that the dismissal of a complaint was well within the Trial Judge's discretion where the party s non-compliance frustrates the disclosure scheme set forth in the CPLR. Kihl v. Pfeffer, 94 N.Y.2d 18; 722 N.E.2d 55; 700 N.Y.S.2d 87 at 90 (1999) 30. Despite good faith efforts to obtain compliance with the defendant s demands, the plaintiffs refuse to provide an authorization for the Mary Louise Portanova and John Portanova s cell phone and landline phone records for the dates of November 10 of 16

11 23, 2011 through February 28, 2012, with the authorization to include the telephone and account number. Exhibit J. 31. The plaintiffs absolute refusal to disclose relevant information under these circumstances warrants the dismissal of their case. PLAINTIFFS SHOULD BE COMPELLED TO COMPLY WITH OUTSTANDING DISCOVERY 32. CPLR 3101 provides that parties must disclose all matter material and necessary in the prosecution or defense of an action. The Court must liberally" interpret in favor of disclosure so long as the information sought meets the test of usefulness and reason. See Congel v. Malfitano, 84 AD 3d 1145(2nd Dept. 2011); Scalone v. Phelps Mem. Hosp., 184 AD 2d 65 (2nd Dept. 1992). This broad disclosure requirement includes documents which may lead to the disclosure of admissible proof." Matter of Southampton Taxpayers Against Reassessment v. Assessor of the Village of Southampton, 176 A.D.2d 795 (2nd Dept. 1991). 33. Despite good faith efforts to obtain compliance with the defendant s demands, the plaintiff failed to provide various items of discovery including: a. Providing an authorization for the Mary Louise Portanova and John Portanova s cell phone and land line phone records for the dates of November 23, 2011 through February 28, We further requested that the authorization include the telephone and account number. 11 of 16

12 b. Providing an authorization for CVS with section 9a initialed, which permits for the release of alcohol/drug treatment, mental health information, and HIV related information. c. Providing an authorization for Lenox Hill Hospital. d. Providing a response to if plaintiff located any information, and an authorization to obtain records, regarding Blue Cross coverage. e. Produce for production or an affirmative statement regarding: (1) any medicine bottles, prescriptions, warning labels, aterials, medicine bags or medical supplies which were utilized by the plaintiffs between November 2011 and February 4, 2012; (2) any receipts of the wheelchair and any other out-of-pocket expenses; (3) any gardener bills or statements. 34. While plaintiffs counsel assured that they would provide the outstanding discovery; yet, to date, the discovery has not been provided. 35. Assuming arguendo that the Court does not dismiss plaintiffs case for their willful and contumacious as previously argued above, the appropriate remedy in this instance is for the Court to issue an order that compels the plaintiff to provide the aforementioned outstanding discovery within 30 days with a conditional order of dismissal if plaintiffs fail to comply. THE NOTE OF ISSUE SHOULD BE VACATED 36. Under 22 N.Y.C.R.R (e), any party to [an] action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not 12 of 16

13 ready for trial, and the court may vacate the note of issue if it appears that a material fact in 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. 37. The Second Department has consistently held that it is improper for plaintiffs to file a Note of Issue when there is outstanding discovery. The proper remedy is to vacate plaintiff s Note of Issue until discovery is completed. See, Bassetti v. Nour, 287 A.D.2d 126, (2 nd Dep t. 2001); Carte v. Segall, 134 A.D.2d 396, (2 nd Dep t. 1987); Recon Car Corp. of New York v. Chrysler Corporation, 89 A.D.2d 586, (2 nd Dep t. 1982). 38. The deposition of the plaintiff has been completed. However, the depositions of all co-defendants and non-party witnesses remain outstanding. Various authorizations demanded and necessary records remain outstanding as well. 39. Additionally, subsequent to completion of depositions, plaintiffs are to supplement their Bill of Particulars as to each defendant to specify the allegations of malpractice. Plaintiffs, pursuant to the Preliminary Conference Order, are to provide such supplementation within thirty (30) days of completion of depositions. 40. Further, pursuant to the Preliminary Conference Order, dispositive motions are to be made within 120 days of the filing 13 of 16

14 of the Note of Issue. Our client s right to move for summary judgment, if such a motion is appropriate following the completion of depositions, could be compromised unless this action is stricken form the trial calendar or defendant s time to make a dispositive motion is extended by the Court until one hundred and twenty (120) days after the completion. 41. As demonstrated above, significant discovery remains outstanding. 42. As such, assuming arguendo that the Court does not dismiss plaintiffs case for their willful and contumacious as previously argued above, it is respectfully requested that the Note of Issue be vacated. To allow the case to remain on the trial calendar while discovery is not complete, is prejudicial to the defendant whose time to file a motion for summary judgment has now commenced. It is anticipated that discovery will not be completed in this case within one hundred and twenty (120) days from the filing of the Note of Issue, thereby extinguishing the right of the defendant to move for summary judgment at the completion of depositions. 43. Should this Court, however, deem it proper to allow the case to remain on the trial calendar while discovery and depositions continue, it is respectfully requested that this Honorable Court issue an Order granting leave to the defendant, ALEXANDER FALKOVSKY, D.O., to move for summary judgment within 14 of 16

15 one hundred and twenty (120) days following the completion of the last deposition and plaintiffs compliance with all outstanding discovery demands in this case. It is respectfully submitted that this is the only way to fully and fairly preserve the rights of the defendant. 44. Since discovery is not completed, the Note of Issue should be stricken. Defendants will be greatly prejudiced should plaintiffs Note of Issue not be stricken. The remaining outstanding discovery is material and necessary for the defense of this matter. WHEREFORE, it is respectfully requested that this Honorable Court grant the within motion in its entirety and for such other and further relief as this Court may deem just, proper and equitable. Dated: Garden City, New York May 5, 2016 Jody A. Shelmidine 15 of 16

16 Index No.: Year 2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS MARY LOUISE PORTANOVA individually and MARY LOUISE PORTAVOVA as Executor of the ESTATE of JOHN PORTANOVA, -against- Plaintiffs, ALEXANDER FALKOVSKY, D.O., et al., Defendants. AFFIRMATION IN SUPPORT LAW OFFICES OF GABRIELE & MARANO, LLP Attorneys for Deft. ALEXANDER FALKOVSKY, D.O. Office and Post Office Address, Telephone 100 QUENTIN ROOSEVELT BLVD. P.O. BOX 8022 GARDEN CITY, NEW YORK (516) To Attorneys for Service of a copy of the within Dated, is hereby admitted Attorney(s) for Sir: - Please take notice [ ] NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on 20 [ ] NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court, at on 20 at M. Dated, To Attorney(s) for Yours, etc. LAW OFFICES OF GABRIELE & MARANO, LLP Attorneys for Office and Post Office Address, Telephone 100 QUENTIN ROOSEVELT BLVD. P.O. BOX 8022 GARDEN CITY, NEW YORK (516) of 16