FILED: NEW YORK COUNTY CLERK 11/29/ :47 PM INDEX NO /2015 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/29/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X FEROZ ALAM, Plaintiff, AFFIRMATION IN SUPPORT Index No.: /2015 -against- THE CITY OF NEW YORK and MICHAEL WOLKWITZ, Defendants X Daniel Melucci, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following statements pursuant to the penalties of perjury: 1. I am a member of Melucci Firm, P.C., attorney for the plaintiff in the abovecaptioned matter and as such I am fully familiar with the facts and circumstances pursuant to the records and file my office maintains thereon. 2. This affirmation is submitted in support of the within motion seeking an order as follows: a) Pursuant to CPLR 305 and 1024, amending the Summons and Verified Complaint so as to include Saint Luke s Roosevelt Hospital Center a/k/a Mount Sinai St. Luke s and Mount Sinai West as a defendant in this action notwithstanding the statute of limitations; 1 of 9

2 b) Deeming service of the Supplemental Summons and Verified Amended Complaint to be related back to the date on which plaintiff s original claims were timely served and filed; c) Permitting and directing plaintiff s attorney to serve the proposed Supplemental Summons and Verified Amended Complaint upon such party; d) Estopping defendant THE CITY OF NEW YORK from denying that defendant MI- CHAEL WOLKWITZ was its employee and/or acting at the behest of, and as an agent of THE CITY OF NEW YORK; and e) For any such other and further relief as this Honorable Court deems just and proper. 3. This is an action seeking recovery for the battery and resulting injuries sustained by the plaintiff and subsequent false arrest when, on July 20, 2012, plaintiff FEROZ ALAM had been attacked by an EMS worker while plaintiff was in the course of his employment at a movie theater. The incident was captured on video and clearly shows that despite the claims of the EMS worker, plaintiff was, in fact, attacked without provocation. 4. After the incident, the plaintiff himself believed that the EMS worker who attacked him was a member of the Fire Department of the City of New York and thus employed by the defendant THE CITY OF NEW YORK. 5. This action was commenced on or about July 13, After much delay by the defendant, on October 21, 2015 the defendant produced a witness, Alexis J. Castilla for deposition (transcript annexed hereto as Exhibit A ). Mr. Castilla had no personal knowledge with respect to the facts of the case, but rather testified that he believed that defaulted defendant EMS worker MICHAEL WOLKWITZ was not employed by THE CITY OF NEW YORK, but may possibly have been employed by St. Luke s Hospital. 2 of 9

3 6. Essentially, the defendant, THE CITY OF NEW YORK, in bad faith, waited until after the statute of limitations expired to inform plaintiff s counsel that of its belief that the EMS worker was an employee of St. Luke s Roosevelt Hospital Center and thereafter refused to provide information to confirm whether he, in fact, was an employee of St. Luke s Roosevelt Hospital Center. 7. Immediately after the deposition, on October 21, 2015, your affirmant sent a postdeposition discovery demand to the defendant (Exhibit B ) seeking, among other things, records and reports with respect to who employed MICHAEL WOLKWITZ. The witness had testified that it might be St. Luke s hospital (Exhibit A, page 26). 8. Plaintiff never received any response and on November 20, 2015 sent a letter (Exhibit C ) in a good faith effort to obtain this important discovery. 9. Still having received no response, at a Compliance Conference on February 9, 2016 the parties entered into a so ordered Stipulation (Exhibit D ) wherein defendant agreed, among other things, to provide a response to the October 21, 2015 demand. 10. The defendant continued to refuse to provide this discovery and on May 19, 2016 your affirmant sent another letter (Exhibit E ) both demanding discovery pursuant to the deposition of Alberto Santana as well as discovery responsive to the October 21, 2015 demand. 11. Another Compliance Conference was held on June 14, 2016 wherein another Stipulation (Exhibit F ) was entered into. Again, defendant agreed to respond to, among other things, the October 21, 2015 and May 19, 2016 demands. Needless to say, defendant refused to provide any responses. 12. Another Compliance Conference was held on September 13, 2016 and the parties entered into yet another so ordered Stipulation (Exhibit G ) wherein the defendant agreed to 3 of 9

4 provide responses to the October 21, 2015 and May 19, 2016 demands. Defendant failed to provide any documentation or information with respect to whether St. Luke s Roosevelt Hospital Center employed MICHAEL WOLKWITZ. 13. Thereafter, plaintiff moved to strike the defendant s Answer which resulted in the so ordered Stipulation of July 6, 2017 (Exhibit H ) wherein defendant again agreed to provide, among other things, records and information regarding the possibility that MICHAEL WOLKWITZ was employed by St. Luke s Hospital. Defendant failed to provide the information. 14. On August 15, 2017, a Compliance Conference was held resulting in yet another order (Exhibit I ) requiring defendant to provide the information. Defendant still refused to comply. 15. Another Compliance Conference was held on October 24, 2017 and defendant was again ordered (Exhibit J ) to provide the information regarding MICHAEL WOLKWITZ. 16. Finally, defendant served a City s Response to Order Dated 07/06/2017 and Compliance Conference Order Dated 08/15/2017 dated October 23, 2017 (Exhibit K ), although it was not received by plaintiff until November 28, This response appears to confirm that MICHAEL WOLKWITZ was, in fact, employed by Saint Luke s Roosevelt Hospital Center; that St. Luke s Roosevelt Hospital Center agreed to indemnify the CITY OF NEW YORK, and that both Saint Luke s Roosevelt Hospital Center and THE CITY OF NEW YORK were aware of the subject incident involving FEROZ ALAM. Accordingly, plaintiff should be permitted to amend the Complaint to include Saint Luke s Roosevelt Hospital Center as a defendant and THE CITY OF NEW YORK should be estopped from denying that defendant MICHAEL WOLKWITZ was its employee and/or acting at the behest of and as an agent of THE 4 of 9

5 CITY OF NEW YORK. 17. The doctrine of equitable estoppel must be applied to prevent defendant from escaping liability herein. The doctrine of equitable estoppel precludes a party at law and in equity from denying or asserting to the contrary any material fact which it has induced another to believe and act on. It rests upon the word or deed of one party upon which another rightfully relies to his detriment. Holm v. C.M.P. Sheet Metal, Inc., 89 A.D.2d 229, 455 N.Y.S.2d 429 (4 th Dept. 1982); Townley v. Emerson Electric Co., 178 Misc.2d 740, 681 N.Y.S.2d 741 (Sup. Ct. Mon. Cty 1998). Parties are estopped to deny the reality of the state of things which they have made appear to exist and upon which others have been made to rely. Holm v. C.M.P. Sheet Metal, Inc, supra, p Here, based upon the refusal to comply with six (6) Court Orders and Stipulations, as well as the inability to provide a reasonable excuse for such failures, defendant denied plaintiff the proof, which was in its possession, that Saint Luke s Roosevelt Hospital Center was an appropriate party to this action. 19. If the Court will not make a judicial finding that plaintiff may amend the Summons and Verified Complaint so as to include Saint Luke s Roosevelt Hospital Center a/k/a Mount Sinai St. Luke s and Mount Sinai West as a defendant in this action notwithstanding the statute of limitations, then the Court should make a judicial finding that THE CITY OF NEW YORK is estopped from denying that defendant MICHAEL WOLKWITZ was its employee and/or acting at the behest of and as an agent of THE CITY OF NEW YORK, or otherwise denying responsibility for the incident. 20. The relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for statute of limitations purposes where, 1) both claims arise out of the same conduct or occurrence 2) the 5 of 9

6 new party is united in interest with the original defendant, by reason of that relationship can be charged with notice of the pending action that they will not be prejudiced in maintaining a defense on the merits, and 3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against them as well Buran v. Coupal, 87 N.Y.2d 173, 638 N.Y.S.2d 405 (1995); L&L Plumbing &Heating, 253 A.D.2d 517, 677 N.Y.S.2d 153 (2d Dept. 1998); Hart v. Marriot International, Inc., 304 A.D.2d 1057, 758 N.Y.S.2d 435 (3d Dept. 2003); Castro v. Woolworth, 298 A.D.2d 216, 748 N.Y.S.2d 368 (1 st Dept. 2002); Cruz.v Vinicio, 259 A.D.2d 294, 686 N.Y.S2d 409 (1 st Dept. 1999). 21. Here, there is no question that the claims arise out of the same occurrence, the incident which occurred on July 20, In addition, the new party, Saint Luke s Roosevelt Hospital Center a/k/a Mount Sinai St. Luke s and Mount Sinai West, is united in interest with the defendant THE CITY OF NEW YORK as evidence by the contract submitted by defendant (Exhibit K ). Among other things the contract at page 31 sets forth that Saint Luke s Roosevelt Hospital Center indemnifies and holds FDNY, the City of New York... harmless form any and all claims, suits, damages and expenses. The contract clearly and in great detail describes how the CITY OF NEW YORK and Saint Luke s Roosevelt Hospital Center work together for EMS purposes. 23. Finally, Saint Luke s Roosevelt Hospital Center knew or should have known that, but for a mistake by the plaintiff, or in this case, the refusal to provide information by the defendant, the action would have been brought against it as well. Saint Luke s Roosevelt Hospital Center employed MICHAEL WOLKWITZ, who assaulted the plaintiff. In fact, it is clear from the documents submitted by the defendant (Exhibit K ), that the defendant 6 of 9

7 conducted an investigation on July 30, 2012 and issued an Unusual Occurrence Report both indicating that Saint Luke s Roosevelt Hospital Center, through the interview of its employee MICHAEL WOLKOWITZ had been involved and were aware of the incident. 24. The instant matter is similar to Castro v. Woolworth, supra. In Castro, plaintiff fell in a store believed to be owned by Woolworth Corporation. The actual entity that operated the store was F.W. Woolworth Co., a wholly owned subsidiary of Woolworth Corporation. Plaintiff failed to sue F.W. Woolworth within the statute of limitations and defendant moved to dismiss. Plaintiff cross-moved to amend and the motion was granted. Defendant appealed. 25. The Appellate Division affirmed the order granting plaintiff s motion to amend on the grounds that defendant Woolworth, knew or should have known that it was the intended subject of the law suit and was not prejudiced by the failure to name F.W. Id., p.369. The court further held that Woolworth supplied the names of employees during discovery and failed to indicate that the employees were employed by F.W. and not Woolworth. Id., at p Under the relation back doctrine of CPLR 203(e), where claims are identical, such amendment should be allowed even though the statute of limitations has expired. For an illustration see, New York Practice Second Edition, by David D. Siegel, 1991, page 61 section 49. See also, Brock v. Bua, 1981, 83 A.D.2d 61, 443 N.Y.S.2d 407; Connell v. Hayden, 1981, 83 A.D.2d 30, 443 N.Y.S.2d 383. Paciello v. Patel, 83 A.D.2d 73, 443 N.Y.S.2d 403. Sargent v. City of New York, 1987, 128 A.D.2d 693, 513 N.Y.S.2d The Court of Appeals in Buran, supra, set forth that for the purpose of the relation back doctrine a party will be united in interest with the original defendant when they can be charged with notice of the pending action that they will not be prejudiced in maintaining a defense on the merits. In the case at bar there can be no dispute that plaintiff has satisfied this 7 of 9

8 test. 28. The Court in Connell v. Hayden, 83 AD2d 30, 443 NYS2d 383 (2nd Dept, 1981) held that the question of unity of interest is to be determined from an examination of the jural relationship of the parties whose interests are said to be united and the nature of the claim asserted against them by plaintiff. Accordingly, when by some legal relationship between them, they necessarily have the same defenses to plaintiff s claims, they stand or fall together and are thus united in interest. In the instant matter, any of the defenses that could be raised by the already served defendant is the same as those available to St. Luke s Roosevelt Hospital Center. 29. The above facts establish that the claim against the new listed defendant is the same occurrence already alleged, and that the CITY OF NEW YORK and St. Luke s Roosevelt Hospital Center are united in interest. Therefore, this claim should relate back to the date of filing against the already named defendants and preclude any defense based upon the statute of limitations. No prejudice will accrue St. Luke s Roosevelt Hospital Center as a result of the imposition of relation back contained in CPLR 203 (b) and (e). However, substantial injustice and prejudice would accrue to the plaintiff should he be precluded from introducing St. Luke s Roosevelt Hospital Center, as a party defendant. 30. Therefore in consideration of the substantial policy considerations to decide these matters on their merits with all necessary parties involved, it is respectfully requested that this court order that the complaint be amended as set forth in plaintiff s proposed amended complaint (Exhibit L ), that service of the Supplemental Summons and Amended Complaint be related back to the date on which plaintiff s original claims were timely filed and served, and the Court grant such other and further relief as the court deems just and proper. 8 of 9

9 WHEREFORE, your affirmant respectfully requests an Order granting the instant motion in its entirety, and for any such other and further relief as this Honorable Court may deem to be just, proper and equitable. Dated: New York, New York November 29, 2017 Daniel Melucci, Esq. 9 of 9