FILED: KINGS COUNTY CLERK 09/13/ :13 PM INDEX NO /2017 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/13/2017

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1 KDB/KDB SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X FRANCES LANZA, -against- Plaintiff(s), JOSEPH BASILE, M.D., STATEN ISLAND UNIVERSITY HOSPITAL, DENNIS GORMLEY, M.D., OPTHALMOLOGY ASSOCIATES OF STATEN ISLAND, P.C., BRIAN MCHUGH, M.D., ANTHONY ALASTRA, M.D., ANNA VANTUYL, M.D., EDWIN CHANG, M.D., and ANURAG SINGH, M.D, AFFIRMATIONTN PARTIAL OPPOSITION TO PLAINTIFF S MOTION AND IN SUPPORT OF DEFENDANT S CROSS MOTION TO DISMISS. OR CONSOLIDATE ACTIONS IN NEW YORK COUNTY Index No.: /2017 Defendant(s). KATHRYN D. BLACKMER, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, and an associate with the law firm of MARTIN CLEARWATER & BELL LLP, attorneys of reeord for the defendant, ANTHONY ALASTRA, M.D., (hereinafter, Defendant ) hereby affirms the following to be true under the penalties of perjury: X 1. I am fully familiar with the faets and cireumstances of this action by a review of the file maintained by your Affirmant s office. 2. This Affirmation is respectfully submitted in support of the instant cross-motion for an Order: A. Pursuant to CPLR 3211(a)(4) and 602(a), dismissing or consolidating this action in New York County with a related matter commenced earlier in time by plaintiff in New York County {Frances Lanza and Thomas Lanza v. Joseph?? Basile et al, index no /2017) in accordance with the First-in-Time rule set forth in Moor v. Moor, 39 A.D.3d 507 (2d Dept. 2007) and Parker v. Troutman Sanders LLP, 89 A.D.3d 638 (1st Dept. 2011); and 3I40233_1 4 1 of 5

2 B. C. If this matter is consolidated, directing the transfer of this case, including all certified papers and minute book entries, to the Clerk of Supreme Court, New York County, to be consolidated for all purposes with the related action of Frances Lanza and Thomas Lanza v. Joseph Basile, et al, under New York County Index No /2017; and For such other and further relief as this Court deems just and proper. 3. This is a medical malpractice action brought by plaintiff against several physicians who exclusively practice on Staten Island and against Staten Island University Hospital. Twenty-two days prior to commencing this action, plaintiff commenced a nearly identical action in New York County, naming the exact same defendants, and leveling the exact same allegations of medical malpractice, with the exception of a single physician in the Kings County action, apparently added because she resides in Kings County. 4. Plaintiff now moves to consolidate the New York County Action, commenced first, with the Kings County Action, commenced second, not only in violation of the First-In- Time Rule, but also in an overt attempt to forum shop. Defendant herein opposes plaintiffs attempt to consolidate the first action into the second action, and cross-moves to uphold the Tirst-In-Time Rule through either dismissal of the instant action, or consolidation of these cases in New York County, where plaintiff inarguably commenced the first action. PROCEDURAL HISTORY 5. On June 8, 2017, plaintiff first commenced the related action by filing a Summons and Complaint in New York County under Index No /2017 with the caption Frances Lanza and Thomas Lanza v. Joseph Basile, M.D., Staten Lsland University Hospital, Dennis Gormley, M.D., Ophthalmology Associates of Staten Island, P.C., Brian McHugh, M.D., Anthony Alastra, M.D., Edwin Chang, M.D., and Anurag Singh, M.D. (hereinafter New I 5 2 of 5

3 York County Action ) See Wright Aff. Exhibit A for plaintiffs Summons and Complaint filed in New York County. 6. Issue was joined in the New York County Action when co-defendants Dr. McHugh, Dr. Gormley, and Ophthalmology Associates of Staten Island, P.C. interposed Answers on July 14, 2017; co-defendant Staten Island University Hospital interposed an Answer on July 19, 2017; this office interposed an Answer on behalf of defendant Dr. Alastra on August 8, 2017; co-defendant Dr. Basile interposed an Answer on August 30, 2017; and codefendant Dr. Chang interposed an Answer on September 3, See Wright Aff. Exhibit B' for Defendants Answers in the New York County Action. 7. Venue in the New York County Action is based solely upon the residence of Dr. Alastra, as all parties, including the plaintiff, reside and practice in Richmond County, and the alleged malpractice occurred exclusively within the confines of Richmond County. See Wrigth Aff. Exhibit A plaintiffs Summons, at upper right corner of page 1, and plaintiffs Complaint at paras. 18 and Meanwhile, co-defendant Dr. Gormely currently has a Petition pending before the Richmond County Supreme Court to transfer venue to Richmond County pursuant to CPLR 510(1) & (3). See Wright Aff. Exhibit C for Dr. Gormley s petition, which was returnable September 8, 2017 and administratively adjourned to October 20, Defendant takes no position as to Dr. Gormley s Petition, and for the purposes of this Cross-Motion, presumes venue is proper in New York County based upon a party defendant s residence pursuant to CPLR 503(a). 9. On June 30, 2017, twenty-two (22) days after commencing the New York County Action, and again based upon the personal residence of a single physician, plaintiff added another physician, Anna Vantuyl, M.D. and commenced the instant action, a mirror of 5

4 image of the New York County Action, in Kings County, again based solely upon the personal residence of Dr. Vantuyl (hereinafter Kings County Action ). See Wright Aff. Exhibit D for plaintiffs Summons and Complaint in the Kings County Action; see also Wright Aff. Exhibit 'E for co-defendanf s Answers and motions submitted in lieu of an Answer pursuant to CPLR In the interest of brevity. Defendant herein respectfully directs the Court to co- defendant Dr. McHugh s Cross-Motion of September 8, 2017 for a comprehensive procedural history of the instant action {See Wright Aff. And underlying Motion papers). ARGUMENT 11. In the interest of judicial economy and obviating this Court having to read duplicative legal arguments, your Affirmat adopts and incorporates by reference each and every legal argument and conclusion of law set forth in the Motion and Affidavit in Support submitted on behalf of co-defendant BRIAN McHUGH, M.D. 12. Although venue may ostensibly be proper in each county in the New York County Action and the Kings County Action, based solely on the residence of a single physician in each action, plaintiff should not be allowed to continue forum shopping, as the Appellate Division has firmly held that litigates are protected from such forum shopping, where plaintiff commences multiple actions in different counties, by the First-In-Time Rule, which generally mandates consolidation of related actions in the county where the action was first commenced. WHEREFORE, it is respectfully requested that this Court issue an Order: A. Pursuant to CPLR 3211(a)(4) and 602(a), dismissing or consolidating this action in New York County with a related matter commenced earlier in time by plaintiff in New York County {Frances Lanza and Thomas Lanza v. Joseph Basile et al, index no /2017) in accordance with the First-in-Time 3H0233_I 7 4 of 5

5 rule set forth in Moor v. Moor, 39 A.D.3d 507 (2d Dept. 2007) and Parker v. Troutman Sanders LLP, 89 A.D.3d 638 (1st Dept. 2011); and B. If this matter is consolidated, directing the transfer of this case, including all certified papers and minute book entries, to the Clerk of Supreme Court, New York County, to be consolidated for all purposes with the related action of Frances Lanza and Thomas Lanza v. Joseph Basile, et al, under New York County Index No /2017; and C. For such other and further relief as this Court deems just and proper. Dated: New York, New York September 13, 2017 Martin Clearwater & Bell llp Kathryn D. Blackmer, Esq. 3I40233_I 8 5 of 5