FILED: KINGS COUNTY CLERK 03/08/ :20 PM INDEX NO /2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OFKINGS X LAKISHA TAYLOR as Administratrix of the Estate of JADA DANIELLE DUNCAN, Deceased and On behalf of her Distributees and Next of Kin, and WARREN DUNCAN, Individually, AFFIRMATION Index No.: /2016 Plaintiff(s), -against- EBENEZER KOFI ODOOM, M.D., STEPHEN E. OWUSU, D.P.M, M.A., MOUNT ZION PODIATRY, P.C., ROBERT SOLOMON, M.D., EXPRESS MOBILE DIAGNOSTIC SERVICES, INC., SENIORCARE EMERGENCY MEDICAL SERVICES, INC., CHARLES WILBORNE and STEVEN VEGA X Defendant(s). Ronald B. Groman an attorney admitted to practice before the Courts of this State affirms the truth of the following under the penalty of perjury: I am an associate of the firm Sacco & Fillas LLP, attorneys for the plaintiffs herein and as such I am fully familiar with the facts and circumstances of this action based upon a review of the case file and the investigation materials contained therein. This affirmation is submitted in support of plaintiffs application for an Order 1. a) Pursuant to CPLR 3126 striking the answers of the defendants for deliberate failure to comply with the directives contained in the Preliminary Conference Order of this Court with regards to discovery and/or in the alternative, pursuant to CPLR 3124 compelling the defendants to proceed with said discovery and depositions and 1 of 10

2 b) Denying defendants' claim that there is a stay of all proceedings as to all defendants under the automatic stay provisions of a South Carolina Order commencing liquidation of Oceanus Insurance Company, insurer of Defendant Robert Solomon, M.D. and c) In the event the Court grants such stay an Order pursuant to CPLR Section 603 for severance of all claims against Defendant Robert Solomon, M.D. and d) For such other and further relief as to this Court deems just and proper. FACTUAL BACKGROUND 2. This is an action for the wrongful death and pain and suffering of Plaintiffs' 23 year old decedent Jada Duncan, a mother of two young children, due to the medical malpractice and negligence of Defendants. Decedent died on May 17, 2016 as a result of a pulmonary thrombus that evolved from her right lower extremity. It is claimed that Defendants' Odoom, M.D. and Owusu, D.P. M. failed to properly diagnose and treat said thrombus; Defendant Express Mobile Diagnostic failed to take a proper Doppler of decedent's right lower extremity and defendant Radiologist Solomon, M.D. deviated from accepted radiological standards. Defendant Seniorcare Emergency Medical Services, Inc. and its employees Defendants Wilborne and Vega failed to render proper emergency medical care to Decedent prior to her death. (Report of Autopsy Final Diagnosis dated 5/18/16 annexed as "Exhibit A") PROCEDURAL BACKGROUND 3. Suit was commenced pursuant to the e-filing of Plaintiff's Summons and Verified (" Complaint on December 30, 2016 ("Exhibit B"); Answers were filed by all defendants except Express Mobile Diagnostic Services, Inc which has defaulted. ("Exhibit C"). On July 7, of 10

3 a preliminary conference order was entered into ordering discovery and depositions of all parties. (" ("Exhibit D"). Subsequently Plaintiff received notice from defendants that this case is stayed in its entirety as to all defendants as a result of a South Carolina Order regarding the placement into liquidation of Oceanus Insurance Co., the insurer of defendant Robert Solomon, M.D. Affirmant promptly notified the court of Plaintiffs' position that said stay is not applicable. Thereafter, Justice Dabiri directed that letter briefs to be submitted by all appearing parties and scheduled oral argument for January 5, After oral argument on said date all parties were instructed on February 20, 2018 via to file motions to determine the applicability of the Oceanus stay. ARGUMENT THE SOUTH CAROLINA ORDER FOR A STAY DUE TO THE OCEANUS LICUIDATION IS NOT APPLICABLE TO THE CASE AT BAR 4. At the outset it is well settled law that the burden of establishing entitlement to a stay must be upon the proponent of it. Defendants' and Oceanus have not submitted any evidence or moved in any manner to stay the proceedings against the defendant Solomon. See, Santa v. Azure Nightclub, Inc NY Slip OP Any public policy considerations that could be relied on by defendants for a stay do not apply in this case. The paramount interest of various States is seeing that insurance companies domiciled within their respective boundaries are liquidated in a uniform, orderly and equitable manner without interference from external tribunals. This public policy does not apply here because Plaintiffs are not seeking a money judgment against the bankrupt but rather against its insured. Accordingly the stay is not enforceable. 6. Furthermore, the South Carolina Order Commencing and Granting an Injunction and 3 3 of 10

4 automatic stay of proceedings is not applicable to the within litigation. Paragraph 2 Subsection F of the South Carolina Order states as follows: To collect all debts and monies due and claims belonging Respondent wherever located, and, for this purpose: To institute timely action in other jurisdictions in order to forestall garnishment and attachment proceedings against the debts. To do other acts necessary or expedient to collect, conserve, or protect its assets or property, including the power to sell, compound, compromise, or assign debts for purposes of collections upon terms and conditions he considers best. To pursue any creditor's remedies available to enforce his claims. The order commencing liquidation involves the collection of debts & monies due Oceanus. The order does not address the litigation involving a party other than Oceanus. We concede that the insurance company's liquidation does impede any recovery from Oceanus but we have not yet reached that stage. Therefore, we respectfully request that this Court not stay the proceedings but that the parties proceed to complete the discovery, and to the trial of the action. At that point, in the event of a verdict favorable to the Plaintiff, the implications of Oceanus' liquidation can be addressed. 7. In addition public policy is such that reciprocity among states is pertinent as it pertains to liquidation matters. The courts attention is directed to the following two uniform acts. One is the Uniform Insurers' Liquidation Act, which many states have adopted, in substance. Apparently, however, South Carolina has not adopted it. See Stephen W. Schwab, et. al., "Cross-Border Insurance Insolvencies: The Search for a Forum Concursus" 4 4 of 10

5 { YLPllllllc12/issue3/SchwabGubermanReedMend esohnmitchelll2u.pa.j.int'lbus.l.303(1991).pdf}, the table at page 374.] The other is the National Association of Insurance Commissioners Rehabilitation Liquidation and Model Act, which South Carolina appears to have adopted, but not New York. [See "Insurance Receivership Model Act { the table at pages 106 and 107 of the pdf file; and Schwab, et. al., ibid.] Comparison of New York Insurance Law, Article 74, with South Carolina Code, Title 38, Chapter 27 [See does not reveal any grounds for reciprocity. In the absence of reciprocity, the South Carolina court's order is not entitled to full faith and credit in New York. Therefore, this action should not be stayed. POINT II IN THE EVENT THIS COURT FINDS THE OCEANUS STAY APPLICABLE THE ACTION AGAINST DEFENDANT ROBERT SOLOMON, M.D. SHOULD BE SEVERED FROM THE WITHIN ACTION AND PROCEEDINGS CONTINUE UNIMPEDED 8. CPLR Section 603 States as follows: 603. Severance and separate trials. In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others. 9. Justification and the authority to sever actions against parties in bankruptcy is well established in New York case law. Moy v. St. Vincent's Hospital, 92 A.D. 3d 651,_See also, Golden v. Moscowitz, 194 A.D.2d 385, Cen Trust Servs.v Guterman, 160 AD2d 416, 418, Lottes v Slater, 114 AD2d 580). 5 5 of 10

6 10. In Moy v. St. Vincent's Hospital and Medical Center of New York, 92 A.D. 3d 651, (2"d Dept. 2012) the Plaintiff commenced an action to recover damages for medical malpractice against the defendants St. Vincent's Hospital and Medical Center of New York and Michael G. Wayne, a physician. The hospital subsequently commenced chapter 11 bankruptcy proceedings, resulting in an automatic stay pursuant to 11 USC 362(a) of the continuation of any action or proceeding against the hospital. The Appellate Division held as follows: "It has been generally held that 'the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC 3629(a)...and codefendants request a stay of the entire action" (Rosenbaum v. Dane & Murphy, 189 A.D.2d. 760, 592 N.Y.S.2d 391, quoting Lottes v. Slater, 114 A.D. 3d 1013, 1014, 778 N.Y.C. 2d 347). Here, as the prejudice to the plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital (see Weber v. Baccarat, Inc., 70 A.D.3d 487, 488, 896 N.Y.S2d 12; Kharmah v. Metropolitan Chiropractic Ctr., 288 A.D.2d 94, 733 N.Y.S 2d 165; Golden v. Moscowitz, 194 A.D.2d 385, 386, 598 N.Y.S.2d; Rosenbaum v. Dane & Murphy, 189A.D.2d at 761, 592 N.Y.S.2d 391)." 11. In Rosenblum, supra and Lottes, supra, the courts granted severance, finding that the delay would unfairly prejudice the plaintiff. The courts specifically noted that the bankrupt defendant was not an indispensable party in allowing the case to proceed against the remaining solvent co-defendants. 6 6 of 10

7 12. Similarly, as in the above cases, the Plaintiffs and distributees of decedent in the case at bar would be extremely prejudiced if they have to await the conclusion of the liquidation proceeding of Defendant Robert Solomon's insurer Oceanus. Decedent left two young boys ages seven and twenty -three months. Both boys live with decedent's husband Plaintiff Warren Duncan. Mr. Duncan is the stepfather to one and the natural father to the other. 13. Furthermore as in Rosenblum and Lottes the bankrupt_defendant is not an indispensable party to this action and should therefore be severed from this action. Defendant Solomon, M.D. is the sole radiologist in this action. 14. More importantly, the Plaintiffs and distributees would be severely disadvantaged if the action does not proceed. The effect of denying Plaintiffs' application for a severance is to stay the entire proceeding and that would ignore the competing interests of young motherless children as opposed to the practical problems imposed by the Oceanus Liquidation proceedings, which in all likelihood will be pending for a long period of time. 15. Further, Defendants' will not be prejudiced by separate trials because their interests can be protected. Defendants' could always bring suit against Defendant Solomon for contribution. However it is noteworthy that not one defendant has a crosselaim against Defendant Solomon. Moreover, a court order severing the action as to Dr. Solomon can be accompanied by a court order preserving their right to depose Dr. Solomon, as well as their rights under Articles 14 and 16 of the CPLR. See M_oy, supra. 16. Another example where the court severed an action to avoid prejudice to the Plaintiff is found in Kharmah v. Metropolitan Chiropractic Center, 288 A.D. 2d 94, 733 N.Y.S. 2d 165 (1" Dept. 2001), an action of medical and chiropractic malpractice. In Kharmah, of the several named defendants, the chiropractic defendants did not maintain any professional 7 7 of 10

8 liability insurance during the alleged negligent period. Prior to trial, the chiropractic defendants filed for Chapter 7 bankruptcy protection. 17. The trial court granted plaintiffs motion to sever the chiropractic defendants, subsequently affirmed by the First Department. In its decision, the First Department noted that granting severance under CPLR section 603 " will prevent prejudice to plaintiff stemming from delay preceding termination of the chiropractic defendants' bankruptcy proceedings." Id at 94 (citing, Golden v. Moskowitz, 194 A.D. 2d 385, 598 N.Y.S. 2d 522 (1st Dept. 1993). 18. It is also well settled law that "a bankruptcy stay does not prevent a plaintiff from proceeding on causes of action against nonbankrupt defendants, which do not involve the bankrupt's property. See, Centrust Services, Inc. v. Guterman, 160 Ad2 416 (15t Dept. 1990). 19. Accordingly, it would be a proper exercise of discretion in granting a severance pursuant to CPLR 603 as such will prevent any prejudice to plaintiffs and distributees stemming from delay preceding termination of Oceanus' Vincent' liquidation. See, Moy v. St. Vincent's Hospital, 92 A.D. 3d 651 (2nd Dept. 2012); Kharmah v. Metropolitan Chiropractic Center, 733 N.Y.S. 2d 165, 288 A.D. 2d 94 (1st Dept. 2001). WHEREFORE, your affirmant respectfully prays for an order to proceed with discovery against all defendants or in the alternative, for an order, pursuant to Section 603 of the Civil Practice Law and Rules, severing the claims against Defendant Robert Solomon, M.D. on the ground that the pending liquidation of his insurer Oceanus has stayed the action and therefore will continue to unduly delay the determination of the action brought by the Plaintiffs against the remaining defendants and for such further relief as to this court may seem just and proper. 8 8 of 10

9 Dated: Astoria, NY March 6, 2018 onald Groman SACCO & FILLAS, LLP Attorneys for Plaintiffs Newtown Avenue Seventh Floor Astoria, New York (718) Our File #: of 10

10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No / LAKISHA TAYLOR as Administratrix of the Estate of JADA DANIELLE DUNCAN, deceased and on behalf of her Distributees and Next of Kin, and WARREN DUNCAN, Individually, Plaintiff (S), -against- EBENEZER KOFI ODOOM, M.D., STEPHEN E. OWUSU, D.P.M, M.A., MOUNT ZION PODIATRY, P.C., ROBERT SOLOMON, M.D., EXPRESS MOBILE DIAGNOSTIC SERVICES, INC., SENIORCARE EMERGENCY MEDICAL SERVICES, INC., CHARLES WILBORNE and STEVEN VEGA Defendant (S). NOTICE OF MOTION TO COMPEL Pursuant to 22 NYCRR , the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: February 8, 2018 Signature: Ronald Groman, Esq. SACCO & FILLAS, LLP Attorneys for Plaintiff Newtown Avenue Seventh Floor Astoria, New York (718) of 10