FILED: NEW YORK COUNTY CLERK 05/31/ :50 PM INDEX NO /2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 06/07/2016

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1 FILED: NEW YORK COUNTY CLERK 05/31/ :50 PM INDEX NO /2015 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 06/07/2016 OD/Imm SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DAVID V. CONTE, -against- Plaintiff, URI SHABTO, RETINA CONSULTANTS OF NEW YORK, CHRISTOPHER C. TENG, GLAUCOMA ASSOCIATES OF NEW YORK, Defendants. X NOTICE OF MOTION IndexNo.: Refer to Judge Lobis COUNSELORS: PLEASE TAKE NOTICE, that upon the annexed Affirmation of Olivia DeBellis, Esq., dated October 22, 2015, the exhibits attached thereto, and upon all prior proceedings heretofore had herein, defendant, GLAUCOMA ASSOCIATES OF NEW YORK, P.C. s/h/a GLAUCOMA ASSOCIATES OF NEW YORK will move this Court at the New York County Supreme Court Courthouse located at 60 Centre Street, Motion Support Room 130, New York, New York, on the 10*^ day of November, 2015, at 9:30 in the forenoon of that day. or as soon thereafter as counsel may be heard for an Order: a. Pursuant to CPLR 3126(3), dismissing plaintiffs Complaint with prejudice for failing to comply with defendants discovery demands; and b. Pursuant to CPLR 3012(a), dismissing plaintiffs Complaint for failure to file and serve a Certificate of Merit, as required under CPLR 3012(a); and c. Pursuant to CPLR 3406 and 22 NYCRR dismissing plaintiffs Complaint for failing to file a Notice of Medical Malpractice; or, in the alternative. d. Pursuant to CPLR 3126(2), precluding plaintiff from testifying or entering any evidence at trial relevant to the outstanding discovery; or in the alternative _1 1 of 14

2 e. Pursuant to CPLR 3124, compelling plaintiff to provide all outstanding discovery, serve and file a Certificate of Merit and Notice of Medical Malpractice within twenty (20) days and serve a Bill of Particulars before the Preliminary Conference; and f. For such other and further relief as this Court deems just and proper. Dated: New York, New York October 22,2015 Yours, etc. MARTIN CLEARWATER & BELL LLP By: Olivia DeBellis Attorneys for Defendant GLAUCOMA ASSOCIATES OF NEW YORK, P.C. s/h/a GLAUCOMA ASSOCIATES OF NEW YORK 220 East 42nd Street New York, NY (212) TO: DAVID V, CONTE Plaintiff Pro Se Fresh Pond Road Apartment 3 Ridgewood, NY LeCLAIRRYAN, P.C. Attorneys for Defendants URISHABTO and RETINA CONSULTANTS OF NEW YORK 885 Third Avenue, 16* Floor New York, NY (212) ^1 2 2 of 14

3 OD/Imm SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DAVID V. CONTE, -against- Plaintiff, URI SHABTO, RETINA CONSULTANTS OF NEW YORK, CHRISTOPHER C. TENG, GLAUCOMA ASSOCIATES OF NEW YORK, Defendants. X AFFIRMATION IN SUPPORT IndexNo.; OLIVIA DEBELLIS an attorney duly admitted to practice in the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am associated with the law firm of Martin Clearwater & Bell llp, attorneys of record for defendant, GLAUCOMA ASSOCIATES OF NEW YORK, P.C. s/h/a GLAUCOMA ASSOCIATES OF NEW YORK (hereinafter defendant ), and as such I am fully familiar with the facts and circumstances herein. 2. This Affirmation is submitted in support of the instant motion which seeks an Order: a. b. c. d. Pursuant to CPLR 3126(3), dismissing plaintiffs Complaint with prejudice for failing to comply with defendants discovery demands; and Pursuant to CPLR 3012(a), dismissing plaintiffs Complaint for failure to file and serve a Certificate of Merit, as required under CPLR 3012(a); and Pursuant to CPLR 3406 and 22 NYCRR dismissing plaintiffs Complaint for failing to file a Notice of Medical Malpractice; or in the alternative Pursuant to CPLR 3126(2), precluding plaintiff firom testifying or entering any evidence at trial relevant to the outstanding discovery; or, in the alternative of 14

4 e. Pursuant to CPLR 3124, compelling plaintiff to provide all outstanding discovery, serve and file a Certificate of Merit and Notice of Medical Malpractice within twenty (20) days and serve a Bill of Particulars before the Preliminary Conference; and f For such other and further relief as this Court deems just and proper. INTRODUCTION 4. In brief, this is an action sounding in medical malpractice, commenced over eight (8) months ago. To date, the plaintiff has failed to provide a Bill of Particulars as to Glaucoma Associates of New York, P.C. Additionally, the plaintiff has failed to properly respond to the defendant s initial discovery demands and has provided no authorizations permitting the release of the plaintiffs medical records. The plaintiff has also failed to serve and file a Certificate of Merit and a Notice of Medical Malpractice for the instant action. Accordingly, and for the reasons set forth below, the defendant respectfully requests that this case be dismissed with prejudice. PROCEDURAL HISTORY 5. The plaintiff commenced this action by the filing of a Summons and Verified Complaint on or about January 14, 2015 (annexed hereto as Exhibit A ). 6, Issue was joined on behalf of the defendant, GLAUCOMA ASSOCIATES OF NEW YORK, P.C. s/h/a GLAUCOMA ASSOCIATES OF NEW YORK by service of Verified Answers on February 9, 2015 (annexed hereto as Exhibit B ). The defendant served an Amended Answer on February 11,2015 (annexed hereto as Exhibit C ). 7. Various discovery demands were served contemporaneous with the defendant s Verified Answer, including a Demand for Verified Bills of Particulars and a Demand for Authorizations for all prior and subsequent physicians and institutions and records allowing the release of co-defendant s records (see Exhibit B ) _1 2 4 of 14

5 8. On or about July 2, 2015, defense counsel sent the plaintiff a good-faith letter requesting all outstanding discovery, including a Bill of Particulars (annexed hereto as Exhibit D ). Enclosed with the defendant s July 2, 2015 good faith letter was a further Demand for Authorizations (annexed hereto as Exhibit E ) and a Notice to Produce (annexed hereto as Exhibit F ), 9. On or about July 23, 2015, the plaintiff served a Response to Notice for Discovery and Inspection (annexed hereto as Exhibit G ), Response to Demand for Authorizations for Medical/ Insurance Records (annexed hereto as Exhibit H ) and a Response to Notice to Produce (annexed hereto as Exhibit I ). However, the plaintiffs responses were insufficient, and provided no meaningful discovery. The responses failed to identify which defendant s respective counsel demands the plaintiff was responding to, and in any event, they were unresponsive to the defendant s requests, and consisted only of objections. 10. On or about July 24, 2015, the defense cormsel sent the plaintiff a letter joining in the requests made by the attorneys for co-defendant Retina Consultants of New York in their letters dated July 14, 2015 and July 16, 2015 (annexed hereto as Exhibit J ). 11. Notably, while in Court on August 11, 2015 for defendant s Order to Show Cause', the plaintiff was instructed by Your Honor to provide the defendants with a Bill of Particulars, at minimum. Despite this instruction and repeated assurances by the plaintiff that we would be provided with a Bill of Particulars as to our client, we have not received a Bill of Particulars to date. The Order to Show Cause of behalf of Glaucoma Associates of New York, P.C. has since been withdrawn. 2620iai_l 3 5 of 14

6 12. On or about September 24, 2015, your Affirmant sent the plaintiff another good-faith letter specifically outlining the outstanding discovery, including a Bill of Particulars (annexed hereto as Exhibit K ). 13. To date, we have yet to receive a response to any of our correspondence, and significant discovery remains. Additionally, the plaintiff has failed to file or serve a Certificate of Merit and Notice of Medical Malpractice, as required in medical malpractice cases. Although thus far the plaintiff has appeared pro se, he has indicated to our office that he has retained counsel. Thus, the plaintiffs attorney should be required to file a Notice of Appearance, Certificate of Merit, and Notice of Medical Malpractice. ARGUMENT I. 14. PURSUANT TO CPLR 3126 (3), THE PLAINTIFF S COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE FOR THE PLAINTIFF S FAILURE TO COMPLY WITH THE DEFENDANTS DISCOVERY DEMANDS CPLR 3101 (a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action. New York Courts have consistently held that this test is one of usefulness and reason, and is satisfied as long as the information sought is sufficiently related to the issues in question, making it reasonable to obtain such information for trial litigation, S^, Allen v. Cromwell Collier Pub. Co., 21 N,Y.2d 403, , 288 N.Y.S.2d 449, 452 (1968); Williams Real Estate Co.. Inc, v. Viking Penguin, Inc., 216 A.D.2d 27, 28, 628 N.Y.S.2d 267, 268 (1st Dept, 1995), Furthermore, any matter which may lead to the discovery of admissible evidence is discoverable, as is any matter which bears upon a defense, even if the facts themselves are not admissible. Twenty Four Hour Fuel Oil Com. V. Hunter Ambulance, Inc., 226 A.D.2d 175, 640 N.Y.S.2d 114 (1st Dept, 1996); i 4 6 of 14

7 Bigman v. Dime Savings Bank of New York, FSB, 153 A.D.2d 912, 545 N.Y.S.2d 721 (2d Dept, 1989); Fell v. Presbyterian Hosp., 98 A.D.2d 624, 469 N.Y.S.2d 375 (1st Dept. 1983). 15. The plaintiff has repeatedly disregarded the good faith efforts of the defendant to obtain the outstanding discovery as outlined above, despite multiple attempts to obtain this discovery as described in the attached Affirmation of Good Faith. CPLR 3126 provides in pertinent part: If any party... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed..., the court may make such orders with regard to the failure or refusal as are just, among them,... (2) an order prohibiting the disobedient party from... producing in evidence designated things or items of testimony... or (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed or dismissing the action, or any part thereof, or rendering a judgment of default against the disobedient party. 16. Under CPLR 3126(3), if any party willfully fails to disclose information which the Court finds ought to have been disclosed, the Court may make such orders with regard to the failure or refusal as are just, including dismissal of the action. New York case law has liberally interpreted this provision to give trial courts discretion to dismiss a party s pleading as a sanction for willful and deliberate failure to disclose information. See Berman v. Sypilzinper. 180 A,D.2d 612, 580 N,Y,S.2d 324 (1st Dept. 1992); Lowitt v. Burton I. Korelitz. 152 A.D.2d 506, 544 N.Y.S.2d 14 (1st Dept. 1989); Jaffe v. Hubbard. 299 A,D,2d 395, 751 N.Y.S.2d 491 (2d Dept. 2002); Birch Hill Farm. Inc, v. O Reed. 272 A.D.2d 282, 707 N.Y.S.2d 188 (2d Dept. 2000). 17. The sanction of dismissal is appropriate upon a showing that the failure to comply with discovery demands is willful, contumacious or in bad faith. Birch Hill Farm, Inc. V. O Reed. 272 A.D.2d 282, 707 N.Y,S.2d 188 (2d Dept. 2000). A party aggrieved by _1 5 7 of 14

8 the failure to respond to discovery demands need not first obtain an Order to compel I disclosure prior to moving for dismissal under CPLR 3126.^ Goldner v. Lendor Structures, Inc., 29 A,D.2d 978, 289 N.Y,S,2d (2d Dept. 1968). Indeed, the sanction of dismissal may be warranted even if plaintiff has committed no violation of a prior court Order. Birch Hill Farm. Inc A.D.2d at 282, 707 N.Y.S.2d at 188; Wolfson v. Nassau County Med. Ctr., 141 A.D.2d 815, 530 N.Y.S.2d 27 (2d Dept. 1988) (dismissing plaintiffs complaint where plaintiff willfully failed to disclose information, but committed no violation of a prior court Order). 18. The plaintiffs failure to provide the' above-referenced discovery throughout the more than eight 181 months since this case has commenced has frustrated the disclosure process provided for in the CPLR, To date, despite the moving defendants good faith attempt to resolve this matter without Court intervention, the plaintiff has failed to supply the most basic of discovery, including a Bill of Particulars and authorizations. Therefore, judicial intervention is necessary to protect the rights of the defendant. 19, In sum, the plaintiffs failure to respond to the defendant s demands for discovery constitutes contumacious and willful disregard for the discovery process and warrants dismissal of plaintiffs Complaint, with prejudice. II. 20. THE PLAINTIFF S COMPLAINT SHOULD BE DISMISSED FOR FAILING TO FILE AND SERVE A CERTIFICATE OF MERIT PURSUANT TO CPLR 3012(a) CPLR 3012-a, states, in pertinent part, that: (a) in any action for medical, dental or podiatric malpractice, the complaint shall be accompanied by a certificate, executed by the attorney for the plaintiff, declaring that: (1) the attorney has reviewed the facts of the case and has consulted with at least one physician in medical malpractice actions...and that the _1 6 8 of 14

9 attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or (2) the attorney was unable to obtain the consultation required by paragraph one of this subdivision because of limitation of time, establishing by article two of this chapter, would bar the action and that the certificate required by paragraph one of this subdivision could not reasonably be obtained before such time expired. If a certificate is executed pursuant to this subdivision, the certificate required by this section shall be filed within ninety days after service of the complaint While pro se plaintiffs are not subjected to this requirement, Mr. Conte has stated that he has retained an attorney. The statute does not specifically address the scenario at hand, however, the goals of the legislature is, to improve the quality of medical malpractice adjudications and deter the commencement of frivolous cases,' McKinney s 1986 Session Laws of N.Y., chap, 226, 1, will likely be better served by requiring the newly retained attorney to file a Notice of Appearance and to produce a certificate within a reasonable period of time. N.Y. C.P.L.R a (McKinney). Thus, the plaintiff is required to serve a Certificate of Merit and the plaintiff has failed to do so. Hence, the plaintiff has failed to demonstrate that he has a meritorious case. Therefore the plaintiff has not shown the Court that there is a reasonable basis for the commencement of this action, Thus, the plaintiffs Complaint should be dismissed. If the plaintiff has in fact retained an attorney, we ask that the attorney file a Notice of Appearance and file a Certificate Merit within twenty days. III. 22. THE PLAINTIFF S COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO FILE A NOTICE OF MEDICAL MALPRACTICE PURSUANT TO CPLR 3406 AND 22 NYCRR CPLR 3406 states in pertinent part: of 14

10 (a) 23. Mandatory filing. Not more than sixty days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the chief administrator of the courts. Together with such notice, the plaintiff shall file: (i) proof of service of such notice upon all other parties to the action; (ii) proof that, if demanded, authorizations to obtain medical, dental, podiatrie and hospital records have been served upon the defendants in the action.. 22 N.Y.C.R.R (a)(1) provides that a plaintiff must file a Notice of Medical Malpractice, and that the filing of such notice after the expiration of 60 days can only be done by leave of the Court on motion and for good cause. 24. Although the statutes do not authorize outright dismissal for failure to file a Notice of Medical Malpractice within 60 days of the Complaint, the Court has discretion to grant an extension to file such notice upon application of the plaintiff and a demonstration of good cause. See Tewari vs. TsoUtsouras, 75 N.Y.2d N.Y.S.2d 572 (1989); 99,CPLR Here, to date, the plaintiff has failed to file a Notice of Medical Malpractice within the time frame and he has failed to demonstrate any good cause as to his default or delay. Not only has he failed to file a Notice of Medical Malpractice but, he has failed to file a Certificate of Merit. IV. ALTERNATIVELY, THE PLAINTIFF SHOULD BE PRECLUDED FROM INTRODUCING AT TIME OF TRIAL ANY EVIDENCE RELATED TO THE DISCOVERY WHICH HE HAS FAILED TO PROVIDE 26. CPLR 3126(2) provides in relevant part that if a party willfiilly fails to disclose information that the Court finds ought to have been disclosed pursuant to Article 31, the Court may make an order prohibiting the disobedient party from introducing evidence supporting or opposing designated claims or defenses, from producing in evidence designated _ of 14

11 things or items of testimony, or from introdueing any evidence of any physical, mental or blood condition sought to be determined or from using certain witnesses. A party s numerous and unexplained failures to comply with longstanding and still outstanding discovery obligations justify the inference that [the] noncompliance with discovery has been willful and contumacious [citations omitted]. Sanchez v. City of New York, 266 AD2d 127, 698 NYS2d 670 (1' Dep t 1999). 27. Where the plaintiff has made no good-faith effort to comply with the defendant s duly served demands, the Court may infer that the delay was willful. Wolfson v. Nassau County Medical Center. 141 A.D.2d 815, 530 N.Y.S.2d 27 (2d Dept. 1987); Dauriaw City of New York. 127 A.D.2d 459, 511 N.Y.S. 271 (1st Dept. 1987). Thus, should the Court not dismiss this matter with prejudice pursuant to CPLR 3126(3), the defendant respectfully requests that the Court preclude the plaintiff from offering any evidence in support of the plaintiffs claims and injuries at trial. V. 28. ALTERNATIVELY, PLAINTIFF SHOULD BE COMPELLED TO PROVIDE ALL OUTSTANDING DISCOVERY Under CPLR 3124, if a person fails to respond to or comply with any request, notice... demand... the party seeking disclosure may move to compel compliance. 29. If this Court does not dismiss plaintiffs Complaint, pursuant to CPLR 3126(3), or preclude plaintiff from presenting any evidence related to the diseovery which he has failed to provide, defendants respectftilly request that this Court order plaintiff to provide the Bill of Particulars before the Preliminary Conferenee and the remaining outstanding discovery, within twenty (20) days. 30. Due to the plaintiffs ongoing and willful failure to provide a Verified Bill of Particulars, the defendant further requests that any order compelling discovery by a date _ of 14

12 certain include a conditional order of dismissal, whereby the plaintiffs Complaint will be automatically dismissed if the plaintiff fails to provide the ordered discovery by a date certain. VI. CONCLUSION This case has been languishing since January 2015 and despite the defendant s good faith efforts, and the Court s instruction, the plaintiff has failed to provide even a Bill of Particulars, or responses to almost all of the defendant s discovery demands. Additionally, the plaintiff has failed to file a Certificate of Merit or a Notice of Medical Malpractice. The plaintiffs continuous delays have frustrated the discovery process and have caused prejudice to the defendant. Thus, dismissal is warranted. WHEREFORE, it is respectfully requested that this Court grant the instant motion in its entirety, together with such other and further relief as this Court deems just and proper. Dated: New York, New York October 22, 2015 Olivia DeBellis _ of 14

13 L OD/lmm SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DAVID V. CONTE, -against- Plaintiff, URI SHABTO, RETINA CONSULTANTS OF NEW YORK, CHRISTOPHER C. TENG, GLAUCOMA ASSOCIATES OF NEW YORK, AFFIRMATION OF GOOD FAITH Index No.: Defendants. X OLIVIA DEBELLIS, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am associated with the law firm of Martin Clearwater & Bell LLP, attorneys of record for defendant, GLAUCOMA ASSOCIATES OF NEW YORK, P.C. s/h/a GLAUSOMA ASSOCIATES OF NEW YORK (hereinafter defendant ), and as such I am fully familiar with the facts and circumstances herein. 2. This Affirmation of Good Faith is submitted in support of the instant motion which seeks an Order: a. b. c. d. Pursuant to CPLR 3126(3), dismissing plaintiffs Complaint with prejudice for failing to comply with defendants discovery demands; and Pursuant to CPLR 3 012(a), dismissing plaintiffs Complaint for failure to file and serve a Certificate of Merit, as required under CPLR 3012(a); and Pursuant to CPLR 3406 and 22 NYCRR dismissing plaintiffs Complaint for failing to file a Notice of Medical Malpractice; or, in the alternative Pursuant to CPLR 3126(2), precluding plaintiff from testifying or entering any evidence at trial relevant to the outstanding discovery; or, in the alternative _1 13 of 14

14 e. Pursuant to CPLR 3124, compelling plaintiff to provide all outstanding discovery, serve and file a Certificate of Merit and Notice of Medical Malpractice within twenty (20) days and serve a Bill of Particulars before the Preliminary Conference; and f For such other and further relief as this Court deems just and proper. 3. This Affirmation of Good Faith is made pursuant to 22 N.Y.C.R.R (a)(2), and demonstrates that good faith efforts have been made to resolve the instant discovery dispute prior to resorting to motion practice, 4, Prior to resorting to motion practice, a good faith effort was made by this office to resolve the dispute regarding outstanding discovery with plaintiff. The defendant directed good-faith correspondences dated July 2, 2015 and September 24, 2015 (annexed hereto as Exhibit D and Exhibit K ) to plaintiff in an attempt to obtain outstanding discovery without the need for judicial intervention. 5. To date, the plaintiff has failed to provide outstanding Verified Bills of Particulars or responses to the defendant s multiple good faith requests for outstanding discovery. 6. It has become apparent that the plaintiff will not provide the outstanding Bill of Particulars, thereby necessitating the filing of this motion, Accordingly, this motion is necessary to protect the rights of the moving defendant. Dated: New York, New York October 22, 2015 Olivia DeBellis _ of 14