FILED: NEW YORK COUNTY CLERK 03/21/ :36 PM INDEX NO /2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/21/2016

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1 FILED: NEW YORK COUNTY CLERK 03/21/ :36 PM INDEX NO /2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/21/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x H.N., an Infant, by Her Mother and Natural Guardian, CHRISTINE NEW, AFFIRMATION Plaintiffs, Index No / against - KAREN GRONAU, M.D., DAVID SEUBERT, M.D., HEIDI S. ROSENBERG, M.D., CARMIT ARCHIBALD, M.D., JOHN WIRTH, M.D., AUTUMN EDENFIELD, M.D., CITYSCAPE OB/GYN, P.L.LC., and NYU LANGONE MEDICAL CENTER, Defendants. x MARGOT P. WEISBERG, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the following under the penalty of perjury: 1. I am an associate with the law firm of Aaronson, Rappaport, Feinstein & Deutsch, LLP, attorneys of record for defendants KAREN GRONAU, M.D., DAVID SEUBERT, M.D., CARMIT ARCHIBALD, M.D., AUTUMN EDENFIELD, M.D. and NYU HOSPITALS CENTER s/h/a LANGONE MEDICAL CENTER in the above-captioned action. I am familiar with the facts and circumstances of this action by virtue of my review of the file maintained by this office for the defense of this action. 2. This Affirmation is in support of the moving defendants' application seeking an Order: vacating the Note of Issue and Certificate of Readiness, pursuant to 22 NYCRR (e) and striking this action from the trial calendar on the grounds that all pre-trial discovery is not completed and this matter is not ready for trial; and, to compel plaintiff to provide all outstanding discovery as enumerated in the Court's Order of March 1, 2016; and to extend the time for { DOCX } 1 of 7

2 defendants to file a summary judgment motion. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 3. The present action centers on allegations of medical malpractice in which th plaintiff alleges that defendants failed to provide appropriate labor and delivery care causing the infant plaintiff to suffer injuries such as premature delivery and developmental delays. 4. The action was commenced by the filing of the Summons and Complaint on o about May 31, (A copy of the Summons and Complaint is annexed hereto as EXHIBIT "A.") The defendants HEIDI S. ROSENBERG, M.D., CITYSCAPE OB/GYN, P.L.LC., and JOHN WIRTH, M.D. interposed Answers on or about July 10, (A copy of co-defendants' Answers are attached hereto as EXHIBIT "B.") The defendants CARMIT ARCHIBALD, M.D, AUTUMN EDENFIELD, M.D., NYU HOSPITALS CENTER s/h/a LANGONE MEDICAL CENTER interposed Answers on or about July 15, The defendant DAVID SEUBERT, M.D. interposed Answer on August 2, 2013 and the defendant KAREN GRONAU, M.D. interposed Answers on August 9, (A copy of defendants Answers are attached hereto as EXHIBIT "C.") 5. Thereafter the parties appeared on a preliminary conference and various compliance conferences which indicated that defendants reserved their right to an Independent Medical Exam (IME) of the infant plaintiff. On August 10, 2015, the office of the affirmant sent a letter to plaintiff's counsel designating pediatric neurologist, Dr. Ingrid Taff, to perform the IME of the infant plaintiff and requesting availability of the infant plaintiff. (A copy of the August 10, 2015 letter is annexed hereto as EXHIBIT "D.") Plaintiff did not respond to this demand. On January 19, 2016, the parties appeared for a compliance conference and the Order set forth that the IME was to be performed no later than 30 days prior to the Note of Issue date o { DOCX } -2-2 of 7

3 March 4, (A copy of the January 19, 2016 compliance conference Order is annexed hereto as EXHIBIT "E.") On January 21, 2016 the office of the affirmant sent an additional letter to plaintiff's counsel seeking infant plaintiffs availability for the IME. (A copy of the January letter is annexed hereto as EXHIBIT "F.") Again, plaintiff did not respond to this demand. 6. On March 1, 2016, counsel for all parties appeared in Court for a status conference. (A copy of the March 1, 2016 status conference Order is annexed hereto as EXHIBIT "G.") The status conference Order set forth that the Note of Issue date was extended to May 20, 2016, the plaintiff was to provide the infant for an IME with the pediatric neurologist 30 days before the new Note of Issue date, plaintiff was to provide the last known addresses of the infant's grandmother and the infant's aunt for non-party depositions, and plaintiff was to provide outstanding authorizations and lien information. Pursuant to the court Order, the parties were to return for a status conference on April 12, On March 2, 2016, the office of the affirmant sent another letter to plaintiff seeking availability of infant plaintiff for the IME. (A copy of the March 2, 2016 letter is annexed hereto as EXHIBIT "H.") 8. On or about March 3, 2016, only two days after the March 1, 2016 status conference, plaintiff filed their Note of Issue. (A copy of the Note of Issue is annexed hereto as EXHIBIT "I.") In the Note of Issue, plaintiff s counsel represented to the Court in point three of the Certificate of Readiness that "physical examinations [are] completed" and in the attorney affirmation that discovery is complete. 9. Clearly, the filing of the Note of Issue is premature as there is outstanding discovery as delineated in the March 1, 2016 Court Order, namely the IME and non-party { DOCX -3-3 of 7

4 depositions. Thus, the Note of Issue should be stricken by the Court. 10. Plaintiff has since provided some of the outstanding discovery per the March status conference Order, but the IME and non-party depositions remain outstanding. 11. Plaintiff's counsel will take the position that the Independent Medical Exam an non-party depositions could take place after the filing of the Note of Issue. However, th defendants intend to move for summary judgment (which has to be filed within 60 days of the filing of the Note of Issue per Court rules) and the IME and testimony of these individuals ma be relevant for purposes of the defendants' summary judgment motion. Thus, if the depositions are conducted after the Court ordered deadline of defendants' deadline to make the summary judgment motion, the defendants would be unduly prejudiced in that they were deprived o materials that may be material and necessary to defend the action. ARGUMENT Plaintiffs Note of Issue must be stricken and plaintiff must be compelled to provide outstanding discovery 12. "No action or special proceeding shall be deemed ready for trial... unless there is first filed a Note of Issue accompanied by a Certificate of Readiness..." (NYS Supreme Cour and County Court Civil Rules (a)). Where material pretrial discovery, which is essential to the defense of a given claim, remains incomplete and a party files a Note of Issue certifying that discovery is complete when in actuality it is not, the Note of Issue will be vacated by the presiding Court. See Spilky v. TRW, Inc., 638 N.Y.S.2d 792 (2nd Dept., 1996); Levy v. Schaeffer, 555 N.Y.S.2d 192 (3rd Dept., 1990). 13. Here, plaintiff's counsel represented to the Court in point three of the Certificate of Readiness that "physical examinations [are] completed" and in the attorney affirmation that discovery is complete. This is not the case, however, as the IME and the depositions of non- { DOCX } -4-4 of 7

5 parties remain outstanding. Accordingly, the Court should strike the Note of Issue and compel plaintiff to produce all outstanding discovery. 14. New York courts have held that the standard for striking a Note of Issue is that, once filed, any party may move to strike provided that the motion is brought within twenty days of the date that the Note of Issue is served. 22 NYCRR (e); See Audiovox Corporation v. Benyami, 707 N.Y.S.2d 137 (2d Dept. 2000)). Supreme Court Rule (e) states: "...any party to the action... may move to vacate the Note of Issue upon affidavit showing in what respects the case is not 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..." "At any time, the court on its own motion may vacate a 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." 15. Here, based on 22 N.Y.C.R.R (e), this motion is timely since it is made within 20 days after the service of the note of issue on March 3, Thus, since discovery is incomplete, the note of issue should be vacated. 16. The moving party does not have to explain why the relief sought was not requested prior to the filing of the Note of Issue or demonstrate that "unusual or unanticipated circumstances developed subsequent to the filing of the Note of Issue." See Audiovox Corporation v. Benyami, 707 N.Y.S.2d 137, 140 (2d Dept )) The contents of the affidavit "need only demonstrate in what respects the case is not ready for trial." Id. at The law is clear that before trial, "parties to an action are entitled to the 'full disclosure of all matter material and necessary to the prosecution or defense of an action...'" Nash v. The Port Authority of New York, 2002 N.Y. App. Div. LEXIS 8201 *14 (1st Dept. 2002)). Moreover, the "discovery provisions of the CPLR have traditionally been liberally { DOCX -5-5 of 7

6 construed to require disclosure of any facts bearing on the controversy which will assist [th parties] preparation for trial'" [citations omitted]. Id. CPLR 3124 provides that "Ulf person fails to respond to or comply with any request...under this article...the party seekin disclosure may move to compel compliance or a response." Additionally, CPLR 3101(a) dictates that "[t]here shall be full disclosure of all matter material and necessary in th prosecution or defense of an action". "The phrase 'material and necessary' should b interpreted liberally to require disclosure, upon request, of facts bearing on the controvers which will assist preparation for trial... [t]he test is one of usefulness and reason." Auerbach v. Klein, 30 A.D.3d 451, 452 (2d Dep't 2006). See also Parise v. Good Samaritan Hosp., 36 A.D.3d 678, 679 (2d Dep't 2007). "Given the liberal interpretation of the rules of disclosure, item of arguable relevance should be disclosed." Shanahan v. Bambino, 271 A.D.2d 519 (2 Dep't 2000). 18. Without the IME and non-party depositions, the instant action is indisputably not ready for trial. Both the IME and the non-party depositions are intended to expose facts bearing on the heart of the controversy, namely, the medical care that occurred and infant plaintiff's current medical condition. The moving defendants will be severely prejudiced if this case is not removed from the trial calendar to permit this meaningful discovery. 19. No prior application for the relief requested herein has been made to this Honorable Court. WHEREFORE, it is respectfully requested that the instant motion be granted in its entirety and that the Court issue an Order which vacates the Plaintiff's Note of Issue and strikes this case from the trial calendar and compels the plaintiff to provide all outstanding discovery, { DOCX -6-6 of 7

7 and to extend the time to file summary judgment, together with such further relief as to this Court may deem just, proper, and equitable. Dated: New York, New York March 21, 2016 Margot P. s erg, Esq. { DOCX -7-7 of 7