Feliciano v Obedian

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Feliciano v Obedian 2018 NY Slip Op 34262(U) December 5, 2018 Supreme Court, Nassau County Docket Number: Index No. 608891/17 Judge: James P. McCormack Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 608891/2017 FILED: NASSAU COUNTY CLERK 12/07/2018 10:11 AM NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/07/2018 SUPREME COURT - STATE OF NEW YORK PRESENT: Honorable James P. McCormack Justice _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.x TRIAL/IAS, PART 23 NASSAU COUNTY RAFAEL FELICIANO and MELANIE FELICIANO, Index No. Plaintiff(s ), 608891/17 -againstRICHARDS. OBEDIAN, M.D., RICHARDS. OBEDIAN, PLLC, WILLIAM J. SONSTEIN, M.D., WILLIAM J. SONSTEIN, M.D. PC, NEUROLOGICAL SURGERY, PC AND NYU WINTHROP HOSPITAL f/k/a WINTHROP UNIVERSITY HOSPITAL, Motion Seq. No.: Motion Submitted: 001 & 002 10/25/18 Defend ant( s). _________________x The following papers read on this motion: Notices of Motion/Supporting Exhibits ........................................ XX Affirmation in Oppo~ition ............................................................. X Reply Affirmation......................................................................... X Defendant, NYU Winthrop Hospital f/k/a Winthrop University Hospital (Winthrop), moves this court for an order, (Motion Seq. 001), pursuant to CPLR §§3101, 3124, 3126 and 3042, for an order dismissing Plaintiffs' complaint for failure to comply [* 1] 1 of 4 FILED: NASSAU COUNTY CLERK 12/07/2018 10:11 AM NYSCEF DOC. NO. 61 I INDEX NO. 608891/2017 RECEIVED NYSCEF: 12/07/2018 .... with discovery. In the alternative, Winthrop seeks to either preclude Plaintiffs from offering evidence at trial, or compelling Plaintiffs to comply with discovery demands. Plaintiffs, Rafael Feliciano (Rafael) and Melanie Feliciano (Melanie) oppose the motion. Defendants. Richard S. Obedian, M.D., Richard S. Obedian, PLLC, William J. Sonstein, M.D., William J. Sonstein, M.D. PC, and Neurological Surgery, PC (collectively "the Obedian/Sonstein Defendants"). separately move this court (Motion Seq. 002), also pursuant to CPLR §§ 3042, 3124 and 3126, to dismiss Plaintiffs' complaint, or to compel Plaintiffs to comply with discovery. Plaintiffs oppose the motion. Before a motion relating to discovery or a bill of particulars can be brought, the movant is required to submit an affirmation of good faith indicating "that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." 22 NYCRR 202.7(a). The affirmation of good faith is supposed to indicate that the parties consulted over the discovery issues and the "time, place and nature of the consultation and the issues discussed ... /' unless it would have been futile to do so. 22 NYCRR 202.7(c). The parties are to make a diligent effort to resolve the discovery dispute. (Deutsch v. Grunwald, 1to A.D.3d 949 [2 nd Dept. 2013]; Murphy v. County ofSuffolk, 115 A.D.3d 820 [2nd Dept. 2014]; Chichilnisky v. Trustees of Columbia University in City ofNew York, 45 A.D.3d 393 [ l st Dept. 2007]). Herein, neither movant submits a sufficient affirmation of good faith. Winthrop's counsel states their good faith efforts consists of three letters. First, the affirmation contains none of the required information. Second, letters alone do not satisfy the rule. (See Eaton v. Chahal, 146 2 [* 2] 2 of 4 FILED: NASSAU COUNTY CLERK 12/07/2018 10:11 AM NYSCEF DOC. NO. 61 INDEX NO. 608891/2017 RECEIVED NYSCEF: 12/07/2018 . .,. Misc.2d. 977, 983 [N.Y.Sup. 1990] (" ... the court interprets a 'good faith effort' to mean more than an exchange of computer generated form letters or cursory telephone conversation."); Santiago v. Park Ambulance Serv., Inc., 53 Misc.3d 120 l(A)[N.Y.Sup. 2016]("Merely sending letters .. .is not sufficient to satisfy the requirement of 22 NYCRR §202.7(c)."); Amherst Synagogue v. Schuele Paint Co., 30 A.D.3d 1055, 1057 [4 th Dept. 2006](sending only letters mfailed to demonstrate that they made a diligent effort to resolve this discovery dispute."', quoting Baez v. Sugrue, 300 A.D.2d 519, 521 [2 nd Dept. 2002]). Further, the referenced letters were sent to Plaintiffs' prior counsel, and there is no proof of any efforts, much less diligent efforts, made with Plaintiffs' current counsel. The Obedian/Sonstein Defendants' counsel claims there were "phone calls" made, but there is nothing in the affirmation explaining the date, time and content of those discussions, as required by the rule. For those reasons, both motions will be denied as defective. The court notes that Plaintiffs allege in their opposition papers that they have supplied all outstanding discovery except for Plaintiffs' tax returns. In letters sent to the court, Plaintiffs argue they should not have to turn over their tax returns because employment authorizations and W-2 forms are enough to substantiate Plaintiffs' income for the lost wages claim. Defendants, in a responsive letter, argue they are entitled to tax returns as they are the only proper way to determine all of Plaintiffs' income. Though the issue is not before the court or contained in these motions, in general this court is loathe 3 [* 3] 3 of 4 INDEX NO. 608891/2017 FILED: NASSAU COUNTY CLERK 12/07/2018 10:11 AM NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/07/2018 . ,., to direct the release of tax returns where the information is available from other sources. Generally, a W-2 should suffice, and a Defendant's supposition that a tax return might show other income is not grounds to overcome this court's reluctance. Accordingly, it is hereby ORDERED, that Winthrop's motion (Motion Seq. 001) pursuant to CPLR §§3101, 3124, 3126 and 3024 is DENIED without prejudice, with leave to renew upon proper compliance with 22 NYCRR 202.7(c); and it is further ORDERED, that the Obedian/Sonstein Defendants' motion (Motion Seq. 002) pursuant to CPLR §§ 3126, 3124 and 3042 is DENIED, with leave to renew upon proper compliance with 22 NYCRR 202.7. The foregoing constitutes the Decision and Order of the Court. Dated: December 5, 2018 Mineola, N.Y. ENTERED DECO 7 2018 NASSAU COUNTY COUNTY CLERK'S OFFICE 4 [* 4] 4 of 4

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