FILED: BRONX COUNTY CLERK 04/04/2016 04:26 PM
`FILED: BRONX COUNTY CLERK 04m2016 04:26 PM
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`NYSCEF DOC. NO. 101
`NYSCEF DOC. NO. 101
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`INDEX NO. 24060/2014E
`INDEX NO~ 24060/20143
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`RnCnIVnD VYSCEF: 04/04/2016
`RECEIVED NYSCEF: 04/04/2016
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF BRONX
`__________________________________________________________________X
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`JOAN SMALLWOOD and JOVON SMALLWOOD,
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`Index No.: 24060/2014E
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`-against-
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`Plaintiffs,
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`REPLY
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`FC EXECUTIVE INC., MOHAMED L. DIALLO,
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`And JULES E. LAKES,
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`Defendants.
`__________________________________________________________________X
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`File No.: 777554
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`Colin F. Morrissey, an attorney duly admitted to practice before the Courts of New York State,
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`hereby affirms pursuant to CPLR 2106, under penalty of perjury, that the following statements
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`are true and accurate, upon information and belief:
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`l.
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`I am a member of the firm of Baker, McEvoy, Morrissey & Moskovits, RC, and
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`represent the defendants FC Executive Inc. and Mohamed L. Diallo,
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`in the above noted action.
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`I
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`am familiar with the facts of the above noted case, based on review of the file maintained by my
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`office.
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`2.
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`This affirmation is submitted in reply to the opposition filed by plaintiff, and in further
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`support of defendants’ motion pursuant to CPLR 3124 and 3121, for an order to (2) compel
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`plaintiff to appear for the duly noticed physical examinations; (3) for an order pursuant to CPLR
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`3.3122 and s.3124, to compel (1) plaintiff(s) to appear for physical examination(s) by
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`physician(s) designated by defendants, and 2) for a limited order of protection excluding any
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`non-attorney observer(s) from being present during the exam(s), in any manner: electronically, in
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`person, or otherwise; and (3) directing that any attorney attending the examination not interfere
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`with the conduct of the exam in any manner, including objecting to the examiner’s questions on
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`any ground other than an established legal privilege, and advising the plaintiff(s) not to answer,
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`and (4) granting such other and/or further relief as the Court deems just and proper.
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`SERVICE OF THE CPLR 3121 NOTICES
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`3.
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`Plaintiffs initially argue that they were not served with a valid CPLR 3121 notice, such
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`that no obligation to object pursuant to 3122 applied. The statute does not state that “served”
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`means a party cannot cause the notice to be served; and in general, where the law does not
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`require personal service, causing something to be served is sufficient, and no defect. Counsel
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`asserts that because Baker McEvoy caused the notices to be put into the mail by our third party
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`facilitating service, that somehow the intent and spirit of the statute was not satisfied, that they
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`were not on notice. This is a disingenuous claim, and an effort to “game” the disclosure - in
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`contravention of the statute. The facilitating service, IME Services, Inc., was retained to
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`facilitate appointment scheduling with the physician’s offices, and then to put our Firm’s CPLR
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`3121 Notice into the mail, after they had input the applicable physician appointment information.
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`The notice is entirely drafted by defense counsel, and the facilitator merely fills in the
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`appointment date and time. This is done to make this disclosure easier and more convenient for
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`plaintiff.
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`4.
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`It is accurate to state that the actual piece of paper served is Baker McEvoy’s CPLR 3121
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`Notice, in every way, and that Baker McEvoy caused that notice to be mailed. It is at best, a
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`technical quibble, to argue otherwise. Our Firm letterhead appears prominently at the begining
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`of the notice language, and unambiguously states: “Baker McEvoy Morrissey & Moskovits, P.C.
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`hereby serve notice pursuant to 3121”, and the notice language ends with a sign-off from our
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`Firm. There is then language explicitly stating that the, “... language in the...CPLR 3121 notice
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`is solely that set forth by Baker McEvoy, Morrissey & Moskovits, P.C.” There is also language
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`stating that the facilitator has no role in the litigation, and is not setting any conditions.
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`Everything is explicitly stated, such that there is simply no possibility of confusion, for anyone
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`who can read English. In fact, plaintiffs here admit receipt, and subsequent intentional disregard
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`of the noticed conditions, instead preferring to attempt to have the exam conducted with their
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`non-attorney observer, by surprise. However, on being properly reminded of the noticed
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`condition, plaintiffs ultimately served a CPLR 3122 objection, finally alerting defense counsel of
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`their objection, albeit untimely under CPLR 3122. Any waste of time was obviously caused by
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`plaintiffs, and it was the defense examiner’s time that was wasted. Defendants assert that
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`plaintiff s conduct was a waiver of any objections, since they did not comply with CPLR 3122
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`time requirements. Alaten Co. Inc. v. Soil Management Corp, 181 A.D.2d 466, (lst Dept. 1992);
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`Cf, Haller v. North Riverside Partners, 189 A.D.2d 615 (1st Dept. 1993) ; and plaintiffs lack of
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`objeciton, alone, should be grounds to grant the instant motion.
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`FIRST DEPARTMENT CASE LAW
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`5.
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`The First Dept. has no case law about exclusion of a non-attorney from a CPLR 3121
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`exam. There is no First Dept. case employing the phrase “other representative” on this issue.
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`The First Dept. has ONLY held that an “attorney” cannot be excluded without a compelling
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`showing. Ramsey v. New York Univ. Hosp. Ctr., 14 A.D.3d 349 (1st Dept. 2005)[it was error to
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`exclude plaintiff’s “attorney” without a compelling showing, even for a psychiatric exam];
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`Parsons v. Hytech T00] & Die, Inc., 241 A.D.2d 936 (4th Dep’t 1997) [error to exclude plaintiffs
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`“attorney”]. These cases involved a defendant seeking to exclude plaintiff” s attorney, and
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`plaintiffs who opposed because their attorney wanted to attend the exams... quite unlike counsel
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`here, who explicitly declines to attend, while claiming he/she intends to delegate his/her client’s
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`legal representation to a non-attorney. Plaintiffs’ objection here is not premised in First Dept.
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`case law; and the defendant’s request for a limited exclusion order, which does not seek to
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`exclude plaintiffs attorney, is not in conflict with any First Dept. precedent.
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`6.
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`Plaintiff’s citation to Guerra v. McBean [127 AD3d 462 (lst Dept. 2015)], is a complete
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`red-herring. The First Dept. did not at all address the issue of exclusion of anyone from an IME
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`in that case, and the case does not use the phrase “other representative”. The issue on appeal was
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`solely whether the lower court granted a sufficient remedy for the admitted interference. The
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`Appellate Division made a “holding” only as to that lone issue in the appeal, affirming that the
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`remedy granted was sufficient, given the facts and circumstances in that record. The case
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`contained no facts involving a lower court ruling on exclusion or inclusion of a non-attorney
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`from an exam, and therefore the decision cannot offer any “holding” on that point.
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`RESTRICTING ATTORNEY’S CONDUCT
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`7.
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`In regard to defendants’ request here: that plaintiff’ s attorney, if they attend, be restricted
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`from making improper objections during the exam, Guerra is instructive. Improper objections
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`were made there, contrary to the case law admonishing use of such objections. As a result, the
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`lower court had to expend time and resources determining the extent of the improper
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`interference, and crafting a sufficient remedy: i.e. directing plaintiffs to answer the inquiries via
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`post—exam affidavits. In other words, plaintiffs obstructed the exam, improperly, and wasted the
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`court’s time. This is precisely why the case law authorizes the court to impose the restrictions
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`necessary to prevent improper conduct, and a post—exam hearing. See Cooper v. McIness, 112
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`A.D.3d 1120 (3rd Dept. 2013) [Court imposed strict restrictions on attorney’s conduct in the
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`exam, including not speaking, to prevent abuse and interference]; Parsons, (supra) [Court
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`imposed clear restrictions on attorneys presence in the exam] The restrictions requested by
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`defendant here, are less strict than those imposed in Cooper, (supra), and justification for them is
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`evident in the many cases cited by defendants where improper objections are repeatedly
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`occurring --— across more than thirty years. Guerra v. McBean, 127 AD3d 462 (lst Dept. 2015);
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`Tucker v. Bay Shore Storage Warehouse, Inc, 69 AD3d 609 (2nd Dept. 2010); Allen v. State of
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`New York, 228 AD2d 1001 (3rd Dept. 1996); Jakubowski v. Lengen, 86 AD2d 398, 401 [4th
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`Dept. 1982]. Plainly, admonitions from all four Appellate Divisions have not proven sufficient
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`to prevent some attorneys from making such improper objections.
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`8.
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`Plaintiffs only response is to assert that it is “absurd” to propose that the lME be
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`conducted under restrictions equivalent to those imposed for a deposition. Yet, defendants are
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`only asking this court to limit conduct which the Appellate Divisions have already admonished,
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`in each of the above noted cases. Is that absurd? In fact, no objections other than those going to
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`privileges are necessary; especially in a setting Where the inquiry is expected (by both the
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`legislature and the Appellate Division) to be made by a physician, who has no legal training. It
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`is “absurd” to expect that a physician is capable of crafting questions as if she/he were a lawyer,
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`and to expect that the exam will be interfered with when that fact becomes obvious during the
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`exam itself. It is impossible that the legislature intended such a scenario to result, and when the
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`courts created their own rule to permit attorneys into the exam room, this problem was problem
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`was created. So the courts should address it, in advance. The court should have no compunction
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`about doing so, and being specific, because the Legislature already provided plaintiff a
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`procedural remedy to address improper questions: namely CPLR 3103(c). Notably, plaintiffs
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`offer no comment as to why this statue is not sufficient protection, alone.
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`THE “SPECIAL CIRCUMSTANCES” RULE
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`9.
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`The Fourth Dept. has squarely addressed this precise issue: exclusion of a non-attomey
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`observer from the exam room. Mertz v. Bradford, [152 AD2d 962 (4th Dept. 1989) has no
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`negative treatment --- as per Westlaw. Moreover, there is only one Appellate Division in the
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`court system of this state. Although it has four departments, where one department has no
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`precedent specific to an issue or point of law, a decision of another department becomes binding
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`on lower courts in the department where no precedent exists. People v. Shakur, 215 A.D.2d 184,
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`at 185 (1St Dept. 1995) [“Trial courts within this. . .department must follow the determination of
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`the Appellate Division in another department until such time as this court or the Court of
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`Appeals passes on the question.”] [emphasis added] So this court “must follow” the Fourth
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`Deparment’s “special circumstnaces” rule, which is squarely on point, as to exclusion of a non-
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`attorney observer, given the absence of a First. Dept. holding on point.
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`THE MEANING OF “OTHER LEGAL REPRESENTATIVE”
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`10.
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`The Second Dept. case of Ponce v. Health Ins. Plan of Greater New York, 100 A.D.2d
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`963 [2nd Dept. 1984] was the first case to employ the phrase “other legal representative”, over
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`30 years ago, and the meaning of that phrase is the entire cause of this dispute. Plaintiffs claim
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`the term means: “anyone at all”; such that they believe it their “right” to send anyone at all into
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`an exam room, without disclosing to defendant who it will be, or providing any opportunity to
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`object, and without seeking any permission from the court.
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`11.
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`Plaintiffs propose the phrase means “anyone at all”, and in doing so, blithely ignore
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`NYSBA Ethics Opinion 304, cited by defendants, and all the warnings contained in it. Counsel
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`states:
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`“ ...if the doctor asks inappropriate questions (concerning unrelated
`history) or attempts to administer inappropriate tests, the
`Watchdog -- as would any attorney —-can cease the abusive and
`improper practice. So, what is the difference if an attorney is
`present or a trained paralegal or patient advocate?”
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`As should be obvious, the “difference” is that lawyers earned a Law School degree, passed a Bar
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`Examination, were vetted for Character and Fitness, and are accountable for their conduct under
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`a strict code of professional ethics... unlike the paralegal or “patient advocate.” There is a huge
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`“difference” between the attorney, and the paralegal. The term “patient advocate” (whatever
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`counsel means by that).... is totally irrelevant here; there is no “patient”. Plaintiffs have an
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`attorney. If their attorney does not want to attend the exam, or finds it too “onerous”, then he/she
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`can hire a per-diem attorney to assist them, as is routine in practice, precisely because it is
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`ethical. The complaint plaintiffs note is that the ethics rules are too “onerous”, which has no
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`merit.
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`10.
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`This is precisely Why the Defendants argue that the phrase “other legal representative”
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`must be interpreted consistent with the ethics rules. Plaintiff’s counsel offers absolutely no
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`contest as to the status of the ethics rules, plainly cited for them in the moving papers. The rules
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`simply make it impossible that “other legal representative” means: “anyone at all.” The
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`Appellate Division would necessarily have intended the phrase to be interpreted as consistent
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`with the ethical rules for attorney conduct, as well as the criminal statute barring unlicensed
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`practice of law. NYSBA Ethic Opinion 304 explicitly states both would be violated by the
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`conduct plaintiff’ s attorney states they want to delegate to a non-attomey.
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`11.
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`But the phrase “other legal representative” must also be interpreted in view of the specific
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`facts and issues in dispute in Ponce, and each of the other cases in which it was subsequently
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`used. Plaintiffs View: that it means “anyone at all” —-- has no support in the details of those
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`cases. The parties, facts, and dispute at issue on the appeals in Ponce, Jakubowski, Ramsey,
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`Parsons, A. W. , and Jessica H , which all dealt with parties who wanted their attorney to attend,
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`and/or courts that excluded everyone including the attorney. The error was exclusion of the
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`attorney. None of these plaintiffs argued that a non-attorney must be permitted to attend, other
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`than those who were infants or incompetents (and who actually had natural or legal guardians in
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`their action). That the Appellate Divisions intended the phrase to apply to natural and/or legal
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`guardians, is the only interpretation which is consistent with these facts, as well as the issues in
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`dispute on these appeals, and which is also consistent with the ethical rules.
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`12.
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`Defendants already clearly briefed all the case law on point. Plaintiff 3’ response is a
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`weak attempt to distinguish, in ludicrously narrow fashion, the cases that addressed exclusion of
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`a non-attorney observer, whose role is solely to observe. Plaintiffs assert that Mertz only
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`addressed exclusion of a “medical representative”. Of course, a “medical representative” would
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`certainly fall under the “anyone at all” interpretation of “other representative” --- so the effort to
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`distinguish Mertz, seems pointless, especially since it was decided five years after Ponce. Since
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`plaintiffs don’t seek a video, or a stenographer (because they prefer a biased eyewitness), they
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`simply claim Casali and Bermejo are entirely irrelevant to any case except those where a
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`plaintiff requests permission to video record, or stenographical transcribe the exam. But that
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`ignores the fact that both are obvious forms of “observation” of the exam, and the only
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`distinguishing factor between an electronic device and an in-person eyewitness ---- is electricity.
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`Plaintiffs ignore l) the common facts: plaintiffs seeking to include a means of creating some
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`form of observation evidence in the exam room; 2) the common purpose: to create additional
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`impeachment evidence, and 3) the consistent use of the “special circumstances” rule as to all
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`three forms of additional “observation” evidence, wherever these common facts and purpose
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`combine, across all four departments.
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`13.
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`The “special circumstances” rule has been applied, in every department of the Appellate
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`Division, where any plaintiff was seeking to obtain some form of additional observation
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`evidence in the exam, for purposes of later impeachment use. It is not a rule fact specific to
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`“medical representatives”, or electronic devices.
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`It is a general rule, and the form of the
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`evidence requested is irrelevant. In fact, the form should be left solely to the discretion of the
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`court, once “special circumstances” have been shown; Plaintiffs shouldn’t be able to choose. As
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`Bermejo makes clear --- access to the exam room is not to be dealt with lightly, or taken for
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`granted, and a hand-selected, non-attomey, eyewitness observer, is less fair, and presents greater
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`risk of abuse, than Video or stenographic transcription.
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`14.
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`Plaintiffs here admit they have the requisite intent and purpose (to interpose a non-
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`attomey so they can create additional impeachment evidence), and therefore the “special
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`circumstances” rule applies. There are no “special circumstances”, so prudence warrants
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`exclusion of non-attomeys. It is sufficient that the plaintiffs’ attorney may attend to ensure their
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`rights are protected, and that plaintiffs themselves can testify as to what occurred in the exam,
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`just as was the case in Bermejo.
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`15.
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`Finally, the Court should reject plaintiffs’ position that this court has no authority to
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`exclude a non—attomey. This Court is vested with the power to exercise broad discretion in the
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`supervision of disclosure in this case, and that discretion is given great deference by the
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`Appellate Division. This court has the authority even to exclude an attorney, if it finds a
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`compelling showing. Of course that is not the case when addressing exclusion of a non-
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`attomey. It is only error where an “abuse of discretion” has occurred, and exclusion of a non-
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`attomey (who is not a legal guardian) has never been held to be an abuse of discretion, in any
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`Appellate Division. A number of lower courts have granted this form of limited order of
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`exclusion (See, Kattarz'a v. Rosado, Sup. Ct., Bronx County, Index No.: 302629/ 13; Vargas v.
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`Bargas, Sup. Ct., Bronx County, Index No.2 301641/ 14; Cabrera De Vicenty v. Marina, Sup.
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`Ct., Bronx County, Index No.: 302888/ 14; Henderson v. Ross, Sup. Ct., Kings County, Index
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`No.: 8618/14; Lee v. Metro Livery Leasing, Sup. Ct., Bronx County, Index No.: 21010/ 15E)
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`(annexed as Exhibit 1). Plaintiffs argument that this issue has been “decided” against the
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`defendants, citing to various lower court decisions, is a one-sided view. Each of these decisions
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`is specific to the respective Justices” evaluation of the facts, and the showing made in each case.
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`16.
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`For all the reasons discussed, defendants respectfully submit that this court has the
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`authority to issue, and should issue, the limited order of exclusion requested by defendants.
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`WHEREFORE, it is respectfully requested that the Court grant defendant’s motion in its entirety,
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`and or any other relief as may be deemed just and warranted.
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`Dated: March 29, 2016
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`Brooklyn, NY Colin F. Morrissey, Esq.
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`Baker, McEvoy, Morrissey & Moskovits, P.C.
`One Metrotech Center, 8th Flr.
`Brooklyn, NY 11201
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`Index N0.: 24060/2014E
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF BRONX
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`JOAN SMALLWOOD and JOVON SMALLWOOD,
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`-against-
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`Plaintiff,
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`FC EXECUTIVE INC., MOHAMED L. DIALLO,
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`And JULES E. LAKES,
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`Defendants.
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`REPLY AFFIRMATION
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`BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C.
`Attorneys for: Defendants
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`Oflz‘ce and Post Oflice Address, Telephone
`1 Metrotech Center, 8th Flr.
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`Brooklyn, NY, 11201
`(212)-85 7-8230
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`Signing requirement pursu
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`RCRR § 130-1.1-a:
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` Colin F. Morrissey, Esq.
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