At an IAS Part of the Supreme Court

of the County of Nassau, located

at100 Supreme Court Drive,
Mineola, New York, on the day
of February, 2011

P R E S E N T:

HON.

SUPREME COURT OF THE CITY OF NEW YORK

COUNTY OF NASSAU
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ILETAN ALEXANDRE, Index No.: 15250/07

Plaintiff(s), ORDER TO SHOW CAUSE

-against,

MISSAK EDZHURYAN,

Defendant(s),
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Upon reading and filing the annexed affirmation of MARYELLEN DAVID., ESQ., dated

the 14TH day of February, 2011, and the exhibits attached, and upon all the papers and

proceedings heretofore, had herein,

Let the plaintiffs, ILETAN ALEXANDRE, show cause before an IAS part of this Court,

located at, 100 Supreme Court Drive, Mineola, New York, on the ____ day of ___________,

2010, at 9:30 a.m. in the forenoon of that day, or as soon thereafter as counsel may be heard, why

an Order should not be granted and entered herein:

A. Pursuant to 22 NYCRR 202.21(c) relating to the filing of a statement of readiness,

vacating the Note of Issue and Statement of Readiness and striking the action from the trial

calendar on the grounds that these actions are not ready for trial; and/or in the alternative;
B. Compelling the plaintiff, to provide the defendant with authorizations pertaining to the

plaintiff’s prior injuries, as mandated by the Court in the September 29, 2010 so ordered

stipulation, and/or in the alternative;

C. Precluding the plaintiff from presenting any evidence or testimony regarding injuries or

damages at the trial of this matter; and

D. Such other and further relief as to this Court may deem just proper and equitable.

SUFFICIENT REASON APPEARING THEREFORE, let service of a Copy of this

Order to Show Cause, and the papers upon which it is based, upon the following Counsel:

Lazarowitz & Manganillo, LLP

Attorney for Plaintiff
2004 Ralph Avenue
Brooklyn, New York 11234
(718) 531-9700

on or before the , day of , 2011 by certified mail, return receipt requested, be

deemed good and sufficient service.

ORDERED that the trial of this matter scheduled for March 29, 2011 is hereby stayed

pending the hearing of this motion.

ENTER:

________________________

J.S.C.
SUPREME COURT OF THE CITY OF NEW YORK
COUNTY OF NASSAU
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ILETAN ALEXANDRE, Index No.: 15250/07

Plaintiff(s),
AFFIRMATION
-against,

MISSAK EDZHURYAN,

Defendant(s),
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MARYELLEN DAVID, an attorney duly admitted to practice law in the State of New

York hereby affirms the following to be true under penalties of perjury:

1. That I am associated with THE LAW OFFICE OF R. J. ADAMS, JR., ESQ.,

PLLC., the attorneys for the defendant, MISSAK EDZHURYAN, herein. I submit this

affirmation in support of the within Order to Show Cause seeking to vacate the plaintiff's Note of

Issue and to striking this matter from the trial calendar; an order either precluding the plaintiff at

the time of trial or compelling the plaintiff to provide the outstanding discovery.

2. This action was commenced by the service of a summons complaint. Issue was

joined by the service of an answer. A copy of the pleadings are attached hereto as Exhibit "A".

The complaint alleges a cause of action for personal injuries sustained as the result of an auto

accident.

3. Plaintiff was involved in three prior accidents: 2005; October 18, 2003 and June

17, 2003.

4. The plaintiff provided authorizations and records regarding the 2005 prior accident.

5. The plaintiff has failed to provide any authorizations pertaining to the October 18,

2003 accident or the June 17, 2003.

 6. There cannot be any claimed difficulty in providing authorizations for the prior motor

vehicle accident of Oct. 18, 2003, as plaintiff was represented by the same attorney as herein.

7. Moreover, defense counsel provided the information relating to the prior workers

compensation incident of June 17, 2003. He was represented by Gallo, Geffner & Fenster, P.C.

in Paramus, NJ.

8. Defendant was forced to make a prior motion compelling the disclosure of these

authorizations. The motion resulted in a so ordered stipulation dated September 29, 2011 which

stated:

Defendant’s motion to strike NOI is decided as follows:

Plaintiff to provide medical authorizations for prior accidents within 20 days from today,

including workers comp. authorization.

(See Exhibit “B.”)

To date, plaintiff has never responded in any fashion or provided any authorization

relating to either of the 2003 prior accidents.

A follow up request for these authorizations were sent on September 29, 2011 and Feb. 8,

2011. (See Exhibit “C,” and “D.”)

8. Defendant requires the following:

a) Relating to the Oct. 18, 2003 prior accident:

 A complete copy of the pleadings, bill of particulars, discovery responses,

medical records, EBT transcripts in the litigation commenced regarding
this accident.
 Authorization to obtain the following records:
-collateral source records
-Dr. Berenblit
- the non privileged portion of the legal file maintained by counsel
Lazarowitz & Manganillo, LLP
-Hospital records
-Diagnostic films & reports
 -All medical providers
-Employment records

b) Relating to the prior workers compensation incident of June 17, 2003, authorizations
to obtain the following:

 Workers compensation records

 Non privileged portion of file maintained by his counsel, GALLO,
GEFFNER & FENSTER
 Employment records
 Diagnostic films
 All medical providers
 Hospital records.

9. The plaintiff’s refusal to provide these authorizations is a deliberate tactic to

prejudice the defendant and avoid disclosing information relating to the plaintiffs’ prior injuries.

This is now the second time defendant has had to make an application to the court seeking the

same things.

10. At this point with the trial looming in the near future, it is simply not enough that

the plaintiff provide us with the authorizations at this point. The matter should be removed from

the trial calendar, and the Note of Issue should be vacated. Defendant is substantially prejudiced.

We have been unable to subpoena any of the prior medical records to review them.

There is no excuse for plaintiff’s failure to provide these authorizations, in light of the

fact that their office represented the plaintiff in the Oct. 18, 2003!

11. It is respectfully submitted that the defendant herein will be severely prejudiced

should the Note of Issue not be stricken as the outstanding discovery material is vital and

necessary to the defense of this matter.

12. This action is not ready for trial, as such the Note of Issue should be stricken.

Vargas v. Villa Josefa Realty Corp., 28 A.D.2d 389, 815 N.Y.S.2d 30 (1st Dept. 2006);

Drapaniotis v. 36-08 33rd Street Corp., 288 A.D.2d 254, 732 N.Y.S.2d 583 (2nd Dept. 2001). As
plaintiff incorrectly stated in the certificate of readiness that all discovery is complete, the Note

of Issue is a nullity and should be vacated. Gregory v. FCMC, 298 A.D.2d 496, 748 N.Y.S.2d

507 (2d Dept. 2002).

WHEREFORE, it is respectfully requested that the instant motion be granted in its

entirety, and for such other and further relief as the Court may deem just and proper.

Dated: Garden City, NY

Feb. 14, 2010
________________________
Maryellen David
SUPREME COURT OF THE CITY OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------X
ILETAN ALEXANDRE, Index No.: 15250/07

Plaintiff(s),
AFFIRMATION
-against,

MISSAK EDZHURYAN,

Defendant(s),
-----------------------------------------------------------------X
MARYELLEN DAVID., an attorney duly admitted to practice law before the courts of
the State of New York, hereby affirms the following to be true under the penalties of perjury:

1. I associated with The Law Firm of R. J. ADAMS, JR., PLLC., attorneys for the defendants,
herein, and I submit this Affirmation in accordance with UCR § 202.7.

2. Notice was provided to plaintiff counsel via facsimile on ___________that the defendants
would submit an order to show cause, and that it would be presented for signature on
____________ at 9:30 a.m. A copy of the Order to Show Cause and attorney affirmation was
provided to the plaintiff counsel with the Notice. (See attachment.)

3. Such notice to the plaintiff attorney satisfies the requirements of UCR § 202.7.

WHEREFORE, it is respectfully requested that the defendants’ Order to Show Cause be

signed as submitted to the Court.

Dated: February 14, 2011

Garden City, NY ______________________________
Maryellen David