The opinion
KUTHERFORD & CHRISTIE up Having reviewed the letter of June 17 an
+ response of June an avin ear
New York ATLANTA nothing further, the Court concludes that
all fact discovery has been completed. T
Court will conduct a conference on
June 17,2022 October 25, 2022 at 10:30 a.m. in
Courtroon 11D. Letter motion DE 28 is
. terminated.
Vig:ECK SO ORDERED.
District Judge Hon. P. Kevin Castel Dated: 9/28/2022
United States District Court
Southern District of New York ZO ews
500 Pear! Street ZL
New York, NY 10007-1312 P. Kevin Castel
United States District Judge
Re: = Taniyha Brown v. Highway Transport Chemical, LLC, et al.
Case No.: 20-cv-8652 (PKC)
Dear Honorable Judge Castel:
My firm represents the defendants with regard to the referenced matter. The plaintiff is
represented by Karine Bogoraz, Esq. of the Bogoraz Law Group, P.C. who is copied on this letter.
By way of background, this matter involves a motor vehicle accident that occurred on July 24, 2019
(hereinafter “subject accident”), the facts of which are contested. The last Case Management
Conference was supposed to have taken place on June 17, 2022, however, the plaintiff's counsel
failed to appear for same. A further Case Management Conference has not been scheduled.
This letter shall serve as the defendants’ letter motion to dismiss, which is the defendants’
fourth letter motion to address the plaintiff's failures in complying with discovery and more
specifically with regard to your Honor’s Order of February 16, 2022 (Docket No. 23), Order of
March 11, 2022 (Docket No. 26) and the plaintiff's failure to appear at the Case Management
Conference on June 17, 2022.
By way of background, the parties appeared for a Rule 16 Conference on September 9, 2021
which resulted in a Civil Case Management Plan and Scheduling Order (Docket No. 14) wherein all
fact discovery was to be completed by January 7, 2022.
On October 26, 2021, I wrote to your Honor to address a discovery dispute that arose in this
case (Docket No. 15) in that the plaintiff had not complied with the September 9, 2021 Civil Case
Management Plan and Scheduling Order and did not provide my office with appropriate
authorizations to obtain the plaintiffs relevant medical records and did not respond to some of the
defendants’ other outstanding discovery demands.
On November 5, 2021, your Honor issued an Order (Docket No. 17) directing the plaintiff
to comply with outstanding discovery by November 22, 2021.
On November 18, 2021, the plaintiff seemingly complied with your Honor’s November 5,
2021 Order and served my office with outstanding discovery responses including, inter alia,
authorizations to obtain the plaintiff's records (Docket No. 18-19).
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After my office received some of the plaintiff's records pursuant to the authorizations we
received on November 29, 2021, it was evident that there were numerous additional medical
providers that the plaintiff treated with for the injuries she claims to have sustained in the subject
accident. However, the plaintiff never provided authorizations to my office to obtain her (the
plaintiff's) records from those providers and, as such, she had failed to comply with your Honor’s
November 5, 2021 Order (Docket No. 17). According to the plaintiffs’ records that we were finally
able to obtain and review (as a result of the November 29, 2021 disclosure of authorizations), we
learned that the plaintiff had been in a subsequent motor vehicle accident on June 30, 2021
(hereinafter “subsequent accident”) wherein she claimed to have sustained the same or similar
injuries to those that she alleges to have sustained in the subject accident, which forms the basis of
this case.
Prior to my office learning of the plaintiffs subsequent accident, the plaintiff had never
disclosed the subsequent accident and never provided my office with any authorizations to obtain
her records related to the treatment she received for the same or similar injuries that she purportedly
sustained the subsequent accident. This is particularly troubling because, as indicated above, the
parties appeared for a Rule 16 Conference on September 9, 2021 which was just a little more than
two months after the plaintiff's subsequent accident and the plaintiff's counsel never mentioned a
word of this to the Court or to opposing counsel.
In any event, upon figuring out that there were additional outstanding authorizations that the
plaintiff should have disclosed and the fact that the plaintiff was in a subsequent motor vehicle
accident, wherein she claimed to have sustained the same or similar injuries to those that she alleges
to have sustained in the subject accident, I contacted the plaintiff's counsel. We met and conferred
about the foregoing and the plaintiffs counsel agreed she would provide my office with the requisite
additional outstanding authorizations to obtain: (1) all of the plaintiffs treatment records for the
injuries she alleged; and (2) authorizations for her subsequent accident of June 30, 2021. The
plaintiffs counsel also advised that she had no objection and consented to a further extension of the
discovery schedule in order for the defendants to obtain all of the plaintiff's relevant records before
proceeding with her deposition and expert discovery.
On February 11, 2022, my office made a second letter motion to your Honor (Docket No. 22)
to address the plaintiff's failures in providing the defendants with all of the appropriate
authorizations to obtain her records regarding: (1) her alleged injuries she claims to have resulted
from the subject accident; (2) treatment prior to and following the subject accident that have any
bearing on her claims in this lawsuit; (3) her subsequent motor vehicle accident on June 30, 2021;
and (4) to set a revised discovery schedule so that the defendants would not be prejudiced by the
plaintiff's willful and intentional efforts to avoid disclosure. That same day, I also wrote to the
plaintiff's counsel providing a detailed list of medical providers that treated the plaintiff for her
alleged injuries from the subject accident (July 24, 2019 accident) as provided for in her no-fault
payment summary regarding for which authorizations were never provided. I also demanded that
my office be provided with authorizations to obtain the plaintiff's no-fault file, treatment records,
collateral source records, etc. with regard to the subsequent accident. Included with my
correspondence of February 11, 2022 to the plaintiff's counsel, were copies of the plaintiff s no-fault
payment summary and medical records from Dr. Leonid Reyfman of LR Medical, which establishes
that: (1) the plaintiff treated with ten medical providers which my office had not been provided
authorizations for; and (2) that the plaintiff, was, in fact, in the subsequent accident and is claiming
to have injured her left shoulder, neck and lower back, which she claims to have injured in the
subject accident. A copy of my correspondence to the plaintiff's counsel with the attachments is
annexed hereto as Exhibit “A.”
On February 16, 2022, your Honor issued another Order providing, inter alia, under pain of
Rule 37(b) sanctions, that within 14 days, the plaintiff is to provide my office with authorizations
for all records relating to (1) the alleged injuries the plaintiff claims to have resulted from the subject
accident; (2) treatment prior to and following the subject accident that have any bearing on her
claims in this case; and (3) the plaintiff's subsequent accident (Docket No. 23).
Despite your Honor having issued two prior conditional Orders (Docket No. 17 and Docket
No. 23), specifically warning the plaintiff that her non-compliance would result in sanctions, and
having extended the discovery deadlines several times, your Honor issued another Order on March
11, 2022 providing the plaintiff with a final opportunity to produce authorizations for all records
relating to the matters indicated in items (1), (2), and (3) above within 14 days (March 25, 2022) or
the case would be dismissed with prejudice (Docket No. 26).
On March 15, 2022, the plaintiffs counsel wrote to your Honor and advised that the plaintiff
was in full compliance with all of your Honor’s Orders and directives and that all authorizations
responsive to items (1), (2), and (3) had been provided to defense counsel (Docket No. 27). Once
again, the plaintiff seemingly complied with your Honor’s Order (Docket No. 26).
Upon receipt of the additional authorizations as outlined in the plaintiffs counsel’s
correspondence of March 15, 2022 (Docket No. 27), my office processed the same. Once again, only
after receiving the plaintiffs no-fault payment summary in late May 2022 regarding her subsequent
accident, did my office learn of additional medical providers that the plaintiff failed to disclose.
Based upon the plaintiffs no-fault payment summary for her subsequent accident, it is evident that
the plaintiff failed to comply with your Honor’s March 11, 2022 Order (Docket No. 26). Since the
plaintiff failed to fully comply and provide defense counsel with all of the requisite authorizations
as required pursuant to your Honor’s March 11, 2022 Order (Docket No. 26), this case ought to be
dismissed with prejudice.
There can be no question that the plaintiff failed to provide defense counsel with all of the
requisite authorizations as directed and outlined in your Honor’s March 11, 2022 Order (Docket No.
26). On May 23, 2022, I contacted the plaintiff’ s counsel’s office and advised that the plaintiff failed
to disclose additional authorizations regarding the plaintiff's subsequent accident. In determining
this, I compared the list of authorizations that had been provided by the plaintiff's counsel with the
plaintiff's treatment providers for her subsequent accident as provided for in her no fault payment
summary. There were four additional medical providers which the plaintiff failed to provide
authorizations for. I e-mailed the plaintiff's counsel’s paralegal, Atiqa Rehman, and provided her
with a list of the missing authorizations as well as a copy of the no fault payment summary for the
plaintiff's subsequent accident. A copy of my May 23, 2022 e-mail including the no fault payment
summary for the plaintiff's June 30, 2021 accident is annexed hereto as Exhibit “B.” On June 6,
2022 the plaintiff sent a letter (as indicated on the envelope), dated May 31, 2022, to my office
(which we did receive until June 13, 2022) providing additional outstanding authorizations that
should have been provided no later than March 25, 2022. A copy of the plaintiff's May 31, 2022
letter is annexed hereto as Exhibit “C.” The plaintiff never objected to providing these additional
authorizations or contested the fact that she treated with these providers with regard to her
subsequent accident.
As your Honor has made clear, Rule 37(b)(2)(A), Fed. R. Civ. P., provides that "[i]f a party
... fails to obey an order to provide or permit discovery . . . the Court where the action is pending may
issue further just orders." The rule recites a range of sanctions, including deeming a disputed fact to
be established, precluding evidence on a subject, or striking a pleading and entering a default. See
Rule 37(b)(2)(A)(i-vii). The Second Circuit has set forth several factors to be considered in
determining the issue of sanctions under Rule 37, including "(1) the willfulness of the non-compliant
party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the
period of noncompliance, and (4) whether the non-compliant party had been warned of the
consequences of... noncompliance." citing, Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302
(2d Cir. 2009) (per curiam) (internal quotation marks omitted). See, Harris v. Fairweather, 2012
U.S. Dist. LEXIS 61641; 2012 WL 1551719 (S.D.N.Y. May 2, 2012).
As demonstrated above, despite the extensive warnings your Honor made to the plaintiff
throughout this case and even after your Honor specifically stated that non-compliance with your
Honor’s March 11, 2022 Order (Docket No. 26) would result in the plaintiffs case being dismissed
with prejudice, the plaintiff still failed to comply with your Honor’s Order’s Orders. In addition, the
plaintiff's counsel failed to appear for the Case Management Conference which was supposed to
have taken place on June 17, 2022.
Under the circumstances presented, the plaintiff failures to provide appropriate disclosure
regarding her alleged injuries throughout this case, can only be said to have been willful and
contumacious. It is respectfully submitted that your Honor’s March 11, 2022 Order (Docket No. 26)
should be affirmed and this case should be dismissed with prejudice.
To date, no depositions have been conducted in this case and both fact and expert discovery
remains outstanding. The delays in this case rest solely with the plaintiff and her counsel and cannot
be attributed whatsoever to the defendants. It would simply be unjust if the defendants were to be
unable to proceed with discovery in this case. If your Honor does not dismiss this case, it
respectfully requested that the discovery deadlines be extended once again.
Respectfully submitted,
RUTHERFORD & CHRISTIE, LLP
/
Midd
Michael C. Becker (MCB 1536)
ce: Via ECF
BOGORAZ LAW GROUP, P.C.
Attention: Karine Bogoraz, Esq.
3820 Nostrand Avenue, Suite 106
Brooklyn, NY 11235
(646) 809-1616