Antipova v. CareMount Medical P.C. et al

Filing 105

MEMO ENDORSEMENT denying 104 Motion for Reconsideration re 104 MOTION for Reconsideration re; 103 Order. filed by Yelena Antipova, 100 Order on Motion for Extension of Time to Complete Discovery. ENDORSEMENT: Plaintiff's mo tion for reconsideration is denied. The Court will construe her motion as being brought under Rule 60(b). "[I]t is well established that a motion to reconsider should not be granted where the moving party seeks solely to relitigate an iss ue already decided." Niederland v. Chase, 425 F. App'x 10, 12 (2d Cir. 2011). Most of Plaintiff's objections amount to just that. She previously raised her non-dilatory behavior, the limited scope of her desired changes to the expert reports, and the lack of prejudice to Defendants. Compare Dkt. 101 at 4 (dilatory behavior); id. at 6 (limited scope); id at 6-7 (lack of prejudice) with Dkt. 104 at 3-4 (dilatory behavior); id. at 5-6 (limited scope); id. at 6-7 (lack of p rejudice). As for Plaintiff's further elaboration of her request to reopen discovery "for completeness," Dkt. 104 at 7, "[a] motion for reconsideration is not an opportunity for making new arguments that could have been previ ously advanced," Nicholas v. Bratton, No. 15 Civ. 9592 (JPO), 2019 WL 2223407, at *2 (S.D.N.Y. May 23, 2019). The Clerk of Court is respectfully directed to close Docket Number 104. (Signed by Judge John P. Cronan on 11/13/2023) (tro) Modified on 11/14/2023 (tro).

UNITED STATES DISTRICT COURT SOUTHERN Case Number.:
DISTRICT OF NEW YORK
1:21-cv-07453 (JPC) (BCM)
Yelena Antipova,
Motion for
Reconsideration
Plaintiff,
PRESENT:

-againstCareMount Medical P.C., et al.,
Defendants.

HON. JOHN P. CRONAN
United States District Judge
HON. BARBARA C. MOSES
United States Magistrate Judge

Plaintiff, Yelena Antipova, who is proceeding pro se, respectfully objects to Hon. John P.
Cronan’s recent order1 and requests Hon. John P. Cronan to reconsider under Fed. R. Civ. P. Sec.
46 and/or Local Rule 6.3 and to overrule Hon. Barbara C. Moses’ recent order.2
RELIEF REQUESTED, as discussed more fully in the annexed memorandum of law, the
Court should grant the Plaintiff’s request.
Respectfully submitted,
/s/ Yelena Antipova
____________________
Yelena Antipova,
pro se plaintiff.
174 Grand Street, Apt. 2A,
Jersey City, NJ 07302
[e-mail]
[phone]
Date: November 8, 2023

Plaintiff's motion for reconsideration is denied. The Court will construe her
motion as being brought under Rule 60(b). "[I]t is well established that a motion
to reconsider should not be granted where the moving party seeks solely to
relitigate an issue already decided." Niederland v. Chase, 425 F. App'x 10, 12 (2d
Cir. 2011). Most of Plaintiff's objections amount to just that. She previously
raised her non-dilatory behavior, the limited scope of her desired changes to the
expert reports, and the lack of prejudice to Defendants. Compare Dkt. 101 at 4
(dilatory behavior); id. at 6 (limited scope); id at 6-7 (lack of prejudice) with Dkt.
104 at 3-4 (dilatory behavior); id. at 5-6 (limited scope); id. at 6-7 (lack of
prejudice). As for Plaintiff's further elaboration of her request to reopen
discovery "for completeness," Dkt. 104 at 7, "[a] motion for reconsideration is not
an opportunity for making new arguments that could have been previously
advanced," Nicholas v. Bratton, No. 15 Civ. 9592 (JPO), 2019 WL 2223407, at *2
(S.D.N.Y. May 23, 2019). The Clerk of Court is respectfully directed to close
Docket Number 104.
SO ORDERED.
Date: November 13, 2023
New York, New York

1
2

ECF 103
ECF 100

__________________________
JOHN P. CRONAN
United States District Judge

MEMORANDUM OF LAW
1. Timing and Standard of Review
Pursuant to Rule 46 of Fed. R. Civ. P., when the ruling or order … is … made, a party need
only state the action that it wants the court to take or objects to, along with the grounds for the
request or objection. Further, pursuant to Local Rule 6.3, a notice of motion for reconsideration
… of a court order … shall be served within fourteen (14) days after the entry of the court’s
determination … . There shall be served with the notice of motion a memorandum setting forth
concisely the matters or controlling decision ... which counsel believes the Court has overlooked.
2. Extension of Time – objection one 3
Your Honor overruled the Plaintiff’s objection because: (1) Your Honor found that the
Plaintiff did not meet a “diligence” element of a “good cause” requirement within the meaning of
Fed. R. Civ. P. 16(b) by citing Gullo v. City of New York; (2) the Plaintiff allegedly stated a
concession that Judge Moses applied the appropriate legal standard; (3) Your Honor could not
follow the Plaintiff’s attempt to distinguish medical malpractice cases with a case that states that
“only an individual’s temperature can be the same 105F in NY and Mississippi;” (4) the Plaintiff
did not rebut Fed. R. Civ. P. 26(e) citing In re Bear Stearns Co; and (5) the Plaintiff, at other times
misconstrued, Judge Moses’ orders.4
i. Analysis of the Plaintiff’s diligence

3

The following analysis refers to most cases without additional citations because they have been fully cited either in the Court’s
prior orders (ECF 100 (Judge Moses’s orders); ECF 103 (Your Honor’s order), or the Plaintiff’s submissions (ECF 97 and 100
(the Plaintiff’s motion for an extension of time and objections under Rule 72).
4
The Plaintiff will not respond to a general statement of misconstruing Judge’s orders, but believes that she understands Judge
Moses correctly.

Under Fed. R. Civ. P. 16(b), a finding of “good cause” involves a consideration of a moving
party’s diligence.5 The courts that review “diligence” explain it through fact patterns that show a
“lack of diligence.” The Plaintiff calls the cases “a dilatory behavior” line of cases.6
Þ Responses to (1) – (2).
Your Honor cites Gullo which in turn cites Parker v Columbia Pictures.7 Both cases
present fact patterns for a lack of diligence and are similar to the cases cited by Judge Moses,8 and
the Plaintiff.9
For the Plaintiff’s alleged concession to be true, there must be evidence of the Plaintiff’s
dilatory behavior. Neither Your Honor nor Judge Moses point to how the Plaintiff’s conduct was
not diligent.10 Therefore, a legal standard for finding a lack of diligence and, therefore, no good
cause is not met. The following chart presents questions (with respect to a behavior where courts
find a lack of diligence) and answers (with respect to the Plaintiff’s behavior):
The following questions, if answered in an affirmative, would establish (under Plaintiff’s
the case law) a legal framework to support the Court’s assertion for no good behavior
cause based on a lack of diligence.
Was the Plaintiff on notice about an expert and provided no justification for not No11
acting sooner?

5

ECF 101, footnotes 18-22
ECF 97, page 5.
7
In Gullo, a plaintiff, while in possession of certain information, failed to act for three months without any justification. In
Parker v Columbia Pictures, a court stated that where a plaintiff missed a court’s established deadline, the plaintiff did not act
with diligence.
8
Okrayanets v. Metropolitan and Sandata Technologies, Inc. v. Infocrossing, Inc.
9
ECF 101, footnotes 18-22
10
On the contrary, the Plaintiff’s behavior evidences diligence (not a lack thereof), precision, compliance with court orders, swift
action, desire to move the case forward to a maximum extent possible and she is able to so, and consideration of the Court’s stand
on the issue of experts. The Plaintiff’s behavior should inspire trust and confidence that she will do her best to bring the case to a
close.
11
In the past, the Plaintiff cited authorities to negate a need for an expert:
i. Georgia Marsh, Appellant v. James Smyth, 785 N.Y.S.2d 440 (2014) (The case was tried under res ipsa loquitur, but
it was critical to the court that the articles mirrored Plaintiff’s situation). ECF 36, footnote 1. The articles that the
Plaintiff cites in her complaint mirror the Plaintiff situation; and
ii. Federal Rules of Evidence, Rule 803 - Exceptions to the Rule Against Hearsay: (8) Public Records; (17) Market
Reports and Similar Commercial Publications; and (18) Statements in Learned Treatises, Periodicals, or Pamphlets.
6

Was the Plaintiff late in submitting her expert reports?

No

Did the Plaintiff fail to act during the time permitted in Judge Moses’ orders?

No

Did the Plaintiff fail to secure an additional expert in 5 months?

No

Did the Plaintiff fail to secure preliminary reports in 5 months?

No

Are reports served on October 2 substantively different from reports served on No
February 10 to create a surprise for the Defendants?
Are reports submitted after a joint pre-trial order?

No

Are reports submitted during a trial?

No

Did the Plaintiff fail to communicate with the Defendants?

No

Is there evidence that the Plaintiff is not doing anything?

No

If Judge Moses asserts that if the Plaintiff was able to secure experts and tentative reports
in five (5) months, she should be able to revise them in sixty (60) days and her chemotherapy
schedule does not provide for a good cause, the Court needs to look no further than on the
Plaintiff’s Sanctionable Behavior Notice to the Defendant’s for a perspective.12 Most notably, the
Defendants, having lawyers and staff (13 of them), failed to create a single-page document (i.e.,
an employment authorization) for 10 months, until the Plaintiff (in order to advance her case)
provided assistance in locating a form. The behavior shows that the Defendants are not in a hurry.

Id. The articles that the Plaintiff cites in her complaint are acceptable evidence and they are also considered
authoritative by the Plaintiff’s experts; and
iii. NY Public Health Law Section 266. ECF 67 and ECF 90, page 28. When a statute establishes a course of conduct,
an expert report is not needed. The Plaintiff is working on additional patches to the statute and believes it will close
remaining loopholes. She will present it on summary judgment.
The Defendants and Judge Moses have been litigating the issue for 11 months (starting in March 2022 court conference
and continuing during January 2023 court conference).
12

ECF 97, page 61.

While the Plaintiff appreciates the Court’s sympathy, the Plaintiff is worried that the
amount of remaining time is insufficient for the Plaintiff to prepare her case. Her medical condition
and her physical mobility is changing for the worse,13 which makes it difficult to estimate the time.
Þ Response to (3).
Judge Moses cited Okraynets for a proposition that the Plaintiff is not entitled to delay
expert discovery in the hopes to have a more precise information about her survivability. In
Okraynets, a party was injured from a fall and wanted to amend an expert report during a trial; the
judge denied the request.
The case does not apply to the Plaintiff’s case because: (1) the Plaintiff’s case is not in trial;
a trial is a process with more people to manage; and (2) medical conditions are different (i.e., a
fall injury vs genetic susceptibility to cancer); hence, the Plaintiff cites a case that “only an
individual’s temperature can be the same 105F in NY and Mississippi.” Stated differently, only
comparable conditions should be treated the same by the Court – to compare apples to apples.
Þ Response to (4)
The Plaintiff did not rebut Fed. R. Civ. P. 26(e) because the rule does not apply to the
Plaintiff’s request. Also, the case of In re Bear Stearns Co. does not apply. Authorities apply after:
(1) a court’s established deadline under FRCP 16 has closed; and (2) a party (without seeking a
leave of court) submits an expert report that contains substantive changes or new evidence.14

13

The Plaintiff is being worn down by frequent office visits to receive chemotherapy medications which take an enormous
amount time and toll on her body; a total of 59 office visits since Judge Moses’ April order. One office visit starts at 8 am and
lasts to 5 pm. In addition, the Plaintiff receives two to three immunity boosters; one office visit per a booster which starts at 10
am to 4 pm. As the cancer showed complete resistance to chemotherapy, the Plaintiff is contemplating a surgery to remove it.
14
In re Bear Stearns Co. is a case similar to the case of Sandata Technologies, Inc. sited by Judge Moses where a party has
initially submitted a 95 pages-long expert report; then, without asking a leave of court, the party submitted another 25 substantive
pages. Both cases are dilatory behavior cases.

The Plaintiff’s current request is similar to her March 2023 request for the extension of
time.15 In March, the Plaintiff requested to revise the report for efficacy and propriety and to submit
a supplemental report. Since February 10, 2023, when the Plaintiff posted her initial standard of
care report, the report has not changed (substantively), there was no new evidence, and the number
of pages has not changed. The letter was 2 pages in February and it remained 2 pages in October.
Residual pages consist of procedural items, including an expert’s resume.
The Plaintiff contemplates wordsmithing to the standard of care report which will be
similar to: (1) Judge Moses’ drafting and redrafting of RFAs within the meaning of NY Public
Health Law Section 266; and (2) changes that appear in the October report as compared to the
February report.16
The same wordsmithing is needed for the survivability report. The only change that could
be substantive is the Plaintiff’s survivability number. As the case centers around the Plaintiff’s
genetic condition, a change is important. The report is 5 pages and it will not change. The above
authorities will not apply because the Plaintiff is seeking a leave of court to make the change.
ii. Analysis of the Defendant’s reasons for prejudice
Your Honor stated that the Plaintiff’s observation that the Defendants should have
presented medical records supports Judge Moses’ observation about a cloud.17
Numerous cases18 require the Defendants to state reasons for prejudice, not the Court to
make a statement on their behalf. A reason for prejudice would exist where “a party [will state

15

ECF 90, page 10.
If NYU Langone is added, wordsmithing will be need as well.
17
Judge Moses made an assumption about a cloud. Not everyone lives with a cloud. There may or may not be medical records.
The Defendants brought the lawsuit upon themselves. They put their heads in the sand.
18
ECF 101, page 3, footnote 11.
16

that it] has to spend time, energy, money and resources.”19 Neither set of Defendants articulated a
reason. Further, an emotional state of mind, like a “cloud,” is not within the definition of prejudice.
3. Addition of NYU Langone – objection two
Your Honor denied the Plaintiff’s request to reopen discovery with respect to NYU
Langone because: (1) the Plaintiff’s barebone analysis of some of the factors does not convince
the Court; and (2) the Plaintiff evinced no effort to engage with the concern that Judge Moses
raised – namely the fact that the Plaintiff did not object to the previous denial. Your Honor cites
United Stated v Prevezon Holdings, Ltd. for elements to re-open discovery. The Plaintiff states
them for completeness, below:
U.S. v Prevezon
Plaintiff’s response
The imminence of trial No trial date is set
Whether request is

No

opposed?
Whether the non-

The Defendants stated no reason for prejudice.

moving party would
be prejudiced?
Whether the moving

The elements of diligence (or a lack thereof) are stated above. The

party was diligent in

Plaintiff provides statements of facts from the record to address the

obtaining discovery

issue of not objecting to Judge Moses’ previous denial of her request

within the guideline

within 14 days.

established by the
court?

19

ECF 97, page 60, footnote 18.

In May of 2022, Judge Moses granted the Plaintiff’s motion to
add a corporate party. The circumstances surrounding the motion

allowed the Plaintiff to believe that Judge Moses understands how
corporate entities operate and how they structure transactions to
minimize a liability.

In May of 2023, Judge Moses denied the

Plaintiff’s request to add another corporate entity (i.e., NYU Langone.)
In light of the favorable ruling, the Plaintiff thought that Judge Moses
had legal basis for the denial. Upon further review, the Plaintiff
discovered that the issue is viable, and in order to make a strong
argument, not only a knowledge of: (1) the fact that Barnes provides
services at NYU Langone (albeit an important fact); (2) relevant rules;
and (3) how corporations minimize their liabilities are relevant, but
also a knowledge of how the industry operates is important; thus the
Plaintiff presented structures to compare corporate Defendants.20
Prior to her lawsuit, the Plaintiff had been involved in transactions
where a legal analysis can take up to a year. A limitation of 14 days
on objections is insufficient to outline a legal basis. The Plaintiff’s
approach is similar in her approach to outlining legal basis for NY
Public Health Law Sec. 266; the Plaintiff is being thorough. The
Plaintiff will not presume to fully explain the statute on a summary
judgment.
The foreseeability of

The discovery would lead to relevant evidence because it would show

the need for additional

the extent of the relationship between Barnes and NYU Langone,

discovery in light of

which would lead to adding NYU Langone as a defendant.

20

ECF 97, page 97.

the time allowed by
the court.
The likelihood that the
discovery will lead to
relevant evidence.

Same as above.