Gidora v. Stryker Corp. et al

Filing 66

OPINION AND ORDER: For the foregoing reasons, Defendant's Motion To Preclude Experts and for Summary Judgment is denied. The Clerk of the Court is respectfully requested to terminate the pending motion. (Dkt. No. 52.) HOC should submit a calculation of attorneys' fees and costs within 14 days of this Order. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/12/2019) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ANNAH MARIE GIDORA,
Plaintiff,
v.
No. 16-CV-5774 (KMK)
HOWMEDICA OSTEONICS
CORPORATION, d/b/a STRYKER
ORTHOPAEDICS; STRYKER
CORPORATION; and STRYKER SALE
CORPORATION,
Defendants.

Appearances:
Ashley Andrews-Santillo, Esq.
Adnan Munawar, Esq.
Munawar & Andrews-Santillo LLP
420 Lexington Avenue
New York, NY
Counsel for Plaintiff
Gene M. Williams, Esq.
Nicholas Neil Deutsch, Esq.
Shook, Hardy & Bacon, LLP
600 Travis, Suite 3400
Houston, TX
Counsel for Defendant
Paul Edward Asfendis, Esq.
Kim M. Catullo, Esq.
Gibbons P.C.
One Pennsylvania Plaza, 37th Floor
New York, NY
Counsel for Defendant

OPINION AND ORDER

KENNETH M. KARAS, District Judge:
Plaintiff Annah Marie Gidora (“Plaintiff”) initiated this Action on July 20, 2016, against
Howmedica Osteonics Corporation, d/b/a Stryker Orthopaedics (“HOC” or “Defendant”),
Stryker Corporation, and Stryker Sale Corporation (collectively, “Defendants”). (See Compl.
(Dkt. No. 1).) Plaintiff brings product liability, failure to warn, breach of warranty, and
negligence claims, as well as a claim for violation of the New York Deceptive Trade Practices
Act, N.Y. Gen. Bus. Law §§ 349 et seq., based on the alleged failure of Plaintiff’s hip
replacement device that was designed and manufactured by Defendants. (See generally Am.
Compl. (Dkt. No. 9).)
Before the Court is Defendant HOC’s Motion To Preclude Experts and for Summary
Judgment (the “Motion”). 1 (See Def.’s Not. of Mot. To Preclude Experts and for Summ. J.
(“Def.’s Mot.”) (Dkt. No. 52); Def.’s Mem. of Law in Supp. of Mot. To Preclude Experts and for
Summ. J. (“Def.’s Mem.”) (Dkt. No. 54).) HOC argues that because Plaintiff has failed to timely
disclose expert witnesses and failed to meet several other discovery deadlines, Plaintiff should be
precluded from introducing expert testimony. (See Def.’s Mem. 1, 6–9.) Further, because
Plaintiff’s claims require demonstrating a defect in a complex medical device, which requires the
testimony of an expert witness, HOC argues it is entitled to summary judgment on all Plaintiff’s
claims. (See Def.’s Mem. 10–12.) For the following reasons, HOC’s Motion is denied.

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To date, HOC is the only Defendant that has been served in this Action. (See Def.’s
Mem. 1 n.1.)
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I. Background
A. Factual Background
The following facts are drawn from the Amended Complaint, and from HOC’s Motion
and supporting papers. (See Am. Compl.; Def.’s Mem.; Def.’s Local Rule 56.1 Statement of
Undisputed Facts (“Def.’s 56.1”) (Dkt. No. 53); Def.’s Decl. in Supp. of Mot. To Preclude
Experts and for Summ. J. (“Def.’s Decl.”) (Dkt. No. 55).) 2
1. Plaintiff’s Claims
Plaintiff underwent a total hip replacement surgery on January 30, 2014. (Def.’s 56.1
¶ 2.) As part of her surgery, Plaintiff was implanted with the “MDM X3 Modular Dual Mobility
Mobile Bearing Hip System” (the “Device”), which is allegedly designed, manufactured,
marketed, promoted, and sold by Defendants. (Id. ¶ 2; Am. Compl. ¶¶ 1, 19.) Plaintiff alleges
that an unspecified component of her prosthetic hip system loosened and that she had to undergo
revision surgery to correct the issue on October 26, 2015. (Def.s 56.1 ¶ 3; Am. Compl. ¶¶ 25,
26.) Plaintiff asserts several causes of action against Defendants, alleging defects in the design,
manufacture, and warnings of the Device, as well as breaches of implied and express warranties
and deceptive trade practices, and seeks to recover under negligence and strict liability theories.
(Def.’s 56.1 ¶¶ 4–5.) All Plaintiff’s claims are based on the premise that the Device was
defective and thus not safe and effective for its intended use. (Id.)

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Because Plaintiff failed to submit a response to Defendant’s Rule 56.1 Statement of
Undisputed Facts, all facts asserted therein are deemed admitted. See Baity v. Kralik, 51 F.
Supp. 3d 414, 418 (S.D.N.Y. 2014) (“If the opposing party . . . fails to controvert a fact set forth
in the movant’s Rule 56.1 statement, that fact will be deemed admitted pursuant to the local
rule.” (quotation marks omitted)); see also T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d
Cir. 2009) (same). Plaintiff also did not include a statement of facts in her Opposition, and made
no argument with respect to HOC’s characterization of the facts leading up to this Motion.
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2. Discovery Failures
The Court initially set a fact discovery deadline of February 28, 2018, and a deadline of
March 31, 2018 to serve expert disclosures. (Def.’s Mem. 3.) By October 5, 2017, HOC had
served Plaintiff with its Initial Disclosures, as well as interrogatories and document requests.
(Id.; Def.’s Decl. Ex. B (“Def.’s Initial Disclosures”).) On November 21, 2017, after Plaintiff
failed to timely provide discovery responses or move for a deadline extension, HOC requested a
pre-motion conference in anticipation of filing a motion to dismiss based on Plaintiff’s failure to
meet discovery deadlines. (Def.’s Mem. 3–4.) At the pre-motion conference on January 16,
2018, the Court ordered Plaintiff to serve complete responses to discovery and extended
Plaintiff’s deadlines for expert disclosure until April 30, 2018, and for fact discovery until May
31, 2018. (Def.’s Mem. 4.) The Court stated that no further extensions would be permitted.
(Id.; Dkt. (minute entry for Jan. 16, 2018).)
Plaintiff failed to serve expert disclosures by the April 30, 2018 deadline. (Def.’s 56.1
¶ 7.) During a May 1, 2018 conference before Magistrate Judge Paul Davison (“Judge
Davison”), Plaintiff’s counsel affirmed that his office had not yet retained an expert, and “agreed
with [Judge] Davison that experts are required to support Plaintiff’s claims in this type of case.”
(Def.’s Mem. 4.) Later that day, HOC requested a pre-motion conference in anticipation of
filing a motion for summary judgment based on Plaintiff’s failure to disclose any expert or
expert reports. (Id.) Plaintiff did not respond to HOC’s pre-motion letter, but instead, on May
11, 2018, served a purported expert disclosure on HOC. (Id.; Def.’s 56.1 ¶ 8; Def.’s Decl. Ex. C
(“Expert Disclosure”).) The disclosure was drafted by Plaintiff’s counsel, rather than by
Plaintiff’s expert, and attached the expert’s resume and qualifications. (Def.’s Mem. 4; Def.’s
56.1 ¶ 8; see also Expert Disclosure.) The disclosure was not signed by the expert and did not

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comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) for expert witness
disclosures, which requires a written report prepared and signed by the expert witness. (Def.’s
Mem. 4–5; Def.’s 56.1 ¶ 8.) See Fed. R. Civ. P. 26(a)(2)(B).
On May 14, 2018, HOC requested a pre-motion conference to address the deficient
expert disclosure. (Dkt. No. 47.) On May 17, 2018, an attorney for Plaintiff filed a response
asserting that Plaintiff’s expert had been unable to prepare a report because he “was not in
possession of documents and information pertaining to the product at issue,” because HOC had
failed to file initial disclosures, and requesting sanctions against HOC for this alleged failure.
(Def.’s Mem. 5; Dkt. No. 48.) HOC filed a letter the next day explaining that initial disclosures
were served on Plaintiff on October 2, 2017, and that HOC had also mailed a courtesy copy of
the disclosures on December 13, 2017 at the request of Plaintiff’s counsel. (Dkt. No. 49.)
To date, Plaintiff has not requested any of the documents HOC identified in its
disclosures, and has served no discovery requests on HOC. (Def.’s Mem. 5.)
B. Procedural Background
Plaintiff filed the original Complaint on July 20, 2016, (see Compl.), and filed an
Amended Complaint on October 12, 2016 before any Defendant had answered, (see Am.
Compl.). Defendant HOC filed an Answer on November 11, 2016. (See Dkt. No. 11.) 3 At a
conference on June 27, 2018, after Plaintiff’s repeated failures to meet discovery deadlines, the
Court set a briefing schedule for Defendant’s Motion for Summary Judgment. (See Dkt. No. 51.)
Defendant filed its Motion on July 27, 2018. (See Def.’s Mot.; Def.’s Mem.; Def.’s 56.1; Def.’s
Decl.) Plaintiff requested an extension to file her Opposition, (see Dkt. No. 56), which the Court

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HOC contends that it is the only Defendant that has been served in this Action, and no
affidavits of service appear on the docket. (See Def.’s Mem. 1 n.1.)
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granted, giving Plaintiff until September 27, 2018, (see Dkt. No. 58). Plaintiff failed to file an
Opposition by this date, and after repeated phone calls to Plaintiff from the Court over a number
of weeks went unreturned, the Court issued an Order deeming the Motion fully submitted on
November 8, 2018. (See Dkt. No. 59.) The next day, Plaintiff’s counsel filed a belated
Opposition, along with a letter claiming that the Opposition was timely filed but did not appear
on ECF due to an e-filing error. (See Pl.’s Opp’n to Def.’s Mot. To Preclude Experts and for
Summ. J. (“Pl.’s Mem.”) (Dkt. No. 60); Pl.’s Mem. Ex. 1 (Letter from Marisa L. Axelrad, Esq.,
to Court (Nov. 8, 2018) (“Nov. 8 Axelrad Letter”)).) On November 12, 2018, HOC filed a letter
asking the Court to reject Plaintiff’s belated filing. (See Dkt. No. 61.) The Court memo
endorsed the letter saying that Plaintiff’s Opposition would be considered, and directing
Defendants to file a Reply by November 28, 2018. (See Dkt. No. 62.) The Court also memo
endorsed Plaintiff’s Opposition directing Plaintiff’s counsel to file a Notice of Appearance in
order to have its submission considered, (see Dkt. No. 63), which was filed on November 14,
2018, (see Dkt. No. 64). HOC filed a Reply on November 28, 2018. (Def.’s Reply in Further
Supp. of Mot. To Preclude Experts and for Summ. J. (“Def.’s Reply”) (Dkt. No. 65).)
II. Discussion
A. Standard of Review
Federal Rule of Civil Procedure 37 provides that “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “The district court
has wide discretion in punishing failure to conform to the rules of discovery.” Outley v. City of
New York, 837 F.2d 587, 590 (2d Cir. 1988) (citation omitted). “Although preclusion of

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evidence is among the sanctions which may be imposed for violation of a party’s discovery
obligations, it is not mandated in every case.” Fuller v. Summit Treestands, LLC, No. 07-CV330, 2009 WL 483188, at *3 (W.D.N.Y. Feb. 25, 2009). “Before the extreme sanction of
preclusion may be used by the district court, a judge should inquire more fully into the actual
difficulties which the violation causes, and must consider less drastic responses.” Outley, 837
F.2d at 591. In Outley, the Second Circuit identified four factors courts must consider in
determining whether preclusion of evidence or a witness is appropriate where a party has failed
to meet discovery deadlines: “(1) the party’s explanation for the failure to comply with the
discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice
suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4)
the possibility of a continuance.” Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc., 118 F.3d
955, 961 (2d Cir. 1997) (citing Outley, 837 F.2d at 590–91). “[A]lthough preclusion of evidence
and dismissal of the action are harsh remedies and should be imposed only in rare situations,
they are necessary to achieve the purpose of Rule 37 as a credible deterrent rather than a paper
tiger.” Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (citations and
quotation marks omitted).
Where a claim raises complex issues requiring expert testimony to establish a
fundamental element of the claim, summary judgment is appropriate if a plaintiff fails to produce
a qualified expert or the plaintiff has been precluded from calling his or her proffered expert. See
Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006) (“[B]ecause there was no competent
evidence excluding [the defendant’s] proffered causes” of the plaintiffs’ injury after their expert
was excluded, “there were no genuine issues of material fact for a jury on this claim.”), aff’d,
552 U.S. 312 (2008); see also Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 271 (2d

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Cir. 2002) (“In the absence of any expert evidence as to general causation and a gap in [the]
plaintiffs’ case with respect to [the plaintiff’s only non-excluded expert’s testimony], defendant
was entitled to summary judgment because of plaintiffs’ failure to present any admissible
evidence in support of their theory of causation.”); Brooks v. Outboard Marine Corp., 234 F.3d
89, 92 (2d Cir. 2000) (finding “summary judgment was properly granted” where the plaintiff’s
expert was excluded and the plaintiff therefore “has no evidence in the record to support his
[design defect] theory”); Walters v. Howmedica Osteonics Corp., 676 F. Supp. 2d 44, 53 (D.
Conn. 2009) (granting summary judgment in favor of the defendants where the plaintiff was
precluded from calling any experts due to noncompliance with discovery rules, because the
plaintiff cannot “set forth specific facts showing there is a genuine issue for trial” (quotation
marks omitted)).
B. Analysis
1. Preclusion of Expert Witness
In her Opposition, Plaintiff makes no attempt to justify her repeated failures to comply
with discovery deadlines. Instead, Plaintiff argues only that she will be “substantially
prejudice[d]” by preclusion of expert testimony, and “implore[s] the Court” not to grant
summary judgment on procedural grounds, rather than consider the merits of Plaintiff’s claim.
(Pl.’s Mem. 3.) 4 Throughout this case, Plaintiff’s counsel has repeatedly missed deadlines and
conferences. Although the case was initiated two and a half years ago, Plaintiff’s counsel has not
yet served discovery requests on HOC. (Def.’s Mem. 5.) Furthermore, to date Plaintiff’s
counsel has made no attempt to belatedly introduce an expert witness or sought leave to file

4

Because Plaintiff’s counsel neglected to include page numbers in Plaintiff’s Opposition,
the Court cites to the ECF-generated page numbers at the upper right corner of each page.
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expert disclosures that conform with Rule 26. Therefore, the first Outley factor, “the party’s
explanation for the failure to comply with the discovery order,” Softel, 118 F.3d at 961, clearly
cuts in favor of preclusion.
However, despite Plaintiff’s unjustified and repeated non-compliance with the Court’s
deadlines and orders, the second Outley factor, “the importance of the testimony of the precluded
witness,” id., weighs in favor of denying HOC’s Motion. HOC concedes that “there is no
question that expert testimony is critical to a medical device product liability action,” and moves
for summary judgment, should Plaintiff’s expert witness be precluded, on that very basis.
(Def.’s Mem. 7.) As discussed below, the Court agrees that an expert witness is required for
Plaintiff to prove at least some elements of her claims, and preclusion would therefore be a
particularly “drastic remedy.” Outley, 837 F.2d at 590.
The third Outley factor, “the prejudice suffered by the opposing party,” Softel, 118 F.3d
at 961, does not weigh very heavily in either direction. HOC will suffer no prejudice beyond
mere delay if its Motion is denied, because it has not yet responded to or relied on any expert
disclosures by Plaintiff.
Finally, the fourth Outley factor requires the Court to consider the appropriateness of
granting a continuance, rather than defaulting to the harsh remedy of dismissal. See Outley, 837
F.2d at 591 (“Before the extreme sanction of preclusion may be used by the district court, a
judge should inquire more fully into the actual difficulties which the violation causes, and must
consider less drastic responses.”); see also Cine Forty-Second St. Theatre Corp. v. Allied Artists
Pictures Corp., 602 F.2d 1062, 1068 (2d Cir. 1979) (“Considerations of fair play may dictate that
courts eschew the harshest sanctions provided by Rule 37 where failure to comply is due to a
mere oversight of counsel amounting to no more than simple negligence.” (citation omitted)).

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Although Plaintiff’s counsel’s failures to comply with Court deadlines are unjustified, the
Court finds that a continuance to conduct expert discovery, rather than preclusion of Plaintiff’s
ability to call an expert, is the appropriate remedy at this stage, with the understanding that any
further failure to comply with the Court’s orders will result in dismissal of this Action with
prejudice. Given the critical importance of expert testimony to Plaintiff’s claims, the limited
prejudice to HOC by allowing Plaintiff additional time to retain an expert weighs in favor of a
continuance, rather than preclusion. See Raymond v. Mid-Bronx Haulage Corp., No. 15-CV5803, 2017 WL 1251137, at *10 (S.D.N.Y. Mar. 31, 2017) (finding preclusion of evidence
“unwarranted” given “the availability of a brief and limited continuance” and the fact that the
evidence at issue was “critically important” (citing Bastys v. Rothschild, 154 F. App’x. 260, 263
(2d Cir. 2005)); Engler v. MTD Prods., Inc., 304 F.R.D. 349, 358 (N.D.N.Y. 2015) (granting
continuance to allow limited additional expert discovery rather than excluding expert witness
where the plaintiffs did “not explain their failure to provide in a timely manner [their expert’s]
opinion,” but “that expert opinion . . . would be significant to [the] plaintiffs’ case, as it would go
to the heart of their manufacturing defect claim” (alterations, citation, and quotation marks
omitted)). Defendant’s Motion to preclude Plaintiff from calling experts is therefore denied
without prejudice.
2. Summary Judgment
Because Defendant’s Motion to preclude Plaintiff’s expert is denied, Defendant’s Motion
for Summary Judgment for failure to provide an expert witness is necessarily denied. However,
the Court notes that it is clear Plaintiff will need an expert witness to prove at least some
elements of her claims. See Morritt v. Stryker Corp., No. 07-CV-2319, 2011 WL 3876960, at *7
(E.D.N.Y. Sept. 1, 2011) (“The requirement under New York law that an expert provide

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evidence of a feasible, alternative design is well-settled.” (citation omitted)); Maxwell v.
Howmedica Osteonics Corp., 713 F. Supp. 2d 84, 91 (N.D.N.Y. 2010) (“Generally, under New
York law, a plaintiff seeking to establish a design defect is required to provide expert testimony
as to the feasibility and efficacy of alternative designs . . . unless a reasonable alternative design
is both obvious to and understandable by a layperson . . . .” (citation omitted)); Fernandez v.
Cent. Mine Equip. Co., 670 F. Supp. 2d 178, 188 (E.D.N.Y. 2009) (granting summary judgment
on the plaintiff’s strict liability and negligence products liability claims where the plaintiff’s
expert was precluded from testifying and the plaintiff therefore could not “demonstrate evidence
of a defect in the design of the product at issue”); Guarascio v. Drake Assocs. Inc., 582 F. Supp.
2d 459, 463 (S.D.N.Y. 2008) (“New York courts uniformly rule that competent, non-conclusory
expert testimony is needed in cases involving more complex design issues.”); Tuosto v. Philip
Morris USA Inc., No. 05-CV-9384, 2007 WL 2398507, at *12 (S.D.N.Y. Aug. 21, 2007) (“In
order to advance the existence of a feasible alternative in an improper design case, an expert is
required to ascertain feasibility, to test alternative designs, and to address the engineering factors
and tradeoffs that go into the design of a product for distribution in the marketplace.” (citation
and quotation marks omitted)).
Plaintiff argues that an expert is not necessary to prove any of her claims because both
defect and causation can be established through circumstantial evidence. (Pl.’s Mem. 1–2.)
However, the caselaw on which Plaintiff relies does not support this conclusion. Plaintiff cites
State Farm Fire & Casualty Company v. Nutone, Inc., No. 05-CV-4817, 2010 WL 3154853, at
*7 (E.D.N.Y. Aug. 9, 2010), aff’d, 426 F. App’x 8 (2d Cir. 2011), and Jarvis v. Ford Motor
Company, 283 F.3d 33, 44 (2d Cir. 2002), in support of her argument that she need not call an
expert witness to prove a defect because a defect can be inferred from circumstantial evidence.

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(Pl.’s Mem. 2.) However, in State Farm Fire, which involved a defective bathroom ceiling fan
that caught fire, the plaintiff in fact provided testimony from, among others, “a fire marshal . . .
and private consultant regarding origin and cause investigations of fires,” a “certified fire
investigator and private consultant,” “an electrical engineer and consultant” who testified
regarding the absence of other possible causes of the fire and alternative feasible fan designs that
would have prevented the fire, and “a metallurgist” who testified about the mechanical “series of
events [that] led to the fire.” 2010 WL 3154853, at *3–5. Far from proving its case without any
expert witnesses, the plaintiff in State Farm Fire relied on several. In Jarvis, the court explained
that the plaintiffs need not identify and prove a particular defect, noting that “it is sufficient if the
cumulation of circumstances and inferences supports the conclusion that there was a defect.”
283 F.3d at 45 (citation and quotation marks omitted). However, the court did not hold that the
plaintiffs need not provide expert testimony to establish that “cumulation of circumstances and
inferences,” merely that the defect could be proven circumstantially. Indeed, the plaintiffs in
Jarvis “presented an expert who offered a theory to explain” the cause of the car malfunction at
issue in the case, “and who proposed an inexpensive remedy for this problem.” Id. at 43.
The cases Plaintiff relies on for her argument that she does not need an expert to prove
causation are similarly inapposite. (See Pl.’s Mem. 3.) In both Ruggiero v. Warner-Lambert
Company, 424 F.3d 249 (2d Cir. 2005) and Amorgianos, 303 F.3d 256, the Second Circuit
affirmed dismissal of products liability actions based on preclusion of the plaintiffs’ expert
witnesses on general causation. See Ruggiero, 424 F.3d at 251–52; see also Amorgianos, 303
F.3d at 268 (“[T]o establish their case under New York law, [the] plaintiffs . . . must offer
admissible expert testimony regarding both general causation . . . and specific causation.”

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(citations omitted)). Plaintiff thus points to no case that holds an expert witness is not necessary
in a products liability case involving a complex medical device.
III. Conclusion
For the foregoing reasons, Defendant’s Motion To Preclude Experts and for Summary
Judgment is denied. However, if Plaintiff does not provide expert disclosures that conform with
Rule 26(a)(2) within 30 days of this Order, HOC may renew its Motion, and Plaintiff’s claims
will be dismissed with prejudice. Absolutely no extensions will be granted. Additionally,
although the Court finds that “[Plaintiff’s] discovery failures do not warrant an order of
preclusion” at this time, “they do justify the imposition of fee shifting” with respect to the fees
and costs incurred in filing this Motion. Lee Valley Tools, Ltd. v. Indus. Blade Co., 288 F.R.D.
254, 262 (W.D.N.Y. 2013); see also Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v.
Coventry First LLC, 280 F.R.D. 147, 157 (S.D.N.Y. 2012) (“Even where preclusion is not
ordered under Rule 37, it is generally appropriate, at a minimum, to require a party that has not
complied with its discovery obligations to pay the reasonable fees and costs incurred by the
moving party in seeking disclosure and/or in seeking discovery sanctions.” (citation omitted));
Izzo v. ING Life Ins. & Annuity Co., 235 F.R.D. 177, 188 (E.D.N.Y. 2005) (“Under Rule
37(b)(2), the imposition of reasonable expenses is mandatory, unless the record establishes either
that the failure to obey the Court order was substantially justified or that other circumstances
make an award of expenses unjust.” (citation and quotation marks omitted)). Plaintiff’s counsel
is therefore ordered to pay HOC’s attorneys’ fees and costs associated with the filing of this
Motion.

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The Clerk of the Court is respectfully requested to terminate the pending motion. (Dkt.
No. 52.) HOC should submit a calculation of attorneys ' fees and costs within 14 days of this
Order.
SO ORDERED.
Dated: March ~
' 2019
White Plains, New York
ETHM. KA
ED STA TES DISTRICT JUDGE

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