Rossi v Budget Rent A Car

[*1] Rossi v Budget Rent A Car 2006 NY Slip Op 52697(U) [24 Misc 3d 1237(A)] Decided on July 10, 2006 Supreme Court, Albany County Stein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2006
Supreme Court, Albany County

Josephine T. Rossi, Plaintiff,

against

Budget Rent A Car/Budget Car and Truck Rental, Darrel Monk and McKesson HBOC Automated Health Care, Defendants.



1898-00



Josephine T. Rossi

Plaintiff Self-Represented

10 Maplewood Avenue

Albany, New York 12205

Friedman, Hirschen & Miller LLP

Attorneys for Defendant, Budget Rent-a- Car/Budget Car and Truck Rental

(Lynn M. Blake, Esq., of Counsel)

100 Great Oaks Blvd., Suite 124

P.O. Box 38279

Albany, New York 12203

Leslie E. Stein, J.

Defendant, Budget Rent a Car/Budget Car and Truck Rental ("Budget"), seeks an Order pursuant to CPLR 3126 striking the complaint or, in the alternative, for summary judgment pursuant to CPLR 3212. Plaintiff opposes the motion.

This action arises from a motor vehicle accident which allegedly occurred on April 2, 1997. Plaintiff commenced the action in January 2001, seeking damages for personal injuries, damage to her vehicle, potential lost earnings and other expenses. On January 24, 2001, Budget [*2]served plaintiff with a demand for a bill of particulars, a notice for discovery and inspection, and combined discovery demands. When plaintiff failed to respond, defendant sent four letters between May 15, 2001 and September 5, 2001 seeking the requested discovery.

On August 17, 2005, Budget sought court intervention. The matter was assigned to this Court on October 12, 2005 and a conference was held on December 8, 2005. At the conference, the Court directed plaintiff to respond to Budget's discovery demands by January 31, 2006. As the deadline approached, plaintiff made a written request for an extension of time until February 14, 2006. The Court granted the request over Budget's objection.

The record reflects that some discovery responses were served by plaintiff on February 14, 2006. In a Decision and Order dated May 11, 2006, the Court directed plaintiff to fully respond to all of Budget's pending discovery demands, except the demand for plaintiff's marital status and social security number, on or before May 31, 2006, and further directed that plaintiff's failure to comply would result in her being precluded from offering any evidence at the time of a dispositive motion or trial as to those matters embraced within the pending discovery demands.

Budget now contends that the responses served on May 31, 2006 are incomplete and unacceptable and that plaintiff's actions are wilful and contumacious. Specifically, Budget points out that plaintiff failed to identify or provide the following: medical records; no-fault records; authorizations for medical records; damage reports; or her date of birth. Budget further asserts that plaintiff did not raise any timely objections to the discovery demands.

Plaintiff asserts that defendant has not responded to her discovery demands. Citing privacy concerns, plaintiff states that she will not provide defendant with her medical records but will provide them to the Court for review. Plaintiff objects to providing defendant with her date of birth and medical authorizations and asserts that she will make an application to the Court to prevent their disclosure. Plaintiff also asserts that some records are no longer available. She requests that the Court sanction defendant for making her medical records public by attaching them as exhibits to its motion. Plaintiff further requests a protective order pursuant to CPLR 3101. Finally, plaintiff asserts that, according to her interpretation of CPLR 3101, defendants are not entitled to obtain information from her doctors.

In reply, Budget points out that plaintiff's opposition papers were untimely served and asks that the papers be rejected. Budget also asserts that plaintiff put her medical/physical condition in issue by commencing this action and, therefore, that her medical records are discoverable. Budget further argues that plaintiff is in violation of Court Orders directing her to provide authorizations. Finally, Budget alleges that it properly and timely responded to plaintiff's discovery demands.

As noted in its previous Decision and Order, the Court has discretion to consider plaintiff's opposition papers, despite their untimeliness (see Vlassis v Corines, 254 AD2D 273 [1998]). Based on plaintiff's self-represented status and the fact that Budget had an opportunity to reply to her opposition, the Court will consider plaintiff's opposition papers despite the fact that they were technically served one day late (see id.).

Unquestionably, plaintiff has waived the physician-patient privilege by commencing this personal injury action in which her physical condition was affirmatively put in issue (see Hoenig v Westphal, 52 NY2d 605, 608-609 [1981]). Furthermore, after considering plaintiff's arguments in opposition, this Court has previously found defendant's request for plaintiff's date of birth and [*3]authorizations to obtain medical records to be proper and has directed plaintiff to produce same. Those determinations are the law of the case.

CPLR 3126 provides that "[i]f any party... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just,...[including] an order striking out pleadings...or dismissing the action...". Plaintiff, through delays and other strategies, has disregarded an Order compelling her to comply with defendant's discovery demands, which were found to be relevant and appropriate.

It is well settled that, "[w]here a party in these circumstances disobeys a court order and by [her] conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the trial court" (Zletz v Wetanson, 67 NY2d 711, 713 [1986]). "[C]ompliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully" (Kihl v Pfeffer, 94 NY2d 118 [1999]).

Plaintiff herein has clearly frustrated the liberal discovery process set forth in the CPLR. Moreover, plaintiff has proffered inadequate excuses for her failure to provide the Court-ordered disclosure (see Du Valle v Swan Lake Resort Hotel, LLC, 2006 NY Slip Op 1065, 2 [2006]). Plaintiff's overall pattern of noncompliance gives rise to an inference that such conduct is willful, deliberate and contumacious (see id.). Moreover, plaintiff's conduct in deliberately refusing to disclose her date of birth and failing to provide medical authorizations can be described in no other way than willful and warrants dismissal of the complaint, with prejudice (see Kihl v Pfeffer, supra; Zletz v Wetanson, supra). The Court also notes that plaintiff failed to make a timely application for a protective order and, in all events, her request therefor is without merit.

With regard to defendant's motion for summary judgment, even if this Court were to impose a less severe remedy than dismissal of the complaint for failing to comply with discovery demands, it appears that Budget would be entitled to summary judgment on the issue of serious injury. Plaintiff is precluded from offering any evidence of her medical condition based on her failure to comply with the Court's Decision and Order dated May 11, 2006 which stated in pertinent part: ORDERED, that in the event that plaintiff fails to comply with this Order, she will be precluded from offering any evidence at the time of a dispositive motion or trial as to those matters embraced within the pending discovery demands.

Even considering the report of plaintiff's own doctor, it does not appear that she sustained a serious injury as defined by Insurance Law §5102(d) and defendant is unable to provide additional medical reports in support of its motion because of plaintiff's failure to comply with discovery demands.

Accordingly, it is hereby

ORDERED, that the complaint is dismissed, with prejudice.

This shall constitute the Decision and Order of the Court. All papers are returned to the attorneys for Budget, who are directed to enter this Decision and Order without notice and to serve plaintiff with a copy of this Decision and Order, with notice of entry. [*4]

Dated: July 10, 2006

Albany, New York_____________________________

Leslie E. Stein, J.S.C.