Simar Holding Corp. v Green Sky Corp.

[*1] Simar Holding Corp. v Green Sky Corp. 2008 NY Slip Op 51974(U) [21 Misc 3d 1105(A)] Decided on September 29, 2008 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2008
Supreme Court, Kings County

Simar Holding Corp., Plaintiff,

against

Green Sky Corp., Defendant.



2645/04

Francois A. Rivera, J.

By Order to Show Cause defendant and third party plaintiffs Green Sky Corporation (hereinafter GSC) and Rhoda Stockton jointly move pursuant to CPLR 3103 for a protective order limiting the disclosure of Rhoda Stockton's medical and psychiatric history and protecting material entitled to be kept confidential. Simar Holding Corporation (hereinafter SHC) opposes the motion.

The movants papers include an attorney's affirmation and five annexed exhibits. Exhibit A is the movants' proposed protective order. Exhibit B is a copy of the third party summons and complaint. Exhibit C is the third party answer which contains affirmative defenses and counterclaims. Exhibit D contains the preliminary conference order for the instant action signed on April 22, 2005. Exhibit E is an order of this court dated June 15, 2007 which granting the third party defendants' motion to compel discovery by the third party plaintiffs.

Plaintiff's opposition papers consists of an affirmation of counsel and annexed exhibits. Exhibit A is plaintiff's complaint. The complaint references two annexed exhibits, namely, a real estate sales contract between GSC and SHC and a legal description of the subject real property. The contract shows that SHC agreed to purchase and GCS agreed to sell a premises known as 29 [*2]Schermerhorn Street, Brooklyn, New York. Exhibit B is GSC's amended answer. Exhibit C is SHC's reply to the defendants' first amended answer. Exhibit D is a copy of the preliminary conference order dated April 22, 2005.

BACKGROUNDOn January 27, 2004, SHC commenced an action against GSC in Kings County Supreme Court. SHC demanded that GSC specifically perform its obligations under the contract of sale for the premises known as 29 Schermerhorn Street, Brooklyn, New York. Issue was joined by GSC on February 4, 2004, when Ms. Stockton, the sole shareholder of GSC appeared pro se and denied the allegations.

On or about November 5, 2004, Third Party plaintiffs GSC and Rhoda Stockton commenced this action against Brooklyn Heights Management Inc. (hereinafter BHM), New Horizons Equities Corporation (hereinafter NHEC) and Kobe Manor by serving a Third Party Summons and Complaint, dated November 5, 2004. The third party complaint alleges, inter alia, an attempt by the third party defendants to purchase the property from GSC and Ms. Stockton by exploiting her demonstrated mental impairments, lack of financial sophistication, anxiety about her dire financial situation and lack of legal representation by allegedly fraudulently procuring contracts and deeds for amounts far below the fair market value of the subject property. The third party complaint asserts four separate causes for action, namely, rescission of the sale agreement based on unconscionability; rescission based on incompetency; fraud; and a judgment declaring the deed transferring ownership from GSC to BHM to be null and void.

On or about June 15, 2007, the court granted third party defendants' motion to compel discovery, and ordered Ms. Stockton to provide written authorizations for all treating physicians, as well as all medical and mental records within 30 days. During the argument on this motion, the court instructed counsel for Ms. Stockton that, if they were seeking a court mandated confidentiality order regulating the use and disclosure of her sensitive medical and psychological information, they should move by order to show cause for a protective order.

LAW AND APPLICATION CPLR 3103(a) provides as follows: Protective orders. (a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

CPLR 3121(a) provides in pertinent part as follows: Physical or mental examination. (a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his [*3]agent, employee or the person in his custody or under his legal control.

The movants have requested pursuant to CPLR 3103, that a protective order be granted which orders the third party defendants to sign a confidentiality agreement. The movants contend that the proposed agreement would protect materials entitled to be kept confidential namely, Ms. Stocktons psychiatric history. The third party defendants contend that Ms. Stockton must submit to a physical examination and provide authorizations for medical records pertaining to her condition because she has put her mental health history in controversy through her affirmative defenses. The third party defendants cite CPLR 3121 in support of their contention but do not address the movants contention that the information should be kept confidential and its use limited to the litigation of the action. It is noted that the movants did not and are not requesting an order denying access to the medical information to the defendant. Therefore, the opposition has offered no basis to deny the request for an order to compelling the terms of the proposed confidentiality agreement.

The Court has inspected in camera the medical records of Ms.Stockton and finds that there are properly discoverable. Ms. Stockton claims that the third party defendants abused and exploited her mental impairment to execute an unconscionable contract. This affirmative defense indeed places her medical and mental health in controversy. The third party defendants are entitled to the relevant medical and psychiatric records of Stockton.

The issue left unanswered is whether a confidentiality agreement is warranted in this instance. The Court deems it proper to keep this information confidential and to limit its use within the confines of the prosecution of the litigation. The information, though properly discoverable, is the type that may be subject to abuse if widely disseminated. The proposed agreement is reasonable and would avoid any unnecessary harm or embarrassment to Ms. Stockton (Butt v. New York Medical College, 7 AD3d 744 [2nd Dept 2004]).

The parties are directed to sign the agreement forthwith.

The foregoing constitutes the decision and order of this court

 1;-x

J.S.C