Garcia v 145 Edwards LLC

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Garcia v 145 Edwards LLC 2012 NY Slip Op 30401(U) February 15, 2012 Sup Ct, NY County Docket Number: 105164/10 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 212312012 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY Index Number: 105164/2010 GARCIA, CAROL vs. 145 EDWARDS SEQUENCE NUMBER : 001 INDEX NO. MOTION DATE MOTION 8EQ. NO. COMPEL Ths following papem, numbered 1 to Notlce of MotionlOrder to Show Cause Aniwrring Affidavits , were read on thls motlon tonor -Affldavlts - Exhlblts - Exhlblts Rsplylng Affldavlts IN o ( d . ( L IWd. , 3 INo(s). Upon the foregolng papers, It Is ordered that thls motion Is FILED FEB 2 3 2012 Dated: %I NEW YURK cQuN1-v CLERKS OFFICE FBI 1. CHECK ONE: ..................................................................... 3. , J.S.C. 1 Til& ........................... CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED SETTLE ORDER 0DO NOT POST 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] Index No. 105164/10 Plaintiff, Motion Subm.: Motion Seq. No.: 11/22/11 00 1 -againstDECISION & ORDER FILED 145 EDWARDS LLC, MEMPHIS CANDY GROCERY COW., and THE CITY OF NEW YORK, FEB 2 3 2012 NEW YORK For plaintiff: Igor Grichanik, Esq. Novo Law F h ,PC 299 Broadway, 17' FI. New York, NY 10007 2 12-233-6686 COUNTY CLERKS OFFICE For 145 Edwards LLC: Paul J. Felicione, Esq. Desena & Sweeney, LLP 1383 Veterans Memorial Hwy. Ste. 32 Hauppauge, NY 11788 63 1-360-7333 By notice of motion dated August 16,2011, defendant 145 Edwards LLC (LLC) moves pursuant to CPLR 3 126(3) for an order striking plaintiffs complaint for her failure to comply with discovery. Plaintiff opposes and, by notice of cross motion dated September 15,20 11, moves for an order protecting against disclosure of any records of substance abuse treatment she received. LLC opposes the cross motion. After oral argument, the parties resolved the motions except as to the issue of plaintiffs substance abuse records. I. PERTINENT B A C K G R O W AND CONTENTIONS On January 19,2010, plaintiff was injured when she allegedly tripped and fell on a defective portion of the sidewalk in front of defendants' premises. (Afflrmation of Paul J. Felicione, Esq., dated Aug. 16,201 1 [Felicione Aff.], Exh. A). On or about April 13,2011, LLC served plaintiff with a supplemental notice for discovery and inspection seeking, as pertinent [* 3] here, plaintiffs records andor authorizations related to her various medical and mental health issues and treatment. (Id., Exh. C). Plaintiff argues that records of treatment she received for alcohol and/or drug abuse are irrelevant absent any connection between her treatment or abuse and the injuries she sustained, and observes that there is no evidence that she was intoxicated on the day of her accident, nor has she denied that she was then receiving methadone treatment. She thus contends that such records are more prejudicial than probative. (Affirmation of Igor Grichanik, Esq,, dated Sept, 15,201 1). In reply, LLC maintains that plaintiff waived any objection to its demands as she failed to object or move for a protective order timely, and observes that plaintiff testified that she had received methadone treatment immediately before her accident. It contends that plaintiffs physical condition is at issue to the extent it affected her ability to walk and perceive conditions on the ground, and that her mental condition is at issue to the extent that she seeks to introduce evidence related to her condition and lifestyle before the accident. (Affirmation of Paul J. Felicione, Esq., dated Oct. 7,201 1). 11. ANALYSIS CPLR 3 101(a), which provides for full disclosure of all matters material and necessary in the prosecution or defense of an action, should be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. (Allen v Crowell-Collier Pub. Co., 21 NY2d 403 [1968]). Thus, disclosure should be permitted if the information sought is relevant to the action. (Siegel, NY Prac 0 344 [4h ed]). Pursuant to CPLR 3 124, a party may move to compel disclosure from another party that has not responded or 2 [* 4] complied with any discovery request and, pursuant to CPLR 3 126, if a party refuses to obey a court order to provide discovery, the court may preclude that party from submitting evidence at trial or strike its pleadings. "It is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR ... when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue." (Cynthia B. v New Rochelle Hosp. Med Ctr., 60 NY2d 452 [1983]). Substance abuse treatment records are generally confidential and not subject to disclosure unless certain requirements are met, As a predicate for ordering the disclosure of such records, the court must find that the interests of justice significantly outweigh the need for confidentiality. (Mental Hygiene Law 66 22.05,33.13; L.T. v Teva Pharms. USA, lnc., 71 AD3d 1400 [4'hDept 20101). Here, LLC does not demonstrate that plaintiff has placed her mental condition in issue by, for example, asserting a claim based on a loss of enjoyment of life. (Compare Saluzar v 521-533 W. 5T"St. Condominium, 84 AD3d 927 [2d Dept 201 11 [mental health and substance abuse treatment records not discoverable as plaintiff withdrew claims for injuries related to those conditions], with Azznara v Strauss, 81 AD3d 578 [2d Dept 201 1] [plaintiffs alcohol and drug abuse records material and necessary to damages for claim of loss of enjoyment of life]; Caddington v Lisk, 249 AD2d 817 [3d Dept 19981 [as plaintiff claimed loss of enjoyment of life and permanent damages, defendant entitled to records related to plaintiffs past drug addiction]). LLC has thus failed to demonstrate plaintiffs entire treatment records are material and 3 [* 5] necessary to its defense or that the interests of justice outweigh their confidentiality. (See Wojtusiak v Elardo, 43 AD3d 436 [2d Dept 20071 [plaintiffs drug treatment history not subject to disclosure as her mental health not in issue and it concerned illnesses and conditions unrelatec to accident]). However, to the extent that the methadone treatment plaintiff received immediately before her accident is relevant to her physical condition at the time of the accident, her treatment record for that day may contain relevant information which I will review in camera to ensure that only material and necessary information is disclosed need be. IV, CONCJ.USION Accordingly, it is hereby ORDERED, that defendant 145 Edwards LLC s motion to strike is denied; and it is further ORDERED, that plaintiffs cross motion for a protective order is granted except that plaintiff is directed to provide to defendant 145 Edwards LLC, within 30 days of the date of this order, HIPAA-compliant authorizations for the record of her methadone treatment on January 19, 2010, which shall be produced for an in cameru inspection; the authorizations must direct that the records be sent to Justice Jaffe s chambers at 80 Centre Street, Room 307, New York, New York 10013. FILED ENTER: FEB 2 3 2012 DATED: February 15,20 12 New York, New York *&RA 4 JAWE J3.C. NEW YORK COUNTY CLERKS OFFICE

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