Geyer v Perloff

Annotate this Case

Download PDF

Geyer v Perloff 2012 NY Slip Op 30890(U) March 30, 2012 Supreme Court, Nassau County Docket Number: 009476/10 Judge: Randy Sue Marber 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. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 14 HOLL Y GEYER Index No. : 009476/10 Plaintiff, Motion Sequence... Motion Date... 02/07/11 -againstCYNTHIA PERL OFF , HARINIBEN PATEL SONAH D. PATEL , POOJABEN PATEL, NITTIN RAJ Defendants. Papers Submitted: Notice of Motion................................................ Affirmation in Partial Opposition...................... Reply Affirmation.............................................. Upon the foregoing papers, the Plaintiffs extending the Plaintiffs time to fie the motion seeking an order: (i) Note of Issue pursuant to CPLR 2004; (ii) compellng the Defendant , CYNTHIA PERLOFF (" Perloff' ) to turn over certain reports requested in the Plaintiff s discovery and inspection and/or 3124 3126; (iii) compellng the Defendant , Perloff, to respond to certain questions that 3124 and/or were propounded at her deposition pursuant to CPLR the Plaintiffto serve an amended Bil injuries demands pursuant to CPLR pursuant to CPLR of Particulars 3126; (iv) permitting to include " mold and respiratory related 3025 (b); and (v) a protective order preventing discovery of ). [* 2] certain medical records in response to a Discovery and Inspection demand, dated July 14 2011, as palpably improper pursuant to CPLR ~ 3103, is decided as hereinafter provided. Relevant Factual Backcround: The Plaintiff commenced this action by the filing of a summons and complaint on May 14 , 2010, to recover monetary damages and rent abatement for physical and psychological injuries allegedly sustained as a result ofthe condition ofthe premises wherein the Plaintiff resided Premises located at 31 James Street , Hicksvile , New York (hereinafter Specifically, the Plaintiff alleges causes of action against the Defendant Perloff, for breach ofwarranty of habitabilty, negligent maintenance ofthe Premises , private nuisance and strict products liabilty, due to the presence of mold and bedbugs, among other deficiencies , within the Premises. Issue was joined by the service of the Defendant , Perloff s Verified Answer , dated August 3 2010. The complaint also alleged causes of action against the Defendants HANIBEN PATEL , SONAH D. PATEL , POOJABEN PATEL and NITTIN RAJ , who resided at the Premises during the relevant time period in a separate portion of the home. According to the Plaintiff s counsel' s affirmation , following the preliminary conference , the aforementioned Defendants appeared for an examination before trial. Thereafter , they have not engaged in any discovery and have presumably left the country since the commencement of this litigation. Said Defendants stated their intention to leave the country and the Plaintiff s counsel stated his intention to discontinue the action against them but never did. The instant motion only relates to the Defendant , Perloff. [* 3] Plaintifs Application to Extend the Time to File the Note of Issue: Pursuant to a Certification Order, dated July 21 2011 , this matter was certified for trial and the Plaintiff was directed to fie a Note ofIssue within ninety days of said date. The time for which to fie the Note ofIssue expired on October 19, 2011. The instant motion seeking an extension of time was fied on October 3, 2011 , prior to the deadline. Counsel for the Defendant , Perloff, has no objection to the Plaintiff s request to extend the time to fie the Note of Issue and joined in the Plaintiffs application for same. The Court , in its discretion , hereby extends the Plaintiffs time to fie the Note of Issue to May 4 2012. II. Plaintifs Application to Compel the Defendant, Perloff to Disclose Certain Reports In Response to a Demandfor Discovery and Inspection: The Plaintiff served a demand for Discovery and Inspection , dated October 2 2010 , wherein " copies of all engineer reports, construction reports, repair receipts , other reports , memoranda, writings... " were demanded regarding the Premises. The Defendant Perloff, objected to disclosing the foregoing items based upon a privilege. The Plaintiffs counsel claims that in light of the fact that a seminal issue in the case is the condition of the Premises while the Plaintiff resided there , the documents requested are discoverable pursuant to CPLR ~ 310 1 (a). Further, the Plaintiff submits that any privilege claimed by the Defendant has been waived due to the second action in which the Defendant, Perloff, is suing the Plaintiffto recover unpaid rent and disposal costs for the Plaintiff s personal propert and debris. The Plaintiff also claims that the Defendant waived the privilege by stating in her interrogatory responses that there was no mold in the Premises for the past 10 years which [* 4] was ascertained through "testing In opposition, counsel for the Defendant, Perloff, states that the reports requested by the Plaintiff are expert reports created subsequent to the commencement of the litigation. CPLR ~ 3101 (b) and (c) state that privileged matters and the work product of an attorney shall not be obtainable, respectively. Further, CPLR ~ 3101 (d) (2) states that materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation ... may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. A review of the privilege log reveals that the Defendant , Perloff, seeks to prevent from disclosure three (3) items of discovery: an inspection report of the Premises dated July 11 July 29, 2010). (See 2010 and two (2) expert reports regarding an inspection of the Premises, dated 2010. All three (3) reports post- date the commencement of this action (May 14 Privilege Log attached to the Plaintiffs Notice of Motion as Exhibit " ) In the instant matter , the Plaintiff has failed to make a showing of " substantial need" or " undue hardship . Indeed , after commencement of the litigation , the Plaintiffs hired an expert, or other qualified individual , counsel could have to inspect the Premises. The Court finds no need to compel the Defendant to disclose information that was obtained in preparation to defend this litigation absent a showing of substantial need or undue hardship. The Plaintiff s argument that the Defendant waived the privilege by [* 5] commencing an action in small claims court is unavailng. There is no evidence presented that the small claims action, which was joined for trial with this action, was ever pursued. It appears that the claims the Defendant sought to pursue against the Plaintiff have been abandoned. Accordingly, the portion of the Plaintiffs motion seeking to compel the Defendant , Perloff, to disclose " copies of all engineer reports , construction reports , repair receipts , other reports , memoranda , writings " subsequent to the commencement ofthe action is DENIED. III. Plaintifs Application to Compel the Defendant to Respond to Questions at an Examination Before Trial During the Examination Before Trial of the Defendant , Perloff, the Plaintiffs counsel inquired about whether the Defendant owned any other properties besides 28 Monroe Avenue. The Defendant's counsel objected and instructed the witness not to respond to the question. The Plaintiff s counsel submits that the information sought is relevant to the prosecution ofthe action in order to prove that the Defendant acted similarly with respect to other properties as she acted with the Premises herein and as to her intent. Specifically, counsel contends that allowing said inquiries could reveal that the Defendant engaged in similar " behavior with other properties including intentionally failng to fix problems permitting unabated mold growth, permitting criminal acts to be committed, failng to remedy asbestos conditions and failng to keep the premises in a habitable condition. [* 6] In opposition , the Defendant's counsel avers that the information sought is not discoverable in the context of this claim and is nothing more than a fishing expedition by the Plaintiff. Counsel further states that any request to inquire as to the Defendant' s assets would require that an order of attachment first be obtained. CPLR ~ 3101 ( a) sets forth the criterion for disclosure under the CPLR requiring " full disclosure of all matter material and necessar in the prosecution or defense of an action. " Requests for disclosure , however , may not be overbroad , burdensome, or lacking in specificity and they may not seek Constr. Mgt., Inc. 69 A. D.3d 99 , v. Osowski irrelevant information. AMEC 106 (1st Dept. 2009). The words material and necessary are to be liberally interpreted to " require disclosure , upon request of any facts bearing on the controversy which wil assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test to determine ifthe information sought is material and necessary is one of usefulness and reason. Allen v. Crowell- Coller Publishing Co. , 21 N. Y . 2d 403, 406- 407 (1969). The principle of full disclosure does not , however , give a part the right to uncontrolled and unfettered disclosure. Matters relating to disclosure lie within the broad discretion of the trial court which is in the best position to determine what is material and necessary. Buxbaum v. Castro 82 A. D.3d 925 (2d Dept. 2011). The information sought by the Plaintiff s counsel , Defendant acted in a similar fashion as a landlord and/or propert to wit , whether the owner with regard to other properties, is not relevant , material or necessary to prosecute the Plaintiffs claims. In this [* 7] action, the Plaintiff claims that the Defendant breached certain duties relating to her maintenance and/or operation ofthe Premises where the Plaintiff resided for nearly seventeen (17) years , located at 31 James Street , Hicksvile , New York. The Defendant's maintenance of other properties , where the Plaintiff never resided, is irrelevant to whether the Defendant breached a duty of care with respect to her maintenance of the subject Premises. Accordingly, the portion of the Plaintiffs motion which seeks to compel the Defendant to respond to inquiries regarding " other properties " owned by the Defendant , other than 31 James Street , Hicksvile , New York , is DENIED. IV. Plaintiffs Application to Serve an Amended Bill of Particulars The Plaintiff seeks to amend her Bil of Particulars to include " mold and respiratory related injuries pursuant to CPLR ~ 3025 (b). The Plaintiff alleged in her complaint that there was mold growth in the basement (See , bedrooms and living room. 17) The Plaintiff further alleged that she suffered physical injuries Plaintiff s Complaint, among other ailments and injuries , as a result of the foregoing. The Defendant does not object to the Plaintiffs the Plaintiff set fort the (Id. at 30) request except requests that new injuries with more particularity. The Defendant also requests that the Court direct the Plaintiff to provide a narrative medical report from a physician establishing a medical foundation and causation for the additional claims the Plaintiff seeks to assert in her Amended Bil of Particulars. At the outset , the Court notes that CPLR ~ 3025 is not the proper provision pursuant to which the Plaintiff should seek to amend her Bil of Particulars. Leave to amend [* 8] a bil of particulars is ordinarily freely given unless it would unduly prejudice the non-moving part. CPLR ~ 3042 (b); Kassis v. Teachers Ins. andAnnuity Assoc. 258 A. 271, 272 (1st Dept.1999). The Defendant did not submit any opposition to the Plaintiffs request to amend the bil of particulars. The Plaintiff has shown a reasonable basis for the need of the amendment and there is no showing that this amendment would prejudice the Defendant , especially in light of the fact that the allegations were made in the Plaintiff s complaint. The Plaintiff submitted an Amended Bil of Particulars, dated December 23, 2010 , attached as Exhibit" 1 0" to the Plaintiff s Notice of Motion. The Plaintiff s application to amend her Bil of Pariculars is GRANTED , and the Plaintiffs Amended Bil Particulars , as annexed to the moving papers , is deemed served. In the event a copy Exhibit " 10" of as annexed to the moving papers was not served upon the Defendant's office same shall be served upon counsel for the Defendant within twenty (20) days of the date of this Order. The Defendant' s request that the Plaintiff provide a physician s report detailng the new injuries claimed is DENIED as an improper request for information that is evidentiary in nature and beyond the scope of a bil Plaintifs Application for a of particulars. Protective Order Preventing Disclosure of Certain Medical Records: Lastly, the Plaintiff seeks a protective order pursuant to CPLR ~ 3103 (a), relating to the Defendant' s demand for medical authorizations requested in the Defendant' Notice for Discovery and Inspection , dated July 14 , 2011. [* 9] Of the authorizations requested , those that are stil contested are the authorizations seeking the records from Dr. Turk , Dr. Rand , Dr. Turner , a facilty in Merrick where the Plaintiff underwent therapy and Hicksvile Youth Counseling. The Plaintiff claims that any medical records that pre- date the six-year statute oflimitations period for the claims asserted in the complaint are not discoverable. The Plaintiff fails to reference any legal authority in support of this argument and the Court is unaware of any that exist. The Plaintiff has clearly placed her mental and physical health at issue and claims that certain prior injuries were exacerbated by the (See Defendant's conduct. Plaintiffs Amended Bil of Particulars , ~ 3) The Defendant is entitled to the Plaintiff s prior medical records as same are material and necessar to the defense of this action. As such, the portion of the Plaintiff s motion seeking a protective order to prevent disclosure of medical authorizations demanded in the Defendant' s Demand for Discovery and Inspection , dated July 14 2011 , is DENIED. Accordingly, it is hereby ORDERED the branch of the Plaintiffs motion seeking an order extending the Plaintiffs time to fie the Note of Issue pursuant to CPLR ~ 2004 , is GRANTED and the Plaintiffs time to fie the Note of Issue is hereby extended up to and including May 4 2012; and it is further ORDERED that the Plaintiffs failure to fie the Note of Issue by May 4 2012 , wil result in the dismissal of this action without further order of the Court pursuant to CPLR ~ 3216; and it is further [* 10] ORDERED , that the branch of the Plaintiffs motion seeking to compel the Defendant, Perloff, to turn over certain reports requested in the Plaintiff s discovery and inspection demands pursuant to CPLR ~ 3124 and/or g 3126, is DENIED, consistent with the terms of this order; and it is further ORDERED, that the branch of the Plaintiffs motion seeking to compel the Defendant, Perloff, to respond to certain questions that were propounded at her deposition pursuant to CPLR ~ 3124 and/or ~ 3126, is DENIED, consistent with the terms ofthis order; and it is further ORDERED, that the branch of the Plaintiffs motion permitting the Plaintiff to serve an amended Bil of Particulars to include "mold and respiratory related injuries , is GRANTED, consistent with the terms of this order; and it is further ORDERED , that the portion of the Plaintiffs motion seeking a protective order preventing discovery of certain medical records in response to a Discovery and Inspection demand, dated July 14, 2011 , as palpably improper pursuant to CPLR ~ 3103 , is DENIED. This constitutes the decision and Order of the court. DATED: Mineola, New York March 30 2012 Hon. Rand eNTERED PR 03 AS 1.011. ,,,u COUM'T'1 COUNTY ': ell: 1\,. Off\Cf

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.