Morante v Duncan
2012 NY Slip Op 31062(U)
April 13, 2012
Supreme Court, Suffolk County
Docket Number: 12162/2009
Judge: Joseph Farneti
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INDEX NO. 1216212009
SHORT FORM ORDER
SIWREME COURT ~STATE OF NEW YORK
LA.S. TERM, PART 37 - SUFFOLK COUNTY
COPY
PRESENT:
HON. JOSEPH FARNETI
Acting Justice Supreme Court
ARLENE MORANTE and JOSEPH
MORANTE,
Plaintiffs,
-againstCHRISTINE J. DUNCAN, MD., WOMEN
FOR WOMEN OBSTETRICS &
GYNECOLOGY, LLC., GLENN E RABIN,
MD., STEVEN L. MENDELSOHN, MD.,
ELLIOT KALKER, MD., and ZWANGER &
PESIRI RADIOLOGY GROUP, LLP,
Defendants.
ORIG. RETURN DATE: JULY 28, 2011
FINAL SUBMISSION DATE: SEPTEMBER 22,2011
MTN. SEQ. #: 001
MOTION: MOT D
ORIG. RETURN DATE: JULY 28, 2011
FINAL SUBMISSION DATE: SEPTEMBER 22, 2011
MTN. SEQ. #: 002
CROSS-MOTION: XMOT D
PL TF'S/PET'S ATTORNEY:
SILBERSTEIN, AWAD & MIKLOS, P.C
600 OLD COUNTRY ROAD - SUITE 412
GARDEN CITY, NEW YORK 11530
516-832-7777
ATTORNEY FOR DEFENDANTS
GLENN E. RABIN, M.D.,
STEVEN l. MENDELSHOHN, M.D.,
ELLIOT KALKER, M.D. AND ZWANGER
& PESIRI RADIOLOGY GROUP, LLP:
SHAUB, AHMUTY, CITRIN & SPRATT, LLP
1983 MARCUS AVENUE - SUITE 140
LAKE SUCCESS, NEW YORK 11042
516-488-3300
ATTORNEY FOR DEFENDANTS
CHRISTINE J. DUNCAN, M.D. AND
WOMEN FOR WOMEN OBSTETRICS
& GYNECOLOGY, LLC:
GARSON, DECORATO & COHEN, LLP
110 WALL STREET - 10'" FLOOR
NEW YORK, NEW YORK 10005
212-742-8700
Upon the following papers numbered 1 to 10
read on this motion
_
TO STRIKE ANSWER AND CROSS-MOTION FOR A PROTECTIVE ORDER
Notice of Motion and supporting papers
1-3 ; Notice of Cross-motion and supporting papers
4-6 : Affirmation in Opposition and supporting papers~,
Replying Affidavit and supporting
papers
9, 10 ; it is,
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MORANTE v. DUNCAN. M.D., ET AL.
INDEX NO. 12162/2009
FARNETI, J.
PAGE 2
ORDERED that this motion by plaintiffs, ARLENE MORANTE and
JOSEPH MORANTE (collectively "plaintiffs"), for an Order:
(1) pursuant to CPLR 3126, striking the answer of defendants,
GLENN E. RABIN, MD., ELLIOT KALKER, MD., and ZWANGER & PESIRI
RADIOLOGY GROUP, LLP, and granting a judgment of default in favor of
plaintiffs and against defendants, GLENN E. RABIN, M.D., ELLIOT KALKER,
MD. and ZWANGER & PESIRI RADIOLOGY GROUP, LLP, on the grounds that
these defendants have willfully failed to comply with plaintiffs' multiple discovery
requests; or, alternatively, if denied, then
(2) pursuant to CPLR 3126, compelling defendants, GLENN E.
RABIN, MD., ELLIOT KALKER, MD., and ZWANGER & PESIRI RADIOLOGY
GROUP, LLP, to provide outstanding discovery due plaintiffs within twenty (20)
days of service upon them of a copy of this Order with notice of entry, and if
defendants, GLENN E. RABIN, MD., ELLIOT KALKER, MD., and ZWANGER &
PESIRI RADIOLOGY GROUP, LLP, fail to do so, then deeming their answer
stricken and granting a judgment of default in favor of plaintiffs and against
defendants, GLENN E. RABIN, MD., ELLIOT KALKER, MD., and ZWANGER &
PESIRI RADIOLOGY GROUP, LLP; or, alternatively, if denied, then
(3) pursuant to CPLR 3126, compelling defendants, GLENN E.
RABIN, MD., ELLIOT KALKER, MD., and ZWANGER & PESIRI RADIOLOGY
GROUP, LLP, to provide outstanding discovery due plaintiffs within twenty (20)
days of service upon them of a copy of this Order with notice of entry; and
(4) setting a thirty-day on or before date certain, which cannot be
adjourned without Court Order, for the depositions of the 2007 mammogram
technician with the initials "ML" and the 2007 sonographer with the initials "GS," if
they are still presently employed at defendant ZWANGER & PESIRI
RADIOLOGY GROUP, LLP,
is hereby GRANTED solely to the extent provided hereinafter; and it is further
ORDERED that this cross-motion by defendants, GLENN E. RABIN,
MD., STEVEN L. MENDELSOHN, MD., ELLIOT KALKER, MD., and
ZWANGER & PESIRI RADIOLOGY GROUP, LLP (the "moving defendants"), for
an Order:
(1) pursuant to CPLR 3103, and the Court's inherent authority,
granting the moving defendants a protective Order precluding further discovery
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MORANTE v DUNCAN, M.D., ET AL.
INDEX NO. 12162/2009
FARNETI, J.
PAGE 3
by plaintiffs with regard to all diagnostic studies performed by the moving
defendants because the moving defendants have provided copies of all studies
performed and because the moving defendants have already appeared for
depositions;
(2) denying plaintiffs' instant motion;
(3) pursuant to CPLR 3126, precluding plaintiffs from introducing
testimony and evidence at trial concerning plaintiff ARLENE MORANTE's medical
condition for failure to provide medical authorizations;
(4) pursuant to CPLR 3101,3120 and 3124, compelling plaintiffs to
provide outstanding discovery; and
(5) pursuant to CPLR 3126, precluding plaintiffs from deposing
further defendant employees and former employees,
is hereby GRANTED solely to the extent provided hereinafter.
This medical malpractice action was commenced on or about March
27,2009, to recover damages as a result of defendants' alleged failure to timely
and properly diagnose plaintiff ARLENE MORANTE's breast cancer. Plaintiff
JOSEPH MORANTE asserts a claim for loss of services and consortium.
Plaintiffs have now filed the instant discovery motion seeking the
relief described hereinabove, and in response, the moving defendants have filed
the instant cross-motion for, among other things, a protective Order precluding
further discovery by plaintiffs with regard to all diagnostic studies performed by
the moving defendants.
Initially, the Court notes that CPLR 3101 (a) provides for disclosure
of "all matter material and necessary in the prosecution or defense of an action,
regardless of the burden of proof' (CPLR 3101 [a]). Although CPLR 3101 favors
liberal disclosure, such disclosure must be material and necessary to the
prosecution or defense of the action (CPLR 3101; Gill v Mancino, 8 AD3d 340
[2004]; DeStrange v Lind, 277 AD2d 344 [2000]). "If there is any possibility that
the information is sought in good faith for possible use as evidence-in-chief or in
rebuttal or for cross-examination, it should be considered evidence material in the
prosecution or defense" (Allen v Crowell· Collier Publishing Co., 21 NY2d 403,
407 [1968]). Moreover, "New York has long favored open and far-reaching
pretrial discovery" (DiMichel v South Buffalo Ry. Co., 80 NY2d 184 [1992], cert
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MORANTE v. DUNCAN, MD, ET AL.
INDEX NO. 12162/2009
FARNETI, J
PAGE 4
denied sub nom Poole v Consolidated Rail Corp., 510 US 816 [1993]), and
"[tJhere shall be full disclosure of all matter matenal and necessary in the
prosecution or defense of an action, regardless of the burden of proof' (CPLR
3101 [aJ; Northway Eng'g v Felix Indus, 77 NY2d 332 [1991]).
By commencing the instant action to recover damages for medical
malpractice, the physician/patient privilege held by plaintiff ARLENE MORANTE
was waived with respect to her relevant past medical history (see Cynthia B. v
New Rochelle Hosp. Med Ctr., 60 NY2d 452 [1983]; Gill v Mancino, 8 AD3d 340,
supra; McLane v Damiano, 307 AD2d 338 [20031; DeStrange v Lind, 277 AD2d
344, supra). However, a party does not waive the privilege with respect to
unrelated illnesses or treatments (see McLane v Damiano, supra; see also
Sadicario v Stylebuilt Accessories, 250 AD2d 830 [1998]).
Moreover, CPLR 3126 provides that a court may, in its discretion,
impose a wide range of penalties upon a party which either: (a) refuses to obey
an order for disclosure; or (b) willfully fails to disclose information which the court
finds ought to have been disclosed (CPLR 3126). The penalties proposed by the
statute include: (1) deciding the disputed issue in favor of the prejudiced party; (2)
precluding the disobedient party from producing evidence at trial on the disputed
issue; or (3) either striking the pleadings of the disobedient party, or staying the
proceedings until the ordered discovery is produced, or rendering a default
judgment against the disobedient party (CPLR 3126). It is appropriate to strike a
party's pleading where there is a clear showing that its failure to comply with
discovery demands is wilful, contumacious, or in bad faith (see Denoyelles v
Gallagher, 40 AD3d 1027 [2007J; Fellin v Sahgal, 268 AD2d 456 [2000]; Harris v
City of New York, 211 AD2d 663 [1995]). Generally, "willfulness" is inferred from
a party's repeated failure to respond to demands and/or to comply with disclosure
orders, coupled with inadequate excuses for its defaults (see Siegman v Rosen,
270 AD2d 14 [2000]; DiDomenico v C & S Aeromatik Supplies, Inc., 252 AD2d 41
[1998]; Frias v Fortini, 240 AD2d 467 [1997]).
At this juncture, the Court finds that striking the answer of the moving
defendants is not warranted. The moving defendants indicate that they have
provided plaintiff's medical records and billing records; that the radiology jackets
sought are not in the moving defendants' possession; and that there are no
additional technologist notes. Therefore, the moving defendants cannot be
compelled to produce such documents and records (see e.g. Euro-Central Corp.
v Dalsimer, Inc., 22 AD3d 793 [2005]). Further, the moving defendants indicate
that ,t is impossible to reproduce print copies or CD-ROM copies with the
computer aided detection (CAD) software enabled of mammograms or
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MORANTE v. DUNCAN, M.D, ET AL.
INDEX NO. 12162/2009
FARNETI, J.
PAGE 5
sonograms performed in 2006, 2007, and 2008, as the CAD software is
significantly different at the present time. Even assuming it were possible to
create such documents, the Court cannot compel the moving defendants to
create new documents that do not exist in order to comply with plaintiffs'
demands (see Argo v Queens Surface Corp., 58 AD3d 656 [2009]; Rosado v
Mercedes-Benz of North America, Inc., 103 AD2d 395 [1984]). In addition, the
moving defendants indicate that they have produced the registration information
sheet from August 14, 2007; the films marked "11A" and "11 B"; the exaggerated
cranial caudal view film; and Dr. Mendelsohn's curriculum vitae. Finally, the
moving defendants have represented that Dr. Kalker does not possess the power
point presentations referred to during his deposition testimony, and have provided
an affirmation from Dr. Kalker to that effect.
With respect to the technologists, "ML" and "GS," the moving
defendants indicate that their full names are Maria Lopez and Gail Schneider,
respectively. Ms. Lopez is no longer employed by ZWANGER & PESIRI
RADIOLOGY GROUP, LLP, and is therefore no longer in the moving defendants'
control. However, the Court shall direct that the moving defendants provide
plaintiffs with her last known address, so that plaintiffs may serve a non-party
subpoena upon her, if so advised. Furthermore, plaintiffs have indicated that Ms.
Schneider was the 2007 sonographer, and as such, the Court finds that she may
have personal knowledge of the relevant events, and her testimony may be
material and necessary to the prosecution of this action. Thus, plaintiffs are
entitled to take her deposition.
Regarding the moving defendants' cross-motion, CPLR 3103 (a)
provides in pertinent part, "[t]he court may at any time ... on motion of any party
... 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 3103 [a]). Here, plaintiffs allege that the moving
defendants failed to timely respond to their discovery demands. The failure of the
moving defendants to respond or move for a protective Order, pursuant to CPLR
3122, within twenty (20) days after service of the demands forecloses all inquiry
concerning the propriety of the demands and the information sought to be
discovered thereunder, except as to demands seeking privileged matter under
CPLR 3101, or demands that are palpably improper (see CPLR 3122, 3101;
Anonymous v High School for Envtl. Studies, 32 AD3d 353 [2006]; Holness v.
Chrysler Corp., 220 AD2d 721 [1995]; Alaten Co. Inc. v Soli! Management Corp.,
181 AD2d 466 [1992]). A disclosure request is palpably improper if it seeks
information of a confidential and private nature that does not appear to be
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MORANTE v. DUNCAN, M.D., ET AL.
INDEX NO. 12162/2009
FARNETI, J.
PAGE 6
relevant to the issues on the case (see Saratoga Harness Racing, Inc. v Roemer,
274 AD2d 887 [2000]; Tit/eserv, Inc. v Zenobio, 210 AD2d 314 [1994]).
While the Court finds that the moving defendants are not entitled to a
protective Order based upon the circumstances presented, the Court herein has
limited and defined the moving defendants' obligations regarding the discovery
due plaintiffs. However, with respect to that branch of the moving defendants'
cross-motion to compel plaintiffs to provide an authorization for plaintiff's medical
records from Dr. Robert Waldbaum, the Court finds that the moving defendants
have made the requisite good faith showing that the authorization may lead to
records that are material and necessary to the defense of this action (see CPLR
3101; Gill v Mancino, 8 AD3d 340, supra; DeStrange v Lind, 277 AD2d 344,
supra).
Based upon the foregoing, plaintiffs' motion is GRANTED to the
extent that the moving defendants shall provide plaintiffs with the last known
address of Maria Lopez, and shall produce Gail Schneider for a deposition, both
within thirty (30) days of service of the instant Order upon the moving defendants
with notice of entry. The deposition of Ms. Schneider shall be adjourned only
upon a stipulation of the parties which is to be So-Ordered by the Court.
The moving defendants' cross-motion is GRANTED to the extent
that plaintiffs shall provide the moving defendants with an authorization for
plaintiff ARLENE MORANTE's medical records from Dr. Robert Waldbaum within
thirty (30) days of service of the instant Order upon plaintiffs with notice of entry.
The foregoing constitutes the decision and Order of the Court.
/'~'
Dated: April 13, 2012
>d~
,RO,Jt:
:JOSEPH FARNETI
(ftcting
FINAL DISPOSITION
X
Justice Supreme Court
NON-FINAL DISPOSITION
