Palmiero v 417 East 9th St. Assoc., LLC

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Palmiero v 417 East 9th St. Assoc., LLC 2012 NY Slip Op 32836(U) November 16, 2012 Sup Ct, New York County Docket Number: 106138/10 Judge: Eileen A. Rakower 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 121312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: /cf Justice - Index Number : 106138/2010 INDEX NO. PALMIERO, JOHN vs. 41 7 EAST 9TH STREET ASSOCIATES SEQUENCE NUMBER : 001 MOTION DATE MOTION SEQ. NO. - ORDER OF PROTECTION The following papers, numbered I to , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits IW s ) . INo(s)INo(s). - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is NEW YORK COUNTY CLERK'S OFFICE Dated: 1. CHECK ONE: ..................................................................... ........................... MOTION IS: CHECK IF APPROPRIATE: ................................................ 2. CHECK AS APPROPRIATE: 3, 0 CASE DISPOSED 0DENIED GRANTED SETTLE ORDER 0BO NOT POST 0 NON-FINAL DlSPOSlflON UGRANTED IN PART 0OTHER aSUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] Index No. 106138/10 Plaintiffs, - against - DECISION and OJXDER 417 EAST gn' STREET ASSOCIATES, LLC, JAKOBSON PROPERTIES, LLC, PETER JAKOBSON, PETER JAKOBSON, JR, THOMAS C. TUNG and CD DESIGN, INC., Third-party Plaintiffs, -against- Mot. Seq. 001 FILED NOV 26 2012 DAVID MAHLER, HON. EILEEN A. RAKOWER, J.S.C. This action was commenced to recover damages for personal injuries sustained by plaintiff, John Palmiero, on December 3, 3009, as a result of a fire that occurred in the apartment that he rented from defendants/landlords 41 7 E. gthStreet Associates, LLC, Jakobson Properties, LLC, Peter Jacobson, and Peter Jackobson, Jr. At the time 1 [* 3] of the incident, Plaintiff alleges that construction work was being done under the supervision of defendants Thomas C. Dung and CD Design, Inc. As a result of the fire, Plaintiff alleges that he was placed in coma that required him to be hospitalized for several months due to the effects of smoke inhalation that he had sustained. In Plaintiffs Verified Bill of Particulars, Plaintiff alleges to have sustained permanent neurological injuries and permanent injuries to his lungs, pancreas, lymph nodes, arteries, and colon, as well as other injuries, as a result of the fire. Plaintiff also alleges fatigue, associated and concomitant impairments and negative effects upon plaintiffs pre-accident enjoyment of life, day to day existence, activities, functions and involvements, inability to resume pre-fire modus vivendi, and inability to resume pre-fire social relations, contacts, and participation. Plaintiff moves, pursuant to CPLR $3 101, 3 103, and 3 122, for an Order granting Plaintiff a protective order from Defendants Notice of Discovery and Inspection, which demand records prior to the date of the loss, including employment records from Plaintiffs prior employer, GFI Group, treatment records fi-om a social worker, Marilyn Siegal, and other pre date of loss records. Plaintiff claims that these records have no relevance to the issues concerning the alleged negligence. Plaintiff requests that it be allowed to present the records in dispute to this Court for an incamera inspection. Defendants 4 17East 9* Street Associates, LLC, and Jakobson Properties, LLC, oppose Plaintiff s motion for a protective order and cross move to strike Plaintiffs complaint for violating three Court Orders, or in the alternative, to compel Plaintiff to provide discovery. Defendants CD Design, Inc. and Thomas C. Tung also oppose Plaintiffs motion and support the cross motion. Specifically, Defendants seek an Order directing that Plaintiff be compelled to provide an authorization for the release of PIaintiff s employment records from GFI Group and for the records regarding his treatment for alcohol and drug abuse prior to the date of the incident and appear for the Court ordered physical examinations. Defendants contend that Plaintiffs file from GFI Group are relevant as to plaintiff s credibility. Defendants contend that while Plaintiff testified under oath that he voluntarily resigned from his position, was not terminated, and that his alcohol use had nothing to do with his departure, the hospital records contradict his testimony and states that plaintiff was abusing alcohol during this period and was fired fi-om his 2 [* 4] job in July 2009. Defendants also contend that Plaintiff failed to appeal either the Preliminary Conference Order dated September 2 1, 20 10, wherein plaintiff was to provide employment authorizations for the two years before the date of the accident and one year after the accident, or the March 15,201 1 Compliance Conference Order, wherein plaintiff was to provide these employment authorizations within 30 days, or the March 20,20 12 Compliance Conference Order, wherein plaintiff was to provide authorizations for Bear Steams and any employment records for two years prior to the date of the accident and 1 year after within 30 days. In addition, Defendants contend that authorizations for the release of Plaintiffs treatment for his prior alcohol and drug abuse are relevant in order to determine the extent to which such use may have contributed and/or complicated the Plaintiffs injuries and his recovery. Defendants annex hospital records from New York Presbyterian Hospital from December 2009that state that patient is a heavy ETOH user, up to one handle [half-gallon] of rum per day at times. He is also a heavy smoker. Defendants state that the information is also admissible to support an expert s opinion that a plaintiff was under the influence of drugs or the effects of withdrawal at the time of an incident. Defendants state that the information is also relevant as to Plaintiffs credibility. Furthermore, Defendants state that the Preliminary Conference Order and Compliance Conference Orders directed the Plaintiff to appear for physical examinations and that they designed Drs. Adler, Dr. Block, and Dr. Lubliner to examine the plaintiff. Defendants state that Plaintiff failed to appear. Plaintiffs papers do not address the portion of Defendants cross motion that seek to compel Plaintiff to appear for the Court ordered physical examinations. As such, Plaintiff has not opposed the relief. CPLR $3 10l(a) generally provides that [tlhere shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. The Court of Appeals has held that the term material and necessary is to be given a liberal interpretation in favor of the disclosure of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity, and that [tlhe test is one of usefulness and reason (Allen v. CromwellCollier Publishing Co., 2 1 N.Y.2d 403, 406 [ 19681). It is well settled that a party must provide duly executed and acknowledged 3 [* 5] written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR [3 1011 . . . when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue. Garcia v. 145Edwards LLC, 2012 N.Y. Misc. LEXIS 757 (N.Y. Sup. Ct. Feb. 15,2012) (citations omitted), 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. (Id.).(citations omitted). However, CPLR $3 103(a) provides that 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. The party moving for a protective order bears the burden of demonstrating that the disclosure sought is improper, and must offer more than conclusory assertions that the requested disclosure is overbroad or unduly burdensome (see Sage Realty Corp. v. Proskauer Rose, L.L.P., 1 A.D.2d35,40 [1st Dept. 19981). It is well established 25 that failure to move timely for a protective order precludes inquiry into the propriety of the discovery demands unless they are palpably improper. (Alaten Co. v. Sold Management Corp., 18 1 A.D. 2d 466 [ 1st Dept. 19921). Here, as for Defendants request that Plaintiff be compelled to provide an authorization for the release of Plaintiffs employment records from GFI Group, not only did Plaintiff fail to timely move for a protective order, but Plaintiff agreed to produce them in the Preliminary Conference Order dated September 2 1, 20 10 and subsequent Compliance Conference Orders. As such, the Court finds that Plaintiff has waived the asserted lack of relevancy and privilege and is not entitled to the protective order that it seeks with respect to the requested authorization. 4 [* 6] As for Defendants request that Plaintiff be compelled to provide an authorization for the release of Plaintiffs records regarding his treatment for alcohol and drug abuse prior to the date of the incident, Plaintiff does not dispute that he has placed his mental condition in issue by, for example, asserting a claim based on associated and concomitant impairments and negative effects upon plaintiffs preaccident enjoyment of life, day to day existence, activities, functions and involvements, inability to resume pre-fire modus vivendi, and inability to resume pre-fire social relations, contacts, and participation. However, due to the confidential nature of these records sought, the Court will review the documents i camera to n ensure that only material and necessary information is disclosed. Turning now to Defendants motion to strike or preclude, pursuant to CPLR $3 126, a court may impose sanctions when a party repeatedly and persistently fails to comply with several disclosure orders issued by the court. (Yoon v. Costello, 29 A.D.3d 407[1st Dept. 20061). Plaintiff does not show how Defendants failure to produce requested discovery rises to the level of noncompliance necessary to impose the sanctions permitted under CPLR $3 126. However, Defendants are entitled to all outstanding discovery as set forth in this decision. The parties are reminded that there is a compliance conference in this matter scheduled on December 18,2012 at 9:30 a.m. at 80 Centre Street, Room 327. Wherefore, it is hereby, ORDERED that Plaintiff John Palmiero s motion for a protective order is granted only to the extent that Plaintiffs records regarding his treatment for alcohol and drug abuse prior to the date of the incident shall be produced for an i camera n inspection; and it is further ORDERED that Defendants 417 E. gth Street Associates, LLC, Jakobson Properties, LLC, Peter Jacobson, and Peter Jackobson, Jr. s motion is granted to the extent that Plaintiff John Palmier0 shall produce the requested employment and medical authorizations within 20 days ofreceipt ofthis order with notice ofentry; and it is further, ORDERED that Plaintiff John Palmier0 shall appear for the court-ordered physical examinations. 5 [* 7] This constitutes the decision and order of the court. All other relief requested is denied. EILEEN A. RAKOWER, J.S.C. ' 6 NEW YORK COUNTY CLERK'S OFFICE

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