Ravit v Simon Props. Group, Inc.

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Ravit v Simon Props. Group, Inc. 2012 NY Slip Op 33242(U) February 8, 2012 Supreme Court, New York County Docket Number: 112723/2010 Judge: Emily J. Goodman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 2/14/2012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: EMILY JANE GOOUIVIAN PART Justice Index Number: 112723/2010 RA VIT, ZELDA IT INDEX N O . - - - - MOTION DATE _ _ __ vs. SIMON PROPERTY GROUP, INC. SEQUENCENUMBER:001 MOTION SEQ. NO. - - - COMPEL The followlng papera, numbered 1 to _ _ , were read on thl1 motion to/for _ _ _ _ _ _ _ _ _ _ _ __ I No(1). L../.:i:....-t_3_ _ __ I No(1). _.9'-.-.:;....)_·_ __ I NoJ;). __,'~--- Notice of Motion/Order to Show Cauee - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits . Upon the foregoing papenJ, It Is ordered that this motion Is J._,_c_,~ '1 Ji.._ ~ ~~~~. / FILED FEB 14 2012 NE YORK UNTY L RK'S OFFICE 1. CHECK ONE: ..................................................................... D GOOIJiViAN 0 -FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0GRANTED ~DENIED 3. CHECK IF APPROPRIATE: ................................................ DsEnLE ORDER D DO NOT POST 0 GRANTED IN PART 0 OTHER 0 SUBMIT ORDER D FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: PART 17 -----------------------------------x ZELDA RAVIT and HERBERT RAVIT, Plaintiffs, Index No.: 112723/2010 DECISION & ORPER -againstSIMON PROPERTIES GROUP, INC., and HOLLISTER co. I FILED FEB 14 2012 Defendants. -----------------------------------x NEW YORK COUNTY CLERK'S OFFICE EMILY JANE GOODMAN, J.S.C.: Plaintiffs sue defendants for injuries arising from a fall down indoor stairs at the Roosevelt Field Mall on Long Island. During depositions, defendants learned that a few hours prior to her fall, Ms. Ravit visited her opthalmologist. In motion sequence 001, defendants seek Ms. Ravit's opthalmologists records for July 20, 2010, the date of the incident, on the theory that her eyesight was compromised from treatments she underwent that date (motion sequence 001) . In a separate motion, plaintiffs move to strike the answer for failure to produce a copy of relevant surveillance videotape, showing Ms. Ravit's fall, in "a format that is viewable to plaintiff's counsel" (motion sequence 002) . Doctor's Records Plaintiffs oppose releasing that record on the ground that Ms. Ravit has not placed her eyesight at issue, and the , record is protected by the physician~patient privilege. They [* 3] cite to Iseman v. Delmar Medical-Dental Building, Inc. 276 (3rd (113 AD2d Dept 1985]), which held that the physician-patient privilege nextends to pretrial matters, and plaintiff's response to questions posed by her adversary at an examination before trial does not constitute voluntarily disclosing privileged information so as to warrant defendant's entitlement ta depose her personal physician" (id.). While the information regarding treatment on her eyes mere hours before her fall appears relevant, the plaintiff has not placed her eyesight into issue, and her responses to defendant's questions do not waive her physician-patient privilege. Further, defendants never questioned Ms. Ravit about what procedures she had at the opthalmologist, when they had the opportunity to do so at her deposition. Exchanging otherwise privileged medical records is not a substitute for asking direct questions to the party under oath. Defendant argues that Iseman should not apply because, here, it only seeks to review a medical record and not take a doctor's deposition. result. This distinction does not change the Accordingly, the holding in Iseman is controlling, and the motion to compel is denied. Surveillance Vide9 IGPe Plaintiffs argue that the defendants have refused to comply with a compliance conference order requir;ng the turn over [* 4] of surveillance tapes that showed Ms. Ravit's fall. They state that Defendants have produced a copy of the video in its "native format," which is unviewable, and demand that Defendants provide a copy in the format that Plaintiffs counsel can view. Defendants argue that they have turned over the only copy of the evidence that exists, and that Plaintiffs' counsel was invited to view the video (which was in its native format) at Defendants' counsel's office. Plaintiffs' counsel did so. Further, defendants provided instructions on how to view the files in the "native format" (Bermack Aff, Ex. B). The instructions explain how to download and install a "video codec" for "windows media player," a common electronic media viewer available on most, if not all, modern computers. Plaintiffs' respond that the instructions do not work. Simply put, this dispute does not warrant the striking of the answer. Defendants have materially complied with the requirements of the CPLR. They affirm that they have turned over a copy of the video data in the same (and only) format that they have. Plaintiffs' do not deny they have possession of that data, and the instructions on how to view it. Moreover, plaintiffs have not described a format that would be satisfactory. To the extent that the physical copy provided to the plaintiffs could be defective, Defendants are directed to supply plaintiffs with another copy of the video in its "native format" . -3- [* 5] within twenty days of entry of this order. In light of the foregoing, it is hereby ORDERED that defendants' motion to compel (Motion Sequence 001) is denied; and it is further ORDERED that plaintiffs' motion to strike the answer (Motion Sequence 002) is denied; and it is further ORDERED that Defendants are directed to supply Plaintiffs with a new copy of the relevant surveillance video within twenty days of entry of this order. FILED / FEB 14 2012 Dated: February(', 2012 Enter: WYORK CLERK'S OFFICE I J.S. EMILY JANE -4-

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