Derby v Bitan

[*1] Derby v Bitan 2012 NY Slip Op 50538(U) Decided on March 27, 2012 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2012
Supreme Court, Dutchess County

Colleen Derby, Plaintiff,

against

Dr. Fabian Bitan, Defendant.



8748/07



ROSALEE CHARPENTIER, ESQ.

Attorney for Plaintiff

209 Clinton Avenue

Kingston, New York 12401

JOHN J. MASTRANTONIO, ESQ.

AARONSON, RAPPAPORT, FEINSTEIN

& DEUTSCH, LLP

Attorneys for Defendant

DR. FABIAN BITAN

and NON-PARTY, BETH ISRAEL MEDICAL CENTER

600 Third Avenue

New York, New York 10016

James D. Pagones, J.

Defendant Dr. Fabian Bitan and nonparty Beth Israel Medical Center move for an order pursuant to CPLR §2304 quashing plaintiff's subpoena duces tecum served on Beth Israel Medical Center. The plaintiff opposes the instant application. For the reasons herein stated, it is ordered that the defendant and nonparty's motion is granted and the subpoena is quashed.

On or about March 18, 2010, the plaintiff filed a note of issue attesting to the completion of all discovery. On January 3, 2012, plaintiff caused to be served on nonparty Beth Israel Medical Center a document entitled "Judicial Subpoena Duces Tecum" which requested the production of an array of [*2]documentation from the nonparty, including certain documents relating to the medical treatment rendered to the plaintiff by the defendant. There is no bona fide dispute that the subject subpoena was neither issued by the court nor signed by an attorney.

Initially, the court finds that the plaintiff's subpoena is improper in that it seeks to reopen discovery two years after the plaintiff's filing of a note of issue. The plaintiff has failed to make the requisite showing of unusual or unanticipated circumstances sufficient to compel the post-note of issue disclosure from a nonparty. (NYCRR §202.21; Filippazzo v. Kormoski, 75 AD3d 618 [2nd Dept. 2010].)

Moreover, even if the court were to permit the plaintiff to engage in additional discovery, the plaintiff's subpoena is unsigned and statutorily defective. CPLR §3101(a)(4) requires that, where disclosure is sought from a nonparty, the nonparty shall be given notice stating the circumstances or reasons such disclosure is sought or required. (Kooper v. Kooper, 74 AD3d 6 [2nd Dept. 2010] citing Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104 [1st Dept. 2006].) Additionally, CPLR §3122 requires that "a medical provider served with a subpoena duces tecum requesting the production of a patient's medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization from the patient." There can be no bona fide dispute that in addition to being unsigned, the plaintiff's subpoena lacks proper notice as required by CPLR §3101(a)(4) and is not accompanied by a written authorization from the plaintiff.

Therefore, it is ordered that the defendant and nonparty's

motion to quash the subpoena is granted.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion..............................1-2

Affirmation-Mastrantonio.................1-6

Exhibits.................................A-B

2.Affirmation in Opposition-Charpentier.........1-3

Exhibits.................................1-3

3.Reply Affirmation-Mastrantonio................1-4

The foregoing constitutes the decision and order of the

Court.

Dated:Poughkeepsie, New York

March 27, 2012

[*3]ENTER

HON. JAMES D. PAGONES, A.J.S.C.