Lofton v Grieco

[*1] Lofton v Grieco 2012 NY Slip Op 52003(U) Decided on October 2, 2012 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2012
Supreme Court, Nassau County

Sabrina Lofton, As Administratrix of the Estate of MICHAEL LOFTON, Deceased and SABRINA LOFTON, Individually, Plaintiffs,

against

Michael B. Grieco, M.D., GURBHUSHAN BASRA, M.D., STEVEN D. WECK, M.D., NORTH SHORE RADIOLOGY AT GLEN COVE, P.C. and GLEN COVE HOSPITAL, Defendants.



005621/11



Counsel for Plaintiffs:

Sullivan Papain Block McGrath & Cannavo P.C.

Mary Anne Walling, Esq.

55 Mineola Blvd

New York, NY 11501

(516) 742-0707

Counsel for Defendant Glen Cove Hospital:

Shaub, Ahmuty, Citrin & Spratt, LLP

Matthew Frank, Esq.

1983 Marcus Ave.

Lake Success, NY 11042

(516) 488-3300

Counsel for Defendant Dr. Grieco:

Montfort Healy, McGuire & Salley

Camille Hansen, Esq.

840 Franklin Ave.

Garden City, NY (516) 748-4082

Randy Sue Marber, J.

Upon the foregoing papers, the Order to Show Cause (Mot. Seq. 01) brought pursuant to CPLR §§ 3101, 3120 and 3122 by the Plaintiffs seeking an Order (a) compelling the Defendant, GLEN COVE HOSPITAL (hereafter "Hospital") to produce the original record of admission of the Decedent for a non-destructive examination, inspection and photographing by the Plaintiffs' forensic handwriting expert; (b) granting the Plaintiffs a protective order against the Defendants, GURBHUSHAN BASRA, M.D., STEVEN D. WECK, M.D., NORTH SHORE RADIOLOGY AT GLEN COVE, P.C. and GLEN COVE HOSPITAL, seeking school and daycare records of the Decedent's children; (c) denying the Defendants a further deposition of the Plaintiff regarding the Decedent's employment [FN1]; and (d) setting a new date for the completion of discovery reflecting compliance with the decision of the Court; the Motion (Mot. Seq. 02) by the Defendant, MICHAEL B. GRIECO, M.D. (hereinafter "Greico") which seeks relief that in the event the Plaintiffs are granted an Order compelling the Defendant, Hospital, to produce the admission record for forensic inspection, that he also be granted such relief; and the Motion (Mot. Seq. 03) by the Defendants, GURBHUSHAN BASRA, M.D., STEVEN D. WECK, M.D. and NORTH SHORE RADIOLOGY AT GLEN COVE, P.C., granting them an Order discontinuing the action against them, are decided as provided herein.

On February 16, 2010, the Decedent, MICHAEL LOFTON, was admitted as a patient at the Defendant, Hospital, having been brought to the Emergency Room. The Defendant, Grieco, was the doctor assigned to the Decedent's case. The Plaintiffs contend that the Decedent's condition required immediate surgery. However, the Defendant, Grieco, contends that the Decedent was informed of the need for surgery but refused same. This contention is documented in the progress section of the hospital record. The Defendant, Grieco, also contends that the Decedent later changed his mind and agreed to the surgery, but he arrested and died before the surgery could be performed. However, the Plaintiffs allege that the notes in the hospital record were not made contemporaneously and desire to have a forensic handwriting expert examine the original record to determine if all the notes in the hospital record were made at the same time.

In opposition to the Plaintiffs' application to have the original hospital record examined by [*2]a forensic handwriting expert, the Defendant, Grieco, argues that the Plaintiffs have not demonstrated a "reasonable basis to conduct a forensic examination of the hospital chart". (See Affirmation in Opposition of Camille L. Hansen, Esq. dated May 30, 2012 at ¶ 6) Likewise, the Defendant, Hospital, asserts that the Plaintiffs "request to test the original hospital chart is without reasonable basis, would set a dangerous precedent, and will cause all defendants to incur unnecessary costs". (See Affirmation in Opposition of Matthew M. Frank, Esq. dated April 27, 2012 at ¶ 4)

In reply to the Defendants' opposition to their application, the Plaintiffs' counsel argues that the Defendants contentions are without merit. Specifically, the Plaintiffs' counsel states that the Defendant, Grieco, failed to comply with the Hospital's policies regarding Informed Refusal. As such, they contend there is sufficient basis to establish that there is a possibility that the note regarding the refusal to have surgery in the hospital record was not written contemporaneously with the entire note. Furthermore, the Plaintiffs' counsel argues that there is no harassment or overburdening of the Defendants simply by allowing the hospital record to be inspected by a handwriting expert.

CPLR § 3101 (a) sets forth the criterion for disclosure under the CPLR, requiring "full disclosure of all matter material and necessary 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 irrelevant information. Osowski v. AMEC Constr. Mgt., Inc., 69 AD3d 99, 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 will assist preparation for trial by sharpening the issues and reducing delay and prolixity." The test to determine if the information sought is material and necessary is one of usefulness and reason." Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406-407 (1969).

The principle of full disclosure does not, however, give a party 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 AD3d 925 (2d Dept. 2011).

The Plaintiffs' counsel has articulated a reasonable basis to obtain the discovery requested. A non-destructive forensic examination of the hospital record to determine if the entry in question was made simultaneously with the rest of the notes is not unreasonable, will not cause an undue burden on the Defendants and is not intended to harass or annoy the Defendants.

The Court will now address the Defendants, GURBHUSHAN BASRA, M.D., STEVEN D. WECK, M.D. and NORTH SHORE RADIOLOGY AT GLEN COVE, P.C. motion (Mot. Seq. 03) seeking to discontinue the action as against them pursuant to CPLR § 3217. "While the authority of a court to grant or to deny an application made to it pursuant to CPLR § 3217 ... by a party seeking voluntarily to discontinue litigation is within its sound discretion, ordinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted". Tucker v. Tucker, 55 NY2d 378 (1982). Accordingly, in the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted. Expedite Video Conferencing Servs., Inc. v. Botello, 67 AD3d 961 (2d Dept. 2009).

The Defendant, Grieco's counsel submits an Affirmation whereby the Defendant takes no position with respect to the Plaintiffs' discontinuance of the action against the Defendants, [*3]GURBHUSHAN BASRA, M.D., STEVEN D. WECK, M.D. and NORTH SHORE RADIOLOGY AT GLEN COVE, P.C. However, the Defendant requests to reserve any rights under Articles 14 and 16 of the CPLR and §15-108 of the General Obligations Law. There not being any true opposition to the Defendants' motion, said motion should be granted.

Accordingly, it is hereby

ORDERED, that the Order to Show Cause (Mot. Seq. 01) brought pursuant to CPLR §§ 3101, 3120 and 3122 by the Plaintiffs seeking an Order compelling the Defendant, GLEN COVE HOSPITAL to produce the original record of admission of the Decedent for a non-destructive examination, inspection and photographing by the Plaintiffs' forensic handwriting expert is GRANTED; and it is further

ORDERED, that the Motion (Mot. Seq. 02) by the Defendant, MICHAEL B. GRIECO, M.D., which seeks an Order compelling the Defendant, GLEN COVE HOSPITAL, to produce the original record of admission of the Decedent for a non-destructive examination, inspection and photographing by the Defendant's forensic handwriting expert should the Plaintiff be granted said relief, is GRANTED; and it is further

ORDERED, that the Defendant, GLEN COVE HOSPITAL, is to produce the original record of admission of the Decedent at the office of their counsel, for a non-destructive examination, inspection and photographing by the Plaintiffs' and the Defendant, MICHAEL B. GRIECO, M.D.'s forensic handwriting experts within thirty (30) days of the date of this Order, to be held at Glen Cove Hospital; and it is further

ORDERED, that the Defendants, GURBHUSHAN BASRA, M.D., STEVEN D. WECK, M.D. and NORTH SHORE RADIOLOGY AT GLEN COVE, P.C. motion, seeking an order pursuant to CPLR § 3217, to discontinue the above entitled action against them, is GRANTED; and it is further

ORDERED, that the Plaintiffs' counsel shall serve a copy of this Order upon all counsel for the Defendants, pursuant to CPLR § 2103 (b) 1, 2 or 3 within ten (10) days of the date of this Order.

This constitutes the decision and Order of the court.

DATED:Mineola, New York

October 2, 2012

______________________________

Hon. Randy Sue Marber, J.S.C. Footnotes

Footnote 1:The branches of the Plaintiffs' Order to Show Cause lettered (b) and (c) were resolved bythe Parties and will not be considered by the Court.