Moore v Metropolitan Transp. Auth.

[*1] Moore v Metropolitan Transp. Auth. 2016 NY Slip Op 51891(U) Decided on August 29, 2016 Supreme Court, Bronx County Barbato, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2016
Supreme Court, Bronx County

Alexina Moore, Plaintiff,

against

Metropolitan Transportation Authority, METRO-NORTH COMMUTER RAILROAD COMPANY, METRO-NORTH RAILROAD AND WILLIAM ROCKEFELLER, Defendants.



302614/14



Counsel for Plaintiff: Michesltein & Associates, PPLC

Counsel for Defendant MTA: Landman, Corsi, Ballaine, PC
Ben R. Barbato, J.

In this action for alleged negligence arising from a train derailment, plaintiff moves seeking an order pursuant to CPLR § 2221(a) rearguing this Court's Decision and Order dated May 5, 2016 to the extent it granted defendants METROPOLITAN TRANSPORTATION AUTHORITY, METRO-NORTH COMMUTER RAILROAD COMPANY, and METRO-NORTH RAILROAD's (hereinafter "the MTA") motion pursuant to CPLR § 3126 and § 3124, seeking to strike plaintiff's complaint for failure to provide discovery and/or compel her to provide discovery. Plaintiff contends, inter alia, that in ordering disclosure of plaintiff's HIV related medical records without abiding by the mandates of Public Health Law § 2785, the Court misapplied prevailing law. The MTA and defendant WILLIAM ROCKEFELLER (Rockefeller) oppose the instant motion asserting that the Court neither misapplied the facts nor misapplied prevailing law.

For the reasons that follow hereinafter, plaintiff's motion is granted [FN1] .

According to the bill of particulars, the instant action is for alleged personal injuries sustained by plaintiff on December 1, 2013, when while a passenger on a train owned by the MTA and operated by Rockefeller, it derailed. Plaintiff alleges that the derailment was caused by defendants' negligence, said negligence causing plaintiff to sustain injuries. Plaintiff alleges that she sustained a host of injuries, including a fractured ankle. She also alleges that "[t]he above [*2]referred accident caused [her] stress/depression disorders and/or exacerbated a pre-existing [] condition thereat."

On May 5, 2016, upon the MTA's motion seeking to strike plaintiff's complaint for failing to provide discovery and/or compel her to provide the discovery requested, Judge Salman issued an order wherein he mandated, inter alia, that plaintiff appear for a further deposition solely related to her HIV condition. Judge Salman also ordered that plaintiff provide authorizations allowing defendants to obtain her HIV related medical records.

Plaintiff's motion seeking reargument of Judge Salman's decision is granted solely to the extent of articulating the reasons - as required by Public Health Law § 2785(5) - upon which his order mandating disclosure of plaintiff's HIV medical records was premised.

CPLR § 2221(d)(1), authorizes the reargument of a prior decision on the merits and states that such motion

shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.

Accordingly, [a] motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided

(Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]; see also, Fosdick v Town of Hemstead, 126 NY 651, 652 [1891]; Vaughn v Veolia Transp., Inc., 117 AD3d 939, 939 [2d Dept 2014]). Thus, because reargument is not a vehicle by which a party can get a second bite at the same apple, a motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original motion (Foley at 567).

A motion to reargue, must be made within 30 days after service of a copy of the underlying order with notice of entry (CPLR § 2221[d][3]; Perez v Davis, 8 AD3d 1086, 1087 [4th Dept 2004]; Pearson v Goord, 290 AD2d 910, 910 [3rd Dept 2002]).

Here, while the record before this Court clearly supported disclosure of the foregoing records, in neglecting to articulate why such records were ordered and ordering that the record be sealed, the Court ran afoul of § 2785. Thus, the Court misapplied prevailing law.

As noted above, the Court properly declined to strike plaintiff's complaint, since on this record, prevailing law didn't warrant it. However, despite properly ordering plaintiff to disclose her HIV related medical records, the Court failed to articulate the reasons upon which it issued its order and failed to order the sealing of this record as required by Public Health Law § 2785(3). Thus, the Court now grants reargument to correct its omission.

"The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits" (Rios v Donovan, 21 AD2d 409, 411 [1st Dept. 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is "material and necessary" to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The terms

material and necessary, are, in our view, to be interpreted liberally 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 is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable

(id. at 406 [internal quotation marks omitted]). Accordingly, whether information is discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable if it "may lead to the disclosure of admissible proof" (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, [*3]"unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). The trial court has broad discretion in determining the scope and breath of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court's determinations should not be disturbed (id.).

It is well settled that in suing for personal injuries and putting his/her physical and mental condition in issue, a party waives the physician-patient privilege and must, therefore, generally disclose pertinent medical records (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456 [1983]; Diamond v Ross Orthopedic Group, P.C., 41 AD3d 768 [2d Dept 2007]; Avila v 106 Corona Realty Corp., 300 AD2d 266, 267 [2d Dept 2002]). Disclosure of medical information is, however, generally limited to those conditions which are placed at issue in the relevant lawsuit, meaning those conditions on which the suit is premised (Geraci v Natl. Fuel Gas Distrib. Corp., 255 AD2d 945, 946 [4th Dept 1998] ["In bringing an action for personal injury, a plaintiff waives the physician/patient privilege with respect to any physical or mental condition affirmatively placed in controversy."]; Dibble v Consol. Rail Corp., 181 AD2d 1040 [4th Dept 1992] [Plaintiff directed to disclose medical information for body parts alleged to have been injured in his bill of particulars.]). However, when a plaintiff makes broad allegations regarding physical injury and mental anguish, a "defendant is entitled to full disclosure regarding any medical or psychological treatment that the plaintiff may have received" (Avila at 267; Molesi v Rubenstein, 294 AD2d 546, 546 [2d Dept 2002]; Schager v Durland, 286 AD2d 725 [2d Dept 2001]). Under the foregoing circumstances, unrelated preexisting injuries and/or conditions become material and necessary in the mitigation of potential damages (Geraci at 946; Doe v Sutlinger Realty Corp., 96 AD3d 898, 899 [2d Dept 2012] ["Furthermore, the Supreme Court properly found that the plaintiff's life expectancy would be relevant to an award of damages, and that ignoring the plaintiff's HIV status would violate the defendant's right to a fair trial by seriously hindering the defendant's ability to mount a defense based on a claimed shortened life expectancy."]; Doe v G.J. Adams Plumbing, Inc., 8 Misc 3d 610, 614 [Sup Ct 2005]). Preexisting unrelated conditions also become material and necessary, and, thus, discoverable when it is claimed that an accident upon which a lawsuit is premised exacerbated or aggravated an underlying condition (McGlone v Port Auth. of New York and New Jersey, 90 AD3d 479, 480 [1st Dept 2011] ["The court also properly directed plaintiff to provide authorizations for all medical records unrestricted by date as sought by defendants in prior discovery requests. Plaintiff averred in his bill of particulars that the injuries he allegedly sustained as a result of the subject accident aggravated or exacerbated underlying conditions that were asymptomatic before the accident, and that he was disabled as a result. In light of his averments, plaintiff voluntarily placed his physical condition in issue; therefore, defendants are entitled to discovery to determine the extent, if any, that plaintiff's claimed injuries are attributable to accidents other than the one at issue here" (internal quotation marks omitted.)]; Rega v Avon Products, Inc., 49 AD3d 329, 330 [1st Dept 2008]).

With respect to disclosure of HIV records, it is well settled that the proponent seeking to discover such records must establish that such records exist or that the person whose HIV records are sought, in fact, has HIV (Budano v Gurdon, 97 AD3d 497, 499 [1st Dept 2012] ["Similarly in this case, it is impossible to tell from defendant's submissions, also consisting almost exclusively of the affirmation of an attorney not claiming to have personal knowledge, whether plaintiff has a drug or alcohol dependency or whether he has HIV. Defendant's counsel asserted that plaintiff admitted in his deposition that he had been treated for addiction, but he failed to annex the transcript so it is impossible for us to independently evaluate it. The affirmation was completely silent on the issue of HIV. Further, simply because plaintiff's counsel represented in his submission that Lincoln Hospital could not feasibly redact information concerning chemical dependency and HIV status from plaintiff's records does not establish that plaintiff had a [*4]substance abuse problem or was HIV positive."]).

Moreover, disclosure of HIV records is governed by Public Health Law § 2785 (see generally Rahman v Pollari, 107 AD3d 452, 454 [1st Dept 2013]; Doe, 96 AD3d at 899; Del Terzo v Hosp. for Special Surgery, 95 AD3d 552-553 [1st Dept 2012]; Plaza v Estate of Wisser, 211 AD2d 111, 122 [1st Dept 1995]). Section 2785(1) proscribes disclosure of HIV related information unless ordered by "a court of record of competent jurisdiction in accordance with the provisions of this section." Section 2785(2) lists the circumstances under which a court can order disclosure of HIV related information, and includes "a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding." Section 2785(3) requires that any order mandating disclosure of HIV related information include a directive sealing all papers on which the application is premised and that such papers only be made available "to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal." Section 2785(4) requires that the person whose HIV related records are sought be notified and given an opportunity to respond in writing. Lastly, § 2785(5) requires that any court order authorizing disclosure of HIV related information contain reasons upon which the order was issued. Specifically,

[i]n assessing compelling need and clear and imminent danger, the court shall provide written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports each finding, and shall weigh the need for disclosure against the privacy interest of the protected individual and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination

(Public Health Law § 2785[5]).

Based on the foregoing, it is well settled the burden for disclosure of HIV related information is not that applicable to disclosure under CPLR § 3101 - materiality and necessity - but rather, whether there is a compelling need for disclosure of such records (Rahman at 454 [This Court has rejected as flawed the argument that a compelling need under Public Health Law § 2785(2) can be established by a showing that the information sought is material and necessary within the purview of CPLR 3101(a)" (internal quotation marks omitted).]; Doe, 96 AD3d at 899; Del Terzo at 553; Plaza at 122-123 ["Once the court has determined that there exists a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding, its inquiry is at end" (internal citation and quotation marks omitted).]).

It is well settled that "[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). However, since striking a party's pleading for failure to provide discovery is an extreme sanction it is only warranted when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Accordingly, where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party's pleading is unwarranted (Palmenta v. Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party's pleadings warranted merely by virtue of "imperfect compliance with discovery demands" (Commerce & Industry Insurance Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999]). Instead, discovery sanctions should only ensue when there is a willful failure to "disclose information that the court has found should have been disclosed" (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]). Because willful and contumacious behavior can be readily inferred upon a party's repeated non-compliance with court orders mandating discovery (Pryzant at 383), only [*5]when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, is the striking of pleadings warranted (Moog v City of New York, 30 AD3d 490, 491 [2d Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]).

Here, a review of the record indicates that on November 19, 2015, when plaintiff was deposed, the MTA's attempt to question her regarding her HIV condition was precluded by her attorney, who objected to said inquiry as irrelevant. The line of questioning was marked for a ruling and the deposition was concluded. Thereafter, on November 20, 2015, the MTA served plaintiff with a post-deposition discovery demand wherein it requested, inter alia, HIPAA compliant and unrestricted authorizations to obtain medical records from a list of plaintiff's medical providers. On January 17, 2016, plaintiff provided the foregoing authorizations. However, she only authorized the providers to provide medical records from the date of the instant accident - December 1, 2013 - forward. Thereafter, on March 30, 2016, the MTA moved seeking discovery sanctions for plaintiff's failure to provide unrestricted authorizations, which would allow it to discover the entirety of plaintiff's medical history. Particularly, the MTA sought to discover records regarding plaintiff's "significant medical condition", about which plaintiff was questioned at her deposition, but whose answers were precluded by her counsel. Significantly, the MTA argued that the foregoing medical records were discoverable insofar as plaintiff pleaded that the instant accident exacerbated a prior medical condition and because she also made broad allegations regarding this accident and the stress and depression it caused.

After oral argument, wherein the Court was clearly apprised that plaintiff had HIV, the Court issued its order compelling plaintiff to provide records related to the aforementioned condition and to submit to another deposition related thereto.

Contrary to plaintiff's assertion, the record amply supports the Court's directive compelling plaintiff to disclose medical records and testify regarding her HIV condition. It is well settled that the proponent seeking to discover HIV records must establish that such records exist or that the person whose HIV records are sought in fact has HIV (Budano at 499). Significantly, while it is well settled the burden for disclosure of HIV related information is not that applicable to disclosure under CPLR § 3101 - materiality and necessity - but rather, whether there is a compelling need for disclosure of such records (Rahman at 454; Doe, 96 AD3d at 899; Del Terzo at 553; Plaza at 122-123), it has been held that disclosure of such records is warranted when relevant to a plaintiff's life expectancy, which is a measure of damages (Doe, 96 AD3d at 899). Moreover, it is also well settled that preexisting unrelated conditions also become material and necessary, and, thus, discoverable when it is claimed that an accident upon which a lawsuit is premised exacerbated or aggravated an underlying condition (McGlone at 480; Rega at 330).

Here, while plaintiff disingenuously contends that it was not afforded the opportunity to argue against the disclosure of her HIV records because the MTA's moving papers failed to identify the condition, such assertion is belied by the record. To be sure, had plaintiff not chosen to remain silent on the issue at her deposition, the Court would have a more fulsome record. Thus, she cannot be heard to complain about the scant record, which she herself precipitated. More importantly, it is clear that the records sought by the MTA were HIV related records and that at oral argument Judge Salman was fully apprised that plaintiff has HIV and that, he, based on well settled law, concluded that plaintiff's broad allegations of stress and depression coupled with her claim of exacerbation constituted a compelling need for the disclosure of her HIV records. Accordingly, in ordering the foregoing records, Judge Salman did indeed comply with Public Health Law § 2785(2), ordering their disclosure upon finding "a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding."

However, Judge Salman failed to comply with Public Health Law § 2785(5), in that he failed make findings of fact and articulate why plaintiff's HIV records were ordered disclosed. Again, here, plaintiff's pleadings regarding exacerbation of a preexisting medical condition coupled with her broad allegations that the instant accident caused her stress and depression require the disclosure of her HIV related records and testimony regarding the condition and its [*6]effects on her. To be sure, at trial defendants should be allowed to argue that plaintiff's preexisting HIV, rather than the injuries sustained in the instant accident, are the cause of her damages - in whole or in part. The foregoing, sufficiently cures that shortcoming. Lastly, Judge Salman also failed to comply with Public Health Law § 2785(3) requiring that any order mandating disclosure of HIV related information include a directive sealing all papers on which the application is premised and that such papers only be made available "to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal." This Court shall, as such, order that these papers as well as the prior motion be sealed.

To the extent that striking a party's pleading for failure to provide discovery is an extreme sanction, it is only warranted when the failure to disclose is willful and contumacious (Bako at 561). Here, where the failure to provide the records sought did not violate a court order and seems to have been made upon the good faith belief that the records were not discoverable, Judge Salman properly declined to strike plaintiff's complaint; choosing instead to compel her to provide additional discovery. Indeed, CPLR § 3124 allows a court to compel disclosure "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question, or order." Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] ["Plaintiff having responded to defendant's discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124."]). It is hereby

ORDERED that plaintiff provide the discovery listed within this Court's Order dated May 5, 2016 within 60 days of service of this Decision and Order with Notice of Entry upon her. It is further

ORDERED that the Clerk of the Court seal all papers associated with this motion as well all papers associated with this Court's prior Decision and Order Dated May 5, 2016; providing access to the same on the grounds prescribed by Public Health Law § 2785(3). It is further

ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : August 29, 2016

Bronx, New York

______________________________

BEN BARBATO, JSC.

Footnotes

Footnote 1:While CPLR § 2221(a) requires that a motion to reargue "shall be made, on notice, to the judge who signed the [underlying] order," it also states that the foregoing is only true if "he or she [the original judge] is for any reason unable to hear it." Thus, while except under "exceptional circumstances" (Willard v Willard, 194 AD 123, 125 [2d Dept 1920]), "one judge should not vacate an order made by a court held by another judge" (id.; see also Spahn v Griffith, 101 AD2d 1011, 1011 [4th Dept 1984]), it is nevertheless well settled that one judge of concurrent jurisdiction can review and vacate an order of another (Scelzo v Acklinis Realty Holding LLC, 101 AD3d 468, 468 [1st Dept 2012] ["Justice Torres properly granted the motions for leave to reargue, as the Justice who signed the order on the prior motions failed to address defendants' assertion that the defect which caused plaintiff's accident was trivial."]; Billings v Berkshire Mut. Ins. Co., 133 AD2d 919, 919-920 [3d Dept 1987] ["Here, the motion was before the second Justice because of the implementation of the individual assignment system which contemplates that all motions are to be made returnable before the Justice charged with overseeing the case."]). Here, Judge Salman issued the order form which reargument is sought, but he retired on January 1, 2017, before deciding the instant motion. Thus, the motion has been randomly reassigned to this Court