Pagan v City of New York

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Pagan v City of New York 2012 NY Slip Op 32943(U) November 29, 2012 Sup Ct, NY County Docket Number: 105486/10 Judge: Geoffrey D. Wright 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. SCANNEDON I211312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number . 105486/2010 PAGAN, DIANA vs. CITY OF NEW YORK SEQUENCE NUMBER : 002 - INDEX NO. MOTION DATE MOTION sm. NO. - DISMISS The following papers, numbered Ito 7 Notice of MotionlOrder to Show Cause - Affidavits - Exhibits Answering Affidavits Replying Amdavits 0 7, 0 , were read on this motion tolfor IWs). - Exhibits IW S ) . 4s , IN W . G' rnL:h~* cvLvj5 riprlcJ flirrrya Upon the foregoing papers, it is ordered that this motion is 2 - 1 7 FILED NEW YORK COUNTY CLERKS OFFICE , J.S.C. 0 CASE DISPOSED ..................................................................... 0DENIED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: aGRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: 0DO NOT POST ~NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT nREFERENCE [* 2] . e SUPREME COURT OF T I E STATE OF NEW YORK COUNTY OF NEW YORK DIANA PAGAN, Plaintiff Index # 105486/10 -against- DECISION TI-IE CITY OF NEW YORK, and The NEW YORK CITY HOUSING AUTHORITY Defendants _______________1___1___________________I-------~~~~------------ Present: Hon. Geoffrey D. Wright Acting Justice Supreme Court RECITATION , AS REQUIRED BY CPLR 22 19(A), of the papers considered in review of this Motion to dismiss or preclude or compel discovery and cross-motion for a protective order. Papers Notice of Motion and Affidavits Annexed .............. Order to Show Cause and Affidavits Annexed ....... Answering Affidavits. ............................................ Reply Affidavits ..................................................... Exhibits. ................................................................. Other..cross-motions.. .....and memo ..................... Numbered -1 4.5 ,-- -6- FILED DEL 13 2012 277 ~NEW YORK COUNTY CLERK S Off ICE Upon the foregoing cited papers, the DecisiodOrder on this Motion and cross-motion is as follows: The New York City Housing Authority ( NYCHA ) seeks to obtain disclosure from Plaintiff or preclude any offer of evidence at trial based on the information sought, or in the alternative compel Plaintiff to comply with the discovery demands. In opposition, Defendant cross-rnoves for a protective order for the information sought. The only issue currently before this Court is the issue of discovery. The issue of scheduling Plaintiffs deposition has already been resolved between the parties. Plaintiffs cross-motion is denied and Defendant s motion is granted to the extent discussed below. I his is an action to recover for personal injuries sustained when Plaintiffwas caused to trip and fall on May 27, 2009. The Plaintiff sustained injuries to her knees as a result of the accident. Defendant NYCHA seeks broad disclosure of Plaintiff Diana Pagan ( Plaintiff ) physical and incntal condition before and after the injury alleged in the complaint. It is NYCHA s contention that Plaintiff placed her entire medical and psychiatric history in contention by her allegation in the Bill of Particulars of resultant diminution of her economic and social [* 3] capacity. Defendant interprets this language as a claim for loss of quality of life and therefore makes hcr entire medical condition pre- and post- accident open to discovery. Plaintiff contends that the she is not claiming loss of quality of life, as those words do not appear in the Bill of Particulars and therefore her prior medical treatment is not discoverable. Plaintiff cross-moves for a protective ordcr . In the alternative Plaintiff argues that if this Court should find a loss of quality of life claim, NYCHA s claim are palpably improper because they seek records of such irrelevant entities as the social services organizations plaintiff attended and are based only on a printout of the plaintiffs Medicaid billing records. It is well scttlcd that a party must provide duly executed and acknowledged written authorizations for the release of pertinent mcdical records under the liberal discovery provisions of the CPLR . . . when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue Cynthia B. v New Rochelle Hosp. Med. - 60 NY2d 452,456-457 [1983]; Dillenbeck v Hess, 73 NY2d 278 [1989]; Avila v 106 Ctr., Corona Realty Corn., 300 AD2d 266,267 [2002]j and that CPLR 3 101 (a) requires full disclosure of all evidence material and necessary to the prosecution or defense of an action, regardless of the burden of proof. However, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure, and the trial courts have broad power to regulate discovery to prevent abuse. Barouh Eaton Allen C o y . v International Bus. Machs. Corp., 76 AD2d 873m 874 [ 19801). In Plainlifrs Bill of Particulars she claims to have sustained the following injuries: 1) Tear of the posterior horn of the medial meniscus of the left knee; 2) Abrasions of the bilateral knees; 3j Effusion and tenderness of the bilateral knees; and 4) Spain, strain and decreased range of motion of the bilateral knees. In addition, the Bill of-Particular states: that by reason of the injury to the left medial meniscus, with the rupture and tearing of the ligaments and musculature constituting the supportive structures of the knee, Plaintiff suffered and continues to suffer from pain, tenderness, restriction and limitation of motion of the knee and leg, difficulty in weight bearing, wobbliness and locking of the knee. That by reason of the injury to the right knee, Plaintiff suffered and still does suffer from effusion, swelling, pain, tenderness, restriction and limitation of motion of the knee and leg, buckling of the knee, difficulty in bending, squatting and stair-climbing, recurrent persistent limping, with increased intensification of symptomatology on inclement weather, exertion or fatigue. Plaintiff has been advised and verily believes that the aforesaid injuries are of a chronic and protracted nature, which has resulted in permanent residuals and/or sequelae; [* 4] Landhcr prognosis is guarded. Plaintiff argues that her claim for resultant diminution of her economic and social capacity is not tlic same as a claim for loss of quality of life. Notably, Plaintiff does not explain how the two claims differ or what resultant of diminution of economic and social capacity is. After rcading Plaintiff s Bill of Particulars this Court fails to see how the two claims differ. Webster s dictionary defines the word diniinution as: the act of diminishing, or of making or becoming less: sfale qf being diminished; reduction in size,quantity, or degree. In other words, a decrease or lessening of her economic and social capacity. Indeed, a rose is a rose by any other name, and Plaintiff is attempting to circumvent the discovery process by renaming a loss of quality of life claim. Plaintiffs Bill of Particular states she is still suffering from restriction and limitation of the knee and leg as a result of her injuries. It is hard to see how this is not a claim for loss of quality of life. Plaintiff s cross-motion for a protective order is denied. NYCHA is seeking authorizations for the reports and records of Social Security Disability arguing that Plaintiff received Social Security disability before the accident and that such records go to her physical condition and quality of life. Plaintiff is directed to provide NYCHA with authorizations for reports and records of Social Security regarding the plaintiff dating back 2 years from the date of the accident to the date of this decision. The request for authorization for the reports and records of Plaintiffs internist Dr. Ariyibi (phonetic spelling) is denied. NYCHA has not shown relevance or how this is related to Plaintifi s knee injury. It does not appear to this Court (and Plaintiff states in her papers) that she is not making a psychiatric claim, as such, the authorizations for Johnson Counseling Center, Dr. Carlos Sanchez and social worker Miranda Dawkins (phonetic spelling) are denied. To the extent that NYCHA seeks authorizations for reports, records and film of Union Settlement Association, and the Puerto Rican Family Institute, this request is denied. NYCHA has not shown or explained what these organizations are and how this information is material and necessary to their case. (CPLR 5 3 101(a); Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403,288 N.Y.S.2d 449, [1968]). NYCHA seeks authorizations for Mt. Sinai D&T Center, Dr. Zvi Lekowitz, Dr. Tracy Lynn Faroisch and Dr. Leonard Bukhman. Plaintiff is claiming no recollection of treatment. NYCHA s request is denied with leave to renew once Plaintiff is deposed. Lastly, NYCHA seeks an unlimited authorization from Second Avenue Pliarmacy. Plaintiff previously provided an authorization limited to the date of loss. NYCHA s request for an unlimited authorization is denied with leave to renew once Plaintiff has been deposed. [* 5] All a~thorizatiot~s to bc provided within 20 days of the service of the notice of entry are of this Decision. This is the Decision and Order of this Court. Dated: Novmber 29, 20 12 JUDGE GEOFFREY D. WRIGHT Acting Justice of the Supreme Court -. . . . . . .. . . .. . . . .. . ... . .-. .

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