Tavarez-Quintano v Betancourt

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Tavarez-Quintano v Betancourt 2013 NY Slip Op 33801(U) July 2, 2013 Supreme Court, Bronx County Docket Number: 307956/11 Judge: Laura G. Douglas 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. [* 1] FILED Jul 12 2013 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------x DECISION AND ORDER BLAS TAVAREZ-QUINTANO, Plaintiff (s), Index No: 307956/11 - against LOVE BETANCOURT AND DOMINGO FELIZ, Defendant(s). ----------------------------------------x Defendant LOVE BETANCOURT (Betancourt) moves seeking an order striking plaintiff's complaint pursuant CPLR § 3126 or in the alternative compelling plaintiff to provide HIPAA compliant medical authorizations and appear for a deposition pursuant to CPLR § 3124. Betancourt also seeks an order compelling defendant DOMINGO FELIZ (Feliz) to appear for a deposition. Betancourt seeks the aforementioned relief on grounds that while plaintiff has provided HIPAA complaint authorizations they contained incorrect addresses for plaintiff's medical providers. Accordingly, Betancourt argues that she has been unable to procure plaintiff's medical records and has therefore been unable to depose plaintiff. For this very reason Betancourt has also been unable to depose Feliz. For the very same reasons averred by Betancourt, Feliz crossmoves seeking an order precluding plaintiff from testifying about or introducing any evidence related to his injuries at the time of Page 1 of 9 [* 2] Fll,.ED Jul 12 2013 Bronx County Clerk trial. With respect to the portion of Betancourt's motion seeking to compel Feliz' appearance at a deposition, Feliz opposes such relief on grounds that he was already deposed by plaintiff and was not deposed by Betancourt appear and depose him. solely because Accordingly, Betancourt failed to Feliz argues that he should not be required to appear for another deposition. Plaintiff opposes Betancourt's motion and Feliz' cross-motion averring that it has provided all defendants with HIPAA complaint authorizations Plaintiff for further all relevant medical argues that the treatment addresses he received. listed for the providers within the authorizations were obtained from plaintiff's medical records. Accordingly, plaintiff argues that neither striking his pleadings nor precluding him from offering evidence at trial is warranted. To the extent that Betancourt seeks to depose him, plaintiff avers that insofar as he appeared and was deposed by Feliz and was ready, willing, and able to appear for depositions on multiple dates that Betancourt repeatedly adjourned, Betancourt has waived his deposition. For the reasons that follow hereinafter, Betancourt's motion and Feliz' cross-motion are hereby denied. The instant action is for personal sustained by plaintiff on April 13, 2011. injuries allegedly Within his complaint, plaintiff alleges that he was involved in a motor vehicle accident when the vehicle within which he was a passenger, Page 2 of 9 said vehicle [* 3] FILED Jul 12 2013 Bronx County Clerk owned and operated by Feliz, came into contact with a vehicle owned and operated by Betancourt. Plaintiff alleges that defendants were negligent in the operation of their respective vehicles and that he was injured as a result. On December 7, 2011, service of defendants' Betancourt' s shortly after issue was joined by the answer, plaintiff provided responses Combined Demands. Included therewith, to were HIPAA complaint authorizations authorizing the release of plaintiff's medical records from Ram Nair Medical (where plaintiff purportedly underwent physical therapy), Dr. Mark McMahon (plaintiff's orthopedic surgeon), and Lenox Hill Radiology (where plaintiff had an MRI). On January 19, 2012, pursuant to Betancourt's demand, plaintiff provided all medical January 17, Conference. 2012, all records parties in his appeared for possession. a On Preliminary Notwithstanding that plaintiff had already provided authorizations, pursuant to the Preliminary Conference Order, plaintiff was ordered to provide HIPAA compliant authorizations for all medical providers who treated him for injuries sustained in this accident within thirty days. Additionally, all parties were ordered to appear for depositions on March 20, 2012. 17, 2012, plaintiff On January in his Response to the Preliminary Conference Order, provided another HI PAA compliant authorization authorizing Dr. Mark McMahon to release all intra-operative photos taken of the plaintiff. Page 3 of 9 -----------------------------------------------[* 4] FILED Jul 12 2013 Bronx County Clerk Despite the foregoing, Betancourt, claiming that plaintiff had not provided HIPPA complaint authorizations asked that depositions be adjourned first to May 3, 2012 and then again to June 21, 2012. In between those two dates, on May 11, 2012, Betancourt served a Notice for Discovery and Inspection upon plaintiff seeking HIPAA compliant authorizations for medical records from United Medical Offices of Long Island, Khavinson & Associates, Alpha Physical Therapy, New Way Massage Therapy, and Austin Diagnostic Medical PC. On June 25, 2012, after Betancourt again, via letter, asked for the aforementioned authorizations, plaintiff provided them 1 • Betancourt claimed that he needed authorizations provided by plaintiff, time to Because process the depositions were adjourned first to July 19, 2012 and then to August 31, 2012. On August 30, 2012, insofar as Betancourt still had not received records pursuant to the authorizations provided by plaintiff, the depositions were adjourned without a date. On September 10, 2012, all parties appeared for a Compliance Conference, where as per the Compliance Conference Order, all parties were ordered outstanding discovery and ordered to appear November 15, 2012. to comply with all for depositions on On November 14, 2012, Betancourt sought to once again adjourn the court-ordered depositions alleging for the first 1 Plaintiff objected to and did not provide records from Khavinson & Associates. Nothing in the motion or cross-motion indicates that defendants took issue with plaintiff's failure to provide records from this entity. Page 4 of 9 [* 5] FILED Jul 12 2013 Bronx County Clerk time that the addresses listed within the authorizations for plaintiff's medical providers were incorrect. Plaintiff refused to adjourn the depositions and on November 15, 2012, deposed by by Feliz and Feliz was deposed plaintiff was the plaintiff. Betancourt was not present at the depositions. 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 (Baka v V.T. Trucking Co., 143 AD2d 561, 1999]). Similarly, 561 1st Dept 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, Pryzant v City of New York, 4 AD3d 443, 300 AD2d 383, 444 383 [2d Dept 2004]; [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]). Page 5 of 9 Nor is [* 6] FILED Jul 12 2013 Bronx County Clerk the striking of a party's pleadings warranted merely by virtue of "imperfect compliance with discovery demands" Insurance Company v 1999)). Lib-Com, (Commerce 266 AD2d 142, Ltd, & 144 Industry [1st Dept Because willful and contumacious behavior can be readily inferred upon a party's repeated non-compliance with court orders mandating discovery (Pryzant v City of New York, 300 AD2d 383, 883 [2d Dept 202)), only when a party adopts a pattern of willful noncompliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999)) and repeatedly violates discovery orders, thereby delaying the discovery process, pleadings warranted(Moog v City of New York, is the striking of 30 AD3d 490, 491 [2d Dept 2006); Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999)). Here, a review of the papers submitted in support and in opposition to defendants' motion and cross-motion seeking discovery sanctions evinces that plaintiff provided defendants with HIPAA First, on complaint authorizations on three separate occasions. December 7, 2011, Combined Demands, plaintiff provided responses to Betancourt' s which included HIPAA complaint authorizations authorizing the release of plaintiff's medical records from Ram Nair Medical therapy), (where Dr. Mark McMahon Lenox Hill Radiology January 17, Order, plaintiff 2012, purportedly underwent physical (plaintiff's orthopedic surgeon), and (where plaintiff had and MRI). Second, on in his Response to the Preliminary Conference plaintiff provided another HIPAA compliant authorization Page 6 of 9 [* 7] F.ILED Jul 12 2013 Bronx County Clerk authorizing Dr. Mark McMahon to release all intra-operative photos taken Lastly, of the plaintiff. on June 25, 2012, plaintiff provided HIPAA complaint authorizations for United Medical Offices of Long Island, Alpha Physical Therapy, New Way Massage Therapy, and Austin Diagnostic willfully or sanction, Medical contumaciously, plaintiff PC. a provided Thus, far from behaving for any discovery prerequisite all the discovery requested and ordered by the court. To the extent that defendants seek discovery sanctions on grounds that plaintiff has provided authorizations with incorrect addresses, they Defendants fail have to failed tender any to establish evidence their assertion. establishing that the authorizations could not be processed using the addresses listed, e.g., returned providers mail not did Accordingly, or a have letter indicating offices at the that the addresses medical listed. defendants have failed to establish that plaintiff provided the wrong addresses within the authorizations. the foregoing, defendants' Based on motion seeking to strike plaintiff's complaint and/or preclude him from offering certain evidence at trial is denied. Had defendants met their burden, substantial compliance with discovery demands plaintiff's and court orders would have nonetheless precluded the extreme discovery sanction sought by defendants (Commerce & Industry Insurance Company at 144) . Page 7 of 9 [* 8] FILED Jul 12 2013 Bronx County Clerk Betancourt's motion seeking an order compelling plaintiff to provide new HIPAA compliant authorizations with proper addresses is also CPLR denied. 3124 § allows a court to issue an order compelling disclosure "[i]f a person fails to respond to or comply with any order." request, Thus, notice, when a interrogatory, party responds provides inadequate responses, demand, question, or to discovery demands but the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude Investors pursuant Corp. v to CPLR Gordon, § 55 (Double 3126 AD3d 406, Fortune 407 [1st Property Dept 2008] ["Plaintiff having responded to defendant's discovery requests, the proper course complaint for pursuant defendant, to CPLR rather than moving 3126, was first further discovery pursuant to CPLR 3124."]). to to move strike to the compel Here, however, for the same reasons discussed above, an order to compel is unwarranted since Betancourt, as noted above, fails to establish that the authorizations provided by plaintiff were deficient in any way. Betancourt' s motion seeking to compel depositions of plaintiff and Feliz is also denied insofar as it is well settled that when discovery responses are deficient and a court-ordered deposition is pending, " [ t] he proper course [is] to proceed with the ordered depositions, determine at that time whether or not other documents [are] available, [and] request their production pursuant to CPLR 3120" Barber v Ford Motor Co., 250 AD2d 552, 552 [1st Dept 1998]). Page 8 of 9 [* 9] FILED Jul 12 2013 Bronx County Clerk In the case at bar, Betancourt should have also proceeded with the court ordered depositions inasmuch as he was provided with copies of plaintiff's records from Ram Nsir Medical, which plaintiff represents included the very records which Betancourt avers he has been unable to obtain, namely, records from United Medical Offices of Long Island, Alpha Physical Therapy, New Way Massage Therapy, and Austin Diagnostic Medical Betancourt's claim that PC. the authorizations are incorrect, Moreover, addresses this within court the finds medical rather incredible and disingenuous inasmuch as it was raised for the first time almost five months after plaintiff provided the authorizations. It is hereby ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendant within thirty (30) days hereof. This constitutes this Court's decision and Order. Dated : ·1- J_ ' 2013 Bronx, New York Laura G. 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