Center for Rehabilitation & Healthcare at Dutchess, LLC v Savage

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Center for Rehabilitation & Healthcare at Dutchess, LLC v Savage 2013 NY Slip Op 34174(U) September 23, 2013 Supreme Court, Dutchess County Docket Number: 2347/10 Judge: James V. Brands Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK DUTCHESS COUNTY Present: Hon. JAMES V. BRANDS Justice. . 7:i q <TP ? ~ ~ 0 ~.) lJ ·-, L... ....... n1-~ r1?: U8 ~l SUPREME COURT: DUTCHESS COUNTY - - - - - - - - - - - - - - - - -x THE CENTER FOR REHABILITATION AND HEALTHCARE AT DUTCHESS, LLC, Plaintiff, -against- DECISION AND ORDER ON TWO MOTIONS Index No: 2347/10 HEATHER SAVAGE, AS ADMINISTRATOR OF THE ESTATE OF RONALD BECRAFT, Defendant. - - - - - - - - - - - - - - - - - -x HEATHER SAVAGE, AS ADMINISTRATOR OF THE ESTATE OF RONALD BECRAFT, Third-Party Plaintiff, -againstEMPIRE HEALTHCHOICE ASSURANCE, INC. Third-Paiiy Defendant. - - - - - - - - - - - - - - - - - -x The following papers were read and considered on the defendant/third-party plaintiffs motions to compel disclosure and for a protective order pursuant to C.P.L.R. §3103(a). NOTICE OF MOTION TO COMPEL DISCLOSURE AFFIRMATION IN SUPPORT OF MOTION EXHIBITS A-C AFFIRMATION IN OPPOSITION TO MOTION TO COMPEL EXHIBITS A-B NOTICE OF MOTION FOR PROTECTIVE ORDER PURSUANT TO C.P.L.R. §3103(a) AFFIRMATION IN SUPPORT OF MOTION EXHIBITS 1-4 MEMORANDUM OF LAW AFFIRMATION IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER EXHIBITS A-E 1 [* 2] Plaintiffs cause of action seeks to recover for care and treatment rendered to the decedent Ronald Becraft at the plaintiffs nursing home prior to his death. As regards the motion to compel disclosure pursuant to C.P.L.R. §3124, the defendant/third-party plaintiff Heather Savage, as administrator of the estate of Ronald Becraft (hereinafter, "Becraft") alleges that intenogatories and document demands were served on the plaintiff on May 2, 2013, and good faith requests for disclosure pursuant to C.P.L.R. §3124 were sent to no avail. Becraft's motion to compel pursuant to C.P .L.R. §3124 seeks to compel the plaintiff to comply with certain interrogatories and the demand for production of documents. Plaintiffs opposition sufficiently demonstrated that the motion was not properly noticed in accordance with C.P.L.R. §2214(b). Becraft's motion was served by mail and demanded answering papers within seven days of the return date, yet Becraft failed to serve the motion twenty-one days prior to the return date. Furthermore, the plaintiffs opposition sufficiently demonstrates that the Becraft failed to make a good faith effort to resolve the matter presented in the motion in accordance with C.P.L.R. §3124. It appears that Becraft sent a demand letter on July 17, 2013; only two days before serving the instant motion. Furthermore, the plaintiff has demonstrated that, prior to that letter demand and the instant motion, the plaintiff sent a letter dated June 4, 2013 indicating that the plaintiff was in the process of responding to the intenogatories and gathering the documents demanded. (Plaintiffs Opposition Exhibit B). Therefore, Becraft's motion to compel disclosure is denied because the motion was not properly notice pursuant to C.P .L.R. §2214 and Becraft failed to make a good faith to resolve the issues presented in its motion pursuant to C.P.L.R. §3124. Becraft's second motion requests a protective order pursuant to C.P.L.R. § 3103(a) with respect to plaintiffs Demands #1-6, 9, 11, 12, 15-17, 19-20. 1 Defendant's objection is that the demands are overly broad and irrelevant. As regards Demand# 16 for "copies of all medical records that will be relied on by defendant to support their defenses and/or counterclaims", the defendant further argues that this demand is overly broad and irrelevant, seeks privileged information not placed at issue, and there may be further medical records which are not presently in plaintiffs possession. Based on the plaintiffs opposition, it appears to this court that the defendant did not engage in good faith efforts to resolve the issues presented on this motion in accordance with Uniform Rule 202.7(b). Despite plaintiff counsel's written requests on June 271h and July 2nd for the defendant's objection letter, defense counsel failed to simply forward its objection letter in a goodfaith attempt to resolve the discovery issues and instead prepared the instant motion one day later. Nonetheless, in the interest ofjudicial efficiency, the court finds that Demands# 1-6, 9, 11, 12, 15-17, 19-20, which include demands for "[a]ll powers of attorneys", [a]ll communications" and "[a]ny and all agreements", are overly broad, fail to identify the documents to be produced with reasonable particularity, and fail to make specific requests which are narrowly tailored to the allegations in the complaint, defendant's defenses and/or counterclaims. Demand #16, which requests all medical records that will be relied on by the defendant in support of its defenses and/or counterclaims, is permissible, provided that defendant may reserve the right to supplement any 1 ~12). The plaintiff withdrew Demands #7, 8, 13, 14. (Plaintiffs Affirmation In Opposition Defendant/Third-Party Plaintiffs motion did not contest Demands #10 and 18. 2 [* 3] response with any medical records which not presently in plaintiffs possession. Contrary to plaintiffs argument, the medical condition of the decedent was placed at issue by the defendant's counterclaim for negligent care and intentional infliction of emotional harm. The defendant, as the administrator of Becraft's estate, waived the physician-patient privilege by placing the decedent's medical condition at issue in the defendant's counterclaims. ( CPLR 4 5 04 [c] [1]). Demand# 17, which requests all documents that will be relied on by the Defendant in support of its defenses and/or counterclaims is impermissible as overly broad and likely to elicit irrelevant and inadmissible documents, which may include privileged attorney work product. On the basis of the foregoing, it is hereby ORDERED that the Becraft's motion to compel plaintiff to respond to interrogatories and produce documents pursuant to C.P.L.R. §3124 is denied. The motion was not properly noticed in accordance with C.P.L.R. §2214(b). Becraft also failed to comply with C.P.L.R. §3124 by failing to make a good faith effort to resolve the issues presented prior to filing of the instant motion. It is further ORDERED that defendant's motion for a protective order pursuant to C.P.L.R. § 3103(a) is granted to the extent set forth herein. Plaintiff counsel shall serve the amended discovery demands which identify the documents to be produced with reasonable particularity, and make specific requests which are narrowly tailored to the allegations in the complaint, defendant's defenses and/ or counterclaims, within twenty (20) days of the date of this order. It is further · ORDERED that counsel shall appear for a status conference on November 4, 2013 at 9:15 AM. The foregoing constitutes the decision and order of this court. Signed: September 23, 2013 Poughkeepsie, New York ENTER: Alexander Markus. Esq. Goldberg & Rimberg, PLLC 115 Broadway, 3rd Floor New York, New York 10006 Donald D. Brown, Esq. Spiegel Brown & Fichera, LLP 272 Mill Street Poughkeepsie, New York 12601 3 [* 4] Gary K. Tannenbaum, Esq. 15 Metrotech Center, 4111 Floor Brooklyn, New York 11201 Pursuant to CPLR Section 5 513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. When submitting motion papers to Judge Brands' Chambers, please do not submit any copies. Submit only the original papers. 4

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