Heerey-Bergin v Ophir

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Heerey-Bergin v Ophir 2014 NY Slip Op 31556(U) June 18, 2014 Supreme Court, New York County Docket Number: 400728/13 Judge: Joan B. Lobis 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. scANN,EDON612012014 [* 1] '..'· ;~»;¥ ¢ z YW.!'\h .·O¥F.Cl, Ok# ¥GA~i&£$.O; 4 -..14" .+~:. ,~_;.; M.< z.~. i..a .. z;a? ..04. am;;\ .t. .14., .,; :_ . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART _ __ PRESENT: ( 1 Index Number: 400728/2013 HEEREY-BERGIN, ROSEMARY INDEX N O . - - - - vs. ! MOTION DATE _ _ __ OPHIR, ORNA. SEQUENCE NUMBER : 003 MOTION SEQ. NO. - - - PRECLUDE The followlngpapers, numllered 1 t o _ , were reld on this motion to/for _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affldavita - Exhibits Anewering Affidavits- Exhibits _ __....._ ____..._ _ _ _ _ _ __ INo(s). ......- Rep1y1ne Afftctavtts _ _ _ _ _ _ ____.f~·l""-L~E~[) I -Y ·I No(s). c::r - f"J. I No(s). Jg= -I 1 Upon the fcngolng papera, It Is ordered that thll motion ts JUN 20 20U ~ ...~ewVORK -vun1 r Cl.EMS OFFO: THIS MOTION IS WITH.JHE ACCOM~1~W£~ -~ ACCORDANCE EMORANDUM DECISION O~J>e-~ ~- dQ~l~ 1. CH!CK ONE:..................................................................... 2. CHECK AS APPROPRIATE: ........_ ................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE Dl8POIED 0 GRANTED ODINIED 0 0 SETTLE ORDER DO NOT POST 0 ,J.s.c. ~~ ~ltfA~ !);POSITION 0 GRANTED IN PART 0 OTHER 0 SUBMIT ORDER FIDUCIARY APPOJNTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 --·----------------------------------------------------------------------)( Rosemary Heerey-Bergin, Plaint~!f, I LEQ Index No. 400728/13 -against;. ·1 ; <!,.I, . '.i::\V YORK ~-~, Defendant 'f"Hf<"'S . Oma Ophir, Decision and Order '!n14 · ---------------------------------------------------------------~-: ...{)~ JOAN B. LOBIS, J.S.C.: In this action for medical malpractice, defendant psychologist, Oma Ophir, seeks to preclude pro se plaintiff, Rosemary Heerey-Bergin, from presenting evidence at trial pursuant to Section 3042 of the Civil Practice Law and Rules, or in the alternative striking plaintiffs complaint pursuant to Section 3126 of the Civil Practice Law and Rules. A prior motion to dismiss led to an order dismissing a claim under HIP AA and directed defendant to answer. A preliminary conference was scheduled for October 8, 2013. In support of the motion, defendant attaches all notices purportedly sent to the plaintiff in September 2013, at the time defendant answered the complaint. The notices include a Notice to Take Deposition Upon Oral Examination, Demand for the Names and Addresses of Witnesses, Demand for Accident Reports, Demand Pursuant to Sections 3101, 3102, and 4545, Demand for a Verified Bill of Particulars, Discovery Demand for Pursuant [sic] to CPLR 3101 (3 ), Notice for Discovery and Inspection, Demand for Employment Record Authorizations, Demand for Collateral Source Information, Notice for Income Information and Authorization of IRS Records, Demand for Medical Information and Authorizations, and Demand Pursuant to CPLR 306-a ("Demand"). 1 [* 3] Many of these requests were generic and not tailored to this litigation or readily understandable by a prose litigant. A preliminary conference was scheduled for October 8, 2013 and adjourned to October 29, 2013, without completing a preliminary conference order. After discussions with the Court on October 29, plaintiff was given another copy of the Demand in the robing room and instructions to respond. By the next appearance, December 3, 2013, plaintiff had still not properly responded to the Demand. She was ordered to mail defendant answers to the Demand by January 15, 2014. In addition, defendant specifically requested any relevant audio material in plaintiff's possession and correspondence in a Notice to Produce dated November 20, 2013. That notice was particularized to the facts of this case. The parties appeared again on January 28, 2014. Plaintiff had not complied and the matter was adjourned again. The parties did not complete a preliminary conference order. On February 4, 2014, plaintiff provided one audio disc of a therapy session to defendant. The next conference was March 4, 2014. By that date the defendant had filed the instant motion. The parties entered into an agreement to adjourn the return date of the motion. Dates for filing opposition papers and a reply were set. One further conference occurred on April 2, 2014. Plaintiff failed to produce the additional audio recordings in her possession or respond to the other requests. It appears that the plaintiff recorded multiple therapy sessions with defendant. Again, a preliminary conference order was not completed. In opposition to defendant's motion, plaintiff argues that she provided responses. She attaches a letter to defense counsel dated March 11, 2014, wherein she offers to allow the defense to listen to her recording and make copies, stating that she had previously made this offer 2 [* 4] -to the defense attorney. She asserted that she has provided HIPPA forms. She included several documents, including a letter from a current therapist, a portion of a newsletter with an abstract of a presentation to be made by defendant, a letter from John Jewell on the letter head of the Institute for Psychoanalytic Training and Research, a letter from a doctor at the Center for Psychoanalytic Training and Research at the College of Physicians and Surgeons of Columbia University, and the letter that she sent with the audio recording which she has provided. These items appear to be partially responsive to some of the requests in the Notice to Produce of November 20, 2013. In reply, defendant highlights the incompleteness of the responses and argues that plaintiff has failed to respond completely to any of the demands. Defendant urges this court to reject the plaintiffs selective way of responding to discovery. She argues that by allowing the plaintiff to do so, plaintiff is determining what is relevant without a judicial determination of defendant's rights. Whether a court shall order sanctions for the failure to comply with discovery requests is directed to the sound discretion of the court. Courts have been unwilling to strike a pleading unless there is a showing that the conduct is willful or contumacious. Hogin v. New York, 103 A.D.3d 419 (1st Dep't 2013). Here there has been partial compliance. It cannot be said that the plaintiffs conduct is willful or contumacious. Moreover, the pro se litigant cannot be expected to understand the legal process as well as an attorney. A strict adherence to the rules of discovery would be unjust. With the exception of an oral direction to produce audio tapes, as yet no court orders to produce have been entered. The defendant should have moved under Section 3124 of the Civil Practice Law and Rules for an order to compel responses, specifying which items 3 [* 5] of discovery must be produced. In light of the extensive delay, I am directing the plaintiff to serve upon the defense attorney a written, detailed response to the notice dated November 20, 2013. The responses shall clearly identify by number the answer to each demand. If an item does not exist or cannot be found after a good faith diligent search, plaintiff shall state that in sworn statement. The plaintiff has 20 days to comply with this order after service of a copy of this decision and order with notice of entry. This constitutes the decision and order of the Court. Datef-' /r'. 2014 ENTER: JOAN FI LED vI';\\ ') ~-J ! '; .-:... iJ ?014 \~ 4 ._. ItLOBls;'J.S.C.

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