Kapsis v Duch

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Kapsis v Duch 2017 NY Slip Op 32944(U) December 6, 2017 Supreme Court, Queens County Docket Number: 4727/2016 Judge: Denis J. Butler 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] Page2ol7 •727/2019 COPY Of ORDER W/NOTICE OF ENTRY WITH AFFT OF SVC 03/ 09/ 2002 22:28 • 11 11111 t0 uitUl&t\ ftQfllED ' PAGE DISPONZIO 7186570526 02/ 16 ,....,.,. . FU.ED or.c oa zon cou~TY CLERK EcN~ cOUN"fY Short Form Order Q NEW YORK SUPREME COURT - QUEENS Present: HONORABLE DENIS J. BUTLER I AS Pa.:t 12 Justice ---------------------------------------x ANTONIOS PHILIP K~PSIS, Index Numbec:4727/2016 Plaintiff(s), -against- Motio:1 Date: Oct ob•!): 6, 201 7 JAN DUCH, Defendant(s). ---------------------------------------x Mot i ou Seq. No.: l The following papers numbered 1 to 20 were read en this motion by defendant for an order dismissing plaintiff compla:.nt or precludi ng plaintiff from offering any evidence on the iss1w of liability, pursuant to CPLR S3126 or in the alternative an 'rder compelling· plai ntiff with material, relevant, and necessary information fo r the issues of liability and dama9es in this matter. Papers Num,bered Notice of Motion, Affirmation, Affidavit and EKh i bits ... . ... .. .. .............. ... ........ , .. 1-12 Affirmation In Opposition, Affidavit, Exhibi:.3..... 13-:6 Affirmation In Reply, Affidavit, Exhibits .... .. .... 17-20 Upon the foregoing papers, it is ordered tha·: this motion is determined as follows: Defendant moves for an order dismissin9 Plain:lff's complaint or precludin9 Plaintiff from testifying at trial, due to Plaintiff'! alleged failure to provide several categories of requested discovery . In the alternative, DefendEr.t moves for an order compelling the Plai ntiff to produce the requ•!:sted discovery . Plaintiff opposes the motion. As an initial mattQr, the Court finds merit in Defendant's · argument that, d ue to Plaintiff's failure to objec:t timely to t he Printed 12113/2018 [* 2] Page 3 o!7 '727/201& COPY Of ORDER W/NOTICE OF ENTRY WITH AFFT OF SVC 03/ 09/ 2002 .t1:ll1'G9' ~or' $.lt>liflO 22:28 DISPONZIO 7186570526 PAGE 03/ 16 "°90' ., • Defendant's disco'lery demands, Plaintiff has wa:."ed objection to those demands except to the extent that they are "palpably improper." (Bell v Cobble Hill Heal th Center, -~llc. , :Z2 AC3d 620 (2d Dept 2005).) Demands may be palpably impr·,per if they, for example, "are OVe.tbroad, lack. Specificity, or SE:E:k irrelevant or confidential information,'' (id.) , or seek "i:iformation of a confidential and private nature that is not relev3 ~ t to the issues in th(e] case." (Otto v Triangle Aviation Serv~, Inc., 258 AD2d 448 [2 d Dept 1999) . ) With these standards in mind, the Court turns to each cateqory of outstanding discovery: 1) "The name of pl aintiff's health insur~:1ce carrier, as well as duly executed, current and acknowledged HIPAA Compl i ant Authorizat i ons enabling MENr1Ci:WIA & STENZ to obtain the plaintiff's emergency room iecords, hospital records, medical records, physical U1erapy records, acupuncture records, MIR' s, X-rays, Cnt: Scans, Int:raoperati ve photos (if applicable ) and any either diagnostic test from said insurance carrier . " Pla i ntiff objects to this request solely to the extent that Defendant seeks the name of Plaintiff's hea lth insurance carrier, as there is "nothing in the rQcord that even suggests tha t plaintiff used his health insurance for any injurjes sustained i nt his accident or for any similar injuries." Defe 1dant notes that Plaintiff testified he had health insurance throu;h his mother at the time of the accident. I t is undisputed th<:t. Plaintiff has· affirmatively placed h i s medical condition in issue in ~h is litigation. (Gutierrez v Trillium USA, LLC , 111 PC3d 669 [2d Dept 2013).) In light of this, Plaintiff has not donons trated that Defendant's request for information relating t o his health insurance at the time of the accident is "palpably improper." The branch of Defendant's mot ion seeking an ~~der compelling Plaintiff to produce the discovery requested in :.t:em tl abov e is GRANTED, and Plaintiff is directed to respond fully, to the exten t he has not already done so, within 30 days of the date of this order. 2) "Duly executed, current and acknowledged .~IPAA Compliant authorizations enabling MgNDOLIA & STE~Z to obtain t he t he plai ntiff's high school records .fron ~Hlliain Cullen Bryant, including but not limited to att·rn::lance records, physicians' records, school nurse record~, and permission slips to play competitive football." 3) "Duly executed, current and acknowledged liIPAA Compliant authorizations enabling MENDOLIA & STENZ to obtain t he 2 .,._ ltJ121%0t7 Printed 121131201& [* 3] Pao• c of 7 •727/2018 COPY OF ORDER W/NOTICE OF ENTRY WITH AFFT OF SVC . 03/ 09/ 2002 4l27f.l\ll~ 0-DEA ~~EO 22: 28 DISPONZIO 7185570525 PAGE 04/ 15 ~. . . ) al.ill the plaintiff's college records frc ·m Feather Ri ver in California, including but not limited to attendance records, physicians' records, school nurse rscords, and permission slips to ?lay competitive football . " Colleg~ Plaintiff testified that he had a prior problem with h~s back that was exacerbated by the subject motor va hicle accident. Plaintiff further testified that, during the tirn1 ~ period after he first . developed back pain but before the subj net accident, he played football in high school and college and en· ;~9ed in rigorous workouts as part of his training. These facts alo1~, however, fa i l to j ust i fy such broadly-worded discovery into P)~ intiff's school files, which may contain material of a . Fe rson~l nat ure . Pla i ntiff's testimony as to his sports involVE1me nt speaks for i tself, and Defendant f ails to art i cul ate any i nformation that might be contained in Defendant's school rH!o rds t hat may reasonably lead to relevant evidence. The branch of De!er.dant's motion seeking to compel discovery of Pla intiff'~ h igh school and col l ege records is OENI EO. 4) ''Duly executed, current and acknowledged authorizat i ons e nabling MENDOLIA & STENZ to obtain the GPS Records for the plainti ffs' 2010 Nissan Maxima that was involved i n t he acci dent that i s the subject of the wi thin lawsu i t . Sai d authorizations are limited to the GPS records for tho date of the loss." Pla i ntiff has not demonstrated that t he above request is "palpably improper, " parti cularly in light o f th·! f.acts that the request is narrowly tailored to the date of t he accident, Pl a i nt iff test i fied that he used the GPS in his vehi cle on the date of the acci dent, and the issu~ of liabi lity for the acc ldent remains in d i spute. The branch of Defendant's motion s 1~ E~Jdng an order compelling Plaintiff to produce· the discovery' req~e s ted i n item #4 above is GRANTEC, and Plaint i ff is directed to r •rnp ond f ul ly, t o the extent he ha! not already done so, within 30 iays of the date of t hi s order . 5) "All color photos 6) "All photographs, e - mails, status posts, and comments posted to the plaintiff's facebook account from th~ date of the accident that is the sub j ect of t hi s lawsu i t to the present ." of the plaintiff f3 ·om hi-s trip to Greenport, NY after the accident that is the sub j ect of the within lawsuit." 3 Pnnted 12113/2018 [* 4] Pig• ~ol7 • 72712016 COPY OF ORDER W/NOTICE OF ENTRY WITH AFFT OF SVC 03/ 09/ 2002 •m121>11P11~•1()11tg • I 22:28 .. DISPONZIO 7186570526 ' 7) PAGE . 05/ 16 ,.,. 'ti" "Duly executed, current and acknowledged authorizations for f~ll access to, and copies of the plaintiff's current historical records/information for his Facebook account. The authorizations must include the email address linked to this account, along with all other required identifying information." · "[M ) ere pos~ession and utilization of a Facebc•ok account is an insufficient basis to compel plaintiff to provi:ie access to the account or to have the cou'rt conduct an in camera inspection of the account's usage." (Tapp v New York State Urban ,)1~vel. Corp., 102 AD3d 620, 620 [l't Dept 20l3J.) "To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Faceboolc; 2 C"count ." ( Id.; accord Richards v Hertz Corp., 100 AD3d 728 (2d Ot!pt 2012 J; McCann v Harleysville Ins. Co. of NY, 78 AD3d 1524 14th Dept ~010). ) Defendant has laid no such factual predicate here. :n the circumstances present here, Defendant's att~::npted "fishing expedition'' (Tapp, 102 AD3d at 621 ) into Plaintiff's social media postings is palpably improper. Similarly, Oefendont's reque.:st for personal photographs from a ~acation Plaintiff took wi th his mother is palpably improper. The branch of Defendant's r1c1t:ion seeking to compel discovery of item~ 5, 6, and 7 above is tr.erefore DENIED . It. appears from Plaintiff's opposition paper~ : and Defendant's reply papers that the remaining categories of discovery set forth in Defendant ' s motion appear to have been re 5ol ved pr:.or to submission of this motion. Defendant's motion is GRAN'rBD solely to the extent that Plaintiff is directed to produce the discovery re~uested in items il and #4 within forty-five (45) days of the date ~f this order . All other requested relief is her.eby DENIED. This con~titutes the Decision and Order of t1~ The clerk is directed to fax and mail a copy and order to ell parti es. Dated: December ~f Court. this decision ~~,~----------..... FILED b , 2017 Deni.:s J. But l e .:,. J . s . C . ----~ 0£C 08lUl1 4 COllNTY CLEUK QUEENS COUNTV - ?nnted 121131201 B

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