Ladson v 1234 Fulton Ave. Corp.

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Ladson v 1234 Fulton Ave. Corp. 2018 NY Slip Op 33976(U) November 26, 2018 Supreme Court, Bronx County Docket Number: 22791/2014 Judge: Laura G. Douglas 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] FILED: BRONX COUNTY CLERK 11/28/2018 10:17 AM . NYSCEF DOC. NO. 113 ' INDEX NO. 22791/2014E RECEIVED NYSCEF: 11/28/2018 SUPREME COU RT OF T HE STATE OF NEW YORK COUNTY OF BRO X, PART 11 -------------------------------------------------------------------------X SABRfNA LADSON, as the Administrator of the Estate of A THANIEL LADSON, deceased, Pl aintiff, Index No. 2279112014 DECISION/ORDER -against- Present: Hon. Laura G. Douglas J.S.C. 1234 FULTON AVENUE CORP., Defendant. -------------------------------------------------------------------------X Recitation, as required by Rule 22 19(a) of the C.P.L.R., of the papers considered in the review of this motion to strike plaintiffs complaint and related reli ef: Papers Numbered Defendant's Notice of Motion, Good Faith Affirmation of Ian B. Forman, Esq. dated October 4, 2018, Affirmation of Ian B. Forman, Esq. dated October 4, 2018 in Support of Motion, and Exhibits ("A" through ""AA")..... ............................................. ...... 1 Affirm ation of Jeffrey B. Manca, Esq. dated November 9, 2018 in Opposition to Motion and Exhibits ("A" through "H")................................. 2 Reply Affirmation of Ian B. Forman, Esq. dated November 13, 2018 and Exhibits ("A" through "F")............................................................................. 3 Upon the foregoing papers and after due deliberation, the Decision/Order on this motion is as follows: The defendant seeks an order dismissing the plaintiff s complaint as a penalty for her purported failure to furnish certain court-ordered disclosure or, alternatively, precluding the plaintiff from offeri ng any evidence at trial or, a lternatively, compelling the pla intiff to furnish said disclosure, and adj ourning depositions until such d isclosure is provided. The motion is granted solely as ordered below and is denied in all other respects. The plai ntiff seeks monetary damages for personal inj uries allegedly sustained by the plaintiff's decedent as a result of a slip and fall accident on October 21 , 201 1 at a building owned and/or operated by the defendant. The plaintiffs decedent died on December 7, 20 14. T he d iscovery items at issue are various health treatment records of the plaintiffs decedent. 2 of 5 [* 2] FILED: BRONX COUNTY CLERK 11/28/2018 10:17 AM .. NYSCEF DOC. NO. 113 INDEX NO. 22791/2014E RECEIVED NYSCEF: 11/28/2018 The plaintiff contends that she has furnished many authorizations to obtain such records and has attached photocopies of same as exhibits to her opposition papers. The defendant contends that it has not received original authorizations as required by the health care providers. In order to expedite this litigation. the plainti ff shal l furnish original authorizations by mai l to defendant's counsel' s ew York City office duplicating the photocopies ofauthorizations fi led e lectronically in this Court as exhibits to the plaintiff' s opposition papers. The defendant contends that no response has been provided to its demand for the autopsy report sought in the defendant' s di scovery notice dated February 4, 2016. The plaintiff does not address this item in her opposition papers. Therefore, the plaintiff shall provide the autopsy report. T he defendant contends that the pla intiff has inadequately responded to the defendant's discovery notice dated October 7, 20 16 regarding claims for psychological damages. responses have been the subject of three court orders. These In response, the plaintiff, provided authorizations to obtain the plaintiff's decedent's records from the VA Medical Center and BronxLcbanon Hospital by letter dated November 6, 20 18. The p la intiff fu rther responded that as the administrator of the estate of the deceased plaintiff, she is " not in possession of any more in fo rmation regarding plaintiff psychological and/or psychiatric treatment" . The defendant has not stated whether the records to be re leased by these authorizations fai l to address this treatment. The defendant may seek further relie f in thi s regard once it has obtained and reviewed the aforesaid records. T he defendant- contends that the plaintiff has inadequately responded to the defendant's d iscovery notice dated October I 0, 2014 seeking records regarding the deceased plaintiff's treatment for drug and/or a lcohol dependence or abuse. These responses have been the subject of three court orders. In response, the plaintiff provided authorizations to obtai n certain of the plaintiff' s decedent's records (see Manca Affi rmation, Exhibit "C"). The defendant has not stated whether the records to be released by this authorization fail s to address this treatment. The defendant may seek further relief in this regard once it has obtained and reviewed the a foresaid records. The defendant contends that the plaintiff has inadequately responded to the defendant's discovery notice dated October I 0, 20 14 seeking records regarding the plaintiff' s decedent's prior accidents and records regarding the deceased plaintiffs treatment for a seizure disorder prior to the underlying occurrence. These responses have been the subject of three court orders. In a letter dated ovember 5, 2018, the plaintiff responded that as the adm inistrator of the estate of the deceased plaintiff, she is "not in possession ofany info rmation regarding any prior fal ls and/or accident which 3 of 5 [* 3] FILED: BRONX COUNTY CLERK 11/28/2018 10:17 AM NYSCEF DOC. NO. 113 INDEX NO. 22791/2014E RECEIVED NYSCEF: 11/28/2018 occurred prior to October 2 1, 201 1··and is "not in possession of any information regarding plaintiff s treatment for seizures disorder prior to the occurrence' . The plaintiffs decedent died on December 7, 2014. Therefore, the plainti ff could have timely provided the items requested in these 2014 discovery notices. The defendant should not bear the burden of the plaintiff's failure to comply while al ive. The burden upon the admini strator is not simply to furni sh what is in her possession, but to make the necessary arrangements to produce those items within her control (see CPLR Rule 3 120 (l)(I) and Suto v. Folkes Heating, Cooling & Burner Service, Inc., 15 AD3d 469 [2"d Dept 2005]). Finally, the defendan~ contends that the plaintiff has inadequately responded to the defendant's demand for Arons authorizations dated September 6, 2017. The plain ti ff argues that an Arons authorization for the EMS workers listed on the corresponding ambulance call report were previously provided. The de fendant denies receipt of same. In the interest of moving this case forward exped itiously, the plaintiff shall provide a fresh original Arons authorization in this regard. Since the defendant will have a fai r number of records avai lable through the authorizations provided, depositions are to proceed wi thout delay. T he defendant may seek fu rther depos ition(s) to the extent that it demonstrates that certain meaningful records were not available at the time of the deposition(s) conducted. Accordingly, it is hereby ORDERED that the plaintiff shal l furni sh original authori zations by mail to defendant' s counsel ' s ew York City office dupl icating the photocopies of authorizations fi Jed e lectronically in this Court as exhibits to the plaintiff's opposition papers no later than 30 days fo llowing service of a copy of this Order with notice of entry; and it is further ORDERED that the plaintiff shall provide a copy of the autopsy report for the plaintiffs decedent no later than 30 days fo llowing service of a copy of this Order with notice of entry; and it is fu rther ORDERED that the plaintiff sha ll be precluded from offering any evidence regarding damages unless she provides duly-executed original authorization(s) for the release of the pla intiffs decedent 's records regarding any prior accidents or an affidavit detailing the efforts made to obtain such records no later than 30 days fo llowing service of a copy of this O rder with notice of entry; and it is further ORDERED that the plainti ff shall be precluded from offering any evidence regarding damages unless she provides duly-executed ori ginal authorizations for the release of the plaintiffs 4 of 5 [* 4] FILED: BRONX COUNTY CLERK 11/28/2018 10:17 AM . . . , DOC. NO. 113 NYSCEF INDEX NO. 22791/2014E RECEIVED NYSCEF: 11/28/2018 decedent' s records regarding his treatment for a seizure disorder prior to the underlying occurrence or an affidavit detailing the efforts made to obtain such records no later than 30 days following service of a copy of this Order with notice of entry; and it is further ORDERED that the plaintiff shall provide a fresh original Arons authorization for the EMS workers listed on the corresponding ambulance call report no later than 30 days following service of a copy of this Order with notice of entry; and it is further ORDERED that depositions shall take place no later than January 21 , 2019 upon penalty of preclusion and/or waiver on the offending party. This constitutes the Decision and Order of this Court. HON.LA~DOUGLAS Bronx, New York November~, 2018 J.S.C. 5 of 5

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