Russo v Public Stor. Inc.

[*1] Russo v Public Stor. Inc. 2018 NY Slip Op 51334(U) Decided on September 21, 2018 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2018
Supreme Court, Kings County

Elizabeth Russo, Plaintiff,

against

Public Storage Inc., Defendant.



513781/15



Attorney for Plaintiff

Law Offices of William Pager

203-205 Kings Highway

Brooklyn, NY 11223

(718) 998-1010

Attorney for Defendant

Rosa H. Lee, Esq.

670 White Plains Road, Suite 101

Scarsdale, NY 10583

(914) 874-5105
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of Public Storage Inc.'s (hereinafter defendant) filed February 9, 2018, under motion sequence five, for an order dismissing the complaint of Elizabeth Russo (hereinafter plaintiff or Russo): (1) pursuant to CPLR 3212 and based on a self-executing order precluding plaintiff from offering evidence of her medical condition; or in the alternative, (2) pursuant to CPLR 3126 based on plaintiff's willful and contumacious failure to comply with court ordered discovery.

Notice of Motion

Affirmation

Memorandum of Law

Exhibits A to P

Affirmation in Opposition

Exhibits A to E

Reply

MOTION PAPERS

Defendant's motion papers consist of an affirmation of counsel, memorandum of law and sixteen annexed exhibits labeled A through P. Exhibit A is copy of plaintiff's summons and verified complaint. Exhibit B is copy of defendant's verified answer. Exhibit C includes a copy of plaintiff's bill of particulars dated June 6, 2016, a supplemental verified bill of particulars dated December 16, 2016, and a second supplemental verified bill of particulars dated April 17, 2017. Exhibit D includes a notice and amended notice of discovery and inspection dated July 6, 2016.Exhibit E is a copy of a Preliminary Conference Order dated July 7, 2016. Exhibit F includes a letter from plaintiff's counsel, William Pager, Esq. (hereinafter Pager) dated August 9, 2016 and two Health Information and Portability Authorization Act (hereinafter HIPAA) authorizations signed by plaintiff on June 6, 2016. Exhibit G is defendant's notice of motion dated December 1, 2016. Exhibit H is an order signed on March 2, 2017. Exhibit I is a letter to Pager dated June 13, 2017. Exhibit J is defendant's notice of cross motion dated September 17, 2017. Exhibit K is a copy of a Compliance Part Order dated November 21, 2017. Exhibit L is a copy of a Compliance Part Order dated January 9, 2018. Exhibit M includes letter from Pager dated January 12, 2018, which includes seven HIPAA authorizations signed by Pager. Exhibit N is a letter to Pager, dated January 22, 2018, rejecting plaintiff's HIPAA authorizations as defective. Exhibit O is a letter from Pager dated January 17, 2018 which includes six HIPAA authorizations signed by plaintiff's counsel. Exhibit P is a letter to Pager dated January 24, 2018.

Plaintiff's opposition consists of an affirmation of counsel and five annexed exhibits labeled A through E. Exhibit A is a Consolidated Edison Company form letter regarding the use of life support equipment dated January 3, 2018. Exhibit B is copy of a letter to defendant's counsel, dated January 12, 2018, which includes seven HIPAA authorizations. Exhibit B is a duplicate of defendant's exhibit M. Exhibit C is a letter to defendant's counsel dated January 17, 2018 which includes six HIPAA authorizations. Exhibit C is a duplicate of defendant's exhibit O. Exhibit D includes a copy of a letter to defendant's counsel dated February 19, 2018 which includes thirteen HIPAA authorizations. Exhibit E is a copy of a power to attorney to execute HIPAA authorization forms dated July 29, 2015.

BACKGROUND

On November 11, 2015, plaintiff commenced an action against defendant to [*2]recover damages for personal injuries by electronically filing a summons and complaint

with the Kings County Clerk's Office (hereinafter KCCO). On May 19, 2016, defendant filed its answer with the KCCO.

Plaintiff's complaint, bill of particulars, and supplemental bills of particulars allege the following salient facts. While plaintiff was using a storage unit rented from defendant's storage facility, located at 2561 Knapp Street, Brooklyn, New York, she was exposed to mold and other hazardous conditions due to the negligent maintenance of the area by the defendant or its agents. Plaintiff alleges that the defendant had actual and constructive notice of the hazardous conditions. Plaintiff further alleges that she continues to suffer from medical conditions caused by her exposure to these hazardous conditions.

On September 1, 2017, plaintiff filed a notice of motion pursuant to CPLR 3124 and CPLR 3126 that sought an order to, inter alia, strike the defendant's answer or preclude the defendant from offering evidence as a result of its failure to appear for depositions.

In response, the defendant filed a cross motion pursuant to CPLR 3126 for an order: precluding the plaintiff from offering evidence at trial or, in the alternative, compelling the plaintiff to comply with certain discovery demands.

On November 21, 2017 the court adjourned the aforementioned motion and cross motion to January 9, 2018 and issued an interim order that directed, inter alia, the plaintiff: (1) to provide the defendant with HIPAA authorizations and (2) to identify the health care providers who provided treatment for her alleged medical conditions. With regard to the HIPAA authorizations, plaintiff was directed to check the second box [FN1] under section 9 (a) relating to specific information to be released.

On January 9, 2018, after oral argument the court issued an order (hereinafter the subject order) which denied plaintiff's motion and granted the defendant's cross motion to the extent of requiring the plaintiff to comply with the interim order. The subject order also extended the plaintiff's time for compliance for an additional twenty days. The subject order further stated that "[i]n the event of failure by the plaintiff to comply...plaintiff shall be precluded from offering evidence of medical conditions at trial."

Dismissal due to Self-Executing Preclusion Order

By the instant motion, defendant seeks an accelerated judgment dismissing the complaint pursuant to CPLR 3212 on the basis that the plaintiff is precluded from offering evidence of her medical condition as per a self-executing preclusion provision contained in the subject order. In the alternative, defendant seeks an accelerated judgment dismissing the complaint pursuant to CPLR 3126 for failure to comply with court orders regarding discovery.

With regard to the branch of defendant's motion seeking dismissal pursuant to CPLR 3212, since the relief sought is not discovery, the defendant is not required to submit an affirmation in good faith pursuant to 22 NYCRR 202.7 (a) (see Samuels v Montefiore Medical Center, 49 AD3d 268 [1st Dept 2008]). Furthermore, the burden of establishing noncompliance rests with the defendant as the party seeking preclusion (see Cannon v 111 Fulton St. Condominium, Inc., 162 AD3d 838, 840 [2nd Dept 2018]). Moreover, the defendant must also make a clear showing that the plaintiff's failure to comply with a court order was willful and contumacious (Crupi v Rashid, 157 AD3d 858, 859 [2nd Dept 2018]).

The defendant contends that the plaintiff's repeated failure to comply with the orders issued on November 21, 2017 and January 9, 2018 demonstrates a pattern of willful and contumacious conduct. It further contends that plaintiff failed to provide any documents as required by the interim order and then in January 2018, the plaintiff submitted defective authorizations in violation of the subject order.

In support of its these claims, the defendant has annexed copies of letters received from plaintiff's counsel dated January 12, 2018 and January 17, 2018 which included HIPAA authorizations. Defendant contends that these authorizations included with the January 12th and 17th letters were defective because plaintiff did not check the second box as required. Instead, plaintiff checked the third box marked "Other" and included the following typed language "Medical Records Unrestricted in Time."

A failure to produce requested items on or before a date certain in a conditional order may render the order absolute (see Tanriverdi v United Skates of Am., Inc.,164 AD3d 858 [2nd Dept 2018], citing Wilson v. Galicia Contracting & Restoration Corp., 10 NY3d 827, 831 [2008]). To be relieved of the adverse impact of a conditional order, plaintiff must demonstrate a reasonable excuse and a potentially meritorious cause of action (Id.).

Here, plaintiff's opposition contends that she complied with the directives in the subject order. Plaintiff's opposition is supported by an affirmation of Pager, her counsel, as well as, some exhibits including a letter dated February 19, 2018 to defendant's attorneys. The letter includes thirteen HIPAA authorizations signed by Pager that checked the second box under section 9 (a) as the defendant had previously requested. Pager has contended that the plaintiff's confinement due to her medical condition prevented him from complying with the previous orders. In support of this he has annexed a letter from Consolidated Edison (hereinafter ConEd letter) dated January 8, [*3]2018 confirming that the plaintiff was on life support. The letter also includes a description and picture of the life support equipment, namely, a Philips Respironics InnoSpire Essence compression nebulizer system.[FN2] Pager has also annexed a copy of a power of attorney signed by plaintiff dated July 29, 2015 which enabled him to sign the HIPAA authorizations on the plaintiff's behalf.

Plaintiff's submissions, however, did not include an affidavit by Russo or an affirmation by a treating physician regarding plaintiff's current medical condition. As the defendant's reply correctly stated, plaintiff's ConEd letter was not in an admissible form. Pager's affirmation also did not explain why he did not provide the correct HIPAA authorizations back in November 2017 when he was authorized to do with the power of attorney. Therefore, plaintiff's opposition papers failed to demonstrate a reasonable excuse (see Corex-SPA v Janel Group of New York, Inc., 156 AD3d 599, 602 [2nd Dept 2017]).

Nevertheless, it is generally understood that "actions should be resolved on their merits whenever possible" and that the preclusion of all evidence is a drastic remedy (see Tanriverdi v United Skates of Am., Inc. ,164 AD3d 858 [2nd Dept 2018]). The general rule is that a court must impose a sanction commensurate with the particular disobedience it is designed to punish (Zakhidov v Blvd. Tenants Corp., 96 AD3d 737, 739 [2nd Dept 2012] citing Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3126:8).

In sum, plaintiff, through a series of missteps committed by her counsel did not fully comply with the subject order. Before the defendant made the instant motion, plaintiff was not a hundred percent compliant with the subject order. The Court finds, however, that plaintiff has indeed finally submitted HIPAA authorizations that comply with the subject order. Based on the foregoing, the Court does not find plaintiff's conduct rises to the level of willful and contumacious conduct meriting dismissal as a sanction. The more provident exercise of discretion under these circumstances is to impose a monetary sanction on plaintiff's counsel payable to the defendant (see George v Massachusetts Plate Glass Ins., 97 AD2d 748 [2nd Dept 1983]; see also Zakhidov v Blvd. Tenants Corp., 96 AD3d 737, 739 [2nd Dept 2012]).

Dismissal Pursuant to CPLR 3126

CPLR 3126 addresses the penalties for refusal to comply with an order or to disclose as follows:

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or [*4]wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:(1) an order that issues to which the information is relevant shall be deemed resolved for the purposes of the action in accordance with the claims of the party obtaining the order; or(2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion (see Chowdhury v Hudson Val. Limousine Serv., LLC, 162 AD3d 845 [2nd Dept 2018]. Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with a court order was willful and contumacious (Crupi v Rashid, 157 AD3d 858, 859 [2nd Dept 2018]). For the reasons previously indicated, defendant did not make a clear showing that plaintiff's conduct was wilful or contumacious.

Moreover, contrary to the branch of defendant's motion seeking dismissal pursuant to CPLR 3212, discovery related motions pursuant to CPLR 3126 do require an affirmation of good faith (see Vera v New York El. & Elec. Corp., 150 AD3d 927, 928 [2nd Dept 2017]; 22 NYCRR 202.7[a], [c]). Here, the defendant failed to provide an affirmation of a good-faith effort to resolve the discovery dispute, as required by 22 NYCRR 202.7 (Murphy v County of Suffolk, 115 AD3d 820 [2nd Dept 2014]).Therefore, this branch of defendant's motion is denied.

CONCLUSION

Defendant Public Storage Inc.'s motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint based on a self-executing preclusion order is denied.

Defendant Public Storage Inc.'s motion for an order pursuant to CPLR 3126 dismissing the complaint due plaintiff's willful and contumacious failure to comply with multiple court orders is denied.

Plaintiff's counsel, William Pager, Esq., is directed to pay defendant's counsel $250.00 on or before October 26, 2018 as costs for the tardy compliance with subject order.

The foregoing constitutes the decision and order of this Court.

Enter:

[*5]

J.S.C.

Defendant failed to demonstrate that plaintiff's conduct in failing to fully comply with self-executing preclusion order was willful and contumacious Footnotes

Footnote 1:The standard HIPAA form under section 9 (a) has three boxed categories that one may check: the first box allows you to release medical records within a specific date range; the second box has the following language "Entire Medical Record, including patient histories, office notes (except psychotherapy notes) , test results, radiology studies, films, referrals, consults, billing records, insurance records, and records sent to you by other health care providers;" and the third box indicates "Other" category.

Footnote 2:A compression nebulizer is a medical drug delivery device used to administer medication in the form of a mist inhaled into the lungs. The Philips model is noted to be compact and have a short treatment period of under ten minutes.