P.P. v Hillside Park 168 LLC

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P.P. v Hillside Park 168 LLC 2019 NY Slip Op 32902(U) August 14, 2019 Supreme Court, Queens County Docket Number: 711521/16 Judge: Robert I. Caloras 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. [*FILED: 1] QUEENS COUNTY CLERK 08/21/2019 04:03 PM NYSCEF DOC. NO. 71 INDEX NO. 711521/2016 RECEIVED NYSCEF: 08/21/2019 Short Form Order NEW YORK SUPREME COlJRT- QUEENS COUNTY PRESENT: HON. ROBERT l CALORAS PART 36 Justice ------------------------------------------------------------------~ P.P., M.P. and D.P., infants under the age of 14 years By their Mother and Natural Guardian, NlJRlJN NAHAR, and NtrRUN NAHAR, Individually, Index No. 711521/16 Motion Date: 6/27/19 Motion Cal. No. 27, 28 Seq. No. 2, .) Plaintiff, -againstHILLSIDE PARK 168 LLC and ZARA UEALTY HOLDING CORP. CHRISTINA CANDACE WYNN, Defendants -------------------·•••------------------------------------•nmmmonmmm-X HILLSIDE PARK 168 LLC and ZARA REALTY HOLDING CORP.• FILED AUG 21 2019 COUNTV CLERK QUEENS COUNTY Third-Party Plaintiffs, -against.PRESTIGE PEST CONTROL, Third-Party Defendant. ------------------------------------------------------------------)( The following papers numbered E34-E50, L52-E58 read on this inotion by plaintiff for an order pursuant 10 the CPLR compelling ddcndants lo produce Court . ordcrcd discovery: and upon defendants motion pursuant to CPLR 304~ and 3126 precluding the plaintiffs from offering any testimony or evidence at trial regarding mcdi\~al trcat1fa.~nl frff the failure to properly provide unrestricted authorizations pursuant to the April 4. 2019 Order and dismissing the complaint. PAP ERS .N..U.f~1J3..b.R.!,~12 Notice of Motion-i\ffinnation-Fxhibits .......................... . Affirmation in Opposition··Exhibits .... .. .... ...................... . Notice of Motion-Affirmation" Exhibits ..... .. ........... .... .... . - !- 1 of 5 E34-E37 E5J .. E55 E38-E49 [*FILED: 2] QUEENS COUNTY CLERK 08/21/2019 04:03 PM NYSCEF DOC. NO. 71 INDEX NO. 711521/2016 RECEIVED NYSCEF: 08/21/2019 Affirmation in Oppo~ition ..... ... ...................... ..... ..... ....... . /\fiirmation in Oppositkrn ..... ........ .... ..... ....... ..... ....... ..... .. Reply Aftimiation-I :xhihit. .......... ............ .. .......... ..... ...... . 1: 50 E52 I:56-E58 Upon the foregoing papers, it is ordered that plaintiffs' moticm and defendants' motion are dckrmincd as follnws: In the Complaint, the plaintiffa alkgc that the defl:ndant · <lid not properly provide extermination services toils building located at 88-1 5 I68th Stred, /\rL 7R, Janrnica, New York 114.32, during a bedbug infestation throughout the huilding. i\s a resulL plaintiffs allege tlrnt they sustained injuri1..·~. Plaintiffs now move for an order compelling th1..· dekndants to respond to their Combined Demands. In the Combined Demands. plaintiffs requested Lhc following documents: i. Any and all I lousing Preservation and Developm1..·nt violatinns for years of incident and three (3} year:.=; prior r(·ceived by def'cndams regardi ng verm in, including mice, cockroaches and bedbugs. ii. Any and all .311 comp laints regarding vermin including bedhugs, mice, cockroaches rccei vcd by dckndarns for y1..·ars of incident and three (3) years prior. iii . Identi ty all other arartmenLs that \Vere infested and identify occupan ts that made comrlaints regardi ng vermin including bedbugs, cockroaches and mice for yl'ar~ of incid1..·nt and thrL'l' ( 3 ) years prior. iv. All writt1..·n report s, records invoiCL'S of exterminator records for the subject building regarding all apartments for the year:- of incident and .3 years prior. Such recnrds should include exterm ination of ::ill vermin, includ ing bed bugs. mice and cockroaches. v. Any and alI L'OITL'spondcncc bet ween defendants an d such exterminator. vi. Ail work orders. service tickets Jnd maintenance records of plaintiffs· apartment for thr1..'l' years prior to a(xidcnt/incidcnt. vii. All maintcnanc1..· recorJs, inspection records. scrvic1.: orders and work tickets regard ing hcdbug condi tion for all apartments three years prior to accident/incident On March 5, 2018, defendants r°l.'Spondcd to plain t iff'~; Combinl'd Demands, and exchanged the extermination n:cnrds for plaintiffs' apartmL·nt. 1Iow1..·vcr. plai11tif1S claim that defendants faikd to produce extcrminalion records for the building, I If>D Violations, DOB 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 08/21/2019 04:03 PM NYSCEF DOC. NO. 71 INDEX NO. 711521/2016 RECEIVED NYSCEF: 08/21/2019 Violations. 3 11 Complaints, evidence of other infestJtions. work orders, maintenance records relatL:d to bed bug conditions for all apartments in thl'. building. Plaintiffs argui.: that the I IPI) violations. DOB violations and 31 l complaints arc rekvant as to what notice the dekndant owner ~rnd defendant management eomrany had with respect to an infestation throughout the building prior to plainti ffs· injuries. t\s to defendants' other objections to plaintiff;;' demands. pl aintiffs have submitt . :d an affidav it from Jeffrey l ~isL·nbcrg. a licensed exterminator in New York and N(·w Jersey. and Sl'Vl:ral articles. In opposition. defendants argue that they properly ohjcctcd to plaintiffs· demands for .31 l compl aints. HPD violations. DOB Vi olat ions, extermination records. and records for all apartment s as to bedbugs. cockroaches and mire fr1r 3 years prior as to every apartment, is unduly hurd(·nsome and overbroad. Defendants assert that there are approximately 192 apartments in this building. and that rlaintifls have made no showing. with adrn issihlc, evidence tlut they would be entitled to breach the privacy of 191 other tenants. Defendants argue that the privacy of the other tcnanb ou tweighs the rnxd for discovery. Detcndants f'urth..:r argue that the demand is overbroad. as it requL·sts itL·ms related not only 11.1 bed hugs, but verm in , cockroaches and mice. There is no claim for bites relating to any of Lhesc other things. rherefore, defendants argue that these items arc clearly not wi thin the scope of discovery. Det"cndants further argue that the Court should not consider Mr. Eisenberg ·s affidavit because it was not sign~:d. and that thL· other documems plaintiffs attached thereto should also nN be considered because they arc not in a proper form . Pursuant to CPLR .310 I( a), "I tjherc sha ll he fl.di di sclosure of all matter material Jnd necessary in th e prosecution ... of an action.·· The words ··material and n<..'cessary" are to lll~ interpreted liberally to re4uire disciosun:. upon requL·st. of any fa.cts beari ng on thi..· controversy which will assist preparation for trial (M.C. v City of New York, 173 t\.D.3d 728 I2d Dept. 20 19] ). ··I he supervision of disclosure and the setting of reasonable terms and condit ions therefor rests vvithin the sound discretion <.)f the trial cow1 arnt absent an improvident C\ ercise of that discri..·tion. its determination will not be disturbed" CM.,.C.:. .Y.C.iW t)f New York. surra ). Here, the Court fi nds that the plaintiffs· have failed to demonstrate that defendants are ob li gatt~d to di sclose documents for I lPD violations, DOB violations. and 3 11 complaints. In as much as thL·se documents arc ohtainahle as puhlk records, the defcnJants are not rL'LJUircd to provide same to the plaintiffs (sec e.g .. Villa v New York City Housing Auth ority, 107 AIY~d 619. 621 I l st Dept 1985 j). Accordingly. plaintiffs' demands for these records arc strickrn , and the branch of the motion seeki ng thest· records is denied. t\s to the rern~-i.ining demands, the C\1urt finds that Mr. Eisenberg·s affidav it is -3 - 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 08/21/2019 04:03 PM NYSCEF DOC. NO. 71 INDEX NO. 711521/2016 RECEIVED NYSCEF: 08/21/2019 inadmissible, because he did not sign it. [ hereforc, the attachments annexed to Mr. Fiscnberg's affidavit arl' also inadmiss ible. With respl'Cl to the n:niaining demands for documents pertaining to the other apa11ments in plaintiffs' building, plaintiffs· argue that these documents arc relevant in determining whether dcfcndams acted cotTectly in preventing the spread of the infestation prior to, and throughout, the infest.at ion in plai ntiffs' apartment. Thl' Cou rt also notes that in th<: Compliance Confot'l'ncc Order, dahxl November 15. 20 l 8, the third party defendant was dirl'Cll:d hi provid~ l'Xtcnnination records for the buildi ng for six months prior to the date of loss. lJnder these circumstances. the Court finds that extermination records for the apartments in plaintiffs' building in the "R .. line for six months prior to the date of thL· al leged incident is discoverabk. The Court furt her fin ds that the defendants have not set forth a basis to limit discovery to bed bugs. However. the Court docs agree with the defendants concern regarding the tenants· privacy. Therefore. the defendants shall rrovidc plaintiffs in 45 days, redacted records only showing the apartment number, rnaintenanCL' records., inspection records, scrvicl' orders and work tickets rcg<.mJing for six months prior to the date or the alleged incident. In defendants motion. they are requesting that the Court issue an order pursuant to CPLR .3042 and .3126. prec luding the plaintiff) fron1 offering any testimony or evidence at tri al regarding rnl·d ical trL·aunent for the failure to prop1.~rly provide 1.mtTstrkted authori1alio11s pursuant to the April 4. 2019 Order, and dismissing the complaint. On April ..+, 20 19, thi s Court ··so Ordered" a st ipulation wherein plaintiff.<; where directed to provide unrestricted authorizations for rhe folimving: as to pbintiff Nurun - Dr. ! lossian. Medicaid. Employment authori1.ations for 2 yt><irs prior to date. and for the thrc<: infant p laintiffs - DR. Singh. pt:d iatrician records. Medicaid/Co ll ateral Source, and school rl·corcls for two years prior to dak. The Stipulation further directed that failurl' to provide these authorizaticms in thirty days wi ll result in plaintiff-:; heing precluded from providing testimony or evidence regarding lost wages and nk·dical trl·auncnt. Dckndanb claim that the authorizations plaintiffs provided were not in compliance with the Stipulation. hecause they were date restricted and did not inc lude all the authorizations plaintiffs were dirl'cted to provide. Therefore, defendants argue that plaintiffs' have willfully failed to comply with the tenns of the Stipulation. As such, dl'fcndants argue that plainti tTs should be precluded from of'Jcring testimony regarding their medical treatment or injuries. and tile Complaint should be dism issed pursuanl to CPLR 3126. Third pa11y defendant joins in v,:ith defendants request, claiming that plaintiffs have not prov ided thcrn wi th the discovery dir1.-ctcd in th1.· Stipulation. In opposition, plaintiffs claim that annexed to their affirmation in opposit ion arc thl· -..+- 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 08/21/2019 04:03 PM NYSCEF DOC. NO. 71 INDEX NO. 711521/2016 RECEIVED NYSCEF: 08/21/2019 following: for plaintiff Nurun Jhar: unrestricted authorization for Dr. Hossain, Medicaid, and primary care doctor: and for thl' three infant plaintiff..,: unn.·stridcd arnhori1.ations with regard to Dr. Singh, pediatrician records, Medicaid or collateral source, and school records for two years prior to date. Plainti ff asserts employmcm records for Nurun Nahar are not applicable hecause she has withdrawn her claim for lost w:iges. Therefore. plaintiffs argue that they havl' complil'd with the Stipulation. and that the motion should be denied. In reply. defendants assert that the authoriLations that plainli tTs claim to have annexed to their affirmation in opposition do not contain any exhibits with said authori;:ations. Uron review of the 1 ~:-filed documents plaintiff:; filed in response to defendants motion, it appl'ars that thl.' exhibits containing the authori1.ations dirl'ctcd in the Stipulation were not E-fikd. Ba cd upon plainLiffs statements in thl.' affirmation in support. the Court finds thal the plaintiffs have made substantial l'.fforts to comply with the Stipulation, and that the failure to upload the authori1.ations were an oversight. Therefore, the Court wi ll provide thl' plaintifts with one final opportunity to comply with the Stipulation. As such, plaintiffs arc directed to provide the authorizations to defendants and third party defendant within 30 days, or the Complaint shall be dismissed pursuant to CPLR 3126. This condition order shall he self executing, without further order of the Court. Based upon the foregoing. plaintiffs· motion is granted in part and denied in pan, and defendants· motion is granted. Dated: August 14, 2019 ROBERT I. CALORAS, .J.S.C. FILED AUG 21 2019 COUNTY CLERK QUl!!NS COUNTY -5- 5 of 5

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