Del Grosso v Jimmy Jazz Staten Is., LLC

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Del Grosso v Jimmy Jazz Staten Is., LLC 2019 NY Slip Op 33401(U) November 18, 2019 Supreme Court, New York County Docket Number: 152912/2016 Judge: Arlene P. Bluth 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] NEW YORK COUNTY CLERK 11/18/2019 12:29 PM NYSCEF DOC. NO. 126 INDEX NO. 152912/2016 RECEIVED NYSCEF: 11/18/2019 / SUPREME COURT OF THE STATE OF NEW YORK . NEW YORK COUNTY PRESENT: IAS MOTION 32 PART HON. ARLENE P. BLUTH Justice --------------------------------------------------------------------------------X VINCENT DEL GROSSO, Plaintiff, INDEX NO. 152912/2016 MOTION DATE N/A MOTION SEQ. NO. 003 -vJIMMY JAZZ STATEN ISLAND, LLC,GENERAL GROWTH PROPERTIES, INC.,GENERAL GROWTH SERVICES, INC., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X GGP STATEN ISLAND MALL, LLC isha GENERAL GROWTH PROPERTIES, INC. and GENERAL GROWTH SERVICES, INC., Third-Party Index No. 595978/2017 Plaintiffs, -againstALL-RITE CONSTRUCTION COMPANY, INC., K&R ELECTRIC COMPANY, INC. Defendant. · --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, ~7, 98, 99, 110, 111, 112, 113, 114, 115 DISCOVERY were read on this motion to/for i' The motion by third-party defendant K&R Electric Company, Inc. ("K&R") to compel is granted. The cross-motion by plaintiff for a protective order precluding defendants from seeking discovery related to potential substance abuse, authorizations permitting the release of certain information and from seeking authorizations for purportedly unrelated medical treatment is denied. i ' I I 152912/2016 DEL GROSSO, VINCENT vs. JIMMY JAZZ STATEN ISLAND, LLC Motion No. 003 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 11/18/2019 12:29 PM NYSCEF DOC. NO. 126 INDEX NO. 152912/2016 RECEIVED NYSCEF: 11/18/2019 Background This Labor Law action relates to the construction of a Jimmy Jazz store located on Statell Island. Defendant GGP Staten Island Mall, LLC ("GGP") owns the property and defendant Jimmy Jazz Staten Island, LLC ("Jimmy Jazz") was the tenant where the construction work was being performed. Third-party defendant All-Rite Construction Company, Inc. ("All-Rite") was the general contractor for the project and plaintiff worked for K&R, which was hired to do electrical work on the site. Plaintiff claims that he was injured when he moved a 12-foot ladder and an object resting on top of the ladder fell and hit him in the head. Plaintiff contends he has suffered a traumatic, brain injury and has issues with cognitive function stemming from the accident. K&R seeks certain discovery from defendant Jimmy Jazz and from plaintiff, including authorizations relating to potential substance abuse treatment and mental health issues. Plaintiff I ' cross-moves for a protective order regarding K&R's request for authorizations relating to plaintiffs mental health records. Plaintiff contends that K&R is not entitled to receive any 'records concerning plaintiffs drug or alcohol status without a compelling need. Plaintiff argues that he need not check box 9(a) on the authorizations and that K&R's requests are merely a fishing expedition. Plaintiff complains that K&R did not provide an affidavit from a medical professional demonst~ating the need for its requested authorizations. In opposition to the cross-motion, K&R explains that it is not seeking information related to a potential HIV status but is seeking information about plaintiffs purported subst~mce abuse. K&R emphasizes that plaintiff contends he is suffering from a brain injury that has hindered his cognitive abilities. K&R insists that it is entitled to know about plaintiffs cognitive abilities before the accident and that includes any II!ental health issues. 152912/2016 DEL GROSSO, VINCENT vs. JIMMY JAZZ STATEN ISLAND, LLC Motion No. 003 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 11/18/2019 12:29 PM NYSCEF DOC. NO. 126 INDEX NO. 152912/2016 RECEIVED NYSCEF: 11/18/2019 Discussion As an initial matter, the branch of K&R's motion against Jimmy Jazz is granted as Jimmy Jazz did not submit opposition. CPLR 3 lOl(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." "The words material and necessary, are ... to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406, 288 NYS2d 449 [1968] [internal quotations omitted]). "Discovery demands are improper if they are based upon hypothetical speculations calculated to justify a fishing expedition" (Forman v Henkin, 134 AD3d 529, 530, 22 NYS3d 178 [1st Dept 2015] [internal quotations and citation omitted]). Additionally, "discovery determinations rest within the sound discretion of the trial court" (Andon ex rel. Andon v 302-304 Mott St. Assocs., 94 NY2d 740, 745, 731 NE2d 589 [2000] [citations omitted]). Plaintiff primarily relies upon Nesbitt v Advanced Serv. Solutions (173 AD2d 1056, 100 NYS3d 877 [2d Dept 2019]) for the proposition that K&R cannot obtain the requested information without an affidavit from an expert. However, plaintiffs reading of Nesbitt is simply too broad and the Second Department noted that the defendants had "failed to make any effort to link any sucli information to plaintiffs ability to recover from his injuries or his prognosis for future enjoyment oflife" (id. at 1057). The Court declines to read Nesbitt to require a defendant to submit an expert's affidavit every time sensitive information is sought from an allegedly-injured plaintiff. of 5 ISLAND, LLC 152912/2016 DEL GROSSO, VINCENT vs. JIMMY JAZZ3STATEN Mntinn Nn_ 003 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 11/18/2019 12:29 PM NYSCEF DOC. NO. 126 INDEX NO. 152912/2016 RECEIVED NYSCEF: 11/18/2019 Here, there is a clear link between the information sought by K&R concerning mental health/substance abuse records and the injuries that plaintiff claims he continues to suffer. Put another way, K&R is entitled to know what plaintiffs mental health condition and cognitive abilities were before the accident so that they can be compared with his current status. Obviously, K&Rcannot be held liable for plaintiffs cognitive issues to the extent that they arise from conditions originating from before the accident. While the Court recognizes that the information sought by K&R is personal and sensitive, the fact is that plaintiff brought a lawsuit alleging that he suffers permanent cognitive restrictions. Based on that allegation, the Court cannot conclude that K&R' s request is a fishing expedition. Instead, it appears to be a highly relevant request for information that can shed light on the extent of plaintiffs purported damages. It would be wholly unfair for a plaintiff to claim that he suffered a serious brain injury and not allow K&R to assess what his cognitive function was prior to the accident. Whether plaintiff experienced substance abuse challenges or mental health issues and whether he took medication to address those conditions is pertinent to his claims in this case. This information is material and necessary for K&R's defense of this action. Accordingly, it is hereby ORDERED that the motion by K&R Electric Company, Inc. is granted in all respects; and the cross-motion by plaintiff is denied in its entirety; and it is further · ORDERED that plaintiff must submit the requested authorizations on or before December 19, 2019. 152912/2016 DEL GROSSO, VINCENT vs. JIMMY JAZZ STATEN ISLAND, LLC Motion No. · 003 1 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 11/18/2019 12:29 PM NYSCEF DOC. NO. 126 INDEX NO. 152912/2016 RECEIVED NYSCEF: 11/18/2019 Next Conference: February 25, 2020 at@2:15 p.m. DATE I CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED SETTLE ORDER D ·~ DENIED INCLUDES TRANSFER/REASSIGN . NON-FINAL DISP GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT . 152912/2016 DEL GROSSO, VINCENT vs. JIMMY JAZZ STATEN ISLAND, LLC 5 of 5 Motion No. 003 0 D OTHER REFERENCE Page 5 of 5

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