Punter v New York City Health & Hosps. Corp.

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Punter v New York City Health & Hosps. Corp. 2019 NY Slip Op 34239(U) November 4, 2019 Supreme Court, New York County Docket Number: 805071/2015 Judge: George J. Silver 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 11/08/2019 12:23 PM INDEX NO. 805071/2015 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART _____:/_c)_ PRESENT: Justice tu)/ o11), t Index Number: 805071/2015 PUNTER, IESHA INDEX NO. vs MOTION DATE_--,.-~..-- NEW YORK CITY HEALTH AND MOTION SEQ. No{d..J Sequence Number : 003 3) RENEWAL The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ _ __ I No(s). _ _ _ _ __ I No(s). _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is w () j:: u, ..,:::::, 0 I- C w 0:: 0:: w w LL 0:: .. granted in accordance with the attached decision and order. The court, however, adheres to its initial ruling with respect to audit trails upon reargument, as indicated. >- e z .J .J :::::, 0 LL U, I- <( () w w 0:: 5; (!) !!2 w ~.J w z a::: - fl) <( () .J 0 LL w z- ::c 0 I- i= a::: 0 0 :E LL Dated: fl. ,,.J ~ /, J. I { f BON. 1. CHECK ONE: ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER • DO NOT POST 1 of 3 NON-FINAL DISP~ITION O DENIED 0 0 GRANTED IN PART i!1'OTHER • SUBMIT ORDER FIDUCIARY APPOINTMENT O REFERENCE [*FILED: 2] NEW YORK COUNTY CLERK 11/08/2019 12:23 PM NYSCEF DOC. NO. 129 INDEX NO. 805071/2015 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK, PART 10 -------------------------------------------------------------------X IESHA PUNTER Index NQ.: 805071/2015 Hon. GEORGE J. SIL VER -against- NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al. Justice Supreme Court -------------------------------------------------------------------X The following papers numbered 1 to 3 were read on this motion to REARGUE (Seq. 003): Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits No(s). No(s). No(s). 1, 2 2,3 3 Plaintiff IESHA PUNTER's ("plaintiff'') motion to reargue this court's decision and order dated April 12, 2019, and defendants' cross-motion, are decided as follows: A motion for leave to reargue under CPLR §2221, "is addressed to the sound discretion of the court and may be granted only upon a showing 'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision"' (William P. Pahl Equipment Corp. v Kassis, 182 AD2d 22 [1st Dept 1992] Iv denied and dismissed80 NY2d 1005 [1992], rearg. denied81 NY2d 782 [1993]). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided (Pro Brokerage v Home Ins. Co., 99 AD2d 971 [1st Dept 1984]) or to present arguments different from those originally asserted (Folry v Rnche, 68 AD2d 558 [1st Dept 1979]; Pahl Equip. Corp., 182 AD2d at 27, supra). Here, on reargument the court's attention is drawn to fact that this court's April 12, 2019 order, as originally drafted, indicated that it relied on the trial court's ruling in Vargas v. Lee, 2015 NY Slip Op 31048 U (Sup, Ct. Kings Co. 2015), which was subsequently reversed by the Appellate Division, Second Department (see Vargas v. Lee, 179 AD2d 1073 [2d Dept. 2019]). Since the Appellate Division, Second Department, in Vargas reversed the trial court's denial of plaintiff's request for an audit trail, plaintiff submits that this court should also reverse its decision not to permit plaintiff to obtain an audit trail. -~ Setting aside the fact that Vargas was decided by the Appellate Division, Second Department, rather than the Appellate Division, First Department, the court notes upon reargument that the trial court's initial determination in Vargas is so factually distinguishable from the instant case that this court's initial reliance on it was in error. To be sure, in Vargas, following the deposition of a defendant doctor, plaintiffs made a motion to compel the production of an electronic audit trail after learning that portions of the medical record were withheld, notwithstanding the defendants' representation that they had provided plaintiffs' attorney with a complete set of medical records. That factual predicate is precisely why the Appellate Division, Second Department, found that plaintiffs had demonstrated that dis~lo_sure of the. audit trail was ~e:~ssary ~o assist in trial preparation, since the audit trail would help plrunnffs ascertain whether the 1runal panent records they were provided with were complete and unaltered. 2 of 3 [*FILED: 3] NEW YORK COUNTY CLERK 11/08/2019 12:23 PM NYSCEF DOC. NO. 129 INDEX NO. 805071/2015 RECEIVED NYSCEF: 11/08/2019 Here, there has been no showing that defendants have withheld records from plaintiff. Had there been a basis in the record from which plaintiff could conclude that the hospital withheld portions of plaintiff's hospital record, this matter would he factually similar to the trial court decision in Va,;gas. Instead, here there is no claim or allegation relating to lost or altered records. In fact, this court's April 12, 2019 order made reference to that fact, noting that "plaintiff has made no allegation that the EMRs are inauthentic or improperly altered." The plaintiffs in Va,;gas had made such a showing, a fact that this court initially overlooked but that the Appellate Division, Second Department, correctly found. As such, plaintiff's questioning of this court's initial reliance on Va,gas is correct, but for different reasons than those proffered by plaintiff. To be sure, the court did not incorrectly deny the application for an audit trail. Rather, the factual dissimilarities between the trial court findings in Va1;gas and the instant case, make Va,gas distinguishable. To the extent that it applies, the Appellate Division, Second Department, correctly found that the trial court in Va,gas erred insofar as it did not appreciate the factual support proffered by the plaintiffs. Here, where plaintiff did not provide factual support analogous to what was divulged at the trial court-level in Va,gas, this court correctly found that plaintiff is not entitled to an audit trail at the present juncture in this litigation. Therefore, it is hereby ORDERED that the branch of plaintiff's motion to reargue this court's decision and order of April 12, 2019 with respect to the denial of an audit trail, is granted, and upon reargument, the court modifies its earlier determination with respect to the reasoning for denying plaintiff's application for an audit trail, but still adheres to its finding denying plaintiff's requested relief for an audit trail for the reasons articulated; and it is further O ORJ:)ERE1D thil tpe parties are directed to appear for a conference before the court on et.dl4' I ' 1 at 9:30 AM at the courthouse located at 111 Centre Street, Room 1 York (Part 10). New of City 1227 in the County and This constitutes the decision and order of the court. N'""''~ f, Da~ Hon.~~ /. d J.•tfGE(;i(.i: s1LVER, J.s.c. · 1·: ~~;~~·~N~.:.::::.~.::·.:.:: ....~~·······:·:::·::::·::.~.::::.::::.~.::.:.::~····'"- --· •· 2· MOTION (SEQ. 003) ................................................... i-~~-~;~~;~-~D ~~~2~?r~G~S-E~!-~~~~IN • DENIED 'q{iRANTED 2 3 of 3 • GRANTED IN PART • OTHER

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