Rosenblum v Valentino

Annotate this Case

Download PDF

Rosenblum v Valentino 2020 NY Slip Op 35305(U) January 29, 2020 Supreme Court, Suffolk County Docket Number: Index No. 611398/15 Judge: Carmen Victoria St. George 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. INDEX NO. 611398/2015 FILED: SUFFOLK COUNTY CLERK 01/30/2020 10:33 AM NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 01/30/2020 SUPREME CO RT - ST ATE OF EW YORK TRIAL TERM, PART 56 SUFFOLK CO NTY PRESENT: Hon. Carmen Victoria St. George Justice of the Supreme Court - - - -- - -- - - -- - - -- -- - - -- X LONNY ROSENBLUM and ABBY ROSE BLUM, In dex No. 611398/ 15 Plaintiffs, -againstMotion Seq: 004 Mot D 005 Mot D 007 Mot D Decision/Order DANIELLE VALE TINO, GREAT LLC and JAMES CUSH, ECK NISSAN Defendants. - -- - -- - - -- - - - - - - -- - -- - X The following electronicall y-fi led papers were read upon this moti on: otic of Motion/Order to Show Cause ...... ... .. . Answering Papers ... .............. ...... ...... .......... . Reply ........ .... ............. . ... .......... .. . . .. ...... ... . Briefs : Plaintiff's/Petitioner' s . ... . . . . ... .. ..... ... .. . Defendant 's/Respondent s . . ... . .. . . . . . . ... . 89-101 ; 103-17; 155-63 143-48; 149-54; 205 -1 2 234· 236 This series of motions concerns whether pla intiff Lonny Ro enbl um ' s rehabilitation records from Sierra T ucson, located in Ari zona, certain pharmacy records from 110 Pharmacy and CVS Pharmacy, and HIPPA authori zations for Empire Blue Cro co llateral source records and Steven Silverman, M.D. should be di closed to defendants in thi s motor vehicle accident lawsuit whereby pl ai ntiffs seek to recove r damages for personal and derivative injuries allegedly sustained as a result of the subject accident that occurred on Octobe r l 2014. Defendant Danielle Valentino moves this Court for an Order dismissing the compl aint for fai lure to respond to the defendant's otice for Discovery and Inspection dated July 24, 2018 (July 24 th D & I) or in the alternative to compe l the plaintiffs to provide complete responses by a date certai n (Mo tion Sequence 004). [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 01/30/2020 10:33 AM NYSCEF DOC. NO. 244 INDEX NO. 611398/2015 RECEIVED NYSCEF: 01/30/2020 Defendant James Cush requests the same relief rel ative to his discovery demand dated Octob r 30, 2018 in Motion Sequence 005. 1 Plaintiffs move thi s Cou11 fo r a protective order concerning the same discovery demanded b y both moving defendants, precluding the defendants from compelling the plaintiff Lonny Rosenblum to sign section 9A of HTPPAA auth orizations for his rehabilitation records, or in the alternative, having this Court co nduct an in camera review of the subject reco rd s to determine which records are discove ra bl e (Motion Sequence 007) . Plaintiffs oppose Motion Sequences 004 and 005. T he moving defendants oppose Moti on Sequence 007, maintaining that since plaintiff Lonny Rosenblum has not specifically withdrawn his claim for loss of enjoyment of li fe, th y are ent itled to the entirety of the subject records, w ithout an in camera inspection by this Court. CPLR s 3 101 (a) requi res '·full disclosur of al l matter material and necessary in the pros ution or defense of an action regardles of the burden of proof" and the words " material and necessary" "ar ... to be interpreted liberall y tor quire disclosure. upon request of any facts bearing on the controversy which w ill assi t preparation for trial by sharpening the issues and reducing del ay and prolixity. The test is one of usefulness and reason" (Allen v. CrowellCollier Publishing, Co., 21 Y2d 403 , 406 [1 968]). Discovery requests must be evalu ated on a case-by-case basis, and absent an error of law or an abuse of di scretion, the determination of a di covery dispute rests within the sound discretion of the trial court (Forman v. Henkin, 30 NY3d 656, 662 [2018]; Andon v. 302-304 Mott Street As.mes. , 94 NY2d 740, 747 [2000]) . Plaintiffs have served a Bill of Particul ars and six Supplemental Bills of Particulars.2 The origi~al Bill of Pm1iculars contains the languag claiming that the many injuries Lonny Rosenblum alleges he sustained as a result of the subject motor vehicle accident have ' prevented (him] from enjoying the normal fruits of soc ial act iviti s." T he First through Fifth Supplemental Bills allege either the same language or that the injurie caused and/or contributed to '·a lesser quality of life. ' Clearl y, this type of language wou ld entit le the defendants to the requ st d discovery in its entirety because by so claiming. plaintiff Lonny Rosenblum has put his entire medical condition in controversy . The reque ted di covery would be material , relevant and neces ary to the issue of damages (Greco v. Wellington Leasing, L.P., 144 AD3d 98 1 (2d Dept 2016]' Montalto v. Heckler, 113 AD3d 741 [2d Dept 2014]; M.C. v. Sylvia Marsh Equities, Inc. 103 AD3d 676 [2d Dept 2013 ]) . In this case, however, plain tiffs contend that they have withdrawn the claim implicating loss of enjoyment of life by serving their Sixth Supp le mental Bill of Particulars dated November In the in terest of judicial economy, the Cou rt will none theless consider defendant Cush's moti on although it is im properly denominated as a era ·s-motio n to Valentino's motion. 2 Thi Cou rt has not yet issued a trial Ce11ification Ord er; the refore, no ote of Issue has been fil ed in thi s action. 1 2 [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 01/30/2020 10:33 AM NYSCEF DOC. NO. 244 INDEX NO. 611398/2015 RECEIVED NYSCEF: 01/30/2020 13 , 2018 that does not contain any of the loss of njoyment of life language contained in the preceding Bills/Supplemental Bills. 3 The Court has reviewed the Sixth Supplemental Bill and it do not contain any of the language at issue. Whether the plaintiffs should have serv d an amended ' Bill of Particulars to effect the withdrawal of the loss of enjoyment of life claim is at this point most efficiently dealt with by thi s Court ' determination that, based upon plaintiffs' representation that they no longer assert a claim for loss of fruits of life, mental a~guish anxiety, or loss of enjoyment of life, coupled with the Sixth Supplemental Bill eliminating this language, the Sixth Supplemental Bill of Particulars i de m d an amendment/withdrawa l of plaintiffs' claims in that regard; however, the analysis does not end here. Plaintiffs have not withdrawn any of the other claims made on behalf of Lonny Rosenblum, including claims for pain, weakness, tingling, and partial restriction in range of motion in his neck/cervical spine, multiple surgeries to that body part, and that the enumerated injuries (a through pp), "resu lti ng disabilities. agg ravations, exacerbations and involv m nts are associated with further soft tissue injuries to the areas traumatically affected ... ' I o, plaintiff Lonny Rosenblum has testified at deposition on July 9, 2018 that he went to Sierra Tucson rehabilitation facility for chronic pain to treat the chronic pain and to get off of the OxyContin ... " after he filled prescript ion for OxyContin at a CVS pharmacy and 110 Pharmacy prescribed by a local pain management pecia li t Dr. Shah. Lonny Rosenblum also testified that he is presently treating with Dr. Si lverman of Great eek, Tew York a different pain management specialist. Mr. Rosenblum states that whi le he was at Sierra T ucson , "[t]hey detoxed me off of the Oxycodone and OxyContin. They gave me physical therapy. They gave me aquatic therapy or hydrotherapy. They gave me acupuncture, massage, craniosacral therapy, trauma therapy. r saw a nutritioni st and receiv d coun eling. I think that pretty much covers it." Since Lonny Rosenblum continues to make the aforementioned claims, especiall y with respect to pain, and that he acknowledges that he ha received ph ys ical therapy, acupuncture, and massage at Sierra Tucson, which are therapeutic modalities commonly associated w ith claim s of soft tissu injury , this Court determines that it is ap propri ate not to release the entirety of the Si rra Tue on records to defendants but to examin them in camera to determine what record , if any, are appropriate for disclosure to deD ndants. ccordingly , those branches of defendants' respecti ve motions seeking dismissal of the comp la int is denied. Likewise, that branch of plaintiffs' motion for a protective order is denied: however, that branch of p laintiffs ' motion reque ting an in camera review of the record ought is granted as noted above. Plaintiffs have provided to this Court, upon it request, a set of consecutively pagin ated record s from Sierra Tucson so that the directives for disclosure are clear and unequivocal by 3 In a response to defendant Valentino's D &l da ted from August 20 18, plaintiffs contend that they are no longer making a loss of enjoyment of life claim and th y direct attention to the Fifth Supplemental Bi l I of Particulars. As noted by thi s Court, the Fifth Supplemental Bill con tains the "lesser quality of life"' languag ; therefore, plaintiffs incorrectly re ly upon the Fifth Supplementa l Bill as evidence of their withdrawal of thi claim. 3 [* 3] 3 of 4 INDEX NO. 611398/2015 FILED: SUFFOLK COUNTY CLERK 01/30/2020 10:33 AM NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 01/30/2020 reference to page numbers. Having rev iewed the submitted records for in camera review, and having found these record s material and relevant to th issue of damages, this Court directs that plaintiffs disclose to defendants the following pages of records related to plaintiff Lonny Rosenblum's complaints of pain, treatment by physical/ acupuncture/hydrotherapy therapists and references to th subject motor vehicle accident and body parts allegedly injured as a result thereof: 45-49 50-55 56-59 80-81 88-92 112-114 I 16-11 7 122 127 129 137 203-204 205 209-213 216-218 220 228-229 231-236 238-241 244 247-267 269-275 150 15 3-1 63 164-167 168-169 170-172 173-177 179-180 182-184 186 191-192 196- 197 276-294 297-305 306-311 314-327 331 -334 340-342 358-360 371-372 375 As to the aforementioned Sierra Tucson record s to be disclosed to defendants, the Court directs that those document shall not be uploaded to the NYSCEF system but shall be delivered in hard copy to defense coun el. Furthermore, the det rmination made by the Court herein shall be without prejudice to an application for r daction of certain information before the trial court. Concerning the submitted pharmacy record s denominated as pages 1 through 40, the Court determines that it will discuss the disclosure of those records with counsel for the parties at the next scheduled conference of this matter. Plaintiff Lonny Rosenb lum shall provide a HIPPAA authorization for his collateral source records m aintained by Empire Blue Cross, and a HTPPAA authorization for Steven Silverman, M.D. , the pain management specialist with whom plaintiff testified he is treatin g. The discovery directed by this Court to be di closed to defendants as directed shall be provided to defendants ' respective counsel on or before February 24, 2020. The next confe rence of this matter before this Court is scheduled for March 2, 2020, at 9:30 a.m. The fo regoing constitutes the Deci ion and Order of this Court. Dated: January 29, 2020 Riverhead , Y FINA L DISPOSlTIO [ ] 0 -Fl AL DISPOS IT IO 4 [* 4] 4 of 4 [X]

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.