Delvalle v Ortega

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Delvalle v Ortega 2021 NY Slip Op 30454(U) February 10, 2021 Supreme Court, Kings County Docket Number: 517698/18 Judge: Lawrence S. Knipel 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] KINGS COUNTY CLERK 02/17/2021 11:24 AM NYSCEF DOC. NO. 341 INDEX NO. 517698/2018 RECEIVED NYSCEF: 02/17/2021 At an IAS Ter1n, Part 57 of the St1preme Court of the State of-New York, held ii1 and for the County of Kings, at the Cowthouse, at Civic Center, Brooklyn, New York, 011 tl1e I 0111 day of February, 2021. PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X LILLIAN DELVALLE, Plaintiff, Index No. 517698/18 - against MARCO ORTEGA, ALPHA I MARIZETING CORP., and CHRIS1'fNA MURILLO, Defendants. - --- - - -- - - - - --- - -- - -- - - - -- --- ---- - -X NYSCEF Doc Nos. The following e-filed papers read 11erein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion a11d Affidavits (Affirmations) Annexed_ _ __ 265-269 Opposing Affidavits (Affirmations) _ _ __ 270-275 Reply Affidavits (Affirmations)_ _ _ __ 301 Upon the foregoing papers in this personal injury action, plaintiff Lillian Delvalle (Delvalle) moves (in motion sequence [mot. seq.] 15) for an order, pursuant to CPLR 2221 (d), granting her leave to reargue her opposition to the motion by de!Cndants Marco Ortega and Alpha I Marketing Corp. (Alpha defendants) "to compel [her] to provide corrected pharmacy authorizations with Rite Aid on 65th and 86th Streets in Brooklyn" and 1 upon reargu1nent, denying the Alpha defendants' motion to co1npel l1er to provide 1 of 6 [*FILED: 2] KINGS COUNTY CLERK 02/17/2021 11:24 AM NYSCEF DOC. NO. 341 INDEX NO. 517698/2018 RECEIVED NYSCEF: 02/17/2021 "con·ected" pharmacy authorizations. On October 15, 2020, the Alpha defendants moved for an order (in mot. seq. 12) compelling Delvalle to provide corrected phar1nacy authorizations for records fro1n Rite Aid on 65th and 86th Streets in Brooklyn. The Alpha defendants asserted that the authorizations that Delvalle previously provided were not properly filled out and did not permit them to receive certain records. Specifically, tl1e Alpha defendants rejected Delvalle's authorizations provided for Rite Aid because Delvalle failed lo fill out and initial Section 9A of the authorization forms for records relating to "Alcohol/Drug Treat1nent," "Mental I-Iealth Infor1nation," and/or "HIV-Related Infor1natio11." By a November 5, 2020 order, this court granted that branch of the Alpha defendants' 1notion to compel regardi11g the phar1nacy a11Ll1orizations for 1{.ite Aid and ordered that "Plaintiff to provide corrected pharmacy authorizations with Rite Aid on 65th and 86th Streets in Brooklyn." Delvalle no\v seel(s an order granting it leave to reargue tl1e Novc1nber 5, 2020 order co1npelling tl1ese "corrected'' Rite Aid authorizations 011 the grou11d t11at "the Court overlooked Plaintiffs arguments in opposition to the underlying 1notion . . ." Specifically, Delvalle's counsel argues that: "Respectfully, the November 5, 2020 Order did not address Plaintiff's arguments that: (i) Defendants are already i11 possessio11 of proper and 'correct' autl1orizations for Rite Aicl; and (ii) records relating to any Alcohol/Drug Treatment, Mental Health Information, and HIV-Related Information are not necessary in the defense of this litigatio11. Furtl1er, the 2 2 of 6 [*FILED: 3] KINGS COUNTY CLERK 02/17/2021 11:24 AM NYSCEF DOC. NO. 341 INDEX NO. 517698/2018 RECEIVED NYSCEF: 02/17/2021 Court did not give its reasoning for deter111ining what was supposedly incorrect witl1 the Rite Aid authorizations previously provided by Plaintiff." Delvalle's counsel also ass_erts that tl1e Alpha defendants_' 1uotio11 to compel production of corrected authorizations for Rite Aid should lJe dc11ied baseli on lhe Second Dcpm1ment's 2019 decision in Nesbit v Advanced Serv. Solutions (173 AD3d 1056, 10571058 [2019]), which held that disclosure related to "Alcohol/Drug Treatment, Mental Health Information and HIV-Related Information" should not have been compelled because defendants failed to proffer any sho\ving of an essential need for such disclosure. Delvalle's counsel asserts that the holding in Nesbit is "perfectly on-point" and is "binding" autl1ority. l'he Alpha defendants, in opposition, assert that f)elvalle's 111otion for leave to reargue should be denied because Delvalle's 1uotion "is absent ai1y showing that the Court overlooked or iuisapprehended facts which caused it to 1nistakenly arrive at its earlier decision ... " _Defense counsel fu1iher argues that Delvalle "is likcwfse unable to show that the Court overlooked or misapprehended law in reaching the November 5, 2020 Order as plaintiff did not cite a single case in opposition to the branch of the ALPHA Defendants' 1notion to compel discovery ... regarding pl1ar111acy authorizations.') Defense cot1nsel asserts that Delvalle's reliance on the Second Depart1nent's 2019 holding in Nesbit can11ot be considered on a inotion to reargue, si11ce Delvalle failed to cite any caselaw in opposition to the Alpha def'e11dants' underlying tnotion to co1npel. 3 3 of 6 [*FILED: 4] KINGS COUNTY CLERK 02/17/2021 11:24 AM NYSCEF DOC. NO. 341 INDEX NO. 517698/2018 RECEIVED NYSCEF: 02/17/2021 Defense counsel asserts that Delvalle's instant inotion is i11orc al(in to a i11otion to renew based on the Nesbit holding, however, rene\\'al cannot be gra11ted since "plaintiff made no showing as to wl1y tl1e Nesbit case was not cited in 11cr 11nderlying A.ffir1nation in Opposition." Defense counsel further argues tl1at tl1e l1olcli11g in Nesbit is factually distinguisl1able fro1n tl1is case, since Delvalle "affir1natively waived her ability to object to 'Mental Health Information' through her allegations of anxiety as placed in controversy through her Verified Bill of Particulars, dated April 24, 2019." In addition, defense counsel notes that Delvalle placed her inental healtl1 i1rfor1nation into controversy wl1eri she testified at her deposition that she tal(es anxiety 111cdication and is being treated for anxiety, which was exacerbated by the subject accident. Delvalle, in reply, asserts that "CPLR 2221 (d) expressly prohibits the introduction of 'any 1natters of fact not offered on tl1e prior 1notio11,' but il critically does not state the same for inatters of law not specifically offered on tl1e prior 111otion." Delvalle's counsel asserts that "tl1is Court mt1st give due consideratio11 to Nesbi.1 li]JOn a grant of Plaintiffs motion for leave to reargue." Delvalle's counsel furtl1cr argues tl1at "if the at1thorizations previously provided by Plaintiff were 'incorrect' in so111e vvay, tl1e Court did not provide instructions for correcti11g the1n." Delvalle seeks, al the very least, "additional clarification as to how the previously provided autl1orizati(ins '''ere 'incorrect' and how the -authorizations to be provided should be 'co1Tected.'" "A inotion for leave to reargue- shall be based upo11 111;.itters of fact or law allegedly 4 4 of 6 [*FILED: 5] KINGS COUNTY CLERK 02/17/2021 11:24 AM NYSCEF DOC. NO. 341 INDEX NO. 517698/2018 RECEIVED NYSCEF: 02/17/2021 overlooked or misapprehended by the court in detern1ini11g the 11rior motion, b1tt shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [ct] [2]). Delvalle has failed to establish tl1at this court ovcrlook:cd or 1nisapprel1ended any matters of fact or law when it issued the Nove111ber 5~ 2020 order co111pelling Delvalle to provide the Alpl1a defenda11ts with corrected authorizatio11s for Rite Aid records. The Alpha defendants demonstrated that Delvalle previously foiled to fill out and initial Section 9A of the authorization forms for records relnting to "/\lcohol/Dr1tg Treatment," "Mental Health Infor1nation," and/or "IIIV-Related I11for1nati{)ll." Here, u11like in Nesbit, the Alpha defendants have demonstrated that Del\'a[Je's n1ental health inforrnation is relevant and necessary since Delvalle testified at her depositio11 that sl1e takes anxiety medication and is bei11g treated for anxiety, \Vhicl1 \Vas exacerbated by the subject accident. Accordingly, it is ORDERED that Delvalle's motion (in mot. seq. 15) for leave to reargue is gra11ted, a11d, upon reargu1nent, the court adl1cres to its Nove1nber 5, 2020 order compelling Delvalle to provide the Alpha defe11dants \Vith corrected authorizations for Rite Aid on 65th and 86th Streets in Brooklyn. As ft1rthcr clarification, Delvalle shall provide the Alpha defendants with co111plete autl1orizations ror lZite Aid on 65th and 86th Streets in Brooklyn, including Section 9A of the authorization 10r1ns for records relating 5 5 of 6 [*FILED: 6] KINGS COUNTY CLERK 02/17/2021 11:24 AM NYSCEF DOC. NO. 341 INDEX NO. 517698/2018 RECEIVED NYSCEF: 02/17/2021 to "Alcohol/Drug Treatment," "Mental Health Information," and/or "HIV-Related Information." This constitutes the decision and order oftl1e court. ENTER , J, S. C. ~ION. lAVVRE E KNIPEL ADMlNISTRA YE JUDGE 6 6 of 6

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