Salazar v Hudson Valley Hosp. Ctr.

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Salazar v Hudson Valley Hosp. Ctr. 2021 NY Slip Op 32013(U) April 13, 2021 Supreme Court, Westchester County Docket Number: 63666/2015 Judge: Terry Jane Ruderman 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] WESTCHESTER COUNTY CLERK 04/13/2021 04:46 PM NYSCEF DOC. NO. 94 INDEX NO. 63666/2015 RECEIVED NYSCEF: 04/13/2021 SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY -------------------------------------------------------------------------------)( MADELYN MADELYN SALAZAR, SALAZAR, ----------------------------------- ---- -- ----------------------x Plaintiff, Plaintiff, In Limine Limine Motions Motions Ruling Ruling -against-againstInde)( No. 63666/2015 Index No. 63666/2015 HUDSON HUDSON VALLEY VALLEY HOSPITAL HOSPITAL CENTER,_ CENTER, Defendant. Defendant. -- - -_ -- - ---------------- ----- - ---- - ---- ----- - ----------------- - --------- ---X -------~-----------------------------------------------------------------------)( RUDERMAN, RUDERMAN,J. J. The The following following decision decision addresses addresses the parties' parties' in limine limine motions motions filed filed on April April 9, 2021, 2021, and the the opposition opposition filed filed on on April April 12, 2021, 2021, talcing taking into into account account the the oral oral argument argument heard heard on April April ·12,2021. 12,2021.1 1 Plaintiff's Plaintiff s Motion Motion , 7 / Plaint1ff Plaintiff has has submitted submitted a motion motion in limine limine seeking seeking preclude defendant's defendant's experts e)(perts from from testifying testifying to opinions opinions not not based based on scientifically scientifically reliable reliable 1) to preclude qualifications,· and from reciting methods, methods, _or or regarding regarding matters matters outside outside of of their their qualifications, from merely merely reciting hearsay hearsay from from unreliable unreliable records records or testimony testimony of of others, others, and for a Frye hearing, hearing, 2) to preclude preclude evidence evidence or comment comment on plaintiff's plaintiffs citizenship citizenship or immigration immigration status; status; and and 3) to preclude preclude hearsay hearsay portions portions of of the the hospital hospital record record as it relates relates to acts acts and and occurrences occurrences not not relevant to diagnosis diagnosis or treatment treatment of of the the patient_ patient; relevant Inquiry Inquiry into into a plaintiff's plaintiff's immigration immigration status status is only only permissible permissible where where it is a "legitimate "legitimate factor" in the the issues issues to be considered considered by the the jury jury (see Balbuena Balbuena v lDR /DR Realty Realty LLC, LLC, 6 NY3d NY3d 338 factor" Issues Issues raised raised on on the the afternoon aJternoon of of April April 13, 13,2021 2021 regarding regarding the the videotaped videotaped trial trial testimony testimony of of Dr. John John Galeno Galeno wiU wiUbe be addressed addressed subsequently subsequently when when the the Court Court rules rules on objections objections made made in the the course course of of that that testimony. testimony. 1I 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 04/13/2021 04:46 PM NYSCEF DOC. NO. 94 INDEX NO. 63666/2015 RECEIVED NYSCEF: 04/13/2021 [2006]; Angamarca Angamarca v New New York City Partnership Hous. Haus. Dev. Fund, Inc., Inc., 87 AD3d City Partnership AD3d 206,209 206,209 [1st Dept 2011 2011])., Defendant has not not advanced advanced a legitimate legitimate basis admission of of evidence evidence basis for the admission Dept ]) .. Defendant regarding plaintiffs immigration status, status, beyond identification of of her her home home country. country. regarding plaintiffs immigration beyond the identification Questions regarding regarding when when plaintiff arrived in this this country, country, whether whether she has returned returned to her home home Questions plaintiff arrived country, and and whether whether she has any children children there, there, are potentially and are not not relevant relevant country, potentially prejudicially prejudicially and issue of ofplaintiffs credibility. Defendant's Defendant's indication indication that that it intends intends to inquire inquire into to the issue plaintiffs credibility. plaintiffs "medical history" history" in her home home country country is also rejected, rejected, given given defendant's defendant's failure failure to plaintiffs "medical specify specify any such such information information that that would would be relevant relevant to the legitimate legitimate issues issues to be addressed addressed at Accordingly, the parties submitting evidence evidence of, commenting commenting on, or trial. Accordingly, parties are precluded precluded from submitting questioning questioning plaintiff plaintiff regarding regarding her immigration immigration circumstances circumstances beyond beyond the identity identity of of her her home home country. country. The remainder remainder of of plaintiff motion must must be addressed addressed by rulings rulings at trial, trial, since since a blanket The plaintiffss motion blanket ruling cannot cannot be issued issued regarding regarding the permissible extent of of the expert expert witnesses' witnesses' opinion opinion ruling permissible extent testimony, whether whether a proper foundation exists exists for their their testimony testimony and and whether whether hearsay hearsay exceptions exceptions testimony, proper foundation applicable,' The The portion of the notice notice of.motion of motion seeking seekinga a Frye hearing hearing is denied; there is no are applicable: portion of denied; there indication that that defendant's defendant's experts experts intend intend to use or rely on a novel novel scientific scientific method method or theory. theory. indication Defendant's Motion Motion Defendant's Defendant has submitted submitted motions motions in limine limine seeking seeking Defendant from offering offering an x-ray x-ray report report or any testimony testimony regarding regarding the August August 22, 1) to preclude preclude plaintiff plaintiff from taken by John John Galeno, Galeno, M.D., M.D., due to plaintiffs alleged non-compliance non-compliance with with CPLR CPLR plaintiffs alleged 2013 x-ray x-ray taken 4532-a, and based application of of the best evidence rule, and and 4532-a, based on application best evidence 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 04/13/2021 04:46 PM NYSCEF DOC. NO. 94 INDEX NO. 63666/2015 RECEIVED NYSCEF: 04/13/2021 experts from from testifying testifying as to any departures departures from from accepted accepted standards standards of of 2) to precludyplaintiffs precludyplaintiffs experts practice, the lack lack of of expert expert disclosure disclosure pursuant CPLR 3101 310 1 ((d) their opinions opinions in practice, due to the pursuant to CPLR d) as to their that regard, regard, and ariq further further precluding experts from testifying testifying that that plaintiffs injuries are plaintiffs experts plaintiffs injuries that precluding plaintiffs permanent, the absence absence of of any such such statement statement in their their reports, reports, and in the absence absence of of a permanent, in the supplemental report report as contemplated contemplated by 22 NYCRR 202.17 (g). NYCRR §~ 202.17 supplemental Since CPLR CPLR 4532-a 4532~a applies applies only only to the actual actual x-ray x-ray film, which which the parties appear to parties appear · Since agree is not not within within plaintiff control, the issue issue to be addressed addressed is not not compliance compliance agree plaintiffss possession possession or control, with that that statute, statute, but whether a foundation foundation has been admission of of secondary secondary evidence evidence with but whether been laid for the admission describing describing it. Wagman v Bradshaw AD2d 84 [2d Dept Dept 2002]) 2002]) establishes establishes that that while while "generally, "generally, Wagman Bradshaw (292 AD2d -\ original X-ray X~ray film must must be produced testimony can can be adduced adduced as to its diagnostic diagnostic the original produced before before testimony significance(,) [(s)econdary evidence of of such such a diagnostic diagnostic interpretive interpretive report report will will be permitted ... significance[,) s]econdary evidence permitted ... if the proponent thereof ((1) sufficiently explains explains the X-ray X ~ray films' films' unavailability unavailability and and (2) if proponent thereof 1) sufficiently establishes that that the secondary secondary evidence evidence accurately accurately and and reliably reliably portrays portrays the original" original" (292 AD2d AD2d establishes I determination of of whether whether the missing missing x-ray X~raYfilm is sufficiently sufficiently explained explained and whether. whether. at 88). The determination secondary evidence evidence discussing discussing accurately accUrately and reliably original, must must await await trial. the secondary reliably portrays portrays the original, The testimony testimony of of plaintiff treating physicians will not not be precluded. will the court court The plaintiffss treating physicians will precluded. Nor Nor will rule in advance advance that that they they are limited limited to the four comers comers of of their their reports. reports. They They may may testify testify to their their rule (pre-2021) examinations examinations of of plaintiff substance of of those those reports, reports, and and everything everything logically logically plaintiff and the substance (pre-2021) flowing from from that that information. information. Plaintiffs Plaintiff s claim claim to a need need for further further treatment treatment was was sufficiently sufficiently flowing raised in her her bill of of particulars, will not be precluded making such claim. raised particulars, and she will precluded from making such a claim. The parties' motions are therefore therefore denied denied to the extent extent they they seek seek preclusion The parties' motions preclusion or an 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 04/13/2021 04:46 PM INDEX NO. 63666/2015 \\ RECEIVED NYSCEF: 04/13/2021 NYSCEF DOC. NO. 94 evidentiary limitation limitation in advance advance of of trial, trial, except except to the extent extent of of the the above above ruling ruling regarding regarding evidentiary infonnation related related to plaintiff's immigration to this this county, county. infonnation plaintiff's immigration ~we~ Dated: New York Dated: White White Plains, Plains, New York April j3., 2021 April J3., HO~JANE 4 4 of 4 RUDERMAN, J.S.c.

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