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Langella v. Archer

Supreme Court, Richmond County
Sep 30, 2021
2021 N.Y. Slip Op. 33700 (N.Y. Sup. Ct. 2021)

Opinion

Index No. 150294/2019 Motion Nos. 011 012

09-30-2021

GERALDINE LANGELLA, as Administratrix of the Estate of Salvatore Langella, Plaintiff, v. EDDY ARCHER and TRI-STATE LUMBER, LTD, Defendants.


Unpublished Opinion

DECISION AND ORDER

LISA GREY, JUDGE

Recitation, as required by CPLR 2219(a), of the following papers marked fully submitted on August 13, 2021.

Papers Numbered

Plaintiff's Motion (No. 011) for Leave to Reargue, with supporting documents (dated June 1, 2021)

1

Defendants' Opposition to Motion No. 011, with supporting documents (dated July 6, 2021)

2

Defendants' Motion (No. 012) pursuant to CPLR § 3126, with supporting papers (dated July 6, 2021)

3

Plaintiff's Opposition to Motion No. 012, with supporting document (dated July 22, 2021)

4

Defendants' Reply to Plaintiff's Opposition to Motion No. 012 (dated August 10, 2021)

5

Plaintiff's Reply to Defendants' Opposition to Motion No. 011 (dated August 10, 2021)

6

Upon review of the foregoing papers numbered "1" through "8", plaintiff's motion for leave to reargue (Motion No. 011) is denied, and defendants' cross motion (Motion No. 012) to strike the complaint or, alternatively, to preclude plaintiff from offering evidence or, alternatively, to compel discovery, and to clarify the order of this Court dated April 28, 2021, is granted, in part, and denied, in part.

FACTS

On February 4, 2019, Salvatore Langella, who was operating a motorized scooter, and defendant Eddy Archer, who was operating a truck owned by defendant Tri-State Lumber, Ltd. were involved in a motor vehicle accident. On February 7, 2019, Salvatore Langella commenced this personal injury action against the defendants. Mr. Langella died on or about May 8, 2019, and his estate moved to add a cause of action for wrongful death and to amend the caption to add Geraldine Langella, as Administratrix of the Estate of Salvatore Langella, as plaintiff. Justice Kim Dollard granted the motion.

Plaintiff subsequently moved for summary judgment on the issue of liability (Motion No. 002). Defendants moved to vacate the note of issue and compel discovery (Motion No. 005), for a so-ordered subpoena duces tecum seeking documents in the possession of a nonparty witness to the accident (Motion No. 004), and for summary judgment dismissing the complaint or, alternatively, an extension of time to move for summary judgment (Motion No. 006).

In an order dated October 29, 2020, Justice Orlando Marrazzo, Jr. granted plaintiff's motion for summary judgment on the issue of liability and denied defendants' cross motion for summary judgment dismissing the complaint. In a separate order, also dated October 29, 2020, Justice Marrazzo denied defendants' motion to vacate the note of issue and compel discovery but granted their motion to issue a so-ordered subpoena duces tecum with respect to certain documents.

Plaintiff and defendants each moved, among other things, for leave to renew and/or reargue multiple aspects of the orders dated October 29, 2020 (Motion Nos. 007 and 009). Defendants also filed an order to show cause seeking additional discovery (Motion No. 010).

In an order dated April 28, 2021, this Court denied plaintiff's motion for leave to renew and/or reargue her motion for summary judgment and granted, in part, defendants' cross motion to renew and/or reargue certain aspects of Justice Marrazzo's prior orders. This Court granted defendants' leave to renew and, upon renewal, vacated the award of summary judgment to plaintiff on the issue of liability. This Court determined that new facts with respect to the NYPD's investigation of the accident would have changed the prior determination and that defendants should be given the opportunity to conduct depositions of police personnel before the Court considers motions for summary judgment. This Court also granted, in part, defendants' order to show cause for certain discovery and granted defendants' motion to vacate the note of issue, finding that the note of issue was a nullity because the certificate of readiness incorrectly stated that all pre-trial discovery had been completed.

DISCUSSION

Motion No. 011

Plaintiff now moves for leave to reargue those portions of this Court's order dated April 28, 2021 which (1) granted defendants leave to renew and, upon renewal, vacated the award of summary judgment to plaintiff on the issue of liability, (2) vacated the note of issue, and (3) granted defendants' order to show cause seeking additional discovery, to the extent that this Court directed plaintiff to provide Mr. Langella's psychological treatment records to the Court for in camera inspection within thirty (30) days from the date of the order.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). "A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (Haque v Daddazio, 84 A.D.3d 940, 942 [2d Dept 2011][citation omitted]).

Plaintiff seeks leave to reargue the portion of this Court's prior order which vacated the award of summary judgment to plaintiff on the issue of liability. Plaintiff contends that, contrary to this Court's prior determination, any new facts with respect to the NYPD's investigation would not affect whether plaintiff is entitled to summary judgment with respect to defendants' liability, and such facts would only affect Mr. Langella's comparative fault. Plaintiff contends that defendants have not challenged the assertion that Archer was negligent in failing to see Mr. Langella in the crosswalk and that they cannot rely on the deposition testimony of nonparty Will Varela because it contradicts Archer's testimony.

This Court finds that plaintiff has failed to show that this Court overlooked or misapprehended the facts or the law in determining the prior motion (see CPLR § 2221[d]). Therefore, plaintiff is not entitled to reargument with respect to this Court's order vacating the award of summary judgment to plaintiff on the issue of liability.

Plaintiff also seeks leave to reargue her opposition to defendants' motion to vacate the note of issue. She contends that the certification order is the law of the case and she will be prejudiced by the order vacating the note of issue. She also contends that only nonparty discovery is currently incomplete, and nonparty discovery routinely occurs after the filing of the note of issue.

This Court finds that plaintiff has failed to establish that this Court overlooked or misapprehended the facts or the law in determining the prior motion (see CPLR § 2221[d]). Consequently, she is not entitled to reargument with respect to vacateur of the note of issue.

Finally, plaintiff seeks leave to reargue the portion of this Court's order dated April 28, 2021 that deals with discovery of Mr. Langella's psychological treatment records. Plaintiff has not shown that this Court overlooked or misapprehended the facts or the law in making its prior determination (see CPLR § 2221[d]), and therefore she is not entitled to reargument. Furthermore, plaintiff has mischaracterized this Court's order as requiring plaintiff to turn these records over to defendants. This Court ordered that "Plaintiff shall provide Mr. Langella's psychological and psychiatric treatment records to the Court for in camera inspection within thirty (30) days from the date of this order," in order to "determine their relevance and the propriety for disclosure to Defendants." Thus far, this Court has not directed plaintiff to exchange Mr. Langella's psychological or psychiatric treatment records with defendants.

Consequently, plaintiff's motion for leave to reargue is denied.

Motion No. 012

Defendants move for an order pursuant to CPLR § 3126 striking the complaint for failure to provide court-ordered discovery or, alternatively, precluding plaintiff from offering evidence or, alternatively, pursuant to CPLR § 3124 directing plaintiff to comply with the discovery-related provisions in this Court's order dated April 28, 2021, and to provide discovery and trial authorizations demanded by defendants in their notice for discovery and inspection dated December 24, 2020. Defendants also seek a clarification of this Court's prior order with respect to the scope of the trial authorizations.

"Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party 'refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'" (Aha Sales, Inc. v Creative Bath Prods., Inc., 110 A.D.3d 1019, 1019 [2d Dept 2013], quoting CPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is within the discretion of the court, but public policy strongly favors the resolution of cases on their merits (see Gelin v New York City Tr. Auth., 189 A.D.3d 789, 792-793 [2d Dept 2020]; Smookler v Dicerbo, 166 A.D.3d 838, 839 [2d Dept 2018]). "Therefore, the drastic remedies of striking a pleading or precluding evidence are not appropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious" (Gelin v New York City Tr. Auth., 189 A.D.3d at 792-793; see CPLR 3126[3]). "The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse" (Aha Sales, Inc. v Creative Bath Products, Inc., 110 A.D.3d at 1019).

Defendants correctly note that plaintiff has failed to comply with this Court's order directing her to provide Mr. Langella's psychological and psychiatric treatment records to the Court for in camera inspection. Plaintiff contends that plaintiff has been unable to identify Mr. Langella's doctors but is still trying to do so.

Defendants also contend that plaintiff did not comply with their notice for discovery and inspection dated December 24, 2020, because the authorization that plaintiff provided to defendants to obtain FDNY/EMS records is defective and plaintiff did not provide an Ambulance Call Report/Prehospital Care Report Request Form, which is required to obtain a FDNY ambulance report. Defendants contend that they demanded three sets of HIPAA-compliant trial authorizations for each of several providers, but plaintiff has only provided one set of three trial authorizations with restrictions as to the time period and records to be provided.

This Court finds that, at this time, defendants have not shown that plaintiff's failure to provide discovery rises to the level of willful or contumacious conduct (see CPLR 3126; Gelin v New York City Tr. Auth., 189 A.D.3d at 792-793). Therefore, defendants' motion is granted only to the extent of directing plaintiff again to provide this Court with Mr. Langella's psychological and psychiatric treatment records for in camera inspection. In the event plaintiff fails to comply with this order, defendants may make another motion pursuant to CPLR 3126, and this Court will again consider whether sanctions are warranted, particularly given that this is the second time this Court is directing plaintiff to provide Mr. Langella's psychological and psychiatric treatment records for in camera review.

Defendants also contend that they demanded three sets of HIPAA-compliant trial authorizations for each provider, but plaintiff provided only one set of three authorizations, with restrictions as to time period and the records to be provided. In particular, defendants contend that plaintiff improperly restricted the type of records to be provided by failing to authorize the disclosure of drug/alcohol-related treatment and mental health information.

Given that the note of issue has been vacated, defendants are seeking authorization to disclose drug/alcohol-related treatment and mental health information, and this Court has not yet had the opportunity to review Mr. Langella's psychological and psychiatric treatment records in camera, this Court will not direct the exchange of additional trial authorizations at this time.

This Court notes that defendants contend that plaintiff's failure to provide nonparty written statements in addition to the statement of Jaileen Rosario demonstrates the plaintiff's willful and contumacious disregard of prior court orders. However, contrary to defendants' contention, this Court's order dated April 28, 2021 specifically stated that all written statements from nonparty witnesses, other than Jaileen Rosario, are immune from discovery.

This Court has considered the parties' additional contentions and found them to be unavailing.

Accordingly, it is

ORDERED, that plaintiff's motion for leave to reargue (Motion No. 011) is denied; and it is further

ORDERED, that defendants' cross motion (Motion No. 012) is granted to the extent that plaintiff shall provide Mr. Langella's psychological and psychiatric treatment records to the Court for in camera inspection within thirty (30) days from the date of this order; and it is further

ORDERED, that defendants' cross motion is otherwise denied.

This constitutes the decision and order of this Court.


Summaries of

Langella v. Archer

Supreme Court, Richmond County
Sep 30, 2021
2021 N.Y. Slip Op. 33700 (N.Y. Sup. Ct. 2021)
Case details for

Langella v. Archer

Case Details

Full title:GERALDINE LANGELLA, as Administratrix of the Estate of Salvatore Langella…

Court:Supreme Court, Richmond County

Date published: Sep 30, 2021

Citations

2021 N.Y. Slip Op. 33700 (N.Y. Sup. Ct. 2021)