Opinion
Index Nos. 158476/2018 595671/2019 595923/2020 595600/2021 595705/2022 Motion Seq. Nos. 001 002 003
04-04-2023
GREGORY PALAZZO, Plaintiff, v. CHANEL, INC., SHAWMUT DESIGN AND CONSTRUCTION, THE KNOLLER COMPANIES, INC Defendant. CHANEL, INC., SHAWMUT DESIGN AND CONSTRUCTION Plaintiff, v. THE KNOLLER COMPANIES, INC., ALBIREO ENERGY, LLC Defendant. CHANEL, INC., SHAWMUT DESIGN AND CONSTRUCTION Plaintiff, v. HARRAND ELECTRICAL CONTRACTORS, INC. Defendant. CHANEL, INC., SHAWMUT DESIGN AND CONSTRUCTION Plaintiff, v. THE KNOLLER COMPANIES, INC., Defendant. ALBIREO ENERGY, LLC Plaintiff, v. HARRAND ELECTRICAL CONTRACTORS, INC Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
FRANCIS A. KAHN, III, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 170, 183, 186, 189, 190, 195, 196, 201,202 were read on this motion to/for ORDER OF PROTECTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 184, 188, 197, 198, 205, 206 were read on this motion to/for DISCOVERY
The following e-filed documents, listed by NYSCEF document number (Motion 003) 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 185, 187, 199, 200, 203, 204 were read on this motion to/for DISCOVERY
Upon the foregoing documents, the motions are determined as follows:
Plaintiff Gregory Palazzo commenced this action to recover for personal injuries sustained on August 8, 2018, while working at a construction site as an electrician. He claims the incident occurred when he was caused slip or trip and fall on debris. In the complaint, Plaintiff pled claims under Labor Law §§241 [6], 240, 200, and common-law negligence. In his bills of particulars, Plaintiff claims he sustained injuries to his cervical spine, back, left elbow, and left ankle as well as "[a]ctivation of any pre-existing degenerative changes . . . that were entirely asymptomatic" to each. After joinder of issue, and the commencement of five third-party actions, nearly five years of discovery followed which includes some seven conferences with the Court.
Now, Plaintiff (Mot Seq No 1), Defendants The Knoller Companies, Inc. (Mot Seq No 2), as well as Defendants Chanel, Inc. and Shawmut Woodworking &Supply, Inc. (Mot Seq No 3) all file motions related to disclosure. All the motions are opposed, in one form or another.
Plaintiff moves for "a protective order as to defendants and third-party defendants, CHANEL, INC., SHAWMUT DESIGN AND CONSTRUCTION, THE KNOLLER COMPANIES, INC., ALBIREO ENERGY, LLC, and HARRAND ELECTRICAL CONTRACTORS, INC., to prevent the discovery of health information pertaining to mental health and substance abuse, both through a deposition and through paper discovery, and any other information that is unrelated to the claims made in this case and not claimed within Plaintiffs Verified Bill of Particulars".
Defendant/Third-Party/Third Third-Party/Fourth Third-Party Plaintiff The Knoller Companies, Inc. moves for an order:
a. Compelling Plaintiff to provide authorizations related to his prior accident of April 18, 2017;
b. Compelling Plaintiff to produce records related to his alleged substance abuse treatment from two years prior to the accident to present;
c. Compelling Plaintiff to respond to questions related to his substance abuse and their impact on his treatment, alleged limitations and economic loss allegations
Defendants/First, Second, and Third-Third Party Plaintiffs Chanel, Inc. and Shawmut Woodworking & Supply, Inc. d/b/a Shawmut Design and Construction move "to compel the plaintiff to respond to the movants' discovery demands dated August 31, 2022 and October 12, 2022 by tendering the demanded duly-executed record authorizations".
In civil litigation in New York, "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof' (see CPLR §3101 [a]; Forman v Henkin, 30 N.Y.3d 656 [2018]). "The phrase 'material and necessary' should be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason'" (Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968]; see also Andon v 302-304 Mott St Assoc., 94 N.Y.2d 740, 746, [2000]). This does not mean disclosure is limitless and courts are empowered to oversee discovery and set reasonable terms for its exchange (see generally Diako v Yunga, 148 A.D.3d 438 [1st Dept 2017]; Elmore v 2720 Concourse Associates, L.P., 50 A.D.3d 493 [1st Dept 2008]).
A court's discretion to regulate disclosure is wide (see CPLR §3126; Forman v Henkin, supra) and includes the power to "make a protective order denying, limiting, conditioning or regulating the use of any disclosure device" (CPLR §3103). "The nature and degree of the penalty to be imposed pursuant to CPLR §3126 lies within the sound discretion of the Supreme Court" (Kihl v Pfeffer, 94 N.Y.2d 118, 122-123 [1999]; see also Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74 [2010]). The striking of a pleading may be an appropriate sanction, but only upon a clear showing that the non-compliance was willful or contumacious (see e.g Ewa v City of New York, 186 A.D.3d 1195 [2d Dept 2020]). "The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands and/or to comply with discovery orders" (see Dank v Sears Holding Management Corp., 69 A.D.3d 557 [2d Dept 2010]).
With respect to Plaintiffs alleged substance abuse history, "a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR (see CPLR 3121, subd [a]) when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue" (Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457 [1983] [citation omitted]). "The burden of proving that a party's mental or physical condition is in controversy, for purposes of obtaining relevant hospital records, is on the party seeking the records" (Budano v Gurdon, 97 A.D.3d 497, 497 [1st Dept 2012]). Here, Defendants have not proffered anything to establish a connection between Plaintiffs alleged substance abuse history and the cause of the accident, his injuries or his ability to recover therefrom (see Gough v Panorama Windows, Ltd.. 133 A.D.3d 526 [1st Dept 2015]; Budano v Gurdon, supra at 499; see also James v 1620 Westchester Ave. LLC, 147 A.D.3d 575 [1st Dept 2017]). Conspicuously absent is the required expert affidavit in support of such a supposed connection (id.).
Moreover, Plaintiff has not pled in his bills of particulars that he sustained emotional or psychological injury, nor does he seek recompense for loss of enjoyment of life (see Quinones v 9 E. 69th St., LLC, 132 A.D.3d 750, 751 [2d Dept 2015]). In any event, "alleged general anxiety and mental anguish from back and leg injuries do not place [a plaintiffs] entire mental and physical health into contention" (James v 1620 Westchester Ave. LLC, 147 A.D.3d 575, 576 [1st Dept 2017]; see also Abrew v Triple C Props., LLC, 178 A.D.3d 526 [1st Dept 2019]).
With respect to injuries Plaintiff allegedly sustained to his left foot or ankle in a prior accident, Defendants have demonstrated this body part was placed in issue by Plaintiff claiming injuries to his left ankle and activation of dormant degenerative changes (see eg Walters v Sallah, 109 A.D.3d 401 [1st Dept 2013]). Plaintiffs attempt to parse the prior injury as one to the foot as opposed to the ankle herein is nothing more than an exercise in semantics.
Accordingly, it is
ORDERED that Plaintiffs motion (MS No 1) is granted to the extent that Plaintiff is granted a protective order prohibiting discovery as to his alleged substance abuse history, but otherwise denied; and it is
ORDERED that Defendants' motions (MS Nos and 3) are granted to the extent that Plaintiff shall provide responses to Defendants' discovery demands related to Plaintiffs prior injury to his left foot/ankle, but otherwise denied, and it is
ORDERED that to the extent that any other outstanding unobjected to demands by any party have not been responded to, a formal response shall be tendered in 45 days from efiling of this order.
The parties are reminded that a status conference is scheduled in this matter on May 3, 2023 @ 10:40am.