Opinion
Index No. 159848/2022 Motion Seq. No. 001
09-16-2024
JUANA TAVERAS, Plaintiff, v. TUCK- IT- AWAY ASSOCIATES, L.P., THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NY, THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NY 412 LOW MEMORIAL LIBRARY Defendant.
Unpublished Opinion
MOTION DATE 07/24/2024
PRESENT: HON. LYNN R. KOTLER JUSTICE
DECISION + ORDER ON MOTION
LYNN R. KOTLER, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43 were read on this motion to/for AMEND CAPTION/PLEADINGS.
Upon the foregoing documents, this motion is decided as follows. This is a personal injury action arising from a slip and fall on a sidewalk near Columbia University on July 15, 2022. Defendants The Trustees of Columbia University in the City of NY and The Trustees of Columbia University in the City of NY 412 Low Memorial Library (collectively, "Columbia") move for an order pursuant to CPLR § 3101 and § 3025 to amend their answer to include additional affirmative defenses and compel plaintiff to produce HIPPA authorizations releasing non-party medical records. Juana Taveras ("Plaintiff') opposes the motion. Defendant Tuck-It-Away Associates, L.P. has not appeared in this action. For the reasons that follow, the motion is granted to the extent that Columbia's answer shall be amended to include the additional affirmative defenses of fraud but denied as to their motion to compel Plaintiff to produce HIPPA authorizations for a non-party's medical records.
Facts
In Columbia's affirmation of support for its motion, Columbia alleges that it discovered new information entitling it to amend its answer to assert a number of additional affirmative defenses relating to fraud allegedly committed by Plaintiff. On an unspecified date, but no later than January 2024 at plaintiffs deposition, Columbia discovered that Plaintiffs daughter Nitzaly Fabal ("Fabal") brought a similar lawsuit for a sidewalk trip and fall in the Bronx that occurred on June 25, 2022, 20 days prior to Plaintiffs injury. Her lawsuit was commenced in Supreme Court, Bronx County entitled Nitzaly Fabal v. Dekalb 3572 LLC and. Asden Management LLC under Index No. 801336/2023E.
Both Plaintiff and Fabal are represented by the same attorneys, Subin & Associates LLP ("Subin"), and both sustained similar injuries including a right shoulder tendon tear, lumbar spine disc herniation, and cervical spine disc bulges. During a deposition held on January 25, 2024, Plaintiff claimed she had no knowledge of Fabal's injuries, accident, or pending lawsuit despite testifying that she speaks to Fabal on a weekly basis and having spent the day of the accident at Fabal's apartment. Further, the slip and fall that plaintiff is suing for in this action occurred shortly after she left her daughter's apartment on July 15, 2022.
Dr. Gbolahan Okubadejo ("Dr. Okubadejo") performed a spinal fusion surgery on Plaintiff on October 26, 2022 for injuries sustained in her fall. Columbia has provided to the court a copy of a New York Post article dated June 16, 2024 and entitled "MS-13, Russian mobsters use migrants in elaborate injury scam - even getting spinal surgery to pull it off: sources". In that article, the Post writes that Dr. Okubadejo allegedly performed "unnecessary fusion operations on patients to pump up payouts for them and make money for himself."
In opposition to the motion, plaintiffs counsel maintains that Columbia's allegations are "based on nothing more than hyperbole and speculative and conclusory claims" and that Columbia has not established any link between this action and the one commenced by Fabal. They claim that in such a large city it is not unusual to have such accidents and that both sets of injuries are consistent with what would be expected in a slip and fall on a sidewalk.
Discussion
Pursuant to CPLR § 3025(b), "A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." A motion to amend the pleadings should be liberally granted absent prejudice or surprise to the opposing party (Favourite Ltd. v Cico, 2024 WL 1161607, at *3 [2024]; see Kimso Apts., LLC v Gandhi, 24 N.Y.3d 403, 411 [2014]; McCaskey, Davies & Assoc, v New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757 [1983]). "Prejudice requires 'some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position'" (Cherebin v Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365 [1st Dept 2007] quoting Loomis v Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 19 [1981]; see also Kimso, 24 N.Y.3d at 411).
Mere delay does not constitute prejudice sufficient to defeat a motion to amend (Kocourek v Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 [1st Dept 2011]; see also 176 W. 87th St. Owners Corp, v Guercio, 216 A.D.3d 401, 402 [1st Dept 2023]; Machado v Gulf Oil, L.P., 195 A.D.3d 26, 30 [1st Dept 2021] [prejudice is not assumed just because the amendment occurs late in the proceeding]). In determining if the delay was excessive, the court will consider "how long the amending party was aware of the facts upon which the motion was predicated, and whether it offers a reasonable excuse for its lengthy delay" (F.G.L. Knitting Mills v 1087 Flushing Prop., 191 A.D.2d 533, 534 [2d Dept 1993] quoting Pellegrino v New York City Tr. Auth., 177 A.D.2d 554, 557 [2d Dept 1991]).
A party does not need to establish the merits of their new allegations on a motion for leave to amend, but rather only need to "show that the proffered amendment is not palpably insufficient or clearly devoid of merit" (MBIA Ins. Corp, v Greystone & Co., Inc., 74 A.D.3d 499, 500 [1st Dept 2010]; see also Ferrer v Go N.Y. Tours Inc., 221 A.D.3d 499, 500 [1st Dept 2023]). "The legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt" (Ferrer, 221 A.D.3d at 500 quoting Sample v Levada, 8 A.D.3d 465, 467-468 [2d Dept 2004]). The presumption of validity in an amended pleading must be overcome by the opposing party by showing "the facts alleged and relied on... are obviously unreliable or insufficient to support the amendment" (Peach Parking Corp, v 346 W. 40th St., LLC, 42 A.D.3d 82, 86 [1st Dept 2007]). "If the opposing party wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment upon a proper showing" (Lucido v. Mancuso, 49 A.D.3d 220, 229 [2d Dept 2008]).
Plaintiff does not contend that the amended pleadings are prejudicial but rather claims that the affirmative defenses are without merit and that Columbia excessively delayed in bringing this motion to amend the answer. Plaintiff also argues that Columbia cannot succeed on the merits and a counterclaim for fraud may only be brought in an action alleging a fiduciary or contractual relationship, which does not exist here.
The court does not agree that the delay was excessive. When this action was commenced in 2022, the facts that Columbia relies on in support of this motion were not then known to it. Columbia had no reason to suspect fraudulent activity by the Plaintiff. Instead, facts essential to support Columbia's counterclaim for fraud were discovered during plaintiffs 2024 deposition and after the recent New York Post article.
Plaintiff also argues that Columbia has failed to meet the pleading requirements for fraud, to wit "a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages" (Joseph v Fensterman, 204 A.D.3d 766, 768 [2d Dept 2022], quoting Emby Hosiery Corp, v Tawil, 196 A.D.3d 462, 464 [2d Dept 2021]). The court disagrees. Otherwise, plaintiff has failed to show that the proposed counterclaim is patently meritless.
Columbia also moves to compel Plaintiff to produce HIPPA authorizations for the release of her daughter's medical records. Columbia makes the argument that the medical records are discoverable under CPLR § 3101(a)(1), which requires "full disclosure of all matter material and necessary in the prosecution of defense of an action, regardless of the burden of proof, by ... a party, or the officer, director, member, agent or employee of a party." However, Fabal is not a party to this action and "waiver of [plaintiffs] own doctor-patient privileges d[oes] not constitute a waiver of their relatives' privileges" (Van Epps v County of Albany, 184 Mise.2d 159, 166 [Sup Ct, Albany County 2000] citing Matter of New York County DES Litig, 168 A.D.2d 44, 47 [1st Dept 1991]). Moreover, a medical provider would not honor plaintiffs authorization of medical records not belonging to her absent a power of attorney, which is not present here. Accordingly, the balance of the motion is denied.
Conclusion
Accordingly it is hereby
ORDERED that the defendant's motion for leave to amend the answer herein is granted, and the amended answer in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further
ORDERED that the plaintiff shall serve a reply to defendants' counterclaims or otherwise respond thereto within 20 days from the date of said service; and it is further
ORDERED that the motion is denied as to Columbia's request to compel Plaintiff to produce HIPP A authorizations releasing Fabal's medical records; and it is further
ORDERED that the deadline to file note of issue is extended to November 15, 2024 and on or before that date, the parties shall meet and confer and present a stipulation to the court setting deadlines for all outstanding discovery to be so ordered.
Any requested relief not expressly addressed herein has nonetheless been considered and is hereby rejected and this constitutes the decision and order of the court.