The following papers read on this motion:Notices of Motion and Affidavits XAffirmations in Opposition XReply Affirmations XADDITIONAL CASES257 Toppings Path LLC and A-H Construction, LLC, Third-Party Plaintiffs, v. Builder Services Group, Inc. d/b/a Cary Insulation, Third-Party Defendant Motion by the defendants/third-party plaintiffs, 257 Toppings Path LLC and A-H Construction, LLC, for an order, pursuant to CPLR 3126 and Judiciary Law 753(a)(2), striking plaintiffs’ complaint and dismissing the instant action based on the plaintiffs’ alleged fraud on the court; or in the alternative, pursuant to CPLR 3126, issuing a negative inference order finding that plaintiffs deliberately attempted to conceal pre-existing conditions, precluding plaintiff’s from offering into evidence previously undisclosed of records and photographs from police and OSHA, and compelling plaintiffs to provide complete responses to the defendants’ discovery demands conditioned on preclusion (Motion Sequence No. 3). Third-party defendant, Builder Services Group, Inc. d/b/a Cary Insulation, moves for identical relief (Motion Sequence No. 4). The plaintiffs submit opposition. The movants submit respective reply affirmations.The plaintiffs initiated this action for personal injuries sustained on September 17, 2016, when Gregorio Fuentes alleges that he was caused to fall while performing work at the premises of defendant 257 Toppings Path LLC, State of New York. The defendants/third-party plaintiffs initiated this third-party action against the third-party defendant for contractual indemnification. The plaintiffs’ claims include back and neck injuries requiring fusion surgery.“[I]n order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending party has acted knowingly in an attempt to hinder the fact finder’s fair adjudication of the case and his adversary’s defense of the action (Lucas v. Stam, 147 A.D.3d 921). In such a case, it can fairly be said that the offending party has forfeited the right to have the claim decided on the merits (CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307).In support of their positions, the movants provide the transcripts of the plaintiffs’ Examinations Before Trial (EBTs), wherein Mr. and Mrs. Fuentes each testified that Mr. Fuentes had not experienced any prior pain or treatment to his back or neck. The movants further provide the independent medical examination report of Jay Nathan, M.D., who states that Mr. Fuentes reported no prior conditions or accidents.The movants additionally offer records from various medical providers that were not provided by plaintiffs in their initial discovery responses. Among them are records from a visit to Stony Brook University Hospital, dated July 7, 2014, wherein Mr. Fuentes presented with neck pain, and was diagnosed with cervical radiculopathy. The movants also provide records from Health 1 Medical PC, dated July 26, 2014, wherein Mr. Fuentes’ chief complaint was neck pain, and he was diagnosed with cervicalgia and a muscle spasm. The movants further provide the October 11, 2015 records of Quest Medical Care, PC, wherein Mr. Fuentes was again diagnosed with cervicalgia as well as low back pain. In addition, records are provided from Island Musculoskeletal Care, PC, from June 2010 through May 2011, wherein Mr. Fuentes was treated for neck and low back pain.The movants further allege that, despite being served with only two photographs in response to their request for police or government reports, plaintiffs’ counsel sought to question a witness at an EBT as to OSHA records, police records, and photos which were not previously disclosed.In sum, the movants have demonstrated that the plaintiffs deliberately concealed prior injuries to Mr. Fuentes’ back and neck by providing false statements and obstructing discovery in order to hinder the defense that Mr. Fuentes’ fusion surgery was unrelated to the subject accident. Even if the plaintiffs were ordered to provide all records of Mr. Fuentes’ prior treatment for back and neck pain, it would be impossible to know whether plaintiffs had provided full disclosure of all records as a result of plaintiffs’ previous actions, thereby prejudicing the movants’ defenses (see CDR Creances S.A.S., supra).In opposition, the plaintiffs argue, by attorney affirmation rather than by sworn affidavit, that plaintiffs did not deliberately attempt to obstruct discovery, but rather, that Mr. and Mrs. Fuentes merely forgot about Mr. Fuentes’ prior back and neck treatment. Plaintiffs further claim that the instant motions should be deemed moot, as the plaintiffs have since provided all authorizations as well as the OSHA and police records.However, plaintiffs neglect to offer an explanation for their failure to provide the aforementioned authorizations and records, nor do they attempt to explain the delay in providing them. Further, contrary to the plaintiffs’ assertions that the previously undisclosed medical records from 2014 are unrelated to back and neck pain, Mr. Fuentes’ chief complaint according to the 2014 records of Health 1 Medical PC was neck pain. Additionally, while plaintiffs claim that the 2014 records of Stony Brook University Hospital only shows pain radiating into the right arm, the physician’s note clearly states that Mr. Fuentes presented with “right sided neck pain radiating down into his arm.” Both of these records include diagnoses regarding Mr. Fuentes’ cervical spine.Accordingly, the plaintiffs have failed to rebut the finding that their pattern of dishonest and obstructive behavior has prejudiced the movants. Mr. Fuentes reported that he had no prior treatment for injuries to his back or neck in workers compensation questionnaires, at his independent medical examinations, and at his EBT, when in fact, he had received extensive medical attention for these areas. Plaintiffs additionally refused to provide authorizations demonstrating such prior treatment until confronted with their adversary’s knowledge thereof. In light of the foregoing, plaintiffs have therefore forfeited the right to have their claims decided on the merits (see CDR Creances S.A.S., supra).Upon the foregoing, it is herebyORDERED that the instant motions are granted, and the action is dismissed.Dated: April 25, 2019
