The following papers were read on Defendant Windsor Terrace (“Windsor Terrace”)’s motion for penalties due to Plaintiff’s noncompliance with discovery demands: Papers Numbered Defendant Windsor Terrace’s Notice of Motion, Affirmation in Support dated and electronically filed on September 3, 2020 (“Motion”) and attached exhibits, seeking penalties for Plaintiff’s noncompliance with discovery demands, with proof of service. 1 Defendant Windsor Terrace’s Reply Affirmation dated and electronically filed on October 7, 2020 (“Reply”). 2 Plaintiff’s opposition N/A Background In a summons and complaint dated December 22, 2011 and filed in Supreme Court, Queens County, Plaintiff sued Defendants to recover damages and equitable relief for property damage, nuisance, constructive eviction, breach of covenant of quiet enjoyment and intentional infliction of emotional distress (see Motion, Aff. of Scotti, Ex. A). On April 7, 2014, the matter was transferred to Civil Court, Queens County (CPLR 325[d]), by stipulation of the parties dated as of March 4, 2014 (see Motion, Scotti Aff. Ex. C). In March 2012 and January 2017, Windsor Terrace served various discovery demands on Plaintiff seeking, among other things, HIPAA authorizations and tax records (see Motion, Scotti Aff. Ex. D). A so-ordered stipulation dated November 17, 2017 (“2017 Order”) among all parties, directed Plaintiff to provide disclosure, including medical authorizations, by January 5, 2018, and precluded Plaintiff from presenting evidence at trial regarding her personal injuries if she failed to do so (see Motion, Scotti Aff. Ex. E). In January 2020, Windsor Terrace served supplemental demands for discovery (see, Motion, Scotti Aff. Ex. F). In February and April 2020, Windsor Terrace sent correspondence by letter and email to Plaintiff following up with the prior requests for discovery (see Motion, Scotti Aff. Ex. I and J). Plaintiff provided Windsor Terrace with a “Good Faith letter and Email” dated as of May 25, 2020. Defendant Windsor Terrace now moved for penalties for Plaintiff’s failure to comply with discovery demands (CPLR 3124; 3126). Plaintiff and co-defendant Borden did not oppose Windsor Terrace’s motion. Discussion In the Motion, Windsor Terrace argued that Plaintiff failed to respond to its disclosure demands by failing to provide HIPAA authorizations and tax returns. Windsor Terrace also claimed that Plaintiff had not complied with other disclosure demands, but did not specify the demands with which Plaintiff failed to comply. Windsor Terrace also argued that Plaintiff provided apparent responses to Windsor Terrace’s demand on May 25, 2020, but such responses were unsatisfactory. Specifically, Windsor Terrace noted that Plaintiff failed to provide HIPAA compliant authorizations, and provided only self-prepared lists without providing the authorizations or releases necessary to obtain records of Plaintiff’s (1) criminal history, (2) past residences since 1987, and (3) average income, lost opportunities and legal expenses (see Motion, Scotti Aff. 15-20). In addition, the 2017 Order with which Windsor Terrace supported its Motion, penalized Plaintiff’s failure to provide the authorizations and medical records and directed Plaintiff to “respond to all outstanding discovery demands” by January 5, 2018, or Plaintiff would “be precluded from introducing at trial any evidence related to her alleged personal injuries” (see Motion, Scotti Aff. Ex. E). In the Motion, Windsor Terrace sought an order “dismissing [P]laintiff’s action…due to her failure to disclose discovery and comply with the court’s numerous orders; or in alternative…prohibiting the [P]laintiff from introducing any evidence relating to…[Plaintiff]‘s alleged injuries upon the trial of this matter; and/or…directing that [P]laintiff…respond to the discovery demands served by Windsor [Terrace] by a day certain or risk the striking of [Plaintiff's] pleadings; and…[other] relief as this Court may deem to be just and proper” (Motion at 1). It is well established that medical evidence is required to establish an emotional distress claim (Erani v. Flax, 193 AD2d 777, 777 [2d Dept 1993]; Glendora v. Walsh, 227 AD2d 377, 377-78 [2d Dept 1996]; Walton v. Auburn Leasing, LLC, 66 Misc 3d 134[A], 2019 NY Slip Op 52122[U] *2 [App Term 2d Dept 2019]), while nuisance requires a showing of substantial interference, with intent and of an unreasonable character, with a person’s property right to use and enjoy the land caused by an act or failure to act (Curry v. Matranga, 194 AD3d 1011, 1012-13 [2d Dept 2021]; 211-12 N. Blvd. Corp. v. LIC Contr., Inc., 186 AD3d 69, 83 [2d Dept 2020]). In addition, breach of covenant of quiet enjoyment requires conduct causing actual or constructive eviction (see White v. Long, 85 NY2d 564, 567 [1995]; 34-35th Corp. v. 1-10 Indus. Assoc., LLC, 16 AD3d 579, 580 [2d Dept 2005]). Here, medical records are essential to establish an emotional distress claim, however, Plaintiff failed to provide such medical records by January 5, 2018 pursuant to the 2017 Order and continued to fail to provide such medical records as of the date of the Motion. Therefore, this Court grants Windsor Terrace’s Motion to the extent of dismissing Plaintiff’s intentional infliction of emotional distress claim because the medical authorizations and tax records pertain to that claim (CPLR 3126[3]; see Tsatskin v. Kordonsky, 189 AD3d 1296, 1298 [2d Dept 2020]). Plaintiff’s remaining claims for property damage, nuisance, constructive eviction, and breach of covenant of quiet enjoyment, however, will proceed to trial because the HIPAA authorizations and tax records do not pertain to those claims. Since Windsor Terrace also contended that Plaintiff had failed to provide disclosure other than the HIPAA authorizations and tax returns, this Court also grants Windsor Terrace’s Motion to the extent of compelling Plaintiff to respond to all remaining discovery demands (CPLR 3124). Decision and Order Accordingly, it is ORDERED that Defendant’s Motion for penalties for noncompliance with disclosure demands is granted on default to the extent of dismissing Plaintiff’s claim for intentional infliction of emotional distress; and it is further ORDERED that Defendant’s Motion is granted on default to the extent of compelling Plaintiff to respond to Windsor Terrace’s outstanding discovery demands dated January 2, 2020, by January 17, 2022; and it is further ORDERED that if Plaintiff fails to respond to Defendant’s outstanding discovery demands in accordance with this order, Plaintiff shall be precluded from offering evidence as demanded by Windsor Terrace regarding her claims at trial; and it is further ORDERED that if Plaintiff complies with this order and provides the responses to Defendant’s discovery demands as set forth above, this matter shall proceed to trial on Plaintiff’s claims for property damage, nuisance, constructive eviction, and breach of covenant of quiet enjoyment, however Plaintiff shall be precluded from offering any evidence related to her alleged personal injury pursuant to the so ordered stipulation dated November 17, 2017; and it is further ORDERED that the part clerk is directed to correct the caption to reflect Plaintiff’s name as “Aruna Advani,” as indicated in the complaint and all subsequent court filings. This constitutes the court’s Decision and Order. Dated: August 26, 2021
