The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 were read on this motion to/for DISCOVERY. DECISION + ORDER ON MOTION This is an action for personal injuries sustained by plaintiff, who injured his right shoulder on June 18, 2018, while working as an elevator operator when a beam fell on him. On May 6, 2023, defendants 1114 6th Avenue Owner LLC, Wager Contracting Co., Inc., and Brookfield Asset Management LLC (collectively, defendants) moved for an order pursuant to CPLR 3126 dismissing plaintiff’s complaint for failing to provide complete discovery responses to discovery demands and for violating court orders, or, in the alternative, pursuant to CPLR 3124, compelling plaintiff to provide outstanding unrestricted authorizations to defendants’ prior demands, unrestricted authorizations, and authorizations in connection with a subsequent accident that occurred on or about February 22, 2019 and compelling plaintiff to provide a supplemental bill of particulars formally withdrawing plaintiff’s lost earnings claim.1 Defendants seek plaintiff’s unrestricted medical authorizations, arguing that as plaintiff failed to timely respond to its discovery demands, he has waived the right to object to their demands. They also argue that plaintiff has placed his entire medical condition in controversy based on his allegations that his injuries have prevented him from attending to his usual activities. They argue that plaintiff’s failure to respond to its demands in a timely manner, and insufficient responses thereafter, merit dismissal of the complaint. Plaintiff contends that he has produced many authorizations that defendants have requested but argues that he should not be required to produce authorizations for injuries not related to plaintiff’s right shoulder, and that he need not provide authorizations unrestricted in scope as defendants seek. Pursuant to CPLR 3101(a), “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action…” What is material and necessary is generally left to the court’s sound discretion and may include “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Forman v. Henkin, 30 NY3d 656, 661 [2018], quoting Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). Pursuant to CPLR 3122(a) failure to make a timely challenge to a document demand forecloses inquiry into the propriety of the information sought “except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper.” Recine v. City of New York, 156 AD3d 836 (2d Dept 2017); Murphy v. Hamilton, 90 AD3d 1294 (3d Dept 2011). Here, it is undisputed that plaintiff’s responses were late, and that he did not initially object on the basis of privilege. However, even where discovery responses are untimely and the responding party fails to object with particularity, objections based on valid claims of privilege or palpable impropriety are not waived. Khatskevich v. Victor, 184 AD3d 504 (1st Dept 2020). A party waives the physician-patient privilege when it voluntarily and affirmatively inserts into litigation the issue of a physical or mental defect or condition. Rega v. Avon Products, Inc., 49 AD3d 329 (1st Dept 2008). Such a waiver is limited in scope to conditions affirmatively placed in controversy. Jerez v. 2141, LLC, 191 AD3d 407 (1st Dept 2021); Gumbs v. Flushing Town Ctr. III, L.P., 114 AD3d 573 (1st Dept 2014). The burden of proving that a party’s mental or physical condition is in controversy is on the party seeking disclosure of medical records. Koump v. Smith, 25 NY2d 287, 300 (1969); Budano v. Gurdon, 97 AD3d 497, 498 (1st Dept 2012). Here, it is undisputed that plaintiff’s shoulder has been placed in controversy. Additionally, as plaintiff concedes in his opposition papers that “[t]his was a significant injury and surgery rendering pla[i]ntiff totally disabled for about 9 months” defendants are entitled to authorizations for plaintiff’s post-accident injury records for subsequent injuries suffered by plaintiff. However, defendants are not entitled to unrestricted authorizations for pre accident records unrelated to plaintiff’s shoulder, as plaintiff has not placed his entire medical condition in controversy by alleging an injury to his shoulder. See Gumbs, 114 AD3d at 574. CPLR 3126 states that “A court may strike an answer only when the moving party establishes ‘a clear showing that the failure to comply is willful contumacious or in bad faith’” Reidel v. Ryder TRS, Inc., 13 AD3d 170 (1st Dept 2004). However, striking a pleading pursuant to CPLR 3126 is an extreme penalty only to be used when there is an outright refusal to obey an order for disclosure. Berman v. Szpilzinger, 180 AD2d 612, 612 (1st Dept 1992); This is only necessary when the actions of one party necessitate it. Henry Rosenfeld, Inc. v. Bower & Gardner, 161 AD2d 374, 374 (1st Dept 1990). Here, plaintiff’s failure to timely respond to discovery demands does not constitute such willful and contumacious conduct as to merit striking the complaint. Thus, that portion of defendants motion is denied. As plaintiff attaches a supplemental bill of particulars withdrawing his lost wages claim, the portion of defendants motion seeking to compel plaintiff to amend his bill of particulars is denied as moot. Accordingly, it is hereby ORDERED that defendants’ motion is granted, to the extent that plaintiff is compelled provide additional authorizations for medical and workers compensation records from the date of the accident through the present, and to provide authorizations for records pertaining to any prior injury to plaintiff’s right shoulder, and is otherwise denied; and it is further ORDERED that plaintiff shall provide defendants with a supplemental discovery response consistent with this order within 30 days; and it is further ORDERED that counsel are directed to appear for a virtual status conference with the court via MS Teams on September 22, 2023 at 10:30 am. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: September 19, 2023
