Sheinman-Hardes v. Main 15, Lee Limited Partnership

ADDITIONAL CASES Main 15 Lee Limited Partnership, Third-Party Plaintiff v. JrCruz Corp. and New Cingular Wireless PCS, LLC d/b/a AT&T Mobility, Third-Party Defendants The following papers numbered E281-E301, 315, 317- 320, 325-327, were read on this motion by Third-Party Defendant New Cingular Wireless PCS, LLC i/s/h/a/New Cingular PCS. LLC d/b/a AT&T Mobility (“New Cingular” hereinafter) for an order (1) vacating and striking the Note of Issue and Certificate of Readiness for trial in the entirety and striking the matter form the trail calendar due to outstanding discovery material and necessary to the defense of this action pursuant to 22NYCRR §202.21(e), (2) compelling Plaintiff to provide and complete discovery, including compelling Plaintiff to furnish authorizations and information demanded in New Cingular’s Further Post-Deposition Demands dated January 16, 2024, and new/corrected Aron authorizations pursuant to CPLR §3124 and (3) extending the time for the parties to move for summary judgment until 120 days after discovery is completed (Motion Seq #6) and E302-314, 316, 321-324, and 328 on this motion filed by Third-Party Defendant JRCRUZ Corp. (“JR” hereinafter) seeking the same relief sought by New Cingular (Motion Seq.#7) as well as such other and further relief as this Court deems proper. PAPERS NUMBERED MOTION SEQUENCE #6 Defendant’s Notice of Motion-Affirmation — Exhibits    E281-E301 Stipulation of Adjournment               E315 Plaintiff’s Affirmation in Opposition E317-E320 Defendant’s Reply Affirmation          E325 MOTION SEQUENCE #7 Defendant’s Notice of Motion — Affirmation-Exhibits    E302-E314 Stipulation of Adjournment               E316 Plaintiff’s Affirmation in Opposition E321-E324 Defendant’s Affirmation in Reply     E328 DECISION AND ORDER Upon the foregoing papers, the motions are determined in a single decision and order for the following reasons: This action arises from personal injuries allegedly sustained on June 14, 2017, when Andrea Sheinman-Hardes, (“Plaintiff” hereinafter) was walking on a sidewalk in front of 39-15 Main when she suddenly, unexpectedly, and violently was thrown to the ground. Plaintiff alleges that she sustained serious injuries and that such injuries were caused by the negligence of Defendant Main 15 Lee Limited Partnership (“Main 15″ hereinafter), specifically their negligence in failing to use reasonable care to keep the sidewalk in a reasonably safe condition. Damages are to be determined a trial. PROCEDURAL HISTORY On December 21, 2020, Main 15 filed, as Third-Party Plaintiff, a Notice of Impleader against Defendants New Cingular and JZ. On January 11, 2021, and on March 12, 202 New Cingular and JR filed their Answer to Main 15 Third-Party Complaint respectively. On January 18, 2021, Plaintiff filed Note of Issue and a Certificate of Readiness.¹ After motion practice ensued, by way of a So Ordered Stipulation, the Notice of Issue was vacated on March 7, 2023. Such order allowed for further depositions of Plaintiff and for additional discovery demands.² On December 13, 2023, further depositions of Plaintiff occurred, and discovery continued including Plaintiff providing Aron Authorizations on January 8, 2024. However, both New Cingular and JR (hereinafter “Defendants”) objected and continue to object to the following language that was included in said authorizations: THE PURPOSE OF THE REQUESTED INTERVIEW WITH THE PHYSICIAN IS SOLELY TO ASSIST DEFENSE CONSEL AT TRAIL. THE PHYSICIAN IS NOT OBLIGATED TO SPEAK WITH DEFENSE COUNSEL PRIOR TO TRIAL, THE INTERVIEW IS VOLUNTARY SEE PORCELLI v. N. WEDTCHESTER HOSP. CTR., 2008-07430 (2ND DEPT. 6-0-2009) 2009 NY SPLIP OP 04881. YOUR PATIENT IS ONLY PROVIDING THIS AUTHORIZATION BECAUSE THE LAW REQUIRES IT, THIS IS NOT IN YOUR PATIENT’S BEST INTERESTS. YOU ARE FREE TO REFUSE ANY REQUESTS FOR AN INTERVIEW.³ On January 11, 2024, JR served Plaintiff with a Post-Deposition demand for authorizations.⁴ On January 16, 2024, New Cingular submitted further Post Deposition Demands.⁵ On January 18, 2024, JR served a good-faith letter to Plaintiff objecting to the improper language on the Aron⁶ Authorizations produced by Plaintiff on January 8, 2024. ⁷ On January 22, 2024, Plaintiff filed a new NOI and COR.⁸ On January 24, 2024, New Cingular sent a good-faith letter requesting withdrawal of the Note of Issue and Certificate of Readiness as discovery was still incomplete and objecting to the improper language on the Aron Authorizations.⁹ On January 25, JR sent a follow-up email to Plaintiff addressing the outstanding discovery and re-stated its objection to the language contained on the Aron Authorizations.¹⁰ On January 31, 2024, Plaintiff responded to JR’s Post-EBT demands, but was not responsive to New Cingular.¹¹ On February 1, 2024, New Cingular replied to Plaintiff’s Post-EBT demands and notified Plaintiff that discovery was still outstanding and again objected to the Aron Authorizations language.¹² On February 6, 2024, JR served Plaintiff with another good faith letter addressing Plaintiff’s deficiencies.¹³ On February 7, 2024, all parties, via conference call, discussed the outstanding discovery and the inappropriate language on the Aron Authorizations. Although Plaintiff counsel acknowledged the outstanding discovery, he did not provide a time frame for compliance with the discovery demands, and refused to withdraw the NOI, COR or amend the Aron Authorizations. On April 4, 2024, Plaintiff filed her Affirmation in Opposition to Motion Seq. 6 and 7, arguing that she has substantially complied with all outstanding discovery and that the language superimposed on the Aron Authorizations is permissible and in compliance with Rules of the Court.¹⁴ ANALYSIS Defendants argue that the second Note of Issue should be vacated as premature to facilitate the completing of discovery without the threat of impending trial. Defendants rely on 22 NYCRR §202.21(e),¹⁵ which provides that a Certificate of Readiness must state that all discovery has been completed and that the case is ready for trial. Because Plaintiff is refusing to provide new authorization after Defendants’ numerous objections to the ones provided and suggesting that healthcare providers reframe from speaking to the defense as “[it] is not in the patients’ best interest,” discovery remains outstanding. Defendants rely on Arons v. Jutkowitz, 9 N.Y.3d 393 (2007). There, the Court of Appeals held that there was no general prohibition against defense counsel conducting an ex-parte interview with a non-party physician who treated the plaintiff, with the understanding that nothing requires the physician to relate any information, provided that the attorney seeking the information complied with HIPAA Privacy Rules,¹⁶ and that the authorization must contain…”specific core elements and requirements, including a “specific and meaningful’ description of the protected health information to be used or disclosed, the identity of those persons or classes of persons authorized to make and receive the requested use or disclosure, an expiration date or event, the individual’s signature and a statement notifying the signatory of the right to revoke the authorization in writing…”¹⁷ and must follow that professional rules of conduct. The Aron Court favored “…informal discovery of information that [might] serve both the litigant and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes.” Id. at 407 (quoting Niesig v. Team I, 76 N.Y.2d 363, 372 [1990]). In her opposition, Plaintiff cites to Porcelli v. N. Westchester Hospital. Ctr., 65 A.D.3d 176, (2nd Dept. 2009), for the proposition that the Aron Court “…neither disturbed nor criticized the Supreme Court requirement…that the admonition, in boldface type be placed directly on the authorization themselves. Moreover, on their face, the subject admonitions are unlikely to chill the nonparty treating physician’ decision to agree to an interview, as they are facially neutral: “The purpose of the requested interview with the physician is solely to assist the defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary.” Id. at 185. However, the Court reasoned that negative inference as to the language of the admonition can be cure by the mere fact that that authorization signed by the physician’s patient. Lastly, Plaintiff relies on Porcelli in that in that not only defense can make the admonition, but that…”Plaintiff may include language on the face of the Aron authorizations notifying the physicians that the participation in these interviews while authorized to do so, is totally voluntary and for the express purpose of aiding the adversaries of their patient in a legal matter before the Court.”¹⁸ This Court agrees with Defendants. In this case, Plaintiff included language in the Arons Authorizations that goes above and beyond the envisioned language necessary to prevent the innocent accidental disclosure of medical information. Instead, said language infringes upon the ethical limitations of our beloved profession. This Court finds that included language equates to “don’t talk to defense counsel,” thereby placing Plaintiff’s fingers on the scale of justice and impinging the free flow of the much-favored open discovery and speedy resolution of the parties’ claims. Therefore, Defendants’ motions are GRANTED. Accordingly, it is hereby ORDERED, that Plaintiff’s Note of Issue and Certificate of Readiness is hereby vacated; and its further ORDERED, that new Aron authorizations are to be provided within 5 days from the date of this order without the following language: “YOUR PATIENT IS ONLY PROVIDING THIS AUTHORIZATION BECAUSE THE LAW REQUIRES IT, THIS IS NOT IN YOUR PATIENT’S BEST INTERESTS. YOU ARE FREE TO REFUSE ANY REQUESTS FOR AN INTERVIEW”; and it is further ORDERED, that this matter be sent to the Compliance Conference Part/CSCP. This case is to be scheduled for the Compliance Conference Part/CSCP. No date has yet been set by the part for the parties to appear for their Compliance Conference. The Compliance Conference/CSCP Part is the designated part to resolve all discovery issues. Accordingly, all unresolved issues must await the date before the Part and Judge to resolve the issues and any application; and it is further **** THIS SPACE IS INTENTIONALLY LEFT BLANK **** ORDERED, that the Third-Party Defendant shall serve a copy of this Order with Notice of Entry upon the clerk of this court and upon all parties on or before July 8, 2024. All other relief not discussed herein is denied. This constitutes the Decision and Order of this Court. Dated: June 26, 2024