Opinion
Index No. 805160/2017 Motion Seq. Nos. 003 004
12-05-2022
MARVIN FIEDLER, SYMMA FIEDLER, Plaintiff, v. JOSE A RODRIGUEZ, ELMELA ZLATANIC, BILGE D KALYON, DAVID Y CHAN, TANSAR MIR, ARIEL TENNY GOLDMAN, MATTHEW HEPINSTALL, NICHOLAS LAGAMMA, SHIRLEY MATHEW, ALAN BULBIN, DAVA KIRSFIELD, NORTH SHORE INFECTIOUS DISEASE CONSULTANTS PC,LONG ISLAND JEWISH HOME CARE, NORTH SHORE HOME CARE, NORTH SHORE LIJ HOME CARE NETWORK, LENOX HILL HOSPITAL, NORTH SHORE UNIVERSITY HOSPITAL Defendant.
Unpublished Opinion
MOTION DATE 04/06/2022, 11/24/2021
DECISION+ ORDER ON MOTION
HON. KATHY J. KING PART, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 003) 202, 203, 204, 205, 206, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220 were read on this motion to/for DISCOVERY .
The following e-filed documents, listed by NYSCEF document number (Motion 004) 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 262, 263, 264, 265, 266, 267, 268, 270, 272, 273, 274, 275, 276 were read on this motion to/for STRIKE PLEADINGS .
The within action sounds in medical malpractice for injuries allegedly sustained by plaintiff, Marvin Fiedler, and derivatively by his spouse, Symma Fiedler, for failure to timely diagnose and treat plaintiff Marvin Fiedler's infection following hip replacement surgery, performed by Jose A. Rodriguez, M.D. ("Rodriguez") at Lenox Hill Hospital on March 14, 2016.
Plaintiffs move for an order, inter alia, striking defendants' answers, pursuant to CPLR §3126 or alternatively, compelling the defendants to provide discovery (Motion Seq. 03). A review of the moving papers indicates that plaintiffs served defendants with demands for discovery and inspection dated September 12, 2021 and October 3, 2021, which included a demand for copies of office and cell phone records of defendant Tansar Mir, M.D. ("Mir") over a five-month period. Defendants complied with the plaintiffs' demands, however defendant Mir objected to plaintiffs' demand for phone records, arguing it was improper as it would lead to the disclosure of privileged information concerning Mir's other patients, and that plaintiffs had not provided a proper basis for the demand. Defendant Mir opposes the plaintiffs' motion.
On December 2, 2021, plaintiffs served a subsequent notice for discovery and inspection on defendants Rodriguez and Tansar Mir, M.D. ("Mir") seeking, among other things, copies of office and cell phone records, text messages and images relating to phone calls made to and from specific telephone numbers associated with the plaintiffs and plaintiff Marvin Fiedler's home health aide. Defendants Rodriguez and Mir objected to plaintiffs' demand, and plaintiffs moved to strike their answers, pursuant to CPLR §3126, or alternatively to compel production of the records, pursuant to CPLR §3124 (Motion Seq. 04).
Defendants Rodriguez and Mir cross-move seeking a protective order, pursuant to CPLR §3103, arguing that plaintiffs' demand for the phone records will not yield any relevant discovery and is, among other things, overly broad, unduly burdensome, that has previously been produced, and seeks information that is already in the possession, custody and control of the plaintiffs (Motion Seq. 04). Plaintiffs oppose the cross-motion, arguing that the phone records are necessary to show a lack of communication between the plaintiffs and defendants Rodriguez and Mir, which allegedly lead to the worsening condition of plaintiff Marvin Fiedler.
CPLR §3103(a) permits a party to move for a protective order "denying, limiting, conditioning or regulating the use of any disclosure device." The provision further dictates that "such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts." Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: "[t]here shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Generally, the test of whether disclosure is "material and necessary" is "one of usefulness and reason" (see Forman v Henkin, 30 N.Y.3d 656, 661 [2018]).
Plaintiffs' demand for all office, cell phone and text message records of Rodriguez and Mir is overly broad and not reasonably tailored to obtain discovery relevant to the issues in this case (see Doe v Bronx Preparatory Charter School, 160 A.D.3d 591 [1st Dept 2018]). Contrary to plaintiffs' contentions in opposition to the cross-motion, plaintiffs have failed to demonstrate that the phone records are material and necessary to the prosecution of this action (see Gough v Panorama Windows, Ltd., 133 A.D.3d 526 [1st Dept 2015]), since the moving papers demonstrate there has been no showing through deposition testimony or otherwise, of an issue involving phone calls from or to the telephone numbers associated with the plaintiffs. Further, the Court notes that plaintiffs have not provided a basis for requiring the defendants to cull through their phone records when the records are readily obtainable by the plaintiffs.
The remaining contentions are without merit.
Accordingly, it is hereby
ORDERED, that plaintiffs' motions (Motion Sequence 03 and 04) seeking to strike the answers of defendants Jose A. Rodriguez, M.D. and Tansar Mir, M.D., compel discovery or to preclude the defendants from offering evidence at trial is denied; and it is further
ORDERED, that the cross-motions (Motion Sequence 04) of defendants Jose A. Rodriguez, M.D. and Tansar Mir, M.D. are granted.
This constitutes the decision and order of the Court.