Opinion
Index 805071/2015
11-04-2019
PUNTER, IESHA v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al.
Unpublished Opinion
HON. GEORGE J. SILVER JUSTICE
The following papers numbered 1 to 3 were read on this motion to REARGUE (Seq. 003):
| Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed | No(s). 1, 2 |
| Answering Affidavit and Exhibits | No(s). 2, 3 |
| Replying Affidavit and Exhibits | No(s). |
Plaintiff IESHA PUNTER's ("plaintiff) motion to reargue this court's decision and order dated April 12, 2019, and defendants' cross-motion, are decided as follows:
A motion for leave to reargue under CPLR §2221, "is addressed to the sound discretion of the court and may be granted only upon a showing 'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision'" (William P. Pabl Equipment Corp. v Kassis, 182 A.D.2d22 [I st Dept 1992] Iv denied and dismissed80 N.Y.2d 1005 [1992], rearg. denied Vi N.Y.2d 782 [1993]). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided (Pro Brokerage v Home Ins. Co., 99 A.D.2d 971 [1st Dept 1984]) or to present arguments different from those originally asserted (Foley v Roche, 68 A.D.2d 558 [1st Dept 1979]; Pahl Equip. Corp., 182 A.D.2d at 27, supra).
Here, on reargument the court's attention is drawn to fact that this court's April 12, 2019 order, as originally drafted, indicated that it relied on the trial court's ruling in Vargas v. Lee, 2015 NY Slip Op 31048 U (Sup, Ct. Kings Co. 2015), which was subsequently reversed by the Appellate Division, Second Department (see Vargas v. Lee, 179 A.D.2d 1073 [2d Dept. 2019]). Since the Appellate Division, Second Department, in Vargas reversed the trial court's denial of plaintiffs request for an audit trail, plaintiff submits that this court should also reverse its decision not to permit plaintiff to obtain an audit trail.
Setting aside the fact that Vargas was decided by the Appellate Division, Second Department, rather than the Appellate Division, First Department, the court notes upon reargument that the trial court's initial determination in Vargas is so factually distinguishable from the instant case that this court's initial reliance on it was in error. To be sure, in Vargas, following the deposition of a defendant doctor, plaintiffs made a motion to compel the production of an electronic audit trail after learning that portions of the medical record were withheld, notwithstanding the defendants' representation that they had provided plaintiffs' attorney with a complete set of medical records. That factual predicate is precisely why the Appellate Division, Second Department, found that plaintiffs had demonstrated that disclosure of the audit trail was necessary to assist in trial preparation, since the audit trail would help plaintiffs ascertain whether the initial patient records they were provided with were complete and unaltered.
Here, there has been no showing that defendants have withheld records from plaintiff. Had there been a basis in the record from which plaintiff could conclude that the hospital withheld portions of plaintiff s hospital record, this matter would he factually similar to the trial court decision in Vargas. Instead, here there is no claim or allegation relating to lost or altered records. In fact, this court's April 12, 2019 order made reference to that fact, noting that "plaintiff has made no allegation that the EMRs are inauthentic or improperly altered." The plaintiffs in Vargas had made such a showing, a fact that this court initially overlooked but that the Appellate Division, Second Department, correctly found. As such, plaintiffs questioning of this court's initial reliance on Vargas is correct, but for different reasons than those proffered by plaintiff. To be sure, the court did not incorrectly deny the application for an audit trail. Rather, the factual dissimilarities between the trial court findings in Vargas and the instant case, make Vargas distinguishable. To the extent that it applies, the Appellate Division, Second Department, correctly found that the trial court in Vargas erred insofar as it did not appreciate the factual support proffered by the plaintiffs. Here, where plaintiff did not provide factual support analogous to what was divulged at the trial court-level in Vargas, this court correctly found that plaintiff is not entitled to an audit trail at the present juncture in this litigation.
Therefore, it is hereby
ORDERED that the branch of plaintiffs motion to reargue this court's decision and order of April 12, 2019 with respect to the denial of an audit trail, is granted, and upon reargument, the court modifies its earlier determination with respect to the reasoning for denying plaintiffs application for an audit trail, but still adheres to its finding denying plaintiffs requested relief for an audit trail for the reasons articulated; and it is further
ORDERED that die parties are directed to appear for a conference before the court on December 17, 2019 at 9:30 AM at the courthouse located at 111 Centre Street, Room 1227 in the County and City of New York (Part 10).
This constitutes the decision and order of the court.