Opinion
Index No. 805320/2017 Motion seq. No. 005
05-25-2022
ERIN SHORENSTEIN, Plaintiff, v. ROBERT SPIERA, PENNY TURTEL, and JODY STORCH, AS EXECUTORS OF THE ESTATE OF HARRY SPIERA, M.D, and RHEUMATOLOGY ASSOCIATES, PC, Defendants.
Unpublished Opinion
MOTION DATE 02/14/2022
PRESENT: HON. JOHN J. KELLEY, Justice
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 005) 239, 240, 241, 242, 243, 244, 245, 246, 248, 251, 252, 253, 254, 255, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271 were read on this motion to/for MODIFY ORDER/JUDGMENT.
In this action to recover damages for medical malpractice, the plaintiff moves, in effect, pursuant to CPLR 2221(d) for leave to reargue her opposition to those branches of the defendants' motion seeking to compel her to provide authorizations and records with respect to her mental health treatment by Leslie Harf, Psy.D., and authorizations permitting them to obtain employment records from Proskauer Rose, LLC. Those branches of the motion had been granted by order dated October 29, 2021. Specifically, this court's October 29, 2021 order directed the plaintiff to exchange several items of discovery including,
"authorizations permitting the[ ] [defendants] to obtain the plaintiff's employment records from Paul Weiss Rifkind Wharton & Garrison, LLP, and Proskauer Rose, LLC;. . .
"authorizations permitting the defendants to obtain medical records from Leslie Harf, from May 4, 2019 through the present, including records related to any and all video conferences, telemedicine appointments, contacts, and emails;. . .
"any records in the plaintiff's possession referable to her treatment with Leslie Harf."
Upon reargument, the plaintiff seeks, at the very least, for the court to conduct an in camera review of those records. The defendants oppose the motion, and cross-move pursuant CPLR 3124 and 3126 to compel the plaintiff to provide the discovery by date certain, and to dismiss the complaint if the plaintiff fails to do so.
The plaintiffs motion is denied, inasmuch as the court did not overlook or misapprehend any facts or relevant law that were presented to it in connection with the prior application (see CPLR 2221 [d] [2]; William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22 [1st Dept 1992]). The purpose of a motion to reargue is not "to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Pro Brokerage, Inc. v Home Ins. Co., 99A D2d 971, 971 [1st Dept 1984], quoting Foley v Roche, 68 A.D.2d 558, 567 [1st Dept 1979]). The branch of the cross motion seeking to compel the plaintiff to provide the disputed items of discovery is denied as academic, as the court already has directed the plaintiff to produce those documents and authorizations.
The court notes that the category of records at issue was previously subject to an in camera review by the court (Madden, J.) on August 28, 2019, after which the court held that
"accordingly, subject to a confidentiality agreement or order, Dr. Harf's records from May 5th, 2014 regarding the first reference to a rare immunological disease to the present are discoverable. As to Dr. Harf s records from February 14th, 2011, they are also discoverable without redaction. As to records discussed -issues discussed with anxiety depression and stress, the same overall conditions allegedly caused by defendant's malpractice and, in some instances, referred to a continuum of symptoms related to circumstances or relationships first complained of at the commencement of treatment with Dr. Harf in 2011."Inasmuch as the court's August 28, 2019 ruling had already determined that Dr. Harf's records were discoverable, and that ruling was memorialized in an October 23, 2019 confidentiality order (Madden, J.) that was not appealed and remains in effect, the law of the case doctrine requires this court to deny the plaintiffs motion as to those records on that ground as well. 'The law of the case doctrine is a rule of comity and convenience which states that ordinarily a court of coordinate jurisdiction should not disregard an earlier decision on the same question in the same case" (Abe v New York Univ., 139 A.D.3d 416, 416 [1st Dept 2016], quoting Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 A.D.2d 467, 469 [1st Dept 1987]). The doctrine "applies only to issues decided, directly or by implication, at an earlier stage of the action" (Metropolitan Package Store Assn. v Koch, 89 A.D.2d 317, 321-322 [3d Dept 1982]). Moreover, in light of the confidentiality order, the plaintiff's concern regarding potential "embarrassment and emotional pain" has also been previously addressed by the court.
As to the branch of the defendant's cross motion seeking the imposition of sanctions upon the plaintiff for failure to make discovery, this court already has held, in its October 29, 2021 order, that the plaintiff's conduct during the course of discovery has not been willful, contumacious, or in bad faith (see Lee v 13th St. Entertainment LLC, 161 A.D.3d 631, 632 [1st Dept 2018]; Palmenta v Columbia Univ., 266 A.D.2d 90, 91 [1st Dept 1999]) nor has the plaintiff's conduct constituted a "pattern of disobeying court orders and failing to comply with disclosure obligations" (Amini v Arena Constr. Co., Inc., 110 A.D.3d 414, 415 [1st Dept 2013]; see Palmenta v Columbia Univ., 266 A.D.2d at 91 [noncompliance with one discovery order is not willful and contumacious conduct]; see also Brigham vJaffe, 189 A.D.3d 475, 475-476 [1st Dept 2020];-Butler v Knights Collision Experts, Inc., 165 A.D.3d 406, 407 [1st Dept 2018]; Figueroa v City of New York, 129 A.D.3d 596, 597 [1st Dept 2015] [party's failure to comply with three discovery orders was not willful and contumacious where that party evinced willingness to provide outstanding discovery]). Thus, the court will not impose sanctions at this juncture.
Accordingly, it is
ORDERED that the plaintiff's motion is denied; and it is further
ORDERED that the defendant's cross motion is denied; and it is further
ORDERED that on or before June 30, 2022, to the extent not already completed, the plaintiff shall fully comply with this court's October 29, 2021 Decision and Order; and it is further
ORDERED that the plaintiff's failure to comply with this Decision and Order and the October 29, 2021 order may result in sanctions; and it is further,
ORDERED that the court shall provide the plaintiff's attorney with a fill-in PDF status conference order form, the parties shall consult with one another and agree upon a schedule for further discovery, and the plaintiff's attorney thereafter shall complete form, and shall submit it to the court at SFC-Part56-Clerk@nycourts.gov on or before July 15, 2022, provided that, if the parties cannot agree on the terms of the status conference order, they shall request a remote status conference.
This constitutes the Decision and Order of the court.