Opinion
Index No. 805351/2021 Motion Seq. No. 002
07-14-2022
NACHUM BOREK, Plaintiff, v. DR. STUART SEIDMAN, DR. ELIZABETH SUBLETTE, NEW YORK PRESBYTERIAN/WEILL CORNELL MEDICAL CENTER, and PAYNE WHITNEY PSYCHIATRIC CLINIC, Defendants.
Unpublished Opinion
MOTION DATE 05/11/2022
DECISION + ORDER ON MOTION
JOHN J. KELLEY, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 49, 50, 51, 59 were read on this motion to/for INJUNCTION/COMPEL DISCOVERY .
In this action to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 6301 and 6311 for a preliminary injunction prohibiting the defendant Dr. Elizabeth Sublette from disposing of or destroying the medical and psychiatric records that she generated in connection with her treatment of the plaintiff from 2014 through 2016. He also moves pursuant to CPLR 3124 to compel her to provide him with a complete set of those records. Sublette opposes the motion. The motion is denied and the temporary restraining order included in this court's April 13, 2022 order to show cause is dissolved and vacated.
In his complaint, the plaintiff alleged, in effect, that the defendants committed medical malpractice by improperly prescribing certain psychiatric medications and that, as a consequence, he is currently mildly cognitively impaired from the effects of medication and the lingering effects of past, severe medication withdrawal breakdowns. He asserted that he suffers from fluctuations in his mental health due to continuous withdrawal from medications, and that he has become extremely sensitive to such administrations and withdrawals.
This motion was initiated by order to show cause dated April 13, 2022, in which the court temporarily restrained Sublette from disposing of or destroying the subject records pending consideration of the motion. To obtain a preliminary injunction, however, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury if a preliminary injunction is not granted, and (3) a balance of equities in his or her favor (see CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005]; Doe v Axelrod, 73 N.Y.2d 748, 750 [1988]; Gliklad v Cherney, 97 A.D.3d 401, 402 [1st Dept 2012]; Gilliland v Acquafredda Enters., LLC, 92 A.D.3d 19, 24 [1st Dept 2011]; Spinale v 10 W. 66th St. Corp., 193 A.D.2d 431, 431 [1st Dept 1993]).
"To establish a likelihood of success on the merits, '[a] prima facie showing of a reasonable probability of success is sufficient; actual proof of the petitioners' claims should be left to a full hearing on the merits'" (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 A.D.3d 430, 431 [1st Dept 2016], quoting Weissman v Kubasek, 112 A.D.2d 1086, 1086 [2d Dept 1985]; see also Demartini v Chatham Green, 169 A.D.2d 689 [1st Dept 1991]). Even though a preliminary injunction may be granted where facts are in dispute and the evidence supporting the motion is not "conclusive" (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 A.D.3d at 431; see Four Times Sq. Assoc. v Cigna Invs., 306 A.D.2d 4, 5 [1st Dept 2003]), the plaintiff nonetheless has failed to demonstrate a likelihood of success on the merits of this medical malpractice action, as, among other things, he has submitted no affirmation or affidavit from an expert supporting his claims of medical malpractice (see generally D.J.C. v Staten Is. Univ. Hospital- Northwell Health, 73 Misc.3d 840, 842 [Sup Ct, Richmond County 2021]).
In addition, he has not shown irreparable injury if a preliminary injunction were not granted, as he has adduced no proof whatsoever that Sublette intended to dispose of or destroy his records, or that any such harm was imminent (see Willow Media, LLC v City of New York, 78 A.D.3d 596, 596 [1st Dept 2010]).
Moreover, the balance of equities favors Sublette, as the plaintiff is collaterally estopped from claiming that he has the right to obtain those records in the first instance by virtue of a determination in a prior proceeding (see Matter of Borek v New York State Dept. of Health, Sup Ct, Albany County, Index No. 907378/21; hereinafter the CPLR article 78 proceeding). For that same reason, that branch of the plaintiff's motion seeking to compel Sublette to provide him with his records must be denied as well.
Sublette, a psychiatrist who also earned a Ph.D., treated the plaintiff from 2014 to 2016. In January 2020, Hannah Borek, the plaintiff's mother, acting pursuant to the grant of mental health care and durable powers of attorney, and in her capacity as his health care proxy, sought access to Sublette's records of the plaintiff's treatment. Several days after that request, Sublette denied access to those records, relying upon Public Health Law § 18, and concluding that the release of those records would be detrimental to the plaintiff's mental health and well-being. The written denial included notice of the plaintiff's right to appeal the determination to the New York State Department of Health (NYS DOH). In February 2020, Sublette nonetheless provided the plaintiff's mother with a narrative summary of the treatment that she had provided to the plaintiff, including the medications that she prescribed and the dosages thereof. In response to the plaintiff's appeal, the NYS DOH's professional Medical Records Access Review Committee (MRARC) initiated an investigation in June 2021, consisting of interviews, review of the subject records, consideration of written submissions, and deliberations thereon. On July 22, 2021, NYS DOH's Office of Medical Professional Responsibility (OPMC) reported that the MRARC had confirmed Sublette's non-disclosure determination.
The plaintiff thereafter timely commenced the CPLR article 78 proceeding against the NYS DOH in the Supreme Court, Albany County. As explained in the February 7, 2022 decision, order, and judgment denying the petition and dismissing the CPLR 78 proceeding (Mott, J.), the plaintiff, in his petition, stated that his mother drafted the petition and that he merely signed it, as he agreed with what she had written. The petition also recited that, although the plaintiff had sought an order of protection against his mother in 2015, supported by a contemporaneous letter from Sublette, and made allegations in connection therewith that his mother was harassing and stalking him, the passage of time allowed him to reconcile with her, and that he wished his mother to gain access to his psychiatric records.
The court rejected the plaintiff's assertion that he and his mother, in her capacity as power of attorney and holder of a health care proxy, had an absolute right to Sublette's treatment records, and concluded that OPMC's determination was rational and not arbitrary and capricious. The court further rejected the plaintiff's reliance on his mother's contentions that such release would cause no harm. As the court explained it, the plaintiff sought "to validate" his mother's claims "that he was misdiagnosed and that his prescribed medications caused his breakdown," in which she averred "that society and the FDA will benefit from disclosures about the side effects of psychiatric medications" that the plaintiff had been prescribed and that have not been "adequately tested." Based in part on the provisions of Public Health Law § 18(3)(d) that require a provider considering non-disclosure to take into account the need for continued treatment, the extent to which knowledge of the information may be harmful to the health or safety of the patient or others, or "whether it includes sensitive material disclosed in confidence by family members, friends and others," the court concluded that OPMC's determination upholding Sublette's denial of access was rational, and should not be set aside.
By order dated May 24, 2022, the Supreme Court, Albany County (Mott, J.), denied the plaintiff's motion for leave to reargue his petition in the CPLR article 78 proceeding.
The doctrine of collateral estoppel, or issue preclusion, precludes a party "from relitigating in a subsequent action an issue clearly raised and decided against that party in a prior action" (Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 23 [1st Dept 2014]; see Hudson v Merrill Lynch & Co., Inc., 138 A.D.3d 511, 515 [1st Dept 2016]). To successfully invoke the doctrine, "the issue in the second action must be identical to an issue which was raised, necessarily decided and material in the first action," and "the party to be precluded must have had a full and fair opportunity to litigate the issue in the earlier action" (Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d at 23). The plaintiff here had a full and fair opportunity in the CPLR article 78 proceeding to litigate the issue of whether he is entitled to the release of Sublette's records. That issue is identical to the issue raised on this motion, was necessary to the disposition of the CPLR article 78 proceeding, and was decided against him and, thus, he is now precluded from relitigating the issue in this medical malpractice action.
Accordingly, it is
ORDERED that the motion is denied, and the temporary restraining order set forth in the order to show cause dated April 13, 2022 is dissolved and vacated.
This constitutes the Decision and Order of the court.