Opinion
154100/2016
02-10-2021
Ilana FRANK, Plaintiff, v. MORGANS HOTEL GROUP MANAGEMENT LLC, Morgans Hotel Group Co. and Skybar Holdings, LLC, Defendants.
German Rubenstein LLP, New York, NY ( Steven J. German of counsel), for plaintiff. Nicholas Goodman & Associates, PLLC, New York, NY ( H. Nicholas Goodman of counsel), for defendants Morgans Hotel Group Management LLC and Morgans Hotel Group Co.
German Rubenstein LLP, New York, NY ( Steven J. German of counsel), for plaintiff.
Nicholas Goodman & Associates, PLLC, New York, NY ( H. Nicholas Goodman of counsel), for defendants Morgans Hotel Group Management LLC and Morgans Hotel Group Co.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124 were read on this motion for DISCOVERY.
Defendants Morgans Hotel Group Management LLC and Morgans Hotel Group Co. (together, Morgans) move, pursuant to CPLR 3126, for an order dismissing plaintiff Ilana Frank's complaint for failing to furnish meaningful responses to the Second Supplemental Demand for Discovery and Inspection dated August 19, 2019 (the Second Demand) and Third Supplemental Demand for Discovery and Inspection dated January 28, 2020 (the Third Demand). In the alternative, Morgans moves for an order precluding plaintiff from offering any evidence at the time of trial or for an order under CPLR 3124 compelling her to fully respond to its demands.
In this personal injury action, plaintiff alleges that she cut her foot on an unlit lantern during a visit to the "Skybar at the Shore Club South Beach" (the Shore Club) at 1901 Collins Ave., Miami Beach, Florida on December 26 into December 27, 2015 (NYSCEF Doc No. 101, H. Nicholas Goodman [Goodman] affirmation, exhibit A, ¶ 145; NYSCEF Doc No. 103, Goodman affirmation, exhibit C at 54-55). Morgans performed management functions at that location (NYSCEF Doc No. 102, Goodman affirmation, exhibit B ¶ 14).
Morgans’ Second Demand seeks, among other items, records of plaintiff's post-accident travel, including car service expenditures from December 26, 2014 to February 6, 2016 (item no. 1) and receipts for her trips to Miami from December 2015 to January 2016 (item no. 5), and to Belize in February 2016 (item no. 2) (NYSCEF Doc No. 106, Goodman affirmation, exhibit F at 1-2). Plaintiff had testified that she had relied on Uber or Lyft to transport her to and from work for six weeks or more after the accident (NYSCEF Doc No. 103 16-17), and that she had traveled to Belize for vacation after the accident ( id. at 26).
The Third Demand requests a HIPAA-compliant authorization to obtain plaintiff's medical and billing records from Dr. Leigh A. Brooks (Dr. Brooks). Plaintiff's pharmacy records show that prior to the accident, Dr. Brooks had prescribed Clonazepam and Dextroamphetamine-Amphetamine (Adderall) to plaintiff. The prescriptions were filled on December 11, 2015 and December 15, 2015, respectively (NYSCEF Doc No. 105, Goodman affirmation, exhibit E at 2).
Morgans argues that a status conference order dated January 29, 2020 directed plaintiff to respond to its demands within 30 days (NYSCEF Doc No. 108, Goodman affirmation, exhibit H at 1). In her February 27, 2020 response to the Second Demand, plaintiff indicated that the car service and Miami and Belize travel records were not in her possession (NYSCEF Doc No. 113, Goodman affirmation, exhibit M at 1). She also objected to producing any receipts for her travel outside of New York City as "[o]ppressive, vague, overbroad and beyond the scope of permissible discovery" ( id. ).
In her February 27, 2020 response to the Third Demand, plaintiff objected to producing an authorization for Dr. Brooks’ records as "irrelevant and beyond the scope of permissible discovery" (NYSCEF Doc No. 114, Goodman affirmation, exhibit N at 1). Morgans asserts that Dr. Brooks’ records are relevant as to a possible cause of the accident. Plaintiff had been drinking alcohol that evening (NYSCEF Doc No. 103 at 76). An accident report prepared at the Shore Club indicates that one of plaintiff's friends "bumped into her causing her to stumble forward" (NYSCEF Doc No. 119, Goodman affirmation, exhibit S at 2-3). Morgans submits that these two medications, when combined with alcohol, could have adversely impacted plaintiff's perception and coordination.
By letter dated March 13, 2020, Morgans alerted plaintiff to the deficiencies with her responses to items 1, 2 and 5 of the Second Demand and requested that she produce the records or a sworn statement if responsive records could not be located (NYSCEF Doc No. 116, Goodman affirmation, exhibit P at 1). Morgans noted that Uber and Lyft both retained a user's trip history, and that this information was accessible via their websites and mobile applications. Morgans submits that plaintiff has yet to respond to the letter, and moves for an order striking the complaint.
Although Morgans argues that plaintiff mailed her discovery responses to an address from which counsel's firm had moved in 2018, the Second Demand and the Third Demand bear the firm's former address.
Plaintiff, in opposition, speculates that she is unable to access her ride histories with both Uber and Lyft because a change to her credit card information "may have unexpectedly and unknowingly affected [the] account status and history" (NYSCEF Doc No. 120, Steven J. German [German] affirmation, ¶ 5). Plaintiff also attributes her inability to access her past trip history to a "simple lack of app familiarity or technological proficiency" ( id. ). She submits that she has offered to furnish Morgans with her account login and password for the limited purpose of allowing them to search for those records ( id. ). She calls the request for Dr. Brooks’ records "the quintessential fishing expedition" since any suggestion that her medication contributing to the happening of the accident is (according to plaintiff) wholly speculative in the absence of evidence from a medical expert ( id. , ¶ 7). Plaintiff has also located additional air travel receipts after conducting another search of her records and has exchanged them (NYSCEF Doc No. 123, German affirmation, exhibit B).
In reply, defendants maintain that plaintiff has never offered to furnish them with plaintiff's Uber or Lyft account information. They also contend that Dr. Brooks’ records are relevant as Dr. Brooks had prescribed two psychoactive medications to plaintiff shortly before the incident.
CPLR 3101 calls for the full disclosure of all evidence material and necessary in the prosecution or defense of an action ( see Allen v Crowell-Collier Publ. Co. , 21 NY2d 403, 406 [1968] ). As such, "[l]iberal discovery is favored and pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof" ( Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance , 226 AD2d 175, 175-176 [1st Dept 1996] ). Discovery, though, may not be used as a " ‘fishing expedition’ " ( New York Community Bank v Parade Place, LLC , 96 AD3d 542, 543 [1st Dept 2012] [internal citation omitted]). "The test of whether matter should be disclosed is ‘one of usefulness and reason’ " ( City of New York v Maul , 118 AD3d 401, 402 [1st Dept 2014], quoting Allen , 21 NY2d at 406 ).
CPLR 3126 provides a wide range of sanctions against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." Sanctions include the dismissal of the offending party's complaint ( see CPLR 3126 [3] ), provided that the party seeking such a sanction establishes that the offending party's "repeated noncompliance has been ‘dilatory, evasive, obstructive and ultimately contumacious’ " ( Arts4all, Ltd. v Hancock , 54 AD3d 286, 286 [1st Dept 2008], affd 13 NY3d 812 [2009] [internal citation omitted]). The "sanction should be commensurate with the particular disobedience it is designed to punish, and go no further than that" ( Brigham v Jaffe , 189 AD3d 475, 476 [1st Dept 2020] [internal citation omitted]). CPLR 3124 also provides that party may move to compel compliance or discovery. It is within the court's discretion to grant a motion brought under CPLR 3124 or 3126 ( see Ruiz v Selzer , 187 AD3d 558, 558 [1st Dept 2020] ; Valencia v City of New York , 188 AD3d 549, 550 [1st Dept 2020] ).
Here, Morgans has failed to establish that plaintiff's noncompliance was "both deliberate and contumacious" and, therefore, sufficient to warrant striking her complaint ( Brigham , 189 AD3d at 476 [internal citation omitted]). The branch of Morgans’ motion seeking discovery sanctions under CPLR 3126 is denied. Morgans has, however, has demonstrated that the information it has requested is relevant and should be provided. The branch of Morgans’ motion seeking to compel production of that information under CPLR 3124 is granted.
With respect to plaintiff's ride-sharing history, plaintiff has offered to forward her username and password information for both her Uber and Lyft accounts to defendants for the limited purpose of ascertaining her trip history with either service from December 26, 2014 to February 6, 2015. This court concludes that this offer affords Morgans reasonable access to the ride-sharing-related information that Morgans contends to be relevant.
With respect to the post-accident travel records sought in item nos. 2 and 5 in the Second Demand, plaintiff asserts (albeit through counsel) that she has now produced all records within her possession that are responsive to these demands. Plaintiff accordingly must provide a Jackson affidavit attesting to "where the subject records [responsive to Morgans’ requests] were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, [and] whether a search [was] conducted in every location where the records were likely to be found" ( Jackson v City of New York , 185 AD2d 768, 770 [1st Dept 1992] ).
As for Dr. Brooks’ records, "[w]hen a party's mental or physical condition has been put in issue, the need for discovery of medical records in actions is usually clear" ( Cynthia B. v New Rochelle Hosp. Med. Ctr. , 60 NY2d 452, 461 [1983] ). The waiver of the physician-patient privilege "is limited to those conditions that he [or she] affirmatively placed in controversy" ( Brito v Gomez , 168 AD3d 1, 7 [1st Dept 2018], rev on other grounds 33 NY3d 1126 [2019] [internal quotation marks and citation omitted]). The burden rests with the party seeking the records to show the "mental or physical condition is in controversy" ( Budano v Gurdon , 97 AD3d 497, 498 [1st Dept 2012] ).
Here, Morgans has not shown that plaintiff affirmatively placed at issue her "attention issues" which led to the prescriptions in question (NYSCEF Doc No. 103 at 9). But Morgans has sufficiently supported its contention that plaintiff's fall might have resulted in whole or in part from lack of coordination due to the adverse effects of ingesting alcohol together with Adderall or Clonazepam. Morgans therefore is entitled to discover information related to the "types and quantities of drugs that had been prescribed for the plaintiff's mental disorder during the six-month period immediately preceding the accident" ( Moore v Superior Ice Rink, Inc. , 251 AD2d 305, 305 [2d Dept 1998] ; accord Chisholm v City of New York , 2009 NY Slip Op 31803[U], *4 [Sup Ct, NY County 2009] [concluding that authorizations for the plaintiff's prescription records were sufficient where the defendants sought to prove that the accident was caused in whole in in part by a medical condition and the side effects of the medications prescribed to treat that condition]).
Accordingly, it is
ORDERED that the branch of Morgans’ motion seeking an order of preclusion under CPLR 3216 is denied; and it is further
ORDERED that the branch of Morgans’ motion seeking to compel plaintiff to supplement her discovery responses under CPLR 3214 is granted in part as set forth above; and it is further
ORDERED that within 30 days from service of a copy of this order with written notice of its entry, plaintiff shall provide defendants with her username and password information for her Uber and Lyft accounts, which may be used by defendants only for the limited purpose of retrieving her trip-history information with either service from December 26, 2014 to February 6, 2015; and it is further
ORDERED that defendants shall exchange that trip-history information with plaintiff within seven days of its retrieval; and it is further
ORDERED that within 30 days of service of notice of entry, plaintiff shall provide defendants with a Jackson -type affidavit with respect to records responsive to item nos. 2 and 5 of defendants’ Second Supplemental Demand for Discovery and Inspection dated August 19, 2019, which shall include the information described above; and it is further
ORDERED that within 30 days of service of notice of entry, plaintiff shall provide defendants with a HIPAA-compliant authorization for defendants to obtain the records maintained by Dr. Leigh A. Brooks related to the types and quantities of drugs that had been prescribed to plaintiff during the six-month period immediately preceding the accident.