Opinion
Index 522856/2020
03-17-2022
JOSEPHINE ORENTALE, Petitioner, v. BENSONHURST CENTER FOR REHABILITIATION & HEALTHCARE, Respondent.
Unpublished Opinion
PRESENT: HON. CARL J. LANDICINO, Justice.
DECISION AND ORDER
Carl J. Landicino Judge
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered (NYSCEF)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed.................................................................... 1, 3-5, 8, 9, 14-19, 23
After a review of the papers and without opposition, the Court finds as follows:
Petitioner, Josephine Orentale (hereinafter the "Petitioner") has moved by Order to Show Cause for an order, pursuant to CPLR 3102(c) and Public Health Law Section 17, for Bensonhurst Center For Rehabilitation & Healthcare (hereinafter the "Respondent") to provide Petitioner with all medical records free of charge so that Petitioner may possess her complete medical record to investigate possible medical malpractice (Motion Sequence #1). Petitioner contends that her application should be granted as Respondent has not appeared in this special proceeding and has neither served nor filed opposition papers.
Petitioner also moves (Motion Sequence #2) to restore Motion Sequence #1 to the calendar. As an initial matter, Petitioner's Motion Sequence #2 to restore Petitioner's Motion Sequence #1 is granted and Motion Sequence #1 is restored to the Court's Part 81 General Motion Calendar and thereafter the Court's Part 81 Motion Oral Argument Calendar. Petitioner's Counsel is cautioned to refer to Part 81 rules regarding placement of applications and motions on the Motion Oral Argument Calendar. As a review of those rules reflect, the failure of the movant to request placement of the motion on the oral argument calendar, under various circumstances, after the motion has appeared on the Part 81 General Motion Calendar more than three times, will result in that motion being marked off the Calendar. As Movant failed to make such a request, notwithstanding notices e-filed in relation to the rules, the motion was marked off the general calendar in accordance with Part 81 rules.
Petitioner requested her medical records from Respondent along with a HIPAA authorization and a Power of Attorney Form on September 12, 2019, December 20, 2019, and August 10, 2020. Respondent did not respond. Petitioner apparently additionally reached out to Respondent via telephone on numerous occasions to make the same request. Respondent allegedly ignored each of these requests. Petitioner then commenced this special proceeding on November 17, 2020, by the filing of a proposed Order to Show Cause and supporting Petition. On November 19, 2020, the Court filed an Order to Show Cause signed by the Hon. Genine D. Edwards, directing the Respondent to be personally served by December 4, 2020. On December 3, 2020, Respondent was personally served but has not filed an answer. The petition is now before the Court with no opposition.
CPLR 3102 (c) provides that prior to an action being commenced, "disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order." "[I]f a person has a cause of action against another but needs assistance from the disclosure devices before being able to sue on it, disclosure is available under CPLR 3102(c).. .As long as the potential plaintiff can demonstrate that there is a prima facie cause of action, pre-action disclosure can be invoked to determine who the defendant should be." Matter of Accetta, 39 Misc.3d 1218(A), 975 N.Y.S.2d 364 (Sup Ct, Kings County 2013; citing McKinney's Cons Laws of NY, Book 7B; see also Toal v Staten Island Univ. Hosp., 300 A.D.2d 592, 752 N.Y.S.2d 372 [2nd Dept 2002]). However, pre-action disclosure under CPLR 3102(c) is not available to the prospective plaintiff to determine if the plaintiff has a cause of action (Holzman v Manhattan and Bronx Surface Transit, 271 A.D.2d 346, 707 N.Y.S.2d 159 [1st Dept 2000]).
Turning to the merits of the instant petition, the Court finds that sufficient evidence has not been presented by Petitioner to establish a prima facie cause of action. The petition (verified by the Petitioner's Counsel) states the following in paragraph three: "BENSONHURST CENTER FOR REHABILITATION & HEALTHCARE provided medical treatment to JOSEPHINE ORENTALE who has retained our office to investigate possible medical malpractice." The petition continues in paragraph nine: "it is essential that the Petitioner's counsel have their medical records to continue with the instant litigation which may derive from the treatment rendered." These statements do not provide that Petitioner has a viable cause of action and that the records being sought are material and necessary to the alleged wrong.
Moreover, Petitioner also relies upon Public Health Law Section 17 in support of the petition which states that, "[u]pon the written request of any competent patient...an examining, consulting or treating physician or hospital must release and deliver, exclusive of personal notes of the said physician or hospital, copies of all x-rays, medical records and test records including all laboratory tests regarding the patient to any other designated physician or hospital..." Section 17 however does not apply to the petition before the Court because the petition requests that records be sent to an attorney and not to a designated physician or hospital. Additionally, Petitioner provided an incomplete New York Power of Attorney Short Form. (See Petitioner's Affirmation in Support of Motion, Exhibit 1, NYSCEF Doc. 16). Therefore, it is unclear whether the agent, Donato Orentale, had the authority to make this application or the purported requests underlying this Petition. See GOL 5-1504(8); see also Gerkin v. Werner, 434 N.Y.S.2d 607, (Sup Ct, Suffolk County 1980).
CPLR 2214 places the burden on the movant to provide the facts and law which support the relief sought. The Court finds that the Petitioner has not met this burden and the Court should not guess whether other provisions of the law would be appropriate. Therefore, the motion is denied without prejudice to renew upon proper papers.
It is hereby ORDERED as follows:
Petitioner's motion (motion sequence #1) to have the Respondent provide medical records pursuant to Public Health Law Section 17 and CPLR 3102(c) is denied without prejudice to renew upon proper papers.
The foregoing constitutes the Decision and Order of the Court.