Opinion
Index No. 716181/2018
10-28-2021
CONG YU and LIHUA DONG, Plaintiff, v. VICTOR M. RIOS AND MARIA I. RIOS-RUIZ, Defendants.
Unpublished Opinion
Present: HONORABLE MAURICE E. MUIR Justice.
MAURICE E. MUIR, J.S.C.
The following electronically filed ("EF") documents read on this motion by Victor M. Rios ("Mr. Rios") and Maria I. Rios-Ruiz ("Ms. Ruiz") (collectively, the "defendants") for an order: a) pursuant to CPLR § 3126, dismissing the plaintiffs' complaint upon the ground that they have unreasonably failed to appear for an independent medical examination ("IME"); or b) pursuant to CPLR § 3124, precluding plaintiffs from offering any evidence at the trial of this action; and c) pursuant to CPLR § 3124, compelling said examination. Moreover, Cong Yu ("Mr. Yu") cross moves for the same relief sought by the defendants.
Papers Numbered
Notice of Motion-Affirmation-Exhibits-Service..................... EF31-41
Notice of Cross Motion-Affirmation-Exhibits-Service............ EF 42
Upon the foregoing papers, it is ordered that this motion is determined as follows:
This is an action to recover damages for personal injuries, which Mr. Yu and Lihua Donj ("Ms. Dong") allegedly sustained in a motor vehicle collision. As a result, on October 23, 2018, the plaintiffs commenced the instant action against the defendants. On January 3, 2019, issue was joined, wherein the latter interposed an answer. Thereafter, on April 22, 2019, the court issued a preliminary conference order ("PCO"), which directed the parties to conduct examinations before trial ("EBT") on or before September 10, 2019; and independent medical examinations ("IME") forty-five (45) days thereafter. Moreover, on October 16, 2019, the court issued a compliance conference order ("CCO"), which stated, in relevant part, the following:
ORDERED that all defendants and other parties desiring to take the physical examination of any plaintiff shall designate, in writing, the physician(s) to take such examination within 45 days of the completion of the deposition, or within 45 days of the date hereof in the event plaintiffs deposition has already occurred. All physical examinations shall be completed within 45 days of the designation of examining physician(s). Pursuant to 22 NYCRR S 202.17[c] copies of the reports of the examining physician(s) shall be served on all parties within 60 days after the completion of the examination. . . .
Moreover, on August 3, 2020, the Honorable Rudolph Greco issue an order, which instructed the parties to conduct IMEs on or before October 20, 2020. Now, the defendant seeks the above-described relief. The court notes on July 7, 2021, Cong Yu appeared for an IME. As a result, the court will only address Ms. Dong's non-compliance with the court's orders regarding her IME.
CPLR § 3101(a)(1) provides, in relevant part, that "[f]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The terms "material and necessary" in this statute "must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'" (Matter of Kapon v. Koch, 23 N.Y.3d 32, 38 [2014], quoting Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968]; see also Brito v. Gomez, 33 N.Y.3d 1126 [2019]). At the same time, a party is "not entitled to unlimited, uncontrolled, unfettered disclosure" (Geffner v. Merry Med. Ctr., 83 A.D.3d 998, 998 [2d Dept 2011]; Quinones v. 9 E. 69th St., ILC, 132 A.D.3d 750, 750 [2d Dept. 2015]). "It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421 [2d Dept. 1989]; see Quinones v. 9 E. 69th St., ILC, 132 A.D.3d at 750, supra).
Furthermore, CPLR § 3126 permits the court to dismiss an action or to preclude a plaintiff from offering testimony or evidence, which would effectively result in dismissal, where it is determined that the plaintiffs conduct in failing to provide discovery was willful or contumacious (see Almonte v. Pichardo, 105 A.D.3d 687 [2d Dept 2012]; Harris v. City of New York, 117 A.D.3d 790 [2d Dept 2014]; Zubaidi v. Hasbani, 136 A.D.3d 708 [2d Dept 2016]); Patterson v. New York City Health and Hospitals Corp., 284 A.D.2d 516 [2d Dept 2001]). "Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failure to comply, or a failure to comply with court-ordered discovery over an extended period of time" (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686-687 [2d Dept 2011] [internal quotation marks and citations omitted]; Teitelbaum v. Maimonides Med. Ctr., 144 A.D.3d 1013 [2d Dept 2016]; Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922 [2d Dept 2012].) Here the court finds that Ms. Dong's conduct is willful and contumacious, which is demonstrated by her repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failure to comply, and a failure to comply with court-ordered discovery over an extended period of time, (see Honghui Kuang v. MetLife, 159 A.D.3d 878 [2d Dept 2018]).
Additionally, where the mental or physical condition of a party is in controversy, the party may be required to submit to a medical examination (see CPLR §3121; Dillenbeck v. Hess, 73 N.Y.2d 278, 287 [1989]; Peculic v. Swicki, 129 A.D.3d 930 [2d Dept 2015]; D'Adamo v. Saint Dominic's Home, 87 A.D.3d 966 [2d Dept 2011]). Moreover, a party must provide authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical condition in issue (see CPLR § 3121(a); 22 NYCRR § 202.17; Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452 [1983]; Dillenbeck v. Hess, 73 N.Y.2d 278, 287 [1989]; Peculic v. Swicki, 129 A.D.3d 930 [2d Dept 2015]). Indeed, in order to properly defend against a plaintiffs claims, defendant requires authorizations and records in relation to a plaintiffs injuries as parties are entitled to discovery of information that is material and necessary to defend against claims, (see Brito v. Gomez, 33 N.Y.3d 1126 [2019]). Here, Ms. Dong has placed her physical condition in controversy. As such, she has waived the physician-patient privilege, and she is required to submit to an IME. (Peculic v. Swicki, 129 A.D.3d 930 [2d Dept 2015]). Notwithstanding the same, the court finds that Mr. Yu's cross-motion is improper. It is well settled that a cross-motion is an improper vehicle for seeking affirmative relief from a nonmoving party. (Mango v. Long Is. Jewish-Hillside Med. Ctr., 123 A.D.2d 843 [2d Dept 1986]; see CPLR § 2215; see also Asiedu v. Lieberman, 142 A.D.3d 858, 858 [1st Dept 2016]; Sanchez v. Metro Bldrs. Corp., 136 A.D.3d 783, 785 [2d Dept 2016]; Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 88 [1st Dept 2013]; Fuller v. Westchester County Health Care Corp., 32 A.D.3d 896 [2d Dept 2006]; Terio v. Spodek, 25 A.D.3d 781, 785 [2d Dept 2006]; Gaines v. Shell-Mar Foods, Inc., 21A.D.3d986, 987-988 [2d Dept 2005]). As such, the court is compelled to deny the instant cross-motion.
Accordingly, it is hereby
ORDERED that Lihua Dong shall produce duly executed and acknowledged HIPAA compliant medical authorizations, pursuant to NYCRR 202.17(b), on or before November 30, 2021; and it is further,
ORDERED that the physical examination of Lihua Dong shall be designated by the defendant on or before November 30, 2021; and it is further,
ORDERED that the physical examination of Lihua Dong shall be conducted 60 days of designation, and the IME report(s) shall be exchanged within 45 days upon completion of the IME; and it is further,
ORDERED that if Lihua Dong fails to comply with the directives of this Order, she shall be precluded from presenting evidence and testimony at the time of trial; and it is further,
ORDERED that Cong Yu's cross-motion is denied, in its entirety; and it is further,
ORDERED that any other requested relief not expressly addressed herein has nonetheless been considered by this Court and is hereby denied; and it is further,
ORDERED that defendant shall serve, via certified mail and NYSCEF, a copy of this Order with Notice of Entry upon the parties on or before November 15, 2021.
The foregoing constitutes the decision and order of the court.