August 12, 2013
Leocadio ANDRADE, Plaintiff,
GEIGER CONSTRUCTION COMPANY, INC., Perimter Bridge & Scaffold Co., Inc., 498 Seventh LLC, New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority, Defendants. No. 108945/2011.
This decision has been referenced in a table in the New York Supplement.
Shapiro Law Offices, PLLC by Jason S. Shapiro, Esq., Bronx, for plaintiff.
Newman Myers Kreines Gross Harris PC by Ian B. Forman, New York, for Geiger Construction Co., Inc.
MICHAEL D. STALLMAN, J.
Defendant/third-party defendant Geiger Construction, Inc. moves to strike the complaint due to plaintiff's failure to comply with discovery, or in the alternative, to compel plaintiff to comply with prior so-ordered stipulations from discovery conferences and with five notices for discovery and inspection. Geiger Construction Co., Inc. also seeks an order compelling defendant/third-party plaintiff, 498 Seventh LLC, to supply all outstanding discovery. Plaintiff opposes the motion.
In this action, plaintiff alleges that, on May 7, 2010, he was injured while he was erecting sidewalk scaffolding at 498 Seventh Avenue in Manhattan. According to the complaint, a bus came into contact with the plaintiff. The complaint asserts causes of action alleging violations of Labor Law §§ 200, 240 and 241, and common-law negligence.
On June 27, 2012, defendant 498 Seventh LLC commenced a third-party action against Geiger Construction Co., Inc. (Geiger Construction). (Forman Affirm., Ex B.) After Geiger Construction answered the third-party complaint, plaintiff apparently filed a supplemental summons and amended verified complaint on July 18, 2012, naming Geiger Construction as a direct defendant. (Forman Affirm., Ex D.) Geiger Construction served upon plaintiff a notice for discovery inspection dated September 24, 2012, which demanded, among other things, " Copies of all prior pleadings and Bills of Particulars served in this action" and all discovery demands and responses that were previously served. (Forman Affirm., Ex E.)
At a discovery conference on December 13, 2012, the parties stipulated, among other things, that " AND 498 TO PROVIDE GEIGER WITH COPIES OF PREVIOUSLY EXCHANGED DISCOVERY W/I 30 DAYS." (Forman Affirm., Ex F.) The December 13, 2012 stipulation also stated, in pertinent part:
" (3) to provide TA with Affidavit or some form of written proof indicating that uses both the last name of Andrade' and Andrade-Rosas' within 30 days. (with copy to all As)
(4) to provide TA with copies of medical reports current authorizations to obtain medical records/reports w/in 30 days (copies MD2 to all As)
(5) to provide copies of any accident reports or line of duty injury reports, if any, within 30 days.
(6) to provide authorizations for workers comp file/workers comp board, employment W-2's for 2006 to date, within 30 days, if not already provided."
During this time, Fischetti & Pesce LLP was Geiger Construction's counsel of record. Newman Myers Kreins Gross Harris, P.C. was later substituted as Geiger Construction's counsel, and a notice of substitution of counsel was filed with the court on March 22, 2012.
Geiger Construction's new counsel served upon plaintiff three different notices for discovery and inspection each dated March 25, 2013 (Forman Affirm., Exs G, H, I), and a notice for discovery and inspection dated April 10, 2013. (Forman Affirm., Ex J.)
At the next discovery conference on April 11, 2013, the parties again agreed, among other things, " As per prior order, [plaintiff] AND 498 Seventh are to provide Geiger with copies of all previously exchanged pleadings, discovery demands & discovery responses, etc. as per Geiger's demands within 14 days, to the extent not already provided." (Forman Affirm., Ex K.) The stipulation also provided,
" [plaintiff] is to provide responses to Geiger's demands for discovery w/in 30 days, including (1) Further ND & I re: prior injury dated 3/25/13, (2) Demand for Medicare/Medicaid and Disability Info. dated 3/25/13, (3) ND & I on Special Damages dated 3/25/13 and (4) ND & I and Further Demand for Authorizations dated 4/10/13, to the extent not already provided."
(Forman Affirm., Ex K.)
According to Geiger Construction, plaintiff neither provided counsel with copies of any previously exchanged pleadings, discovery demands, discovery responses nor responded to the notices for discovery and inspection. (Forman Affirm. ¶ 13.) By letter dated April 25, 2013, Geiger Construction's counsel wrote to plaintiff's counsel regarding the outstanding discovery.
Geiger Construction now moves to strike the complaint due to plaintiff's failure to comply with discovery, or in the alternative, to compel plaintiff to comply with prior so-ordered stipulations from discovery conferences and with the five notices for discovery and inspection. Geiger Construction also seeks an order compelling defendant 498 Seventh LLC, to supply all outstanding discovery. Plaintiff opposes the motion. 498 Seventh LLC did not submit opposition papers.
A discovery conference was held on July 25, 2013 concerning the motion. At the conference, defendant 498 Seventh, LLC agreed " to respond to all of the discovery demands set forth in ¶ No.23 of Geiger's affirmation in support dated 5/22/13 w/in 14 days" and " to exchange copies of all medical records/reports and collateral source records in its possession w/in 14 days as per the consent of Atty— Ernest Buonocore— via email to Geiger's attorneys" . The conference stipulation also states, " ‘ future lost wage claim has been withdrawn without prejudice to renew ...’ past lost earnings claim remains."
The Court takes judicial notice of the fact that the stipulations from the discovery conferences on December 13, 2012, April 11, 2013, and July 25, 2013 were so-ordered by this Court. ( Shirley v. Shirley 101 A.D.3d 1391, 1394 [3d Dept 2012].)
Discovery from 498 Seventh LLC
This branch of Geiger Construction's motion has been resolved by the so-ordered stipulation from the discovery conference on July 25, 2013.
Discovery from plaintiff
" [I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith. Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses." (Henderson-Jones v. City of New York, 87 A.D.3d 498, 504 [1st Dept 2011].) " Belated but substantial compliance with a discovery order undermines the position that the delay was a product of willful or contumacious conduct." (Cambry v. Lincoln Gardens, 50 A.D.3d 1081, 1082 [2d Dept 2008]; see also Gradaille v. City of New York, 52 A.D.3d 279, 284 [1st Dept 2008].)
Here, plaintiff asserts that he complied with the conference stipulation dated April 11, 2013. ( See Shapiro Opp. Affirm., Ex A [Response to Court Stipulation and Order].) However, plaintiff's response did not include a response to Geiger's " Further Notice for Discovery and Inspection Regarding Plaintiff's Prior Injury" dated March 25, 2013. (Forman Affirm., Ex I.) Neither did plaintiff's response include production of medical reports, if any, in his possession, even though plaintiff expressly agreed in the December 13, 2012 stipulation " to provide TA with copies of medical reports current authorizations to obtains medical records/reports w/in 30 days (copies MD2 to all As)" (Forman Affirm., Ex F.)
Plaintiff's response in opposition also did not provide all the documents that Geiger demanded. In reply, Geiger Construction set forth a lengthy list of items and categories of documents that it claims was not included in plaintiff's response in opposition. (Forman Reply Affirm. ¶ 4.) For example, plaintiff agreed at the discovery conference on December 13, 2012 to provide Geiger with copies of previously exchanged discovery within 30 days. Geiger's notice for discovery and inspection dated September 24, 2012 demanded copies of all prior pleadings and bills of particulars served. Plaintiff's responded, " Copies of all pleadings exchanged in this action can be obtained through the New York County Clerk's Office. Discovery Demands and Responses to Discovery Demands have been served upon all parties and are uniform in format served on all parties." This response was not adequate. Answers and bills of particulars are not required to be filed with the County Clerk. Moreover, it does not appear that bills of particulars were filed with the County Clerk in this action.
Geiger Construction also demanded copies of " any and all statements, records, documents, bills" to substantiate $100,000 in special damages for physicians services incurred, purportedly alleged in plaintiff's bill of particulars. Instead of providing any documents, plaintiff responded, " Authorizations to obtain all medical records, including billing ... have been previously provided." Presumably, plaintiff would have been in possession of such documents in order to state the amount of special damages incurred.
Given all the above, plaintiff's belated response did not substantially comply with either the so-ordered stipulations or with Geiger Construction's notices for discovery and inspection.
Nevertheless, Geiger Construction has not demonstrated a pattern of repeated noncompliance giving rise to an inference of willfulness or contumacious conduct. The pertinent directives from the so-ordered stipulation dated April 11, 2013 were qualified by the language " to the extent not already provided", which render those directives ambiguous on their face. Therefore, plaintiff may not be charged with a willful and contumacious violation of those directives. ( See Watson v. Esposito, 231 A.D.2d 512, 515 [2d Dept 1996] [directive to provide " additional authorizations" was vague and indefinite, because the additional authorizations were not identified or identifiable at the time the stipulation was entered into].) Therefore, the branch of Geiger Construction's motion to strike the complaint is denied.
The branch of Geiger Construction's motion to compel plaintiff to provide the demanded discovery is granted, for the most part, granted as more specifically set forth below. As discussed above, Geiger Construction set forth a lengthy list of items and categories of documents that it claims was not included in plaintiff's response in opposition. (Forman Reply Affirm. ¶ 4.) At the conference on the motion on July 25, 2013, it was apparent that plaintiff did not provide most of the items demanded on that list.
Plaintiff's objection to some of the items demanded as irrelevant is without merit. The objection to the authorizations for records for Local # 66 and Local # 731, and their respective fringe benefit funds, was raised at the discovery conference on July 25, 2013, which is untimely. Nothing in the record indicates that plaintiff timely objected to Geiger Construction's demand for these authorizations, which were in its notice for discovery and inspection dated April 10, 2013. Plaintiff's apparent failure to make a timely challenge to Geiger Construction's demands for these authorizations " forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper.' " ( During v. City of New Rochelle, 55 A.D.3d 533, 534 [2d Dept 2008] [citation omitted].) Plaintiff has not claimed that the material is privileged. Neither do the demands appear palpably improper on their face.
A few items of discovery warrant further discussion. Geiger Construction's list contains documents that both plaintiff and defendant 498 Seventh LLC agreed to provide to Geiger Construction pursuant to the so-ordered stipulation dated December 13, 2012. Pursuant to the so-ordered stipulation dated July 25, 2013, defendant 498 Seventh LLC agreed to provide " all of the discovery demands set forth in ¶ # 23 of Geiger's affirmation in support dated 5/22/13 w/in 14 days", which includes the items from the prior December 13, 2012 so-ordered stipulation. Inasmuch as 498 Seventh LLC has taken the lead to provide the discovery that Geiger Construction sought from both plaintiff and 498 Seventh LLC, the Court does not compel plaintiff to provide those items at this time. However, Geiger Construction may renew its request to compel production of these items from plaintiff after it has reviewed the document production from 498 Seventh LLC.
Geiger Construction's notice for discovery and inspection dated April 10, 2013 demanded 21 different authorizations. At the court conference on July 25, 2013, plaintiff's counsel indicated that certain authorizations were provided to Geiger Construction's prior counsel, Fischetti & Pesce, LLP, and therefore argued that plaintiff was not required to provide these authorizations again. However, this argument was not raised in plaintiff's opposition to Geiger Construction's motion. As a practical matter, the prior authorizations would likely have directed the provider(s) to send the records to Geiger Construction's prior counsel, and not its current counsel. Moreover, the passage of time has most likely rendered any prior authorizations stale. Therefore, the Court directs plaintiff to provide these authorizations.
Plaintiff's counsel also claimed at the court conference that other authorizations were provided. However, plaintiff's counsel was not able to substantiate his assertion.
Plaintiff is directed to provide an authorization permitting counsel for Geiger Construction to obtain the Workers Compensation Board case file for the alleged accident in this action. Although plaintiff asserts that the authorization was provided, the copy of the authorization that plaintiff submits indicates that the records were to be released to counsel to defendant Perimeter Bridge & Scaffold, Inc., not counsel to Geiger Construction. (Shapiro Opp. Affirm., Ex A.) Moreover, the authorization provided to a co-defendant was on OCA Official Form No. 960. Although Geiger Construction's notice for discovery and inspection dated April 10, 2013 asked for " HIPAA complaint authorizations" (Forman Affirm., Ex J.), the Court notes that the Workers' Compensation Board takes the position that it is not a covered entity under HIPAA and will therefore not accept a HIPAA authorization for the release of Workers' Compensation Board records. ( See http:// www.wcb.ny.gov/content/main/wclaws/ HIPAA_ObtainingClientRecords.jsp [accessed August 9, 2013].) Rather, the Workers' Compensation Board insists on a different authorization, such as its own Form OC-110A. Therefore, the Court directs plaintiff to provide Geiger Construction's counsel with an authorization either on Form OC-110A, or an authorization otherwise acceptable to the Workers' Compensation Board.
The branch of Geiger Construction's motion to compel plaintiff to provide information concerning plaintiff's prior back injury, as per a notice for discovery and inspection dated March 25, 2013, is denied. Many of the items demanded are in the nature of interrogatories, rather than demanding the inspection and copying of a document or thing. These are palpably improper on their face, because interrogatories may not be served without leave of court in this personal injury action when Geiger Construction is entitled to depose plaintiff. (CPLR 3130.) Although the notice for discovery does appear to demand documents, such as the pleadings from litigation that might have arisen from the prior back injury, " it is not the court's obligation to prune those pre-litigation devices." ( Kimmel v. Paul, Weiss, Rifkind, Wharton & Garrison, 214 A.D.2d 453, 453-454 [1st Dept 1995].)
The branch of Geiger Construction's motion to compel plaintiff to provide an authorization for the release of records from the Internal Revenue Service is denied, with leave to renew. " Because of their confidential and private nature, disclosure of tax returns is disfavored [and a] party seeking disclosure must make a strong showing of necessity and demonstrate that the information contained in the returns is unavailable from other sources." ( Gordon v. Grossman, 183 A.D.2d 669, 670 [1st Dept 1992] [citations omitted].) Here, Geiger Construction has not met the showing of necessity for information contained in the returns. Neither a bill of particulars nor plaintiff's deposition testimony were submitted on this motion. Moreover, the demand indicate the tax years for which the information was sought.
Finally, plaintiff's counsel argued at the discovery conference on July 25, 2013 that plaintiff should not be compelled " to provide TA with Affidavit or some form of written proof indicating that uses both the last name of Andrade' and Andrade-Rosas' within 30 days. (with copy to all As)", even though plaintiff had previously agreed to provide such an affidavit at the discovery conference on December 13, 2012. ( See Forman Affirm., Ex F.) Plaintiff's counsel appeared to argue that the affidavit was unnecessary. According to plaintiff's counsel, plaintiff essentially denied at his deposition that he used any last name other than " Andrade." However, the deposition testimony was not submitted for the record.
Because plaintiff stipulated at the December 13, 2012 discovery conference to provide an affidavit or other " written proof" as to the use of his last name, and because plaintiff did not submit anything in the record to establish that he complied with this agreed-upon directive, the Court will compel plaintiff to comply.
Accordingly, it is hereby
ORDERED that this motion by defendant/third-party defendant Geiger is granted in part, as follows:
Within 45 days, plaintiff shall provide:
(1) Copies of employment records and W2s, in plaintiff's custody or possession, for the period of 2006 to 2012;
(2) Copies of any and all bills, receipts, or invoices in plaintiff's custody or possession from medical providers for the treatment of any injuries claimed to have resulted from the alleged incident at issue in this action;
(3) HIPAA-compliant authorizations for the release of medical records to Geiger Construction's counsel, for the period starting from May 7, 2010 through the end of litigation, from:
(a) Department of Radiology of Bellevue Hospital Center
(b) Doctor's United Physical Therapy
(c) Dr. Madhu Boppana
(d) East River Medical Imaging
(e) Lenox Hill Radiology & Medical Imaging
(f) any and all pharmacies that filled prescriptions, if any, for medication prescribed to plaintiff for the treatment of any injuries or pain claimed to have resulted from the alleged incident at issue in this action;
(g) any and all facilities where plaintiff obtained orthopedic devices and surgical supplies following the incident;
(h) any and all locations to which plaintiff was referred by Dr. Aric Hausknecht for diagnostic testing and/or imaging studies;
(4) authorizations for the release of records to Geiger Construction's counsel for the years 2010 through 2012 from:
(a) Local # 66 Laborers Union and Local # 66 Laborers Unions fringe benefit fund(s);
(b) Local # 731 Laborers and Local # 731 Laborers Union fringe benefit fund(s)
(5) an authorization permitting counsel for Geiger Construction to obtain the Workers' Compensation Board case file for the alleged accident in this action;
(6) an authorization to counsel for Geiger Construction for collateral source records, other than workers' compensation. If no collateral sources exist other than workers' compensation, plaintiff shall so state in an affidavit;
(7) an affidavit or some form of written proof to all defendants as to whether plaintiff has ever used " Andrade-Rosas" as his last name; and the motion is otherwise denied.
Copies to counsel.