Preview
FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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TANYA KUZMENKO, Index No. 526753/2019
Plaintiff AFFIRMATION IN SUPPORT
OF DEFENDANTS’ MOTION
against TO DISMISS /OR COMPEL
3311 SHORE PARKWAY REALTY CORP. and
DEPENDABLE PROPERTY MANAGEMENT, INC.
Defendant
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CATHLEEN KELLY REBAR, an attorney duly admitted to practice law in the Courts of
New York State affirms, the following under the penalties of perjury:
1. I am the managing partner of Rebar Kelly, attorneys for Defendants 3311 SHORE
PARKWAY REALTY CORP. (“3311 Shore”) and DEPENDABLE PROPERTY
MANAGEMENT, INC. (“Dependable”) (collectively the “Defendants”), and as such I am fully
familiar with the prior pleadings and proceedings heretofore had herein from reviewing the file in
this matter maintained in my office in the course of the defense of this action.
2. This affirmation is respectfully submitted in support of the within motion seeking
an order:
a. Pursuant to CPLR §§ 3042 and 3126, dismissing the Complaint of Plaintiff TANYA
KUZMENKO (hereinafter “Plaintiff”) in its entirety with prejudice, due to Plaintiff’s
willful failure to provide responses to Defendants’ requests for Plaintiff’s primary care
physician records; or, in the alternative,
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b. Pursuant to CPLR §3126, dismissing the Complaint of Plaintiff in its entirety and with
prejudice, due to Plaintiff’s willful failure to provide discovery in this action; or, in
the alternative,
c. Pursuant to CPLR §3126, precluding Plaintiff from offering any evidence at trial
relating to any items of discovery which have been demanded and for which Plaintiff
has willfully failed to provide any response; or, in the alternative,
d. Pursuant to CPLR §§ 3126, 3124 and 3042(c), compelling Plaintiff to produce
Plaintiff’s primary care physician records and/or an authorization for the records
within a date certain or be otherwise automatically precluded; or in the alternative,
e. Ordering an in camera review completed by the Court of the objected to records; and
f. Any other and further relief which this Court may deem just and proper.
FACTUAL AND PROCEDURAL SUMMARY
3. This action involves the allegations that on January 12, 2017, Plaintiff sustained
personal injuries, specifically fractures of her left proximal humerus, and left pubic ramus, after
tripping and falling on the property located at 3311 Shore Parkway, Brooklyn, New York 11235
(the “Subject Property”) (the “Subject Accident”).
4. Plaintiff further alleges that the Defendants were negligent in the ownership,
operation, maintenance, management, and control of the Subject Property.
5. Plaintiff commenced this action against the undersigned Defendants by filing a
Summons and Verified Complaint on December 9, 2019 (the “Complaint”). See NYSCEF Doc.
No. 1.
6. Issue was joined by the Defendants by filing a Verified Answer with affirmative
defenses on May 22, 2020. See NYSCEF Doc. No.6.
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7. On May 22, 2020, Defendants served Plaintiff with discovery demands and Bill of
Particulars. See NYSCEF Doc. Nos. 7-13. Plaintiff provided responses to the discovery requests
on October 5, 2020. See NYSCEF Doc. Nos. 14-16. See a copy of Plaintiff’s Bill of Particulars
annexed hereto as Exhibit “A.”
8. Plaintiff’s deposition was completed on October 7, 2021.
9. Subsequent to Plaintiff’s deposition, Defendants served post-deposition demands
(the “Post EBT Demands”) to Plaintiff, whereby Plaintiff’s primary care physician records were
requested. See a copy of the Post EBT Demands annexed hereto as Exhibit “B.”
10. On November 16, 2021, Plaintiff refused to provide an authorization for Plaintiff’s
primary care physician records. See a copy of Plaintiff’s response to the Post EBT Demands
annexed hereto as Exhibit “C.”
11. On April 5, 2022, Defendants again attempted to obtain Plaintiff’s primary care
physician records and served Plaintiff with a good faith letter requesting an authorization for it.
See a copy of Defendants’ April 5, 2022 good faith letter annexed hereto as Exhibit “D.” Plaintiff
again refused to comply with the discovery request.
ARGUMENT
12. The purpose of obtaining this discovery is straightforward: to provide Defendants
with reasonable notice as to Plaintiff’s claims, to ascertain the scope and causation of Plaintiff’s
injuries, and to adequately defend these claims. Pursuant to CPLR 3101(a), “full disclosure of all
matter material and necessary in the prosecution or defense of an action is required.” The phrase
“material and necessary” should “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
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and reducing delay and prolixity. The test is one of usefulness and reason.” Allen v. Crowell-
Collier Publ. Co., 21 N.Y.2d 403 (1968).
13. Furthermore, the Court of Appeals has held that the “physician-patient privilege is
waived by commencement of personal injury action in which plaintiff’s physical condition is
affirmatively put in issue.” Hoenig v. Westphal, et al., 52 N.Y. 2d 605, 608 (1997). Here, Plaintiff
has an extensive medical history, whereby her hospital and rehab records, at the time of the Subject
Accident, diagnosed her for: fall sustained fracture of left proximal humerus and left pubic ramus,
progressive macular hypomelanosis, hypertension, coronary artery disease, left breast cancer, and
s/p PPM.
14. Defendants therefore are entitled to review Plaintiff’s past medical records,
particularly from her primary care physician, to determine whether Plaintiff had any pre-existing
conditions that could have contributed to her alleged injuries sustained by the Subject Accident.
See Amoroso v. City of New York, 66A.D.3d 618 (2d Dep’t 2009) (holding that “since nature and
severity of plaintiff’s prior medical conditions may have had impact upon amount of damages, if
any, recoverable for claim of loss of enjoyment of life, in plaintiff’s personal injury
action…plaintiff’s medical records regarding those preexisting medical conditions were material
and necessary to defense, and plaintiff was required to provide authorizations for release of those
records”).
15. Additionally, due to Plaintiff’s extensive medical history, Defendants should also
be entitled to review the primary care physician records and confirm whether any of Plaintiff’s
medical conditions, treatments, or medications could have made Plaintiff susceptible to falling at
the time of the Subject Accident. These records are pertinent in properly assessing Plaintiff’s
damages and to determine liability. See Almalahi v. NFT Metro Systems, Inc., 175 A.D. 3d 1043,
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1044 (4th Dep’t 2019) (holding that defendants were entitled to unrestricted medical
authorizations, when the plaintiff sustained injuries to her cervical spine, left shoulder, and lumbar
spine; but had a medical history including injuries to her left and right knees, hip, buttocks, elbow,
hands, left upper arm, carpal tunnel surgery, diabetes, and high blood pressure (collectively the
disputed health conditions). The Court held that plaintiff’s medical records covering the disputed
health conditions may contain information that is material and necessary to the defense or the
action on the issue of the alleged injuries sustained); Abdalla v. Mazl Taxi, Inc., 66 A.D. 3d 803,
(2d Dep’t 2009) (holding “the nature and severity of the plaintiff’s previous medical condition is
material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment
of life due to his current injuries”).
16. Under CPLR 3126, the nature and degree of a penalty to be imposed for discovery
violations is addressed to the Court’s discretion. Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d
737 (2d Dep’t 2012). CPLR 3216 permits Courts to fashion such orders “as are just.” Id. Although
actions should be resolved on the merits wherever possible, a Court may strike the pleadings or
parts thereof as a sanction against a party who refuses or willfully fails to disclose information
which the Court finds ought to have been disclosed. Tornheim v. Blue & White Food Products
Corp., 73 A.D.3d 750 (2d Dep’t 2010). Here, Plaintiff’s medical history is pertinent to determine
whether Plaintiff had pre-existing conditions or medical issues that could have contributed to her
injuries allegedly sustained by the Subject Accident. Plaintiff has refused to produce these records,
thus willfully refusing Defendants with the necessary discovery to assess damages. As such,
Defendants respectfully requests that Plaintiff’s Complaint be dismissed for failing to provide the
requested discovery.
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17. Furthermore, in the event the Court does not dismiss Plaintiff’s Complaint, the
Defendants respectfully request that the Court issue an Order precluding Plaintiff from offering
any evidence as to the delinquent subject matter. Such authority is vested in the Court by CPLR
3126. See generally Tartan Textile Services, Inc. v. St. Joseph’s Hosp. Health Center, 59 A.D.3d
955 (4th Dep’t 2009).
18. Moreover, in the alternative, if the Court does not dismiss the Complaint, the
Defendants respectfully requests that an Order be issued compelling Plaintiff to produce Plaintiff’s
primary care physician records and/or authorization within a date certain or be otherwise
automatically precluded.
19. Lastly, in the alternative, if Plaintiff’s Complaint is not dismissed and Plaintiff is
not ordered to produce an authorization for her primary care physician records, Defendants
respectfully requests that the Court complete an in camera review of Plaintiff’s primary care
physician records. See Sadicario v. Stylebuilt Accessories, Inc., 250 A.D. 2d 830, 831, (2d Dep’t
1998) (plaintiff brought a personal injury action after suffering cerebral hemorrhage caused by
exposure to toxic fumes. Plaintiff also suffered injuries during the Vietnam War. The Court
ordered that the plaintiff produce his Veterans Administration (VA) medical records relating to
treatments rendered in the military for an in camera review to determine, to what extent of the
records were material and necessary to defense); Mayer v, Cusyck, 284 A.D. 2d 937 (4th Dep’t
2001) (the trial court was required to review in camera all medical records requested by defendant
to determine whether the records were material and relevant to the injuries in controversy); Barnes
v. Habuda, 118 A.D. 3d 1443 (4th Dep’t 2014) (ordering an in camera review of all medical
records that plaintiff contend are not material and related to any physical or mental conditions to
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determine whether they are material and related to any physical or mental conditions affirmatively
placed in controversy by plaintiffs).
WHEREFORE, the Defendants respectfully requests that this Court grant the within
Motion in its entirety, together with such other and further relief as this Court may deem just and
proper.
Dated: New York, New York
May 12, 2022
___________________________
Cathleen Kelly Rebar, Esq.
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Preview
FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------x TANYA KUZMENKO, Index No. 526753/2019 Plaintiff AFFIRMATION IN SUPPORT OF DEFENDANTS’ MOTION against TO DISMISS /OR COMPEL 3311 SHORE PARKWAY REALTY CORP. and DEPENDABLE PROPERTY MANAGEMENT, INC. Defendant ------------------------------------------------------------------x CATHLEEN KELLY REBAR, an attorney duly admitted to practice law in the Courts of New York State affirms, the following under the penalties of perjury: 1. I am the managing partner of Rebar Kelly, attorneys for Defendants 3311 SHORE PARKWAY REALTY CORP. (“3311 Shore”) and DEPENDABLE PROPERTY MANAGEMENT, INC. (“Dependable”) (collectively the “Defendants”), and as such I am fully familiar with the prior pleadings and proceedings heretofore had herein from reviewing the file in this matter maintained in my office in the course of the defense of this action. 2. This affirmation is respectfully submitted in support of the within motion seeking an order: a. Pursuant to CPLR §§ 3042 and 3126, dismissing the Complaint of Plaintiff TANYA KUZMENKO (hereinafter “Plaintiff”) in its entirety with prejudice, due to Plaintiff’s willful failure to provide responses to Defendants’ requests for Plaintiff’s primary care physician records; or, in the alternative, 1 1 of 7 FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 b. Pursuant to CPLR §3126, dismissing the Complaint of Plaintiff in its entirety and with prejudice, due to Plaintiff’s willful failure to provide discovery in this action; or, in the alternative, c. Pursuant to CPLR §3126, precluding Plaintiff from offering any evidence at trial relating to any items of discovery which have been demanded and for which Plaintiff has willfully failed to provide any response; or, in the alternative, d. Pursuant to CPLR §§ 3126, 3124 and 3042(c), compelling Plaintiff to produce Plaintiff’s primary care physician records and/or an authorization for the records within a date certain or be otherwise automatically precluded; or in the alternative, e. Ordering an in camera review completed by the Court of the objected to records; and f. Any other and further relief which this Court may deem just and proper. FACTUAL AND PROCEDURAL SUMMARY 3. This action involves the allegations that on January 12, 2017, Plaintiff sustained personal injuries, specifically fractures of her left proximal humerus, and left pubic ramus, after tripping and falling on the property located at 3311 Shore Parkway, Brooklyn, New York 11235 (the “Subject Property”) (the “Subject Accident”). 4. Plaintiff further alleges that the Defendants were negligent in the ownership, operation, maintenance, management, and control of the Subject Property. 5. Plaintiff commenced this action against the undersigned Defendants by filing a Summons and Verified Complaint on December 9, 2019 (the “Complaint”). See NYSCEF Doc. No. 1. 6. Issue was joined by the Defendants by filing a Verified Answer with affirmative defenses on May 22, 2020. See NYSCEF Doc. No.6. 2 2 of 7 FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 7. On May 22, 2020, Defendants served Plaintiff with discovery demands and Bill of Particulars. See NYSCEF Doc. Nos. 7-13. Plaintiff provided responses to the discovery requests on October 5, 2020. See NYSCEF Doc. Nos. 14-16. See a copy of Plaintiff’s Bill of Particulars annexed hereto as Exhibit “A.” 8. Plaintiff’s deposition was completed on October 7, 2021. 9. Subsequent to Plaintiff’s deposition, Defendants served post-deposition demands (the “Post EBT Demands”) to Plaintiff, whereby Plaintiff’s primary care physician records were requested. See a copy of the Post EBT Demands annexed hereto as Exhibit “B.” 10. On November 16, 2021, Plaintiff refused to provide an authorization for Plaintiff’s primary care physician records. See a copy of Plaintiff’s response to the Post EBT Demands annexed hereto as Exhibit “C.” 11. On April 5, 2022, Defendants again attempted to obtain Plaintiff’s primary care physician records and served Plaintiff with a good faith letter requesting an authorization for it. See a copy of Defendants’ April 5, 2022 good faith letter annexed hereto as Exhibit “D.” Plaintiff again refused to comply with the discovery request. ARGUMENT 12. The purpose of obtaining this discovery is straightforward: to provide Defendants with reasonable notice as to Plaintiff’s claims, to ascertain the scope and causation of Plaintiff’s injuries, and to adequately defend these claims. Pursuant to CPLR 3101(a), “full disclosure of all matter material and necessary in the prosecution or defense of an action is required.” The phrase “material and necessary” should “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 3 3 of 7 FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 and reducing delay and prolixity. The test is one of usefulness and reason.” Allen v. Crowell- Collier Publ. Co., 21 N.Y.2d 403 (1968). 13. Furthermore, the Court of Appeals has held that the “physician-patient privilege is waived by commencement of personal injury action in which plaintiff’s physical condition is affirmatively put in issue.” Hoenig v. Westphal, et al., 52 N.Y. 2d 605, 608 (1997). Here, Plaintiff has an extensive medical history, whereby her hospital and rehab records, at the time of the Subject Accident, diagnosed her for: fall sustained fracture of left proximal humerus and left pubic ramus, progressive macular hypomelanosis, hypertension, coronary artery disease, left breast cancer, and s/p PPM. 14. Defendants therefore are entitled to review Plaintiff’s past medical records, particularly from her primary care physician, to determine whether Plaintiff had any pre-existing conditions that could have contributed to her alleged injuries sustained by the Subject Accident. See Amoroso v. City of New York, 66A.D.3d 618 (2d Dep’t 2009) (holding that “since nature and severity of plaintiff’s prior medical conditions may have had impact upon amount of damages, if any, recoverable for claim of loss of enjoyment of life, in plaintiff’s personal injury action…plaintiff’s medical records regarding those preexisting medical conditions were material and necessary to defense, and plaintiff was required to provide authorizations for release of those records”). 15. Additionally, due to Plaintiff’s extensive medical history, Defendants should also be entitled to review the primary care physician records and confirm whether any of Plaintiff’s medical conditions, treatments, or medications could have made Plaintiff susceptible to falling at the time of the Subject Accident. These records are pertinent in properly assessing Plaintiff’s damages and to determine liability. See Almalahi v. NFT Metro Systems, Inc., 175 A.D. 3d 1043, 4 4 of 7 FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 1044 (4th Dep’t 2019) (holding that defendants were entitled to unrestricted medical authorizations, when the plaintiff sustained injuries to her cervical spine, left shoulder, and lumbar spine; but had a medical history including injuries to her left and right knees, hip, buttocks, elbow, hands, left upper arm, carpal tunnel surgery, diabetes, and high blood pressure (collectively the disputed health conditions). The Court held that plaintiff’s medical records covering the disputed health conditions may contain information that is material and necessary to the defense or the action on the issue of the alleged injuries sustained); Abdalla v. Mazl Taxi, Inc., 66 A.D. 3d 803, (2d Dep’t 2009) (holding “the nature and severity of the plaintiff’s previous medical condition is material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment of life due to his current injuries”). 16. Under CPLR 3126, the nature and degree of a penalty to be imposed for discovery violations is addressed to the Court’s discretion. Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d 737 (2d Dep’t 2012). CPLR 3216 permits Courts to fashion such orders “as are just.” Id. Although actions should be resolved on the merits wherever possible, a Court may strike the pleadings or parts thereof as a sanction against a party who refuses or willfully fails to disclose information which the Court finds ought to have been disclosed. Tornheim v. Blue & White Food Products Corp., 73 A.D.3d 750 (2d Dep’t 2010). Here, Plaintiff’s medical history is pertinent to determine whether Plaintiff had pre-existing conditions or medical issues that could have contributed to her injuries allegedly sustained by the Subject Accident. Plaintiff has refused to produce these records, thus willfully refusing Defendants with the necessary discovery to assess damages. As such, Defendants respectfully requests that Plaintiff’s Complaint be dismissed for failing to provide the requested discovery. 5 5 of 7 FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 17. Furthermore, in the event the Court does not dismiss Plaintiff’s Complaint, the Defendants respectfully request that the Court issue an Order precluding Plaintiff from offering any evidence as to the delinquent subject matter. Such authority is vested in the Court by CPLR 3126. See generally Tartan Textile Services, Inc. v. St. Joseph’s Hosp. Health Center, 59 A.D.3d 955 (4th Dep’t 2009). 18. Moreover, in the alternative, if the Court does not dismiss the Complaint, the Defendants respectfully requests that an Order be issued compelling Plaintiff to produce Plaintiff’s primary care physician records and/or authorization within a date certain or be otherwise automatically precluded. 19. Lastly, in the alternative, if Plaintiff’s Complaint is not dismissed and Plaintiff is not ordered to produce an authorization for her primary care physician records, Defendants respectfully requests that the Court complete an in camera review of Plaintiff’s primary care physician records. See Sadicario v. Stylebuilt Accessories, Inc., 250 A.D. 2d 830, 831, (2d Dep’t 1998) (plaintiff brought a personal injury action after suffering cerebral hemorrhage caused by exposure to toxic fumes. Plaintiff also suffered injuries during the Vietnam War. The Court ordered that the plaintiff produce his Veterans Administration (VA) medical records relating to treatments rendered in the military for an in camera review to determine, to what extent of the records were material and necessary to defense); Mayer v, Cusyck, 284 A.D. 2d 937 (4th Dep’t 2001) (the trial court was required to review in camera all medical records requested by defendant to determine whether the records were material and relevant to the injuries in controversy); Barnes v. Habuda, 118 A.D. 3d 1443 (4th Dep’t 2014) (ordering an in camera review of all medical records that plaintiff contend are not material and related to any physical or mental conditions to 6 6 of 7 FILED: KINGS COUNTY CLERK 05/12/2022 09:19 AM INDEX NO. 526753/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 05/12/2022 determine whether they are material and related to any physical or mental conditions affirmatively placed in controversy by plaintiffs). WHEREFORE, the Defendants respectfully requests that this Court grant the within Motion in its entirety, together with such other and further relief as this Court may deem just and proper. Dated: New York, New York May 12, 2022 ___________________________ Cathleen Kelly Rebar, Esq. 7 7 of 7