Sun v. Lee

212 A.D.3d 717

181 N.Y.S.3d 624

Hongyan SUN, appellant,

v.Steve LEE, et al., respondents.

2020–04260

Index No. 705371/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 10, 2022

January 18, 2023

Law Offices of Farrukh Nuridinov, P.C., Brooklyn, NY, for appellant.

Vigorito, Barker, Patterson, Nichols and Porter, LLP, Valhalla, NY (Leilani Rodriguez of counsel), for respondents.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), dated May 8, 2020. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3126(3) to strike the plaintiff's claims related to emotional and psychiatric injuries.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In April 2018, the plaintiff commenced the instant action against the defendants to recover damages for medical malpractice.

The plaintiff alleged that as a result of the malpractice she sustained physical, as well as emotional and psychiatric injuries. During the course of discovery, the defendants sought authorizations for the plaintiff's psychiatric treatment records. The plaintiff objected to providing the authorizations. The defendants then moved pursuant to CPLR 3126(3) to strike the complaint based upon a discovery violation or, in the alternative, to strike the plaintiff's claims related to emotional and psychiatric injuries. In an order dated May 8, 2020, the Supreme Court, inter alia, granted that branch of the motion which was to strike the plaintiff's claims related to emotional and psychiatric injuries. The plaintiff appeals.

A plaintiff who commences a medical malpractice action waives the physician-patient privilege with respect to those physical or mental conditions which he or she affirmatively places at issue in the lawsuit (see Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126 ; Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857 ; Rothstein v. Huh, 60 A.D.3d 839, 839, 875 N.Y.S.2d 250 ). Here, the Supreme Court correctly determined that the plaintiff waived the physician-patient privilege with respect to the medical records and other documents relating to her alleged emotional and psychiatric condition (see Fox v. Marshall, 91 A.D.3d 710, 936 N.Y.S.2d 307 ).

" ‘Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ " ( Vays v. Luntz, 179 A.D.3d 744, 746, 113 N.Y.S.3d 556, quoting Morales v. Zherka, 140 A.D.3d 836, 836–837, 35 N.Y.S.3d 121 ). " ‘When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading’ " ( Ewa v. City of New York, 186 A.D.3d 1195, 1196, 127 N.Y.S.3d 911, quoting Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d 819, 820, 101 N.Y.S.3d 70 ; see Park Side Constr. Contrs., Inc. v. Bryan's Quality Plus, LLC, 156 A.D.3d 804, 806–807, 68 N.Y.S.3d 90 ). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3] ; Ewa v. City of New York, 186 A.D.3d at 1196, 127 N.Y.S.3d 911 ; Ahmed v. Ahmed, 175 A.D.3d 1363, 1364, 109 N.Y.S.3d 200 ). " ‘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 failures to comply, or a failure to comply with court-ordered discovery over an extended period of time’ " ( Ewa v. City of New York, 186 A.D.3d at 1196, 127 N.Y.S.3d 911, quoting Honghui Kuang v. MetLife, 159 A.D.3d 878, 881, 74 N.Y.S.3d 88 [internal quotation marks omitted]; see Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d at...