Borek v. Seidman

• Decision Date: 14 February 2023
• Docket Number: Index No. 805351/2021,NYSCEF Doc. No. 304,Motion Seq. No. 006
• Citation: 2023 NY Slip Op 30470 (U)
• Parties: NACHUM BOREK, Plaintiff, v. DR. STUART SEIDMAN, DR. ELIZABETH SUBLETTE, NEW YORK PRESBYTERIAN/WEILL CORNELL MEDICAL CENTER, and PAYNE WHITNEY PSYCHIATRIC CLINIC, Defendants.
• Court: New York Supreme Court

2023 NY Slip Op 30470(U)

NACHUM BOREK, Plaintiff,
v.
DR. STUART SEIDMAN, DR. ELIZABETH SUBLETTE, NEW YORK PRESBYTERIAN/WEILL CORNELL MEDICAL CENTER, and PAYNE WHITNEY PSYCHIATRIC CLINIC, Defendants.

Index No. 805351/2021, NYSCEF Doc. No. 304, Motion Seq. No. 006

Supreme Court, New York County

February 14, 2023

Unpublished Opinion

MOTION DATE 01/25/2023

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PRESENT: HON. JOHN J. KELLEY, Justice

DECISION + ORDER ON MOTION

John J. Kelley, Judge

The following e-filed documents, listed by NYSCEF document number (Motion 006) 80, 81, 128, 129, 130, 131, 132, 133, 134,135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 179, 180, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 274, 275, 276, 277, 286, 287, 293, and the plaintiff's statement made on the record on January 25, 2023. were read on this motion to/for RENEWAL/REARGUMENT.

In this action to recover damages for medical malpractice, the plaintiff moves:

(a) pursuant to CPLR 2221(d), in papers incorrectly denominated as a motion to vacate a prior order, but which in actuality, is a motion for leave to reargue his prior motion to compel the defendant Dr. Elizabeth Sublette to provide him or his mother, as his attorney-in-fact, with all of his medical records, which had been denied by order dated July 14, 2022 (MOT SEQ 002), and

(b) pursuant to CPLR 2221(e) to renew his opposition to the motion of the defendants New York Presbyterian/Weill Cornell Medical Center and Payne Whitney Psychiatric Clinic (together the NYPH defendants) to dismiss the complaint against them as time-barred, which had been granted by order dated July 25 2022 (MOT SEQ 001).

Sublette opposes that branch of the instant motion seeking leave to reargue the prior motion to compel her to provide all medical records in her possession referable to her treatment of the plaintiff. The NYPH defendants oppose that branch of the instant motion seeking renewal of the plaintiff's opposition to their motion to dismiss the complaint as against them. The plaintiff's motion is denied in its entirety.

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The court notes that, by order dated January 5, 2023 (MOT SEQ 007), it granted the plaintiff's motion for leave to amend the notice of motion that had been addressed to his request for reconsideration of MOTION SEQUENCE 002, so as to reflect that he was seeking renewal, rather than mere vacatur of an order that was adverse to him. By order dated February 14, 2023 (MOT SEQ 009), the court denied the plaintiff's identical motion for leave to amend the notice of motion that had been addressed to his request for reconsideration of MOTION SEQUENCE 001, concluding that he was moving for leave to reargue, as he did not submit new facts, but only attempted to bring to the court's attention evidence and arguments that already were before it. In the January 5, 2023 order, the court also confirmed that it would consider both applications for reconsideration simultaneously under MOTION SEQUENCE 006, explaining that it had discretion to control its own calendar, that it could accelerate the return date of a motion when warranted (see Harrington v Palmer Mobile Homes, Inc., 71 A.D.3d 1274, 1274 [3d Dept 2010]; Visconti v Paino, 137 Misc.2d 1, 6 [Sup Ct, Dutchess County 1987]), and that it had provided the parties with sufficient notice of the accelerated date (see Freed v Best, 175 A.D.3d 1494, 1495 [2d Dept 2019]).

As explained in this court's July 25, 2022 order, the plaintiff previously had requested Sublette to provide him with all of his medical and psychiatric treatment records in her possession. Rather than provide him with all of the records, she provided him with a summary of the psychiatric treatment that she rendered and the medications that she prescribed to him, relying on Public Health Law § 18(3)(d), which permits a physician to withhold records from a patient where it included sensitive information that might be harmful to the patient or family members. After the New York State Department of Health (NYS DOH) rejected his administrative appeal of Sublette's decision, the plaintiff commenced a CPLR article 78 proceeding seeking review of the NYS DOH determination. In a February 7, 2022 decision, order, and judgment, the Supreme Court, Albany County (Mott, J.), denied the petition and dismissed the proceeding, concluding that the NYS DOH determination was rational and not

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arbitrary and capricious. By order dated May 24, 2022, Justice Mott denied the plaintiff's motion for leave to reargue the petition. This court denied the plaintiff's motion to compel production of his medical records, concluding that he was collaterally estopped by Justice Mott's determination from relitigating the issue of his entitlement to those records.

By order dated February 14, 2023, this court granted Sublette's motion for summary judgment dismissing the complaint against her as time-barred (MOT SEQ 010). Hence, that branch of the plaintiff's instant motion that is addressed to the issue of Sublette's medical records must, in the first instance, be denied as academic.

That branch of the motion seeking leave to reargue the motion to compel Sublette to provide all of the records must be denied on the merits as well. A party moving for leave to reargue must show that the court overlooked or misapprehended facts or relevant law that were presented to it in connection with a prior application (see CPLR 2221[d][2]; William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27 [1st Dept 1992]; see also Matter of Setters v AI Props. & Devs. (USA) Corp., 139 A.D.3d 492, 492 [1st Dept 2016]). The purpose of a motion to reargue is not "to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Pro Brokerage, Inc. v Home Ins. Co., 99 A.D.2d 971, 971 [1st Dept 1984], quoting Foley v Roche, 68 A.D.2d 558, 567 [1st Dept 1979]). The court concludes that it did not overlook or misapprehend any facts or relevant law that were presented to it in connection with the plaintiff's prior application to compel production of Sublette's records.

In its July 25, 2022 order, this court granted the NYPH defendants' motion to dismiss the complaint insofar as asserted against them as time-barred. The court concluded that, inasmuch as the last relevant date that the NYPH defendants treated the plaintiff was January 16, 2016, that the...