Borek v. Seidman
| Decision Date | 16 February 2023 |
| Docket Number | Index No. 805351/2021,Motion Seq. No. 006 |
| Citation | 2023 NY Slip Op 30501 (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 |
AMENDED DECISION + ORDER ON MOTION
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:
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.
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 001, 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 002, 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 Mise 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 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 Al 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 plaintiff commenced the action on November 4, 2021, that the applicable limitations period was two years and six months, and that the plaintiff failed to establish that his claims against NYPH were tolled for all or a part of the time between those dates by virtue of his insanity, the action was time-barred insofar as against the NYPH defendants.
In connection with that branch of the instant motion referable to the timeliness of the action against the NYPH defendants, the plaintiff submitted several excerpts from his hospital records from December 10, 2015 through January 13, 2016, referable to his hospitalization at NYPH from December 10, 2015 through January 8, 2016, as well as additional hospital records from June 5, 2019 through June 6, 2019 from NYU Langone, records from June 16, 2019 from the NYPH defendants, and records from August 1, 2019 until August 8, 2019 from the NYPH defendants, referable to three additional hospitalizations, which he marked up in red pen with comments addressed to several of the entries therein. He also contended that the doctrine of "equitable tolling" rendered this action timely commenced against the NYPH defendants.
CPLR 2221(e) provides that "A motion for leave to renew:
(see Melcher v Apollo Med. Fund Mgt., LLC, 105 A.D.3d 15, 23 [1st Dept 2013]; American Audio Serv. Bur. Inc. v AT &T Corp., 33 A.D.3d 473, 476 [1st Dept 2006]). '"Renewal is granted sparingly. . .; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Henry v Peguero, 72 A.D.3d 600, 602 [1st Dept 2010], quoting Matter of Weinberg, 132 A.D.2d 190, 210 [1st Dept 1987]).
The new evidence shows that, during all periods of hospitalization, the plaintiff suffered from "[u]nspecified schizophrenia spectrum and other psychotic disorder" and "[u]nspecified psychosis not due to a substance or known physiological condition." Upon his discharge from each of his four hospitalizations, the plaintiff's manic and psychotic symptoms abated, and he temporarily was stabilized by medication, as indicated in the hospital records, although his mother expressed concern that the medications were ineffective or deleterious.
Although the plaintiff provided the court with new evidence, that is evidence that had not been provided to the court in connection with the NYPH defendants' motion, he failed to provide a reasonable justification for his failure to present those facts in connection with that prior motion and, thus, failed to exercise "due diligence in making [his] first factual presentation" (Chelsea Piers Mgt. v Forest Elec. Corp., 281 A.D.2d 252, 252 [1st Dept 2001], citing Rubinstein v Goldman, 225 A.D.2d 328, 328-329 [1st Dept 1996]). The plaintiff apparently had the subject hospital records in his...
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