Borek v. Seidman

• Decision Date: 14 July 2022
• Docket Number: Index No. 805351/2021,Motion Seq. No. 002
• Citation: 2022 NY Slip Op 32329 (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

2022 NY Slip Op 32329(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, Motion Seq. No. 002

Supreme Court, New York County

July 14, 2022

Unpublished Opinion

MOTION DATE 05/11/2022

DECISION + ORDER ON MOTION

JOHN J. KELLEY, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 49, 50, 51, 59 were read on this motion to/for INJUNCTION/COMPEL DISCOVERY .

In this action to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 6301 and 6311 for a preliminary injunction prohibiting the defendant Dr. Elizabeth Sublette from disposing of or destroying the medical and psychiatric records that she generated in connection with her treatment of the plaintiff from 2014 through 2016. He also moves pursuant to CPLR 3124 to compel her to provide him with a complete set of those records. Sublette opposes the motion. The motion is denied and the temporary restraining order included in this court's April 13, 2022 order to show cause is dissolved and vacated.

In his complaint, the plaintiff alleged, in effect, that the defendants committed medical malpractice by improperly prescribing certain psychiatric medications and that, as a consequence, he is currently mildly cognitively impaired from the effects of medication and the lingering effects of past, severe medication withdrawal breakdowns. He asserted that he suffers from fluctuations in his mental health due to continuous withdrawal from medications, and that he has become extremely sensitive to such administrations and withdrawals.

1

This motion was initiated by order to show cause dated April 13, 2022, in which the court temporarily restrained Sublette from disposing of or destroying the subject records pending consideration of the motion. To obtain a preliminary injunction, however, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury if a preliminary injunction is not granted, and (3) a balance of equities in his or her favor (see CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005]; Doe v Axelrod, 73 N.Y.2d 748, 750 [1988]; Gliklad v Cherney, 97 A.D.3d 401, 402 [1st Dept 2012]; Gilliland v Acquafredda Enters., LLC, 92 A.D.3d 19, 24 [1st Dept 2011]; Spinale v 10 W. 66th St. Corp., 193 A.D.2d 431, 431 [1st Dept 1993]).

"To establish a likelihood of success on the merits, '[a] prima facie showing of a reasonable probability of success is sufficient; actual proof of the petitioners' claims should be left to a full hearing on the merits'" (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 A.D.3d 430, 431 [1st Dept 2016], quoting Weissman v Kubasek, 112 A.D.2d 1086, 1086 [2d Dept 1985]; see also Demartini v Chatham Green, 169 A.D.2d 689 [1st Dept 1991]). Even though a preliminary injunction may be granted where facts are in dispute and the evidence supporting the motion is not "conclusive" (Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 A.D.3d at 431; see Four Times Sq. Assoc. v Cigna Invs., 306 A.D.2d 4, 5 [1st Dept 2003]), the plaintiff nonetheless has failed to demonstrate a likelihood of success on the merits of this medical malpractice action, as, among other things, he has submitted no affirmation or affidavit...