Tucker v Budget Rent A Car System, Inc., 2007 NY Slip Op 33301(U) (N.Y. Sup. Ct. 10/1/2007)

• Decision Date: 01 October 2007
• Docket Number: Motion Seq. No: 2.,Motion Cal. No: 26.,No. 0020918/2006.,0020918/2006.
• Parties: AMY TUCKER, Plaintiff, v. BUDGET RENT A CAR SYSTEM, INC., and ANNE MARIE MARTINO, Defendants.
• Court: New York Supreme Court

Page 1

2007 NY Slip Op 33301(U)

AMY TUCKER, Plaintiff, v. BUDGET RENT A CAR SYSTEM, INC., and ANNE MARIE MARTINO, Defendants.

No. 0020918/2006.

Motion Cal. No: 26.

Motion Seq. No: 2.

Supreme Court of the State of the New York, Queens County.

October 1, 2007.

Motion Date: August 1, 2007.

PATRICIA P. SATTERFIELD, Justice

The following papers numbered 1 to 14 read on this motion by defendants for an order, pursuant to CPLR § 3124 and/or 3126, compelling disclosure of the information sought in defendants' First Request for Production of Documents Nos. 49, 58 and 59, defendants' First Set of Interrogatories No. 13, and defendants' Second Request for Production of Documents Nos. 1 and 2, or in the alternative, dismissing or striking out plaintiff's request for compensatory damages and precluding plaintiff from relying upon, at trial or in any moving papers, any testimony, documents or evidence of emotional distress sought by defendants in its discovery demands but not produced by plaintiff; and on this cross motion by plaintiff for a protective order, pursuant to CPLR §3103, against the disclosure of certain information requested by defendants' First and Second Requests for Production of Documents and defendants' First Set of Interrogatories.

                                                                                  PAPERS
                                                                                 NUMBERED
                         Notice of Motion-Affidavits-Exhibits...............      1 - 7
                         Notice of Cross Motion.............................      8 - 10
                         Memorandum of Law in Support of Cross Motion             11
                         Memorandum of Law in Support of Motion
                           And in Opposition to Cross Motion................      12 - 13
                         Stipulation........................................      14
                

Upon the foregoing papers, it is ordered that the motion and cross motion are disposed of as follows:

Plaintiff commenced this employment discrimination action, pursuant to Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000, et. seq. ("Title VII") and New York City Administrative Code § 8-102, et seq. ("the City Human Rights Law"), seeking, inter alia, an award of back pay, front pay, compensatory damages, punitive damages and attorneys' fees, against defendant Budget Rent A Car System, Inc. ("Budget"), plaintiff's former employer, and Anne Marie Martino ("Martino"), plaintiff's former supervisor. Plaintiff seeks, inter alia, $5,000,000.00 in compensatory damages for "feelings of humiliation, embarrassment, depression, mistreatment, and degradation" arising from defendants' alleged discriminatory and retaliatory treatment of plaintiff. Defendants move for an order compelling discovery, or, in the alternative, striking plaintiff's compensatory damage claim. Plaintiff cross moves for a protective order with respect to defendants' attempt to discover plaintiff's physical and mental health records, as well as information pertaining to any involvement she may have had in prior litigation.

On this first discover motion, defendants allege that plaintiff "failed to respond adequately to the First Document Request Nos. 40, 58 and 59, and Interrogatory No. 13 and to provide the medical authorizations requested in the First Document Request Nos. 58 and 59 and mandated by the PC Order." Interrogatory No. 13 elicited information concerning plaintiff's claim for compensatory damages, asking that she "identify [and provide specific information pertaining to] all health-care practitioners, doctors, psychologist, therapists or other persons with whom plaintiff has consulted since 2001."¹ The First Document Request No. 58 requested documents related to medical treatment received by plaintiff from July 2005 to the present; Document Request No. 59 requested documents relating to psychiatric, psychological or counseling treatment for that same time period; Document Request No. 40 requested documents relating to any prior litigation, civil and criminal, in which plaintiff was a party or witness; Second Document Request No. 1 requested documents related to medical treatment received by plaintiff from 2000 to the present; Second Document Request No. 2 requested documents relating to psychiatric psychological or counseling treatment from January 2000 to the present. Plaintiff objected to responding to the interrogatory and document requests on the grounds, inter alia, that the requests were "overly broad and not reasonably calculated to lead to the discovery of admissible evidence," or "overly broad and ambiguous," or that she did not possess "any such responsive documents."

"CPLR § 3101 defines the scope of disclosure and provides that [t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof' (CPLR § 3101, subd. [a]). This provision has been liberally construed to require disclosure where the matter sought will `assist preparation for trial by sharpening the issues and reducing delay and prolixity' (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430). Thus, restricted only by a test for materiality `of usefulness and reason' (id.), pretrial discovery is to be encouraged." Hoenig v. Westphal, 52 N.Y.2d 605, 608 (1981); see, Parise v. Good Samaritan Hosp., 36 A.D.3d 678 (2^nd Dept. 2007); Andon ex rel. Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740, 746 (2000). The bottom line is that discovery should be allowed if the information sought —is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable' (citation omitted)." Matter of Beryl, 118 A.D.2d 705, 706 (2^nd Dept. 1986). However, notwithstanding the liberality accorded the disclosure provisions of the CPLR, "the scope of permissible discovery is not entirely unlimited and the trial court is invested with broad discretion to supervise discovery and to determine what is `material and necessary' as that phrase is used in CPLR 3101(a) (citations omitted)." Auerbach v. Klein, 30 A.D.3d 451 (2^nd Dept. 2006); Palermo Mason Const., Inc. v. Aark Holding Corp., 300 A.D.2d 460 (2^nd Dept. 2002). The burden is upon the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. See, Beckles v. Kingsbrook Jewish Medical Center, 36 A.D.3d 733 (2^nd Dept. 2007); Vyas v. Campbell, 4 A.D.3d 417 (2^nd Dept. 2004); Crazytown Furniture, Inc. v. Brooklyn Union Gas Co., 150 A.D.2d 420 (2^nd Dept. 1989).

Moreover, "[a] party seeking to inspect [] medical records must first demonstrate that the [plaintiff's] physical or mental condition is `in controversy' []). Even where this preliminary burden has been satisfied discovery may still be precluded where the information requested is privileged and thus exempted from disclosure[]. Once the privilege is validly asserted, it must be recognized and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived (citations omitted)." Lombardi v. Hall, 5 A.D.3d 739, 740 (2<sup>nd</sup> Dept.2004); see, Kivlehan v. Waltner, 36 A.D.3d 59 (2<sup>nd</sup> Dept. 2007); Bongiorno v. Livingston, 20 A.D.3d 379 (2<sup>nd</sup> Dept.2005). A plaintiff "waives the physician-patient privilege of CPLR § 4504 when, `in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue' (citation omitted). Otherwise [], a party would be able to use the privilege `as a sword rather than a shield,' and a party `should not be permitted to assert a mental or physical condition in seeking damages [] and at the same time assert the privilege in order to prevent the other party from ascertaining the truth' (citation omitted)." Green v. Montgomery, 95 N.Y.2d 693, 700 (2001); see, Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768 (2" Dept. 2007). "However, a party does not waive the privilege with respect to unrelated illnesses or treatments []." Carboni v. New York Medical College, 290 A.D.2d 473 (2^nd Dept. 2002).

Here, plaintiff affirmatively placed her medical condition in controversy through allegations of injury and emotional anguish based upon her "feelings of humiliation, embarrassment, depression, mistreatment, and degradation,"arising from defendants' alleged discriminatory and retaliatory treatment of plaintiff. See, Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768 (2^nd Dept. 2007); Avila v. 106 Corona Realty Corp., 300 A.D.2d 266, 267 (2^nd Dept. 2002); Molesi v. Rubenstein, 294 A.D.2d 546 (2^nd Dept. 2002); Schager v. Durland, 286 A.D.2d 725 (2^nd Dept. 2001); Ellerin v. Bentley's, 266 A.D.2d 259, 260 (2^nd Dept. 1999); Holtz v. Wildenstein & Co., Inc., 261 A.D.2d 336 (1^st Dept. 1999). This is particularly so in light of plaintiff's post motion "Response to Second Set of Interrogatories," dated September 14, 2007, whereby plaintiff admits for the first time that she has seen a medical professional regarding the alleged injuries.² Consequently, plaintiff cannot assert that the medical history sought by defendants is subject to a physician-patient privilege which has not been waived. Nevertheless, defendants are not entitled to unfettered access into all of plaintiff's medical history, as certain of the challenged items of discovery "are overly broad in that the information sought [is] unreasonably intrusive (citation omitted) and infringe[s] upon personal areas unrelated to the issues in the case (citation omitted)." Garcia v. First Spanish Baptist Church of Islip, 259 A.D.2d 465 (2^nd Dept. 1999).

Further, defendants seek a response to the interrogatory which inquires as to "any and all documents, from any time period, relating or pertaining to any lawsuit, complaint, charge, indictment, investigation or arrest or other legal matter in which pla...