Zakhidov v. Boulevard Tenants Corp.

• Decision Date: 06 June 2012
• Court: New York Supreme Court — Appellate Division
• Parties: Alisher ZAKHIDOV, appellant, v. BOULEVARD TENANTS CORP., et al., respondents.

96 A.D.3d 737

945 N.Y.S.2d 756

2012 N.Y. Slip Op. 04334

Alisher ZAKHIDOV, appellant,

v.BOULEVARD TENANTS CORP., et al., respondents.

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

June 6, 2012.

Suckle Schlesinger, PLLC, New York, N.Y. (Howard A. Suckle of counsel), for appellant.

Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Weiss, J.), entered January 24, 2011, which, upon, inter alia, a jury verdict, among other things, awarding him damages in the principal sums of only $50,000 for past pain and suffering and $0 for future pain and suffering, is in favor of him and against the defendants in the principal sum of only $50,000.

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, with costs, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of damages.

At the damages phase of this bifurcated trial, the defendants' attorney asked the trial court to preclude the plaintiff from introducing his hospital records, since the plaintiff had not complied with two court orders requiring him to provide updated authorizations compliant with the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.; hereinafter HIPAA). The plaintiff's attorney admitted that he had failed to provide “fresh” HIPAA-compliant authorizations, but stated that the plaintiff had never sought additional treatment after his initial hospitalization, so the defendants, who had obtained the hospital records earlier, were not prejudiced by this failure to provide updated authorizations. Nevertheless, the trial court granted the defendants' application, and it precluded the plaintiff from introducing the hospital records and precluded the plaintiff's expert from referring to the hospital records. The jury rendered a verdict, inter alia, awarding damages to the plaintiff in the principal sums of $50,000 for past pain and suffering and $0 for future pain and suffering. The plaintiff moved to set aside the verdict on the issue of damages as contrary to the weight of the evidence or as inadequate and for a new trial on the issue of damages. The trial court denied the motion, and entered a judgment in favor of the plaintiff and against the defendants in the principal sum of $50,000. The plaintiff appeals, contending, among other things, that the trial court erred in precluding him from introducing the medical records and not allowing his expert to refer to them.

The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion ( see Romeo v. Barrella, 82 A.D.3d 1071, 1075, 921 N.Y.S.2d 83;Isaacs v. Isaacs, 71 A.D.3d 951, 952, 897 N.Y.S.2d 225;Duncan v. Hebb, 47 A.D.3d 871, 850 N.Y.S.2d 610;Carbajal v. Bobo Robo, Inc., 38 A.D.3d 820, 821, 833 N.Y.S.2d 150).CPLR 3126 permits courts to fashion such orders “as are just” ( see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 79, 917 N.Y.S.2d 68, 942 N.E.2d 277;Carbajal v. Bobo Robo, Inc., 38 A.D.3d 820, 833 N.Y.S.2d 150). The general rule is that a court must impose a sanction commensurate with the particular disobedience it is designed to punish ( see Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3126:8). Before a court invokes the drastic remedy of striking...