| Zakhidov v Boulevard Tenants Corp. |
| 2012 NY Slip Op 04334 [96 AD3d 737] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Alisher Zakhidov, Appellant, v Boulevard Tenants Corp. etal., Respondents. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe 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 $50,000for past pain and suffering and $0 for future pain and suffering, is in favor of him and against thedefendants in the principal sum of only $50,000.
Ordered that the judgment is reversed, on the law and in the exercise of discretion, withcosts, and the matter is remitted to the Supreme Court, Queens County, for a new trial on theissue of damages.
At the damages phase of this bifurcated trial, the defendants' attorney asked the trial court topreclude the plaintiff from introducing his hospital records, since the plaintiff had not compliedwith two court orders requiring him to provide updated authorizations compliant with the HealthInsurance 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 additionaltreatment after his initial hospitalization, so the defendants, who had obtained the hospitalrecords earlier, were not prejudiced by this failure to provide updated authorizations.Nevertheless, the trial court granted the defendants' application, and it precluded the plaintifffrom introducing the hospital records and precluded the plaintiff's expert from referring to thehospital records. The jury rendered a verdict, inter alia, awarding damages to the plaintiff in theprincipal sums of $50,000 for past pain and suffering and $0 for future pain and suffering. Theplaintiff moved to set aside the verdict on the issue of damages as contrary to the weight of theevidence or as inadequate and for a new trial on the issue of damages. The trial court denied themotion, and entered a judgment in favor of the plaintiff and against the defendants in theprincipal sum of $50,000. The plaintiff appeals, contending, among other things, that the trialcourt erred in precluding him from introducing the medical records and not allowing his expert torefer to them.
The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violationsis addressed to the court's discretion (seeRomeo v Barrella, 82 AD3d 1071, 1075 [2011]; Isaacs [*2]v Isaacs, 71 AD3d 951,952 [2010]; Duncan v Hebb, 47AD3d 871 [2008]; Carbajal v BoboRobo, Inc., 38 AD3d 820, 821 [2007]). CPLR 3126 permits courts to fashion suchorders "as are just" (see Gibbs v St.Barnabas Hosp., 16 NY3d 74, 79 [2010]; Carbajal v Bobo Robo, Inc., 38 AD3d 820 [2007]). The generalrule is that a court must impose a sanction commensurate with the particular disobedience it isdesigned to punish (see Connors, Practice Commentaries, McKinney's Cons Laws of NY,Book 7B, CPLR C3126:8). Before a court invokes the drastic remedy of striking a pleading, oreven of precluding evidence, there must be a clear showing that the failure to comply withcourt-ordered discovery was willful and contumacious (see Moog v City of New York, 30 AD3d 490, 490-491 [2006]; Assael v Metropolitan Tr. Auth., 4AD3d 443 [2004]; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761 [1999]).
Here, nothing in the record supports a conclusion that the plaintiff's failure to provideupdated HIPAA-compliant authorizations in violation of the court orders was willful andcontumacious. The plaintiff had earlier provided HIPAA-compliant authorizations, and thedefendants had obtained the records of the plaintiff's hospitalization, which they were able toutilize fully. Moreover, under the circumstances of this case, where the plaintiff did not seekadditional treatment after his initial hospitalization, there is no indication that the plaintiff failedto comply with the court orders in order to gain an advantage in the litigation (see Moog vCity of New York, 30 AD3d at 490-491). Accordingly, the Supreme Court's preclusion ofthe plaintiff's hospital records was an improvident exercise of discretion (see Allen v Calleja, 56 AD3d 497,498 [2008]; cf. Wagner v 119 Metro,LLC, 59 AD3d 531, 533 [2009]), and we remit the matter to the Supreme Court, QueensCounty, for a new trial on the issue of damages.
In light of our determination, the plaintiff's remaining contentions have been renderedacademic. Rivera, J.P., Balkin, Belen and Chambers, JJ., concur.