Peck v Chung 2026 NY Slip Op 30757(U) February 26, 2026 Supreme Court, New York County Docket Number: Index No. 805430/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.8054302023.NEW_YORK.002.LBLX000_TO.html[03/11/2026 3:45:55 PM] FILED: NEW YORK COUNTY CLERK 02/27/2026 04:41 PM INDEX NO. 805430/2023 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 02/27/2026
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805430/2023 ROBERT PECK and SHARI SVENINGSON, 12/19/2025 Plaintiff, MOTION DATE 12/19/2025
-v- MOTION SEQ. NO. 002, 003
SUSIE CHUNG, M.D., SUSIE CHUNG, M.D., P.C., MAURICE RACHKO, M.D., MOUNT SINAI DOCTORS, MOUNT SINAI MEDICAL CENTER, also known as MOUNT DECISION + ORDER ON SINAI HEALTH SYSTEM, MOTION
Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 74, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 127, 129, 131, 133, 135, 137, 139, 141, 142, 145, 148 were read on this motion to/for DISCOVERY/X-MOTION DISCOVERY .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 122, 123, 124, 125, 126, 128, 130, 132, 134, 136, 138, 140, 143, 144, 146, 149 were read on this motion to/for DISCOVERY .
In this action to recover damages for medical malpractice based on alleged departures
from good and accepted practice, pursuant to Public Health Law § 2801-d for purported
violations of statutes and regulations governing nursing homes, and for loss of consortium, the
plaintiffs move pursuant to 3101 and 3120 to compel the defendants Susie Chung, M.D., and
Susie Chung, M.D., P.C. (the Chung defendants), to produce the complete provider note audit
log referable to the medical records of the plaintiff Robert Peck from 2014 through 2023, in
native Excel format, including all timestamps, revision history detail, and all chart components, a
complete extracted audit trail for the same period in native Excel format, with timestamps and
revision history, a content revision history report for all office visit notes from 2014 through 2023,
and screenshots of the original source underlying the allegedly unusable “Audit Trail Database”
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file that Chung had produced on May 30, 2025 (MOT SEQ 002). In the alternative, they request
permission to allow their information technology expert, Saira Pasha, M.D., to conduct an in-
person inspection of the electronic medical records reporting database of the nonparty CureMD
for the purpose of obtaining that information. Chung opposes the motion. In papers incorrectly
denominated as a cross motion, the plaintiffs also moved under Motion Sequence 002 pursuant
to CPLR 3101(a)(4) to compel CureMD to generate a new, complete, unmodified provider note
audit trail, a new, complete, unmodified extracted audit trail, and the corresponding content
revision history, or, alternatively, authorizing a two-hour inspection by Pasha of relevant
metadata, as requested in the initial motion, as well as to compel the Chung defendants to
accept a corrected expert affirmation from Pasha. The plaintiffs corrected that procedural error
by separately moving for the same relief under Motion Sequence 003. Chung opposed that
motion only to the extent that she objected to the plaintiffs’ request that the Chung defendants
bear the costs of any regeneration or inspection costs.
The plaintiffs’ motion pending under Motion Sequence 002 is granted to the extent that
the Chung defendants must (a) forward, to the plaintiffs’ attorneys, the extracted audit trail and
provider note log files in XLSX format, and the audit trail database file in RAR format, which
were the formats in which CureMD had forwarded those files to the Chung defendants’ attorney,
and (b) provide all assistance necessary to permit the plaintiffs to obtain appropriate records
directly from CureMD pursuant to this court’s so-ordered subpoena, such as any required
authorizations or signatures. The motion is otherwise denied, since the Chung defendants have
demonstrated that they do not have possession of the records maintained by CureMD in the
format requested by the plaintiffs, and have no control over the technical management of those
records, while the court has no jurisdiction to compel nonparty CureMD to permit the plaintiffs’
expert to review their computer files. The request for relief made in connection with the
incorrectly denominated cross motion made under Motion Sequence 002 is denied as
superseded by the motion pending under Motion Sequence 003. The plaintiffs’ motion pending 805430/2023 PECK, ROBERT ET AL vs. CHUNG M.D., SUSIE ET AL Page 2 of 10 Motion No. 002 003
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under Motion Sequence 003 is denied, inasmuch as the court had no jurisdiction, at the time the
motion was made, to compel nonparty CureMD to respond to discovery demands or generate
computer records not already in its possession, and, in any event. the substantive relief sought
against CureMD has been rendered academic by the court’s issuance of a so-ordered
subpoena addressed to CureMD on February 19, 2026. Moreover, the court discerns no basis
upon which to shift, to the Chung defendants, the costs of any inspection of CureMD’s records
undertaken by the plaintiffs’ expert, or the costs of the regeneration of those records,.
On February 14, 2025, the plaintiffs moved to compel the Chung defendants to produce
an audit trail and metadata referable to the records that those defendants generated in
connection with their treatment of the plaintiff Peck (MOT SEQ 001). In an order dated and
entered April 14, 2025, this court granted the motion only to the extent of permitting the plaintiffs
to depose Chung and take a limited deposition of a person employed by or affiliated with the
Chung defendants who managed and had knowledge of information technology and
recordkeeping referable to the generation, accessing, and tracking of access to and
amendments of those defendants’ electronic medical records. That motion was otherwise
denied, without prejudice to renewal, after the plaintiffs had taken the depositions of the Chung
defendants and that witness, and upon a showing that the depositions did not yield sufficient
information concerning the integrity and veracity of those records. In a status conference order
dated April 23, 2025, however, this court modified the April 14, 2025 order by deleting the first
decretal paragraph thereof, and substituting therefor the words “ORDERED that the motion is
granted, and, on or before May 28, 2025, the defendants Susie Chung, M.D., and Susie Chung,
M.D., P.C., shall produce an audit trail and metadata referable to the electronic medical records
of Robert Peck.” In that status conference order, the court further noted that “the plaintiff
stipulates to bear the reasonable expenses of the audit trail.”
In response to the April 23, 2025 status conference order, the Chung defendants, on
May 30, 2025, produced an 86-page copy of the extracted audit trail in PDF format, a 32-page 805430/2023 PECK, ROBERT ET AL vs. CHUNG M.D., SUSIE ET AL Page 3 of 10 Motion No. 002 003
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copy of the provider note log in PDF format, and a 192-page audit trail database in PDF format,
the latter apparently consisting of lines of computer code or other random typographical
characters. According to the plaintiffs, the audit trail database was unreadable, none of the
documents that the Chung defendants produced was in native Excel spreadsheet format, there
was no certification, and timestamps were missing or replaced by values denominated as
“NULL.” The plaintiffs contended that, between June 11, 2025 and June 18, 2025, they
repeatedly contacted the defendants’ attorneys with detailed descriptions of alleged deficiencies
in that production. At her August 7, 2025 deposition, Chung herself testified that she made “no
changes of substance” to the records, asserting that she only corrected “typos” and “dates” that
had been included therein.
In support of their motion pending under Motion Sequence 002, the plaintiffs submitted
Pasha’s expert affirmation, in which she opined that her review of the relevant metadata
confirmed that all three files were not created by CureMD, but by a paralegal employed by the
Chung defendants’ attorneys, who “likely copied data into Excel/Notepad and then converted to
PDF.” Consequently, she asserted that the plaintiffs never received true, system-generated
exports. Pasha further averred that several of the types of entries in the records that are
required by an entity such as CureMD to obtain certification by the federal Office of the National
Coordinator for Health Information Technology (ONC) were missing, including timestamps and
the “Treatment Plan” components. In addition, she concluded that the chart-wide log indicated
that, between June 1, 2023 and June 16, 2023, two new diagnoses were saved to the chart,
along with 153 “Update” actions, while the note-level log omitted them, thus “falsely suggesting
no changes occurred.” Furthermore, Pasha asserted that the audit trail database contained
typographical characters that she described as “gibberish,” thus proving that the database was
improperly exported via Notepad rather than as a usable log. She also stated that the CureMD
documentation confirmed that provider’s notes can be unsigned, as well as edited and re-
signed, but that these latter types revisions were conspicuously missing from the logs. Pasha 805430/2023 PECK, ROBERT ET AL vs. CHUNG M.D., SUSIE ET AL Page 4 of 10 Motion No. 002 003
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thus concluded that the audit trail production itself was not merely incomplete, but appeared to
be affirmatively altered, inasmuch as metadata embedded in each file indicated irregularities
that could not be attributed to system limitations or technical error, but instead reflected
“deliberate manipulation or mishandling of native CureMD audit reports,” thus undermining
confidence in their integrity and raising serious concerns about spoliation. Pasha further opined
that the relevant omissions “cannot be accidental” and were consistent with data removal or
suppression at some point in the production chain, and, thus, recommended that the plaintiffs
obtain regenerated reports directly from CureMD or that the court permit her to conduct a two-
hour live inspection at CureMD’s offices to capture the unaltered data.
In opposition to the plaintiffs’ motion pending under Motion Sequence 002, the Chung
defendants submitted affirmations from two of the attorneys representing Chung, a paralegal
working for that firm, and from Chung herself. In his affirmation, Barry Vuiker, one of the
attorneys representing Chung, explained how he obtained the audit trail and metadata from
CureMD. Specifically, he asserted that his firm “did not alter any PDFs . . . [and] did not omit
any required fields.” He asserted that his firm
“forwarded exactly what CureMD provided to us, saved in PDF form as is our office’s custom and practice. If the audit trail material was missing timestamps, that is because that is how the material was sent to me. If plaintiff's office found the audit material given to them indecipherable, that is how the material was provided to us by CureMD. Plaintiffs’ remedy is to take a deposition of CureMD. Plaintiff's attorney states that the material provided omitted required fields. We do not know what fields she is referring to, but that is of no matter since the material we provided is what we received from CureMD. It was not altered in anyway except to be saved as a PDF. No material we received was omitted from the audit trail.”
In her affirmation, paralegal Monique Nelson asserted that Vuiker had requested that she email
him the extracted audit trail and provider note log files that CureMD had provided to Vuiker in
XLSX format, and the audit trail database file in RAR format, but that she did not have a
program capable of opening the RAR file in its native format. She explained that she thus
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converted and saved all three files in PDF format, provided those converted files to Vuiker, and
did not make any alterations to the files that she converted and saved.
Chung asserted in her affirmation that she had entered into a license with CureMD to
use the electronic medical records software that it had developed. She explained that, although
the relevant license and services agreement provided that any health information that she
entered into CureMD's program remained her personal properly, it further provided that CureMD
owned “all files, data, and other material and information” provided by its programs. In this
respect, she asserted that she has no control or influence over CureMD, beyond the rights to
the health information that she entered into CureMD's program. Chung further asserted that,
prior to December 2024, she had no contact with CureMD with respect to Peck’s records or
computer audits of records, and that her only contact with it thereafter was with CureMD’s Joe
Martin and CureMD’s attorney, Sean Williams. Chung expressly asserted that she did not have
possession, custody, or control of any computer audit trail material, and that her own attempts in
December 2024 and January 2025 to obtain them directly from CureMD were unsuccessful.
Inasmuch as the Chung defendants established that the only records responsive to this
court’s orders were the XLSX and RAR files that they received from CureMD, and the converted
PDF versions of those records, which they already have provided to the plaintiffs, the only relief
that the court can grant against the Chung defendants is to direct their attorneys to forward
those XLSX and RAR files to the plaintiffs’ attorneys without any conversion, and to direct the
Chung defendants to render any assistance necessary to permit the plaintiffs to obtain the
records directly from CureMD or accommodate an in-person inspection of the computer files by
the plaintiffs’ expert at CureMD’s offices, such as providing necessary signatures, approvals, or
authorizations. There are no other documents or computer files in the possession of the Chung
defendants or their attorneys that they could be directed to provide to the plaintiffs. Hence, the
plaintiffs’ motion pending under Motion Sequence 002 is granted to the extent indicated, and is
otherwise denied. 805430/2023 PECK, ROBERT ET AL vs. CHUNG M.D., SUSIE ET AL Page 6 of 10 Motion No. 002 003
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As explained above, when a court has no jurisdiction over a nonparty, such as CureMD,
it has no power to order relief against it (see Dune Deck Owners Corp. v J.J. & P. Assoc. Corp.,
85 AD3d 1091, 1092 [2d Dept 2011]; Derezeas v New York Road Runners, Inc., 2012 NY Slip
Op 31201[U], *6, 2012 NY Misc LEXIS 2139, *7 [Sup Ct, N.Y. County, Apr. 23, 2012]). CureMD
was never served with process, and was never served with a signed order to show cause
directing them to appear for any purpose in this action. Hence, the court cannot order relief
against it in connection with the plaintiffs’ motions pending under either Motion Sequence 002 or
003, including any directive compelling it to permit Pasha to conduct an in-person inspection of
relevant computer files.
Nonetheless, on February 19, 2026, the court issued a so-ordered subpoena addressed
to CureMD, directing it to produce
“a. Dr. Susie Chung's Provider Note Audit Log report for 2014-2023, including all recorded data points and revision-history detail before running the query;
“b. Dr. Susie Chung's Extracted Audit Trail report, using a start date of 2014 instead of July 2019, including the exact time (not only date) of each action and revision-history; [and]
“c. If revision-history detail cannot be added to the two audit-log reports, generate a separate content-revision-history report for 2014-2023; and produce the unedited native Excel file.”
The subpoena further provided that these records include the treatment plan field, complete
timestamp fields, unsigned/resigned note history, the user-ID fields identifying who performed
each action, revision-history sequences for each office visit, and the note-level entries
corresponding to the 153+ Update actions known to have occurred between June 1, 2023, and
June 16, 2023. The subpoena further described the methods by which CureMD could comply
with the subpoena. The issuance of this subpoena has thus rendered academic the relief
sought by the plaintiffs’ against CureMD in the motion pending under Motion Sequence 003 in
connection with the production of documents and computer files.
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Because the most recent so-ordered subpoena did not set forth a return date by which
CureMD would be required to comply with the subpoena, the court, on its own motion,
determines that CureMD must comply with that subpoena on or before March 19, 2026, and
directs the plaintiffs to serve a copy of this order with notice of entry upon CureMD by overnight
delivery on or before March 2, 2026. Inasmuch as the subpoena did not direct to afford Pasha
the right to access its computer files at its offices, and the court has no jurisdiction to grant that
relief in connection with the two pending motions, those branches of the motions seeking to
compel CureMD to provide Pasha with in-person access to those computer files is denied.
Pursuant to CPLR 3111 and 3122(d), the “reasonable production expenses of a non-
party witness shall be defrayed by the party seeking discovery.” If a court finds that a nonparty
is required to produce information, including electronically-stored information (ESI), the “court
should allocate the costs of this production to [the party seeking the discovery]” (Tener v
Cremer, 89 AD3d 75, 82 [1st Dept 2011]). While specific reference to data-vendor costs is
omitted from CPLR 3111 and 3122(d), research has revealed no decisional authority prohibiting
the allocation of such fees or costs. Indeed, the Rules of the Commercial Division of the
Supreme Court specifically allow for the allocation of such fees and costs “in accordance with
Rules 3111 and 3122(d) of the CPLR” (22 NYCRR 202.70[g], Comm. Div. Rules, Appendix A,
Guidelines for Discovery of Electronically Stored Information (“ESI”) from Nonparties, V., A &
B.). In light of the law governing the allocations of such expenses, as well as the plaintiffs’
stipulation agreeing to bear the costs of such production, and the fact that the Chung
defendants’ conduct did not cause the plaintiffs to seek nonparty discovery, any such expenses
incurred by CureMD in connection with its response to the so-ordered subpoena shall be borne
by the plaintiffs.
The determination of these motions is without prejudice to renewal of the plaintiffs’
request to compel CureMD to provide access to Pasha to conduct an in-person inspection of its
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relevant computer files, pursuant to a motion initiated by order to show cause, in which the court
may direct the timing and means of service of the motion papers upon CureMD.
In light of the foregoing, it is,
ORDERED that the plaintiffs’ motion to compel the defendants Susie Chung, M.D., and
Susie Chung, M.D., P.C., to produce the complete provider note audit log referable to the
medical records of the plaintiff Robert Peck from 2014 through 2023, in native Excel format,
including all timestamps, revision history detail, and all chart components, a complete extracted
audit trail for the same period in native Excel format, with timestamps and revision history, a
content revision history report for all office visit notes from 2014 through 2023, and screenshots
of the original source underlying the audit trail database file that had been produced on May 30,
2025, or, alternatively, to direct CureMD to provide the plaintiffs’ expert with in-person access to
those computer files for a two-hour inspection (MOT SEQ 002), is granted only to the extent
that, on or before March 12, 2026, those defendants are directed to forward, to the plaintiffs’
attorneys, the extracted audit trail and provider note log files in XLSX format, and the audit trail
database file in RAR format, as initially forwarded by CureMD to those defendants’ attorneys,
and those defendants are directed to provide all assistance necessary to permit the plaintiffs to
obtain appropriate records directly from CureMD pursuant to this court’s February 19, 2026 so-
ordered subpoena, such as any required authorizations or signatures, and that motion is
otherwise denied; and it is further,
ORDERED that the plaintiffs’ separate motion under Motion Sequence 002, incorrectly
denominated as a cross motion, is denied as superseded by the motion submitted under Motion
Sequence 003; and it is further,
ORDERED that the plaintiffs’ motion to compel CureMD to generate a new, complete,
unmodified provider note audit trail, a new, complete, unmodified extracted audit trail, and the
corresponding content revision history, or, alternatively, authorizing a two-hour inspection of
relevant metadata and computer files by their retained expert, and to compel Susie Chung, 805430/2023 PECK, ROBERT ET AL vs. CHUNG M.D., SUSIE ET AL Page 9 of 10 Motion No. 002 003
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M.D., and Susie Chung, M.D., P.C., to accept an amended affirmation from their expert (MOT
SEQ 003), is granted only to the extent that those defendants are directed to accept the
amended expert affirmation, and that motion is otherwise denied; and it is further,
ORDERED that, on or before March 2, 2026, the plaintiffs shall serve a copy of this
order with notice of entry upon CureMD by overnight delivery, and shall file proof of service
thereof, and CureMD thereupon shall respond to this court’s February 19, 2026 so-ordered
subpoena on or before March 16, 2026.
This constitutes the Decision and Order of the court.
2/26/2026 $SIG$ DATE JOHN J. KELLEY, J.S.C.
MOTION 002: CASE DISPOSED X NON-FINAL DISPOSITION
□ □ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ REFERENCE CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
CROSS MOTION 002: CASE DISPOSED X NON-FINAL DISPOSITION
□ □ GRANTED X DENIED GRANTED IN PART OTHER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
MOTION 003: CASE DISPOSED X NON-FINAL DISPOSITION
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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