Reyes v. 1650 Corp.

2025 NY Slip Op 30973(U)

• Court: New York Supreme Court, New York County
• Decided: March 28, 2025
• Docket: Index No. 150353/2022
• Status: Unpublished

Opinion

Reyes v 1650 Corp. 2025 NY Slip Op 30973(U) March 28, 2025 Supreme Court, New York County Docket Number: Index No. 150353/2022 Judge: Emily Morales-Minerva 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. INDEX NO. 150353/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/28/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ---------------------------------------------------------------------------------X INDEX NO. 150353/2022 ISABEL REYES, MOTION DATE 03/28/2025 Plaintiff, MOTION SEQ. NO. 001 -v- 1650 CORP., SILVER STAR PROPERTIES CORP. DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 38, 39 were read on this motion to/for DISCOVERY .

APPEARANCES:

Elefterakis, Elefterakis, & Panek, New York, NY (Philip Aaron Schultze, Esq., of counsel), for plaintiff.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (James Milrod Koblenzer, Esq., of counsel), for defendants.

EMILY MORALES-MINERVA, J.S.C.

In this personal injury action, defendants 1650 CORP. and

SILVER STAR PROPERTIES CORP. (defendants), move, by notice of

motion (sequence number 001), for an order (a) dismissing the

complaint of plaintiff ISABEL REYES (plaintiff) pursuant to CPLR

§ 3126, or, in the alternative, an order (b) compelling

plaintiff to appear for a further Independent Medical

Examination (IME) pursuant to CPLR § 3124.

Plaintiff opposes and cross-moves for orders (a) striking

defendants’ answer pursuant to CPLR § 3126, and (b) finding that

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the issue of notice is resolved in plaintiff’s favor pursuant to

CPLR § 3126. Defendants oppose the cross-motion.

For the reasons set forth below, defendants’ motion (seq.

no. 001) is denied entirely; and plaintiff’s cross-motion is

denied entirely.

BACKGROUND

Plaintiff ISABEL REYES (plaintiff) resides at 570 West

193rd Street, Apt. 1D, New York, New York (apartment), which

defendants 1650 CORP. and SILVER STAR PROPERTIES CORP.

(defendants) own and/or lease (see id.). She alleges that, on

or around December 01, 2021, part of the ceiling in the subject

apartment collapsed upon her, causing her injury (see New York

State Court Electronic Filing System [NYSCEF] Doc. No. 001,

Complaint).

Thereafter, on January 12, 2022, plaintiff commenced this

negligence action against defendants (see id.). Defendants

answered, asserting 15 affirmative defenses (see NYSCEF Doc. No.

006, Answer). Shortly thereafter, plaintiff submitted a

verified bill of particulars and alleged significant injuries to

her spine and left knee (see NYSCEF Doc. No. 25, Verified Bill

of Particulars).

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Defendants then disclosed their intent to call two expert

witnesses at trial: Ramesh Gidumal, MD, an orthopedist, and

Douglas Cohen, MD, a neurologist (see NYSCEF Doc. Nos. 25, 26,

Defendants’ Disclosures pursuant to CPLR § 3101[d]).

Douglas Cohen, MD (Dr. Cohen) conducted an Independent

Medical Evaluation (IME) of plaintiff. Non-party Mark Rodriguez

accompanied plaintiff during the examination and allegedly

“refused” to allow plaintiff to answer certain questions. The

posed questions were: if a hospital admitted plaintiff because

of the incident; if plaintiff worked prior to or after the

incident; and if plaintiff underwent surgeries prior to the

incident (see NYSCEF Doc. No. 28, Dr. Cohen’s IME Report).

Despite receiving no answers to this inquiry, Dr. Cohen issued

his IME report with a conclusion as to plaintiff's condition

(see id.).

After a subsequent compliance conference, the court (L.

Headley, J.S.C.), ordered, among other things, “defendants’

deposition to be held on July 24, 2024; defendants to exchange

all IME reports within 30 days; plaintiff to respond to

defendants’ post-EBT demands within 30 days; and plaintiff to

serve post-EBT demands per CPLR” (NYSCEF Doc. No. 17, Compliance

Conference Order, dated May 07, 2024). The court set a note of

issue filing deadline of January 10, 2025 (see id.).

Now, almost a year after the compliance order, defendants

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move (motion seq. no. 001) for (1) an order, pursuant to CPLR

§ 3126,1 dismissing plaintiff’s complaint, or, in the

alternative, (2) an order, pursuant to CPLR § 3124,2 compelling

plaintiff to appear for another IME. Defendants make no

arguments in support of their application to dismiss the

complaint. As to their motion to compel, defendants essentially

argue that non-party Mark Rodriguez's alleged interference with

the IME caused them prejudice that can only be remedied through

a second IME (see NYSCEF Doc. 21, Defendants’ Affirmation in

Support of Motion to Compel).

Plaintiff opposes the motion entirely, and cross-moves for

an order (a) striking defendants’ answer, pursuant to CPLR §

3126, for failing to respond to plaintiff’s post-deposition

demands, and (b) finding that the issue of notice is resolved in

1 CPLR § 3126 provides, “If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.” 2 CPLR § 3124 provides, “If a person fails to respond to or comply with any

request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” 150353/2022 REYES, ISABEL vs. 1650 CORP. ET AL Page 4 of 11 Motion No. 001

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plaintiff’s favor pursuant to CPLR § 3126.

ANALYSIS

DEFENDANTS’ MOTION TO STRIKE COMPLAINT

CPLR § 3126, which governs penalties for failure to

disclose, provides:

"[i]f any party, . . ., refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: . . . 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."

Defendants merely cite this statute in the paragraph

outlining the relief requested, presenting no support or

reasoning for their contention that the court should dismiss

this complaint (see --- NYSCEF Doc. No. 21, Affirmation in Support

of Motion to Compel, ¶ 2). Given that defendants fail to allege

plaintiff refused to comply with any order for disclosure, or

set forth what, if any, information this court should find ought

to be disclosed for purposes of a dismissal, their application

mandates a plain denial.

The court next addresses defendants' motion, in the

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alternative, to compel a second IME, given that defendants focus

their arguments on such relief.

DEFENDANTS' MOTION TO COMPEL

CPLR § 3101 (a) generally governs here, directing that

“[t]here shall be full disclosure of all matter material and

necessary in the prosecution or defense of an action, regardless

of the burden of proof” (emphasis added). The “’statute

embodies the policy determination that liberal discovery

encourages fair and effective resolution of disputes on the

merits, minimizing the possibility for ambush and unfair

surprise’" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting

Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376

[1991]).

Accordingly, our governing Court of Appeals has long

“emphasized that ‘[t]he words, “material and necessary”,

are . . . to be interpreted liberally to require disclosure,

upon request, of any facts bearing on the controversy which will

assist preparation for the trial by sharpening the issues and

reducing delay and prolixity. The test is one of usefulness and

reason” (Forman, 30 NY3d at 661, quoting Allen v Crowell-Collier

Publ. Co., 21 NY2d 403, 406, [1968], citing Andon v 302-304 Mott

St. Assoc., 94 NY2d 740, 746 [2000]).

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“Where a plaintiff puts her physical condition at issue,

the defendants may require that she submit to an IME [pursuant

to CPLR § 31213] by a physician retained by defendant for that

purpose” (Markel v Pure Power Boot Camp, Inc., 171 AD3d 28, 29

[1st Dept 2019], citing Chaudhary v Gold, 83 AD3d 477, 478 [1st

Dept 2011]). Plaintiff is entitled to have a representative

present at the IME, provided said representative does not

prevent defendant’s doctor from conducting a “meaningful

examination” (Domingo v 541 Operating Corp., 215 AD3d 586, 587

[1st Dept 2023], citing Markel, 171 AD3d at 29-30 [1st Dept

2019]).

If a plaintiff fails to respond to or comply with any

request, notice, demand, or order to appear for an additional

IME, defendant may move to compel compliance with such (see

generally CPLR § 3124; see also Kolodziejski v Jaskolka, 155

AD3d 1589, 1589 [4th Dept 2017]). “[I]t is within the trial

3 CPLR § 3121 provides, as pertinent here, “After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control. The notice may require duly executed and acknowledged written authorizations permitting all parties to obtain, and make copies of, the records of specified hospitals relating to such mental or physical condition or blood relationship; where a party obtains a copy of a hospital record as a result of the authorization of another party, he shall deliver a duplicate of the copy to such party. A copy of the notice shall be served on the person to be examined. It shall specify the time, which shall be not less than twenty days after service of the notice, and the conditions and scope of the examination.” 150353/2022 REYES, ISABEL vs. 1650 CORP. ET AL Page 7 of 11 Motion No. 001

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courts discretion to require a plaintiff to submit to more than

one physical examination” (Chaudhary, 83 AD3d at 478, citing

Brown v Metropolitan Transp. Auth., 256 AD2d 17, 18 [1st Dept

1998]). Still, the party seeking the additional examination

must demonstrate the necessity for it (Chaudhary, 83 AD3d at

478, citing Radigan v Radigan, 115 AD2d 466, 467 [2d Dept 1985];

see also Tucker v Bay Shore Stor. Warehouse, Inc., 69 AD3d 609

[2d Dept 2010] [finding that a further IME will not be required

where the IME physician has been provided with relevant

information despite plaintiff’s refusal to answer certain

questions]).

However, “no motion [relating to disclosure] shall be filed

with the court unless there have been served and filed with the

motion papers . . . an affirmation that counsel has conferred

with counsel for the opposing party in a good faith effort to

resolve the issues raised by the motion” (Uniform Civil Rules

for the Supreme Court and County Court [22 NYCRR] § 202.7; see

also 22 NYCRR § 202.20-f [governing disclosure disputes]).

Preliminarily, the court notes that defendants fail to

submit a satisfactory affirmation of good faith. The submitted

affirmation does not indicate whether plaintiff failed to

respond or comply with a demand for a further IME. Further, the

affirmation is devoid of the “time, place and nature of the

consultation and the issues discussed and any resolutions”

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pertaining to any alleged failure (148 Magnolia, LLC v Merrimack

Mut. Fire Ins. Co., 62 AD3d 486, 497 [1st Dept. 2009]; see also

Amato v Verizon New York Inc., 205 AD3d 406 [1st Dept 2022]).

Accordingly, the motion (seq. no. 001) to compel is denied.

In any event, the application to compel is unavailing.

Defendants fail to establish that non-party Mark Rodriguez's

advice to plaintiff -- that she refuse to answer certain

questions of the doctor who rendered the examination –-

interfered with the IME to the extent that it was no longer

meaningful (see Guerra v McBean, 127 AD3d 462 [1st Dept 2015]).

Dr. Cohen’s examination of plaintiff included a myriad of

medical information and records, and the doctor reached an

unequivocal conclusion in his report (see NYSCEF Doc. No. 28,

Dr. Cohen’s Report [citing, among other things, review of the

following medical records: report of an MRI of the lumbar spine;

MRI of the left knee; neuropsychologic test; notes from “Dr.

Apple”; evidence of physical therapy; evidence of chiropractic

care; note from “Dr. Lerman”]). Indeed, Dr. Cohen made no

indication that his opinion following the IME was affected in

any regard because he received no answer as to whether plaintiff

was admitted to the hospital because of the incident, as to

whether she was working before or after the incident, or as to

whether she underwent any surgeries prior to the incident (see

generally Kolodziejski, 155 AD3d at 1590 [finding that trial

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court properly declined to compel plaintiff to undergo a second

IME where the examining physician was able to reach a definitive

conclusion and never indicated that said conclusion was affected

by plaintiff’s failure to perform certain tests]). Finally,

defendants are not prohibited from seeking answers to these

questions in another context or form.

PLAINTIFF’S CROSS-MOTION TO STRIKE ANSWER

Where a failure or refusal to comply with an order to

disclose exists, the “court may make such orders . . . as are

just,” including “striking out pleadings or parts thereof” (see

CPLR § 3126 [3]; see also Rodriguez v United Bronx Parents,

Inc., 70 AD3d 492, 492 [1st Dept 2010] [providing: “A court may

strike an answer only when the moving party establishes ‘a clear

showing that the failure to comply is willful, contumacious or

in bad faith’” and finding failure to be willful and

contumacious where the defendant repeatedly and persistently

failed to comply with disclosure orders]).

Here, plaintiff has not established a pattern of

defendants’ willful non-compliance with discovery. To the

contrary, defendants responded to plaintiff’s post-deposition

demands, dated September 16, 2024, on January 24, 2025 (see

NYSCEF Doc. No. 39, Defendants’ Responses to Plaintiff’s Post-

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EBT Demands). Therefore, at this time, no apparent reason

exists to disturb the preference for “actions [being] resolved

on the merits whenever possible” (Catarine v Beth Israel Med.

Ctr., 290 AD2d 213 [1st Dept 2002]; see also Youwanes v ------ Steinbrech, 193 AD3d 492 [1st Dept 2021]).

Accordingly, it is

ORDERED that motion (sequence no. 001) of defendants 1650

CORP. and SILVER STAR PROPERTIES CORP. is denied entirely; it is

further

ORDERED that the cross-motion of plaintiff ISABEL REYES is

denied entirely; it is further

ORDERED that the parties shall appear for a virtual status

conference in Part 42M on May 19, 2025, at 12:00 P.M.

3/28/2025 $SIG$ DATE EMILY MORALES-MINERVA, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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