Opinion
No. 2010–1266 Q C.
2011-12-30
Gwendolyn SULLIVAN and Carl Sullivan, Appellants, v. 40/40 CLUB, Desiree Gonzalez, Claire F. Perlman, c/o Adams & Company, LLC, Toni P. Young c/o Young Conway Stargatt & Taylor, LLP, as Trustee of the Trust Under the Last Will and Testament of Helen Field, Robert M. Belson, Nancy S. Marx, Elias Savada, Andrew J. Tunick, Trustee U/W of Helene Rosenthal, Jean Ruth Also Known as Jean F. Ruth, Toni P. Young As Known as Toni E. Perlman Young, Barbara R. Kurtin, Richard Lippner, Philip Ruth, Janet Birnbaum, Ellen Siev, as Trustee U/D/T for Joseph E. Belson, Ellen Siev, as Trustee U/D/T for Laura T. Belson, Morton Savada and Ernest Adler, as Trustees under the last will and testament of Gertrude Leight, deceased, for Janet Birnbaum, Robert Belson, Elias Savada, Alan J. Savada, Nancy Marx, Daniel Savada and Shira Savada, Richard S. Birnbaum, as Trustee for the benefit of Ronald Aaron Birnbaum, Alan J. Savada, Daniel Savada, Shira Savada, Joseph E. Belson, Laura T. Belson, Ronald Aaron Birnbaum, Thoa, LLC, c/o Toni Young, Sitori, LLC, c/o Corporation Service Company, SK 1115 Broadway, LLC, c/o Robert Horan, JP 1115 Broadway, LLC, c/o Adams & Company, LLC, Perlman Family Partners, LLC, c/o Adams & Co., Real Estate, TPY 1115 Broadway, LLC, c/o Stargatt & Young Conway Taylor, LLP, DP 1115 Broadway, LLC, c/o Diane Pachetti, The Alan J. Savada Revocable Trust c/o Casa Bocca Di Leone, John “Doe”, “Jane Doe” and Other Unknown, Unnamed Employees of 40/40 Club, Respondents. 40/40 Club and Desiree Gonzalez, Third–Party Plaintiffs, All Season Protection Services, Inc., Third–Party Defendant.
Present: PESCE, P.J., RIOS and STEINHARDT, JJ.
Appeals from orders of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered March 4, 2010 and May 20, 2010, respectively. The order entered March 4, 2010, insofar as appealed from, granted the branch of defendants' motion seeking to preclude plaintiffs from offering evidence at trial, based on plaintiffs' failure to comply with an order entered April 27, 2009. The order entered May 20, 2010 denied plaintiffs' motion for leave to renew and reargue their opposition to the branch of defendants' prior motion seeking to preclude, granted defendants' cross motion for leave to reargue and, upon reargument, adhered to the prior determination granting the branch of defendants' motion seeking to preclude plaintiffs from offering evidence at trial, and granted the branch of defendants' motion seeking summary judgment dismissing the complaint. The appeal from the May 20, 2010 order is deemed to be from a judgment of the same court entered July 27, 2010 dismissing the complaint (see CPLR 5501[c] ).
ORDERED that the appeal from the order entered March 4, 2010 is dismissed; and it is further,
ORDERED that the judgment is modified by vacating so much of the judgment as dismissed the complaint as against defendants 40/40 Club, Desiree Gonzalez, John “Doe,” “Jane Doe,” and “Other Unknown, Unnamed Employees of 40/40 Club” and by reinstating the complaint against these defendants; so much of the order entered May 20, 2010 as, upon reargument, granted the branch of defendants' cross motion seeking summary judgment dismissing so much of the complaint as is against defendants 40/40 Club, Desiree Gonzalez, John “Doe,” “Jane Doe,” and “Other Unknown, Unnamed Employees of 40/40 Club is vacated, and this branch of defendants' cross motion is denied; and so much of the order entered May 20, 2010 as, upon reargument, adhered to the prior determination granting the branch of defendants' motion seeking to preclude plaintiffs from offering evidence at trial is vacated and this branch of defendants' motion is denied; as so modified, the judgment is affirmed, without costs.
The appeal from the order entered March 4, 2010 must be dismissed as that order was superseded by the order entered May 20, 2010. In any event, the right of direct appeal from an intermediate order terminates upon the entry of judgment ( see Matter of Aho, 39 N.Y.2d 241, 248 [1976] ).
Plaintiffs commenced this action in Supreme Court, Queens County, to recover for injuries that resulted when, early in the morning of September 25, 2005, while they were patronizing defendant 40/40 Club (Club), located at 6 West 25th Street, New York, New York (the Premises), plaintiff Gwendolyn Sullivan was allegedly assaulted by an employee or employees of the Club. Defendants denied liability. After plaintiffs had provided some responses to defendants' disclosure demands, the action was transferred to the Civil Court pursuant to CPLR 325(d).
Defendants subsequently moved for, among other things, an order compelling discovery. By order entered April 27, 2009, the Civil Court (Rudolph E. Greco, Jr., J.) directed plaintiffs to respond to seven discovery demands within 45 days, failing which, the order stated, “plaintiff[s] will be precluded from offering evidence at trial as to those items demanded.” Thereafter, plaintiffs served responses to the demands.
Defendants then moved, pursuant to CPLR 3126, to dismiss the complaint, based on plaintiffs' alleged failure to comply adequately with the April 27, 2009 discovery order, to preclude plaintiffs from offering evidence at trial, and, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against the “out-of-possession defendants.” In support of the branch of their motion seeking summary judgment, defendants submitted an affidavit by defendant Desiree Gonzalez, who stated that she was the director of operations for Twenty Ones, Inc., the entity which owned, managed and operated defendant Club. Gonzalez asserted that, as of the date of the incident in issue, those defendants named in the complaint who were landlords of the Premises were not in possession of the Premises, did not operate, or exercise control or supervision over the Club or the Premises, did not employ any persons working at the Premises, and did not manage, control, hire or train any persons working at the Premises. Although defendants challenged the completeness of plaintiffs' responses to the court-ordered discovery, they did not raise an issue as to its timeliness. Plaintiffs opposed defendants' motion.
By order entered March 4, 2010, the Civil Court (Terrence C. O'Connor, J.) granted defendants' motion only to the extent of granting the branch of defendants' motion seeking to preclude, on the ground “that the responses were not produced within 45 days.” The court denied, as premature, the branch of the motion seeking summary judgment dismissing the complaint as against the out-of-possession defendants.
Plaintiffs moved for leave to renew and reargue their opposition to defendants' prior motion and, upon such renewal, to, in effect, deny the branch of defendants' prior motion seeking preclusion. Defendants cross-moved for leave to reargue and to clarify the order of March 4, 2010 and, in the event that plaintiffs were precluded from presenting evidence at trial as to liability and damages, for summary judgment dismissing the complaint in its entirety on the ground that plaintiff could not prove a prima facie case. In plaintiffs' motion papers, plaintiffs' attorney noted that plaintiffs had responded to the Civil Court's discovery order within 45 days of defendants' service thereof with notice of entry, and that defendants had not raised the timeliness of their response as an issue, and argued that, in fact, plaintiffs' response had been timely. Defendants asserted that plaintiffs' responses had been incomplete.
By order entered May 20, 2010, the Civil Court (Terrence C. O'Connor, J.), finding that plaintiffs' responses to defendants' discovery demands three, four and five, referenced in the April 27, 2009 order had been inadequate, denied plaintiffs' motion, granted defendants' cross motion for leave to reargue and, upon reargument, adhered to the prior determination to preclude plaintiffs from offering evidence at trial, albeit on different grounds, to wit, that the responses were inadequate, and granted the branch of defendants' cross motion seeking summary judgment dismissing the complaint as against all defendants. A judgment dismissing the complaint was entered on July 27, 2010 pursuant to the May 20, 2010 order.
In its order of May 20, 2010, the Civil Court focused on three discovery demands which defendants had claimed were inadequately responded to by plaintiffs. We find that plaintiffs adequately responded to those demands, except to defendants' demand for plaintiffs' social security numbers. Plaintiffs failed to provide their social security numbers and responded instead that the numbers were privileged.
Social security numbers constitute information of a confidential and private nature ( see generally Bibeau v. Cantiague Figure Skating Club, 294 A.D.2d 525 [2002] ), and thus, we find, they are “generally not discoverable in the absence of a strong showing that the information is indispensable” (Saratoga Harness Racing v. Roemer, 274 A.D.2d 887, 889 [2000] ). Here, defendants failed to make any showing that the social security numbers were indispensable to them in order to obtain information necessary for their defense. Rather, our review of the record shows that plaintiffs provided substantial discovery to defendants, which included a bill of particulars, HIPAA-compliant authorizations for defendants to obtain plaintiff Gwendolyn Sullivan's hospital and medical records, a copy of plaintiff Gwendolyn Sullivan's hospital records for the incident in issue, black and white as well as color photographs of the injuries complained of, the names and addresses of the witnesses to the incident in issue who were known to plaintiffs, and a HIPAA-compliant authorization to obtain records of plaintiff Gwendolyn Sullivan's wages and attendance from her employer. Defendants' demand for plaintiffs' social security numbers was accompanied neither by a demand for authorizations to obtain any documents identifiable only by reference to such numbers, nor by any other showing of relevance or necessity. Thus, we conclude that defendants' demand for plaintiffs' social security numbers “sought irrelevant information, or [was] overbroad and/or burdensome”(Accent Collections, Inc. v. Cappelli Enters., Inc., 84 AD3d 1283, 1284 [2011];see also Otto v. Triangle Aviation Servs., 258 A.D.2d 448, 449 [1999] ), and was, under the circumstances presented, palpably improper. Therefore, on this record, defendants were not entitled to obtain discovery of plaintiffs' social security numbers, despite plaintiffs' failure to make a timely objection to that demand.
Since plaintiffs furnished to defendants all the disclosure they had been ordered to provide, except that which was, under the circumstances, palpably improper, we conclude that it was error to find plaintiffs to be in noncompliance with the order entered April 27, 2009, to preclude plaintiffs from offering evidence at trial, and, on that basis, to award summary judgment dismissing the complaint as against defendants 40/40 Club, Desiree Gonzalez, John “Doe,” “Jane Doe,” and “Other Unknown, Unnamed Employees of the 40/40 Club.” So much of the order entered May 20, 2010 as, upon reargument, precluded plaintiffs from offering evidence at trial, and as granted summary judgment as against defendants 40/40 Club, Desiree Gonzalez, John “Doe,” “Jane Doe,” and “Other Unknown, Unnamed Employees of the 40/40 Club” based on the order of preclusion, is, accordingly, vacated, and those branches of defendants' motion which sought to preclude plaintiffs from offering evidence at trial and sought an award of summary judgment dismissing the complaint based on an order of preclusion are denied. We vacate so much of the judgment as dismissed the complaint as against defendants 40/40 Club, Desiree Gonzalez, John “Doe,” “Jane Doe,” and “Other Unknown, Unnamed Employees of the 40/40 Club,” and reinstate the complaint as against them.
In their application for summary judgment dismissing the complaint against the “out-of-possession defendants,” defendants presented substantial evidence that, as of the date of the incident in issue, those defendants, whom Gonzalez identified as “CLAIRE F. PERLMAN, c/o ADAMS & COMPANY, LLC, TONI P. YOUNG c/o YOUNG CONAWAY STARGATT & TAYLOR, LLP, as Trustee of the Trust Under the Last Will and Testament of HELEN FIELD, ROBERT M. BELSON, NANCY S. MARX, ELIAS SAVADA, ANDREW J. TUNICK, Trustee U/W of HELENE ROSENTHAL, JEAN RUTH a/k/a JEAN F. RUTH, TONI P. YOUNG a/k/a TONI E. PERLMAN YOUNG, BARBARA R. KURTIN, RICHARD LIPPNER, PHILIP RUTH, JANET BIRNBAUM, ELLEN SIEV, as Trustee U/D/T for JOSEPH E. BELSON, ELLEN SIEV, as Trustee U/D/T for LAURA T. BELSON, MORTON SAVADA and ERNEST ADLER, As Trustees under the last will and testament of GERTRUDE LEIGHT, deceased, for JANET BIRNBAUM, ROBERT BELSON, ELIAS SAVADA, ALAN J. SIRVADA, NANCY MARX, DANIEL SAVADA and SHIRA SAVADA, RICHARD S. BIRNBAUM, as Trustee for the benefit of RONALD AARON BIRNBAUM, ALAN J. SAVADA, DANIEL SAVADA, SHIRA SAVADA, JOSEPH E. BELSON, LAURA T. BELSON, RONALD AARON BIRNBAUM, THOA, LLC, c/o TONI YOUNG, SITORI, LLC, c/o Corporation Service Company SK 1115 BROADWAY, LLC, c/o ROBERT HORAN, JP 1115 BROADWAY, LLC, c/o YOUNG CONWAY STARGATT & TAYLOR, LLP, DP 1115 BROADWAY, LLC, c/o DIANE PACHETTI, THE ALAN J. SAVADA REVOCABLE TRUST c/o CASA BOCCA DI LEONE,” neither had possession of the Premises, nor operated, exercised control over or supervised the Premises, nor employed any persons on the premises, nor supervised, managed, controlled, hired or trained any persons working at the Premises. This constituted a prima facie showing of these defendants' entitlement to summary judgment dismissing the complaint as against them. As plaintiffs failed to raise a triable issue of fact ( see Gordon v. Foster Apts. Group, 260 A.D.2d 540 [1999];Borelli v. 1051 Realty Corp., 242 A.D.2d 517 [1997] ), we leave undisturbed so much of the Civil Court's order as granted the branch of defendants' motion seeking summary judgment dismissing the complaint insofar as it is against these defendants.