SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU. ------------ -X LAUREN ANDERSEN, Index No.: 602687/2015 -against- Plaintiff, NOTICE OF MOTION The NORTH SHORE LONG ISLAND JEWISH HEALTHCARE SYSTEM'S ZUCKER HILLSIDE HOSPITAL, JOSEPH M. SCHULMAN, DR. ALAN J. MENDELOWITZ, DR. PAUL PANKAL, DR. LYUDMILA KARLIN, DR. HARSIMRAN BRAR, DR. LAUREN HANNA, NURSE CATHERIN AMES, NURSE SOOSAMMA KOMPANCARIL, NURSE ABRAHAM LOPEZ, PSYCHOLOGIST SHVETA MITTAL, JOHN and JANE DOES #1-10, UNITEDHEALTH GROUP, INC., ------------------------------------------------------X Defendants. PLEASE TAKE NOTICE that, upon the annexed affirmation of GRAHAM T. MUSYNSKE, the exhibits annexed hereto, and upon the prior proceedings heretofore had herein, defendants ZUCKER HILLSIDE HOSPITAL s/h/a "The NORTH SHORE LONG ISLAND JEWISH HEALTHCARE SYSTEM'S ZUCKER HILLSIDE HOSPITAL," (hereinafter "Zucker Hillside Hospital"), JOSEPH M. SCHULMAN, DR. ALAN J. MENDELOWITZ, PAUL PANAKAL s/h/a "DR. PAUL PANKAL", DR. LYUDMILA KARLIN, DR. HARSIMRAN BRAR, DR. LAUREN HANNA, CATHERINE AMES s/h/a "NURSE CATHERIN AMES," SOOSAMMA KOMPANCARIL s/h/a "NURSE SOOSAMMA KOMPANCARIL", ABRAHAM LOPEZ s/h/a "NURSE ABRAHAM LOPEZ," and SHVETA MITTAL s/h/a "PSYCHOLOGIST SHVETA MITTAL" by their attorneys HEIDELL, PITTONI, MURPHY & BACH, LLP will move this Court at 100 Supreme Court Drive, Mineola, New York 11501on the 1781 day of January, 2019 at 9:30 a.m., or as soon as counsel may be heard for an Order: 1 of 9
a. Dismissing this action, with prejudice, pursuant to CPLR 3126 for plaintiff's willful failure to comply with a Court Order; and b. Pursuant to CPLR 8106 awarding moving defendants costs for having to make the instant motion; and d. For such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214, answering affidavits, if any, are required to be served upon the undersigned no later than two (2) days prior to the return date of this motion. Dated: Garden City, New York January 3, 2019 Yours, etc., HEIDELL, PITTONI, MURPHY & BACH, LLP yia E-FILE By: A ½f)F) GRAHAM T. MUSYNSKE Attorneys for Defendants ZUCKER HILLSIDE HOSPITAL, JOSEPH M. SCHULMAN, DR. ALAN J. MENDELOWITZ, PAUL PANAKAL, DR. LYUDMILA KARLIN, DR. HARSIMRAN BRAR, DR. LAUREN HANNA, CATHERINE AMES, SOOSAMMA KOMPANCARIL, ABRAHAM LOPEZ, and SHVETA MITTAL Office & P.O. Address 1050 Franklin Avenue Garden City, NY 11530 (516) 408-1600 and Certified Mail TO: Lauren Andersen Plaintiff Pro Se c/o SaneRights Box 500 1 Main Street Cold Spring Harbor, New York 11724 2 2 of 9
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW NASSAU -------------------------- ---- ---X LAUREN ANDERSEN, Index No.: 602687/2015 -against- Plaintiffs, ATTORNEY AFFIRMATION The NORTH SHORE LONG ISLAND JEWISH HEALTHCARE SYSTEM'S ZUCKER HILLSIDE HOSPITAL, JOSEPH M. SCHULMAN, DR. ALAN J. MENDELOWITZ, DR. PAUL PANKAL, DR. LYUDMILA KARLIN, DR. HARSIMRAN BRAR, DR. LAUREN HANNA, NURSE CATHERIN AMES, NURSE SOOSAMMA KOMPANCARIL, NURSE ABRAHAM LOPEZ, PSYCHOLOGIST SHVETA MITTAL, JOHN and JANE DOES #1-10, UNITEDHEALTH GROUP, INC. aka UNITED HEALTHCARE COMMUNITY PLAN, Defendants. ------------------------------------ --------X GRAHAM T. MUSYNSKE, an attorney duly admitted to practice law before the Courts of the State of New York and an associate of the firm HEIDELL, PITTONI, MURPHY & BACH, LLP, hereby affirms that the following statements are true, or if stated upon information and belief, that I believe them to be true under the penalty of perjury: 1. I am an associate with the law firm of HEIDELL, PITTONI, MURPHY & BACH, LLP, attorneys for defendants ZUCKER HILLSIDE HOSPITAL s/h/a "The NORTH SHORE LONG ISLAND JEWISH HEALTHCARE SYSTEM'S ZUCKER HILLSIDE HOSPITAL," JOSEPH M. SCHULMAN, DR. ALAN J. MENDELOWITZ, PAUL PANAKAL s/h/a "DR. PAUL PANKAL", DR. LYUDMILA KARLIN, DR. HARSIMRAN BRAR, DR. LAUREN HANNA, CATHERINE AMES s/h/a "NURSE CATHERIN AMES," SOOSAMMA KOMPANCARIL s/h/a "NURSE SOOSAMMA KOMPANCARIL", ABRAHAM LOPEZ s/h/a "NURSE ABRAHAM LOPEZ," and SHVETA MITTAL s/h/a "PSYCHOLOGIST SHVETA 3 of 9
MITTAL", (hereinafter collectively referred to as "defendants") in the above-captioned action, and I am fully familiar with the facts and circumstances of this matter by virtue of my review of the file materials maintained by the aforementioned law firm for the defense of this action and my participation in this litigation. 2. This affirmation is submitted in support of the motion by defendants for an Order: a. Dismissing this action, with prejudice, pursuant to CPLR 3126 for pro se plaintiff's willful failure to comply with a Court Order; and b. Pursuant to CPLR 8106 awarding moving defendants costs for having to make the instant motion; and d. For such other and further relief as this Court deems just and proper. 3. The following exhibits are attached in support of this motion: Exhibit A: Order signed by Honorable Leonard D. Steinman, J.S.C. on December 19, 2018, duly entered in the Office of the Clerk of the Court on December 20, 2018, and Served with Notice of Entry on December 20, 2018 Exhibit B: Copy of Correspondence sent by pro se Plaintiff, Lauren defendants' Andersen, dated December 21, 2018 and response same; and to Exhibit C: Copy of Correspondence sent by pro se Plaintiff, Lauren Andersen, dated December 31, 2018. BACKGROUND 4. Plaintiff's allegations stem from events following her June 12, 2011, attempt to travel from JFK Airport to the United Kingdom without a passport. Plaintiff, Lauren Andersen, was denied travel that day, after which she demanded to speak to the media to voice her objections. The police were called and plaintiff was designated an "EDP" (Emotionally Disturbed Person). Plaintiff was transferred to the Emergency Department of Long Island Jewish Medical Center where she underwent a complete psychiatric evaluation. Plaintiff was 2.. 4 of 9
emergently admitted to Zucker Hillside Hospital on June 12, 2011, for inpatient psychiatric care, and thereafter involuntarily committed until discharge on June 30, 2011. 5. In the interest of judicial economy, the procedural history of this matter was adequately outlined in defendants' underlying motion dated November 12, 2018, and will not be detailed herein. After consideration of the papers presented by defendants and pro se plaintiff, this Court issued an Order on December 19, 2018, directing plaintiff to serve within ten (10) days of the filing of the Order with Notice of Entry authorizations for the individuals and entities listed in footnote one¹ of the decision; that "upon further application of the defendants and proof of plaintiff's failure to adhere to the order herein, the complaint may be dismissed, or the court may grant other appropriate relief (including the award of counsel fees)"; and any relief requested not specifically addressed was denied. 6. The Order of Judge Steinman was entered with the Clerk of the Court on December 20, 2018, and the Order with Notice of Entry was e-filed on December 20, 2018. See Exhibit A. 7. On December 21, 2018, plaintiff e-filed correspondence to the Court requesting an extension of time to comply with the Court's December 19, 2018 Order. That same day defendants filed correspondence objecting to any such extension. See Exhibit B. The Court did not grant plaintiff an extension of time to comply with Judge Steinman's Order; therefore, the ten (10) days within which plaintiff was to provide numerous long-awaited authorization expired as of December 31, 2018. Your affirmant waited until today, January 3, 2019, in order to I The Footnote indicated the following providers: Memorial Sloan-Kettering Cancer Center, St. Francis Hospital, CVS Pharmacy, Howard Kirschen M.D., Phyllis Edelheit M.D., Andrea Carlsen M.D., United Healthcare Insurance Company, Center for Medicare and Medicaid Services, United Health Group, British Airways, New York State Office of Mental Health, Office of Professional Medical Conduct, NYS Commission of Quality of Care & Advocacy for Persons with Disabilities, U.S. Department of Health and Human Services, New York Police Department, The Port Authority of New York, The Port Authority of New Jersey, New York State Education Department, The White House, New York Attorney General's Office, and Federal Bureau of Investigation. 3 5 of 9
determine if such authorizations had been mailed as per this Court's Order. As of the filing of this motion, the discovery was not received, and therefore, plaintiff did not comply with this Court's Order and dismissal is warranted. 8. On December 31, 2018, plaintiff e-filed correspondence to the Court wherein she indicated, in relevant part: "I don't believe it was the intent of HIPAA authorizations to give some anonymous government agency a license for a fishing expedition. And I refuse to grant any HIPAA authorizations in the absence of complete disclosure about who is asking for my privileged information, where it is really going and how it is going to be used. I also refuse to grant them in the absence of iron-clad guarantees that there will be no further up." leaks, given that they have already committed huge leaks that they refused to clean 9. In her December 31, 2018, communication with this Court, plaintiff made her position clear--she will not provide defendants with authorizations allowing the release of records pertaining to her medical and psychiatric care, records entirely relevant to her claims in this case. Plaintiff has long defied the Order of Judge Parga and made clear that she will continue to do so despite any Order by this Court. Now plaintiff takes the further position that she can refuse to comply with the Order of Judge Steinman pertaining to the same authorizations and records. Plaintiff's willful failure to participate in discovery and comply with Court Orders not only causes the expenditure of time and resources, but makes a mockery of the judicial process. 10. Given plaintiff's communication to both Court and Counsel that she will not provide authorizations within the ten (10) days provided by Judge Steinman, and in light of the Court's December 19* Order, defendants move this Court again seeking a well-deserved dismissal of plaintiff's Complaint, and all other appropriate relief. 4 6 of 9
ARGUMENT L PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED PURSUANT TO THE CPLR AND THIS COURT'S DECEMBER 19, 2018 ORDER 11. CPLR 3126 provides that a Court can dismiss an action in the event that a party "refuses to obey an order for disclosure or willfully fails to disclose information which the Court finds ought to have been disclosed." See also Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87 (1999) (reiterating same). The Court of Appeals has held that "when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint." Id. The Court further held that: If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically just,' provided that a 'court may make such orders... as are including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully. Id. at 123. 12. In fact, when a party, by his or her conduct, frustrates the disclosure scheme provided by the CPLR, dismissal of the pleading is within the broad discretion of the Trial Court. See, e.g. Ranfort v. Peak Tours, Inc., 250 A.D.2d 747 (2d Dep't 1998). The Second Department has justified striking pleadings in cases where there is a pattern of noncompliance and lack of an excuse. See Estaba v. Quow, 101 A.D.3d 940 (2d Dep't 2012). Such action is also warranted where the party's action is "deliberate and contumacious." Carbajal v. Bobo Robo, Inc., 38 A.D.3d 820 (2d Dep't 2007); see also Sowerby v. Camarda, 20 A.D.3d 411 (2d Dep't 2005). In Sowerby, the Second Department affirmed dismissal of a plaintiff's Complaint. Id. The Sowerby Court found that plaintiff's willful and contumacious character could be inferred from his repeated failures to comply with the court's orders, as well as the absence of any explanation 5 7 of 9
offered to excuse his failures to comply. Id. Similarly, in Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., the Second Department upheld dismissal of plaintiff's complaint because plaintiff's failure to comply with court-ordered discovery was willful and contumacious. 127 A.D.3d 680 (2d Dep't 2015). The Brandenburg Court found that the willful and contumacious nature of plaintiff's conduct could be inferred from his repeated failures, without an adequate excuse, to comply with the plaintiffs' discovery demands and court-ordered discovery schedules. Id. at 681. 13. In this case, plaintiff's non-compliance and willful refusal to follow the Court's directives is beyond obvious. Plaintiff intentionally, willfully, and repeatedly refuses to comply with Court-Ordered discovery and comport herself professionally. Plaintiff has refused to provide meaningful discovery, despite defendants' demands, Judge Parga's Order, instructions given during numerous Court conferences, and, most recently, the December 19, 2018 Order by Judge Steinman. 14. As was made clear in defendants' underlying papers, and made even more obvious by plaintiff's subsequent conduct and correspondence--this is not a case in which a plaintiff has neglected to respond to discovery demands, or even promised a response and then failed to deliver. Plaintiff has made clear, repeatedly and brazenly that she has no intention of disclosing patently discoverable, Court-ordered, treatment records and documents pertaining to her medical and mental health care. By bringing this action, plaintiff has placed these issues front and center, making disclosure of all relevant records essential to the claims brought. Plaintiff's behavior is a case study in willful and contumacious interference with and obstruction of discovery, for which dismissal of this case is entirely warranted. This Court should suffer plaintiff's flagrant disrespect for the process no longer. 6 8 of 9
15. In light of plaintiff's willful and contumacious failure to comply with this Court's Orders, most recently seen in her December 31, 2018 correspondence (the date on which plaintiff was to comply with Court-Ordered discovery), defendants respectfully request an Order in furtherance of the Court's December 19, 2018 Order and pursuant to CPLR 3126, dismissing plaintiff s Complaint, with prejudice. 16. Moreover, in light of plaintiff s continued willful, contumacious, and downright contemptuous behavior, it is respectfully requested this Court grant defendants costs as permitted by CPLR 8106. Plaintiff s failure to comply with Court-Ordered discovery within the ten (10) days allowed by Judge Steinman has resulted in a further waste of time and judicial resources. Plaintiff s conduct has required calling numerous Court appearances for Compliance and Motion Conferences, and unnecessary and pointless litigation, making the award of costs entirely justified. WHEREFORE, for the reasons stated above, it is respectfully requested the Court issue an Order: (a) Dismissing this action, with prejudice, pursuant to CPLR 3126 for plaintiff's willful failure to comply with the Court's Order; and (b) Pursuant to CPLR 8106 awarding defendants costs for having to make the instant motion; and (c) for such other and further relief as this Court deems just and proper. Dated: Garden City, New York January 3, 2019 GRAHAM T. MUS KE 7 9 of 9