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Corteselli v Wolfe 2009 NY Slip Op 32298(U) June 3, 2009 Supreme Court, Nassau County Docket Number: 21165/08 Judge: Ute W. Lally Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SCAJ
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SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present:

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HON. UTE WOLFF LALLY.

Justice
TRIAL/IAS, PART 5 NASSAU COUNTY

CHRISTOPHER CORTESELLI,

plaintiff (s) ,
- agains
TIMOTHY WOLFE, DIANE WOLFE, JOHN SQUIRES, DORA ISRAEL, VIVIAN BARKAI, TALIA BARKAI, LESLIE WATNIK, NEIL WATNIK and SIDNEY STEIN,

MOTION DATE:4/10/09 INDEX No. 21L6S/08 MOTION SEQ. NO. 1, 2, 3 , 4

Defendant (s) .
ERIC M. PARCHMENT, an

infant, et al.
plaintiff (s) ,

Index No. 21643/08

-against-

TIMOTHY WOLFE, DIANE WOLFE, JOHN VIVIAN BARKAI, DORA ISRAEL SQUIRES TALIA BARKAI, LESLIE WATNIK, NEIL WATNIC and SIDNEY STEIN,

Defendant (s) .
STEFAN TESSLER, et al.

-against-

plaintiff (s) ,

INDEX NO.

21863/08

DIANE WOLFE and TIMOTHY WOLFE,

Defendant (s) .
The following papers read on this motion: 1-3 Notice of Motion/ Order to Show Cause. . . . . . . . . . . . 4-8 Notice of Cross Motion........................... Second Notice of Cross Motion.. . . 12Third Notice of Cross Motion. . . . . . . . . . . 15Answering Affidavits. Replying Affidavits............................. . 18-

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Corteselli v Wolfe

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Index No. 21165/08

Upon the foregoing papers, it is ordered that this motion by defendants Timothy R. Wolfe, Diane J. Wolfe and John Squires for an order pursuant to CPLR 602 (a) consolidating this action with two

other actions pend vehicle accident is are joined for tria
3211 (a) (1)

enied. In the

iS court relating to the same motor
alternative the three actions

So much of this motion
hereinafter provided.

asserted in the corteselli and

and (a) (7) dismissing the punitive Parchment actions

for an order pursuant to CPLR damages claims
is

denied as

Cross-motion by plaintiff in action #2 for an order pursuant Wolfe to to CPLR compelling defendants Timothy R. Wolfe and Diane full and provide HIPAA compliant authorizations to obtain the Hospital at complete hospital records of North Shore University
Manhasset, etc., regarding defendant Timothy R. Wolfe is granted the limited extent provided hereinafter.

Cross-motion by Dora Israel, defendant in actions #1 and #2 to CPLR 602 (a) joining said actions for trial and j oint discovery is granted.

for an order pursuant

and Cross-motion by defendants Timothy R. Wolfe, Diane Wolfe CPLR 3103, pursuant to CPLR John squires for a protective order 3122 and CPLR 4505 is denied.

The aforementioned actions were instituted arising from an 008 at 2: automobile accident which occurred on September 28, Y. where plaintiffs were m. on South Road in Sands point, N.
passengers in a vehicle driven by Timothy R. Wolfe and owned by his mother, Diane Wolfe. Timothy and his mother are defendants in

R. Wolfe hosted parties at their homes/residences at which Timothy was present and allegedly consumed alcohol and/or drugs. Defendant John Squires is the husband of Diane Wolfe. Plaintiffs allege that defendant Timothy R. Wolfe, who had a junior (restricted) license on the date of the accident, operated his vehicle, in violation of drugs, in a said license, while under the influence of alcohol and

three actions. The

remaining defendants

allegedly owned

and/or

all

negligent and careless manner,

at an excessive rate of speed
as a

causing the vehicle to leave the roadway and strike a tree result of which plaintiffs sustained serious inj ury.
There are presently a motion and three cross motions the court which shall be treated seriatim.

before

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corteselli v Wolfe

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Index No. 21165/08

Each of the three actions sought to be joined has its genesis in a single motor vehicle accident. It is well established that the question of whether to direct to CPLR 602 (a) rests within the sound (Skelly v Sachem Cent. School Dist., discretion of the trial court 309 AD2d 917 (200 Dept. 2003)). Where there are common questions of law or fact, a j oint trial is warranted unless the opposing party

a joint trial pursuant
demonstrates prejudice to a substantial right Inc.,

(Perini

Corp.

v WDF,

33 AD3d 605, 606

Dept. 2006)).

Review of the record indicates that the interests of justice and judicial economy would be best served by consolidation of the Corteselli action, for the purpose of joint of trial (CPLR 602 (a) ; Dept. 2007)), with the two 39 AD3d 720, 722 Nigro v Pickett,

actions pending

under index numbers 021643/08
trial,

and 021863/08

respectively. All three actions involve common questions of law

intact, will avoid unnecessary duplication of proceedings, save unnecessary costs and expenses and prevent the injustice which
would result from divergent decisions based on the same facts

fact and a j oint

while leaving the individual actions
45 AD3d 540

and

Edwards v Ultimate Services, Inc., Dept. 2006)). When the common 26 AD3d 464, 465 Gutman v Klein, met, it lies in the court' s discretion question standard has been
to choose between an order of consolidation or one for

Dept. 2007);

(Mas-

j oint trial.

would consolidation, he has failed to establish that a (Mattia v Food Emporium, Inc., 259 prejudice a substantial right AD2d 527 (2 Dept. 1999)). Plaintiffs in actions #1 and #2 assert identical causes of action against the same defendants. Plaintiffs
in action #3 assert the same negligence claims vis vis

While plaintiff Eric

M. Parchment opposes

j oint trial

the

request for

ownership

and operation of the vehicle driven by defendant Timothy R. Wolfe but assert no claims against defendants Dora Israel, Vivian Barkai, Talia Barkai, Leslie Watnik, Neil watnik and Sidney Stein regarding the provision and/or use of alcohol/drugs. It is beyond cavil that all three actions involve the same essential facts and will require determination of common issues. The trial court, with appropriate management and control of the trial, the speculative fears of jury confusion and the possibility of inadequate consideration of the causes of action against Dora Israel and the other defendants in #3, will be #2, who are not present in

obviated.
actions #1 and

action

Compensatory damages are intended to insure that the victim of wrongdoing receives fair and just compensation commensurate with

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Index No. 21165/08

designed to compensate the injured party but to

the injury sustained. Punitive damages, on the other hand, are not the

deter the wrongdoer and others 8 NY3d (Ross v Louise Wise Services, Inc., damages arise in the Generally, demands for puni ti ve

tort feasor and

punish similarly situated 478, 489 (2007)).
context of prosecution.

intentional torts such as fraud, libel or malicious Conduct warranting an award of punitive damages, however, need not be intentionally harmful but may consist of acts which constitute

willful or wanton negligence or

(Randi A. J. v Long Dept. 2007)). Punitive 46 AD3d 74, 80- 81 Island Surgi- Center, evince (s) a damages are permitted when the defendant' s wrongdoing n (s) such wanton high degree of moral turpitude and demonstrate
recklessness

dishonesty as
obligations"

to imply

a

criminal indifference
10 NY2d 401, 405

(Walker v Sheldon,

(1961).

to

civil

case basis that each situation must be considered on a case by Dept. 2003)), whether 2 AD3d 1133, 1134 (Trudeau v Cooke, the requisite wanton and reckless defendant driver engaged in conduct, in addition to drug or alcohol induced impairment, so as
to warrant the imposition of punitive damages, is a decision which is best reserved for the trier of fact based upon evidence at trial and the inferences reasonably drawn therefrom.

Although cognizant that well settled precedent instructs that ti ve damages, and intoxication alone does not open the door for puni

Notwithstanding the

Wolfe defendants

assertion that

the

prior to the accident, the evidence on which they

evidence establishes that Timothy did not consume alcohol or drugs e., a single page of an eleven page report does not conclusively resolve fact. this issue which remains for determination by the trier of
To the extent that the claims asserted against defendant Diane J. Wolfe are based upon her status as owner of the vehicle driven by her son Timothy she is only vicariously liable for the damages allegedly suffered by the plaintiffs. As such, she cannot be liable 28 AD3d 715 (Hale III v Sal tamacchia for punitive damages

rely, i.

Dept.

Dept. 14 AD3d 498, 499 Connor v Kuzmicki, Corteselli and 2005) ). To the extent that the complaints in the
2006); 0'

Parchment actions, however, may be read to assert independent acts of negligence on the part of Timothy s mother and her husband in

permitting him to

restrictions on his license, the issue reserved for the trier of fact.

operate the vehicle

in violation of the

of punitive

damages is

Generally the test for disclosure pursuant to CPLR

3101 is

whether the information sought is material and necessary. The test

.;,

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Index No. 21165/08

(a) requires 3101 21 NY2d 403, 406 (1968)). CPLR the full disclosure of all evidence material and necessary to prosecution or defense of an action, regardless of the burden of Dept. 2008)). 49 AD3d 865, 866 (Weber v Ryder TRS, Inc., proof

is one of

relevance, usefulness and reason Co.,

(Allen v Cromwell-

Collier Pub.

It is the opinion of this court that defendant Timothy accident is in Wolfe s physical condition at the time of

potential discovery. A party seeking
discovery may be precluded where

controversy within the meaning of CPLR 3121

to inspect a defendant' s

(a) and thus subject to
s medical

the

medical records must first demonstrate that the defendant' or physical condition is in controversy within the meaning of CPLR
3121 (a). Even where this preliminary burden has been

the

satisfied, information sought is
3101 (b)

privileged and thus exempt from disclosure pursuant to CPLR Dept. 2004)). 5 AD3d 739, 740 (Lombardi v Hall,

Here, the information sought, medical records from North University Hospital and from other emergency medical professionals who treated defendant Timothy at the scene of the
Dillenbeck v Hess,

Shore

within the scope of the physician- patient privilege (CPLR 4504; 73 NY2d 278 (1989)). A litigant, however, will or be deemed to have waived the privilege when, in bringinghis defending a personal injury action, he affirmatively places of medical or physical condition in issue either by waythe complained of by

accident, falls

counterclaim or

plaintiff

(Kourp v Smith,

the conduct to excuse NY2d 287, 294 (1969)). The waiver does 25

not occur automatically in every instance where a party is condition is to defend an action in which his physical or mental simply put in controversy. Rather, a defendant must do more than deny the allegations in the complaint. He must affirmatively assert

forced

excuse the condition either by way of counterclaim or to379, 381 the 20 AD3d
conduct complained of (Bongiorno v Livingston,

Dept. 2005)).

I s view , waived Defendant Timothy R. Wolfe has, in the court the physician- patient privilege solely with respect to North Shore University Hospital medical records regarding the results of drug accident, and and alcohol tests administered on the night of the the records of emergency medical professionals who treated him atpage
scene of the accident, by submitting and relying upon a single of an eleven page report from the hospital' s laboratory to support the his defense that he had not consumed drugs or alcohol prior to
accident. As set forth in

medical party should not be permitted to affirmatively assert a ... in defending against liability condition in seeking damages or

Dillenbeck v Hess

(supra

at p. 287) "

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Index No. 21165/08

while simultaneously

relying on

As such

plaintiff relationship as a sword to thwart the opposition in efforts to uncover facts critical to disputing the party' s claim. the Wolfe ' defendants shall execute HIPAA compliant authorizations and provide same to plaintiffs within twenty (20) days after service of a copy of this order with notice 0 entry upon their attorney.

the confidential physicianits

Dated:

3 'l009

ENTERED
JUN 0 5

2009

NASSAU COUNT COUNTY CLERK'

Ofl



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