Prigarina v. Shain

Prigarina v Shain 2025 NY Slip Op 31213(U) April 10, 2025 Supeme Court, New York County Docket Number: Index No. 100138/2022 Judge: Lynn R. Kotler 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.

FILED: NEW YORK COUNTY CLERK 04/10/2025 04:44 PM INDEX NO. 100138/2022 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 04/10/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYNN R. KOTLER PART 08 Justice -------------------X INDEX NO. 100138/2022 VIKTORIA PRIGARINA, 07/12/2024, 10/29/2024, Plaintiff, MOTION DATE 02/10/2025 -v- MOTION SEQ. NO. 005 008 009 LEESHAIN, DECISION + ORDER ON Defendant. MOTION -------------------X The following e-filed documents, listed by NYSCEF document number (Motion 005) 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34,67,68, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80,81,82,83,84,85,86,87,88,89,90 were read on this motion to/for DISMISSAL

The following e-filed documents, listed by NYSCEF document number (Motion 008) 62, 63, 64, 65, 91 were read on this motion to/for SEAL

The following e-filed documents, listed by NYSCEF document number (Motion 009) 92, 93, 94, 95, 96, 97,98,99 were read on this motion to/for SEAL

Upon the foregoing documents, this motion is decided as follows. Pro se plaintiff,

Viktoria Prigraina ("Prigarina"), is suing defendant Lee Shain ("Shain") for negligence and seeks

damages in the amount of $4,000,000 with interest from July 15, 2007 plus punitive damages. In

conclusory fashion, plaintiff alleges in her complaint, inter alia, that defendant improperly

treated her from 2003-2019, and thereby breached a fiduciary duty, breached an unspecified

contract, committed fraud, violated state protection statutes, violated "the standard of care in

terms of negligently diagnosing and treating the patient, committed malpractice, took advantage

of patient", etc. Plaintiff further alleges that she treated with the defendant who provided therapy

services on a weekly basis, who in turn diagnosed plaintiff with "hereditary mental illness and []

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bipolar" and "insisted [plaintiff] see only the psychiatric provider she selected for [plaintiff]".

Plaintiff otherwise complains that defendant "made derogatory statements" about people in

plaintiffs life which "created and deepened severe dependency on the therapist and regression".

Defendant Shain now moves to dismiss the complaint pursuant to CPLR 3126 on the

grounds that Prigarina has repeatedly failed to comply with pre-trial discovery demands.

Prigarina opposes the motion, arguing that she responded to the discovery demands while

exercising her right to object to certain demands and dealing with substantial personal and

mental health challenges.

Motion sequences five, eight and nine are hereby consolidated for the court's

consideration and disposition in this single decision/order.

The following are the relevant facts. Prigarina was a patient of Shain, a licensed therapist,

from December 2003 to March 2019. On February 4, 2022, Prigarina filed the instant action,

alleging breach of fiduciary duty, breach of contract, fraud, violation of state consumer

protection laws, malpractice, negligence, therapeutic abuse, invasion of privacy, intentional

infliction of emotion distress and violation of professional ethical rules and boundaries. Prigarina

alleges that Shain misdiagnosed her with a hereditary bipolar disorder and gave her medication

which led to a severe depression and psychological issues, exploited Prigarina for personal gain,

conducted unethical business practices, and caused emotional and psychological harm resulting

in the loss of employment and deterioration of personal relationships.

On October 3, 2022, Shain served Prigarina with the Verified Answer, Combined

Demands, Notice of Examination Before Trial and Demand for Discovery and Inspection on

Plaintiff via mail at her home address. On October 25, 2022, Shain filed a Request for a

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Preliminary Conference. On November 18, 2022, Prigarina emailed Shain's counsel seeking

additional time to respond to the discovery demands and asked for an extension to February 28,

2023. Shain's counsel responded on the same day, granting an extension to January 18, 2023.

On January 8, 2023, Prigarina, through a family attorney, Marjorie Sudrow ("Sudrow"),

emailed Shain asking for that the deadline to respond to the discovery demand be extended to

March to allow Prigarina to recover from out-patient medical procedures. On January 10, 2023,

the Court "so-ordered" the preliminary conference order that was submitted by the parties. The

Preliminary Conference Order directed Prigarina to respond to Shain' s demands by March 31,

2023.

On March 20, 2023, 11 days before the discovery deadline, Sudrow emailed Shain again,

stating that she had urged Prigarina to retain counsel on the matter, but that Prigarina was having

difficulty finding a lawyer willing to take the case and requested an additional three-month

extension to June 30, 2023, to allow Prigarina to find a lawyer, to review the relevant documents,

and to respond to the discovery demands. Shain did not consent to a further extension.

On March 31, 2023, Prigarina emailed Shain, informing him that due to her health issues

she was unable to provide the documents requested in the preliminary conference order or secure

counsel to represent her, but that she "should be able to complete these preparations in the

following months".

On April 18, 2023, defendant contacted plaintiff in an attempt/effort to resolve the

outstanding discovery issues to no avail.

On May 23, 2023, Shain filed a motion to dismiss due to Prigarina's failure to respond to

discovery requests. Prigarina did not submit opposition to the motion but requested a stay from

the court. On August 22, 2023, the court granted plaintiffs application for a stay of this action

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for three months (motion sequence 3) and calendared this action for December 12, 2023 for a

status conference. The August 22, 2023 order also calendared motion sequence 2 for an order

precluding plaintiff from offering evidence at trial or compelling plaintiff to provide with her

discovery obligation in this action.

On December 6, 2023, Prigarina filed another Order to Show Cause (motion sequence 4)

requesting that the court "adjourn the motion sequence 2 and the status conference scheduled for

12/12/23". The Court heard oral argument on January 24, 2024.

On March 11, 2024, the Court issued an order denying motion sequence 4 as moot and

granting motion sequence 2 ''to the extent that it will give plaintiff ONE FINAL

OPPORTUNITY to respond to defendant's outstanding demands served on October 3, 2022,

within 60 days" and that "[p]laintiffs failure to timely respond to defendant's demands shall

result in an order dismissing the action absent a showing of good cause in writing." The

Decision/Order also provides that "plaintiff brought this action approximately eighteen months

ago. Since that time, this action has been at a standstill."

On May 10, 2024, Prigarina responded to the October 3, 2022 Demand for Verified Bill

of Particulars, and objected to almost every demand, only providing her home address. Prigarina

objected to the demands generally as imposing undue discovery duties and obligations, for being

broad and unduly burdensome, for not being relevant, for harassment, for asking for documents

outside of her possession custody, or control, for seeking privileged or confidential information,

for making assumptions or characterizations about facts or law, for being overbroad, for being

ambiguous, for being misleading and for being premature. Prigarina specifically objected to the

question regarding ''the dates and times of the day of the alleged negligent acts and/or omissions

which will be alleged against the defendant" with the following:

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In addition to the General Objections, I object to this Demand as unduly burdensome and overbroad. I further object to this Demand as vague and ambiguous, including with respect to the terms "the dates and times of the day." I further object to this Demand because it seeks information in the possession of, known to, or otherwise equally available to the defendant. I further object to this Demand to the extent it appears calculated to harass I further object to this Demand as it appears to presuppose the involvement of medical doctors, which is misleading. The primary injuries sustained are a direct result of the therapeutic relationship.

The majority of her other responses contained the same or similar objections as the one

above.

Prigarina refused to provide the following: date of birth, dates and times of the alleged

negligent acts, dates and times of the alleged intentional acts against Prigarina, location of the

acts, a statement regarding each alleged act of negligence, commission or omission which the

claim of malpractice will be based upon, how and when Shain invaded Prigarina's privacy, how

and when Shain violated Prigarina' s trust, how and when Shain verbally abused Prigarina, how

and when Shain engaged in unethical business practices, how and when Shain breached his

fiduciary duty, information regarding the termination process, how Shain breached the contract,

how and when Shain engaged in fraudulent conduct, what treatment was performed without

Prigarina's consent, what improper treatment was administered, what injuries Prigarina sustained

as a result of the alleged negligence and malpractice, amounts claimed as special damages, and

information regarding lost wages as a result of the alleged malpractice.

On July 12, 2024, Shain filed motion sequence 5, seeking dismissal for failure to comply

with pre-trial discovery. Prigarina did not oppose the motion, and the motion was marked as

fully submitted on August 12, 2024.

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On August 30, 2024, Prigarina filed a letter with the court asking for an adjournment

without consent from her adversary to October 8, 2024, to give her time to submit her opposition

to the motion.

On September 11, 2024, Prigarina moved via Order to Show Cause (motion sequence 6)

to stay the action and not consider motion sequence 5 until the stay is lifted, or in the alternative

to give her more time to find an attorney.

On November 18, 2024, the court issued the following decision:

Prose plaintiffs order to show cause (sequence 6) for indefinite stay and to 'not consider motion sequence 5 until the stay is lifted' or alternatively, time to find legal counsel, is denied. This case has languished while plaintiff has proffered numerous excuses for why she cannot prosecute this action. The court sympathizes with the difficulties plaintiff has experienced but this case cannot stagnate forever. To hold otherwise would cause undue prejudice to defendant and constitute a waste of public-funded judicial resources. Moreover, plaintiff has already received numerous, lengthy periods of time during this case when she could have sought and retained legal counsel or otherwise move this case forward. The court is unconvinced by plaintiffs submissions on this motion that she has diligently undertaken meaningful efforts to retain new counsel which will prove to be fruitful.

The court gave Prigarina until on or before December 6, 2024, to submit opposition to

motion sequence 5.

On December 7, 2024, one day after the court deadline, Prigarina filed opposition to

motion sequence 5 and included several letters from doctors who had treated her describing the

difficulties she had been going through physically and mentally, her inability to work, that she

had been on state disability, her inability to represent herself due to the stress and suggesting that

the case should be stayed to allow her to secure legal counsel and improve her physical and

mental health.

The Court heard oral argument on December 10, 2024 and reserved decision.

Discussion

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Striking a pleading for failure to provide discovery is a drastic remedy and should not be

granted absent a showing that the non-disclosure was willful, contumacious or due to bad faith

(McGilvery v New York City Tr. Auth., 213 AD2d 322,324 [1st Dept 1995]; Youwanes v

Steinbrech, 193 AD3d 492 [1st Dept 2021]). "Willful and contumacious behavior can be inferred

by a failure to comply with court orders, in the absence of adequate excuses" (Henderson-Jones

v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). Chronic noncompliance with deadlines

impairs the efficiency of the courts and impedes the adjudication of claims and can leave cases to

linger for years without resolution (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]).

Despite filing this action in February 2022, over three years later Prigarina has not only

failed to exchange any discovery with defendant, but also has failed to comply with numerous

court orders. Prigarina repeatedly asked for extensions of time to respond to discovery demands

that the court granted over objection by defendant. Prigarina never responded to any discovery

demands or made any good faith efforts to comply with her discovery obligations as a plaintiff.

Moreover, when Prigarina did finally respond to the Demand for Verified Bill of Particulars, she

objected to every demand and only provided her address. Her response did not provide any

particulars on the allegations she made against Shain. She did not provide any information on

what actions Shain took that were negligence, fraudulent, involving malpractice, or otherwise

harmful to Prigarina during her time as a patient. The court considers this information that ought

to have been disclosed pursuant to CPLR 3126 as material and relevant and was willfully

withheld by plaintiff

Plaintiff commenced this action over three years ago and has the obligation to prosecute

it. This case has languished for years. The Court acknowledges the difficulties being a pro se

litigant. However, the court has granted plaintiff numerous adjournments, extended discovery

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deadlines, and granted stays in the action without any meaningful prosecution of this action or

advancement of the discovery process. On this record, defendant has established that the

plaintiff's failure to provide discovery is willful and contumacious and warrants an order

dismissing the complaint pursuant to CPLR 3126.

Based on the foregoing, defendant's motion to dismiss (motion sequence 5) is granted.

In light of the court granting defendant's motion to dismiss (motion sequence 5), motion

sequences eight and nine are denied as moot.

Conclusion

Accordingly, it is hereby

ORDERED that defendant's motion to dismiss, motion sequence five, is granted and

plaintiff's complaint is dismissed pursuant to CPLR 3126; and it is further

ORDERED that motion sequence eight and nine are denied as moot; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Any requested relief not expressly addressed herein has nonetheless been considered and

is hereby denied and this constitutes the decision and order of the court.

4/10/2025 DATE ~ LYNN R. KOTLER, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

_ GRANTED □ DENIED GRANTED IN PART 0 OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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