Opinion
450213/14
04-16-2018
Gabriel BARAHONA, Plaintiff, v. CONTINENTAL HOSTS, LTD., The Fountainhead, Fountainhead Caterers, Timothy Ray Montalvo and Estate of Brandon Lamont Hardy–Turner a/k/a Brandon Turner, Defendants. Continental Hosts, Ltd. The Fountainhead, Fountainhead Caterers, and Timothy Ray Montalvo, Third–Party Plaintiffs, v. Cherie C. Garcia, Third–Party Defendant.
Plaintiff's Atty: Pirrotti & Glatt Law Firm PLLC, 2 Overhill Road, Ste 200, Scarsdale, NY 10583 Defendants' Attys: Pillinger Miller Tarallo, LLP, 570 Taxter Road, Ste 275, Elmsford, NY 10523, Law Office of Dennis C. Bartling, 875 Merrick Avenue Westbury, NY 11590, French & Casey, LLP, 29 Broadway, 27th Floor, New York, NY 10006
Plaintiff's Atty: Pirrotti & Glatt Law Firm PLLC, 2 Overhill Road, Ste 200, Scarsdale, NY 10583
Defendants' Attys: Pillinger Miller Tarallo, LLP, 570 Taxter Road, Ste 275, Elmsford, NY 10523, Law Office of Dennis C. Bartling, 875 Merrick Avenue Westbury, NY 11590, French & Casey, LLP, 29 Broadway, 27th Floor, New York, NY 10006
Adam Silvera, J.
BACKGROUND
Plaintiff Gabriel Barahona commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident on September 22, 2012. Defendants Continental Hosts, Ltd., The Fountainhead, Fountainhead Caterers, and Timothy Ray Montalvo (hereinafter collectively referred to as "the Fountainhead Defendants") were sued herein for alleged negligence and violation of the Dram Shop Act. Discovery was exchanged, and plaintiff attended an Independent Medical Examination (hereinafter referred to as "IME") conducted by a doctor designated by the Fountainhead Defendants. Thereafter, the Fountainhead Defendants requested the name and address of the Independent Medical Examination Watchdog that accompanied plaintiff to his IME, as well as the notes created by such individual during the IME. The Fountainhead Defendants now move to strike plaintiff's complaint for failing to comply with such discovery request or, alternatively, to preclude plaintiff from offering any medical evidence at trial, or to compel disclosure. Plaintiff cross-moves for a protective order regarding the notes or, alternatively, for disclosure of the examining physician's notes concerning the factual nature of the examination. The Fountainhead Defendants oppose plaintiff's cross-motion.
DISCUSSION
The Court notes that the authorizations requested by the Fountainhead Defendants were provided by plaintiff. Furthermore, the name and address requested was also previously provided by plaintiff, and the only outstanding issue pertains to the notes taken during the IME. Here, it is undisputed that upon designation of the IME by the Fountainhead Defendants, plaintiff's counsel employed IME Watchdog, Inc. to send an employee to accompany plaintiff to the IME. It is further unrefuted that IME Watchdog attended the IME with plaintiff and took, a copy of which was provided to plaintiff's counsel.
In support of its motion, the Fountainhead Defendants argue that the notes at issue herein are discoverable, citing a New York State Supreme Court decision as authority. According to the motion, the Fountainhead Defendants properly demanded a copy of IME Watchdog's notes during discovery, and that plaintiff has failed to provide a copy despite the proper demand, thus, warranting the striking of the complaint or preclusion. Alternatively, the Fountainhead Defendants seek to compel disclosure of the IME Watchdog notes.
In opposition, plaintiff contends that the notes taken by IME Watchdog are created by plaintiff's counsel's agent/consultant to memorialize what took place during the physical examination. Plaintiff further argues that such notes contain the opinion of plaintiff's counsel's agent/consultant regarding the examining physician, as well as the examination itself, for the purpose of preparation for trial. Thus, plaintiff argues that such notes constitute attorney work product and cross-move for a protective order. The Fountainhead Defendants oppose the cross-motion.
Preliminarily, the Court notes that the Fountainhead Defendants failed to submit a satisfactory affirmation of good faith as required. See 22 NYCRR § 202.7(c) ; Sixty–Six Crosby Assoc. v. Berger & Kramer, LLP , 256 A.D.2d 26, 680 N.Y.S.2d 846 (1st Dep't 1998). 22 NYCRR § 202.7(a) provides that no motion which relates to discovery shall be filed unless it includes, "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". Such affirmation "shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions". 22 NYCRR § 202.7(c). Here, the submitted affirmation does not indicate the "time, place and nature of the consultation and the issues discussed...", as required. Thus, the instant motion for discovery is denied.
Even if the Court were to consider all of the Fountainhead Defendants' arguments, the motion to strike, preclude, or compel would still be denied. Of note, in opposition to the cross-motion for a protective order, the Fountainhead Defendants argue that plaintiff's cross-motion only cites a lower court decision from Kings County, which was not issued by a Supreme Court Justice and has no precedent or binding effect on the First Department, for the proposition that the IME Watchdog notes are work product. While the Fountainhead Defendants are correct that such lower court decision does not have any binding effect on the Court, it must be noted that the authority relied upon by the Fountainhead Defendants similarly does not have any binding effect herein. As this is a fairly novel issue, the Appellate Division, First Department has yet to make a final determination as to the discoverability of notes taken by IME Watchdog during an IME. Furthermore, New York State Supreme Court, New York County Justices are split on the issue. In the case cited by the Fountainhead Defendants, Hon. Sherry Klein Heitler held that "[p]laintiff's conclusory and unsupported assertion regarding Plaintiff's counsel's relationship with IME Watchdog, Inc. and its claim of work product privilege as to the materials prepared thereunder, are plainly not enough to meet this burden" of " ‘identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation.’ " Gelvez v. Tower 111 2017 NY Slip Op 3007(U)(Sup Ct, NY County 2017), citing Bombard v. Amica Mut. Ins. Co. , 11 A.D.3d 647, 783 N.Y.S.2d 85 (2nd Dep't 2004). In contrast, Hon. Kelly O'Neill Levy held that "it is unrefuted that plaintiffs [sic] counsel retained IME Watchdog to assist it with the prosecution of this matter and it follows that any documents prepared by IME Watchdog were prepared in anticipation of litigation. In light of same, the court finds that the IME Watchdog materials are protected by the attorney work-product doctrine, and that in any event, defendants have not shown that they have a substantial need for the IME Watchdog materials. Moreover, the information contained in the IME Watchdog report is obtainable through the report of Dr. Crane, who was designated by defendants." Katz v. 260 Park Ave. S. Condominium Assoc. , 2016 N.Y. Slip Op. 32821(U), 2016 WL 1597770 (Sup. Ct., N.Y. County 2016). Here, neither plaintiff nor the Fountainhead Defendants cited any controlling case law. Thus, as a determination on whether a document is discoverable or privileged necessitates a fact specific analysis, the Court, after considering all the case law, comes to its own conclusion, taking into account the specific facts herein.
CPLR § 3101(d)(2) states that:
Materials prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, ...or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."
It is undisputed that plaintiff's counsel hired the IME Watchdog, and obtained their notes taken during the IME, in anticipation of litigation or trial. Here, the Fountainhead Defendants' motion is noticeably silent as to any need, let alone a substantial need, for the notes of the IME Watchdog. Rather, the Fountainhead Defendants argue only that such notes were demanded, and that plaintiff's failure to provide them is intentional and deserving of sanctions. As it is clear that the Fountainhead Defendants have failed to even allege any need for the IME Watchdog notes, as per CPLR § 3101(d)(2), the instant motion to strike, preclude, or compel is denied.As stated above, plaintiff cross-moves for a protective order, arguing that the IME Watchdog notes are attorney work-product such that they are not discoverable. The Fountainhead Defendants argue that the notes at issue herein are not work-product, as Justice Heitler found, in a different case, that the plaintiff therein failed to establish the requisite relationship between the attorney and IME Watchdog to assert the attorney-client privilege. While both plaintiff and defendant couch their arguments around attorney work-product pursuant to CPLR 3101(c), after review of all the papers, the Court notes that it is unrefuted that plaintiff employed IME Watchdog for the purpose of accompanying plaintiff to the IME designated by defendant, to take notes during the IME, and to be called as a witness to refute defendant's IME physician if needed. Thus, plaintiff employed IME Watchdog to provide material in anticipation of litigation and trial. As such, the IME Watchdog notes are not discoverable pursuant to CPLR 3101(d)(2) such that plaintiff's cross-motion for a protective order is granted.
Accordingly, it is
ORDERED that the Fountainhead Defendants' motion to strike, to preclude, or to compel is denied in its entirety; and it is further
ORDERED that plaintiff's cross-motion for a protective order is granted as to the notes taken by IME Watchdog during plaintiff's IME; and it is further
ORDERED that all counsel shall appear for a previously scheduled status conference on April 20, 2018 at 9:30am in room 103 of 80 Centre Street, New York, NY; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of entry upon all parties within 45 days of entry.
This constitutes the decision/order of the Court.