Opinion
2021–03370 Index No. 70223/17
09-13-2023
David HOGDAHL, appellant, v. LCOR 55 BANK STREET, LLC, et al., defendants-respondents, Baker Concrete Construction, Inc., defendant third-party plaintiff-respondent; Rebar Reinforcement Placers, third-party defendant-respondent.
Sacks and Sacks, LLP, New York, NY (Scott N. Singer of counsel), for appellant. Gallo Vitucci Klar LLP, New York, NY (C. Briggs Johnson of counsel), for defendants-respondents. Cullen and Dykman LLP, New York, NY (John Sparling of counsel), for defendant third-party plaintiff-respondent. Goldberg Segalla, White Plains, NY (William T. O'Connell of counsel), for third-party defendant-respondent.
Sacks and Sacks, LLP, New York, NY (Scott N. Singer of counsel), for appellant.
Gallo Vitucci Klar LLP, New York, NY (C. Briggs Johnson of counsel), for defendants-respondents.
Cullen and Dykman LLP, New York, NY (John Sparling of counsel), for defendant third-party plaintiff-respondent.
Goldberg Segalla, White Plains, NY (William T. O'Connell of counsel), for third-party defendant-respondent.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated March 23, 2021. The order, insofar as appealed from, granted the motion of the third-party defendant and those branches of the separate motions of the defendants LCOR 55 Bank Street, LLC, White Plains North Tower, LLC, and LRC Construction, LLC, and the defendant third-party plaintiff which were pursuant to CPLR 3124 to compel the plaintiff to answer certain deposition questions about his drug and alcohol use, and denied those branches of the separate motions of the defendants LCOR 55 Bank Street, LLC, White Plains North Tower, LLC, and LRC Construction, LLC, and the defendant third-party plaintiff which were pursuant to CPLR 3124 to compel the plaintiff to provide authorizations for alcohol and drug treatment records, with leave to renew upon proper circumstances.
ORDERED that the appeal from so much of the order as denied those branches of the separate motions of the defendants LCOR 55 Bank Street, LLC, White Plains North Tower, LLC, and LRC Construction, LLC, and the defendant third-party plaintiff which were pursuant to CPLR 3124 to compel the plaintiff to provide authorizations for alcohol and drug treatment records, with leave to renew upon proper circumstances, is dismissed, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc, 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as granted the motion of the third-party defendant and those branches of the separate motions of the defendants LCOR 55 Bank Street, LLC, White Plains North Tower, LLC, and LRC Construction, LLC, and the defendant third-party plaintiff which were pursuant to CPLR 3124 to compel the plaintiff to answer certain deposition questions about his drug and alcohol use is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is affirmed insofar as reviewed, and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs. In December 2017, the plaintiff commenced this action against the defendants, LCOR 55 Bank Street, LLC, White Plains North Tower, LLC, LRC Construction, LLC, and Baker Concrete Construction, Inc. (hereinafter Baker Concrete), to recover damages for personal injuries he alleged that he sustained in September 2016 when he was working as an ironworker at a construction site in White Plains. Baker Concrete thereafter commenced a third-party action against the third-party defendant, Rebar Reinforcement Placers (hereinafter Rebar), seeking, inter alia, common-law indemnification and contribution.
Rebar moved pursuant to CPLR 3124 to compel the plaintiff to complete answering questions that were posed to him during his deposition relating to his drug and alcohol use, and LCOR 55 Bank Street, LLC, White Plains North Tower, LLC, and LRC Construction, LLC (hereinafter collectively the LCOR defendants), and Baker Concrete separately moved, inter alia, for the same relief. The plaintiff opposed. In an order dated March 23, 2021, the Supreme Court, inter alia, granted Rebar's motion and those branches of the separate motions of the LCOR defendants and Baker Concrete which were pursuant to CPLR 3124 to compel the plaintiff to answer deposition questions about his drug and alcohol use. The plaintiff appeals.
CPLR 3101(a) provides, in relevant part, that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." "Discovery statutes are to be construed liberally so that there should be disclosure of any material that is even arguably relevant, and supervision of disclosure is generally left to the trial court's broad discretion" ( Gentile v. Ogden, 208 A.D.3d 855, 856, 174 N.Y.S.3d 112 [citation, alterations, and internal quotation marks omitted]). " ‘The words, "material and necessary", are ... to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial’ " ( Siegel v. Snyder, 202 A.D.3d 125, 130, 161 N.Y.S.3d 159, quoting Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ). " ‘The purpose of disclosure procedures is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits’ " ( Siegel v. Snyder, 202 A.D.3d at 130, 161 N.Y.S.3d 159, quoting Rios v. Donovan, 21 A.D.2d 409, 411, 250 N.Y.S.2d 818 ).
"Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue" ( Garland v. City of New York, 191 A.D.3d 770, 770, 138 N.Y.S.3d 352 ; see O'Brien v. Village of Babylon, 153 A.D.3d 547, 548, 60 N.Y.S.3d 92 ). Here, the plaintiff asserted, inter alia, damages claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based upon certain work-life and life expectancy ages. These claims affirmatively placed at issue the plaintiff's health and ability to work, and the plaintiff's work-life expectancy (see Graziano v. Cagan, 105 A.D.3d 701, 702, 962 N.Y.S.2d 643 ). In making life expectancy determinations in the course of awarding damages for future lost earnings, juries are permitted to make life expectancy determinations based upon statistical life expectancy tables, together with their own experience and the evidence they have heard in determining what the plaintiff's life and/or work-life expectancy is, based upon the plaintiff's health, life habits, employment, and activities (see PJI 2:281, 2:290 ; Demetro v. Dormitory Auth. of the State of N.Y., 199 A.D.3d 605, 159 N.Y.S.3d 27 ).
Accordingly, under the circumstances of this case, the Supreme Court providently exercised its discretion in granting Rebar's motion and those branches of the separate motions of the LCOR defendants and Baker Concrete which were pursuant to CPLR 3124 to compel the plaintiff to answer deposition questions about his drug and alcohol use (see Azznara v. Strauss, 81 A.D.3d 578, 578–579, 915 N.Y.S.2d 868 ; Steward v. New York City Hous. Auth., 302 A.D.2d 449, 753 N.Y.S.2d 748 ). Since the plaintiff testified at his deposition as to his use of alcohol as well as illegal substances, and a toxicology report prepared in connection with the plaintiff's lumbar surgery evidenced that the plaintiff tested positive for cocaine, cannaboids, and benzodiazepines, the discovery sought by the defendants and Rebar may be useful in preparation for trial and may lead to relevant evidence bearing on the plaintiff's claim for future lost earnings.
DUFFY, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.