Opinion
Index No. 53224/2018 Seq 2
11-19-2018
ANTONIETTA MIANO, Plaintiff, v. MARIA WING, M.D., STEPHANIE SIMS, M.D., WHITE PLAINS HOSPITAL, WHITE PLAINS HOSPITAL PHYSICIAN ASSOCIATES, and NORTHRIDGE MEDICAL ASSOCIATES, Defendants.
UNPUBLISHED OPINION
DECISION & ORDER
JOAN B. LEFKOWITZ JUDGE
The following papers were read on this motion by plaintiff pursuant to CPLR § 3103(a) and CPLR § 2304, for a protective order quashing the subpoena served by defendants, Maria Wing, M.D. and Maria Wing, M.D., P.C., s/h/a Northridge Medical Associates, upon non-party Lucia Miano Sanna; pursuant to CPLR § 3103(a) and CPLR § 2304, for a protective order r modifying the non-party subpoena so that the non-party deposition occurs after the depositions of the parties; pursuant to CPLR § 3103(a), for a protective order holding that the defendants, collectively, have waived the deposition of Lucia Miano Sanna if/when she becomes the representative of Mrs. Miano's estate; and for an order granting such other and further relief as to this Court seems just and proper.
Order to Show Cause - Affirmation in Support - Exhibits A-L Affirmation in Opposition- Exhibits A-C Supplemental Affirmation in Opposition
Upon the foregoing papers and the proceedings held on November 19, 2018, this motion is determined as follows:
On or about March 8, 2018, plaintiff commenced this medical malpractice action against defendants alleging that defendants failed to timely diagnose and treat plaintiffs renal cancer. Plaintiffs carcinoma has since metastasized and her cancer is terminal.
On April 12, 2018, defendants White Plains Hospital ("WPH") and White Plains Hospital Associates ("WPHPA") filed their Answer. On April 13, 2018, defendants, Maria Wing, M.D. ("Wing") and Stephanie Sims, M.D. ("Sims") filed their Answers. On July 11, 2018, defendant Maria Wing M.D., P.C., s/h/a Northridge Medical Associates ("Wing P.C.") filed its Answer. A preliminary conference has been held and plaintiff has been deposed.
Plaintiff now moves to quash the non-party subpoena served by defendants Wing and Wing P.C. (collectively, "Wing") upon plaintiffs daughter, Lucia Miano Sanna ("Sanna") and for related relief. Plaintiff argues, inter alia, that the subpoena was not properly served upon her counsel, is facially deficient and that such deposition should await the completion of defendants' depositions. Plaintiff further states that a Compliance Conference was held before the assigned Court Attorney-Referee on October 16, 2018 and Wing's request to depose Sanna prior to defendants' deposition was denied.
In opposition, defendant Wing does not dispute that the request was addressed at the Compliance Conference but argues, inter alia, that the deposition of Sanna should be conducted prior to defendants' deposition because Sanna has information regarding the plaintiffs treatment.
CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crow ell-Collier Publishing Co., 21 N.Y.2d 403 [1968]; Foster v Herbert Slepoy Corp., 74 A.D.3d 1139 [2d Dept 2010]). Although the discovery provisions of the CPLR are to be liberally construed, "a party does not have the right to uncontrolled and unfettered disclosure" (Merkos L 'Inyonei Chinuch, Inc. v Sharf, 59 A.D.3d 408 [2d Dept 2009]; Gilman & Ciocia, Inc. v Walsh, 45 A.D.3d 531 [2d Dept 2007]). The trial court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (Auerbach v Klein, 30 A.D.3d 451 [2d Dept 2006]; Feeley v Midas Properties, Inc., 168 A.D.2d 416 [2d Dept 1990]).
To obtain nonparty discovery, a party must show only that the nonparty discovery is "material and necessary" to the prosecution or defense of the action. CPLR 2304, however, provides that a court may quash or modify a subpoena where the material demanded is not relevant to the issues in the action. On a motion to quash a subpoena, the movant has the burden of demonstrating that the subpoena lacks relevancy or factual basis (In re Out-of-State Subpoena issued by New York Counsel for State of Cal. Franchise Tax Bd., 33 Misc.3d 500, 511 [Sup Ct, Westchester County 2011], affdHyatt v State Franchise Tax Bd, 105 A.D.3d 186 [2d Dept 2013]). A nonparty subpoena should be quashed "where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is 'utterly irrelevant to any proper inquiry'" (In re Kapon v Koch, 23 N.Y.3d 32 [2014]; Ferolito v Arizona Beverages USA, 119 A.D.3d 642 [2d Dept 2014]). The one seeking to quash the subpoena has the burden of demonstrating the subpoena should be vacated under the circumstances (Ferolito v Arizona Beverages USA, at 643.).
A motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer (McDaid v Semegran, 16 Misc.3d 1102(A) [Sup Ct 2007]; (In re MacLeman, 9 Misc.3d 1119(A) [Sur Ct, Westchester County 2005] [additional citations omitted]. Moreover, the notice requirement of CPLR 3101(a)(4) obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, "the circumstances or reasons such disclosure is sought or required" (Kapon v Koch, 23 N.Y.3d 32, 39 [2014]).
Generally, a subpoena is facially defective when it neither contains, nor is it accompanied by adequate notice stating the circumstances or reasons the disclosure was sought or required as mandated by CPLR 3101(a) (4) (Matter of American Express Prop. Cas. Co. v Vinci, 63 A.D.3d 1055 [2d Dept 2009]). The notice obligation is required to apprise a stranger to the litigation of the circumstances or reasons the requested disclosure is sought (In re Kapon v Koch, 23 N.Y.3d 32 [2014]).
As to the order of depositions, after a defendant has served an answer, the party who first notices a deposition gets priority. However, the order of priority established in CPLR 3106 may be varied by the court under its protective order powers (see, Siegel, NY Prac § 354, at 442).
Here, there is no dispute that Sanna's testimony is "material and necessary" to the prosecution and defense of the action (In re Kapon v Koch, 23 N.Y.3d 32 [2014]). Moreover, Plaintiffs argument regarding the deficiency of the subpoena is not compelling. Sanna was served with a subpoena by personal service as well as the order to show cause. Given the information provided in the motion and her relationship to plaintiff, it would be inefficient and a waste of resources to require defendants to serve another subpoena on Sanna (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104 [1st Dept 2006]). Further, plaintiff has agreed to voluntarily produce Sanna for a deposition following the completion of defendants' depositions.
However, the Wing defendants' position that Sanna's deposition must be taken before the defendants' depositions is without merit and appears to be advanced in an attempt to delay the defendants' depositions. The Wing defendants have not demonstrated that plaintiff was unable to provide complete testimony regarding her treatment. Plaintiff is entitled to a preference in this action and this Court will not permit any further delays. Under the circumstances presented, this Court will issue a protective order to prevent abuse of the disclosure process and stay Senna's deposition until the completion of defendants' depositions (see Scalone v Phelps Memorial Hospital Center, 184 A.D.2d 65 [2d Dept 1992]). The Court cautions all defendants to appear for their depositions as previously ordered and that no adjournments shall be granted.
All other arguments raised on this motion and evidence submitted by the parties in connection thereto, have been considered by this court, notwithstanding the specific absence of reference thereto.
Accordingly, it is
ORDERED that plaintiffs motion is granted to the extent that the deposition of non-party Senna is stayed pending the completion of defendants' depositions; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order on all parties with notice of entry within five (5) days of entry; and it is further
ORDERED that all parties are directed to appear for a conference in the Compliance Part, Courtroom 800, on November 26, 2018, at 9:30 a.m.