Opinion
22467/2019E
12-23-2020
Erica RODRIGUEZ, as Administratrix of the Estate of Edelmiro Rodriguez, Plaintiff, v. MONTEFIORE MEDICAL CENTER, Jopal Bronx, LLC, d/b/a Workmen's Circle Multicare Center and Archcare Senior Life, Defendants.
Luis A. Umana, Esq., Sinel & Olesen, PLLC, New York, NY, for plaintiff Esther S. Widowki, Esq., Widowski Law Group, LLP, New York, NY, for defendant Montefiore Medical Center Katherine V. Charles, Esq., Sheeley LLP, New York, NY, for defendant Jopal Bronx, LLC (d/b/a Workmen's Circle Multicare Center) Maureen M. Arciero, Esq., Regenbaum Arciero McMillan & Burgess, P.C., New Windsor, NY, for defendant ArchCare Senior Life
Luis A. Umana, Esq., Sinel & Olesen, PLLC, New York, NY, for plaintiff
Esther S. Widowki, Esq., Widowski Law Group, LLP, New York, NY, for defendant Montefiore Medical Center
Katherine V. Charles, Esq., Sheeley LLP, New York, NY, for defendant Jopal Bronx, LLC (d/b/a Workmen's Circle Multicare Center)
Maureen M. Arciero, Esq., Regenbaum Arciero McMillan & Burgess, P.C., New Windsor, NY, for defendant ArchCare Senior Life
John R. Higgitt, J. Plaintiff's motion raises an issue with which New York State trial courts have been grappling since this past spring: whether to compel parties to conduct remote depositions. For the reasons that follow, the court compels the defendants to conduct the depositions in this action remotely, subject to any further protective order or orders the court may issue.
On February 28, 2019, plaintiff commenced this action to recover damages for personal injuries sustained by her decedent. Plaintiff asserted causes of action for negligence and medical malpractice, and under Public Health Law article 28.
A preliminary conference was held on October 16, 2019, and the order generated at that conference stated that plaintiff's deposition was to occur on or before January 17, 2020. Plaintiff's deposition did not occur by that date. A discovery conference on January 29, 2020 yielded a so-ordered stipulation among the parties; the dates for the various party depositions were to be set at the next discovery conference, which was scheduled for March 18, 2020. Due to the onset of the coronavirus pandemic, that conference did not take place, and depositions have not occurred.
Plaintiff seeks to compel defendants to conduct depositions by remote video conferencing. Plaintiff argues that depositions have not occurred, and that in-person depositions are not appropriate in light of the on-going coronavirus pandemic. Pointing to various e-mails sent by her counsel to defendants' attorneys, plaintiff contends that she attempted to schedule her remote deposition, but defendants declined to proceed with it. Plaintiff argues that CPLR 3103 (the protective-order statute) authorizes the court to compel remote depositions under the unprecedented public health circumstances occasioned by the coronavirus pandemic, and that recent administrative orders issued by the Chief Administrative Judge strongly encourage parties to civil suits to conduct matters by remote platforms. Moreover, plaintiff identifies a number of unreported trial court decisions and orders compelling remote depositions, as well as federal court decisions doing so.
Defendant Montefiore Medical Center ("Montefiore") cross-moves to compel plaintiff to serve an amended bill of particulars as to it, arguing that the bill of particulars served by plaintiff was not sufficiently responsive to a number of demanded particulars (specifically, demand numbers 3, 6, 7, and 28-31), and that Montefiore could not adequately defend the action without a more detailed bill of particulars. With respect to plaintiff's motion to compel defendants to conduct the depositions remotely, defendant Montefiore maintains that conducting plaintiff's deposition remotely provides "the opportunity for plaintiff's counsel to inappropriately coach the witness, and limit[s] defense counsel's ability to ascertain the demeanor and candor of the witness." Defendant Montefiore notes that the various New York State court and federal court decisions cited by plaintiff are not binding on this court. At bottom, defendant Montefiore wants in-person depositions.
Defendant Montefiore correctly observes that plaintiff's motion was not accompanied by an affirmation of good faith (see 22 NYCRR 202.7 [c]); however, in light of the contents of plaintiff's affirmation in support of her motion and the exhibits submitted therewith, the court will not deny the motion on the ground that plaintiff failed to submit a separate good-faith affirmation (see Encalada v. Riverside Retail, LLC , 175 A.D.3d 467, 468-469, 107 N.Y.S.3d 124 [2d Dept. 2019] ; Cuprill v. Citywide Towing & Auto Repair Servs. , 149 A.D.3d 442, 442, 49 N.Y.S.3d 624 [1st Dept. 2017] ).
Defendant Jopal Bronx, LLC (d/b/a Workmen's Circle Multicare Center) ("Jopal") cross-moves to compel plaintiff to serve an amended bill of particulars as to it, arguing (like defendant Montefiore) that the bill of particulars served by plaintiff was insufficient. Defendants Jopal and ArchCare Senior Life oppose plaintiff's motion for the reasons articulated by defendant Montefiore.
Remote Depositions
Prior to the onset of the coronavirus pandemic, the overwhelming majority of depositions taken in conjunction with civil actions pending in New York State courts were conducted in-person. The provisions of the CPLR governing depositions are founded on the assumption that depositions will be conducted in person (see , e.g. , CPLR 3110, 3113 ); however, the parties to a given action may stipulate to conduct a deposition remotely (see CPLR 3113[d] ). That the deposition-regulating provisions of the CPLR are based on that assumption is unremarkable because most of those provisions were part of the original version of the CPLR, which took effect on September 1, 1963.
But the general rule under CPLR 3110 and 3113 that, absent a stipulation to the contrary, depositions will take place in person is not rigid. CPLR 3103(a) permits a court to "make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." Before the outbreak of the coronavirus pandemic, several courts and commentators had concluded that, under CPLR 3103(a), a court had the discretionary power to compel a remote deposition over a party's objection (see Gabriel v. Johnston's L.P. Gas Service, Inc. , 98 A.D.3d 168, 947 N.Y.S.2d 716 [4th Dept. 2012] ; Yu Hui Chen v. Chen Li Zhi , 81 A.D.3d 818, 916 N.Y.S.2d 525 [2d Dept. 2011] ; Rogovin v. Rogovin , 3 A.D.3d 352, 770 N.Y.S.2d 342 [1st Dept. 2004] ; Siegel & Connors, New York Practice §§ 353, 355 [6th ed]; Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3113, C3113:8). The courts that so concluded required the party seeking the remote deposition to demonstrate that the party would encounter an undue hardship if the party had to submit to an in-person deposition in New York State (see Gabriel v. Johnston's L.P. Gas Service, Inc. , supra ; Yu Hui Chen v. Chen Li Zhi , supra ; see also Rogovin v. Rogovin, supra ). The case law on the subject was sparse, reflecting the infrequency with which parties sought to compel remote depositions.
In the wake of the coronavirus pandemic, that which was once extraordinary has become routine. Over the past nine months, numerous courts have addressed the issue of whether a court can and should compel a party, over his or her objection, to submit to or otherwise participate in a remote deposition. Applying the principles that developed prior to the pandemic's outbreak, courts have repeatedly concluded (1) that a court can compel a remote deposition if the party seeking such a deposition demonstrates that appearing for an in-person deposition would present an undue hardship, and (2) that the personal and public health dangers posed by the coronavirus pandemic present an undue hardship (see Bynes v. New York City Health & Hosps. Corp. , 2020 WL 6380601 [Sup. Ct., New York County 2020] ; Disbrow v. Metropolitan Transp. Auth. , 2020 WL 5521070 [Sup. Ct., New York County 2020] ; Goldstein v. Berenbaun , 2020 WL 5209508 [Sup. Ct., New York County 2020] ; Fineman v. Qureshi , 2020 WL 5088199 [Sup. Ct., New York County 2020] ; Field v. MTA Bus Co. , 69 Misc. 3d 632, 129 N.Y.S.3d 319 [Sup. Ct., Westchester County 2020] ; Chase-Morris v. Tubby , 69 Misc. 3d 349, 130 N.Y.S.3d 599 [Sup. Ct., Westchester County 2020] ; Johnson v. Time Warner Cable New York City, LLC , 2020 WL 2769117 [Sup. Ct., New York County 2020] ; see also Siegel & Connors, New York Practice § 356 [Dec. 2020 Supplement]; see generally Jones v. Memorial Sloan Kettering Cancer Ctr. , 186 A.D.3d 1851, 1852 n., 131 N.Y.S.3d 421 [3d Dept. 2020] ["We cannot help but take note that if the COVID—19 pandemic has proved anything, it is the usefulness (if not preferability) of conducting matters via video."]; cf Bell v. Stoddart , 2020 WL 4390588 [Sup. Ct., Bronx County 2020] ). Employing CPLR 3103(a) to compel remote depositions during the coronavirus pandemic is consistent with the spirits of both the relevant administrative order of the Chief Administrative Judge of the Courts (Administrative Order 129/20 [June 22, 2020] ["In light of the ongoing coronavirus public health emergency, counsel and litigants are strongly encouraged to pursue discovery in cooperative fashion and to employ remote technology in discovery whenever possible"]) and CPLR 104 ("The civil practice law and rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding"]). Here, plaintiff has demonstrated that, in light of the ongoing coronavirus pandemic, appearances for in-person depositions would present an undue hardship, and that the depositions ought to be conducted remotely.
The determination of the courts that the personal and public health dangers posed by the coronavirus present an undue hardship is, of course, well founded. As one federal judge sitting in the Southern District of New York has stated,
"COVID-19 is a potentially fatal illness with the ability to spread through asymptomatic or pre-symptomatic carriers, and new cases here are plateauing (or, in some areas, rising) rather than plummeting. The minimum distance to prevent transmission of COVID-19 may vary depending on environmental conditions—and ... the oft-repeated six-feet rule may not be sufficient in a high-risk environment, such as an indoor setting with prolonged exposure. Moreover, social distancing does not guarantee a safe deposition environment. Thus, holding a deposition in a room with a witness, counsel and a stenographer present would place everyone in the room at risk" (Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp. 3d 571, 575 [2020] [internal quotation marks, brackets, and citations omitted]).
Additional authority for the court's power to compel parties to conduct a remote deposition is provided by Judiciary Law § 2-b, which authorizes a court "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it" (see People v. Wrotten , 14 N.Y.3d 33, 37, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [2009] [under Judiciary Law § 2-b, "courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law"]; see also Wyona Apts., LLC v. Ramirez , 70 Misc.3d 591, 137 N.Y.S.3d 653 [Civil Court, New York County 2020] [employing Judiciary Law § 2-b to direct remote trial]; CC v. AR , 69 Misc. 3d 983, 133 N.Y.S.3d 200 [Sup. Ct., Kings County 2020] [employing Judiciary Law § 2-b to direct matrimonial hearing in which one of the remedies sought was criminal contempt]; Ciccone v. One West 64th St., Inc. , 69 Misc. 3d 585, 132 N.Y.S.3d 261 [Sup. Ct., New York County 2020] [employing Judiciary Law § 2-b to direct remote attorneys' fees hearing], order amended 2020 WL 6325719 [Sup. Ct., New York County 2020] ).
Defendants' objections to conducting depositions remotely are not persuasive. Defendants' concern that plaintiff's counsel may inappropriately coach plaintiff during her deposition is, at this point, unfounded. Defendants point to no words or deeds by plaintiff or her attorney that suggest that plaintiff's counsel would engage in such chicanery. However, to assuage defendants' concern, the court will direct (1) that no individual (except for a court reporter, plaintiff's counsel or both) be physically present in the same room as plaintiff during her deposition; (2) that plaintiff is prohibited from communicating with anyone in any manner during her deposition except for the individuals participating in her deposition; (3) that plaintiff's counsel's communications with plaintiff during her deposition be limited to subjects appropriate under 22 NYCRR part 221; (4) that, prior to initiating any private communication with plaintiff during her deposition, plaintiff's counsel must first announce his or her intention to do so; and (5) that, at all times during her deposition, plaintiff and her counsel be visible on screen (whether together in the same room or in separate physical locations) (see generally Dennis v. JP Morgan Chase & Co. , 2020 U.S. Dist Lexis 179395, *9-10 [S.D.N.Y. 2020]).
With respect to defendants' argument that a remote deposition will "limit defense counsel's ability to ascertain the demeanor and candor of [plaintiff]," the court acknowledges that counsel's assessment of a deponent's credibility is an important component of the litigation process, assisting counsel in gauging the strength of his or her case and that of the adversary. A remote deposition is a virtue in this regard because it allows a deponent to testify without a mask if the deponent can do so safely, an eventuality that could not occur at an in-person deposition conducted during a pandemic (see Fields v. MTA Bus Co. , 69 Misc. 3d at 637-638, 129 N.Y.S.3d 319 ; Chase-Morris v. Tubby , 69 Misc. 3d at 354-356, 130 N.Y.S.3d 599 ; Rouviere v. DePuy Orthopedics, Inc. , 471 F. Supp. 3d at 575-576 ). Moreover, given the state of the technology used to facilitate and conduct remote depositions (and on-going improvements made thereto), counsel should have a reasonable opportunity to evaluate the credibility of a deponent (see generally Ciccone v. One West 64th St., Inc. , 69 Misc. 3d at 592, 132 N.Y.S.3d 261 ["given advances in technology, the near-instantaneous transmission of video testimony permits the court [at a remote hearing] to see the live witness along with his [or her] hesitation, his [or her] doubts, his [or her] variations of language, his [or her] confidence or precipitancy, and his [or her] calmness or consideration"] [internal quotation marks omitted]).
While no defendant has objected to plaintiff's motion on the ground that a defendant lacks access to the technological devices and services necessary to conduct a remote deposition (or the capacity to use such devices and services), the court notes that suitable devices and appropriate services are widely available and often user-friendly (see generally Wyona Apts., LLC v. Ramirez , 70 Misc. 3d at 592, 137 N.Y.S.3d ––––, 2020 WL 6879003, 2020 N.Y. Slip Op. 20309, *4-653 ; Ciccone v. One West 64th St., Inc. , 69 Misc. 3d at 595, 132 N.Y.S.3d 261 ).
Ultimately, a party's apprehension concerning innovative discovery techniques must, subject to the various protections afforded by the law, yield to the realities of coronavirus-era litigation, lest resolution of litigants' rights and obligations be unnecessarily and unjustly delayed.
Of course, should a bona fide issue arise during plaintiff's remote deposition regarding the scope or quality of the deposition, or one or more individual's conduct thereat, a number of potential remedies are available under the law, including ordering a further deposition under CPLR 3124, affording relief under CPLR 3126, issuing a protective order suppressing part or all of the deposition under CPLR 3103(c), and imposing frivolity sanctions under 22 NYCRR part 130.
Prior to plaintiff's deposition, the parties are to confer regarding the various procedural and logistical issues that must be negotiated in advance of the deposition (see generally CPLR 3113[d] ; Report of the Commercial and Federal Litigation section of the New York State Bar Association, Virtual Depositions — Can't Look Back Now [https://nysba.org/app/uploads/2020/02/NYSBA-ComFed-Virtual-Depositions-10-28-20-Final-.pdf, last accessed on Dec. 23, 2020]; Dennis v. JP Morgan Chase & Co. , supra ). Working in good faith, the parties are to resolve as many anticipated issues as they can before appearing for a pre-deposition conference, the purpose of which will be to confirm that the parties are prepared to proceed effectively with plaintiff's deposition. All depositions in this action are to be conducted remotely, subject to the parameters specified above, and to any further protective order or orders issued by the court.
Such issues include, but are not limited to, the date on which plaintiff's deposition will occur; the video-conferencing platform the parties will use to conduct the deposition; who will be "invited" to the deposition; the manner in which exhibits will be used during the deposition; the manner in which the oath will be administered to plaintiff; and whether the deposition will be recorded and, if so, how it will be recorded.
Bills of Particulars
Regarding the cross motions of defendants Montefiore and Jopal seeking relief relevant to plaintiff's bills of particulars, "[a] bill of particulars in a medical malpractice action must provide a general statement of the acts or omissions constituting the alleged negligence," such that defendants are placed on notice of plaintiff's theories of liability, thereby limiting the proof and preventing surprise ( Shanoff v. Golyan , 139 A.D.3d 932, 934, 34 N.Y.S.3d 78 [2d Dept. 2016] [internal quotation marks and citations omitted]; see Monzon v. Chiaramonte , 140 A.D.3d 1126, 1129, 35 N.Y.S.3d 371 [2d Dept. 2016] ; Contreras v. Adeyemi , 102 A.D.3d 720, 722, 958 N.Y.S.2d 430 [2d Dept. 2013] ; Felock v. Albany Medical Ctr. Hosp. , 258 A.D.2d 772, 773-774, 685 N.Y.S.2d 844 [3d Dept. 1999] ; see also Cirelli v. Victory Memorial Hosp. , 45 A.D.2d 856, 856, 358 N.Y.S.2d 537 [2d Dept. 1974] ["We apprehend no beneficial reason to put the plaintiff in a malpractice action (who most often is less likely than the defendant to have knowledge of proper surgical procedures, medicines and tests) to a greater burden than plaintiffs in other types of personal injury actions."] [internal quotation marks omitted]).
In light of those guiding principles, the court concludes that defendant Montefiore is not entitled to relief at this time with respect to plaintiff's bill of particulars. The demands to which defendant Montefiore desires amended responses (demand numbers 3, 6, 7, and 28-31) seek largely evidentiary matter or expert opinion (see Patterson v. Jewish Hosp. and Med. Ctr. , 94 Misc. 2d 680, 405 N.Y.S.2d 194 [Sup. Ct., Kings County 1978], affd 65 A.D.2d 553, 409 N.Y.S.2d 124 [2d Dept. 1979] ; see also Colwin v. Katz , 90 A.D.3d 516, 934 N.Y.S.2d 309 [1st Dept. 2011] ), and plaintiff's responses to demand numbers 3, 6, and 29-31 were adequate. Regarding demand numbers 7 and 28, which ask plaintiff to identify certain individuals relevant to plaintiff's claims (see generally Brusco v. St. Clare's Hosp. and Health Ctr. , 128 A.D.2d 390, 512 N.Y.S.2d 675 [1st Dept. 1987] ), plaintiff is directed to amend her responses to those demands prior to the filing of the note of issue and certificate of readiness.
To the extent defendant Jopal complains that plaintiff's bill of particulars as to it failed to provide sufficient specificity regarding the nature of the acts and omissions underlying plaintiff's medical malpractice and negligence claims against it, that complaint is without merit (see Monzon v. Chiaramonte, supra ). Because the basis of a Public Health Law § 2801-d claim is the deprivation of a right conferred by contract, statute, regulation, code or rule (see Henry v. Sunrish Manor Ctr. for Nursing and Rehabilitation , 147 A.D.3d 739, 46 N.Y.S.3d 649 [2d Dept. 2017] ), yet plaintiff's response to demand number 3 of defendant Jopal is focused largely on plaintiff's claims of malpractice and negligence, plaintiff is to amend her response to demand number 3 to further particularize her § 2801-d claim. If plaintiff is presently unable to do so because she lacks information relevant to that demand, she should follow the procedure outline in Miccarelli v. Fleiss, 219 A.D.2d 469, 631 N.Y.S.2d 159 [1st Dept. 1995].
Accordingly, it is hereby ORDERED, that plaintiff's motion to compel defendants to conduct depositions remotely is granted; and it is further
ORDERED, that, within 20 days after service on defendants of a copy of this decision and order with notice of entry thereof, counsel are to confer regarding the various procedural and logistical issues that must be negotiated in advance of plaintiff's remote deposition, and work in good faith to resolve all such issues; and it is further
ORDERED, that plaintiff's counsel is to notify the court by e-mail immediately after counsel have conferred on and resolved such issues so that the court can schedule a remote, pre-deposition conference; and it is further,
ORDERED, that, within 30 days after the pre-deposition conference with the court, the parties are to conduct plaintiff's remote deposition; and it is further,
ORDERED, that, within 10 days after the completion of plaintiff's deposition, counsel are to confer and work in good faith to set a schedule for the remote depositions of the defendant-deponents, and conduct the defendant-deponents' depositions in accordance with any such schedule; and it is further,
ORDERED, that, absent a stipulation among the parties to the contrary, the following rules will govern each remote deposition: (1) except for a court reporter, the deponent's counsel, or both, no individual is permitted to be physically present in the same room as the deponent during his or her deposition; (2) the deponent is prohibited from communicating with anyone in any manner during his or her deposition except for the individuals participating in the deposition; (3) the deponent's counsel's communications with the deponent during his or her deposition are to be limited to subjects appropriate under 22 NYCRR part 221; (4) prior to initiating any private communication with the deponent during his or her deposition, the deponent's counsel must first announce his or her intention to do so; and (5) at all times during his or her deposition, the deponent and his or her counsel must be visible on screen (whether together in the same room or in separate physical locations); and it is further,
ORDERED, that, the cross motion of defendant Montefiore Medical Center is granted to the extent that, prior to the filing of the note of issue and certificate of readiness, plaintiff is directed to amend her responses to demand numbers 7 and 28 of Montefiore's demand for bill of particulars; and it is further,
ORDERED, that the cross motion of defendant Montefiore Medical Center is otherwise denied; and it is further,
ORDERED that the cross motion of defendant Jopal Bronx, LLC (d/b/a Workmen's Circle Multicare Center) is granted to the extent that, within 20 days after service upon her of a copy of this decision and order with notice of entry thereof, plaintiff is directed to amend her response to demand number 3 of Jopal's demand for bill of particulars to further particularize her Public Health Law § 2801-d claim; and it is further,
ORDERED, that the cross motion of defendant Jopal Bronx, LLC (d/b/a Workmen's Circle Multicare Center) is otherwise denied.
This constitutes the decision and order of the court.