Opinion
2011-11-15
James SCHIAVONE, et al., respondents, v. KEYSPAN ENERGY DELIVERY NYC, et al., appellants, et al., defendants.
Cullen and Dykman, LLP, Brooklyn, N.Y. (Richard A. Shannon of counsel), for appellants. Pontisakos & Rossi, P.C., Roslyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondents.
Cullen and Dykman, LLP, Brooklyn, N.Y. (Richard A. Shannon of counsel), for appellants. Pontisakos & Rossi, P.C., Roslyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondents.
MARK C. DILLON, J.P., RANDALL T. ENG, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, etc., the defendants Keyspan Energy Delivery NYC, Hallen Construction Co., Inc., and New York Paving, Inc., appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated May 27, 2010, which denied their motion to preclude the plaintiffs from offering evidence on the issue of damages or, in the alternative, to compel the plaintiff James Schiavone to provide authorizations for the release of certain medical records, and granted the plaintiffs' motion to compel the defendant Keyspan Energy Delivery NYC to produce Casey Giambrone for deposition and the defendant Hallen Construction Co., Inc., to produce Jimmy Koskol for deposition.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the plaintiffs' motion to compel the defendant Keyspan Energy Delivery NYC to produce Casey Giambrone for deposition and the defendant Hallen Construction Co., Inc., to produce Jimmy Koskol for deposition, and substituting therefor a provision denying the plaintiffs' motion; as so modified, the order is affirmed, without costs or disbursements.
The Supreme Court providently exercised its discretion in denying the motion of the defendants Keyspan Energy Delivery NYC (hereinafter Keyspan), Hallen Construction Co., Inc. (hereinafter Hallen), and New York Paving, Inc. (hereinafter collectively the defendants), which was to preclude the plaintiffs from offering evidence on the issue of damages or, in the alternative, to compel the plaintiff James Schiavone (hereinafter the injured plaintiff) to provide authorizations for the release of certain medical records. Contrary to the defendants' contention, the injured plaintiff did not place his entire medical condition in controversy with broad allegations of physical injury and mental anguish in the bill of particulars ( see DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d 1092, 1093, 913 N.Y.S.2d 774; Abdalla v. Mazl Taxi, Inc., 66 A.D.3d 803, 804, 887 N.Y.S.2d 250; Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 839 N.Y.S.2d 211; Avila v. 106 Corona Realty Corp., 300 A.D.2d 266, 267, 750 N.Y.S.2d 764). The bill of particulars alleged only specific injuries to the injured plaintiff's left knee, and he has provided authorizations for the release of the pertinent medical files ( cf. Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456–457, 470 N.Y.S.2d 122, 458 N.E.2d 363; DeLouise v. S.K.I. Wholesale Beer Corp., 79 A.D.3d at 1093, 913 N.Y.S.2d 774). The defendants' demands with respect to the injured plaintiff's entire medical history are patently overbroad and burdensome ( see Azznara v. Strauss, 81 A.D.3d 578, 579, 915 N.Y.S.2d 868; Bongiorno v. Livingston, 20 A.D.3d 379, 381, 799 N.Y.S.2d 98; Holness v. Chrysler Corp., 220 A.D.2d 721, 722, 633 N.Y.S.2d 986).
For the purposes of deposition, a corporate entity has the right to designate, in the first instance, the employee who shall be examined ( see Thristino v. County of Suffolk, 78 A.D.3d 927, 910 N.Y.S.2d 664; Nunez v. Chase Manhattan Bank, 71 A.D.3d 967, 968, 896 N.Y.S.2d 472; Seattle Pac. Indus., Inc., v. Golden Val. Realty Assoc., 54 A.D.3d 930, 932, 864 N.Y.S.2d 500; Sladowski–Casolaro v. World Championship Wrestling, Inc., 47 A.D.3d 803, 850 N.Y.S.2d 176). A further deposition may be allowed where the movant has demonstrated that (1) the employee already deposed had insufficient knowledge, or was otherwise inadequate, and (2) the employee proposed to be deposed can offer information that is material and necessary to the prosecution of the case ( see Aronson v. Im, 81 A.D.3d 577, 915 N.Y.S.2d 639; Spohn–Konen v. Town of Brookhaven, 74 A.D.3d 1049, 902 N.Y.S.2d 391; Nunez v. Chase Manhattan Bank, 71 A.D.3d at 968, 896 N.Y.S.2d 472; Seattle Pac. Indus., Inc. v. Golden Val. Realty Assoc., 54 A.D.3d at 932, 864 N.Y.S.2d 500; Saxe v. City of New York, 250 A.D.2d 751, 752, 671 N.Y.S.2d 1002). Here, the plaintiffs failed to satisfy this burden with respect to Keyspan and Hallen ( cf. Antreasyan v. Antreasyan, 245 A.D.2d 405, 406, 666 N.Y.S.2d 672; Colicchio v. City of New York, 181 A.D.2d 528, 581 N.Y.S.2d 36). Accordingly, the Supreme Court should have denied the plaintiffs' motion to compel Keyspan to produce Casey Giambrone for deposition and Hallen to produce Jimmy Koskol for deposition.