Opinion
108798/2007.
Decided October 15, 2010.
Frederick C. Aranki Esq., Block, O'Toole Murphy, for Plaintiff.
Angela Y. Baker-Spencer Esq., Smith Mazure Director Wilkins Young Yagerman, P.C., for Defendants.
Defendants move to renew or reargue their motion to take the depositions of chiropractor Michael Arber and plaintiff's wife Lesbia Maroquin in New Jersey, which the court previously denied in an order dated March 18, 2010. C.P.L.R. § 2221(d) and (e). Assuming defendants meet the standard for renewal or reargument, the court, upon oral argument and for the reasons explained below, still denies their motion for this disclosure long after plaintiff filed his note of issue.
I. STANDARDS FOR NONPARTY DISCLOSURE AFTER THE NOTE OF ISSUE
A. Disclosure From Nonparties
Plaintiff, in opposing the disclosure defendants seek, persists in applying the long abandoned requirement of "special circumstances" to support disclosure from nonparties such as Dr. Arber and plaintiff's wife. E.g., Schroder v. Consolidated Edison Co. of NY, 249 AD2d 69, 70 (1st Dep't 1998); BAII Banking Corp. v. Northville Indus. Corp., 204 AD2d 223, 224 (1st Dep't 1994). Since the 1984 amendment to C.P.L.R. § 3101(a)(4), the First Department has required, according to the statute itself, only "notice," without the need for a motion, "stating the circumstances or reasons such disclosure is sought." Velez v. Hunts Point Multi-Serv. Ctr., Inc. , 29 AD3d 104 , 109 (1st Dep't 2006); Kooper v. Kooper , 74 AD3d 6 , 12-13 (2d Dep't 2010). See Lennon v. Metro N. Commuter R.R. Co. , 51 AD3d 432, 433 (1st Dep't 2008). This "generous" standard, BAII Banking Corp. v. Northville Indus. Corp., 204 AD2d at 224, is simply "to afford a nonparty who has no idea of the parties' dispute or a party affected by such request an opportunity to decide how to respond." Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d at 110; Kooper v. Kooper, 74 AD3d at 13.
Thus, for defendants' purpose of obtaining nonparty depositions, defendants must articulate only why they need the depositions and that the information sought is relevant to a defense. As long as the depositions are not unduly burdensome or prejudicial to the nonparties, defendants are entitled, as C.P.L.R. § 3101(a)(4) mandates further, to "full disclosure of all matter material and necessary in the . . . defense," from nonparties as well as parties. Schroder v. Consolidated Edison Co. of NY, 249 AD2d at 70. See Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d at 111-12; BAII Banking Corp. v. Northville Indus. Corp., 204 AD2d 223.
The standard allowing disclosure of "all matter material and necessary," C.P.L.R. § 3101, is by those terms broad and 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." Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406 (1968); Osowski v. AMEC Constr. Mgt., Inc. , 69 AD3d 99 , 106 (1st Dep't 2009); Kooper v. Kooper, 74 AD3d at 10. Although this standard is liberal, it is not a limitless carte blanche. Albert v. Time Warner Cable, 255 AD2d 248 (1st Dep't 1998); Zohar v. Hair Club for Men, 200 AD2d 453, 454 (1st Dep't 1994); Kooper v. Kooper, 74 AD3d at 10; Lopez v. Huntington Autohaus, 150 AD2d 351, 352 (2d Dep't 1989). "The test is one of usefulness and reason . . . to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable." Allen v. Crowell-Collier Publ. Co., 21 NY2d at 406-407 (quotation omitted). See Kooper v. Kooper, 74 AD3d at 10.
Neither plaintiff nor the prospective deponents raise any issue as to relevance, burden, or prejudice. Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d at 112-13; Schroder v. Consolidated Edison Co. of NY, 249 AD2d at 70-71. See Phoenix Life Ins. Co v. Irwin Levinson Ins. Trust II , 70 AD3d 476 , 477 (1st Dep't 2010); Tannenbaum v. City of New York , 30 AD3d 357 , 358-59 (1st Dep't 2006). As discussed further below, plaintiff simply questions whether defendants would gather any information from Dr. Arber not already available from medical records or whether plaintiff's wife is in a position to provide the relevant information defendants seek from her. Phoenix Life Ins. Co v. Irwin Levinson Ins. Trust II, 70 AD3d at 477; Tannenbaum v. City of New York, 30 AD3d at 358-59; Monica W. v. Milevoi, 252 AD2d 262, 263-64 (1st Dep't 1999); Kooper v. Kooper, 74 AD3d at 16-17. See Capati v. Crunch Fitness Intl., 295 AD2d 181 (1st Dep't 2002); Schroder v. Consolidated Edison Co. of NY, 249 AD2d at 71. Such a restrictive definition of the need required, "that the information sought . . . could not be obtained from other sources," is reserved, however, for nonparty disclosure that already has been obtained, Reich v. Reich , 36 AD3d 506 , 507 (1st Dep't 2007); Kooper v. Kooper, 74 AD3d at 18; is not otherwise necessary, id. at 15; fails to meet the additional threshold requirement for relevance, Phoenix Life Ins. Co v. Irwin Levinson Ins. Trust II, 70 AD3d at 477; Tannenbaum v. City of New York, 30 AD3d at 358-59; or may impose an undue burden. Reich v. Reich, 36 AD3d at 507; Tannenbaum v. City of New York, 30 AD3d at 358-59; Kooper v. Kooper, 74 AD3d at 10-11, 18.
Nevertheless, whether defendants must show, simply to depose nonparties, that the information to be gleaned is unobtainable from other sources, is of no consequence here. Defendants' failure to show that defendants are likely to uncover relevant and non-cumulative information from Dr. Arber or plaintiff's wife is, along with other factors, fatal to any disclosure, from nonparties or parties, after the note of issue.
B. Disclosure After the Note of Issue
To conduct any disclosure after the note of issue, whether from nonparties, as here, or parties, defendants must demonstrate "unusual or unanticipated circumstances" that "develop subsequent to the filing of the note of issue," which require conducting additional disclosure "to prevent substantial prejudice." 22 N.Y.C.R.R. § 202.21(d). See Wiebusch v. Bethany Mem. Reform Church , 51 AD3d 577, 578 (1st Dep't 2008); Bermel v. Dagostino , 50 AD3d 303, 304 (1st Dep't 2008); Esteva v. Catsimatidis , 4 AD3d 210 , 211 (1st Dep't 2004). A lack of diligence in seeking disclosure does not constitute such circumstances. Colon v. Yen Ru Jen, 45 AD3d 359, 360 (1st Dep't 2007).
II. THE DEPOSITION OF DR. ARBER
Dr. Arber treated plaintiff in New Jersey for an injury in 2002. Defendants discovered this injury and its treatment upon their receipt of diagnostic films from Cliffside Park Imaging and Diagnostic Center in New Jersey indicating an injury and treatment in 2002. Plaintiff provided defendants an authorization to obtain the films and any other records from Cliffside Park Imaging in October 2008, five months before serving a note of issue, alerting defendants then to plaintiff's prior treatment in New Jersey. Defendants' failure to obtain the disclosure they seek thus may not be attributed to plaintiffs' nondisclosure. See Bermel v. Dagostino, 50 AD3d at 304; Hill v. Elliman-Gibbons Ives, 269 AD2d 117, 118 (1st Dep't 2000).
Defendants are vague, and plaintiff disputes, as to when defendants actually received the films or other records from Cliffside Park Imaging. Defendants suggest they first received these materials when they received their radiologist's review and report of the films in September 2009, six months after the note of issue was served in March 2009. Their radiologist could not have obtained the films to review, however, except by defendants receiving them first and then forwarding them.
In any event, defendants undisputedly received the information of plaintiff's diagnostic tests or treatment at Cliffside Park Imaging through his authorizations in October 2008. At that point, well before the note of issue and thus well before defendants' time to move to vacate the note of issue expired, defendants possessed enough information to know they still wanted further disclosure of plaintiff's prior treatment in New Jersey. 22 N.Y.C.R.R. § 202.21(e); Miller v. Metropolitan 810 7th Ave. , 50 AD3d 474, 475 (1st Dep't 2008); Schroeder v. IESE NY Corp. , 24 AD3d 180 , 181 (1st Dep't 2005). See Rosenberg v. Schlossman, 72 AD3d 623 (1st Dep't 2010); Chichilnisky v. Trustees of Columbia Univ. in City of NY , 52 AD3d 206 (1st Dep't 2008). If they had not yet received the diagnostic films, they knew they still needed records from Cliffside Park Imaging.
Moreover, if defendants did not actually receive the films until September 2009, defendants fail to explain why they waited 11 months from October 2008. Orr v. Yun , 74 AD3d 473 (1st Dep't 2010); Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Colon v. Yen Ru Jen, 45 AD3d at 360; Schroeder v. IESE NY Corp. , 24 AD3d 180 , 182. If defendants received the films before April 2009, defendants fail to explain why they did not move to vacate the note of issue if they wanted their radiologist to review and report on films relating to plaintiff's 2002 injury and treatment in New Jersey. Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Schroeder v. IESE NY Corp., 24 AD3d at 181. See Rosenberg v. Schlossman, 72 AD3d 623; Chichilnisky v. Trustees of Columbia Univ. in City of NY , 52 AD3d 206 . If defendants received the films after April, but before September 2009, defendants still fail to explain why they did not obtain that expert review and report of the 2002 diagnostic films and treatment until more than six months after the note of issue. Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Schroeder v. IESE NY Corp., 24 AD3d at 181.
In sum, defendants fail to explain why they did not either (1) obtain the disclosure they now seek before the note of issue, Orr v. Yun , 74 AD3d 473 ; Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Colon v. Yen Ru Jen, 45 AD3d at 360; Schroeder v. IESE NY Corp. , 24 AD3d 180 , 182, or (2) timely move to vacate the note of issue when they had not obtained the disclosure they now seek, yet had received indication of plaintiff's injury and treatment in 2002. Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Schroeder v. IESE NY Corp., 24 AD3d at 181. They thus fail to show the unusual or unanticipated circumstances required to conduct disclosure at this late stage. Orr v. Yun , 74 AD3d 473 ; Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Colon v. Yen Ru Jen, 45 AD3d at 359-60; Schroeder v. IESE NY Corp., 24 AD3d at 181.
Finally, since defendants have obtained Dr. Arber's records of his examination and treatment of plaintiff, which occurred in 2002, defendants have not indicated that Dr. Arber, eight years later, will recall any more than his records already disclose. Rosenberg v. Scaringi, 279 AD2d 389, 390 (1st Dep't 2001). Defendants acknowledge that Dr. Arber did not examine or treat plaintiff subsequently. Therefore Dr. Arber has no knowledge of plaintiff's 2005 injuries claimed in this action, to testify how they relate to his 2002 injuries. Monica W. v. Milevoi, 252 AD2d at 263-64. Furthermore, defendants always may interview Dr. Arber. Arons v. Jutkowitz , 9 NY3d 393 , 409-10, 415-16 (2007); Shefer v. Tepper , 73 AD3d 447 (1st Dep't 2010); Singh v. Singh , 51 AD3d 770 , 771 (2d Dep't 2008); Poser v. Varnovitsky , 46 AD3d 1295 , 1296 (3d Dep't 2007). Thus it is questionable, at best, whether Dr. Arber's deposition is even useful to determining any connection between plaintiff's condition after his 2005 injuries and Dr. Arber's examination or treatment in 2002, especially in view of the opinion by defendants' radiologist, the 2002 films, and Dr. Arber's complete records, all pertaining to that issue. Phoenix Life Ins. Co v. Irwin Levinson Ins. Trust II, 70 AD3d at 477; Reich v. Reich, 36 AD3d at 507; Bustos v. Lenox Hill Hosp. , 29 AD3d 424, 426 (1st Dep't 2006); Rosenberg v. Scaringi, 279 AD2d at 390. See Bermel v. Dagostino, 50 AD3d at 304; Esteva v. Catsimatidis, 4 AD3d at 211; Capati v. Crunch Fitness Intl., 295 AD2d 181.
IV. THE DEPOSITION OF PLAINTIFF'S WIFE
Regarding plaintiff's wife, Lesbia Maroquin, from whom defendants also seek to obtain evidence of plaintiff's condition and treatment before his 2005 injuries, defendants simply fail to show why they did not depose her before the note of issue. Orr v. Yun , 74 AD3d 473 ; Miller v. Metropolitan 810 7th Ave., 50 AD3d at 475; Colon v. Yen Ru Jen, 45 AD3d at 360; Schroeder v. IESE NY Corp. , 24 AD3d 180 , 182. Nor do defendants demonstrate any relation between the claims in this action and her potential testimony. Bustos v. Lenox Hill Hosp., 29 AD3d at 425-26; Monica W. v. Milevoi, 252 AD2d at 263-64. See Bermel v. Dagostino, 50 AD3d at 304; Esteva v. Catsimatidis, 4 AD3d at 211; Capati v. Crunch Fitness Intl., 295 AD2d 181. Defendants do not dispute her attestation that she was in Guatemala in 2002 and did not even know plaintiff then. It is thus difficult to fathom, particularly given the medical evidence pertaining to plaintiff's condition in 2002 as compared to 2005, what light Lesbia Maroquin's deposition might shed on that or any other relevant issue. Phoenix Life Ins. Co v. Irwin Levinson Ins. Trust II, 70 AD3d at 477; Bustos v. Lenox Hill Hosp., 29 AD3d at 426.
V. CONCLUSION
For all the above reasons, the court denies defendants' motion to renew or reargue their motion to take the depositions of chiropractor Michael Arber and plaintiff's wife Lesbia Maroquin in New Jersey. C.P.L.R. § 2221(d) and (e). This decision constitutes the court's further order.