Opinion
400458/2013
08-26-2016
Frantz St. Cloux, Plaintiff, v. Park South Tenants Corporation, THE CITY OF NEW YORK, HE NEW YORK CITY TRANSIT AUTHORITY and BROWN HARRIS STEVENS RESIDENTIAL MANAGMENET LLC, Defendants.
For defendants Park South Tenants Corp and Brown Harris Stevens Residential Management LLC: Tarshis & Hammerman LLP By: Elysa B. Wolfe, Esq. 118-35 Queens Boulevard Forest Hills, NY 11375 (718) 793-5000 For Plaintiff By: G. Wesley Simpson, Esq. 1016 Ralph Avenue Brooklyn, NY 11236 (718) 345-8213
For defendants Park South Tenants Corp and Brown Harris Stevens Residential Management LLC: Tarshis & Hammerman LLP By: Elysa B. Wolfe, Esq. 118-35 Queens Boulevard Forest Hills, NY 11375 (718) 793-5000 For Plaintiff By: G. Wesley Simpson, Esq. 1016 Ralph Avenue Brooklyn, NY 11236 (718) 345-8213 Michael D. Stallman, J.
In this action arising out of a sidewalk trip and fall, defendants Park South Tenants Corporation (Park South) and Brown Harris Stevens Residential Management LLC (Brown Harris) move for an order compelling plaintiff to appear for a further deposition and imposing costs upon counsel. Plaintiff opposes the motion and cross-moves for a protective order denying the further deposition. Park South and Brown Harris oppose the cross motion.
BACKGROUND
On August 14, 2011, at about 4:15 pm, plaintiff allegedly tripped and fell on a sidewalk abutting the premises located at 200 Central Park South in Manhattan. (Wolfe Affirm., Ex A [Bill of Particulars] ¶¶ 2-3, 6.)
Pursuant to a so-ordered stipulation dated May 29, 2014, plaintiff agreed to provide defendants with "statements, witness information, color photographs, and exhibits marked at 50-H hearing within 30 days. [Defendants] to bear cost of color photographs and payment to be made prior to response." (Wolfe Affirm., Ex D.) Plaintiff was again directed to provide the color photographs in a so-ordered stipulation dated August 14, 2014. (Wolfe Affirm., Ex E.) By a so-ordered stipulation dated December 4, 2014, plaintiff was "to advise [defendants] within 7 days of cost of reproducing color photos." (Wolfe Affirm., Ex F.) By a letter dated April 7, 2015, Park South and Brown Harris's counsel tendered a check in the amount of seven dollars for the color photographs. (Wolfe Affirm., Ex G.)
Plaintiff appeared for a deposition on June 19, 2015, which started at 10:30 a.m. and ended at 2:15 p.m. (Wolfe Affirm., Ex H [Plaintiff's EBT].) Plaintiff testified that he works as a parking attendant for GMC, and that he worked at 200 Central Park South from 2003 until 2014. (Id. at 17.) When asked about his general and usual work hours for GMC in August 2011, plaintiff answered, "That day, my schedule is from 8:00 a.m. to 8:00 p.m." (Id. at 25.) According to plaintiff, the accident happened at or near a metal grating. (Id. at 75.)
During the deposition, plaintiff's counsel made several objections and directed plaintiff not to answer. Plaintiff's counsel also stated that he did not have the original photographs with him at the deposition. (Id. at 75.)
By a so-ordered stipulation dated July 23, 2015, plaintiff agreed "to provide Park South and Brown Harris CNY [City of New York] + TA with color copies of photographs within 14 days or an affidavit regarding search conducted for same." (Wolfe Affirm., Ex I.) The stipulation also states, "[Defendants] reserve their right to seek a further deposition of plaintiff as to lines of questioning marked for a ruling at Plaintiff's 6-19-15 deposition at the next conference."
In an affidavit sworn to on August 21, 2015, plaintiff states, in relevant part:
"2. I took some photographs on my cellular phone of the location and vicinity where my accident took place.(Wolfe Affirm., Ex J.) According to Park South and Brown Harris's counsel, plaintiff's counsel turned over color photographs at the compliance conference on November 19, 2015, asserting that they had been misfiled. (Wolfe Affirm. ¶ 15.)
3. I no longer have the cellular phone which I used to take the photographs.
4. I therefore no longer have the original color photographs and am not in possession of the color photographs I took.
5 I have searched my house, my belongings, and I cannot find the color photographs.
6. Presently, I do not have the original color photographs in my possession and do not know of the whereabouts of the original color photographs.
7. I will continue to search for the color photographs and if I find them, I will turn them over."
Park South and Brown Harris now move for an order compelling plaintiff to appear for a further deposition and imposing costs upon counsel pursuant to CPLR 3126 and 22 NYCRR 130-1.1. Plaintiff cross-moves for a protective order denying the further deposition.
DISCUSSION
Park South and Brown Harris argue that plaintiff must return for a further deposition because (1) plaintiff did not provide defendants with color photographs until after his deposition, and therefore defendants did not have an opportunity to question plaintiff about the photographs; and (2) plaintiff's counsel improperly directed plaintiff not to answer certain questions at his deposition.
It is undisputed that color photographs were not provided until after plaintiff's deposition was held. Although plaintiff averred in his August 2015 affidavit that he no longer had the original color photographs in his possession and did not know of the whereabouts of the original color photographs, plaintiff's counsel apparently provided defendants with the color photographs in November 2015. The Court rejects plaintiff's argument that defendants are not entitled to a further deposition of plaintiff because they could have questioned plaintiff with black and white photographs in their possession. As Park South and Brown Harris indicate, the quality and resolution of the black and white copies of the photographs pale in comparison to the color photographs that were later turned over. (Compare Wolfe Affirm., Ex K with Wolfe Opp. Affirm., Ex A.)
Turning to the issue of whether plaintiff's counsel properly directed plaintiff not to answer certain questions at his deposition, it is helpful to bear in mind that "the scope of examination on deposition is broader than what may be admissible on trial." (White v Martins, 100 AD2d 805, 805 [1st Dept 1984]; cf. Orner v Mount Sinai Hosp., 305 AD2d 307, 309 [1st Dept 2003] ["the evidentiary scope of an examination before trial is at least as broad as that applicable at the trial itself"].) "In conducting depositions, questions should be freely permitted unless a question is clearly violative of a witness' constitutional rights, or of some privilege recognized in law, or is palpably irrelevant.'" (Barber v BPS Venture, Inc., 31 AD3d 897 [3d Dept 2006] [citation omitted]; Freedco Prods. v New York Tel. Co., 47 AD2d 654 [2d Dept 1975]; see O'Neill v Ho, 28 AD3d 626, 627 [2d Dept 2006].)
In 2006, the Uniform Rules for Trial Courts were amended to add Part 221, also known as the Uniform Rules for the Conduct of Depositions. Part 221 was designed to combat obstructive behavior during a deposition. 22 NYCRR 221.1 permits objections only with regard to those that would be waived if not interposed, pursuant to CPLR Rule 3115. Section 221.2 requires a deponent to answer all questions, except to preserve a privilege or right of confidentiality or when the question is plainly improper and would, if answered, cause significant prejudice to any person. Section 221.2 further prohibits an attorney from directing a deponent not to answer, except in certain circumstances.
Section 221.1 provides, in pertinent part:
"(a). Objections in general. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR.
(b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent....Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning."
Section 221.2 states, in relevant part: "An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefore."
Here, plaintiff's counsel directed his client not to answer a question about injuries that plaintiff sustained in a prior motor vehicle accident, a question to which plaintiff's counsel objected as calling for a hypothetical, and a question to which plaintiff counsel objected as improperly "reconstituting" plaintiff's testimony.
Questioning about injuries in a prior motor vehicle accident
Plaintiff testified as follows:
"Q. Were you claiming you sustained injuries in your automobile accident?* * *
A. Yes.
Q. To what parts of your body did you sustain injuries in your automobile accident?
[Plaintiff's counsel]: Note my objection. Improper question
[Park South and Brown Harris's Counsel]: Okay. Go ahead.
[Plaintiff's counsel]: Improper question.
[Park South and Brown Harris's Counsel]: I heard you.
[Plaintiff's counsel]: He's not going to answer an improper question.
[Park South and Brown Harris's counsel]: Please mark it for a ruling.
[Plaintiff's counsel]: Mark it for a ruling.
[Plaintiff's counsel]: We'll come back. Look at what the rule says. It says you're not allowed to answer an improper question, a palpably irrelevant or questions that are privileged. Read the rule.* * *
[Park South and Brown Harris's counsel]: Sir, you say objection, he answers the question, we get a ruling.(Plaintiff's EBT, at 13-15.)
[Plaintiff's counsel]: No, no. Ma'am, that's not how it works. You're trying to abuse the rule to get information that you're not entitled to. That's what you're doing.
[Park South and Brown Harris's counsel]: You're saying it's palpably improper—
[Plaintiff's counsel]: Yes.
[Park South and Brown Harris's Counsel]: — and it is not. Are you saying it is privileged?
[Plaintiff's counsel]: It is palpably improper. Okay? You're only entitled to ask about the injuries that he's claiming in this accident. Go read the rules. You're not entitled to every injury he's ever had in his entire life that's not related to this accident."
Contrary to the assertion of plaintiff's counsel, it was proper to ask plaintiff, "To what parts of your body did you sustain injuries in your automobile accident?" "A defendant is entitled to discovery to determine the extent, if any, that plaintiff's claimed injuries and damages are attributable to accidents other than the one at issue here." (McGlone v Port Auth. of NY & N.J., 90 AD3d 479, 480 [1st Dept 2011] quoting Rega v Avon Prods., Inc., 49 AD3d 329 [1st Dept 2008].)
Inquiry into the injuries that plaintiff claims he sustained in a prior motor vehicle accident bears on whether the parts of his body claimed to have been injured in the alleged trip and fall on August 14, 2011 were previously injured. "[I]t is only fair and in keeping with the liberal discovery provisions of the CPLR to permit the opposing party to obtain whatever information is necessary to present a full and fair picture of that condition." (Matter of Farrow v Allen, 194 AD2d 40, 45-46 [1st Dept 1993].) The question is reasonably calculated to lead to admissible evidence as to whether the injuries allegedly sustained in the alleged trip and fall on August 14, 2011 might be attributable to a prior incident.
To the extent that plaintiff raises privilege, the physician-patient privilege does not shield plaintiff from having to disclose the injuries that plaintiff suffered in the prior motor vehicle accident. "[A] witness may not refuse to answer questions regarding matters of fact . . . merely because those topics relate to events that required medical care or advice from a physician." (Williams v Roosevelt Hosp., 66 NY2d 391, 397 [1985].)
The "hypothetical" question
Plaintiff testified as follows:
"Q. If a guest at the Essex House in August of 2011 had a car that was already in the garage, would they, on occasion, call the garage to bring the car to them?(Plaintiff's EBT, at 39-40.)
[Plaintiff's counsel]: Note my objection to form. Calling for a hypothetical, which is for an expert.
[Park South and Brown Harris's counsel]: Let me be clear. You're telling him not to answer?
[Plaintiff's counsel]: If you rephrase your question, he can answer it.
[Park South and Brown Harris's counsel]: Let's mark it for a ruling. I'll attempt to rephrase it.
BY [Park South and Brown Harris's counsel]:
Q. Was it the practice at GMC located at 200 Central Park South in August of 2011 to receive a call from people who were staying at the Essex House requesting their cars?
A. Actually, not the clients, itself. The workers, the people that work at the hotel."
Plaintiff's objection is overruled, and plaintiff is directed to answer the question. Plaintiff was not asked to express an opinion on questions of fact relating to a matter outside the range of ordinary knowledge, skill, or experience. (See Meiselman v Crown Hgts. Hosp., 285 NY 389, 396 [1941].) Neither did the question call for speculation. The question, albeit inartfully framed, calls upon plaintiff's personal knowledge and experience as a parking attendant.
Counsel could have asked, "In August 2011, did any guests at the Essex House call the garage to bring a car that the guest had parked at the garage?"
The objection on the ground of improperly "reconstituting" plaintiff's testimony
Plaintiff testified as follows:
"Q. Okay. Sir, can you estimate for me in August of 2011 how many times per day would you take a car over to the Essex House for a guest?* * *
A. Five, six times.
Q. Five or six?
A. Five or six. Right.
Q. Can you estimate for me in August of 2011 how many times you picked up cars from people at the Essex House to bring over?[Plaintiff's counsel]: Don't answer that question.
A. Around five, six times.
Q. So, sir, is it correct to say that in August 2011, you would make approximately, five or six trips to the Essex House to pick up the car?
[Park South and Brown Harris's counsel]: Can I finish the question before you tell him not to answer it, sir? That's the second time you're interrupting my question telling the witness not to answer.By [Park South and Brown Harris's counsel]: Q. And you would make, approximately five or six trips back from the Essex House after you had dropped off a car on a given day?
[Plaintiff's counsel]: You paused; right?
[Park South and Brown Harris's counsel]: I'm breathing.
[Plaintiff's counsel]: I don't know about breathing. You paused. It sounded as if your question was over. Okay?
[Park South and Brown Harris's counsel]: Can we read it back, please, Ms. Reporter, my sentence fragment?
(At this time, the requested testimony was read back.)
[Park South and Brown Harris's counsel]: Let me finish.
[Plaintiff's counsel]: Don't answer that question.[Plaintiff's counsel]: You're reconstituting his testimony, okay? And you're not allowed to do that.
[Park South and Brown Harris's counsel]: Why is he not answering that question? You know what? Mark it for a ruling.
[Park South and Brown Harris's counsel]: Sir, if you have a problem with the form of the question, you tell me—(Plaintiff's EBT at 43-45 [emphasis supplied].)
[Plaintiff's counsel]: It's not a form. It's a reconstitution of the testimony.
[Park South and Brown Harris's counsel]: Mark it for a ruling. I'm not going to argue with you. You've told him three times not to answer a question twice when I didn't even finish the question. You're violating every rule.
[Plaintiff's counsel]: Even if your question calls for a reconstitution and it's an illegal question? You cannot ask—the testimony speaks for itself.
[Park South and Brown Harris's counsel]: It's an illegal question?
[Plaintiff's counsel]: Yes. You're not allowed to take the testimony that's already stated and reconstitute it into your own words. Okay? If you don't believe me, go do your research.
[Park South and Brown Harris's counsel]: When you are sworn in as a judge, I will be happy to hear from you as to what is legal or not illegal. Please, I will ask you again, if you have an objection to a question, state objection, and we will move on. Please, sir.
[Plaintiff's counsel]: That's what I did."
Plaintiff's counsel, who defended the deposition, was apparently concerned that defendants' counsel was summarizing plaintiff's testimony in a way that might not have been accurate. Indeed, one treatise cautions, "You must also be careful that a question does not mischaracterize the witness's prior testimony." (3 Haig, Commercial Litigation in New York State Courts, § 26:26 at 881 [West's NY Prac Series 4th ed.].) Another treatise states,
"Don't Let Examiner Summarize Testimony(Barr, Altman, Lipshie, & Gerstman, New York Civil Practice Before Trial § 27:327 [2011].)
Inform the witness that the examiner may preface a question by claiming to restate, summarize, or describe the witness's prior testimony. . . . Instruct the witness never to assume the examiner's preface is accurate.The witness should carefully consider whether the preface correctly reflects the facts, as the witness knows them. . . . Above all, the witness should not let the examiner put words into the witness's mouth. Instruct the witness that if the examiner uses a preface, the witness should give you time to consider the entire question and object if necessary."
On the other hand, questions that are intended to clarify the witness's testimony are permissible. Plaintiff testified that, on a daily basis, he went five or six times to the Essex House to pick up vehicles, and that he picked up cars from the Essex House five or six times. It appears that Park South and Brown Harris's counsel attempted to clarify the total number of times during the day that plaintiff went to and from the Essex House.
In any event, an objection that a question misstates or mischaracterizes prior testimony is an objection to the form of a question. Thus, plaintiff's counsel was not permitted to direct plaintiff not to answer those questions of Park South and Brown Harris's counsel.
The Court reminds counsel that, under the Uniform Rules for the Conduct of Depositions, a deponent must answer all questions, except to preserve a privilege or right of confidentiality or when the question is plainly improper and would, if answered, cause significant prejudice to any person. (22 NYCRR 221.2.) Thus, it is not enough that a question is plainly improper; answering the plainly improper question must also cause significant prejudice in order to permit counsel to direct the witness not to answer. While it is possible that a question intended to clarify a witness's testimony might elicit an answer that appears inconsistent with prior testimony, the possibility of inconsistent statements does not constitute significant prejudice. Recognizing such an exception for the witness not to answer due to that concern would effectively swallow the general rule of 22 NYCRR 221.2.
Therefore, the objections are overruled.
Given all the above, defendants are entitled to a further deposition of plaintiff, which is limited to questions about the color photographs, the questions which plaintiff's counsel directed plaintiff not to answer which were discussed above, and any follow-up questions. Within 45 days, plaintiff shall appear for a further deposition. Plaintiff's cross motion for a protective order denying the further deposition is denied.
The branch of Park South and Brown Harris's motion for sanctions, based on improper directions to plaintiff not to answer the questions at his deposition, is denied. The Court exercises its discretion not to sanction plaintiff's counsel. (Compare with Freidman v Fayenson, 41 Misc 3d 1236(A) [Sup Ct, NY County 2013], affd sub nom. Freidman v Yakov, 138 AD3d 554 [1st Dept 2016].) However, the Court exercises its discretion to award Park South and Brown Harris $100 in costs of their motion. (CPLR 8106, 8202.)
CONCLUSION
It is hereby
ORDERED that the motion by defendants Park South Tenants Corporation and Brown Harris Stevens Residential Management LLC is granted in part; and it is further
ORDERED that, within 45 days, plaintiff shall appear for a further deposition, and the deposition shall be limited to questions about the color photographs, questions which this Court ruled were proper in this decision, and any follow-up questions; and it is further
ORDERED that defendants Park South Tenants Corporation and Brown Harris Stevens Residential Management LLC shall recover of plaintiff $100 as costs of this motion; and it is further
ORDERED that the motion is otherwise denied; and it is further
ORDERED that plaintiff's cross motion for a protective order denying the further deposition is denied. Dated: August 26, 2016New York, New YorkENTER: