Opinion
Index No. 153222/2017
10-16-2024
Alexandre Veloso, Plaintiff, v. Scaturro Brothers, Inc. D/B/A Alpine Painting & Sandblasting Contractors, Sima Peintin Corporation, Nova Development Group, Inc., Super P57, LLC, Hunter Roberts Construction Group, LLC, 562 Morris Holdings, LLC, Environmental Planning & Management, Inc., Integral Engineering, P.C., Hudson River Park Trust, Defendants. Super P57, LLC Plaintiff, v. Allran Electric of N.Y., LLC, and Able Equipment Rental, Inc., Defendants.
Law Offices of Lawrence Perry Biondi, P.C., White Plains, NY (Richard Mandel of counsel), for plaintiff. Cullen and Dykman LLP, New York, NY (Steven C. Capobianco of counsel), for defendant Hunter Roberts Construction Group, L.L.C. Golden, Rothschild, Spagnola, Lundell, Boylan, Garubo & Bell, P.C., New York, NY (Amanpreet S. Dhaliwal of counsel), for defendants Hudson River Park Trust and Super P57 LLC.
Unpublished Opinion
Law Offices of Lawrence Perry Biondi, P.C., White Plains, NY (Richard Mandel of counsel), for plaintiff.
Cullen and Dykman LLP, New York, NY (Steven C. Capobianco of counsel), for defendant Hunter Roberts Construction Group, L.L.C.
Golden, Rothschild, Spagnola, Lundell, Boylan, Garubo & Bell, P.C., New York, NY (Amanpreet S. Dhaliwal of counsel), for defendants Hudson River Park Trust and Super P57 LLC.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 008) 257, 258, 259, 260, 261, 262, 268, 278, 279, 280, 281 were read on this motion to VACATE NOTE OF ISSUE.
The following e-filed documents, listed by NYSCEF document number (Motion 009) 263, 264, 265, 266, 267, 269, 270, 271, 272, 273, 274, 275, 276, 277 were read on this motion to VACATE NOTE OF ISSUE.
The following e-filed documents, listed by NYSCEF document number (Motion 013) 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 377, 385, 386, 387, 388, 389, 390, 391, 392, 393, 401, 402 were read on this motion to SUMMARY JUDGMENT.
This is a personal-injury action brought under the Scaffold Law by plaintiff, Alexandre Veloso, against various defendants involved in the construction project on which Veloso was injured in 2016. Given the number of parties involved, the discovery process in this action was lengthy and contentious, requiring extensive communication and conferencing among counsel and the court to resolve scheduling and substantive disputes. Plaintiff (finally) filed his note of issue in March 2024. (See NYSCEF No. 256.)
See e.g. Veloso v Scaturro Bros., Inc., 68 Misc.3d 1024 [Sup Ct, NY County 2020] [addressing permissible scope of instructions not to answer deposition questions]; NYSCEF No. 248 [order setting court-determined deposition dates after the parties could not resolve their disagreements on dates during a discovery conference].)
Three defendants, Hudson River Park Trust and Super P57 LLC (mot seq 008), and Hunter Roberts Construction Group, LLC (mot seq 009), now move to vacate the note of issue on the ground that additional discovery is required. Plaintiff opposes each motion and cross-moves for sanctions under 22 NYCRR 130-1.1.
The court is not persuaded that the additional discovery identified by moving defendants warrants vacating the note of issue under the particular circumstances of this litigation. The court does conclude, though, that some supplemental, post-note discovery is required; and that in light of the need for that discovery, the summary-judgment motion brought by third-party-defendant Allran Electric of NY, LLC (mot seq 013), must be denied as premature. Plaintiff's cross-motions for sanctions are denied.
DISCUSSION
The two motions to vacate rely on similar arguments and present similar questions. They are addressed together.
Defendants raise four arguments for vacatur. (1) Plaintiff filed his note of issue before the parties could take the scheduled deposition of an Allran witness. (2) Defendants were not able, before the note of issue, to take the deposition of nonparty witness Roberto Azevedo. (3) Plaintiff still must provide defendants with copies of various medical reports and authorizations. (4) A federal civil RICO action against plaintiff's treating physician (and many other defendants) has raised serious questions about the legitimacy of plaintiff's medical treatment that must be explored through further discovery, including depositions of the treating physicians. These arguments are considered in turn.
I. The Deposition of a Witness from Allran
Defendants rely first on their inability to depose a corporate witness from third-party defendant Allran. It is undisputed that plaintiff filed his note of issue while that deposition was pending but not yet completed-indeed, that plaintiff's counsel himself had set a date for that deposition and then filed the note of issue before the scheduled date. (See NYSCEF No. 276 [correspondence among counsel].) In opposing vacatur of the note of issue, plaintiff contends that this deposition was unnecessary because counsel for Allran had advised the parties that it "simply did not have any other witness/employee who was onsite at the time of the accident at issue." (NYSCEF No. 270 at 6-7 ¶ 20, citing NYSCEF No. 273 [email from counsel for Allran].) Therefore, plaintiff asserts, "a further Allran deposition is unnecessary and is being merely used as a pretext for yet further delay." (Id. at 7 ¶ 20.) This court disagrees.
An Allran witness had previously been deposed; he was not on-site at the time of plaintiff's accident. (See NYSCEF No. 322 [deposition transcript].).
That Allran was unable to provide a witness who could shed light on the particular circumstances of plaintiff's accident is insufficient to exhaust the relevance of the scheduled deposition. In particular, Allran had agreed to provide a corporate witness with knowledge of its contract and the scope of the work that it was undertaking. This witness's testimony would be potentially relevant to one of Allran's central defenses to the claims against it: That it was not responsible for lighting the particular area of the (large) project site where plaintiff fell, and therefore could not be at fault for the poor lighting conditions that plaintiff alleges contributed to his fall. (See NYSCEF No. 343 at 4-10 [Allran mem. of law in support of summary judgment].) At a minimum, defendant Super P57, LLC-the party that impleaded Allran in the first place-should be entitled to depose Allran on these important scope-of-work-related questions.
Discovery is not, therefore, complete, as plaintiff stated in his note of issue. At the same time, the note of issue was filed nearly seven months ago; and this case has now been pending for seven years -a substantial part of which has been spent grappling with the challenges of scheduling numerous depositions in an action involving many parties (and many lawyers). (See e.g. NYSCEF No. 248 [order imposing court-selected deposition dates].) Additionally, considered relative to the action as a whole, the relevance of the Allran deposition is limited. That deposition does not go to plaintiff's claims, the bulk of the third-party claims, or the associated dispositive-motion practice. It will affect only Allran's motion for summary judgment seeking dismissal of the cross-claims, and Super P57's third-party claim, brought against it.
In these circumstances, movant's request to vacate the note of issue altogether is denied. Instead, the court concludes, limited post-note discovery is warranted. The deposition of a witness from Allran, with knowledge of the contract at issue and the scope of work under that contract, shall go forward no later than 60 days from service of notice of entry of this decision. The parties shall confer on the manner of the deposition and on a mutually convenient date within that period. If the deposition does not occur within 60 days from service of notice of entry, it will be deemed waived unless the source of the delay is Allran itself. Any adjournment of the deposition, once scheduled, shall require court approval, to be sought by letter (e-filed on NYSCEF and emailed to SFC-Part7-Clerk@nycourts.gov).
Additionally, given the need for further discovery material to the cross-claims and third-party claim against Allran, the summary-judgment motion seeking to dismiss those claims (mot seq 013) is denied as premature. (See CPLR 3212 [f].) The denial of the motion is without prejudice to its renewal within 30 days of exchange of the signed deposition transcript or 60 days from the taking of the deposition, whichever comes first. The court expresses no opinion at this time about how any such renewed motion should be resolved.
This decision also does not address the other motions for summary judgment. Those motions will be decided on the merits in due course.
II. The Deposition of Roberto Azevedo
Moving defendants also argue that the note of issue should be vacated because of the need to depose nonparty witness Roberto Azevedo. (NYSCEF No. 256 at ¶ 23; NYSCEF No. 258 at ¶ 22.) This court disagrees. Defendants' own motion papers reflect that plaintiff identified Azevedo as a potential witness in a February 2020 discovery response. (See NYSCEF No. 260). Moreover, plaintiff provides a copy of a January 2018 letter to counsel for defendants that identified Azevedo as "a witness to the condition of the accident site and scissor-lift at the time of plaintiff's accident," and gave his last-known address. (See NYSCEF No. 272.) Yet movants do not represent (or document) that they noticed or subpoenaed Azevedo's deposition at any time prior to plaintiff's filing of the note of issue-or even that they had reserved the right to do so. That deposition has been waived.
Azevedo's name does not, for example, appear in any of the (detailed) conference-order provisions governing deposition scheduling in this action-nor, to the court's knowledge, in any of the (extensive) email correspondence among the parties and the court about depositions.
III. The Post-Note Medical Authorizations (and Medical Reports)
Next, movant Hunter Roberts contends that the note of issue should be vacated because plaintiff has not provided (i) updated authorizations for medical and financial records, and Arons authorizations permitting defendants' counsel to interview plaintiff's physicians; or (ii) narrative reports generated by plaintiff's treating physicians "recit[ing]... the injuries and conditions as to which testimony will be offered" (22 NYCRR 202.17 [b] [1]). Plaintiff acknowledges that updated trial/ Arons authorizations must be provided, arguing merely that "[s]uch authorizations are in process and will be provided with more than ample time to spare" before trial. (NYSCEF No. 270 at ¶ 22.) Plaintiff does not address the issue of § 202.17 physicians' reports.
Hunter Roberts also refers in passing to discovery about "social media accounts which were never disclosed" (NYSCEF No. 264 at 5) and "previously demanded Workers' Compensation records" (id. at 6). But Hunter Roberts does not identify more specifically what materials it seeks that fall into these two categories; nor show that defendants served demands for these materials within a reasonable time of learning of their existence.
The court is not persuaded that the need to provide these medical and financial materials warrants vacating the note of issue-especially because that the authorizations at issue are expressly for purposes of trial, not pre-trial discovery. With respect to the physicians' reports, Hunter Roberts does not show that it was prejudiced by not having received those reports during pretrial discovery. Indeed, Hunter Roberts expressly acknowledges that it did not object at the time to plaintiff's failure to provide those reports. (See NYSCEF No. 264 at ¶ 27.) Hunter Roberts is correct that the absence of objection "does not negate the plaintiff's requirement to comply with this rule." (Id.; see Colindres v Carpenito, 55 Misc.3d 856, 862-863 [Sup Ct, Westchester County 2017], citing Scannapieco v New York Cit Tr. Auth., 200 A.D.2d 410, 413 [1st Dept 1994].) That absence does weigh heavily against vacating the note of issue now, though.
Regardless, plaintiff must provide updated authorizations, along with copies of the § 202.17 physicians' reports. Plaintiff must provide the authorizations within 60 days of service of notice of entry; and copies of the reports within 90 days of service of notice of entry.
IV. The Deposition of Plaintiff's Treating Physician(s)
Defendants argue that additional nonparty discovery is required with respect to some of plaintiff's physicians based on allegations in a federal civil RICO action that those physicians were co-conspirators in an extensive fraudulent-treatment scheme at the expense of the State's Workers' Compensation system and of Scaffold Law defendants. (See NYSCEF No. 264 at ¶¶ 30-34 [attorney affirmation]; NYSCEF No. 262 [Complaint, Roosevelt Road Re, Ltd. v Hajjar, Dkt. No. 24-cv-01549, ECF No. 1 [ED NY Mar. 1, 2024].) But the Roosevelt Road action was filed a month before the note of issue-and, from the length and detail of the initial complaint, had been in the works for a considerable time before it was filed. Yet defendants never raised the issue of that action (filed or impending) with this court. At most, therefore, the Roosevelt Road action might warrant post-note discovery. Defendants provide no explanation for why vacatur of the note of issue would also be appropriate.
With respect to post-note discovery, this court agrees with movants that the allegations in the Roosevelt Road complaint-including against some of plaintiff's medical providers-are serious. But plaintiff is correct that defendants have not on this motion provided any evidence or documents that might "demonstrate[] any of plaintiff's treating physicians did anything wrong or improper with respect to plaintiff's medical care and treatment in this matter." (NYSCEF No. 270 at ¶ 21 [emphasis added].) For example, the federal complaint identifies common patterns in the allegedly fraudulent treatment claims, including with respect to underlying "accidents," the nature and descriptions of treatments provided, ensuing physical-therapy notes, and the like. (See Roosevelt Road, Dkt. No. 24-cv-01549, ECF No. 1, at ¶¶ 11, 230-269.) Movants do not on this motion assert (or provide evidence) that plaintiff's claimed injuries, treatment records, and the like fit into the pattern identified in the Roosevelt Road complaint.
Additionally, plaintiffs in Roosevelt Road have already discontinued their claims against all but one of the providers identified in movants' papers. (Compare NYSCEF No. 275 at ¶ 11 [listing providers], with Roosevelt Road, Dkt. No. 24-cv-01549, ECF No. 77 [notice of voluntary discontinuance as to some defendants].)
This court does not mean to rule out the possibility of permitting post-note discovery on this subject. But absent a stronger showing, made through a motion on notice directed to that subject, the court does not see a basis to do so at this time.
V. Plaintiff's Cross-Motion for Sanctions
On both motions to vacate, plaintiff cross-moves for sanctions under 22 NYCRR 130-1.1. (See NYSCEF No. 269.) Plaintiff denounces the motions as "disingenuous" efforts by movants "undertaken realistically only for the purpose of more delays" and to further prolong discovery. (NYSCEF No. 270 at ¶ 23.) As reflected above, although the court does not agree with movants that plaintiff's note of issue should be vacated, the court also does not agree with plaintiff that the motions to vacate are frivolous or vexatious, as required for an award of Part 130 sanctions. The cross-motions are denied.
Accordingly, it is
ORDERED that the motions to vacate the note of issue brought by Hudson River Park Trust and Super P57 LLC (mot seq 008), and by Hunter Roberts Construction Group, LLC (mot seq 009), are denied; and it is further
ORDERED that plaintiff's cross-motions for sanctions (mot seqs 008 and 009) are denied; and it is further
ORDERED that third-party defendant Allran's summary-judgment motion (mot seq 013) is denied without prejudice as set forth in Point I, above; and it is further
ORDERED that Allran shall produce a witness with knowledge for deposition by the deadline, and on the terms, set forth in Point I, above; and it is further
ORDERED that plaintiff shall provide defendants with updated authorizations and physicians' reports as set forth in Point III, above.