Opinion
Index No. 151501/2022
03-05-2024
Joann Gustafeste, Plaintiff, v. Veterans Road Holdings LLC and Z-Two Diner & Lounge Inc., Defendant.
Attorney for the Plaintiff Christopher James Soverow Subin Associates, LLP Attorney for the Defendant Jon D. Lichtenstein Sheeley, LLP.
Unpublished Opinion
Attorney for the Plaintiff
Christopher James Soverow
Subin Associates, LLP
Attorney for the Defendant
Jon D. Lichtenstein
Sheeley, LLP.
HON. RONALD CASTORINA, JR., JUSTICE OF THE SUPREME COURT
The following e-filed documents listed on NYSCEF (Motion #002) numbered 43-83 were read on this motion.
Upon the foregoing documents, and after oral argument conducted on February 1, 2024, on Motion Sequence #002, Motion Sequence #002 is resolved and therefore, it is hereby, ORDERED, that Plaintiff's request for a protective order pursuant to CPLR § 3103 staying the plaintiff's physical examination by Dr. Andrew Bazos and an order precluding Dr. Andrew Bazos as examining physician is DENIED; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
On August 24, 2022, Plaintiff filed his summons and complaint to recover for personal injuries sustained on April 30, 2022, when she allegedly tripped and fell on a staircase owned and maintained by Defendants. On October 24, 2022, Defendants answered the complaint. Plaintiff filed her supplemental summons and complaint on October 26, 2022, which Defendants answered on October 26, 2022.
Plaintiff filed Motion Sequence #002 by Notice of Motion on November 15, 2023, seeking (a) a protective order pursuant to CPLR § 3103 staying the plaintiff's physical examination by Dr. Andrew Bazos on behalf of Defendants and an order precluding Dr. Andrew Bazos as examining physician on the grounds of his personal bias; and (b) for such other and further relief as the Court deems just and proper.
Defendants filed opposition on January 9, 2024. On January 16, 2024, Plaintiff filed reply. On February 1, 2024, oral argument was completed.
II. Facts
Plaintiff contends that she sustained personal injuries on April 30, 2022, when she tripped and fell due to an allegedly defective and poorly lit staircase owned and maintained by Defendants. At the status conference held on September 19, 2023, this Court ordered that Plaintiff's IME be conducted by October 31, 2023. (NY St Cts Filing [NYSCEF] Doc No. 48).
Defendants notified Plaintiff by correspondence, dated October 12, 2023, of their designation of Dr. Andrew Bazos to conduct the examination of Plaintiff. (NY St Cts Filing [NYSCEF] Doc No. 49). In correspondence, dated October 19, 2023, Plaintiff objected to the designation of Dr. Andrew Bazos "on the grounds that Dr. Bazos is so biased against injured parties that he is incapable of providing a credible opinion." (NY St Cts Filing [NYSCEF] Doc No. 50). Plaintiff contends that their objection to Dr. Bazos is based upon an in-depth review of his testimony and expert opinions provided in other matters. (NY St Cts Filing [NYSCEF] Doc No. 44). Plaintiff further notes that in addition to Dr. Bazos "earning millions of dollars from acting as an expert witness, he also leads a busy orthopedic surgery practice while also acting as the owner and head of an international business." (see id).
October 19, 2023, and October 27, 2023, Plaintiff and Defendants exchanged emails attempting unsuccessfully to resolve their impasse regarding the participation of Dr. Bazos in the IME. (NY St Cts Filing [NYSCEF] Doc No. 44). Defendants expressed their desire to retain Dr. Bazos with equal determination to Plaintiff's intent to remove him. (see id).
On November 15, 2023, Plaintiff filed Motion Sequence #002, seeking (a) a protective order pursuant to CPLR § 3103 staying the plaintiff's physical examination by Dr. Andrew Bazos on behalf of Defendants and an order precluding Dr. Andrew Bazos as examining physician on the grounds of his personal bias; and (b) for such other and further relief as the Court deems just and proper.
III. Discussion
CPLR 3103 and Protective Orders
CPLR §3103 centralizes the court's broad judicial power to make protective orders. A protective order is the law's perpetual guard, shielding parties and non-parties alike against disclosure abuses. A protective order is available no matter what disclosure device is implicated (Siegel, David New York Practice 6th Edition, §353). The Advisory Committee, whose draft of CPLR §3103[a] was passed by the legislature, set forth a number of matters that the court can regulate on a motion for a protective order, to wit: [1] the time, order, and place of taking depositions; [2] the number and names of persons to be questioned; [3]the time within which the information must be obtained; [4] the number, kinds of questions, or specific questions that may be asked; [5] the disclosure device or combination of devices that may be used; and [6] the matters that may or may not be inquired into (First Rep. Leg. Doc. No. 6[b], p. 124 [1957]).
The enumerated matters are illustrative, not exclusive (Siegel, supra, §353, p. 659). Although CPLR §3103 refers to disclosure devices, it also provides safeguards to prevent abuses with respect for demands for medical examinations (Rosenblitt v Rosenblitt, 107 A.D.2d 292, 294 [2d Dept 1985] (discussing, Wegman v Wegman, 37 N.Y.2d 940, 941 [1975]). Certainly, where valid reasons exist, a party may object to a designated physician and attempt to have another doctor conduct the examination for Defendant. (See 22 NYCRR. 202.17[a]; Casali v Phillips, 145 A.D.2d 941).
Here, Plaintiff seeks a protective Order pursuant to CPLR §3103 for the purpose of staying Plaintiff's physical examination by Dr. Andrew Bazos while at the same time seeking a hearing to preclude Dr. Andrew Bazos from examining the Plaintiff on the grounds of bias.
"A party's right to discovery is not unlimited, however, and may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party" (see Harrison v Bayley Seton Hosp., 219 A.D.2d 584 [2d Dept 1995] citing Conrad v Park, 204 A.D.2d 1011 [4th Dept 1994]). In making its ruling, the Court specifically cited Plaintiff's "demands were overly broad and vexatious and tended to confuse, rather than sharpen". (see Harrison v Bayley Seton Hosp., 219 A.D.2d 584 [2d Dept 1995]).
" CPLR § 3121 [a] provides that when the mental or physical condition of a party is in controversy, any party may serve notice on another party to submit to a physical or mental examination by a designated physician." (see Torelli v Torelli, 50 A.D.3d 1125 [2d Dept 2008]).
The Court further found "because the potential for abuse in matrimonial and custody cases is so great" (see id quoting Lohmiller v Lohmiller, 118 A.D.2d 760 [2d Dept 1986]; cf., Wegman v Wegman, 37 N.Y.2d 940 [1975]; Rosenblitt v Rosenblitt, 107 A.D.2d 292 [2d Dept 1985], "the court's discretionary power to limit disclosure and grant protective orders is equally broad" (see id quoting Garvin v Garvin, 162 A.D.2d 497 [2d Dept 1990]).
Plaintiff citation of Rosenblitt v Rosenblitt, 107 A.D.2d 292 [2d Dept 1985], in its argument for a protective order, however, the facts of this matter are distinct from Rosenblitt, a matrimonial matter where both parties were seeking custody of the infant issue of their marriage (see id). The Court reversed on the grounds that the party sought to be examined had already underwent a forensic evaluation by the Department of Social Services and thus the order compelling him to submit to further evaluation, by defendant's privately retained expert, was duplicative and harassing as well as inappropriate. (see id).
Rosenblitt is inapplicable in this matter because it did not involve a claim of personal injury which by its nature requires the plaintiff to waive privacy concerns and submit to a physical examination. The Court in Rosenblitt also noted that the retained psychiatrist "had already reached a conclusion favorable to the respondent" (see id) in a report from the expert's prior examination of the children, in that case, not on the expert's prior testimony in other cases.
Plaintiff's citation of the Fourth Department case, Casali v Phillips, 145 A.D.2d 941 [4th Dept 1988] does not bolster Plaintiff's argument. Casali denied the Plaintiff's request to have a stenographer at the physical examination citing Rosenblitt v. Rosenblitt, 107 A.D.2d 292 [2d Dept 1985], regarding the proposition that a party may object to the designation of a doctor and seek to have another doctor selected.
Plaintiff contends that Dr. Bazos' business practices raise concerns regarding his ability to dedicate the appropriate amount of time to the examinations of injured litigants as opposed to merely conducting rote examinations to bolster pre-conceived conclusions. (NY St Cts Filing [NYSCEF] Doc No. 45). Plaintiff maintains that Dr. Bazos has transformed his role as an expert witness into a multi-million-dollar business. (see id). Plaintiff further contend that Dr. Bazos' business practices raise "the question as to whether Dr. Bazos conducts meaningful reviews of records and physical examinations as opposed to merely churning out countless defense-friendly reports." (see id). Plaintiff purports that Dr. Bazos' business practices, prior testimony, and opinions, demonstrate a total lack of credibility and bias against Plaintiffs and as such seek the preclusion of Dr. Bazos.
"The plaintiffs' contention concerning the purported bias in the selection of comparable properties and capitalization rates by the defendant's expert in conducting the appraisal goes to the weight to be given to the expert's testimony, not the admissibility of the testimony" (see Oppedisano v Arnold, 191 A.D.3d 794 [2d Dept 2021] citing Noghrey v Town of Brookhaven, 168 A.D.3d 961 [2d Dept 2019]; White Knight NYC Ventures, LLC v 15 W. 17th St., LLC, 110 A.D.3d 576 [1st Dept 2013]).
"Our legal system generally 'leave[s] the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury'" (see Caldwell v Cablevision Sys. Corp., 86 A.D.3d 46 [2d Dept 2011] quoting Hoffa v United States, 385 U.S. 293 [1966]). "[T]he credibility of the compensated witness, like that of the witness promised a reduced sentence, is for a properly instructed jury" (see id citing United States v Wilson, 904 F.2d 656 [11th Cir 1990]).
"A jury is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination" (see Curry v Hudson Val. Hosp. Ctr., 104 A.D.3d 898 [2d Dept 2013] quoting Zapata v Dagostino, 265 A.D.2d 324 [2d Dept 1999]; citing Nelson v Schwartz, 90 A.D.3d 626 [2d Dept 2011]; Brady v New York, 39 A.D.2d 600 [2d Dept 1972]). "[A] jury is at liberty to reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion" (see id quoting Zapata v Dagostino, 265 A.D.2d 324 [2d Dept 1999]; citing Nelson v Schwartz, 90 A.D.3d 626 [2d Dept 2011]).
Where "the parties present expert testimony in support of their respective positions, it is the province of the jury to determine the experts' credibility" (see Rabinowitz v Elimian, 55 A.D.3d 813 [2d Dept 2008] citing Speciale v Achari, 29 A.D.3d 674 [2d Dept 2006]).
The "weight to be afforded the conflicting testimony of experts is a matter peculiarly within the province of the jury" (see Kusterman v Glick, 107 A.D.2d 664 [2d Dept 1985] quoting Sternemann v Langs, 93 A.D.2d 819 [2d Dept 1983]).
Plaintiff's contention is premised on presumptions that based on the size and scale of Dr, Bazos' practice, he cannot possibly have the appropriate amount of time necessary to conduct thorough examinations of injured litigants and review of their records and instead merely churns out defense-friendly reports. (NY St Cts Filing [NYSCEF] Doc No. 45). Plaintiff has not provided any medical evidence that is contrary to Dr. Bazos' findings and Plaintiff does provide any deposition testimony from any plaintiff who was examined by Dr. Bazos to dispute his findings.
Cross examination and the presentation of expert testimony to the jury in support of the Plaintiff's position is the appropriate remedy to the Defendant's concerns as pertaining Dr. Bazos' testimony and reports. Once provided with the evidence, it is for the jury to decide the credibility of Dr. Bazos and all expert witnesses. (see Rabinowitz v Elimian, 55 A.D.3d 813 [2d Dept 2008]).
Accordingly, Plaintiff's request for a protective order pursuant to CPLR § 3103 staying the plaintiff's physical examination by Dr. Andrew Bazos and an order precluding Dr. Andrew Bazos as examining physician is DENIED.
V. Decretal Paragraphs
It is hereby ORDERED that Plaintiff's request for a protective order pursuant to CPLR § 3103 staying the plaintiff's physical examination by Dr. Andrew Bazos and an order precluding Dr. Andrew Bazos as examining physician is DENIED; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of the Court.