Opinion
6727-09.
Decided October 19, 2011.
In this action to recover damages for personal injuries, the plaintiffs, move for an order, in motion sequence No. 4, pursuant to CPLR 3124, compelling the defendants/third party plaintiffs (MTA Long Island Bus, Metropolitan Suburban Bus Authority, Metropolitan Transportation Authority, Charles McNulty III) to provide responses to various discovery demands, and, pursuant to 22 NYCRR 130-1, for sanctions based on the failure to provide such discovery.
In motion sequence No. 3, the defendant/third-party defendant (National Seating Co.) moves for an order pursuant to CPLR 3124 compelling the defendants/third-party plaintiffs to provide a response to an outstanding discovery demand.
In motion sequence No. 4, the defendant/third party defendant (National Seating Co.) moves for an order pursuant to CPLR 3124 to compel the defendant/third party plaintiff, Charles McNulty III, to respond to (a) question(s) posed at his deposition but which his attorney refused to let him answer.
Background
The plaintiffs' complaint alleges that on October 13, 2008, plaintiff Deborah Berk was operating a motor vehicle in which plaintiff Judith Berk was a passenger when it was struck by a bus operated by defendant/third-party plaintiff McNulty and owned by the other defendants/third-party plaintiffs. Plaintiffs further allege that the accident, which resulted in serious injuries to them, occurred when McNulty lost control of the bus and "plowed through several cars that were stopped in front of it at a red light" (Affirmation in Support of Motion at p. 2). McNulty, who ceased working for defendant/third-party MTA Long Island Bus the day following the accident, testified that just prior to the accident, his pants became caught on an adjustment bar, which made the seat "fly forward" and "lock into position", causing his "foot to go into the accelerator which made [him] hit a few cars in the left-hand lane" (Exhibit "D" to the Affirmation in Support of Motion: Deposition Transcript of McNulty at p. 26).
Based on the deposition testimony given by McNulty, the defendants/third-party plaintiffs commenced a third-party action against the bus and seat manufacturers, respectively. Thereafter, the manufacturers were also named as direct defendants.
The plaintiffs' complaint alleges, inter alia, that the defendants/third-party plaintiffs were negligent in their operation and maintenance of the bus.
The contentions of the parties and the court's determination
Motion Sequence No. 4
The plaintiffs' notice of motion describes 10 demands which were alleged to be improperly responded to by the defendants/third party plaintiffs. Subsequent to service of the motion, the defendants/third party plaintiffs provided responses to several of the demands. Accordingly, the plaintiffs withdrew the branch of the motion to the extent that such responses were provided. The outstanding discovery demands are as follows (Exhibit "E" to Affirmation in Support of Motion):
4.Any documents relating to disciplinary actions or personnel actions instituted against Charles McNulty related to the accident.
5.All documents in the personnel file of Charles McNulty which relate to the Accident.
6.Any records of any employment arbitration proceeding conducted between Charles McNulty and any other Defendant herein following the Accident, including but not limited to any portion of such proceeding which relates to the causes of the Accident.
10.Any document, relating to the Accident, prepared for or submitted to the Public Safety Transportation Board of the New York Sate Department of Transportation, including but not limited to any incident report or accident report such as a "New York State Department of Transportation Accident Notification Form".
11.Any documents, relating to the Accident, prepared by the Public Safety Transportation Board, including but not limited to any incident report or accident report.
The following responses were given by the defendants/third-party plaintiffs to the aforementioned demands (Exhibit "H" to Affirmation in Support of Motion):
Reply to Demand No. 4:
Objection to demand for documents relating to disciplinary actions against Charles McNulty as palpably improper. Such documents are privileged as they would be contained in the bus operator's personnel file.
It is well established that personnel files are not discoverable in negligence actions where, as here, there is no claim for negligent hiring. See Jordan v Blue Circle Atlantic, Inc., 296 AD2d 752 (3rd Dept. 2002); Gerardi v Nassau/Suffolk Airport Connection, Inc., 288 AD2d 181 (end Dept. 2001) citing Stevens v Metropolitan Suburban Bus Authority, 117 AD2d 733 (2nd Dept. 1986); Reynolds v Pham, 212 AD2d 991 (4th Dept. 1995). Where there is no claim for negligent hiring, any prior acts of carelessness or incompetence of the defendant's employee would neither be admissible at trial nor relevant to the issues presented and is not discoverable. See Stevens, 117 AD2d 733. Further, even if there were a claim for negligent hiring, such a claim is not sustainable
Reply to Demand No. 5:
Objection to demand for personnel file of Charles McNulty as palpably improper. Such documents are privileged. See paragraph 4.
Reply to Demand No. 6:
Objection to demand for records of employment arbitration as palpably improper. Such documents are privileged as they would be contained in the bus operator's personnel file. See paragraph 4.
Reply to Demand No. 10:
Objection to demand for PTSB report as same is a matter of public record, if such a report exists. Further, the defendants have provided copies of accident reports prepared by the defendants (see 9, above), and if such a report exists, it would be privileged as part of the bus operator's personnel file.
Reply to Demand No. 11:
See paragraph 10.
In the instant motion, the plaintiffs contend that all of the requested items are discoverable, that the defendants/third-party plaintiffs agreed to provide responses to the outstanding discovery requests, that no privilege exists which serves to protect the requested portions of McNulty's personnel file, and that the availability of certain documents as part of the public record does not exempt such documents from disclosure.
The defendants/third-party plaintiffs assert that because there is no claim for negligent hiring and also that they concede applicability of the doctrine of respondeat superior, McNulty's personnel file is not discoverable. They add that documents prepared "for or prepared by the Public Transportation Safety Board * * * if they exist, would be a public record. Further, any such documents would be contained in the personnel file of Mr. McNulty and are not discoverable" (Affirmation in Opposition to the Motion at p. 4).
Contrary to the contentions of the defendants/third party plaintiffs, the documents requested by the plaintiffs from the personnel file of McNulty are not undiscoverable merely because they are contained within his personnel file. In this regard, the case relied upon by the defendants/third-party plaintiffs, Neiger v City of New York ( 72 AD3d 663 [2d Dept 2010]), is distinguishable given that the request for documents therein was not limited, as it is here, to documents pertaining to the subject accident. The court notes that had the plaintiffs phrased their discovery demand differently, i.e., any documents in your possession prepared in connection with the accident, the defendants/third-party plaintiffs would have been required, in the absence of some legitimate objection, to produce the requested documents irrespective of where they were filed. Furthermore, to accept the defendants/third-party plaintiffs' argument would require the court to accept that any information placed in a personnel file — no matter how germane or detrimental to a party's claim or defense, becomes privileged, and, therefore, undiscoverable, merely because it was placed in a personnel file, provided a negligent hiring claim has not been advanced.
It is significant that the defendants/third-party plaintiffs made no objection to the breadth of the plaintiffs' demand nor did they assert that any documents were prepared for litigation.
Accordingly, it is hereby ordered that the defendants/third-party plaintiffs shall produce all information requested in demands 4, 5 and 6 within 15 days of the date hereof. There shall be no adjournment of this deadline.
With respect to demand 10, the response of the defendants/third-party plaintiffs was inadequate. It is, therefore, ordered that the defendants/third-party plaintiffs shall, within 15 days of the date hereof, provide copies of any documents prepared by them which were submitted to the Public Safety Transportation Board of the New York Sate Department of Transportation in relation to the subject accident.
With respect to demand 11, inasmuch as the requested document(s) appear to be obtainable as public records, the defendant/third-party plaintiffs are not required to provide same to the plaintiffs ( see e.g., Villa v New York City Housing Authority, 107 AD2d 619, 621 [1st Dept 1985]["It was also error for Special Term to permit inquiry under a notice to admit with regard to an an ownership registration on file as a public record' * * * inasmuch as plaintiff would have as much access to such information as does defendant."]; Bath Medical Supply, Inc. a/a/o Lynn Karam v Allstate Indemnity Co., 27 Misc 3d 92 [Appellate Term 2d Dept 2010]). It is thus ordered that the motion is denied in that regard, as is the branch of the plaintiffs' motion for sanctions.
Motion Sequence No. 3
The defendant/third-party defendant National Seating Co. moves for an order compelling the defendants/third-party plaintiffs to provide a response to a single demand in its notice for discovery and inspection (Exhibit "1" to Affirmation in Support of Motion at p. 5):
15. All records reflecting the training and/or instruction of third-party plaintiffMcNulty in the operation of the seat.
The response of the defendants/third-party plaintiffs to this demand indicated (Exhibit "4" to Affirmation in Support of Motion at p. 1):
15. Objection to demand for "records reflecting the training and/or instruction of third-party plaintiff McNulty in the operation of the seat." Any such records would be contained in Mr. McNulty's personnel file, which is not discoverable pursuant to Neiger v City of New York , 72 AD3d 663 (2d Dept 2010).
In their opposition to the motion, the defendants/third-party plaintiffs state: "No such records exist, thus Defendants/Third Party Plaintiffs are unable to produce them. Therefore, National Seating's motion to compel should be denied" (Affirmation in Opposition to the Motion at p. 2).
In reply, the defendant/third-party defendant asks the court to award it attorneys' fees based on the conduct of the defendants/third-party plaintiffs in making what appears to be a frivolous objection, failing to disclose that the documents did not exist despite numerous conferences, thereby necessitating the instant motion and incursion of unnecessary attorneys' fees.
Based on the foregoing, it is hereby ordered that the motion is denied, however, considering the frivolous objection raised by the defendants/third-party plaintiffs and their failure to explain such conduct, it is further ordered that the application for attorneys' fees sought under 22 NYCRR Part 130, is set down for a hearing to make findings of fact essential to the determination thereof. The hearing shall be held on December 2, 2011 at 9:30 a.m. in Part 19.
Motion Sequence No. 5
The defendant/third-party defendant National Seating Co. moves for an order compelling the defendant/third-party plaintiff McNulty to answer a question regarding what treatment was rendered to him at the hospital immediately following the accident. The following contains relevant portions of the deposition transcript, which the court has considered in resolving the issue raised in this motion (Exhibit "1" to Affirmation in Support of Motion at p. 44-49: Deposition of McNulty):
Q.Previously, you said you were in transition. You came off the accelerator and was [sic] moving to the brake?
A.No, I said I don't recollect during the events of it happening what I was doing.
Q.You testified you were in transition. You had taken your foot off the accelerator and moved to the brake.
A.Okay. Then, if I said that, that's what I remembered at the time. Then, okay. All I know is when that went forward I hit the accelerator and I was trying to get over to the brake pedal.
Q.You said you were jammed up against the dashboard?
A.(Uh-huh)
Q.What part of your body was jammed up against the dashboard?
A.Waist, stomach area, legs.
Q.Your waist was jammed up against the dashboard.
A.No response.
Q.What about the steering wheel?
A.I'm giving you my best recollection. Maybe, my stomach area was on the steering wheel. I can't give you exact where the anatomy of my body was. As far as being pinned up, I would think my stomach area was about where the steering wheel was and the rest of my body was underneath. The waist down was underneath the dashboard.
QUnderneath the dashboard?
A.Yes.
Q.How far were your legs underneath the dashboard?
A.The dashboard's here (indicating). My waist down is level with the dashboard. It would be underneath.
Q.How far in?
A.I couldn't tell you how far in.
Q.More than six inches in?
A.I couldn't tell you.
Q.Were your legs bruised at all?
A.Not that I recall. I don't recall.
Q.Your thighs?
A.I don't recall.
Q.Did you go to the hospital?
A.Yes.
Q.Did they treat you?
A.For what?
MS. BROOKS: Objection
Don't answer.
MR. KINNALLY: It has to do with what happened in the vehicle. What's the problem with asking what happened?
MS. BROOKS: I don't think the injuries he suffered has anything to do with the cause of the accident.
MR. KINNALLY: It has to do with his credibility.
MRS. BROOKS: He testified he doesn't remember whether or not he has bruising on his legs.
MR. KINNALLY: Come on, Samantha.
MS. BROOKS: By asking him additional questions about his medical treatment is not relevant. It's just not relevant what he was treated for. He testified he doesn't remember having any bruises.
MR. KINNALLY: It's relevant to what happened in the cab.
MS. BROOKS: I don't think it is.
MR. KINNALLY: You can't tell him he can't testify about it.
MR. BROOKS: I don't think it is.
MR. KINNALLY: Yes I can. It's not relevant whatever treatment happened.
***
(Witness stepping outside of the conference room.)
MR. KINNALLY: You can object as to form.
MS. BROOKS: I understand that. But, the questions related to his medical condition are not part of this case and we're not going to allow it. It's privileged, frankly the.
MR. KINNALLY: What happened in that cab is part of this case and his credibility as a witness and his ability to remember things is a big part of this case.
MS. BROOKS: Any treatment he received is privileged.
MR. KINNALLY: He said he was underneath the dashboard. So I'm certainly within my rights to find out — to pursue that — to say "Okay, when you went underneath the dashboard, what happened to you?
MS. BROOKS: He already testified he doesn't remember.
MR. KINNALLY: I'm trying to refresh his recollection and I'm entitled to do that.
MS. BROOKS: I don't think that qualifies as refreshing his recollection. I think you are asking questions about a matter that was privileged. Anything that happened in the hospital between the doctor and patient is privileged.
MR. KINNALLY: It goes to the happening of the accident. It demonstrates what parts of his body came into contact with the portion of the bus and he testified there were defects in the bus that caused the accident.
Now, he is claiming the defects were the sole cause of the accident. Certainly, any injury he sustained coming into contact with the portion of the bus that are defective the privileges [sic] is waived.
It goes to the heart of the case and I'm not sure there is a privilege to begin with. We are not talking about medical records or asking questions of the doctor. He certainly knows what his condition was at the time of the accident. I don't want to get into relevancy. We're entitled to inquire into this.
MS. BROOKS: Can we go off record?
(Discussion was held off the record)
(Witness stepped back into the conference room)
MR. KINNALLY: Back on the record. Notwithstanding the stipulation on the records, you are directing the witness not to answer any questions about his condition at the hospital following the accident?
MS. BROOKS: Yes. My client is asserting the position of privilege and it is my position any further requests for information relating to the medical treatment or injuries should be on paper and we will respond if we have to be ordered to produce him again for these injuries at that time.
At the time I am instructing my client not to answer.
Contrary to the contentions of the defendants/third-party plaintiffs, in consideration of the claims and defenses of the parties, and the testimony given by McNulty, McNulty may be questioned regarding the injuries he suffered, limited as indicated in the motion of defendant/third-party defendant.
It is therefore ordered that the motion is granted and the defendant/third-party plaintiff McNulty shall appear, within 30 days of the date hereof, for a continued deposition limited to the extent stated herein.
This constitutes the decision and order of the court.