Opinion
69449/2018
08-17-2020
Aaliyah FIELDS and Tyree Smith, Plaintiffs, v. MTA BUS COMPANY, Metropolitan Transportation Authority (MTA), New York City Transit Authority, The City of New York and Stephen Black, Defendants.
Plaintiff Aaliyah Fields is represented by: Hecht, Kleeger & Damashek, P.C., 19 West 44th Street-Suite 1500, New York, NY 10036, (212) 490-5700 Plaintiff Tyree Fields is represented by: German Rubenstein, LLP, 19 West 44th Street-Suite 1500, New York, NY 10036, (212) 704-2020 Defendants MTA Bus Company, Metropolitan Transportation Authority (MTA), New York City Transit Authority, The City of New York are represented by: Jeffrey Samel & Partners, 150 Broadway, Suite 1600, New York, NY 10038, (212) 587-9690
Plaintiff Aaliyah Fields is represented by: Hecht, Kleeger & Damashek, P.C., 19 West 44th Street-Suite 1500, New York, NY 10036, (212) 490-5700
Plaintiff Tyree Fields is represented by: German Rubenstein, LLP, 19 West 44th Street-Suite 1500, New York, NY 10036, (212) 704-2020
Defendants MTA Bus Company, Metropolitan Transportation Authority (MTA), New York City Transit Authority, The City of New York are represented by: Jeffrey Samel & Partners, 150 Broadway, Suite 1600, New York, NY 10038, (212) 587-9690
Joan B. Lefkowitz, J.
This motion is determined as follows: This action arises from personal injuries allegedly sustained as a result of a motorist accident that occurred on November 25, 2017. Plaintiffs commenced this action on November 26, 2018 by filing a Summons and Verified Complaint. Issue was joined by the defendants' filing of an Answer on March 14, 2019, followed by an Amended Answer filed on April 11, 2019, and a Second Amended Answer filed on June 6, 2019. A Preliminary Conference Stipulation and Order was filed on December 19, 2019. Therein, counsel stipulated that the plaintiffs' deposition shall be held by April 1, 2020, and Defendants' deposition shall be held on April 2, 2020.
NYSCEF Doc. 23.
A Compliance Conference was held on March 11, 2020. The Compliance Conference Order dated March 12, 2020 included the following directives:
NYSCEF Doc. 28.
(i)The deposition of Plaintiff [Fields] shall be held on May 11, 2020;
(ii)The deposition of Plaintiff [Smith] shall be held on May 12, 2020;
(iii)The deposition of Defendants shall be held on May 21, 2020.
Plaintiffs filed the instant motion pursuant to CPLR § 3124 to compel all parties to appear for depositions, and related relief as this Court may deem just and proper. Counsel contends the plaintiffs were ready, willing, and able to appear for remote depositions on the dates designated in the Compliance Order; however, defendants refused to proceed with plaintiffs' depositions citing a lack of medical records. To that end, plaintiffs contend that authorizations were previously provided to defense counsel on or about November 20, 2019 ; and plaintiffs also forwarded courtesy copies of all medical records in its possession. Counsel further contends that on May 15th, plaintiffs' counsel again agreed to provide courtesy copies of all medical records and, in the event the providers' records revealed any information that differs from those courtesy copies, counsel agreed to produce plaintiffs for a further deposition to address any such discrepancies.
See Plaintiffs' Motion at Ex. C.
Defendants filed opposition to the instant motion. Counsel states there is "no opposition to conducting depositions in the above-referenced matter"; however, at issue is "the timing and location of the depositions, held amid the COVID-19 pandemic". Counsel argues that the Governor's State of Emergency Order issued on March 7, 2020 made conducting deposition of plaintiffs on March 11 and 12 an impossibility. Defendants take the position that they intend to "personally conduct" the deposition of plaintiffs; however, defense counsel is unable to do so since its offices are located in New York City, which is still in a limited phase of reopening which does not permit such in-person operations at this time.
Defense counsel further argues that the Court lacks the authority to compel remote depositions in lieu of in-person depositions, noting that CPLR § 3113(d) provides that "[t]he parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically"(emphasis added ). Curiously, defense counsel states that defendant "would consider" stipulating to certain alternatives to in-person depositions "[s]hould Plaintiff wish to stipulate to limit the amount of damages obtainable".
Defendant's Aff. in Opposition ¶30.
Third, counsel argues that defendants have the right to in-person deposition which provide counsel with the opportunity to meet the plaintiffs to assess their demeanor and credibility during their deposition testimony. Stated differently, it is alleged that defendants would be prejudiced if the Court were to compel remote depositions of the plaintiffs.
Lastly, counsel objects to producing "essential personnel" from the Public Authority for depositions "until the State of Emergency normalizes". In that regard, counsel notes that bus operators are considered necessary personnel who have returned to work. The bus operator(s) should not be compelled to appear for a deposition in lieu of reporting to perform the essential work duties which are now imperative in light of "increased absenteeism, due to illness, and/or forced quarantine."
Decision
CPLR § 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." The phrase "material and necessary" is "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. The test is one of usefulness and reason" ( Allen v. Crowell-Collier Publishing Co. , 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ; see Kapon v. Koch , 23 N.Y.3d 32, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014], Foster v. Herbert Slepoy Corp., 74 A.D.3d 1139, 902 N.Y.S.2d 426 [2d Dept. 2010] ). Although the discovery provisions of the CPLR are to be liberally construed, "a party does not have the right to uncontrolled and unfettered disclosure" ( Merkos L'Inyonei Chinuch Inc. v. Sharf, 59 A.D.3d 408, 873 N.Y.S.2d 145 [2d Dept. 2009] ; Gilman & Ciocia, Inc. v. Walsh , 45 A.D.3d 531, 845 N.Y.S.2d 124 [2d Dept. 2007] ). "It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" ( Foster v. Herbert Slepoy Corp. , 74 A.D.3d at 1139, 902 N.Y.S.2d 426 ). The trial court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (see Auerbach v. Klein , 30 A.D.3d 451, 816 N.Y.S.2d 376 [2d Dept. 2006] ; Feeley v. Midas Properties, Inc. , 168 A.D.2d 416, 562 N.Y.S.2d 543 [2d Dept. 1990] ). If the information sought is sufficiently related to the issues in litigation so as to make the effort to obtain it in preparation for trial reasonable, then discovery should be permitted (see Allen v. Crowell-Collier Publishing Co. , 21 N.Y.2d at 406-407, 288 N.Y.S.2d 449, 235 N.E.2d 430 ; In re Beryl , 118 A.D.2d 705, 499 N.Y.S.2d 980 [2d Dept. 1986] ). It is immaterial that the information sought may not be admissible at trial as "pretrial discovery extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof" ( Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulance Inc., 226 A.D.2d 175, 640 N.Y.S.2d 114 [1st Dept. 1996] ; Polygram Holding Inc. v. Cafaro , 42 A.D.3d 339, 839 N.Y.S.2d 493 [1st Dept. 2007] ).
As a preliminary matter, the Court notes that the Defendants have not raised any objection to proceeding with depositions on the grounds that they await medical records. Instead, defense counsel's arguments rest on two general propositions: (i) Defendants intend to conduct in-person depositions at such time as "the State of Emergency normalizes"; and (ii) there is a lack of legal authority for the Court to compel remote depositions in lieu of in-person depositions. Both arguments are rejected based on the foregoing legal authority as herein stated.
It is settled law in New York that the court's discretion to compel a virtual deposition can be invoked upon a showing of "undue hardship" (see Yu Hui Chen v. Chen Li Zhi , 81 A.D.3d 818, 916 N.Y.S.2d 525 [2d Dept. 2011] ) (deposition by electronic means may be ordered when undue hardship is established); Rogovin v. Rogovin , 3 A.D.3d 352, 770 N.Y.S.2d 342 [1st Dept. 2004] ) (video deposition ordered where witness' appearance in New York would cause hardship); Matter of Singh , 22 Misc. 3d 288, 290, 865 N.Y.S.2d 902 [Sur. Ct., Bronx County 2008] (remote depositions permissible if undue hardship established). In its discretion, the court can also order that the parties travel to a witness located remotely, or permit interrogatories in lieu of a deposition (see Hoffman v. Kraus, 260 A.D.2d 435, 688 N.Y.S.2d 575 [2d Dept. 1999] ) (due to "undue hardship," the examination of the defendant may either be done in person in Hungary or by written question); Fielding v. S. Klein Dep't Stores, Inc ., 44 A.D.2d 668, 354 N.Y.S.2d 438 [1st Dept. 1974] )(to avoid undue hardship, deposition of the defendant shall either take place in California, or in lieu thereof, by written questions).
As noted in this Court's recent determinations related to remote depositions during the COVID-19 pandemic, a majority of recent cases addressing COVID-19 issues have denied a party's attempt to insist upon conducting in-person depositions. The cases reject arguments commonly made, including that in-person examinations are needed to assess a witness' demeanor as alleged by defense counsel in the present matter.
See Chase-Morris v. Tubby, et.al ., Supreme Court, Westchester County Index #65927/2019 [NYSCEF Doc. 32]; see also Thompson v. Stein , Supreme Court, Westchester County Index #59068/2019 [NYSCEF Doc. 72].
By way of example, in Rouviere v. DePuy Orthopaedics, Inc., 2020 WL 3967665, 2020 US Dist. LEXIS 122184 [S.D.N.Y. July 11, 2020], the plaintiffs filed a motion seeking to compel the defendant's representative to appear for a deposition in-person or to extend the deadline to conduct the deposition. The plaintiffs claimed that they needed an in-person deposition because the deposition will be "document intensive" and that they needed to observe the demeanor of the witness. The court rejected these arguments. Initially, the court explained that since the advent of COVID-19, conducting court proceedings and depositions remotely has become the " ‘new normal’ " and that the technology used for conducting depositions by video has improved significantly over time. The court explained that the COVID-19 virus presents significant health risks to everyone and that the recommended social distancing minimum of six feet is often difficult to obtain in a deposition setting. And, significantly, even if social distancing could be obtained, given the length of depositions and given that they are held indoors, even social distancing " ‘does not guarantee a safe deposition environment’ " ( Id. , 2020 WL 3967665, at *3, 2020 U.S. Dist. LEXIS 122184, at *5-*9 ).
In Reynard v. Washburn Univ. of Topeka, 2020 WL 3791876, 2020 U.S. Dist. LEXIS 118631 [D. Kans. July 7, 2020] the plaintiff sought to have her deposition conducted by remote video. The defendant opposed, arguing that it needed an in-person deposition since the plaintiff was a significant person with a significant damages claim and that it would be impossible to conduct the deposition remotely given the large number of deposition exhibits. The defendant also argued that the threat of COVID-19 had been reduced, noting that Kansas had just entered Phase 3 of its reopening plan. The court rejected these arguments. The court noted that the mere fact that Kansas had entered Phase 3 did not lessen the health risk posed by COVID-19. The court explained that depositions by video have become the "new normal". The court further explained how conducting the deposition remotely actually enhances the defendant's counsel's ability to observe the plaintiff's demeanor since the plaintiff would not have to wear a mask. In addition, the court found that the mere possibility that there would be technical problems if the deposition was held remotely was not a basis to hold the deposition in-person (see Joffe v. King & Spalding LLP, 2020 WL 3453452, 2020 U.S. Dist. LEXIS 111188 [S.D.N.Y., June 24, 2020] ); Gould Elecs. Inc. v. Livingston Cty. Rd. Comm'n, ––– F.Supp.3d ––––, 2020 WL 3717792, 2020 U.S. Dist. LEXIS 118236 [E.D. Mich. June 30, 2020] (holding that a party's credibility can undeniably be assessed via video testimony); In re Broiler Chicken Antitrust Litig ., 2020 WL 3469166, 2020 U.S. Dist. LEXIS 111420 [N.D. Ill. June 25, 2020] (holding that technological problems which can arise during in-person as well as remote depositions is not a reason to prevent remote depositions from occurring); Lundquist v. First Nat'l Ins. Co. of Am ., 2020 WL 3266225, 2020 U.S. Dist. LEXIS 106124 [W.D. Wash. June 17, 2020] (" ‘While the Court is sympathetic to the challenges to the legal community during this pandemic, attorneys and litigants are adapting to new ways to practice law, including preparing for and conducting depositions remotely’ ").
New York's trial level courts are in accord with the above rulings and appear to conclude that virtual depositions do not cause undue hardship in light of the technology currently available and the serious health risks posed by the COVID-19 virus (see Johnson v. Time Warner Cable New York City, LLC , 2020 WL 2769117, Sup. Ct., New York County, May, 28, 2020, Kalish, J., Index No. 155531/2017) (remote depositions ordered where the defendant refused to proceed remotely, with the court noting, "to delay discovery until a vaccine is available or the pandemic has otherwise abated would be unacceptable."); (Arner v. Derf Cab Corp. , Sup Ct, New York County, May 14, 2020, Silvera, J., Index No. 151731/19) (defendants ordered to appear for virtual depositions); (Ai Bee Lim v. James Jian Cui , Sup. Ct., Queens County, May 7, 2020, O'Donoghue, J., Index No. 714516/2018) (defendant required to appear at a videotape deposition within 45 days in a medical malpractice case); (Macdonald v. Pantony , Sup. Ct., Nassau County, May 28, 2020, McCormack, J., Index No. 612715/17) (remote depositions ordered unless all parties agree to face to face depositions with the appropriate social distancing); (Stern as Executrix of Stern v. New York Presbyterian Hospital , Sup. Ct., Kings County, June 1, 2020, Edwards, J., index No. 510384/2018) (virtual depositions ordered in a medical malpractice case). Under the circumstances presented, this Court has likewise concluded that virtual depositions do not cause undue hardship and provide the benefit of added protection from possible exposure to the COVID-19 virus (see Chase-Morris v. Tubby, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 WL 4516920, Sup. Ct., Westchester County, August 3, 2020, Lefkowitz, J., Index No. 65927/2019; see also Thompson v. Stein , Sup Ct, Westchester County, August 13, 2020, Lefkowitz, J., Index No. 59068/2019).
In light of the foregoing legal authority, plaintiffs' motion to compel the depositions of all parties is granted. All depositions shall be held by video conference. As in the cases cited above, this court is of the opinion that in-person depositions would impose undue hardship on the parties at this time due to the COVID-19 pandemic. In addition, the parties' interests are sufficiently protected through the use of video depositions. Credibility can be determined without the obstruction of the witness' face through the use of a mask and documents may be presented and examined during the examinations with relative ease. Perhaps most importantly, video depositions provide the benefit of added protection from possible exposure to the COVID-19 virus. Finally, as it relates to the depositions of defendants, defense counsel failed to move for nor assert sufficient grounds for a protective order (see generally CPLR § 3103[a] ). Notwithstanding, the Court certainly recognizes the importance of the duties of bus operator(s) in providing public transportation; however, there is no indication that plaintiffs are unable or unwilling to make appropriate considerations for any such deponent's work schedule and overall availability when scheduling remote depositions.
All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court, notwithstanding the specific absence of reference thereto.
Accordingly, it is ORDERED that the plaintiffs' motion to compel the depositions of all parties is granted. Party depositions shall be completed by September 21, 2020. It is further ordered that in light of the continuing health risk posed by the COVID-19 pandemic, all depositions shall be held by video conference. All counsel shall make reasonable accommodations in consideration of the work schedule and availability of any essential worker who is a deponent in this matter; and it is further
ORDERED that due to the COVID-19 health emergency, the parties are directed to use their best efforts to proceed with this action in accordance with the Administrative Order of the Chief Administrative Judge issued on June 22, 2020; and it is further
ORDERED that all parties shall appear for a virtual conference to be held by Skype Business in accordance with the Virtual Courtroom Protocol implemented in the Ninth Judicial District on September 23, 2020 at 10:00 a.m. ; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order upon defendants with notice of entry within 10 days of entry.
The foregoing constitutes the Decision and Order of this Court.