Opinion
11588/04.
August 11, 2009.
DECISION ORDER
The following items were considered in the review of the following motions to renew and reargue, to vacate note of issue and for summary judgment
Papers Numbered Notice of Motion and Affidavits Annexed 1,2 Answering Affidavits 3 Replying Affidavits 4,5 Exhibits Attached to Papers
Upon the foregoing cited papers, the Decision and Order on these Motions is as follows:
Defendants, Premier Medical PLLC ["Premier Medical"], Donna Seminara, M.D. ["Dr. Seminara"] and Island Internists move to renew a previous order entered by the Honorable Joseph J. Maltese on February 10, 2009, which denied defendants' request for deposition of non-party witness Ms. Marlena Simone ("Ms. Simone"), and in the alternative, defendants move to vacate the note of issue. Motion to renew and motion to vacate the note of issue are denied in its entirety. Defendant Premier Medical moves for summary judgment against plaintiffs, Ms. Roberta Gee ("Ms. Gee") and Mr. Daniel Gee. Motion for summary judgment is denied in its entirety.
Facts
This is an action based upon alleged medical malpractice. Plaintiffs claim defendants failed to properly diagnose and treat Ms. Gee between February 7, 2003 and February 17, 2003. From February 7, 2003 and onwards, Ms. Gee was a patient of Premier Medical, and Dominic A. Pompa, M.D. ["Dr. Pompa"] . From February 14, 2003 and onwards, plaintiff Ms. Gee was a patient of Island Internists and Dr. Seminara. Preliminary proceedings were found to have been completed on October 30, 2008, and a Certification Order was issued authorizing service and filing of a Note of Issue and of a Certificate of Readiness. The Certification Order further provided that interrogatories could be demanded of Ms. Gee's sisters, Marlena Simone ["Ms. Simone"] and Louisa Allegretto, in order to elucidate what assistance the sisters rendered to Ms. Gee. An order dated February 6, 2009 and granted February 10, 2009, provided that defendants' might serve interrogatories on Ms. Gee's sisters within thirty days. Interrogatories requested on February 27, 2009, were obtained from Ms. Simone and from Louisa Allegretto, and were both dated April 2, 2009. On April 29, 2009, motion was made by the defendants seeking summary judgment. On April 29, 2009, motion was made by the defendants requesting that the portion of the Certification Order of October 30, 2008 that called for service of note of issue be vacated; or in the alternative motion to renew was made as to the order of February 10, 2009 allowing interrogatories of Ms. Simone, but not allowing her deposition.
Discussion
I. The Certificate of Readiness has No Incorrect Material Fact and Complies with All Requirements
The Uniform Rules for Trial Courts states:
Vacating note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. . . . After such period, . . . no such motion shall be allowed except for good cause shown.
22 New York Codes, Rules and Regulations ("NY CRR") § 202.21 (e).
In a Supreme Court case, vacatur of a note of issue was permitted in the context of an interruption of an examination before trial when opposing counsel's access to privileged communication, that was being used to refresh a witness's memory, was denied. At trial, the Supreme Court of Suffolk County permitted the note of issue to be vacated to enable the interrupted examination to resume, but not for the privileged information to be seen by opposing counsel.
Falk v. Kalt, 44 Misc. 2d 172, 172-3 [Supreme Court of New York, Special Term, Suffolk County 1964].
Id. at 273-4.
Defendant relies upon Audiovox Corp. v. Benyamini. The Appellate Division, Second Department defined the grounds for vacating a note of issue as including the development of unusual or unanticipated circumstances following the filing of a note of issue, that would be necessary to prevent substantial prejudice. The reasoning of Audiovox Corp. v. Benyamini is based upon 22 NY CRR 202.21. The court explains that the criteria of "unusual or unanticipated circumstances" do not include merely confirmatory information desired, such as an additional medical examination to other exams already performed. "The common thread in those cases allowing further discovery is some occurrence after the filing of a note of issue that is not in the control of the party seeking further discovery and which causes actual rather than potential prejudice." Here, Ms. Simone's assistance to Ms. Gee did not occur after the service of the note of issue; the participants in the action were aware of that assistance before service of the note of issue; the defendants were in control of their disclosure by choosing the interrogatories to place before Ms. Simone; and the defendants have not shown actual prejudice against them, as opposed to having raised the specter of potential prejudice.
Audiovox v. Benyamini, 256 AD 2d 135, 138 [2d Dept 200].
Id.
Id. at 139.
If present, "unusual and unanticipated circumstances" may justify either the vacatur of a note of issue, or the making of further disclosure following the filing of a note of issue. However, in this instant case, the defendant has failed to demonstrate unusual or unanticipated circumstances. In some ways, this case is similar to James v. N.Y. City Transit Auth., also cited by the defendant, and which denied vacating a note of issue. Here, and in James v. N. Y. City Transit. Auth., the moving party failed to demonstrate or show evidence of unusual or unanticipated circumstances occurring after the filing of the note of issue. Therefore, rather than supporting the defendant's contentions, evaluation of the citations offered by the defendant show the importance of providing the court with just those particular facts with which this court insists must be provided before it would vacate the note of issue.
Id. at 138, Karakostas v. Avis Rent a Car Sys., 306 AD 2d 381, 382 [2d dept 2003].
Rodriguez v. Sau Wo Lau, 298 AD 2d 376, 377 [2d Dept 2002].
James v. N.Y. City Transit Auth., 294 AD 2d 471 [2d Dept 2002].
As was the court in James v. N.Y. City Transit. Auth., this court is not persuaded to vacate the note of issue because defendants failed to present any arguments in favor of vacatur. Neither defendant's Affirmation in Support of Notice of Motion to Renew, nor Plaintiffs' Reply Affirmation, make a showing of the way in which the case is not ready for trial; of which material fact in the Certificate of Readiness is incorrect; or in which way the Certificate of Readiness is not in material compliance with 22 NY CRR § 202.21. Mere presentation of conclusory demands for further disclosure are inadequately persuasive. It is necessary to state facts upon which to base a decision to vacate a Note of Issue. In the absence of any factual showings justifying a vacatur of a Note of Issue, the request to vacate the Note of Issue is denied.
Gonzalez v. 98 Mag Leasing Corp., 95 NY 2d at 129.
Lipset v. Lipset, 150 AD 2d 648, 649 [2d Dept 1989]
II. Defendants' Motion to Renew Offers No New Facts
Under New York Civil Practice Law and Rules ("CPLR") § 2221, a motion for leave to renew must identify the motion as such; must be based upon new facts not offered on the prior motion that would change the determination of the prior motion, or demonstrate a change in law that would change the prior determination; and must contain reasonable justification for the failure to present such facts on the prior determination. At the time of the October 30, 2008 Certification Order that limited discovery to interrogatories from Ms. Gee's sisters, it had been already known that Ms. Simone had provided care to Ms. Gee. Defendants now wish to justify their Motion to Renew by reference to the interrogatories obtained from Ms. Simone. Those interrogatories simply confirm Ms. Simone provided daily assistance to Ms. Gee. The Certification Order states: "[a] n interrogatory of the sister may be demanded as to what assistance she rendered the Plaintiff." Response to interrogatory provided by Ms. Simone indicated that she provided daily services between "February 2003 and the fall of 2004", and that services included "cleaning, laundry, shopping, all childcare services (extracurricular activities, school functions, cooking)." Ms. Simone's services were provided at no cost to the plaintiffs.
Plaintiff's Notice of Motion to Renew, Exhibit "A" as part of Plaintiff's Exhibit B.
Id., Exhibit"G",¶ 9(a)at8.
Id., Exhibit "G",¶ 9 (c) at 8-9.
Id., Exhibit "G",¶ 9 (e) at 9.
Generally, full disclosure is favored. "There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . . " However, "[t] he court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." "Nonetheless, litigants are not without protection against unnecessarily onerous application of the discovery statutes." "Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party." Burdens may include the "need to avoid undue delay."
Kavanagh v. Ogden Allied Maint. Corp., 92 NY 2d 952, 954 [1998]; quoted by Andon v. 302-304 Mott St. Assocs., 94 NY 2d 740, 747 [2000].
O'Neill v. Oakgrove Const., Inc., 71 NY 2d 521, 529 [1988] rearg' denied71 NY 2d 910 (1988); and Downing v. Moskovits, 58 A.D.3d 671 [2d Dept 2009].
Andon v. 302-304 Mott St. Assoc. At 747
Defendants rely upon Anheuser-Busch, Inc. v. Abrams, in which it is said, "[a] n application to quash a subpoena should be granted '[only] where the futility of the process to uncover anything legitimate is inevitable or obvious.'" None the less, it is still necessary to show that "the materials sought bear "a reasonable relation to the subject matter under investigation and to the public purpose to be achieved.'" Here, the defendants have failed to relate the information sought to the subject of the matter under investigation and have failed to identify the purpose they hope to achieve.
Anheuser-Busch, Inc. v. Abrams, 71 NY 2d 327, 331-2 [1988]; quoting Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931].
Anheuser-Busch, Inc. v. Abrams, 71 NY 2d at 332; quoting Carlisle v. Bennett, 268 NY 212, 217 [1935].
The defendants request additional discovery because the denial "would place movants in the precarious and highly prejudicial position of first examining the witness about her nearly two years of alleged service." Conclusory assertions alone are inadequate. The defendants fail to state what additional facts might be discovered by the requested deposition of Ms. Simone, and the defendants fail to explain how facts about services provided by a family member, for which no compensation is sought, might add to the facts the defendants already have acquired.
Plaintiffs' Affirmation in Support of Motion to Renew, ¶ 5 at 6.
Gonzalez v. 98 Mag Leasing Corp., 95 NY 2d 124, 129 [2000].
This Court finds the defendants do not present "new facts not offered on the previous motion that would change the determination of the prior motion". Motion to renew the order of February 10, 2009 in order to allow further examination of Ms. Simone before trial is denied.
III. Motion for Summary Judgment
The defendant, Premier Medical moves for summary judgment pursuant to CPLR § 3212, stating that there exist no genuine issues of material fact and requesting judgment as a matter of law dismissing Premier Medical. The motion shall be denied if either party shows "facts sufficient to require an issue of any fact."
Premier Medical states that Dr. Pompa was an independent contractor and not an employee. Premier Medical further denies that Dr. Pompa was their agent. As proof, the defendant offers copies of Federal Internal Revenue Service Form 1099 from the years 2002 through 2007. The Form 1099 lists Dr. Pompa's income as "Nonemployee Compensation". A. There are facts unavailable to the plaintiff.
Defendant's Notice of Motion for Summary Judgment, Exhibit E.
Id.
The plaintiff, Ms. Gee, complains that they do not have access to the contracts that exist between the defendants Premier Medical and Dr. Pompa. "Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion."
CPRL § 3212 (f).
The Court of Appeals found that when an affidavit could not be obtained from a police sergeant, the absence of evidence that might exist rightfully precludes summary judgment. The Appellate Division, Second Department confirmed that when there are " . . . essential facts believed to exist peculiarly within the defendant's knowledge . . . " summary judgment may not be granted.
R.C.S. Farmers Markets Corp. v. Great American Ins. Co., 56 NY 2d 918,920 [1982].
Liotta v. Power Test Petroleum Distributors, Inc., 179 AD 2d 802 [2d Dept 1992].
Here, the plaintiff claims the contract between Dr. Pompa and Premier Medical is necessary to define their relationship. The Appellate Division, Second Department required further substantiation of employment status as an independent contractor even when the claim was supported by an affidavit from the president of a corporate medical service supplier and an IRS form 1099. The Appellate Division, Third Department held that way the employee is treated is a more reliable indicator of an employee's true status than a Form 1099. "Whether or not a physician qualifies as an independent contractor is a factual conclusion "to be drawn from the contract itself, the attitude of the parties toward each other, the nature of the work" and other relevant circumstances."
Felter v. Mercy Community Hosp., 244 AD 2d 385, 386 [2d Dept 1997].
Fuchsberg Fuchsberg v. Commissioner of Tax. and Finance, 13 AD 3d 831, 834 [3d Dept 2004]; see also Mduba v. Benedictine Hosp., 52 AD 2d 450, 452-3 [3d Dept 1976].
Id.; quoting Felice v. Agnes Hosp., 65 AD 2d 388, 396 [2d Dept 1978].
In the absence of the contract between Dr. Pompa and Premier Medical, summary judgment may not be granted to Premier Medical.
B. There is a factual dispute regarding the relations between Dr. Pompa and Premier Medical.
Defendant, Premier Medical asserts that defendant, Dr. Pompa was an independent contractor and that no relationship of agency of agency existed between the two. However, Appellate Division, Second Department has imposed ostensible agency upon a corporate medical service provider and private physicians by estoppel. When there is a reasonable belief on the part of the plaintiff that one supplier of medical care was working for another, ostensible agency may exist.
Dragotta v. Southampton Hosp., 39 AD 2d 697, 698 [2d Dept 2007].
Hill v. St. Clare's Hosp., 67 NY 2d 72, 81 FN 6. [1986].
Since the question is one of the reasonable belief held by the plaintiff, there is a factual dispute based upon Ms. Gee's belief rather than the belief, or even knowledge, of Premier Medical as to agency. Given a factual dispute regarding the existence of ostensible agency between Premier Medical and Dr. Pompa, the motion for summary judgment is denied.
Conclusion
There are facts that may exist that are unavailable to the plaintiffs Ms. Roberta Gee and Mr. Daniel Gee; and the plaintiff's, Ms. Roberta Gee, belief as to ostensible agency existing between Dominic A Pompa, M.D. and Premier Medical, PLLC is a matter of factual dispute. Therefore, the defendant's, Premier Medical, PLLC, motion for summary judgment is denied in its entirety. The defendants, Premier Medical PLLC, Donna Seminaria, M.D., and Island
Internists, fail to inform the court of the information sought by deposing Ms. Simone and the use to which such information would be placed by the defendants. Therefore, the defendants', Premier Medical PLLC, Donna Seminaria, M.D., and Island Internists, motion to renew the order denying deposition but allowing service of interrogatories upon Ms. Simone is denied in its entirety. The defendants, Premier Medical PLLC, Donna Seminaria, M.D., and Island Internists, fail to inform the court upon which grounds the note of issue should be vacated. Therefore, the defendants', Premier Medical PLLC, Donna Seminaria, M.D., and Island Internists, motion to vacate the note of issue is denied in its entirety.
Accordingly, it is hereby,
ORDERED, that motion made by the defendants, Premier Medical PLLC, Donna Seminara, M.D., and Island Internists to renew the previous order of February 10, 2009 denying defendants' request for deposition of Ms. Marlena Simone is denied; and it is further
ORDERED that motion by the defendants, Premier Medical PLLC, Donna Seminara, M.D., and Island Internists to vacate the note of issue is denied; and it is further
ORDERED that motion by the defendant Premier Medical PLLC for summary judgment against the plaintiffs Ms. Roberta Gee and Mr. Daniel Gee is denied in its entirety; and it is further
ORDERED that Roberta Gee and Daniel Gee, Plaintiffs and Premier Medical PLLC, Donna Seminara, M.D., and Island Internists and Dominc A. Pompa, M.D., defendants are ordered to appear for Pre-Trial Conference on Monday, September 28, 2009.