Opinion
File No. 2017-398/E
07-24-2023
In the Matter of the Petition of LOUISE GERARD, as Administrator of the Estate of MICHAEL PELUSO, Deceased, to Determine the Validity and Enforceability of a Claim Against the Estate.
Gerard Parisi, Attorney for Petitioner Louise Gerard, Parisi, Coan & Saccocio, PLLC, Schenectady John R. McFadden, Attorney for Respondent Dolores Peluso, Rhoades, Cunningham, & McFadden, PLLC, Albany Albert F. Dingley, Attorney for Respondent Albany County Department of Social Services, Albany
Unpublished Opinion
Gerard Parisi, Attorney for Petitioner Louise Gerard, Parisi, Coan & Saccocio, PLLC, Schenectady
John R. McFadden, Attorney for Respondent Dolores Peluso, Rhoades, Cunningham, & McFadden, PLLC, Albany
Albert F. Dingley, Attorney for Respondent Albany County Department of Social Services, Albany
DECISION AND ORDER
STACY L. PETTIT, JUDGE
Pending before this Court is a motion by petitioner Louise Gerard, the administrator of the estate of Michael Peluso, deceased, for a protective order pursuant to CPLR 3103, precluding respondent Albany County Department of Social Services (hereinafter ACDSS) from conducting an examination before trial of petitioner. ACDSS, an alleged creditor of the estate, and respondent Dolores Peluso (hereinafter Peluso), a beneficiary, have answered the motion and it is now submitted for decision.
The facts of this estate are more fully set forth in the decision and order of this Court determining ACDSS's motion for summary judgment in this proceeding which is being issued contemporaneously with the instant decision and order. As is relevant here, petitioner commenced this proceeding to determine the validity of ACDSS's claim against the estate to recover funds paid to decedent through the Medicaid program. Following joinder of issue, the parties engaged in the exchange of discovery. ACDSS moved for summary judgment as to the validity of its claim and then petitioner moved this Court for an order under CPLR 3103 precluding ACDSS from deposing her due to her physical and mental health issues.
It is axiomatic that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof' (CPLR 3101). As is relevant here, CPLR 3103 provides that "[t]he court may...make a protective order denying, limiting, conditioning or regulating the use of any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person." The party seeking a protective order must make a factual showing of prejudice, annoyance or privilege to be entitled to such relief (see Willis v Cassia, 255 A.D.2d 800, 801 [3d Dept 1998]; Carella v King, 198 A.D.2d 567, 568 [3d Dept 1993]; Brignola v Pei-Fei Lee, M.D., P.C., 192 A.D.2d 1008, 1009 [3d Dept 1993]).
In support of her motion, petitioner has submitted a letter from her physician Shaheda N. Azher, of Optum Medical Care, P.C., dated April 2, 2023, and a letter from her psychiatrist, Varinder Rathore, with Northern Medical Group, dated April 11, 2023. Azher states that she has been treating petitioner since 2015; petitioner was diagnosed with intracranial hemorrhage several years ago and has had gradual cognitive decline since then. Azher further states that petitioner has radiculopathy requiring assistance and home physical therapy. Azher concludes that, because of petitioner's diagnosis of dementia, cognitive impairment and depression, "she may not be able to participate in [a] deposition." Rathore states that his office has been treating petitioner since June 2019 and she is currently being treated for mental health issues. She is diagnosed with major depressive disorder (chronic severe), and attention deficit disorder. He concludes that, due to her chronic mental health issues, "she is unable to participate effectively in the courtroom proceedings."
In addition, petitioner submitted correspondence between counsel wherein ACDSS's counsel initially agreed to interrogatories instead of an examination; however, he later asserted that he would proceed with a deposition of petitioner because he had not been provided with evidence of her disabilities and because, in the meantime, petitioner was able to observe the deposition of another witness.
Petitioner avers that she is physically and mentally incapable of adequately participating in a deposition. Specifically, she states that she has chronic back pain that affects her hip and right leg. She asserts that it would be difficult for her to get to another location for a deposition and she would require assistance. She also states that she is unable to sit for even short periods of time and she requires hearing aids for both of her ears. She states that she is heavily medicated in order to live with her physical ailments and that the medication impacts her ability to think clearly, quickly and to communicate properly. Petitioner further states that she suffers from various mental health and/or neurological disorders, including anxiety, major depressive disorder, early onset dementia and attention deficit hyperactive disorder. She states that she continues to suffer the neurological effects of a brain injury sustained in 2010 and a brain aneurism. She adds that, as a result of this claim and the matters pertaining to this estate, she suffers from insomnia and panic attacks.
In opposition, ACDSS observes that, although this estate has been involved in litigated court proceedings since 2017, petitioner did not raise any issue as to her physical or mental health until February 2023. ACDSS argues that petitioner has been able and competent to work with her counsel on the administration and litigation of this estate thus far without issue. ACDSS clarifies that it did not agree to forgo a deposition; rather, counsel stated that he could put together interrogatories instead of deposing petitioner "if need be" and requested evidence of her conditions. ACDSS further notes that petitioner virtually participated in the deposition of a witness to these proceedings on February 28, 2023, for approximately one and a half hours. Based on petitioner's participation in the February 28th deposition, and the lack of evidence of her inability to be examined, ACDSS scheduled a virtual deposition of petitioner. ACDSS asserts it will be prejudiced by the requested protective order, as only petitioner has the knowledge regarding the denial of the claim and alleged efforts to conceal and avoid the presentation of the rejection of the claim to ACDSS, and petitioner has been the sole fiduciary of this estate since its commencement in 2017. Peluso also opposes petitioner's motion for a protective order.
While petitioner has some physical and mental impairments, she has been the fiduciary of this estate for six years and the issue of her health and competency has not interfered with her administration of the estate. To the extent petitioner argues that her testimony is not material and necessary because the determination as to the validity of ACDSS's claim is a legal one, petitioner, as fiduciary of this estate, does have relevant information to provide. For example, ACDSS has suggested that petitioner be sanctioned for her behavior in rejecting its claim and then making significant distributions to herself. In light of the Court's decision with respect to ACDSS's motion for summary judgment, petitioner's deposition is no longer needed in the context of this proceeding to determine the validity of ACDSS's claim. Petitioner's accounting proceeding is still pending before this Court, however, and her testimony is certainly material and necessary to issues raised in that proceeding. Accordingly, the Court finds that she has failed to establish that being deposed will constitute an "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" (CPLR 3103 [a]; see Cascardo v Cascardo, 136 A.D.3d 729, 730 [2d Dept 2016]). Petitioner is an integral witness to the issues involved in this estate and should be examined by the other parties. She is, of course, entitled to any reasonable accommodations necessary, including being deposed virtually so she can remain in the comfort of her home with aides present, and taking breaks as needed (see Serrano v Lutheran Social Servs. of Metro. N.Y., Inc., 122 A.D.3d 608, 609 [2d Dept 2014]; Colechio-Thomas v County of Cattaraugus, 85 A.D.3d 1638, 1639 [4th Dept 2011]; Willis v Cassia, 255 A.D.2d 800, 802 [3d Dept 1998]).
Papers Considered:
1) Notice of Motion for Protective Order dated April 14,2023; Affidavit in Support of Motion for Protective Order dated April 14, 2023, and exhibits A-D, and Memorandum of Law in Support of Gerard F. Parisi, Esq., dated April 14, 2023.
2) Affidavit in Opposition to Motion for Protective Order of Albert F. Dingley, Esq., dated May 4, 2023, with exhibit A, and Memorandum of Law in Opposition of Albert F. Dingley, Esq., dated May 4, 2023.
3) Attorney Affirmation in Opposition to Motion of John R. McFadden, Esq., dated May 17, 2022.