Opinion
Index No. EF2019-263169
11-29-2022
Toni Lopresti, Plaintiff, v. P&M Construction Commercial Maintenance & Remodeling, Inc., BELIVEAU MECHANICAL, INC., W.C. WALLIN ASSOCIATES, LTD, STANDEX INTERNATIONAL CORPORATION, BKI WORLDWIDE, INC., SYSTEMS IV, INC., AND HORIZON FOOD EQUIPMENT, INC., doing business as HORIZON BRADCO, Defendants.
Cooper, Irving & Savage, LLP Attorneys for Plaintiff Christopher P. Flint, Esq. Burke, Scolamiero & Hurd, LLP Attorneys for Defendant Beliveau Mechanical Judith B. Aumand, Esq., of counsel O'Connor, O'Connor, Bresee & First, P.C. Attorneys for Defendant P & M Construction Elizabeth Grogan, Esq., of counsel
Unpublished Opinion
Cooper, Irving & Savage, LLP Attorneys for Plaintiff Christopher P. Flint, Esq.
Burke, Scolamiero & Hurd, LLP Attorneys for Defendant Beliveau Mechanical Judith B. Aumand, Esq., of counsel
O'Connor, O'Connor, Bresee & First, P.C. Attorneys for Defendant P & M Construction Elizabeth Grogan, Esq., of counsel
Henry F. Zwack, J.
In this personal injury action, the defendant Beliveau Mechanical ("Beliveau") has moved pursuant to CPLR 3124, 3126 and/or 22 NYCRR 202.21 for an Order Striking the Note of Issue and/or for an Order compelling plaintiff to provide further discovery in the form of authorizations, a further deposition of the plaintiff, and submission by the plaintiff to a vocational rehabilitation examination and psychological IME. Beliveau asserts that the plaintiff has advanced new claims in her Supplemental Bill of Particulars, which now necessitate the demand for a further deposition of the plaintiff and requested authorizations from the recently identified doctors, as well as for all her mental health, counseling or related documents. Further, related to the plaintiff's earning history, and for a requested vocational rehabilitation examination, Beliveau also seeks authorizations from Social Security, Worker's Compensation, Hannaford, Dr. Parnes, Dr. Jason Mouzakes, and the New York State Department of Labor. Beliveau also seeks an order allowing it to access the plaintiff's Facebook account. Beliveau also argues that the Note of Issue should be stricken, asserting that the plaintiff's Bill of Particulars and expert witness disclosure are inadequate.
The plaintiff opposes, and has moved for an in camera review of the plaintiff's Facebook account, a protective order against any further production of medical records and/or Arons authorizations, denying or limiting the scope of any defense psychological evaluation, and against any further disclosure, including supplementing the Bill of Particulars or expert disclosure and a further deposition of the plaintiff.
As background, defendant Beliveau and defendant P & M Construction ("P & M") are the only remaining defendants in this personal injury action which was commenced on March 20, 2017. The summons and complaint were amended on November 28, 2018. According to the amended complaint, the plaintiff suffered injuries on May 17, 2016 at Hannaford in East Greenbush while working in the deli department. The plaintiff alleges the defendants Believeau and P & M carelessly and negligently installed piping immediately above and /or in close proximity to an electrical outlet that supplied power to a deep fryer. The plaintiff contends that the involved installation caused a leak into the electrical outlet which in turn caused the electrification of the deep fryer and causing the plaintiff's injuries.
Over the course of the litigation, the plaintiff's claims against the other five defendants have been either discontinued of dismissed by the Court.
For the reasons that follow the Court denies the defendant Beliveau's motion to strike the Note of Issue and limits further discovery as set out below. The plaintiff's cross motion is granted in part and to the extent also set out below.
Here, the Court is mindful that it "is vested with considerable discretion to supervise the discovery process" (Superintendent of Ins. of State of NY v Chase Manhattan Bank, 43 A.D.3d 514, 516 [3d Dept 200]), and "[w]hile a note of issue will generally be stricken if the case is not ready for trial, the motion to strike can be denied where the parties had sufficient time to complete discovery... (and the) discovery requests must be legitimate and pending, not resolved or contrived" (Ireland v Geico Corp., 2 A.D.3d 917, 917-918 [3d Dept 2003]); Rosen v Mosby, 180 A.D.3d 1253 [3d Dept 2020]. Stated differently, there comes a time in all cases, particularly where "there has been a reasonable opportunity to complete proceedings... (where further discovery is ordered only where a defendant demonstrates) special, unusual or extraordinary circumstances" (Grant v Wainer, 179 A.D.2d 364, 364-365 [1st Dept 1992]).
The record amply establishes that the plaintiff has complied, and in some instances multiple times, with the defendants' request for authorizations prior to the filing of the Note of Issue, and also after. According to the plaintiff's counsel's letter of August 10, 2022, Drs. Parnes and Mouzakes authorizations were provided on 7/7/2022. The record also shows that Dr. Parnes authorizations were in fact provided on three separate occasions, and Hannaford's twice (5/2/2018 and 12/12/2018). The Court notes that although the defendant Beliveau's counsel provided copies of her correspondence demanding authorizations, she has not provided the plaintiff's responses - which demonstrate that all the authorizations, including the ones which were requested to be Arons compliant, have been served by the plaintiff.
Turning to the plaintiff's Amended Complaint, she describes herself as "disabled" as a result of the defendants' negligence. The Court's review of the record reveals that the Social Security Administration ("SSA") determined plaintiff to be totally disabled in a decision made on April 28, 2021, and according to that decision the plaintiff's disability commenced on the date of the May 17, 2016 accident. However viewed, Beliveau knew or should have known that the SSA disability finding would trigger an economic evaluation of the plaintiff's life-time earning capacity. Stated differently, if it wished to attack the SSA finding of total disability through the retention of a vocational rehabilitation expert, Beliveau was on notice at least a year prior to the plaintiff's second deposition on May 22, 2022. The same is true with the issue of economic loss, the inquiry of which should have been commenced at the outset of the action or at least no later than eighteen months ago. All said, in the Court's view the defendants had amply time to obtain the now demanded discovery, and certainly well before the filing of the Note of Issue. Accordingly, and mindful of the trial scheduled for February 6, 2023, the Court denies Beliveau's requests for authorizations for Social Security, Worker's Compensation and the Labor Board, and also denies a further deposition of the plaintiff on these issues.
The Court notes that the plaintiff has agreed to an examination by a vocational rehabilitation expert, but was unable to complete it due to her disability. The Court further finds that Beliveau had sufficient notice, time and opportunity to conduct this evaluation prior to the filing of the Note of Issue. Now, if the plaintiff is unable to voluntarily complete the examination, she is not precluded from presenting at trial proof on the issue of her disability, particularly since Beliveau has been on notice of this claim since service of the plaintiff's amended complaint in November 2018. Any argument that Beliveau is prejudiced by the Court's present determination is belied by the fact that they had notice and opportunity and simply failed to avail themselves of it.
In the Court's view this request, as with the entire motion, is meant to simply forestall the February 6, 2023 trial...
Further, given that Beliveau did not attach a copy of the plaintiff's latest deposition, it is it impossible for the Court to determine what the plaintiff was asked at that time. Therefore, the Court can only conclude that Beliveau had a full and fair opportunity to inquire about the plaintiff's work history, earnings, present limitations physically and emotionally, mental health, and any past history of traumatic events. Certainly Beliveau was on notice that the plaintiff suffered from anxiety and depression, as it was listed in her February 10, 2022 Bill of Particulars. Now, Beliveau is not entitled to an order striking the Note of Issue simply because it belatedly wishes to explore issues of which it was fully advised but failed to pursue with due diligence.
Defendants have attached a few pages of the deposition in which plaintiff testified that she did not recall any previous mental health treatment. The Court cannot infer, as defendants would have it, that she withheld information, as it is just as likely that any mental health counseling she may have received was so remote and insignificant to her present diagnoses that it did not occur to her when asked.
Turning to Beliveau's request for a further deposition of the plaintiff, and a psychological IME (even if only limited to explore a trauma that occurred when the plaintiff was in her early teens) the same is denied. The Court is not inclined to find that the interests of justice significantly outweigh the statutory confidentiality provided to the plaintiff (NY Men Hyg 33.13; Jayne v Smith, 184 A.D.3d 557, 559 [2d Dept 2020]). The Court is also mindful of the extremely sensitive information that Beliveau is seeking to explore. This said, the plaintiff's mental health records are confidential and will not be discoverable "where sought as a fishing expedition searching for other means of attacking" plaintiff's credibility (People v Terence McCray, 102 A.D.3d 1000, 1005 [3d Dept 2013], citations omitted).
Further, and more importantly, the plaintiff has not alleged that the injuries she suffered at the time of her accident aggravated a pre-existing emotional or mental condition, as the Court notes from its review of her Supplemental Bill of Particulars. Given there are no allegations of the same, discovery of her prior mental health records are neither relevant nor appropriate (Wilkes v Archibald, 255 A.D.2d 310, 311 [2d Dept 1998] , citation omitted). However, since the plaintiff has related her injuries from her electrocution to "anxiety, depression and post-traumatic stress disorder," Beliveau is entitled to all mental health records for treatment the plaintiff received after the date of her injury (Rosen v MHM Realty LLC, 166 A.D.3d 428 [1st Dept 2018]). The plaintiff shall comply with this directive within ten days of this Decision and Order.
Again, not having the benefit of the transcript of the second deposition of the plaintiff, the Court is unable to determine what relevance is ascribed to her social media account, Facebook. On this application, Beliveau had the opportunity to provide some discussion as to the relevance of this invasion of privacy, and offered nothing more than the fact that the plaintiff testified "she continues to post on her Facebook account." In sum, this request is nothing more than a "fishing expedition" into the plaintiff's Facebook account based on the mere hope of finding relevant evidence (McCann v Harleysville Ins. Co. of New York, 78 A.D.3d 1524 [4th Dept 2010]), and any further discovery on this issue is denied.
Turning to the plaintiff's expert disclosure and Bill of Particulars, the Court finds them to be adequate and will not direct further supplementation. Certainly, expert disclosure statements need not set forth the specific facts upon which the expert is expected to testify, but rather only the substance of the facts and opinions (CPLR 3101[d][1][I]; Mary Imogene Basset Hosp. v Cannon Design, Inc., 97 A.D.3d 1030 [3d Dept 2012]).
Accordingly, it is
ORDERED, that defendant's motion to strike the Note of Issue is denied in all respects, and it is further
ORDERED, that defendant's request for further discovery, further authorizations, further IMEs and depositions of the plaintiff are all denied, including but not limited to Social Security, Worker's Compensation and the Labor Board, all Facebook entries, and any mental health treatment or services prior to May 17, 2016, ORDERED, plaintiff is granted a protective order, and need not provide an authorization for Dr. Mark Mattie, plaintiff's expert, ORDERED, that plaintiff shall provide, within 10 days, authorizations/Arons authorizations for any mental health treatment she has received since May 17, 2016.
This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court on NYSCEF. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Acting Supreme Court Justice
Papers considered, as filed with NYSCEF:
1. Documents #181 through #301;
2. Document #304;
3. Document #307.