Opinion
Motion Seq. 012013
01-10-2022
ATESA PACELLI, ANTHONY PACELLI, Plaintiff, v. PETER L CEDENO & ASSOCIATES, P.C., PETER CEDENO, Defendant. NYSCEF Doc. No. 326
HON. FRANK NERVO, JUSTICE.
Unpublished Opinion
MOTION DATE: 10/01/2021, 11/09/2021
DECISION + ORDER ON MOTION
HON. FRANK NERVO, JUSTICE.
The followino e-filed documents listed by NYSCEF document number (Motion 012) 293, 294, 295, 296, 297, 298 299, 3001 302, 3023 303, 304, 305, 306, 307, 319, 320, 321, 322 were read on this motion to/for MISCELLANEOUS.
The following e-filed documents listed by NYSCEF document number (Motion 013) 308, 309, 310, 311, 312, 3133314, 3168318, 323 '. were read on this motion to/for : EXTEND - TIME.
Defendanss Peter L. Cedeno & Associates, P.C. and Peter Cedeno (hereinafter "Cedeno") seek an order granting a subpoena directing the deposition of plaintiffs' counselor (mot. seq. 012) as well as an order extending the note of issue deadline to complete same (mot. seq. 013). Plaintiffs oppose, contending that the counselor was identified as a potential witness four years ago, and that the Cedeno defendants have engaged in various delay tactics to hamper resolution of this, and a related, matter (related matter index number 454016/4018.. Notably, plaintiffs do not oppose "the concept of defendanss taking a deposition of [the counselor]" (NYSCEF Doc. No. 340 at ¶ 3).
CPLR § 2004 provides the Court with authortty to extend the note of issue deadline upon just terms and upon good cause. "It is within the discretion of the Supreme Court whether to grant such an extension of time" (Oliver v. Town of Hempstead, 68 A.D.3d 1079, 1080 [2d Dept 2009]).
As previously noted by this Court, discovery has progressed sluggishly in this matter, filed in 2016, and in which, as evinced by the instant motions, depositions remain outstanding more than five years later. Notwtthstanding, the accuracy of the counselor's records has been disputed by the plaintiffs (see Deposition of Anthony Pacelli, NYSCEF Doc. No. 298). The Court is constrained to note that movants have not provided a full copy of Anthony Pacelli's deposition transcript. providing only pages 136-175 on this motion. Notwithstanding, the Court finds that the deposition of the plaintiffs' counselor is warranted given the aforemeniioned disputes. No other outstanding discovery is identified by the parties.
To the extent that the counselor relies on MHL § 33-13 for the proposition that disclosure of clinical records or informaiion is prohibited, absent a judicial determination that the interest of justice of such disclosure outweighs a patientss right to confidentially, such reliance is misplaced where, as here, the patient has consented to the release of such material (see November 26, 2018 authorizations, NYSCEF Doc. No. 297).
Accordingly, it is
ORDERED that motion sequence 012 is granted to the extent of issuing a subpoena for the deposition of the plaintiffs' counselor, Karen Rosen, by defendanss Peter L. Cedeno & Associates, P.C. and Peter Cedeno on February 17, 2022 beginning at 10:00am and continuing, until completion and without adjournmen.. Such deposition may occu~ either in-person or via electronic means and may not be adjourned absent Coutt permission; and it is further
ORDERED that should defendanss fail to conduct the deposition of Karen Rosen, as above, such deposition is deemed waived; and it is further
ORDERED that any post-deposition demands or demands related to the deposition of Karen Rosen shall be Served within 10 days of completion of deposition, and responses thereto shall be served within 20 days of receipt of demand; and it is further [continued on following page]
ORDERED the deadline to file the note of issue is extended to April 1, 2022, ahd this extension is final absent extraordinary circumstances as found by the Court, in its discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.