Opinion
No. 13/10361.
11-13-2016
Falon RICHARD, Plaintiff, v. Timothy KERWIN, Defendant.
The Wright Law Firm, LLC by Ron F. Wright, Esq., Rochester, Attorneys for Plaintiff. McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Tamara Harbold, Esq., Carle Place, Attorneys for Defendant.
The Wright Law Firm, LLC by Ron F. Wright, Esq., Rochester, Attorneys for Plaintiff.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Tamara Harbold, Esq., Carle Place, Attorneys for Defendant.
RICHARD A. DOLLINGER, J.
In this matter, the defendant in an auto accident matter moves to preclude certain evidence at trial, compel further disclosure and consolidate two separate actions brought by a husband and his wife who were passengers in a vehicle involved in the collision.
With respect to consolidation, if common questions of law or fact exist, a motion to consolidate or join for trial pursuant to CPLR 602 should be granted absent a showing of prejudice to a substantial right by the party opposing the motion. CPLR 602 ; Oboku v. New York City Tr. Auth., 141 AD3d 708 (2nd Dept.2016). Among the dangers that a consolidated trial would produce is the avoidance of inconsistent verdicts. Cieza v. 20th Ave. Realty, Inc., 109 AD3d 506 (2nd Dept.2013). In that regard, these two actions have a common basis in law and fact on the issue of liability, even though they are postured differently at this time. However, the two separate actions before this court have followed different courses. The husband's claim in Action No. 1 has already been the subject of extensive discovery. The wife's claim, in Action No.2, has just been commenced. Furthermore, as the husband's counsel notes, the defendant in Action No. 1 has already been determined to be negligent as a result of summary judgment motions filed in the case. While there is no determination of the defendant's liability in Action No. 2, he may be collaterally estopped from contesting liability. Therefore, the common issues present in each case-the liability of the defendant driver-may, and in all likelihood will, be resolved without a trial. The unresolved issues relate to the extent of injuries sustained by each plaintiff and on those questions, it appears that there are no common issues or facts. Each plaintiff would testify to their issues and different physicians or treatment parties would testify about the condition of the respective plaintiffs. Thus, in considering a trial, there may be no common issues relating to the injuries sustained by the plaintiff. The defendant, in seeking consolidation, cannot point to any "common issues of fact" relating to the injuries sustained by these different plaintiffs. For these reasons, the court declines to consolidate these actions under CPLR 602.
With respect to the request for a preclusion order in Action No.1, the defendant seeks to preclude the plaintiff from giving testimony regarding the contents of medical reports or tax returns, which were the subject of a disclosure requests from the defendant and to which the plaintiff has refused to respond. Under CPLR 3120, the plaintiff is required to produce these items if they are in his possession, custody or control. CPLR 3120(1)(I). CPLR § 3120 does not require a party to create new documents and a party is only required to produce preexisting and tangible items which are in control of party served. Orzech v. Smith, 12 AD3d 1150 (4th Dept.2004) ; Durham Medical Search, Inc. v. Physicians International Search, Inc., 122 A.D.2d 529 (4th Dept.1986). The plaintiff has not served a response objecting to the demanded disclosure or sought a protective order under CPLR 3122.
In regard to the request for a report from the treating physician, this court notes that the plaintiff, according to his attorneys' affidavit submitted in opposition to this motion, apparently takes the position that the plaintiff has elected to undergo surgery. The defendant has requested that the plaintiff provide the report from the treating physician in which "surgery was recommended." The plaintiff's counsel has provided a report from the treating physician, dated three years ago, in which "surgery was not recommended." If the plaintiff seeks to take the position at trial that surgery is "recommended" and the recommendation differs from the recommendation made in the earlier written report, then the plaintiff should produce the written report which articulates such recommendation from the treating physician, if it exists or if he has access to it. Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 97 AD3d 1030, 1032 (3rd Dept.2012).
In addition, this court considers any such written report from the treating physician as within the "control" of the plaintiff, even if not in his actual possession. Documents under a party's "control" within the use of that term in CPLR 3120 include documents as to which the party has "the legal right, authority, or ability to obtain upon demand documents in the possession of another. Matter of Schaefer, 2013 N.Y. Misc. LEXIS 1478 (Surr. Ct., Nassau County 2013) (documents in a party's ‘control’ include those in the physical possession of its accountant). Both the CPLR definition of "control" and the Federal Rule of Civil Procedure definition of the same term are broadly construed and include situations where the party "has the practical ability to obtain the documents from another, irrespective of his legal entitlement to the documents." FRCP 34(a)(1) (documents to be produced include those within the "responding party's possession, custody or control"); Golden Trade, S.R.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (SDNY 1992) (courts have sometimes interpreted Rule 34 to require production if the party has the practical ability to obtain the documents from another, irrespective of his legal entitlement to the documents); see also Doe v. Hicks, 2016 U.S. Dist. LEXIS 128679, p. 26 (D.Conn.2016) (control includes the "legal right or practical ability to obtain [documents] from another source on demand."). Under the broad disclosure provisions of the CPLR, the Court of Appeals has given the phrase "control" in Rule 3120 a broad reading similar to that employed by the federal courts as it applies to the scope of required disclosure in New York. In Commonwealth of the N. Mariana Is. v. Canadian Imperial Bank of Commerce, 21 NY3d 55, 62–63 (2013), the court noted "control" includes "constructive possession."
As these sections of the CPLR indicate, in a documentary discovery context, with expansive rules of disclosure, it is reasonable to conclude that the legislature would employ a broader "possession, custody or control" standard. Indeed, various courts have interpreted "possession, custody or control" to allow for discovery from parties that had practical ability to request from, or influence, another party with the desired discovery documents. As such, the courts have interpreted "possession, custody or control" to mean constructive possession.
Id. The court then referenced federal court determinations that "control" does not require that the party have legal ownership or actual physical possession of the documents at issue, but rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action. The Court of Appeals cited with approval the broad federal court interpretations of the word "control" under FRCP 34. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 FRD 135, 146 (SDNY 1997) ; see also In re NASDAQ Market–Makers Antitrust Litig., 169 FRD 493, 530 (SDNY 1996). With this guidance from the Court of Appeals, the plaintiff, requested to produce any written report in the files of his treating physician that is material and necessary to his claim that surgery is necessary, must produce that report. Similarly, if the plaintiff is seeking to establish his income for either 2014 or 2015 as part of his claim for damages and the plaintiff has copies of his 2014 and 2015 income tax returns, then he must produce a copy for the defendant's counsel or obtain it from the federal and state taxing authorities. In connection with the requested federal and state tax returns, a party is deemed to have control of documents filed with a federal agency as to which the party has or can obtain copies. Matter of Bernfeld, 43 Misc.3d 1208(A) (Surr. Ct. Nassau Cty.2014). See also Matter of Woolworth Corp. Securities Class Action Litigation, 166 FRD 311 (SDNY 1996). If he fails, then the plaintiff will be precluded from testifying about his 2014 and 2015 income at the trial.
The plaintiff is required to produce these documents under the rules set forth above within 20 days. If the plaintiff fails to produce the physician's report as set forth above within 20 days of the service of this order from this decision, the plaintiff shall, unless he provides a written disclosure that such documents does not exist, be precluded from testifying at the time of trial regarding the recommendation for surgery. Similarly, if he fails to produce his income tax returns for 2014 and 2015 within 20 days from the service of this order, he shall be precluded from testifying as to his income from either year.
Finally, the defendant seeks to depose the plaintiff for a second time, arguing that the plaintiff now claims exhaustion of No–Fault benefits, possible surgery and post and future out-of-pocket expenses. To justify a second deposition, the defendant must demonstrate that the first deposition was inadequate to prepare for trial. Wen Rui Yang v. Dan Di, 2015 N.Y. Slip Op 30959(U)(Sup. Ct. Suffolk Cty 2015) ; see also Schroeder v. IESI N.Y. Corp., 24 AD3d 180 (1st Dept 2005). However, there is no suggestion that the plaintiff has any information regarding the exhaustion of No–Fault benefits, as there is no evidence that he has done anything but simply used the available medical coverage during the period of treatment. The "possible surgery"—discussed above—is based on an expert's opinion. There is no evidence that the plaintiff has any special knowledge about the need for such surgery. As for future out-of-pocket expenses, there is no suggestion that the plaintiff has any independent personal knowledge of what those expenses might be. There is no evidence that the plaintiff has personal knowledge of any three of these specific areas, identified by the defendant as the basis for deposition request. Therefore, this Court denies the request for a second deposition.