Opinion
25912/15
09-04-2019
Ennigier RIVERA, Plaintiff, v. MD. Lr. BHUIYAN, Margaret Rivera, and Park West Executive Services, Inc., Ning Lin, M.D., Jaime Nieto, M.D., Elan Goldwyn, M.D., Lionel Lazaro, M.D., Benjamin Ricciardi, M.D., Margaret Chiu, M.D., and New York Hospital Queens, Defendants.
Carl B. Tegtmeier, Esq., Sanocki, Newman & Turret, LLP, 225 Broadway, 8th Floor, New York, New York 10007, (212)962-1190, Attorney for Plaintiff James F. Desmond, Esq., Gallo, Vitucci, Klar, LLP, 100 Crossways Park West, Suite 305, Woodbury, New York 11797, (571)449-5571, Attorneys for Bhiyan & Park West Daniel E. O'Neill, Esq., Boeggeman, Corde, Ondrovic & Hurley, PC, 3 Barker Ave., 4th Floor, White Plains, New York 10601, (914)761-2252, Attorney for Margaret Rivera Charles C. Nicholas, Esq., Chesney, Nicholas & Brower, LLP, 485 Underhill Blvd., Suite 308, Syosset, New York 11791, (516)378-1700, Attorney for Dr. Nieto & Dr. Chiu Ida Rose Nininger, Esq., Martin Clearwater & Bell, LLP, 220 East 42nd Street, New York, New York 10017, (212)697-3122, Attorney for Dr. Goldwyn & NY Hospital
Carl B. Tegtmeier, Esq., Sanocki, Newman & Turret, LLP, 225 Broadway, 8th Floor, New York, New York 10007, (212)962-1190, Attorney for Plaintiff
James F. Desmond, Esq., Gallo, Vitucci, Klar, LLP, 100 Crossways Park West, Suite 305, Woodbury, New York 11797, (571)449-5571, Attorneys for Bhiyan & Park West
Daniel E. O'Neill, Esq., Boeggeman, Corde, Ondrovic & Hurley, PC, 3 Barker Ave., 4th Floor, White Plains, New York 10601, (914)761-2252, Attorney for Margaret Rivera
Charles C. Nicholas, Esq., Chesney, Nicholas & Brower, LLP, 485 Underhill Blvd., Suite 308, Syosset, New York 11791, (516)378-1700, Attorney for Dr. Nieto & Dr. Chiu
Ida Rose Nininger, Esq., Martin Clearwater & Bell, LLP, 220 East 42nd Street, New York, New York 10017, (212)697-3122, Attorney for Dr. Goldwyn & NY Hospital
Joseph E. Capella, J.
The following papers numbered 1 to 6 read on this motion and cross-motions noticed on July 8, 2019, and duly submitted on August 12, 2019.
PAPERS/NUMBERED
NOTICE OF MOTION AND CROSS-MOTIONS 1 - 3
ANSWERING AFFIDAVIT AND EXHIBITS 4
REPLY AND SUR-REPLY AFFIDAVIT AND EXHIBITS 5 - 6
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION AND CROSS-MOTIONS IS AS FOLLOWS:
By notice of motion dated June 7, 2019, defendants, Jaime Nieto, M.D., and Margaret Chiu, M.D., seek to strike the errata sheet proffered by defendant, Mohammed Bhuiyan (Bhuiyan), ( CPLR 3116(a) ), and Bhuiyan cross-moves for sanctions pursuant to Part 130, alleging that the aforementioned relief sought is frivolous. (22 NYCRR 130.1.1(c).) Defendants, Elan Goldwyn, M.D., and New York Hospital Queens, filed a cross-motion seeking the same relief (i.e., strike Bhuiyan errata sheet) as Dr. Nieto and Dr. Chiu. By way of background, plaintiff commenced two actions in which the first action involved an accident that occurred on October 31, 2014, between plaintiff, who was ridding a motorcycle, and a vehicle driven by defendant, Margaret Rivera (Margaret), that was owned by Bhuiyan. Co-defendant, Park West Executive Services, Inc. (Park West), is a livery cab dispatcher that coordinates passengers and cab drivers, and on the date of the accident, Margaret was engaged in said cab service. The second action is a medical malpractice action against the other named defendants regarding the care and treatment plaintiff received after the automobile accident. Both actions were consolidated on February 27, 2016, and the law firm of Gallo, Vitucci, Klar LLP (Gallo Law Firm) appeared on behalf of all three automobile defendants (i.e., Margaret, Bhuiyan and Park West). After consolidation, certain defendants from the medical malpractice action became concerned with what they viewed as an attempt by Park West to remove itself from this action at the expense of Margaret by alleging that she was not its employee, but an independent contractor. Underlying this concern was the fact that Margaret's insurance policy was $1,000,000, whereas Park West had $6,000,000 in coverage. And if Park West was dismissed from the action, the pool of potential insurance coverage would be greatly reduced, potentially leaving Margaret exposed to a judgment in excess of her policy coverage.
These defendants noted that plaintiff alleged in her complaint that Margaret was an employee of Park West. They also learned through discovery that Park West withheld various Federal and State taxes from Margaret's pay, and that she received a W2 from Park West at the end of the year. All of these suggested an employer-employee relationship between Park West and Margaret, and not that of an independent contractor. By order to show cause dated March 1, 2018, Dr. Nieto and Dr. Chiu sought an order declaring that the Gallo Law Firm was in a conflicted position in representing both Park West and Margaret. In opposition, the Gallo Law Firm sought sanctions pursuant to Part 130, alleging that the relief sought in the order to show cause was frivolous. (22 NYCRR 130.1.1(c).) On June 25, 2018, this Court was satisfied that a potential conflict did exist, and granted the order to show cause, disqualified the Gallo Law Firm from further representation of Margaret, and denied the cross-motion for sanctions. The law firm of Boeggeman, Corde, Ondrovic & Hurley, P.C., now represents Margaret in this action.
On December 12, 2018, Bhuiyan was deposed, and according to Dr. Nieto and Dr. Chiu, numerous substantive changes were made on the errata sheet as to Bhuiyan's answers. Apparently, every time the word "work" appeared in the transcript, or the concept of "employment" was at issue, the answers were changed to add "independent contractor," and the reason noted for said change was "improper question." For example, on page 25, lines 14-19, the following colloquy appears:
Q. Were you working for Uber when you first used it?
A. No. Town Car limousine company.
The question was referring to Bhuiyan's vehicle.
On the errata sheet, Bhuiyan seeks to change his answer to "working as independent contractor," and the reason stated for this change is "improper question." There are 64 proposed changes, and the reason for 57 of these changes is "improper question." The remaining seven proposed changes do not provide a reason for same. According to Dr. Nieto and Dr. Chiu, these changes demonstrate that "the lawyers at the Gallo [Law] Firm wanted to make the testimony of BHUIYAN fit their employee/independent contractor narrative."
Bhuiyan is permitted to use the errata sheet to make any changes in form or substance (emphasis added) to his deposition transcript to reflect what was, or should be, his true testimony. ( CPLR 3116(a).) It must be emphasized, however, that Bhuiyan must set forth the specific reason(s) for each change. ( CPLR 3116(a) ; Garcia v. Stickel , 37 AD3d 368 [1st Dept 2007].) Not only shall the failure to provide the requisite explanation for the proposed correction(s) result in a rejection of the errata sheet, ( Rodriguez v. Jones , 227 AD2d 220 [1st Dept 1996] ; Schachat v. Bell , 282 AD2d 329 [1st Dept 2001] ), the failure to provide a satisfactory explanation shall also result in a rejection of the corresponding proposed correction. ( Marzan v. Persaud , 29 AD3d 652 [2nd Dept 2006] ; Ashford v. Tannenhauser , 108 AD3d 735 [2nd Dept 2013] ; Horn v. 197 5th Ave , 123 AD3d 768 [2nd Dept 2014] ; Torres v. Board of Ed , 137 AD3d 1256 [2nd Dept 2016].) For example, conclusory and/or vague explanations are not sufficient. In Marzan v. Persaud , plaintiff attempted to correct a critical portion of her testimony to now read that an uneven condition in the sidewalk caused her fall, with the reason for the change being "I meant to say that." ( 29 AD3d 652.) The Second Department held that this reason was conclusory and insufficient to explain such a significant change. ( Id. at 653.) In Ashford v. Tannenhauser , the Second Department determined that plaintiff radically changed much of his earlier testimony via the errata sheet, with the vague explanation that he had been "nervous" during his deposition. ( 108 AD3d at 736.) The court concluded that since plaintiff failed to offer an adequate explanation for materially altering the substance of his deposition testimony, the altered testimony could not be considered in deciding the summary judgment motion (Id ).
Dr. Nieto and Dr. Chiu suggest that the proposed changes to the testimony of BHUIYAN is significant in that it attempts to improperly influence the employee/ independent contractor narrative. While this may be true, substance changes are permissible, ( CPLR 3116(a) ), except here the purported reason of "improper question" is confusing given that the Gallo Law Firm was present during the Bhuiyan deposition, and they did not object to the form of the question. It is also confusing because one may be lead to believe that the proposed alterations are seeking to make changes to the questions posed by the lawyer during the deposition versus Bhuiyan's testimony. Overall, the objection is both conclusory and vague. Based on the aforementioned, the Court is satisfied that Bhuiyan's explanation of "improper question" as a reason for the proposed changes is not satisfactory. Therefore, the motion by Dr. Nieto and Dr. Chiu to strike Bhuiyan's errata sheet is granted ( CPLR 3116(a) ), and as there was nothing frivolous in the relief sought by these defendants, especially given that the relief sought was granted, Bhuiyan's cross-motion for sanctions pursuant to Part 130 is denied. (22 NYCRR 130.1.1(c).) The cross-motion by Dr. Goldwyn and New York Hospital Queens to strike Bhuiyan's errata sheet is likewise granted. It must be noted that this is the second time that the Gallo Law Firm sought Part 130 sanctions against a motion brought by Dr. Nieto and Dr. Chiu, on the false premise that the relief being sought was frivolous. The Gallo Law Firm is reminded that a request for sanctions pursuant to Part 130 is not something that should be loosely alleged, and Part 130 expressly makes a motion for sanctions itself sanctionable. ( 22 NYCRR 130-1.1(c).) If the Gallo Law Firm once again seeks Part 130 sanctions against a motion that has merit, this Court will impose sanctions against the Gallo Law Firm. Dr. Nieto and Dr. Chiu are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.