Opinion
No. 6911–08.
2012-05-30
Evelyn ST. LOUIS, Plaintiff, v. Deborah A. HRUSTICH, M.D.; Northeast Neurosurgery, LLC; James J. Otto, JR., M.D. Colleen Knaupp, RPA; Albany Memorial Hospital; Memorial Hospital, Albany, NY; and Northeast Health, Inc., Defendants.
Mia D. VanAuken, Esq., Thorn Gershon Tymann and Bonanni, LLP, Albany, for Deborah A. Hrustich, M.D. and Northeast Neurosurgery, LLC. Christopher Massaroni, Esq., McNamee, Lochner, Titus & Williams PC, Albany, for plaintiff.
Mia D. VanAuken, Esq., Thorn Gershon Tymann and Bonanni, LLP, Albany, for Deborah A. Hrustich, M.D. and Northeast Neurosurgery, LLC. Christopher Massaroni, Esq., McNamee, Lochner, Titus & Williams PC, Albany, for plaintiff.
Mark J. Dolan, Esq., Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany, for defendant James J. Otto, Jr., M.D.
MICHAEL C. LYNCH, J.
Plaintiff commenced this medical malpractice action against defendants alleging, inter alia, that defendants Dr. Hrustich and Dr. Otto negligently performed a spinal fusion surgery. Plaintiff's fiancé, Mr. Kozlowski, appeared at a deposition on November 21, 2011. When defendants' counsel questioned Mr. Kozlowski about certain conversations with plaintiff's counsel, plaintiff's counsel objected and directed Mr. Kozlowski not to answer the questions. Counsel agreed to submit the issue to this Court for resolution. Now, defendants Dr. Hrustich and Northeast Neurosurgery and Dr. Otto move pursuant to CPLR 3124 and CPLR 3126 for an Order compelling Mr. Kozlowksi to re-appear at a deposition to respond to the questions posed with regard to the communication by and between Mr. Kozlowski and plaintiff's counsel.
At his deposition, Mr. Kozlowski, who is sixty-five years old, testified that he has been in a relationship with the plaintiff, who is seventy-one years old, for eleven years, has been engaged to her for nine years, and has lived with her since April 2011 (Tr. p. 8–9). He testified that he has known plaintiff for forty-two years because before moving in with plaintiff, Mr. Kozlowski lived across the street from her. He testified that he drove plaintiff to her doctor's appointments with defendant Dr. Hrustich prior to having back surgery in 2003 and again when her back pain returned in 2007 (p. 43).Mr. Kozlowski was present when Dr. Hrustich first talked to plaintiff about the second surgery, researched the procedure with plaintiff, and drove the plaintiff to the hospital early in the morning on the day of her surgery and waited, together with her children who arrived later, until the surgery was over (p. 46, 57–71). Mr. Kozlowski took plaintiff home from the hospital (p. 91)and stayed with her to help her as she recovered (p. 96).
Three or four days after the surgery (p. 101) plaintiff received an anonymous letter in the mail from an individual who claimed that he or she was in the operating room during plaintiff's surgery (see St. Louis Affidavit Exhibit A). Mr. Kozlowski testified that after he and plaintiff read the letter, he called Mr. Massaroni, who suggested that they contact Dr. Scheid (p 106–107, 113). Plaintiff and Mr. Kozlowski went to see Dr. Scheid, and Mr. Kozlowski was there when Dr. Scheid recommended, and plaintiff agreed to undergo, what was characterized as an emergency corrective surgery (p. 128).Mr. Kozlowski went with the plaintiff to speak with Mr. Massaroni sometime following plaintiffs surgery with Dr. Scheid and, together, they met with him three or four times thereafter (p. 175). At some point, plaintiff retained Mr. Massaroni to represent her in this action. At Mr. Kozlowski's deposition, Mr. Massaroni directed him not to answer any questions with regard to communications Mr. Kozlowski had with Massaroni, whether or not the communication occurred with plaintiff present.
Now, defendants claim that Mr. Kozlowski's communications with Massaroni are not protected by the attorney-client privilege because Mr. Kozlowski is a non-party and is not represented by Mr. Massaroni. Further, defendants claim that plaintiff herself waived the right to assert that the attorney-client privilege attaches to any communications she had with her attorney while Mr. Kozlowski was present. In defendants' view, Mr. Massaroni had no basis to object to Mr. Kozlowski's testimony with regard to his conversations with counsel and he should therefore be compelled to reappear at a deposition.
The attorney-client privilege, “enables one seeking legal advice to communicate with counsel for this purpose secure in the knowledge that the contents of the exchange will not later be revealed against the client's wishes” (CPLR 4503(a); People v. Osorio, 75 N.Y.2d 80 [1989] [cit. om.] ). The privilege may be asserted only where, “an attorney-client relationship has been established. Such a relationship arises only when one contacts an attorney in his capacity as such for the purpose of obtaining legal advice or services (Priest v. Hennessy, 51 N.Y.2d 62 [1980], 68–69). “Although typically arising in the context of a client's communication to an attorney, the privilege extends as well to communications from attorney to client” (Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d 371 [1991] ). Generally, no privilege will attach where the communication between the client and counsel is “in the known presence of a third party”, ( People v. Osorio, Supra). In such a case, “[t]he scope of the privilege is not defined by the third parties' employment or function, ...; it depends on whether the client had a reasonable expectation of confidentiality under the circumstances” ( Id.). Where a third party acts as an agent to facilitate communication by and between a client and his or her attorney, that communication may be privileged ( Id.; Stroh v. General Motors Corp., 213 A.D.2d 267 [1995] ).
In response to defendants' motions, plaintiff submits an affidavit wherein she avers that “[i]n nearly all respects”, she and Mr. Kozlowski, “treat one another as husband and wife”. She explains that when she received the anonymous letter, she was “in great pain and unable to care for [herself] or to go about legal or medial assistance”. She therefore “relied on Mr. Kozlowski in this regard, and I am aware that Mr. Kozlowski contacted an attorney on my behalf”. Further, she explains that Mr. Kozlowski took her to her medical appointments and meetings with her attorney and she avers that she, “certainly expected that all of our communications with counsel would remain confidential”.
Mr. Massaroni submits an affirmation wherein he avers that his firm represents Mr. Kozlowski and that both Mr. Kozlowski and plaintiff signed a retainer agreement with the firm. He avers that when Mr. Kozlowski first contacted him, plaintiff's medical condition, “prevented her from speaking for herself”. Mr. Massaroni avers that, “at all times, [he] regarded [his] communications with Mr. Kozlowski to be confidential and covered by the attorney-client privilege with both of them”. As an example of the services provided, Mr. Massaroni avers that his firm researched whether, based on the nature of his relationship with plaintiff, Mr. Kozlowski could assert a loss of consortium claim against defendants.
As set forth above, this dispute arose because Mr. Massaroni would not allow Mr. Kozlowski to answer any questions with regard to his communications with counsel. Generally, though a non-party witness has the right to be represented by counsel at a deposition, counsel may not object or otherwise participate in the deposition unless necessary to invoke a testimonial privilege (CPLR 3113(c); Thompson v. Mather, 70 AD3d 1436 [2010]Sciara v. Surgical Assoc. of W. NY, P.C., 32 Misc.3d 904 [2011] [citing Women in City Government United v. the City of New York, 112 FRD 29] ). In this Court's view, Mr. Kozlowski's deposition testimony, together with plaintiff's affidavit and Mr. Massaroni's affirmation, support plaintiff's claim that Kozlowski was seeking legal advice when he contacted Mr. Massaroni, thus, an attorney-client relationship existed between them (Clark v. Schuylerville Cent. Sch. Dist., 57 AD3d 1145). Further, under the circumstances presented on the submissions, the Court concludes that Mr. Kozlowski was acting as plaintiff's agent when he met with plaintiff and counsel ( Stroh, Supra). The communications were therefore privileged and Mr. Massaroni properly asserted the attorney-client privilege as the basis for his objection to Mr. Kozlowski's testimony with regard to his communications with counsel.
Accordingly, based on the foregoing, it is
ORDERED that defendants' motion and cross motion to compel Mr. Kozlowski to reappear at a deposition are denied; and it is further
ORDERED that counsel are directed to attend a conference before this Court on June 25, 2012 at 9:30 a.m. at the Albany County Courthouse, Albany, New York.
This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for plaintiffs. The below referenced original papers are being filed with the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.