Aponti v 165 Seaman L.L.C.

[*1] Aponti v 165 Seaman L.L.C. 2004 NY Slip Op 50915(U) Decided on July 15, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 15, 2004
Supreme Court, New York County

DESIREE RAMOS APONTI, Plaintiff,

against

165 SEAMAN L.L.C., 165 COMPANY, BRIDGEMONT REALTY, INC., KIRO ATANASOSKI, PARKOFF OPERATING CORPORATION, EKB REALTY, Defendants.



010813138/2003

Shirley Werner Kornreich, J.

I. FACTUAL AND PROCEDURAL BACKGROUND:

This is an action to recover damages for personal injuries sustained by plaintiff on April 21, 2002. On that date, as plaintiff was taking a shower in her apartment, No.2A, a soap dish broke off the wall and its jagged edge caused lacerations to her hand. Plaintiff's engineer has opined that the soap dish broke off the wall because it had been negligently installed to start with, as well as because a subsequent water leak that had not been timely repaired had caused the adhesive holding the dish to the wall to become weakened. Insofar as is pertinent to the instant application, it is plaintiff's theory that defendant Kiro Atanasoski ("Atanasoski"), the building superintendent, had performed the negligent installation of the soap dish that had caused or contributed to plaintiff's accident on April 21, 2002.

At issue on the instant application is whether defendants should be compelled to turn over to plaintiff copies of two pre-litigation statements allegedly made by Atanasoski to defendants' insurers' representatives, as follows: (1) According to plaintiff's counsel, Michael H. Joseph, Esq., he spoke on April 15, 2003 to one Harvey Stanley of Cambridge Integrated Claims Services, an adjustment company hired by one of the defendants' liability carriers. On that occasion, Stanley reported to Joseph that Atanasoski had told him, upon being questioned shortly after plaintiff's accident, that he had inspected the apartment prior to the accident, and that no repairs had been needed. See Joseph Affirmation ¶6. (2) On June 25, 2003, Joseph spoke with Matthew Cericola, also of Cambridge Integrated Claims Services. According to Cericola, Atanasoski had given a statement to an investigator in which he reported that he had personally replaced the soap dish in plaintiff's apartment three times between April 2001 and April 2003. Id.

At his deposition on February 4, 2004, Atanasoski testified, inter alia, that he did not do any tile setting or plumbing work; that he did not know the plaintiff; that he had never worked in plaintiff's bathroom, either before or after the accident; that he had never even been in plaintiff's bathroom; that he had not installed the soap dish which had injured plaintiff; that he had never [*2]heard of any soap dish coming out of the wall in any apartment in defendants' building; and that he did not remember if the soap dish in plaintiff's apartment had ever been replaced during his 18 years as super at the building. Atanasoski additionally denied telling any investigator that he had ever replaced the soap dish in plaintiff's bathroom, and denied that he had discussed plaintiff's accident with her roommate, Ms. Lucia. See Exhibit 1 to Joseph Affirmation. During the course of the deposition, Mr. Joseph suggested that Atanasoski, who is Yugoslavian, might need an interpreter; but defendants' counsel refused, saying that Atanasoski "understands your questions fine. I consulted with him and he tells me he does not need an interpreter." Id. at 14.

Some five weeks later, on March 12, 2004, Atanasoski's assistant, Ruben Nikoloski, was deposed. Nikoloski testified, inter alia, that he and Atanasoski had worked in apartment 2A before plaintiff and her roommate moved in; that the two superintendents did install soap dishes in defendants' building from time to time because sometimes the dishes came out of the wall; and that although he could not remember if he and Atanasoski had fixed a loose soap dish in Aponti's apartment before her accident, an outside "company" did repair both the tiles and the soap dish in Apartment 2A. According to Nikoloski, both he and Atanasoski were present when, after plaintiff's accident, Ms. Lucia blamed them for causing her roommate's accident. Thereafter, Nikoloski claimed that Atanasoski replaced the soap dish in Apartment 2A. See Exhibit 2 to Joseph Affidavit.

Some twelve days after Nikoloski's deposition, Atanasoski amended his EBT by means of an "errata" sheet, in which he changed substantially all of his testimony, as summarized above, by, e.g., converting "No's" to "Yeses." For example, his testimony now reads that he did do plumbing and tile setting work in defendants' building; that he did do work in Apartment 2A before Aponti moved in; that he had assigned a private contractor to do plumbing and soap dish replacement to work in Apartment 2A; that he did speak with Aponti's roommate after the accident; and that he made post-accident repairs in Apartment 2A. See Exhibit 3 to Joseph Affirmation. Generally, Atanasoski explained that he had changed his answers because he had not understood the questions. Id.[FN1]

II. DISCUSSION:

As a general rule, an accident report, made by a defendant to his liability insurance carrier or to his attorney with respect to a plaintiff's claim, is conditionally privileged, which is to say that it is immune from discovery unless it can be established that a substantial equivalent of the material cannot be obtained by other means without undue hardship.... In the absence of any demonstration of hardship by plaintiff, the insurer's file remains privileged.

Recant v. Harwood, 222 A.D.2d 372, 373-374 (1st Dept. 1995); see also James v. Metro North [*3]Commuter R.R., 166 A.D.2d 266, 267 (1st Dept. 1990); Friedman v. White Lake Hotel & Cottage, 97 A.D.2d 387 (1st Dept. 1983); Hill v. Misericordia Hosp. Med. Ctr. 91 A.D.2d 915 (1st Dept. 1983) (privilege yields before showing of undue hardship or injustice); CPLR 3101(d)(2); CPLR 3101(g).

In this case, plaintiff has established that the "substantial equivalent" of the statements that Atanasoski gave to the two insurance adjusters/investigators cannot be duplicated by other means without undue hardship indeed, cannot, as a practical matter, be duplicated under any circumstances. It is apparent that even holding a further deposition of Atanasoski would be fruitless, since Atanasoski either cannot or will not provide truthful answers to straightforward questions. For example, during his deposition he rejected a translator, claiming to understand counsel's questions, although latterly he has invoked a quite incapacitating language and comprehension barrier. In the wake of Nikoloski's contradictory testimony, Atanasoski has changed to positive his original negative answers to many significant questions put to him by plaintiff's counsel; and matters respecting which Atanasoski had had no memory whatsoever at his EBT, he now recollects clearly. On the facts of this case, the application of the qualified privilege protecting a client's statements to a liability adjuster or insurance investigator will deprive plaintiff of otherwise unobtainable evidence that she needs to prove her case, while it would simultaneously abet Atanasoski's bad-faith efforts to frustrate legitimate discovery. Accordingly it is

ORDERED that plaintiff's motion for an order directing defendants to turn over all statements made by or taken from defendant Kiro Atanasoski to any investigators hired, employed by or contracted by any insurance carrier involved in this matter, or any notes made of any oral statements made by Atanasoski regarding the within accident taken by any agent, employee or adjuster of the liability carriers involved in this matter, is granted, and defendants are directed to turn over any such statements or notes to plaintiff's counsel within 30 days after service of a copy of this order with notice of entry.

The foregoing constitutes the Decision and Order of the Court.

Date: July 15, 2004

New York, New York SHIRLEY WERNER KORNREICH Footnotes

Footnote 1:The questions, which were not difficult, included such queries as: Q: "Before April 2002, were you ever in the bathroom of Apartment 2A?" A: "No" [changed to "Yes"]. Exhibit 1 to Joseph Affirmation at 12-13. Q: "Was any work at all done to Apartment 2A before Mrs. Lucia moved in?" A: "No" [changed to "Yes"]. Id. at 14. Q: "On April 21, 2002 or shortly thereafter, did you do any repairs in Apartment 2A?" A: "No" [changed to "Yes"]. Id. at 18.