Moorman v Huntington Hosp.
Annotate this CaseDecided on May 5, 2005
Supreme Court, Suffolk County
Jeffrey Moorman, M.D., Plaintiff,
against
Huntington Hospital, JAY R. GAUDREAULT, DONALD HEAD, THOMAS HOEFET, MICHAEL QUARTIER, ARLENE JOHNSON, NM.D., MEDICAL BOARD OF HUNTINGTON HOSPITAL AND BOARD OF DIRECTORS OF HUNTINGTON HOSPITAL, Defendants.
28514-95
Attorney for Plaintiff
Nathan L. Dembin & Associates, P.C.
225 Broadway, Suite 1400
New York, NY 10007
Attorneys for defendant
McHenry, Horan & Lapping, P.C.
6800 Jericho Turnpike
Syosset, NY 11791
Devitt Spellman Barrett, LLP
50 Route 111
Smithtown, NY 11787
Denise F. Molia, J.
Notice of Motion dated January 28, 2005; Affirmation dated January 28, 2005; Exhibit A annexed thereto; Affirmation in Opposition dated March 3, 2005; Exhibits A through J annexed thereto; Notice of Cross Motion dated March 2, 2005; Affirmation in Support dated March 3, 2005; Exhibits A through L annexed thereto; Affirmation in Opposition dated March 22, 2005; Exhibits A through H annexed thereto; Reply Affirmation dated March 28, 2005; and upon due deliberation; it is
ORDERED, that the motion by plaintiff, for an Order (1) compelling Robert K. Lapping to appear for a further deposition; (2) adding Robert K. Lapping as a necessary party to the action; and (3) removing the law firm of McHenry, Horan & Lapping from representing defendants in this action, is denied; and it is further
ORDERED, that the cross motion by defendants, pursuant to 22 NYCRR 130-1.1(a), for an Order (1) compelling plaintiff to pay costs for expenses and attorney's fees to reimburse defendants for expenses incurred to oppose plaintiff's frivolous motion; and (2) imposing sanctions upon plaintiff for engaging in frivolous conduct; is denied.
The underlying action concerns claims for defamation and slander relating to two entries made by defendants, about the plaintiff, to the National Practitioner's Data Bank. Robert K. Lapping, Esq., is a non-party who is alleged by plaintiff to have discussed the matter with plaintiff prior to the commencement of the instant action, and is further alleged to have threatened plaintiff with the interposition of a more damaging entry to him if a "settlement" was not reached.
On November 2, 2004, an examination before trial of non-party witness, Robert K. Lapping, was held. Lapping's attorney raised numerous objections and advised his client not to answer certain questions during the course of the examination. The plaintiff has categorized the various objections as improper, and the actions of Lapping's counsel as obstreperous and obstructive. Counsel for the witness contends that the objections were valid and his behavior was appropriate. The parties have included as an exhibit the complete transcript of the examination before trial of Robert K. Lapping.
This matter is currently scheduled for jury selection on May 10, 2005. On the eve of trial, the plaintiff now moves to compel a further deposition of Robert K. Lapping, to add Lapping as a party defendant, and to disqualify Lapping's law firm from representing the defendants at trial.
The plaintiff's "Notice For Non-Party Examination Before Trial" served upon Lapping specifically provided that " The Subject matter of this non-party EBT is limited to the letter addressed to plaintiff Dr. Moorman and a related telephone call." At the deposition, which took place on November 2, 2004, counsel for Lapping maintains that his client answered every factual question posed to him concerning the letter addressed to Moorman and dated June 30, 1993 and [*2]the aforementioned telephone call of July 2, 1993 with Moorman. Counsel for plaintiff maintains that she was entitled to go beyond the scope of the condition in the Notice and "explore all areas that might illuminate Mr. Lapping's participation in the underlying fact matrix and seek all 'matter' reasonably calculated to lead to important information."
Upon a review of the transcript, the Court finds that the plaintiff's counsel, in its questioning of Lapping, went far afield of the parameters set forth in its own notice. The limiting language of the notice cannot be flagrantly ignored. While the plaintiff may have been entitled to a certain degree of latitude in its questioning of the non-party witness, the transcript is rife with examples of questions that exceed the boundaries of what is relevant to the instant litigation and could reasonably be expected to be asked at this limited deposition. Rather than obstreperous and obstructive, the objections raised by the witness' counsel appear valid under the circumstances in limiting the questioning to the specific language of the Notice as drafted by plaintiff's counsel.
To the extent that a party wishes a further deposition of a witness, said party must "indicate to the Court precisely what questions were not answered, that the witness' refusal to answer was improper, and that formal deposition is the appropriate remedy." American Reliance Insurance Company v. National General Insurance Company, 174 App. Div. 591. In the instant matter the plaintiff has made note of the objections, most of which the Court finds to be reasonable and proper. Plaintiff now asks that the Court prospectively compel the witness to answer additional questions, without knowing what the questions will be. It appears that the plaintiff has already had sufficient opportunity to query the witness on the aforesaid letter and telephone call during the initial deposition. In the absence of specificity as to additional questions to be asked, the application to compel a further deposition must be denied. Steadfast Insurance Company v. Sentinel Real Estate Corporation, 278 AD2d 157, 719 N.Y.S.2d 221.
Plaintiff also seeks to add Lapping as a "necessary" party to the action, after ten years of litigation and without an explanation for the delay. The Court finds that the doctrine of laches is applicable under the circumstances and the plaintiff is precluded from the relief sought. Additionally, the plaintiff has neither moved for permission to amend, annexed a Proposed Amended Complaint, explained why the allegations of the Amended Complaint were not contained in the original Complaint, or submitted an affidavit demonstrating the merits of the proposed amendment. (See, Mohan v. Hollander, 303 AD2d 473, 756 N.Y.S.2d 615; Clark v. Foley, 240 AD2d 458, 658 N.Y.S.2d 429; Morgan v. Prospect Park Associates Holding, L.P., 251 AD2d 306, 674 N.Y.S.2d 62; Mylonas v. Town of Brookhaven, 305 AD2d 561, 759 N.Y.S.2d 752).
The plaintiff contends that Lapping must be added as a necessary party pursuant to CPLR 1001(a), inasmuch as his joinder would make the relief between those already parties more complete, or the judgment may in some way inequitably affect him. Movant herein advocates that Lapping does not have a statute of limitations defense since CPLR 203(b) provides that a claim asserted in the complaint is interposed against the defendant or co-defendant united in interest with him when the summons is served upon the defendant. [*3]
In instances where a plaintiff seeks to add a new defendant to an existing action, where the statute of limitations has already run, the burden shifts to the plaintiff to establish a "relation back." Austin v. Interfaith Medical Center, 264 AD2d 764. In such cases, the Courts have applied a three-prong test to determine whether there is a relation back. To do so, the plaintiff must establish (1) both claims arose out of the same conduct, transaction or occurrence; and (2) the new defendant is "united in interest" with the original defendants, can be charged with such notice of the institution of the action, and will not be prejudiced in maintaining a defense on the merits by the delayed commencement; and (3) the new defendant knew or should have known that, but for a mistake on the part of the plaintiff as to the identity of the proper parties, he would have been sued originally. Brock v. Bua, 83 AD2d 61; Mondello v. New York Blood Center, 80 NY2d 219.
The plaintiff has been unable to meet all three prongs of the "relation back" test. Most notably, there is no credible evidence to indicate that the plaintiff made a mistake in the identification of the proper parties. The plaintiff obviously knew the identity of Lapping when he received the June 30, 1993 letter, which was written on Lapping's business stationery, and also when they spoke by telephone on or about July 2, 1993. It strains credibility to believe that the plaintiff would now attempt to maintain that the identity or location of Lappings was not made known to him, or that he was mistaken as to who he was speaking with on July 2, 1993. The "relation back" doctrine will be rejected when the plaintiff knew of the existence of the proper party at the outset (Buran v. Coupal, 87 NY2d 173; Pappas v. 31-08 Café Concerto, 5 AD3d 452) or where a plaintiff knows the actual identities of all possible defendants but chooses not to timely sue same (Lamb v. Prime Computer, 158 AD2d 798). A mistake of law, rather than a mistake of identity, "is not the type of mistake contemplated by the doctrine" Somers and Wand, P.C. v. Rotondi, 251 AD2d 56, and discoverable identity does not constitute a mistake (see, Wimbish v. Green, 191 AD2d 491).
Likewise, the plaintiff has been unable to establish the second prong of the test. Under the instant circumstances, it is conceivable that the defendants, who are defending a libel claim, and the witness, who would be defending against allegations of a conspiracy and/or telephone threat, would be relying on different defenses. To defeat a unity of interest argument, it is only required to show the mere possibility that a Defendant who was served late could have a different defense from the other defendants (see, Connell v. Hayden, 83 AD2d 30, 443 N.Y.S.2d 383).
The proponent of a motion to disqualify an attorney on grounds that he will be called to give testimony at trial, must demonstrate that such testimony is "necessary", given its significance, weight and lack of any other witness with counsel's knowledge of essential facts. S & S Hotel Ventures, Ltd. v. 777 S.H. Corp., 69 NY2d 437, 515 N.Y.S.2d 735. In determining whether the attorney's testimony is necessary so as to justify the harsh remedy of disqualification, the court must consider the presence of other available testimony and evidence, and where such testimony is cumulative, the attorney is not an essential or necessary witness and disqualification will be denied. Eisenstadt v. Eisenstadt, 282 AD2d 570, 723 N.Y.S.2d 395. Here, the plaintiff has failed to produce any evidence to dispute that Lapping's testimony would be merely [*4]cumulative of other testimony and evidence offered in this action.
Courts must weigh a party's right to counsel of its own choice, the prejudice that would result if a motion to disqualify were granted, and whether the motion is a tactical ploy. See, Lopez v. Precision Papers, Inc., 99 AD2d 507, 470 N.Y.S.2d 678; Talvy v. American Red Cross, 205 AD2d 143, 618 N.Y.S.2d 25. Disqualification motions that are not brought with alacrity are highly disfavored (see, H.H.B.K. 45th Street Corp. v. Stern, 158 AD2d 395, 551 N.Y.S.2d 517; Lucci v. Lucci, 150 AD2d 650, 652, 541 N.Y.S.2d 994, 995; Lewis v. Unigard Mutual Ins. Co., 83 AD2d 919, 920, 442 N.Y.S.2d 522, 523). The very fact that this issue has been raised for the first time on the eve of trail, and after the subject law firm has represented the defendants in this action virtually since the inception of the matter a decade ago, without explanation by the plaintiff, casts doubt on the sincerity of his motives.
However, even in cases where an individual attorney in a law firm may be a necessary witness and "ought" to be called as a witness at trial, disqualification of the entire firm is not warranted, and only the attorney-witness is disqualified (See, 22 NYCRR § 1200.21(a); see also
Kaplan v. Maytex Mills, Inc., 187 AD2d 565, 590 N.Y.S.2d 136; Kubin v. Miller, 801 F. Supp. 1101, 1113). Accordingly, in the absence of a sufficient reason why the defendants' counsel's firm should be disqualified, the application is denied.
With regard to the defendants cross motion for sanctions, the Court finds that although the plaintiff has not prevailed on the instant motions, the conduct of plaintiff is not deemed to be such so as to support the imposition of sanctions against the plaintiff.
The foregoing constitutes the Order of this Court.
Dated: May 5, 2005 _____________________________
HON. DENISE F. MOLIAJ.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
