Morris v Home Depot USA
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Morris v Home Depot USA 2012 NY Slip Op 31370(U) May 11, 2012 Sup Ct, Suffolk County Docket Number: 5201-06 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDi;R INDEX No. 520 I -06 SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme COlu1 MOTION DATE 2/17/12 ADJ. DATES 5/4/!2 Mot. Seq. # 006 - MG Mot. Seq. # 007 - XMG Mot. Seq. # 008 - XMD Case Disp YES ---------------------------------------------------------------X JOHN MORRIS and TERESA MORRIS, Plaintiffs, BRODY, O'CONNOR & O'CONNOR Attys. For Plaintiffs 7 Bayview Ave. Northport, NY I 1768 -againstHOME DEPOT USA, Defendant. SIMMONS, JANNACE & STAGG Attys. For Deft/Third-Party Plaintiff 75 Jackson Ave. Syosset, NY 11791 ---------------------------------------------------------------X 1-10ME DEPOT USA, Third-Party Plaintiff, MAZZARA & SMALL, PC Attys. For Third-Party Defendant 800 Veterans Memorial Hwy. Hauppauge, NY I 1788 -against.I&J BUILDING MAINTENANCE, INC., Third-Party Defendant. ---------------------------------------------------------------X Upon the following papers numbered I 10_1_6_ read on this motion and cross Illotion bv defendant and thirdpatty defendant to dismiss the cOlllplaint or to compel discovery and cross motion by the plaintiffs to compel location of exam and testimony ; Notice of Motion/Order to Show Cause and SupP0l1ing papers..l...::..L; Notices of Cross Motion and supporting papers )-7; 8-10 , An.'iwering Affidavits and sUPPOJting papers 11- 12 ; Replying Affidavits and supporting papers 13-14: 15-16 ; Other : (aMdlIftel helll il,g e(Julisei in .mppOll and C)I'JPo.~ed to tile li1etiM) it is, ORDERED that the motion (#006) by defendant/third party plaintiff~ Home Depot USA, Inc. and cross motion (#007) by third-party defendant, J&J Building Maintenance, Inc., for an order dismissing the complaint pursuant to CPLR 3126 or for an order compelling disclosure are considered under Article 31and are granted to the extent that the complaint is dismissed pursuant to CPLR 3126; and it is further [* 2] Morris v I"[ome Depot, USA Index NO. 05201/2006 Page 2 ORDERED that the cross motion (#008) by the plaintiil<; for, in effect, a protective order obviating any need for the plaintiffs to appear here in New York for any outstanding discovery proceedings or for the tnal of' this action by requiring (he defendants to conduct all physical examinations or the injured plaintiffm the plaintiffs' home state of Florida and directing that the trial testimony or the plaintiffs and or the defendants' medical experts be video taped in Florida, is considered under CPLR Article 31 and 1S denied This action arises out of work site accident that occurred in the parking lot of a Home Depot store 111 Shirley, New York on January 19,2004. At the time ofthe accident, the injured plamtiff, John Morris, was employed by ASR Electrical Contracting as an electriclJ.11 and he was mjured when he fell on lce and/or snow while traversing the parking lot o1'the store under construction. The injuries which the injured plaintiff claims to have sustained in the fall include a rotator cuff tear in the right shoulder and three herniations of discs in his thoracic spine region and/or aggravations to any such herniations which may have pre-existed, all of which, allegedly rendered the injured plaintiff incapable of working and in nced of surgery, which was performed. The within action was commenced on October 28, 2005 in the New York State Supreme Court in Nassau County. The defendant's answer was served in December of2005 together with its combined demands for discovery and a demand for a venue change. On January 25, 2006. a stipulation of counsel resolved the venue change demand and the action was transferred to this court. When no responses to the defendant's combined demands for discovery were received, the defendant requested a preliminary conference which was held in the OeM part of this court on May 22, 2006. Thereat the plaintiffs and the ddendant agreed that the depositions ofthe p311ks would be held all September 19, 2006. They further agreed to a physlcal examination of the injured plaIntiff within 45 days of the plaintilT's deposition and that all discovery, except Cor expert discovery, would be completed by May 1,2007. The plaintiffs served their bill ofpm1iculars on July 21, 2006, which retlected, among other things, that the plaintiffs had relocated to Florida and that the injured plaintitr was being treated by physicians in the Boca Raton area. For reasons not discernable from the record, neither the depositions nor the physical examination of the plaintiff were conducted within the time frames dictated by the court in its preJim1l1ary conference order. In March of 2007, the defendant commenced the third~party action against J&J Building Mamtenance, Inc., who allegedly had been retained to perform snow removal in the parking lot in which the plaintiffs accident allcgedly occurred. It wasn't until April 22, 2008, that the injured plaintitr appeared for his deposition under compulsion of"spcci fic court directives set forth in two orders dated January 9, 2008 and March 14, 2008 that wcrc issued Oil two separate motions. Thereafter, disputes arosc betwcen Home Depot and the other parties regarding the inability ofdeti::ndanll-iomc Depot to produce a \vitness \-vith knowledgc of. among other things, control orthe parking lot on thc date of the accident. Ultimately. two dcpositions of 1-10111C Depot agents were conducted, the last of which was reccntly concluded. The record rencets that this action has appeared on conferences calendars of this court no fewer than 35 times since its transfer from Nassau County, At the 33rd scheduled conference appearancc date [* 3] Morris v Home Depot, US/-\ Index NO. 05201/2006 Page 3 In Septemher 01'2011, counsel stipulated to deposition dates of the defendant and third-party defendant and a resolution of the plaintilTs' claim that the injured plaintiff would not be able to appear I~)T a physical examination in New York due to his allegedly poor physical condition which made it difficult for him to travel here. Two leHers from a treating physician m Florida dated October] 8, 2007 and Septemher 28, 20 I] were apparently gathered by the plaintiff as evidence of Mr. Morris' alleged inability to appear for physical examinations by New York phYSicians designated by the defl:ndant and third-paliy defendant. In October 01'20 I 1, the plaintiffs served a "supplemental bill ofparticuJars". In response, both the defendant and third-party defendant demanded in writing further depositions ofthe plaintit15relative to the new Injuries and conditions asserted in the "supplemental bill of particulars" and the production of the injured plaintitffor his physical examination. The written demands specified that both the further depositions and the physical examinations were to be held here in Nc\v York. The 1I1stantapplications were 1l1terposl:dafter counsel could not resolve the issues surrounding the location of the physical examinations and those surrounding any depositions of the plaintiff'sl. By the motion (#006) and cross motion (#007) interposed by the defendant and the third~party defendant, these parties seek an order dismissing the plaintiff's complaint due their failure to provide discovery. Alternatively, these movmg parties seek an order compelling the injured plall1tiffto appear for his physical examination here In New York and compelling his appearance for a further deposition based upon the new items of damages and/or injuries and conditions set forth in the plaintiffs' "supplemental" bill of particulars dated October 6, 2011 The plaintiffs cross move for- in efTect, a protective order against the plaintiffs' appearances here in New York for further depositions, a physical examination or for trial by the issuance of an order directing that the defendants designate Florida physicians for the purpose of conducting any and all outstanding physical examinations and that the plaintiffs' trial testimony be taken by video tape in Florida and used at the trial in lieu of live testimony. The plaintiffs further oppose the defendants' dcmands for further depositions of either plaintiiT since no claims, ne\v injuries or new elements of damages are allegedly advanced in the plaintiffs' supplemental bill of particulars_ In support oftheJr demJnds for a protective order, the plaintiffs rely upon two letters from a treating physician, Dr. Marc H. Feinberg of Boca Ratan, Florida dated October 18,2007 and Sepll':mber 28, 20] 1. They also submit an unstgned affirmation of Dr. Feinberg whieh allegedly enlarges the description of the condillOns alllicling the injured plaintil:Tthat prevent h1l11 from traveling to New York. I<·orhe reasons stated below, thc defcndants' motion and cross motion are granted while the t pla1111111<;' motion IS denied cross Pursuant to CPLR 3] 26(3), this court is authorized to strike the pleadmgs of any and all parties who refuse to obey an order for disclosure or who wIlfully fad to disclose information which the court finels ought to have been disclosed (see Palomba v Schindler EI. Corp., 74 AD3d 1037,903 NYS2d 1/\ motion (liOOS) to compel Home Depot's further dl"positioll was interposed by 11110 third-party defendant and resolved prior to the final submission date of these Illotions. [* 4] Morris v 110m!.: epot, USA D [ndc, NO 05201/2006 Page 4 137 [2d Dept 20]0]; Nicolill Re(l{~V i'J.fL'(, Inc. v Fernandes, 37 i\D3d 568, 829 NYS2d 704 [2ei Dept 2007J; Mendez v City of New York, 7 AD3d 766, 778 NYS2d 50[ [2d IJept2004D The stnking ofa pleading may be appropnate where there is a clear showing that the failure to comply with discovery demands IS willful or contumacious (see Northfield Ins. Co. v Model Towing & Recovery, G3AD3d 808,881 NYS.2d ] 35 j2d Dept 2009J; Kuzmin v Visiting Nurse Servo ojNY, 22 AD3d 643, 804 NYS2d 352 12d Dcpt2005], Diel v Rosenfeld, [2 ADJd 558, 784 NYS2d 379 [2d Dept2004]). Willfu[ and contumacious conduct may bc inferred from a party's repeated failure to respond to demands or to comply with discovery orders and the absence afany reasonable excuse for such failures (see Nort/~field IllS. Co. v Model Towillg & Recovery, 63 AD3d 808, supra; McArthur v New York City l/Olts. Aut"., 48 AD3d 431,851 NYS2d 27] [2d Oept 2008J; BO/mer v Parke-Davis, 41 AD3d 522, 839 NYS2d 11() [2d Dep! 2007]). As a general rule, a non-resident plaintiff who has invoked the jurisdiction of New York State by bringing suit in its courts must stand ready to be deposed in New York unless it is shown that undue hardship would result (see Yu Hui Chen v Chell Li Zhi, 81 AD3d 818, 818, 916 NYS2d 525 [2d Dep1 20] I"];Rodriguez v Jnfinity Ins. Co.. 283 AD2d 969, 723 NYS2d 741 [4th Dept 2001 :J;FarraklulIl v lv'.Y.P. Holdings, 226 AD2d 133, 135--136, 640 NYS2d 80 [1 ,I Oept ] 996], Boylin v Eagle TelepllOllin, 130 AD2d 538, 515 NYS2d 273 [2d Oept1987]; see also CPLR 3 110[1 D, An exception exists where a party demonstrates that conducting his or her deposition in that county would cause undue hardship (see Gartller v Unffied Windows, Doors ami S'iding, Inc., 68 AD3d 815, 890 NYS2d 608 pd Dept 2009J; Droogas v Droogas, I AD2d 965,150 NYS2d 445 [2d Dept ]956]). Although CPLR § 3121 docs not specify the place at which the physical examinations that arc the subject of that statute shall be held, it gives the party demanding the exammation the right to designate the examining physician whose offices are the preferred place for such examinations (see Resllick v Seher, 198 AD2d 2 18,603 NYS2d 501 [2d Dept 1993]); Foley v llllffmeister, [56 AD2d 541, 549 NYS2d 48 /2d Dept 1989]). However, a demonstration of special circumstances, including hardship on, or prejudice to the examinee, may warrant ajudicial direction that such examinations be held elsewhere (see Wygocki v Milford Plaza Hotel, 38 AD3d 237, 831 NYS2d 381 tlst Dept 2007J, cj.', Rakowski v Irmise/f, 46 AD2d 826, 361 NYS2d 68 [41h Oept 1974]). Claims of hardship must be supported by due proot~ as conclusory claims thereofare insufficlcnt (see MOlillt Ventoll Fire JIlS. Co. J! Lundy, 217 AD2d 574, 628 NYS2d 820 [2d Dept 19951; Kahil v Rodman, 91 AD2d 910. 457 NYS2d 480 [ISl Dept ]983]). Where the hardship claimed is medical in naturc. proof thereof of the type necessary to excuse a trial appearance of a deposed witness who is purportedly unavailable for trial due (0 age, sickness or infirmity as contemplated by the CPLR 3101 (a)(3) and 31 ] 7(30 )(ill)(see tie Velutilli v Velutilli U. 151 /\D2d 300, 542 NYS2d 574 [1" Dept 1989, j; Foley v Ilaffmd\·ter, 156 AD2d 541, sUjJra: Platnwl1 v Pit am Tltu Due, 19] AD2d 620. 595 NYS2d [[ I 12d Dcpt 1993]). Here, the court finds that the cross moving papers of the plaintiffs failed to demonstrate by duc and sufTicJClltproof a sufficient predicate for their cross motion for a protective order against their return (0 New York for discovery or trial purposes relating to this action, The hardship cl31med, namely, a totallilabilily olllhe part of the injured pJaintitTto travel from Florida to New York due 10 one or [* 5] Morris v HOI11<: Depot. USA Inde, NO.05201/2006 Pagc 5 more physical conditions allegedly afflicting him is lU1supporlcd by medical proof. The only submission aimed at establishing the hardship claims are the two letters of Dr. Feinberg, both of which are vague and conclusory and the unsigned affirmation of Dr. Feinberg which has no cvidentiary value whatsoever. The court agrees with the defendants that such submissions arc insullicient to sustain the claims of medical hardship that underlie the plaintilTs' cross motion for the relief outlined above. The plaintiff's cross mOlion(/1008) is thus denied. The courl further rinds that the moving papers oCthe defendants suHiciently established that the plaintiffs have repeatedly refused to personally participate in discovery proceedings in accordance with the schedule dictated by the court. Their relocation to Florida shortly after the commencement or this action and their unwillingness to return to New York to participate, personally, in pretrial proceedings requiring such participation are attributable to discretionmy determinations and deliberate conduct on the part of the plaintiffs rather than to any qualifying hardship, as their claims of an inability to travel to New Yark due to physical disabilities are wholly unsupported by competent medical proof. (.'Iee Dee v Auburn Enlarged School Disl., 222 AD2d 1100,636 NYS2d 513 l4th Dept 1995]; Bristol-Myers, Squibb Co. " Yeu-Shallg B. Chen, 186 AD2d 999, 588 NYS2d 672 [4th Dept 1992]; United Refrig. Co. v Rose. 19 AD2d 809, 243 NYS2d 347 [1:;tDept 1963]). It is elear to this court that the actions of the plaintiffs may fairly be construed as evincing 'wilful and contumacious conduct whieh has clearly frustrated the orderly progression of this action. including defendants' entitlement to the discovery stipulated to by counsel and directed by the court, some five years ago (see CPLR 3126: Villar v Ohmberger, 72 AD3d 1066, 900 NYS2d 349 [2d Dept 20 I OJ). Under these circumstances, the defendant and third-party defendant arc entitled to an order dismissing the complaint of the plaintiffs pursuant to eLR 3l26. Those portions of the motion (#006) and cross motion (#007) of the defendant and third-party defendant wherein they demand dismissal of the plaintiffs complaint pursuant to CPLR 3126 are granted. f : I DAIT-:r): :/!!!cl 'T' J
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