Gregorian v New York Life Ins. Co.
Annotate this CaseDecided on February 18, 2016
Supreme Court, Kings County
Hovsep Gregorian, Plaintiff,
against
New York Life Insurance Company, Defendant.
34349/2005
Atty for plaintiff: Steven A. Soulios, Esq.
Atty for defendant: Elise M. Bloom, Esq.
Kathy J. King, J.
The following papers numbered 1 read on this motion:
Papers Numbered
Order to Show Cause 1
Affirmation in Opposition 2
Reply. 3
Upon the foregoing papers, plaintiff, Hovsep Gregorian, moves for an order, pursuant to Civil Practice Law and Rules ("C.P.L.R.") § 2221(e), for leave to renew a motion dated March 22, 2013 compelling (1) the deposition of Seymour G. Sternberg, and (2) the re-examination of Mark Pfaff. Defendant, New York Life Insurance Company, opposes and moves for an order pursuant to C.P.L.R. § 3212(a) extending its time to file a motion for summary judgment to a date at least thirty (30) days after the court decided plaintiff's motion.
Background
The instant action arises out of injuries allegedly sustained by the plaintiff when his former employer, New York Life Insurance Company ("NYLIC"), terminated his employment. Plaintiff began his employment at NYLIC in November 1999, as a managing director of NYLIC's Brooklyn office in the Northeast division. Defendant terminated plaintiff's employment on February 23, 2005. The parties agree that in November 2002, prior to his termination, plaintiff was put on "final notice" of termination for inadequate performance.
NYLIC is one of the largest insurance companies in the world, and as such, its operations are broken up into four geographic regions: South Central, West Central, Pacific, and Northeast. The Chief Executive Officer ("CEO") and Chairman of the Board ("Chairman") of NYLIC during plaintiff's tenure was Seymour G. Sternberg ("Sternberg"), who has since stepped down as CEO, but remains the company's Chairman. Executive Vice-President, Phillip Hildebrand, reported directly to Sternberg and was in charge of the company's "agency department." Paul Morris and Jonathan Jaramillo were both senior vice presidents in the "agency department," who reported to Phillip Hildebrand. Mark Pfaff ("Pfaff"), Senior Vice President of the Northeast Zone, plaintiff's direct supervisor, also reported to Phillip Hildebrand. Prior to Mark Pfaff's tenure, Salvatore Farina held the Northeast Zone Senior Vice-President post. It is undisputed that Senior Vice President Mark Pfaff terminated plaintiff from his employment with NYLIC.
On September 30, 2005, plaintiff commenced the instant suit seeking damages for personal injuries allegedly sustained by his wrongful and unlawful termination from NYLIC. During the course of a lengthy discovery process, plaintiff deposed several high-ranking officials within NYLIC's corporate structure. Plaintiff deposed Patricia Geyer, Northeast Zone Chief Operating Officer, on August 1, 2007. Plaintiff also deposed Salvatore Farina, plaintiff's former direct-line manager on November 2, 2007, Mark Pfaff on December 10, 2007, Paul Morris on August 21, 2013 and Jonathan Jaramillo on August 22, 2013.
By motion dated March 22, 2013, plaintiff moved for an order compelling defendants, pursuant to C.P.L.R. §§ 3101, 3117 and 3124(a) to produce Sternberg for deposition and provide complete answers to interrogatories and produce certain documents, among other requests for relief. By order dated April 29, 2014 (Schmidt, J.), the court appointed the Honorable Margaret Cammer as special discovery master and vested her with the ability to determine that branch of plaintiff's motion to compel which requested answers to plaintiff's first, second, and third interrogatories, the production of various other documents, and a protective order precluding the depositions of other third-parties.
The court also granted plaintiff's motion to the extent that defendant was directed, in lieu of an examination before trial, to produce an affidavit of Sternberg stating that he had no personal knowledge of plaintiff's (1) work performance, (2) disciplinary actions, and (3) termination from employment. Defendant was also directed, pursuant to the April 29, 2014 order, to produce Phillip Hildebrand for a deposition.
On January 2, 2015, the special discovery master issued her decision as to the discovery requests by plaintiff. The decision required the defendant to produce the following: (1) "decks," or power point slides, of bi-annual situation analysis meetings, or operating division performance meetings; (2) performance evaluations for Mark Pfaff and Jonathan Jaramillo for the period 2002 through 2005; (3) performance evaluations for Raj Bakshi for the period 2000 through 2006; and (4) performance evaluations and development plans for each managing partner in the Northeast zone.
On January 12, 2015, the plaintiff filed the note of issue and certificate of readiness for trial. However, in his certificate of readiness, plaintiff specifically reserved additional discovery, stating that defendant still had to produce documents in accordance with the special discovery master's January 2, 2015 report, and that plaintiff's motion to compel the testimony of various officials of the defendant company had not been resolved.
Accordingly, plaintiff now makes the within motion to renew pursuant to C.P.L.R. [*2]§ 2221(e)[FN1] , compelling the deposition of Sternberg and modifying the order dated April 29, 2014 that directed the EBT's of Sternberg in lieu of depositions. Plaintiff's motion also seeks to compel the re-examination of Mark Pfaff. Plaintiff argues that Sternberg's affidavit dated May 5, 2015 only partially complied with the court's April 29, 2014 order, since he did not attest to plaintiff's work performance as directed. Plaintiff also contends that new information came to light after the April 29, 2014 court order, upon which the current motion for leave to renew is based. Specifically, the court-ordered deposition of Phillip Hildebrand, taken after the court's April 29, 2014 order, corroborated Salvatore Farina's previous testimony that Sternberg had direct knowledge of, and involvement in management performance discussions.
In support of his motion seeking leave to re-examine Mark Pfaff, plaintiff asserts that Mark Pfaff's original deposition was taken in 2007, at which time defendant had not complied with various document production requests, and had not provided responses to many of plaintiff's interrogatories. Furthermore, plaintiff argues that documentation proffered by defendant pursuant to the April 29, 2014 court order constitutes "new" information which would necessitate production of Mark Pfaff for a second deposition.
In opposition, defendant focuses singularly on its claim that plaintiff has not met the legal standard for renewal (see C.P.L.R. § 2221(e)), or for conducting a post-note-of-issue deposition (see 22 N.Y.C.R.R. § 202.21(d)). In support of its position, defendant directs the Court's attention to a Second Department decision that affirms a sua sponte action by the trial court to quash a post-note-of-issue deposition request (see Tirado v Miller, 75 AD3d 153, 156 [2d Dept 2010]). The defendant also asserts that the deposition of Phillip Hildebrand did not produce any "new" information warranting a reconsideration of the court's April 29, 2014 order. Additionally, defendant argues Phillip Hildebrand's testimony, at best, produced "cumulative evidence," which is "not enough" to grant a motion for leave to renew founded on the same papers as the previous motion.
Defendant, in response to plaintiff's motion seeking additional discovery, moves by order to show cause to extend its time to move for summary judgment.
In support of its motion, defendant argues that plaintiff filed a Note of Issue and Certificate of Readiness for Trial with the court on January 12, 2015 and its deadline to move for summary judgment is March 13, 2015 pursuant to Kings County Supreme Court Uniform Civil Term Rules, unless good cause is shown to extend this deadline, pursuant to C.P.L.R. § 3212(a). Defendant argues that good cause exists to extend its deadline for summary judgment because plaintiff's instant application, seeking additional discovery, effects its ability to move for summary judgment pursuant to C.P.L.R. §§ 3211 or 3212.
Plaintiff does not oppose defendant's requested relief.
Findings and Ruling
It is well established that motions for leave to renew are left to the sound discretion of the trial court (see Matheus v Weiss, 20 AD3d 454 [2d Dept 2005]).
There are three requirements of a C.P.L.R. § 2221(e) motion. Motions to renew must be identified as such (see C.P.L.R. § 2221(e)(1)). Motions to renew must be also based on new [*3]facts not offered on the prior motion that would change the prior determination, or demonstrate that there has been a change in the law that would change the prior determination (see C.P.L.R. § 2221(e)(2)). Finally, a motion to renew must contain a reasonable justification for the failure of the party to present such facts on the prior motion (see C.P.L.R. § 2221(e)(3)).
In the instant case, the deposition testimony of Phillip Hildebrand indisputably brought new information to light that was not before the Court when Justice Schmidt issued his April 29, 2014 order, and produced information that directly contradicts not only Seymour Sternberg's affidavit, but also Mark Pfaff's prior deposition testimony. It is undisputed that Mark Pfaff and Seymour Sternberg are executive-level managers in defendant's company, who are responsible for personnel decision-making. Phillip Hildebrand's depositions attest to Mark Pfaff and Seymour Sternberg's role in this regard.Phillip Hildebrand testified that Seymour Sternberg, Mark Pfaff, and he would regularly have meetings where they discussed the performance of managing partners, of which the plaintiff was one. The Court finds that the disclosure of these new facts, which were unknown to plaintiff when he made his first motion to compel, provide a reasonable justification for the failure to include these facts on his prior motion, thus, warranting renewal in the instant case.
The Court now turns to the issue regarding whether plaintiff has established a basis for additional discovery after the filing of the note of issue and certificate of readiness for trial.
22 N.Y.C.R.R. § 202.21(d) of the Uniform Rules of Trial Courts provides "where unusual or unanticipated circumstances develop subsequent to the filing of the note of issue, which require additional pretrial proceedings to prevent substantial prejudice, the court, upon a motion supported by an affidavit, may grant permission to conduct such necessary [discovery] proceedings." Motions filed pursuant to 22 N.Y.C.R.R. § 202.21(d) should be granted conservatively, and require both (1) unusual or unanticipated circumstances and (2) substantial prejudice to the moving party. "The common thread in cases allowing further discovery [is] some occurrence after the filing of the note of issue that is not in the control of the party seeking further discovery, and which cause[s] actual, rather than potential prejudice" (Audiovox Corp. v Benyamini, 265 AD2d 135, 139 [2d Dept 2000]).
Plaintiff has established both unusual and unanticipated circumstances and a showing of substantial prejudice under the prevailing rule. The overwhelming evidence in this case indicates that various corporate officers of NYLIC have given contradictory and divergent testimony regarding their respective involvement in, and knowledge of plaintiff's performance evaluations, discipline, and discharge, which was disclosed after the court's April 29, 2014 order. Notably, as cited above, the testimony elicited in Phillip Hildebrand's deposition directly controverts testimony elicited in Mark Pfaff's deposition, as well as the representations contained in Seymour Sternberg's affidavit. In the case at bar, the Court finds that the sporadic nature of the disclosure of evidence constitutes unusual and unanticipated circumstances warranting additional discovery, pursuant to 22 N.Y.C.R.R. § 202.21(d). The Court also notes that these unusual circumstances are highlighted by plaintiff's reservation of additional discovery contained in his Certificate of Readiness dated January 12, 2015.
Further, the Court finds Seymour Sternberg's May 5, 2014 affidavit is not in compliance with the terms set forth in the court's April 29, 2014 order, and if additional discovery is not permitted, substantial prejudice would result to plaintiff who would not be able to fully prosecute his case. Pursuant to the court's April 29, 2014 order, Seymour Sternberg agreed to certify that he had no involvement in the performance appraisal, discipline, and discharge of the plaintiff. [*4]However, Sternberg's May 5, 2014 affidavit states only that he was not involved in the discipline or discharge of managing partners (of which plaintiff was one), and he was not specifically involved in the discipline or discharge of the plaintiff (emphasis added). In contravention of the April 29, 2014 order, Sternberg's affidavit omits reference to his involvement or lack thereof in plaintiff's performance appraisal.
Defendant's reliance on Tirado is misplaced because the Appellate Division's review did not consider the merits of the request for post-note-of-issue discovery pursuant to 22 N.Y.C.R.R. § 202.21(d); rather, the court reviewed the trial court's authority to issue a sua sponte order quashing post-note-of-issue discovery (Tirado v Miller, 75 AD3d at 156).
Conclusion
Based on the foregoing, it is hereby
ORDERED, that plaintiff's motion for leave to renew is granted, and upon renewal, plaintiff's motion to compel is granted; and it is further
ORDERED, that the Court sua sponte vacates the Note of Issue and Certificate of Readiness dated January 12, 2015; and it is further
ORDERED, that defendant shall produce Seymour Sternberg for an examination within 60 days of the date of this order; and it is further
ORDERED, that defendant shall produce Mark Pfaff for a re-examination within 60 days of the date of this order; and it is further
ORDERED, that plaintiff shall file a Note of Issue and Certificate of Readiness within 90 days of the completion of the depositions which were the subject of this motion; and it is further
ORDERED, that defendant's order to show to cause dated March 12, 2015 is moot and denied in all respects.
This constitutes the Decision and Order of the Court.
ENTER,
____________________________
Hon. Kathy J. King
J.S.C. Footnotes
Footnote 1:While C.P.L.R. § 2221(a) requires a motion to renew to be made before the judge who issued the original order, due to J. Schmidt's retirement after the issuance of the April 29, 2014 order, the instant matter was assigned to Part 64.
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