McDaid v Semegran

[*1] McDaid v Semegran 2007 NY Slip Op 51227(U) [16 Misc 3d 1102(A)] Decided on June 15, 2007 Supreme Court, Nassau County Phelan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2007
Supreme Court, Nassau County

Donna Purr McDaid, as Administratrix of the Estate of Dennis Bosco McDaid, and Donna Purr McDaid, Individually, Plaintiff(s),

against

Adam Bernard Semegran, M.D., Michael A. Sama, M.D., Putnam Hospital Center, Pegasus Emergency Medicine Group New York, P.C., Jay Andrew Yelon, M.D., and North Shore University Hospital, Defendant(s).



000213/05



Walter G. Alton, Jr. & Associates, P.C.

Attorneys for Plaintiffs

548 West 28th Street, Suite 670

New York, NY 10001

Keller, O'Reilly & Watson, P.C.

Attorneys for Defendant Adam Bernard Semegran, M.D.

242 Crossways Park West

Woodbury, NY 11797

Patrick F. Adams, P.C.

Attorneys for Defendants Michael A. Sama, M.D. and

Pegasus Emergency Medicine Group

49 Fifth Avenue

Bay Shore, NY 11706-7306

Kaufman Borgeest & Ryan, LLP

Attorneys for Defendant Putnam Hospital

200 Summit Lake Drive

Valhalla, NY 10595

Heidell, Pittoni, Murphy & Bach, LLP

Attn: Karen T. Grottalio, Esq.

Attorneys for Defendants Jay Andrew Yelon, M.D. and

North Shore University Hospital

99 Park Avenue

New York, NY 10016

Thomas P. Phelan, J.

This motion by plaintiffs Donna Purr McDaid as Administratrix of the Estate of Dennis Bosco McDaid and Donna Purr McDaid, Individually, for an order pursuant to CPLR 3126 striking defendant North Shore University Hospital's ("NSUH") Answer, unless it produces its Rules, Regulations and Guidelines pertaining to trauma-patient care in its Surgical Intensive Care Unit ("SICU") and/or its Operating Room, including "NSUH's Trauma Services Standard Practice Guidelines," as well as any and all such Rules, Regulations and Guidelines which were authored in whole or in part by defendant Jay Andrew Yelon, M.D.; and, an order pursuant to CPLR 3103 granting a protective order excusing production of records by certain non-parties, specifically, plaintiffs' accountants Lapollo & Cavaluzzi, their Certified Public Accountant Diane Spangenberger, and, their bank Putnam County National Bank and/or an order pursuant to CPLR 2304 quashing those subpoenas duces tecum, is determined as provided herein.

This is an action to recover for wrongful death. On or about September 29, 2003 decedent Dennis Bosco McDaid was involved in an accident when a deer collided with his motorcycle. He [*2]was initially treated for his injuries at Putnam Hospital Center and then transferred on October 1, 2003 to NSUH where he died some 28 days later. Plaintiffs allege that defendant hospitals and physicians committed medical malpractice which caused decedent's death.

At his examination-before-trial, defendant Yelon testified that he was the Division Chief of Trauma and Surgical Care at NSUH and that he was responsible for running the trauma services as well as the SICU during decedent's admission there. He also testified that decedent was under his direct supervision, care and treatment during his stay at NSUH.

Plaintiffs have repeatedly demanded NSUH's production of North Shore Hospital Trauma Services Standard Practice Guidelines, including but not limited to any and all editions, updates, addends, algorithms, or any other section or subsection thereof written by defendant Yelon, which were at any time in effect at NSUH and the date said writings were put into effect or otherwise adopted and, if discontinued, the date of discontinuance.

When this motion was made, NSUH had not produced those items. It appears that only in response to this motion did NSUH produce any of those things, and its production has been limited to only those responsive documents which were authored by defendant Yelon. NSUH's interpretation of plaintiffs' Demand is incorrect; plaintiffs have sought and are entitled to the production of any and all of NSUH's Trauma Services Standard Practice Guidelines, not only those authored by defendant Yelon. Defendant NSUH is directed to produce any and all documents responsive to this Demand within 30 days of service of a copy of this order upon their attorney, or plaintiffs' motion is granted and defendant NSUH's Answer is stricken pursuant to CPLR 3126.

Decedent owned and operated a beverage supply and delivery company since 1998. He incorporated his business as Whitestone Citrus Corporation [Whitestone] in 2001. Plaintiffs allege that although decedent's wife Donna Purr McDaid has taken over the business, decedent's demise has caused a loss of customers and an attendant decrease in the business' earnings and its value, causing his family substantial financial damage.

In response to defendants' discovery demands, plaintiffs have produced Whitestone's, decedent's and Ms. McDaid's income tax records for the years 1998-2005, their W-2 records, and Whitestone's checking account records for the years 2001-2005. Plaintiffs have refused to produce the personal banking records for decedent and Mrs. McDaid. Pursuant to CPLR 3120, on May 2, 2007, defendant Semegran subpoenaed the McDaids' records from their accountant, Lapollo & Cavaluzzi, their Certified Public Accountant, Diane Spangenberger, and, their bank, Putnam County National Bank.

By Order to Show Cause dated May 15, 2007, plaintiffs seek a protective order pursuant to CPLR 3103 relieving the non-parties from responding to the subpoenas duces tecum and/or an order pursuant to CPLR 2304 quashing them.

Plaintiffs have standing to contest the subpoenas duces tecum served on non-parties which seek [*3]their own personal records. "A "motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer." (In re MacLeman, 9 Misc 3d 1119(A) [Surrogate's Court, Westchester County 2005] citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1, at p. 274-275 [1991]). "As to motions for a protective order, CPLR 3103(a) not only permits a non-party witness to seek such an order in his/her own right, but also permits any party opposing the disclosure to make the motion on behalf of the non-party." (In re Mac Leman, supra, citing Siegel, NY Prac § 353, at p. 577 [4th ed.]; see also, Velez v Hunts Point Multi-Service Center, Inc., 29 AD3d 104 [1st Dept. 2007]).

"CPLR 3101, subdivision (a), provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.' " (Allen v Cromwell-Collier Pub. Co., 21 NY2d 403, 406 [1968]; see also, Spectrum Systems International Corporation v Chemical Bank, 78 NY2d 371 [1991]; Quevedo v Eichner, 29 AD3d 554 [2d Dept. 2006]). The Court of Appeals in Allen v Cromwell-Collier Pub. Co., supra, instructed that "[t]he words, material and necessary'are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason." (See also, Andon v 302-304 Mott Street Assocs., 94 NY2d 740, 746 [2000]; Spectrum Systems International Corporation v Chemical Bank, supra; Parise v Good Samaritan Hosp., 36 AD3d 678 [2d Dept. 2007]). "This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise." (Spectrum Systems International Corporation v Chemical Bank, supra, at p. 376, citing 3A Weinstein-Korn-Miller, NY Civ. Prac. 3101.01-3101.03).

Nevertheless, CPLR 3103(a) provides that "a court may make a protective order conditioning or regulating the use of any disclosure device . . . to prevent unreasonable annoyance, expenses, embarrassment, disadvantage or other prejudice to any person or the courts." "[T]he CPLR [also] establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney's work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means (CPLR 3101[d][2])." (Spectrum Systems International Corporation v Chemical Bank, supra, at p. 376-377). "[T]he burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity (citations omitted)." (Spectrum Systems International Corporation v Chemical Bank, supra, at p. 377).

"It is well settled that the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding (Velez v Hunts Point Multi-Service Center, Inc., supra, at p. 112 citing Matter of Terry D., 81 NY2d 1042 [1993]). "It is equally well settled that a motion to quash a subpoena [*4]duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry." (Velez v Hunts Point Multi-Service Center, Inc., supra; see, New Hampshire Ins. Co. v Varda, Inc., 261 AD2d 135 [1999]; Matter of Reuters Ltd. v Dow Jones Telerate, 231 AD2d 337, 341 [1997]). "Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed." (Gertz v Richards, 233 AD2d 366 [1996]).

While CPLR 3120 was amended effective September 1, 2003 to dispense with the requirement of a motion and require only the service of a subpoena duces tecum on a non-party witness for production of documents, "[t]he subpoena must specify the time, place and manner of making the inspection, copy, test or photograph, and set forth individually or by category the items to be inspected and describing each item and category with reasonable particularity." (Velez v Hunts Point Multi-Service Center, Inc., supra, at p. 109). "Nothing in the amendments to CPLR 3120 . . . dispenses with the general requirement of CPLR 3101(a)(4) that, where disclosure is sought from a nonparty, the nonparty shall be given notice stating the circumstances or reasons such disclosure is sought or required." (Velez v Hunts Points Multi-Service Center, Inc., supra, at p. 111). "A party seeking discovery from a nonparty witness must show special circumstances." (Tannenbaum v Tannenbaum, 8 AD3d 360 [2d Dept. 2004], citing Lanzello v Lakritz, 287 AD2d 601 [2d Dept. 2001]; Dioguardi v St. John's Riverside Hosp., 144 AD2d 333, 334 [2d Dept. 1988]; see also, Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2d Dept. 2006], lv dism., 8 NY3d 969 [2007]). "The existence of such special circumstances is not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained through other sources." (Tannenbaum v Tannenbaum, supra, citing Murphy v Macarthur Holding B., 269 AD2d 507 [2d Dept. 2000]; see also, Moran v McCarthy, Safrath & Carbone, P.C., supra).

Technically, defendant Semegran's subpoenas duces tecum to plaintiffs' accountant " [is] facially invalid and unenforceable because [it] neither contained nor [was] accompanied by a notice setting forth the reason why such disclosure was sought.' " (Moran v McCarthy, Safrath & Carbone, P.C., supra, at p. 726 quoting Matter of Ehmer, 272 AD2d 540 [2d Dept. 2000]; see also, CPLR 3101(a)(4); Lazzaro v County of Nassau, 240 AD2d 546 [2d Dept. 1997]). The other subpoenas duces tecum challenged here have not been submitted to the Court. Nevertheless, "although the better practice, indeed the mandatory requirement of CPLR 3101(a)(4) is to include the requisite notice on the face of the subpoena or in a notice accompanying it" (Velez v Hunts Point Multi-Service Center, Inc., supra, at p. 111), assuming, arguendo, that all of the subpoenas duces tecum at issue here failed to provide the requisite notice on the subpoenas themselves or in a notice accompanying them, given the evidence submitted by defendants in opposition to plaintiffs' application pursuant to CPLR 2304 and/or 3101, plaintiffs' motion for a protective order and/or to quash the subpoenas duces tecum are denied (see, Velez v Hunts Point Multi-Service Center, Inc., supra, at pp. 111-112).

Defendants have established the need for the discovery sought. The items sought may clearly relate to plaintiffs' and Whitestone's financial condition as well as the value of the business itself before and after decedent's demise, which the tax returns and business records may fail to fully [*5]reflect (see, Schiffer v Speaker, M.D., Laser and Corneal Surgery Associates, P.C., 4 Misc 3d 1022(A) [Supreme Court NY County]; In re MacLeman, supra.). Furthermore, there is no other method for securing this information. In contrast, plaintiffs have not established that these materials are utterly irrelevant.

Plaintiffs' motion for an order pursuant to CPLR 2304 quashing the subpoenas duces tecum served on Lapollo & Cavaluzzi, Diane Spangenberger and Putnam County and an order pursuant to CPLR 3103 granting a protective order relieving the non-parties of responding to them is denied.

This decision constitutes the order of the court.

Dated: JUNE 15, 2007 THOMAS P. PHELAN

J.S.C.

Walter G. Alton, Jr. & Associates, P.C.

Attorneys for Plaintiffs

548 West 28th Street, Suite 670

New York, NY 10001

Keller, O'Reilly & Watson, P.C.

Attorneys for Defendant Adam Bernard Semegran, M.D.

242 Crossways Park West

Woodbury, NY 11797

Patrick F. Adams, P.C.

Attorneys for Defendants Michael A. Sama, M.D. and

Pegasus Emergency Medicine Group

49 Fifth Avenue

Bay Shore, NY 11706-7306

Kaufman Borgeest & Ryan, LLP

Attorneys for Defendant Putnam Hospital

200 Summit Lake Drive

Valhalla, NY 10595

Heidell, Pittoni, Murphy & Bach, LLP

Attn: Karen T. Grottalio, Esq.

Attorneys for Defendants Jay Andrew Yelon, M.D. and

North Shore University Hospital

99 Park Avenue

New York, NY 10016