Rauchwerger v North Shore Univ. Hosp.
Annotate this CaseDecided on December 10, 2007
Supreme Court, Nassau County
Dean S. Rauchwerger, as Administrator of the Estate of Peggy Rauchwerger, Plaintiff,
against
North Shore University Hospital, Defendant.
1304/05
Frank X. Kilgannon, PC
Attorney for Plaintiff
1551 Kellum Place
Mineola, NY 11501
Martin Clearwater & Bell, LLP
Attorneys for Defendant
90 Merrick Avenue, 6th Floor
East Meadow, NY 11554
William R. LaMarca, J.
Defendant, NORTH SHORE UNIVERSITY HOSPITAL (hereinafter referred to as "NSUH"), moves for an order, pursuant to CPLR §3216, dismissing the Complaint of the plaintiff, DEAN S. RAUCHWERGER, as Administrator of the Estate of PEGGY RACHWERGER (hereinafter referred to as "RAUCHWERGER"), for want of prosecution, or, in the alternative, pursuant to CPLR §3126, dismissing the third cause of action of the Complaint, which seeks damages for false advertising, for failure to comply with this Court's Order, dated February 14, 2007. Plaintiff opposes the motion and in a cross-motion dated July 18, 2007, cross-moves for an order extending plaintiff's time to comply with the February 14, 2007 order of the Court, and for an order vacating the two (2) alleged 90 - day Notices filed by the defendant, compelling the defendant to comply with and produce the documents demanded in the plaintiff's Notice for Discovery and Inspection (D & I), dated February 2, 2007, permitting reargument of the motion resulting in the Short Form-Order, dated May 17, 2007, only as to Category Number 4 (hospital advertisements), and dismissing the defendant's Answer for failure to comply with a portion of the Short Form Order, dated May 17, 2007.
In a subsequent motion, defendant, NSUH, moves for an order, pursuant to CPLR §2304 and 22 NYCRR §202.21(d), quashing plaintiff's Judicial Subpoenas Duces Tecum for attempting to conduct post-Note of Issue Discovery and, pursuant to CPLR §3103, granting NSUH a protective order that bars plaintiff from using any documents at trial obtained pursuant to plaintiff's Judicial Subpoenas Duces Tecum. Counsel for [*2]plaintiff RAUCHWERGER opposes said motion and cross-moves for an order vacating or modifying the Note of Issue and Certificate of Readiness filed by him, to permit compliance by Newsday and Cablevision with certain discovery subpoenas. The motions and cross-motions are determined as follows:
In this action, plaintiff, DEAN S. RACHWERGER, as Administrator of the Estate of PEGGY RAUCHWERGER, seeks to recover for alleged medical malpractice resulting in the death of plaintiff's decedent, PEGGY RAUCHWERGER, who died on January 31, 2003, allegedly as the result of the negligent medical treatment she received while she was confined as a patient in the defendant hospital from January 25, 2003 through January 31, 2003. Plaintiff died after undergoing heart surgery on January 28, 2003. She was 80 years old at the time of her death. The complaint alleges three causes of action: (1) medical malpractice; (2) lack of informed consent; and (3) false advertising.
On January 27, 2005, plaintiff commenced the litigation by filing a Summons with Notice (NSUH Motion, Exhibit "A"). On April 27, 2005, defendant served a Notice of Appearance and Demand for Complaint (NSUH Motion, Exhibit "B" ). On May 26, 2005, plaintiff, by facsimile, sent a copy of the Verified Complaint to defendant's attorney (NSUH Motion, Exhibit "C"). On the same day, i.e., on May 26, 2005, defendant, by letter, rejected plaintiff's Complaint as untimely, as a matter of law, since the Complaint was not served within twenty (20) days of defendant's demand for a Complaint, pursuant to CPLR §3012(b) (NSUH Motion, Exhibit "D"). The next day, on May 27, 2005, defendant moved to dismiss the action pursuant to CPLR §3012(b). In response to the motion, plaintiff submitted a Memorandum of Law and an Affirmation in Opposition, dated November 8, 2005. All papers were submitted to the Court on November 14, 2005. By Short Form Order, dated February 8, 2006, the Court denied defendant's motion (NSUH Motion, Exhibit "E") and, on February 13, 2006, defendant, served a Verified Answer to plaintiff's complaint (NSUH Motion, Exhibit "F").
On March 27, 2006, plaintiff served a Verified Bill of Particulars ("BOP") in which plaintiff alleged, inter alia:
[t]hat for many years, the defendant hospital published false and misleading advertisements to the general public and promoted itself to the general public and this patient in particular as being the premiere hospital in the metropolitan area, especially in the medical area of heart care, quality control and deliverance of outstanding heart related medical care...the defendant disseminated false success rates pertaining to defendant's heart-related procedures...[t]he defendant mislead and promoted to the general public, and this patient in particular, a false and misleading level of confidence in the high quality hospital and cardiac care one would receive at the defendant's hospital all of which constitute deceptive, false, misleading advertising and false promotion and unfair and deceptive trade practices in violation of various consumer laws including but not limited to the General Business Law of this state to the damage of the plaintiff's intestate and her survivors (NSUH Motion, Exhibit "G", ¶1[n], [u] and [v] [Emphasis Added]).
On March 28, 2006, a Preliminary Conference was held. In the Stipulation and Order of same date, the plaintiff was to provide a Supplemental BOP, within twenty (20) days, as to the specific sections of the "Consumer Law", Public Health Law and General [*3]Business Law that defendant had allegedly violated (NSUH Motion, Exhibit "H").
On or about May 5, 2006, plaintiff served a Notice for Discovery and Inspection ("D & I") and Combined Demands for Expert Witnesses and Notice to Produce (NSUH OTSC, Exhibit "E"). The Notice of D & I contained fifty (50) paragraphs and sought a wide range of discovery from the defendant, including "copies of all marketing, advertising and informational documents disseminated to any media for three (3) years prior to February 1, 2003" (NSUH OSC, Exhibit "E", ¶35).
On June 8, 2006, defendant served a response to the Notice for D & I and Notice to Produce. Therein, defendant objected to the demand in ¶ 35, as overbroad, unduly burdensome and palpably improper. Soon thereafter, on June 12, 2006, another Compliance Conference was held at which the Court again directed the plaintiff to provide the Supplemental BOP as set forth in the PC Order (NSUH Motion, Exhibit "I"). There being no compliance, on September 19, 2006, pursuant to CPLR §3216, defendant served a 90-day Notice on plaintiff demanding that plaintiff resume the prosecution of this action and serve and file a Note of Issue ("NOI") with the Clerk of this Court and that default by the plaintiff in complying with the demand within 90 days after service would constitute the basis for a motion by the defendant for a dismissal for unreasonably neglecting to proceed with this action (NSUH Motion, Exhibit "J"). Said Notice was received by plaintiff's counsel on September 20, 2006. (Certified Mail Return Receipt Request card attached to the 90-day Notice, NSUH Motion, Exhibit "J").
On October 19, 2006, another Compliance Conference was held before the Court. Since plaintiff had still not provided the Supplemental BOP, as had been ordered at the Preliminary Conference, plaintiff was again ordered to provide the Supplemental Bill as set forth in the Preliminary Conference Order (NSUH Motion, Exhibit "K").
On January 26, 2007, defendant served a Notice for D & I requesting, inter alia, copies of the advertisements and publications of defendant that the decedent relied upon, as alleged in plaintiff's Complaint and BOP in support of the false advertising cause of action (NSUH Motion, Exhibit "L")In the moving papers, defendant states that, to date, plaintiff has not served a response to this notice.
On February 1, 2007, plaintiff served a Supplemental BOP, in which he claimed that defendant violated General Business Law §§ 349 and 350, and more specifically, GBL §§349(m) and (t) and Public Health Law (PHL) §2805 J 1(d) (NSUH Motion, Exhibit "M"). Thereafter, plaintiff served another Notice for D & I, dated February 5, 2007 and postmarked February 13, 2007, containing demands relating to plaintiff's false advertising claim (Rauchwerger Cross Motion, Exhibit "2"). The February 5, 2007 Notice for D & I demanded the following:
a.copy [sic] of each advertisement placed in Newsday from January 1, 1997 to February 1, 2007;
b.copy [sic] of each advertisement placed in New York Times from January 1, 1997 to February 1, 2007;
c.Name [sic] of advertising persons placing advertisements in Newsday and New York Times from January 1, 1997 to February 1, 2007; [*4]
d.Name [sic] of advertising agencies that placed advertisements in Newsday and New York Times from January 1, 1997 to February 1, 2007;
e.Copy [sic] of all advertising bills received from advertisers for period January 1, 1997 to February 1, 2007.
(Rauchwerger Cross Motion, Ex. 2).
On February 13, 2007, plaintiff moved to strike defendant's pleadings for, inter alia, failing to provide the discovery sought in plaintiff's Notice for D & I, which requested copies of all marketing, advertising and informational documents disseminated to any media for three (3) years prior to February 1, 2003. Defendant opposed the motion.
On February 14, 2007, a Certification Conference was held. The Certification Conference Order provided that "plaintiff(s) is directed to file a note of issue within 90 days [May14,2007]. If plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of this Court (CPLR 3216)". (NSUH Motion, Exhibit "N"). Also at the Certification Conference, a "So Ordered" Stipulation of the Parties was executed, in which it was agreed that "Notwithstanding the Certification Conference on 2/14/07 or any filing of the Note of Issue: (1) Plaintiffs shall provide a response to [defendant's] Notice for Discovery and Inspection dated 1/26/07 by 2/16/07; (2) [Defendant] shall serve a response to [Plaintiff's] Notice for Discovery and Inspection dated 2/07 received on 2/13/07 - by 3/8/07; (3) NOI to be filed after completion of above but [within] 90 days". The Stipulation/Order also provided that pending motions would address outstanding discovery issues (NSUH Motion, Exhibit "N").
Defendant responded to plaintiff's Notice for D & I, dated 2/5/07, on March 5, 2007, and objected to each of plaintiff's demands as being palpably improper, overbroad, unduly burdensome and irrelevant.
Notwithstanding the requirement that plaintiff file the NOI by May 14, 2007, counsel filed same on May 16, 2007, together with a Certificate of Readiness ("COR") (NSUH Motion, Exhibit "P"). The COR indicated that "[d]iscovery proceedings now known to be necessary completed".
By Short Form Order, dated May 17, 2007, the Court decided the pending motions and, inter alia, denied plaintiff's motion to strike defendant's answer for failing to provide discovery sought in plaintiff's Notice for D & I. The Court found that plaintiff's demand for "copies of all marketing, advertising and informational documents disseminated to any media for three (3) years prior to February 1, 2003" to be palpably improper, such that no responses or supplemental responses were required by defendant (NSUH OTSC, Exhibit "H").
Thereafter, notwithstanding the filing of the NOI on May 16, 2007 indicating that all
discovery was complete, plaintiff served Judicial Subpoenas Duces tecum upon the Advertising
Departments of Newsday and Cablevision for depositions scheduled for August 1, 2007. In the
subpoenas, plaintiff demanded that the witnesses bring with them "all advertisements by
[Defendant NSUH] for the three-year period of January 31, 2000 through January 31, 2003
(NSUH OTSC, Exhibit "L").
As to Dismissal for Want of Prosecution
CPLR Rule 3216(a) is directed at a want of prosecution claim and provides, as
[*5]follows:
Where a party unreasonably neglects to proceed generally in an action or other wise
delays in the prosecution thereof against any party who may be liable to a separate judgment, or
unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon
motion, may dismiss the party's pleadings on terms. Unless the order specifies otherwise, the
dismissal is not on the merits.
The length of plaintiff's delay in
prosecuting an action is relevant only if certain conditions precedent are satisfied prior to
application of the rule; ie. 1) that issue must have been joined in the action; 2) that one year must
have elapsed since joinder of issue; and 3) the court or party seeking such relief shall have served
a written demand by registered or certified mail requiring the party against whom such relief is
sought to resume prosecution of the action and to serve and file a note of issue within ninety days
after receipt of such demand and further stating that the default by the party upon whom such
notice is served in not complying with such demand within said day period will serve as a basis
for a motion by the party serving said demand for dismissal as against him for unreasonably
neglecting to proceed. (CPLR Rule 3216[b]).
In the case at bar, issue was joined by service of a verified answer on February 13, 2006 satisfying the first condition. The second condition, that a year has passed since joinder of issue, would require movant to wait until February 13, 2007, or even as soon as November 13, 2006 [90 days shy of the one year mark] to serve the 90-day demand (Kushner v Camp Woodcliff, 75 AD2d 952, 428 NYS2d 77 [3rd Dept. 1980]). NSUH served the 90-day Notice on plaintiff on September 19, 2006, and thus failed to satisfy the second condition precedent to a CPLR Rule 3216 motion. The 90-day notice was prematurely served and is therefore deemed to be wholly ineffective (Cf., Stodolksi v City of Hudson, 94 Misc 2d 889, 405 NYS2d 914 [Supreme Columbia Co.1978]).
In support of its motion to dismiss pursuant to CPLR Rule 3216, NSUH contends that plaintiff failed to comply with a "second" 90-day notice it "served" when, by stipulation dated December 4, 2006, the parties agreed that plaintiff's time to file the Note of Issue was extended to March 15, 2007. This argument is entirely unavailing. First, it is noted that defendant failed to submit any evidence that it served the plaintiff with a "second" written 90-day demand to file and serve the note of issue (See, Carino Italian Style, S.R.L. v Shammah, 266 AD2d 1, 687 NYS2d 609 [1st Dept. 1999]). More importantly, CPLR Rule 3216 requires that that the 90-day Demand be served by registered or certified mail and requires the moving party demand that plaintiff "resume prosecution" and, more specifically, that it serve and file a note of issue within ninety days, running from the "receipt" of the demand.
It is the judgment of the Court that NSUH's failure to strictly comply with the conditions
precedent outlined in CPLR Rule 3216(b), requires the Court to deny defendant's motion to
dismiss for want of prosecution (CPLR Rule 3216[b]; Wainwright v Elbert Lively & Co.,
Inc., 99 AD2d 490, 470 NYS2d 433 [2nd Dept. 1984]; Frank L. Ciminelli Const. Co.,
Inc. v City of Buffalo, 110 AD2d 1075, 488 NYS2d 932 [4th Dept. 1985] app.
dismissed 65 NY2d 1053 [C.A.1985]).
As to Dismissal for Plaintiff's Failure to Provide Discovery
[*6]
NSUH's motion alternatively seeks an order dismissing plaintiff's third cause of action for false advertising, pursuant to CPLR §3126, for failure to comply with the Notice for D & I and this Court's Order dated February 14, 2007. To sustain the dismissal of plaintiff's false advertisement claim under CPLR §3126, a plaintiff's behavior must be shown to be willful, contumacious, or in bad faith (Ranfort v Peak Tours, 250 AD2d 747, 672 NYS2d 918 [2nd Dept. 1998]; Kubacka v Town of N. Hempstead, 240 AD2d 374, 657 NYS2d 770 [2nd Dept. 1997]).
Plaintiff alleged in the Complaint and BOP that, inter alia, the decedent relied on advertisements and publications by the defendant that it was the premiere hospital in the metropolitan area for heart care, which plaintiff claimed constituted deceptive, false and misleading advertising and unfair trade practices in violation of the General Business Law. In support of its motion to dismiss, NSUH contends that, by Notice for D & I served on January 26, 2007, it requested copies of the advertisements and publications that the decedent allegedly relied on as was claimed in plaintiff's Complaint and BOP. Plaintiff never responded to the demand. Moreover, plaintiff was directed to respond to this Notice for D & I, by "So Ordered" Stipulation, dated February 14, 2007. NSUH claims that plaintiff has never complied.
In an affidavit, dated July 18, 2007, in support of plaintiff's motion to compel defendant to
comply with plaintiff's Demand for D & I, dated February 2, 2007, DEAN RAUCHWERGER,
Administrator of plaintiff decedent's estate, states that he possesses no copies of any print
advertisement published before the death of his mother nor of any video copy of any
advertisement appearing on television. He asserts that his mother chose to receive cardiac health
care at NSUH based on their extensive promotional representations and marketing campaigns
that were intended to convey to the public that NSUH provided the highest quality of care
available, including quality control and attention to patients complaints of chest pain but he
cannot provide any evidence to establish said claim. In essence, counsel for plaintiff seeks to
transfer the burden of producing all advertisements disseminated by NSUH upon which
PEGGY RAUCHWERGER allegedly relied, to NSUH. In its Short Form Order, dated May 17,
2007, which denied plaintiff's motion to strike defendant's answer for failing to provide discovery
sought in plaintiff's Notice for D & I, the Court held that only a small number of plaintiff's
demands warranted a response by the defendant. Most of plaintiff's demands, including demand #
35 and other demands which formed the predicate for plaintiff's false advertising
claim [Demands #
35, 36, 37, 45, 46, 47, 48, 49], were held by this Court as "palpably improper and no
response or supplemental responses will be required" and demands #
21 and #
50 are "privileged and palpably improper and no responses or supplemental
responses will be required" (NSUH Motion, Exhibit "H").
The drastic remedy of dismissing a complaint based on a plaintiff's failure to comply with court-ordered discovery should be granted only where the conduct is shown to be willful, contumacious, or in bad faith. Where a plaintiff disobeys a court order and by his or her conduct frustrates discovery, such conduct may be considered willful and contumacious warranting a dismissal of the complaint (CPLR §3126; Cronin v [*7]Perry, 269 AD2d 351, 702 NYS2d 861 [2nd Dept. 2000]).
Under all the circumstances of this case, it appears to the Court that plaintiff's failure to
produce the advertisements and publications issued by the defendant that decedent relied upon is
not willful or contumacious, but rather the result of plaintiff's lack of such evidence in support of
plaintiff's claims. That being said, defendant's motion to dismiss for failure to provide discovery
is denied, however, the viability of the claim will be addressed by the Court in a motion for
summary judgment, if any.
As to the Cross-Motion
Plaintiff's cross motion seeks an order of the Court vacating the two (2) alleged
90-day notices filed by the defendant. As stated above, having failed to satisfy the conditions
precedent to a CPLR Rule 3216 motion, the "two" 90-day notices are deemed to be wholly
ineffective (Stodolksi v City of Hudson, supra ), and vacatur of same is denied as moot.
In the cross motion, plaintiff also seeks to reargue that portion of the motion that resulted in
an Order of the Court, dated May 17, 2007, with respect to "Category Number 4", or, "Hospital
advertisements, promotions and website and media information ([Demands] #
21, 35, 36, 37, 45, 46, 47, 48, 49, 50)." In support of this portion of the motion,
plaintiff cites Karlin v IVF America Inc., 93 NY2d 282, 690 NYS2d 495, 712 NE2d 662
[C.A.1999], and asserts that this Court is required "to revisit its Decision as to the . . . denial of
plaintiff's Notices for Discovery and Inspection demands of May 5, 2006 and February 5, 2007..."
(Rauchwerger Cross Motion, ¶20).
As provided in CPLR §2221(d):
A motion for leave to reargue: ***
2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. . .; and
3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. ***
In the case at bar, plaintiff served a copy of the Court's May 17, 2007 Order, with Notice of Entry, on May 25, 2007 (NSUH Aff in Opposition, Exhibit "A"). Plaintiff's cross- motion, in which he moves to reargue said order, is dated July 18, 2007. Having moved to reargue a portion of the Court's May 17, 2007 Order well beyond thirty (30) days after plaintiff served a copy of same, plaintiff's cross motion for leave to reargue is denied as untimely.
More substantially, plaintiff's cross-motion to reargue is also denied because plaintiff has failed to demonstrate that there are any matters of fact or law that were overlooked or misapprehended by the Court in determining the prior motion. In fact, plaintiff does not even claim that this Court overlooked or misapprehended relevant facts or misapplied controlling principles of law or mistakenly arrived at its determinations in the May 17, 2007 Order (See, Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434, 793 NYS2d 452 [2nd Dept. 2005]; F & G Heating Co. v Board of Educ., 103 AD2d 791, 477 NYS2d 665 [2nd Dept. 1984]). Plaintiff merely asks the Court [*8]to "revisit and reconsider its Decision" based on Karlin v I.V.F. America, Inc., supra . With no explanation or elaboration by the plaintiff as to how the Karlin case is applicable to the facts herein, and why this Court should grant reargument based on Karlin, this Court can not be persuaded that it overlooked or misapprehended relevant facts or misapplied controlling principles of law and mistakenly arrived at its determinations. Additionally, even a simple reading of Karlin warrants denial of plaintiff's reargument motion. The only issue decided in Karlin concerned whether patients could maintain a cause of action against an in-vitro fertilization clinic for deceptive practices and false advertising under GBL §§349 and 350, or whether patients were instead limited to claims for medical malpractice based on lack of informed consent. Karlin did not deal with discovery issues such as the permissible scope of discovery demands, whether discovery demands were palpably improper or whether discovery demands sought privileged materials. As such, plaintiff's citation to Karlin is misplaced and does not demonstrate that the Court overlooked or misapprehended relevant facts or misapplied controlling principles of law and mistakenly arrived at its determinations in its May 17, 2007 Order. Accordingly, plaintiff's cross motion for reargument is denied (Pryor v Commonwealth Land Title Ins. Co., supra ).
Plaintiff's cross-motion to compel defendant to produce the discovery demanded in plaintiff's Notice for D & I dated February 5, 2007 is also denied. By response to Notice for D & I, served March 5, 2007, defendant objected to each of plaintiff's demands as being palpably improper, overbroad, unduly burdensome and irrelevant. In the May 17, 2007 Order, this Court has already determined that these demands were palpably improper and that no responses need be provided. Notably, the demands contained in plaintiff's Notice for D & I, dated February 5, 2007, are even broader than those contained in plaintiff's Notice for D & I, dated May 5, 2006 in that the 2007 demand seeks each advertisement for a ten (10) year period versus the 2006 demand which sought all advertisements for a three (3) year period.
Having previously held that plaintiff's demands in the 2006 Notice were palpably improper, this Court herewith denies plaintiff's cross-motion to compel the defendant to comply with and produce the documents demanded in the broader 2007 Notice for D & I. (Cf., Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469, 784 NYS2d 645 [2nd Dept. 2004]; Velez v South Nine Realty Corp., 32 AD3d 1017,[2nd Dept. 2006]; Bell v Cobble Hill Health Center, Inc., 22 AD3d 620, 804 NYS2d 362 [2nd Dept. 2005]).
Plaintiff's cross-motion to strike defendant's answer for failing to comply with the Court's
May 17, 2007 order is also denied. There has been no showing by the plaintiff that defendant
actually failed to respond to those demands - specifically, demands #
1, 3, and 31 - that the Court deemed were appropriate. In fact the record reflects that
by "Response to Court Order dated May 17, 2007", defendant complied with said demands by
furnishing the requested information (NSUH Affirmation in Opposition, Exhibit "E").
Motion to Quash Post Note of Issue Discovery Subpoenas
NSUH's Order to Show Cause, brought pursuant to CPLR §2304 and 22 NYCRR §202.21(d), seeks to quash plaintiff's Judicial Subpoenas Duces Tecum which attempt to conduct post-Note of Issue discovery. [*9]
22 NYCRR §202.21(d) states that "[w]here unusual or unanticipated circumstances develop subsequent to the filing of the note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct necessary proceedings". In the absence of a showing by the party issuing the subpoenas duces tecum that unusual or unanticipated circumstances developed and that additional discovery is needed to prevent substantial prejudice, the discovery will be denied and the subpoenas will be quashed. (See, Audiovox Corp. v Benyamini, 265 AD2d 135, 707 NYS2d 137 [2nd Dept. 2000]; Tortola v NHT Owners, LLC, 25 AD3d 600, 806 NYS2d 890 [2nd Dept. 2006]; Scocozza v Tolia, 254 AD2d 475, 679 NYS2d 827 [2nd Dept. 1998]. The unusual or unanticipated circumstances which develop subsequent to the filing of the NOI need to be an occurrence that is not in the control of the party seeking further discovery (Audiovox Corp. v Benyamini, supra ).
Herein, plaintiff alleges that defendant published false advertisements about the quality of its medical care. On May 16, 2007, plaintiff filed a NOI and COR in which he specifically claimed that "[d]iscovery proceedings now known to be necessary completed" and "[t]he case is ready for trial." Two months later, on or about July 16, 2007, plaintiff served judicial subpoenas duces tecum upon the advertising departments of Newsday and Cablevision which scheduled depositions on August 1, 2007. In the subpoenas, plaintiff demanded that the non-party witnesses bring with them "all advertisements by [defendant NSUH] for the three year period of January 31, 2000 through January 31, 2003".
Plaintiff now claims that the unusual and unanticipated circumstances in this case that warrant a denial of defendant's motion to quash the subpoenas are that this Court required the parties to certify this case prior to completion of all discovery in order to comply with the Court administration's time requirements to certify (Aff in Opp, ¶12). Plaintiff also claims that many months were used up in motion practice. It is noted, however, that, contrary to the requirements of 22 NYCRR §202.21(d), plaintiff did not make the necessary motion to this Court requesting permission to conduct discovery post filing of the NOI. In addition, the service of the subpoenas duces tecum by plaintiff is contrary to this Court's May 17, 2007 Order. As stated above, in that Order, this Court denied plaintiff's demand for "copies of all marketing, advertising and informational documents disseminated to any media for three (3) years prior to February 1, 2003" as palpably improper. The subject subpoenas duces tecum to non-parties which NSUH seek to quash also demand "all advertisements by [defendant NSUH] for the three year period of January 31, 2000 through January 31, 2003". The demands are overbroad, irrelevant and not likely to lead to meaningful information. In light of the fact that the plaintiff seeks to obtain from non-parties that which this Court has already determined is palpably improper to obtain from plaintiff, this Court grants defendant's motion and the non-party subpoenas are quashed.
In light of the foregoing, defendant's motion, pursuant to CPLR §3103, for an order
granting a protective Order barring plaintiff from using any documents at trial obtained pursuant
to the non-party Judicial Subpoenas Duces Tecum, is denied as moot.
As to Vacatur of Note of Issue and Certificate of Readiness
Plaintiff's cross-motion for an Order vacating or modifying the NOI and COR to
permit compliance by Newsday and Cablevision with certain non-party subpoenas, is also
denied.
22 NYCRR §202.21(e) states in pertinent part that
(e) Vacating note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action . . . may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial . . . After such period . . . no such motion shall be allowed except for good cause shown. . .
Here, plaintiff filed the NOI and COR on May 16, 2007. Plaintiff did not move to vacate his own NOI until August 21, 2007 - 107 days after the filing of the NOI and COR. Having failed to comply with the 20 day requirement of 22 NYCRR §202.21(e), plaintiff, upon the instant cross motion is required to show "good cause". The reason for plaintiff's motion is "to permit compliance by [third parties] Newsday and Cablevision to certain subpoenas". This Court has already held that the discovery sought is palpably improper. Accordingly, plaintiff has failed to demonstrate good cause that would warrant vacatur of the NOI in this case.
All further requested relief not specifically granted is denied.
This constitutes the decision and order of the Court.
Dated: December 10, 2007
_________________________
William R. LaMarca, J.S.C.
TO:
Frank X. Kilgannon, PC
Attorney for Plaintiff
1551 Kellum Place
Mineola, NY 11501
Martin Clearwater & Bell, LLP
Attorneys for Defendant
90 Merrick Avenue, 6th Floor
East Meadow, NY 11554
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