Probala v Rian Holding Co., LLC

[*1] Probala v Rian Holding Co., LLC 2009 NY Slip Op 52614(U) [26 Misc 3d 1201(A)] Decided on November 27, 2009 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2009
Supreme Court, New York County

Tomasz Probala and Magdalena Probala, Plaintiffs,

against

Rian Holding Company, LLC and Atlas Talent Agency, Inc., and Beton Builders Inc., Defendants.



Beton Builders Inc., Third-Party Plaintiff,

against

K Construction & Restoration Corporation, Third-Party Defendant.



109294/07



Counsel for plaintiffs:

Gregory J. Cannata & Associates

Joshua Brian Irwin, Esq.

233 Broadway, 5th Floor

New York, NY 10279

(212) 553-9205

Counsel for defendant Rian Holding Company, LLC:

Milber Makris Plousadis & Seiden, LLP

Otto Cheng, Esq.

3 Barker Avenue, 6th Floor

White Plains, NY 10601

(914) 681-8700

Counsel for defendant Beton Builders, Inc.:

Wilson & Chan, LLP

Henry Chan, Esq. 1375 Broadway, 3rd Floor

New York, NY 10018

(646) 278-6730

Counsel for defendant Atlas Talent Agency, Inc.:

Landman Corsi Ballaine & Ford P.C.

Patrick Stoltz, Esq.

120 Broadway, 27th Floor

New York, NY 10271

(212) 238-4800

Doris Ling-Cohan, J.

Defendant Atlas Talent Agency, Inc. ("Atlas") moves, pursuant to CPLR 3124 and 3126, for an order: (1) compelling plaintiff Tomasz Probala ("Probala") to provide authorizations permitting interviews with Probala's treating physicians or be precluded from introducing any evidence of damages at trial; (2) compelling Probala to provide various immigration records and authorizations for such records or be precluded from introducing any evidence of alleged future lost earnings at trial; and (3) modifying the Court's prior order to allow defendants to designate an Independent Medical Examination ("IME") doctor(s) within 45 days from their receipt of the authorizations sought herein. Defendant Rian Holding Company LLC ("Rian") cross-moves for the same relief against plaintiff and also moves for an order compelling plaintiff to provide authorizations for plaintiff's social security records.[FN1]

Background

This personal injury action arises out of an accident that occurred on October 16, 2006 at the premises owned by Rian and leased by Atlas. Defendant Beton entered into an agreement with Rian to perform certain labor and services on the sixth floor of 15 East 32nd Street, New York, New York (the "Premises"). Plaintiff alleges that, while employed by defaulting third-party defendant K Construction & Restoration Corporation, a subcontractor, he was injured when he fell from a six-foot tall scaffold and suffered injuries to his left knee and lumbar spine. Plaintiff commenced this action alleging, inter alia, that defendants were negligent in their [*2]management, maintenance, control and operation of the Premises and, as a result of that negligence, plaintiff suffered personal injuries and lost earnings in the amount of $1,500,000.

During discovery, Atlas served plaintiff with a demand for authorizations permitting defense counsel to interview Probala's treating physicians. After plaintiff failed to respond, Atlas sent a "good faith" letter requesting a response to the demands. Thereafter, plaintiff designated all of plaintiff's treating physicians as expert witnesses. Plaintiff subsequently responded and objected to Atlas's request to interview plaintiff's treating physicians on the basis that they were now designated as expert witnesses.

Following the liability portion of Probala's deposition testimony, wherein he testified that he currently resides in the United States on an F-1 Student Visa, plaintiff was also served with a Supplemental Notice of Discovery and Inspection requesting various immigration records and authorizations for such records. Plaintiff objected to producing any immigration records. After attempts at resolving the herein discovery disputes failed, defendants brought the within motion and cross motion to compel such discovery, pursuant to CPLR 3124 and 3126.

Discussion

The Court notes that, "[i]t is beyond cavil that New York has long favored open and far-reaching pretrial discovery.'" Anonymous v High Sch. for Envtl. Studies, 32 AD3d 353, 358 (1st Dep't 2006) (internal citations omitted). CPLR §3101(a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The words "material and necessary" are interpreted quite liberally and encompass any good faith request for information that will assist in the preparation for trial. Allen v Crowell-Collier Publ'g Co., 21 NY2d 403, 406-07 (1968); see Anonymous v High Sch. for Envtl. Studies, 32 AD3d at 358. The test is one of usefulness and reason. Allen, 21 NY2d at 406.

However, a court has discretion to, on its own initiative or on motion by the party opposing discovery, limit disclosure and issue a protective order "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice." CPLR §3103; Pomeranz v Pomeranz, 99 AD2d 407 (1st Dep't 1984). The burden of showing that discovery is improper, and an immunity exists prohibiting its disclosure, is on the party asserting it. Koump v Smith, 25 NY2d 287, 294 (1969); see also Sage Realty Corp. v Proskauer Rose LLP, 251 AD2d 35, 40 (1st Dep't 1998) (internal citation omitted).

CPLR 3124 provides that a party seeking disclosure may move to compel compliance "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article." CPLR 3126 sets forth the penalties for refusal to comply with an order to disclose, including preclusion from introducing evidence at trial that goes to that issue relating to such discovery not produced.

Authorizations to Interview Plaintiff's Treating Physicians

Defendants move to compel plaintiff to execute HIPAA-compliant authorizations permitting interviews between defense counsel and the following treating physicians of Probala: Andrew Merola, M.D.; Vilor Shpitalnik, M.D.; Grzegorz Kozikowski, M.D.; Fred D. Cushner, M.D.; Daniel O'Connor, M.D; Areta Podhordecki, M.D.; Charles DeMarco, M.D.; and Gideon Yoeli, M.D.

Pursuant to Arons v Jutkowitz, 9 NY3d 393, 401€"02 (2007), a plaintiff who brings a personal injury action, and thus places his medical condition at issue, may be compelled to execute a valid HIPAA-compliant authorization permitting his treating physician to submit to an [*3]interview by defense counsel, provided certain procedural prerequisites are met. Plaintiff does not dispute that Arons is the current state of the law and, thus, treating physicians can be subject to being interviewed by defense counsel (Joshua Brian Irwin Affirmation in Opp ¶ 20). Instead, plaintiff's objection stems from the fact that his treating physicians are now designated as expert witnesses and plaintiff argues that, as a result, they are not subject to discovery beyond that set forth in CPLR 3101(d) for expert witnesses, which is very limited in scope and does not include an ex parte interview.[FN2] Plaintiff contends that, contrary to defendants' position, plaintiff did not designate plaintiff's treating physicians as expert witnesses to thwart defendants' discovery but that it is the custom and practice of counsel's law firm to designate treating physicians as experts only after the note of issue is filed, which has not yet been done in this case.

Defendants contend that they are entitled to interview the above physicians because they were not originally retained as experts but provided treatment for plaintiff's alleged injuries and, therefore, they are fact witnesses. Defendants assert that it was not until Atlas sought to interview them that they were designated as expert witnesses. Further, defendants contend that, as they are doctors who provided treatment to plaintiff, defendants should be allowed to interview them now, instead of waiting until the note of issue is filed.

Regardless of whether plaintiff designated all the above physicians as experts purposefully to prevent defendants from obtaining the sought-after discovery, the fact remains that when Atlas demanded that these authorizations be executed, the listed physicians were simply plaintiff's treating physicians. Plaintiff cannot, intentionally or unintentionally, circumvent the law allowing defense counsel to interview plaintiff's treating physicians by designating every single treating physician as an expert. Notwithstanding that plaintiff's treating physicians may well be experts in their fields, they are still, first and foremost, plaintiff's treating physicians. Such discovery, as it pertains to the treatment of plaintiff's alleged injuries, is material and necessary for defendants to prepare their defense. Therefore, the motion to compel plaintiff to execute HIPAA-compliant authorizations for defense counsel to interview the above treating physicians concerning facts related to plaintiff's treatment is granted.

Moreover, the Court notes that plaintiff's argument as to timing (that any interviews should take place post-note of issue), is inconsistent with the general principles surrounding the note of issue, that is, "that the filing of a note of issue denotes the completion of discovery, not the occasion to launch another phase of it." Arons, 9 NY3d at 411. Although Arons did not specifically address the timing of such interviews since they were only requested post-note of issue in that case, the Court of Appeals nonetheless explained that:

While interviews may still take place post-note of issue, at that juncture in the litigation there is no longer any basis for judicial intervention to allow further pretrial proceedings absent "unusual or unanticipated circumstances" and "substantial prejudice" (22 NYCRR 202.21[d]). As a result, if a treating physician refuses to talk with an attorney and the note of issue has already been filed, it would normally be too late to seek the physician's deposition or interrogatories as an alternative.

[*4]Arons, 9 NY3d at 411.

Immigration Records

Defendants also move to compel plaintiffs to provide: (1) an executed copy of Department of Homeland Security Form G-639 allowing them to obtain all of plaintiff's immigration records; and (2) copies of plaintiff's visas, passport and any other related documents pertaining to plaintiff's ingress and egress. At oral argument on this motion, plaintiff consented to provide defendants with copies of plaintiff's visa and any past visas, but not any documents regarding ingress and egress, such as plaintiff's passport. Thus, this decision will address only these other documents not consented to by plaintiff. Copies of plaintiff's visa and any past visas shall be provided by plaintiff to defendants, within 30 days of entry of this decision and order, if they have not been provided.

Defendants seek all of plaintiff's immigration records, contending they are material and necessary discovery with regard to plaintiff's claim for future lost earnings. Defendants contend that plaintiff placed his immigration status at issue by asserting a $1.5 million lost earnings claim. Defendants cite to Balbuena v IDR Realty LLC, 6 NY3d 338, 362 (2006), in which the Court of Appeals held that an undocumented alien is not precluded from recovering lost wages, and further indicated that immigration status is a proper consideration by a jury as one factor as to that claim.

In opposition, plaintiff argues that defendants only seek this information as an intimidation mechanism, in an attempt to scare plaintiff to either withdraw his lost earnings claim or potentially risk deportation. Plaintiff also contends that since Probala did not submit any false documentation to his employer, his immigration status is not discoverable.

Defendants seek broad disclosure in investigating plaintiff's immigration status, stating that the records would help them determine what exactly plaintiff's status is, how much plaintiff can earn in the United States, how long plaintiff is entitled to remain in the United States, and what type of employment plaintiff is allowed to have under his visa. The Court notes that the answers to these questions may be valid considerations with regard to a lost wages claim, in light of Balbuena. The Court of Appeals in Balbuena held that a jury may "consider immigration status as one factor in its determination of the damages, if any, warranted under the Labor Law." It further stated that the determination, similar to any other action brought by an injured party, "must be based on all of the relevant facts and circumstances presented in the case." Id. at 362.Thus, based on consideration of all the relevant facts and circumstances presented in this case, as required by Balbuena, the court determines that defendants have failed to articulate and detail how all of the above broad discovery will provide them with specific answers to such questions, beyond repeatedly conclusorily stating that they are "entitled" to such discovery. In light of the fact that plaintiff has already admitted that he is currently in the United States on an F-1 Student Visa, and was on such visa at the time of the accident, rather than claiming citizenship or green card status, defendants have not established the need for such broad discovery. It is conceded that plaintiff acknowledged his current status at his deposition, and there are no allegations or evidence that such is not the case or that plaintiff lied in any way in obtaining employment. Thus, there is no dispute as to plaintiff's status and no allegation that such status entitles him to work in the United States in the future.

Nevertheless, as defendants have demonstrated some basis for requesting some discovery [*5]relating to plaintiff's immigration status and plaintiff has not shown that such discovery is wholly improper, and in conjunction with the liberal discovery standard and the Court of Appeals' decision in Balbuena, the motion to compel is granted to the extent that plaintiff shall provide a copy of his passport[FN3], and denied to the extent that defendants seek an executed copy of Department of Homeland Security Form G-639, which entitles them to plaintiff's complete immigration file. The passport and the consented to immigration documents are relevant and could lead to necessary evidence for the jury to properly award lost earnings in this case, if warranted. Here, pursuant to Balbuena, the jury is entitled to consider how long plaintiff can remain in the United States on an F-1 Student Visa and whether plaintiff is restricted in the type of employment he can pursue in the future, based on the type of visa he has.[FN4]

Given that plaintiff indicated at oral argument that there is no pending application for adjustment of his immigration status, but he is likely to file one in the future, defendants' broad request for a blanket authorization for the Department of Homeland Security immigration file, at this juncture, is denied. Furthermore, the discovery sought by defendants, and the information they seek to glean from such documents, could easily be received from documents supplied by plaintiff. Therefore, defendants' request for plaintiff to sign a blanket authorization for the Department of Homeland Security is deemed unnecessary at this time, in light of ability of defendants to obtain such information from other sources and the claimed serious consequences that could result.[FN5] See Gomez, 16 Misc 3d at 871€"73 (where the court denied further discovery as to immigration status and income tax returns).[FN6] Moreover, there is no need to burden the over-extended resources of the Department of Homeland Security at this difficult economic and security-sensitive time, especially when the relevant information is available from other sources.

As stated above, during oral argument on this motion, plaintiff stated that he had no [*6]pending application for a green card, but that one might be filed in the near future. At that time, plaintiff stipulated to provide defendants with a copy of plaintiff's application for a green card, if and when one is filed. Additionally, plaintiff shall advise and update defendants as to any change in plaintiff's immigration status as per CPLR 3101(h), within 30 days of any adjustments or

applications made affecting plaintiff's status, and at least 30 days prior to trial. In any event, CPLR 3101(h) sets forth a continuing obligation to amend or supplement in that it provides:

A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party's thereafter obtaining information . . . that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading.

If, as a result of any change in status, defendants believe additional discovery with regard to this issue is needed, defendants can make further applications at that time.

Social Security Records

Defendants also request an authorization for plaintiff's social security records. Defendants contend that, since plaintiff stated at his deposition that he has a social security number, he placed his social security records at issue, similar to the situation where defendants are entitled to HIPAA authorizations for medical records after plaintiff brings a personal injury action. Further, defendants assert that plaintiff's acknowledgment of a social security number goes to the issue of his credibility. Defendants contend that they are entitled to see what documents needed to be supplied, and were supplied, by plaintiff, including any academic records, criminal records, etc. At oral argument and presumably prior to that time, plaintiff offered to execute limited authorizations for the Internal Revenue Service for plaintiff's W-2 records.

Again, defendants seek a blanket authorization for such records, entitling them to plaintiff's entire social security file. However, they fail to clearly articulate why such broad discovery is needed and the relevance of such discovery to the issues in the within case. The mere fact that plaintiff testified that he has a social security number does not place all his social security records at issue. The issues in this case include whether plaintiff sustained an injury because of defendants' actions, and if so, the extent of injury and the measure of damages, including future lost income. As such, the cross motion for social security records is granted solely to the extent of requiring plaintiff to execute an authorization for the Internal Revenue Service for defendants to receive plaintiff's W-2 records, which go to the issues in this case.

Accordingly, it is

ORDERED that the motion and cross motion are granted only to the extent that, within 30 days of notice of entry of this decision and order, plaintiff shall serve upon defendants: (1) executed authorizations permitting interviews with plaintiff's treating physicians listed above, (2) copies of plaintiff's visa and any past visas (on consent) and passport, and (3) an executed authorization for the Internal Revenue Service for plaintiff's W-2 records; and it is further

ORDERED that within 45 days from defendants' receipt of the above authorizations permitting interviews with plaintiff's treating physicians, defendants are directed to designate an [*7]IME doctor(s)[FN7] and plaintiff ordered to appear; and it is further

ORDERED that any remaining discovery shall be completed by February 1, 2010 and a note of issue filed on or before February 2, 2010; and it is further

ORDERED that the counsel shall appear for a status conference on February 5, 2010 at 10:00 AM in Room 428, 60 Centre Street, New York, NY, if the note of issue is not filed on the above date; and it is further

ORDERED that within 30 days of entry of this decision and order, defendants shall serve a copy upon plaintiff with notice of entry.

This is the decision and order of the Court.

Dated: ______________________

_____________________________

Doris Ling-Cohan, J.S.C. Footnotes

Footnote 1: The Court notes that a cross motion is an improper vehicle for seeking affirmative relief from a non-moving party. Mango v Long Island Jewish-Hillside Med. Ctr., 123 AD2d 843, 844 (2d Dep't 1986); Weinstein-Korn-Miller, NY Civ Prac ¶ 2215.01. However, because defendant Rian seeks the same relief as defendant Atlas, and the cross motion was made prior to plaintiff submitting opposition papers, thus giving plaintiff an opportunity to respond, the cross motion will be considered.

Although defendant Beton Builders Inc. ("Beton") has not formally moved or cross-moved for the same relief, plaintiff has acknowledged that any documents he is ordered to provide to any defendant as to the issues in the within motion, he will also provide to the other defendants.

Footnote 2: The Arons case does not address the issue presented here, wherein plaintiff's treating physicians were subsequently designated as expert witnesses and defendants seek to interview them pre-note of issue.

Footnote 3: To the extent that defendants have requested "any other related documents pertaining to [plaintiff's] entrance and egress from the country", they have not specified what documents this would consist of, other than plaintiff's passport. Notice of Mot. at 2.

Footnote 4: Presumably, at the trial, more would need to be produced as to this issue rather than mere documents, as such prediction is beyond the expertise of the average juror.

Footnote 5: Plaintiff has articulated a concern that allowing defendants to delve too deeply into plaintiff's status with the Department of Homeland Security, after plaintiff's status is already undisputed, could "unnecessarily intimidate plaintiff[] from pursuing a legitimate claim . . . with the prospect of being deported . . . ." Gomez v F & T Int'l (Flushing, NY) LLC, 16 Misc 3d 867, 869, 873 (Sup Ct, NY County 2007). The Court notes that any concerns are alleviated by not directing the blanket authorization sought by defendants.

Footnote 6: While plaintiff has attempted to argue that mitigation is not an issue here because of the seriousness of the injuries (and, thus, immigration status is irrelevant), defendants have disputed such injuries. In any event, even where severity is undisputed, the jury must consider the amount of damages to be awarded, including future lost wages, even where a plaintiff is totally incapacitated and unable to work.

Footnote 7: Such IME's may occur post-note of issue.