Ferraro v White Plains Hosp. Ctr.

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Ferraro v White Plains Hosp. Ctr. 2013 NY Slip Op 32560(U) October 3, 2013 Sup Ct, Westchester County Docket Number: 50707/2011 Judge: Joan B. Lefkowitz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 10/04/2013 1] NYSCEF DOC. NO. 52 INDEX NO. 50707/2011 RECEIVED NYSCEF: 10/04/2013 To commence 1hc sta1u1ory time penod for appeals as ofngl11 (CPLR 5513(a)).)OU arc advio;cd 10 SCl'C a copy of this order, \\1lh notice of en!!) upon all panics SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER - COMPLIANCE PART -----------------------------------------------------------------------------x SHARON FERRAR O, as Preliminary Executrix of the Estate of ERNEST FERRARO. Deceased. and SHARON FERRA RO. lndividually. Plaintiffs, DECISION & ORDER -againstWJIITE PLA INS HOSPITAL CENTER, ABDUL ELFAR, M.D .. SCARSDALE MEDICAL GROUP, LLP, LISA YOUKELES, M.D., RYE WALK-IN MEDICAL GROUP, P .C., SANDRA ANG-DESLOSANGELES. M.D. and KIMIKO WILLIAMS, R.N .. Index No.: 50707/2011 Seq# 1 Defendants. -----------------------------------------------------------------------------x LEFKOWlTZ, J . The following papers were read on this motion by defendants. White Plains Hospital Center ("WPJ IC"), Abdul Elfar M .D. ("Elfar"), Scarsdale Medical Group, LLP ("SMG") Lisa Youkelcs, M.D. ("Yo ukeles") and Limiko Williams, M.D. ("Williams"), collecti vely, the moving defenda nts, for an order granting them leave to ''reargue the proceeding that led to the Orde r" of thi s Court dated April 3, 2013, and upon such reargument, "vacating the branch of the April 3, 20 13 Court Order stating that no fwther discovery is outstand ing'' and "allowing defendants to proceed with discovery". Order to Show Cause - Affirmation. Exhibits Affirmation in Opposition - Exhibits Transcript of Oral Argument Upon the foregoing papers and the proceedings held on Ma) 20. 2013 . this motion is determined as follows: This is a medical malpractice and wrongful death action in which the plaintiffs claim that defendants fai led lo properly diagnose and treat meningitis. resulti ng in the death of Ernest Ferraro. [* 2] The preliminary conference stipulation and order entered on January 3, 2012, provided that the depositions of all non-party w itnesses were to be completed on or before July 31. 2012 and all disclosure was to be completed on or before October 11 , 20 12. On August 7. 20 12, a compliance conference was held and a compliance conference order was issued , establishing a schedule for the depositions of the parties, all to be completed on or before October 15. 2012. On September 28, 20 12, a compliance conference was held. and a compliance conference order was issued extending the deadline for co mpleting the depositions of certain defendants. The September 28, 20 12 compliance conference order also directed that all discovery be completed on or before November 19, 2012. On December 19, 20 12, the parties again appeared fo r a compl iance conference and a comp liance conference order was issued once again extending the deadlines for the defendants' depositions which then remained outstanding and the matter was marked ''final to certify" on February 12, 20 13. On March 15, 201 3, movants requested authorizations to obtain tax returns and records of the decedent and plaintiff was directed to provide same purs uant to the compliance conference order issued on that date. Once again, the matter was marked ··final to certify" on March 26. 20013. At that March 15, 2013 compliance conference. as plaintiffs counsel notes in their affirmation in opposition, for the first time, counsel for movants indicated that they wanted to take the non-party depositions of the decedent 's law partner and accountants (Affirmation in Opposition, page 6). On April 3. 2013, the pa11ies again appeared for a compliance conference and the plaintiff was directed to provide redacted estate tax returns and to resend the decedent ·s partnership agreement to moving defendants· counsel. The compliance con ference order issued on April 5, 2013 stated that depositions were complete and that ""pursuant to the prior orders. including the PC Order. the time to conduct depositions. including non-parties has expired:· Contrary to the April 5. 20 13 Order, on April 5, 20 13, movants served subpoenas to take the depositions of the decedent's law partner and accounting firm on May 6. 2013 and May 7, 2013 respectively. at the offices of movant's counsel in Manhattan. Movants now seek an order granting them leave to '·rearguc the proceed ing that led to the Order" of this Court dated April 3. 2013, and upon such reargument. '·vacating the branch of the April 3. 2013 Court Order stating that no further discovery is outstanding.. and ..allowing defendants to proceed with discovery." A motion for leave lo rcargue pursuant to CPLR 222 1 is add ressed to the sound discretion of the cour1 (Weiss" Fire l::'(finguisher Sn'.\'. Co. 83 AD3d 822. 823 l2d Dept 2011l: 1 \lfcGill 1 ¢ Goldman, 261A02d593. 594 ll999]: /Vi//ium !'.Pohl £q11ipme111 Corp. ,. Kassis. 182AD2d12. 26 [ l 51 Dept 1992]. Iv denied I 1992]. Iv dismissed 80 NY2d 1005 r1993 J). On a motion seeking leave to reargue, a pa11y must establish that "the court overlooked o r misapprehended the facts or law or for some other reason mistakenly arri ved at its earlier decision" (Carrillo v PM Realty 2 [* 3] Group, 16 AD3d 6 1 1 [2d Dept 2005]; see CPLR 2221 ld J; Weiss v Fire Extinguisher Svcs. Co. 83 AD3d at 823; Ickes v Buist, 68 AD3d 823 [2d Dept 2009]; E.W. Howell Co. v S.A.F LaSala Corp., 36 AD3d 653, 654 [2d Dept 2007]). Here, movants have failed to establish that this court overlooked or misapprehended any facts or law or for some other reason made a mistake in issuing the April 5, 2013 comp Iiance conference order. Assuming arguendo. that movant had established any basis for reviewing this court's prior order. no further discovery is warranted in this matter. CPLR 310 I (a) provides that .. t]here shall be fu ll disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. However. unlimited disclosure is not required, and the rules provide that the cou11 may issue a protective order denying. limiting, conditioning or regulating the use of any disclosure device" to prevent unreasonable annoyance, expense. embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]: see Accent Collections. Inc. 1· Cappelli Enters., Inc.. 84 A03d 1283. Spohn Konen v Town of Brookhaven, 74 A03d 1049; Palermo Mason Constr. 1 ¢ A ark /folding Corp., 300 AD2d 460). In general, supervision of disclosure is left to the broad discretion of the trial court. which shall balance the parties' competing interests (Accent Collections. Inc. v Cappelli Enters. Inc., 84 AD3d at 1283: see Kooper v Kooper, 74 AD3d 6, 17: Palermo 1 'vfason Conslr. v Aark Holding Corp., 300 AD2d at 461 ). With respect to non-party disclosure. a party seeking same pursuant to CPLR 3 IOl(a)(4) must state the "circumstances or reasons.. warranting discovery from the non-party (Tenore v Tenore, 45 AD3d 571 [2cl Dept 2007]: Smith v Moore. 3 1 AD3d 628 (2d Dept 2006]; Matter of Lut= 1 ¢ Goldstone. 31 A03d 449 (2d Dept 2006J). The moving party must demonstrate that nonparty discovery sought is material, necessary and unavailable by means other than the non-party (Kooper v Kooper. 74 AD3d 6 f2d Dept 20 I 0J: Kondratick v Orthodox Church in America. 73 AD3d 708 [2d Dept 2010)). 1 1 Pursuant to CPLR §310 I (a)( 4 ), a non-party is only required to participate in the discovery process after receiving "notice stating the circumstances or reasons such disclosure is sought or required." CPLR § 310 I (a)( 4 ): see Knitwork Productions Corp. v He(fat, 234 AD2d 345, 346 l2d Dep't 1996]. As such. a subpoena served on a non-party must meet the CPLR § 3101(a)(4) notice requirement to be deemed en Corceable. See Knitwork Productions Corp.. 234 AD2d at 346: Rickcki v Borden Chemical. 195 AD2d 986 [2d Oep't 1993) The subpoenas at issue here, improperly returnable at movants· counsel's office in Manhattan, simply state ..the reason such notice [sicJ is sought is that defendants seek to obtain your testimony relating to the plaintiff herein.'' Such is insufficient notice of the reason why disclosure \vas sought (see In the Maller of Validation Review Associwes, Inc .. 237 AD2cl 614 [2d Dep'L 1997). Consequent!). the subpoenas arc facially defective. 3 [* 4] Here, movants' basis for deposing the decedent's law pa11ner and accountants can only be viewed as speculative at best. Indeed, they argue that Mr. Wyatt '·may know" what the decedent's overall medical condition was throughout his pa11nership and in the week prior to his death. In Mr. Wyatt's affidavit submitted on this motion, Mr. Wyatt asserts that he did not notice anything unusual about the decedent's health, that he did not complain about any problems with his health, he was unaware of any significant medical history and that to his knowledge, the decedent was "a young, healthy man up until the events leading to his death" (Exhibit J to opposition papers). Similarly, movants seek to depose the firm's accountants, who have also submitted an affidavit stating that they have no further financial infonnation regarding the decedent or hi s firm that is not provided in the tax returns (Exhibit "K" to opposition papers). Given the opportunity at oral argument to speak to the materiality or necessity of the non-party depositions, movants' counsel counsel could not articu late what information. if any, these nonparties would possess that would be material or necessary. Further, counsel could not justify that the information sought was unavailable by means other than the non-parties. For example, movants' counsel argued that she wanted to explore with Mr. Wyatt the hours worked by the decedent. I Jowever, in so far as the hours the decedent worked may be relevant, plaintiff has testified to the hours worked by her husband. Therefore, moving defendants did not demonstrate that the non-party discovery sought is material, necessary and unavailable by means other than the non-party (Kooper ,, Kooper. 74 AD3d 6 (2d Dept 20 I 0]; Kondratick v Orthodox Church in America, 73 AD 3d 708 (2d Dept 2010]). 2 Moreover. it must be noted that the service of the non-party subpoenas was untimely. The time to do pursuant to prior cou11 orders had expired. In issuing the last compliance confrrence order. this court determined that this matter was trial ready. In flagrant disregard of that order, 2 Pursuant to CPLR §3101 (a)(4), a non-party is only requ ired to participate in the discovery process after receiving "notice stating the circumstances or reasons such disclosure is sought or required" (CPLR § 310l(a)(4); see Knitwork Productions Corp. v lle(fat, 234 AD2d 345, 346 [2d Dept! 996]). A subpoena served on a non-party must meet the CPLR § 3101(a)(4) notice requirement to be deemed enforceable (see Knitwork Productions Corp., 234 AD2d at 346; Rickcki v Borden Chemical. 195 AD2d 986 [2d Dept 1993 ]). The subpoenas at issue here, improperly returnable at movant defendants· counsel's office in Manhattan. simply state ··the reason such notice [sic] is sought is that defendants seek to obtain )Our testimony relating to the plaintiff herein."' Such is insufficient notice of the reason why disclosure was sought (see In the Matter ojTalidation Rerie1r Associates. Inc.. 23 7 A D2d 61-l (2<.I Dept 1997)). 4 [* 5] movants served facially defective subpoenas upon the non-parties. Movant 's argument that discovery is not yet complete in that no note of issue has been filed is disingenuous since the court declined to issue a trial readiness order directing plaintiff to file a note of issue earlier in this action due to movants insistance in making this application. Consequently, a trial readiness order will now be issued. As noted by the Court of Appeals. "if the credibility of court orders and the integrity of our judicial system are to be maintained. a litigant cannot ignore court orders with impunity'' (Kihl v Pfeffer, 94 NY2d I 18. 123 (1999]; see also Gibbs v St. Barnabas Hospital. 16 NYJd 74. 81 (2010]). "The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessaril y in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chron ic non-compliance with deadlines also breeds disrespect for the dictates of the Civi l Practice Law and Rules and a culture in which cases can linger for years without resolution" (Gibbs. 16 NY3d at 81). The Court has considered the parties' remaining contentions an finds them without merit. Accordingly, it is ORDERED that the motion is denied in its entirety; and it is further ORDERED that a trial readiness order will issue on this date. The foregoing constitutes the decision and order of this Court. Dated: White Plains. New York October 3, 2013 To: Kramer. Dillof, Livingston & Moore 217 Broadway New York. NY I 0007 Gerspach S ikoscow. LLP 40 Fulton Street, Suite 1402 New York. NY 10038 Dopf, PC 440 Ninth A venue. l 61h Floor New York. NY I 000 I 5

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