Romanelli v Moss-Jones

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Romanelli v Moss-Jones 2015 NY Slip Op 32977(U) November 30, 2015 Supreme Court, Putnam County Docket Number: 1074/13 Judge: Lewis J. Lubell Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1]CASE•: • 1C74/2013 12/01/2015 DECISION AND ORDER Image: 0 1 of 4 , • SC 2/8/16@ 9:30 AM To commence the 30 day statutory tima period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties PUl lit.h ,.;vllNl ·,, CLERK HIS DEC - I PH J: s8' SUPREME COURT OF THE STATE of NEW YORK COUNTY OF PUTNAM ----------------------------------------x CHARLES ROMANELLI, Individually and as Administrator of the ESTATE Of GIA V. McGINLEY, DECISION & ORDER E'laintiff, Index No. 1C74/13 -aga::.ns~ SADIE MOSS-JONES, CNM, HUDSON HIGHLANDS MIDWIFERY, P~LC, KEITH B. LESCALE, M.D. and HUDSON VALLEY PERINATAL CONSlCTTNG, PLLC, Sequence No. 2 Motion Date 9/28/15 Defendants. ---------------------------------------x LUBELL, J. The following papers were considered in connection with :his motion by plaintiff for an Order appointing a discovery _referee, pursuant to CPLR Section 3104: PAPERS NOTICE OF MO~ION/AFFIRMA~ION/EXHIBITS A-D OPPOSING AFFIRMATION/EXHIBITS E-H NUMBERED 1 2 This action arises out of the alleged medical malpract:ce of defendants in the care and treat~ent of plaintiff's decedent, Gia V. McGinley, who died of a uterine rupt~re during a vaginal birth after cesarean section during a home de!ivery with a ~urse midwife, defendant Sadie Moss-Jones, CNM. There being no Judicial hearing officer avai:able for appointment, absent a stipulation between the parties "that a named attorney may act as referee" at a stipulated fee to be taxed as disbursements (CPLR 3104 [bl), plaintiff's motion for the appointment of a referee in this medical malpractice action to supervise the continuation of the deposition of defendant, _Keith B. Lescale, M.D., must be denied for lack of the Court's authority to grant such relief ( ~ Ploski v. Riverwood Owners Corp., 255 AD2d 24, 26 [2d Dept 1999); Schlau v. City of 3uffa:o, 125 AD3d 1546, [* 2]CASE!: C\074/20:3 12/01/2015 DECISION AND ORJ~R Image: 2 of 4 1547 (4th Dept 2015] I. The deposit:.on of i)r. pursuant to CPLR 31:3(b): Lescule is directed to go fo~ward . All objections made at the ~i~e of the examination [as] to the testi~ony presented, or to the co:iduct of any person, and any other obJ ection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order. The deposition shall be taken continuously and without unreasonable adjournment, un~ess the court otherwise orciers or the witness and parties present otherwise agree . The following commentary may prove helpful: When ill feeling exists between the parties or counsel, deposition sessions can often be rough, with one side going perhaps too far in the questioning and the o~her being perhaps overzealous with objeclions. In such an instance, one of the parties may seek to terminate or adjourn the examination against the other's will. Although there is little cure for such behavior, CPLR 3113 (bl states that the deposition ''shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree. 11 It contemplates tf'.at object:.ons, however numerous they 7ay be, be noted, and tl-'.at the depositio:i be co::ipleted ir.sofar as possible. The objec'ci~.g party is fu~~y reserved the right to bring all objections to court for rt..lings on a later motion for a protective order under CPLR 3~03(a). Similarly, the party who is met with 'che recalcitrance of the deponent can seek an order under CPLR 3124 or sanctions under CPLR 3126. (Connors, Practice Commentaries, McKinney's Cons Laws of KY, CPLR C3113:2, Practice at Examination). Implementation of CPLR 3113 (bl 2 requires that: [* 3] CAs=•= 8:874/2C13 12/01/2015 DECISION AND ORDER Image: 3 of 4 counsel on both sides proceed as far as possible without adjournment irrespective of any objections. No matter how numerous the objections, they should be noted and the examination should proceed until all questions have been propounded. Whatever the quantum of heat generated at a given point in the exarr.ination, both sides may be surprised at how much further the examinat~on can still go. Proceeding to other matters rather than terminating the deposition can have the salutary collateral effect of restoring some of the amenities between the opposing sides. (Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3113:2, Practice at Examination, supra). All manner of objections may and often do arise at the deposition session. These may affect any number of things,. procedura 1 or substantive. The impor~ of subdivision (b) is that these objections just be noted and that none of them be used as an excuse for a unilateral terminat~on of the session. A:l such objections, whatever they relate to, are reserved, and the lot of them may be gathered up after the session and made the subJect of a single motion for a protective order underCPLR 3103(a) or a disclosure order under CPLR 3124 or 3126. This procedure contemplates that upon such motion all of the objections will be ruled on, with an additional deposition to be scheduled afterwards if the court finds it necessary. (Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3113:2, Practice at Examination, supra) The parties are directed to appear before the Court at 9:30 A.M. on February 8, 2016, by which time all depositions shall be held to completion, without prejudice to tne reservation of rights under CPLR 3113. The foregoir.g constitwtes the Opinion, Decision, and Drder of the Court. Dated: Carmel, New York November 30, 2015 3 [* 4]CAS~#: 01074/2013 12/01/2015 DECISION AND ORDER Image: 4 of 4 • John H. Fisher, Esq./ Attorney for Plaintiff 278 Wall Street Kingston, NY 12401 Steinberg Symer & Platt, LLP / Ellen. A. Fischer, Esq. 27 Garden Street Poughkeepsie, NY 12601 Feldman Kleidman Coffey Sappe Jeffrey Feldman, Esq. 995 Main Street Fishkill, New York 12524 & Regenbaurr., LL? / ., ( , 4

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