Espana v Hidden Ridge at Scarsdale Constr. Corp.

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Espana v Hidden Ridge at Scarsdale Constr. Corp. 2018 NY Slip Op 32074(U) August 23, 2018 Supreme Court, New York County Docket Number: 158563/15 Judge: Robert R. Reed 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. [*FILED: 1] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 43 -----------------------------------------------------------------)( PABLO ESPANA, Plaintiff, -against- Index No. 158563/15 Motion Seq. No. 001 HIDDEN RIDGE AT SCARSDALE CONSTRUCTION CORP., KLAR REALTY CORP., KLAR MANAGEMENT CORP., KLAR AGENCY, INC., and ABC CORP., a fictitious name intending to be that of an unknown contractor, Defendants. -----------------------------------------------------------------)( ROBERT R. REED, J.: In this action seeking recovery for violations of the Labor Law, defendant Hidden Ridge at Scarsdale Construction Corp. (Hidden Ridge) moves for an order: (1) pursuant to CPLR 3124, compelling plaintiff Pablo Espana to appear for a further deposition to answer questions that were improperly blocked by plaintiffs counsel at plaintiffs first deposition, together with related questions as to the subject matters obstructed at the first deposition; and (2) pursuant to 22 NYCRR 130-1.1, awarding costs and expenses, including attorney's fees, court reporter and interpreter costs incurred by Hidden Ridge in connection with the subsequent deposition and the costs and attorney's fees incurred in making the instant motion. Plaintiff opposes the motion and cross-moves, pursuant to CPLR 3124, for an order compelling Hidden Ridge to comply with the court's order dated May 11, 2017, which directed Hidden Ridge to respond to plaintiffs letter dated March 31, 2017 and to provide complete copies of all insurance policies issued to it. 2 of 11 [*FILED: 2] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 BACKGROUND On April 25, 2014, plaintiff allegedly was injured on a construction project located at 22 Hidden Ridge Court in Yonkers, New York, while working as a laborer for nonparty J&J Concrete Foundations Inc. (J&J) (David affirmation in support, exhibit A [verified complaint, iii! 58, 192-196]). Plaintiff seeks recovery for violations of Labor Law §§ 200, 240, 241, and "242-a," and under principles of common-law negligence (id., iii! 195, 204). Hidden Ridge has admitted that it was the general contractor on the project (David affirmation in support, exhibit C [verified answer, if 8]). Plaintiff appeared for a deposition on July 11, 2017, which started at 10:25 a.m. and ended at 4:53 p.m. (David affirmation in support, exhibit D [plaintiff tr at 1, 167]). Plaintiff testified that, on the date of the accident, he was standing on a "scaffold" that consisted of a plank and was "[f]illing the forms with the cement" with a concrete pump (id. at 54-57). He stated that the hose became stuck and he asked a coworker to "bring the hose out and give the truck a little bit more energy so that it would unclog the hose" (id. at 63). Plaintiff thought that his coworker would bring the hose "outside" to unclog it, but instead he brought it "to the middle" of the foundation, about 10 feet from plaintiff, to unclog it (id. at 65-66). As a result, the hose, swung back and struck plaintiff in the chest, causing him to "fly as if [he] was a baseball" (id. at 66). Plaintiff testified that that "was the cause of [his] accident" (id. at 65-66). During the deposition, plaintiffs counsel objected numerous times and directed plaintiff not to answer certain questions with respect to four photographs of the site 1 marked as exhibits A through D at the deposition. With respect to exhibit A, plaintiff testified that he recognized what was depicted in the photograph, but had never seen the photograph before (id. at 76). Plaintiff 1 Hidden Ridge asserts that it disclosed these photographs months before plaintiffs deposition. 2 3 of 11 [*FILED: 3] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 further stated that the left side of the photograph accurately depicted the conditions at the time of the accident (id at 77). Hidden Ridge's counsel proceeded to ask plaintiff about other photographs: "Q: Is the scaffold that you were on at the time of your accident depicted in Defendants' Exhibit B? "[Plaintiffs counsel]: Note my objection to the question. Counselor, there's been no foundation laid for the photograph. I allowed you, over objection, to use it for the limited purposes of identifying where he was standing. "[Hidden Ridge's counsel]: I don't need this witness to make a foundation. "[Plaintiffs counsel]: I think in order to use this photograph, you have to lay the foundation question. "Q: Is this the job site where the accident occurred, Mr. Espana? "[Plaintiffs counsel]: Don't answer that. "[Hidden Ridge's counsel]: Why not answer? How do you want me to lay a foundation? "[Plaintiffs counsel]: Ask if this picture accurately- you know, Counsel. I don't have to tell you. "[Hidden Ridge's counsel]: No, no, why don't you tell me because I don't know. "[Plaintiffs counsel]: Ask him does this picture accurately depict the conditions at the time of the accident. "[Hidden Ridge's counsel]: I don't need to ask that question. "[Plaintiffs counsel]: Well, then you're not using that photograph. 3 4 of 11 [*FILED: 4] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 "Q: INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 Mr. Espana, is this a picture of the accident location? "[Plaintiffs counsel]: Don't answer" (id. at 84-86). After that exchange, Hidden Ridge's counsel asked plaintiff the following questions: "Q: Mr. Espana, does that picture accurately reflect and depict the condition of the accident site where your accident took place, the job site where your accident took place? "A. No. "Q. How does it not? "[Plaintiffs counsel]: That's it. We are done. "[Hidden Ridge's counsel]: No, we're not done. We are not done. [Plaintiffs counsel]: As far as I'm done, that photograph is not being used anymore. [Hidden Ridge's counsel]: "Q: We are not done. What's different about this photograph? "[Plaintiffs counsel]: Don't answer" (id. at 87-88). Hidden Ridge's counsel thereafter asked plaintiff a series of questions that were marked for a ruling by the court, including whether the photographs depicted the job site; whether the photographs depicted a scaffold similar to the one that he was using at the time of his injury; whether the concrete pump depicted in the photographs was the one that was present on the date of the accident; and whether he was working on the condominiums shown in the photographs (id. at 89-95). 4 5 of 11 [*FILED: 5] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 In an order dated May 11, 2017, Hidden Ridge was directed to respond to plaintiffs letter dated March 31, 2017 regarding insurance information within 30 days, and was further directed to provide a complete copy of an NSA policy (Wolsky affirmation in support, exhibit D). Hidden Ridge now moves for an order compelling plaintiff to appear for a further deposition and imposing costs and attorney's fees. Plaintiff cross-moves for an order compelling Hidden Ridge to produce relevant insurance policies. DISCUSSION A. Hidden Ridge's Motion to Compel At the outset, Hidden Ridge argues that the court should not consider plaintiffs supplemental affirmation in opposition because it was untimely served. The court rejects this argument. Even if it had been untimely served, Hidden Ridge has not shown any prejudice, and submitted a reply affirmation (see Marte v City of New York, 102 AD3d 557, 558 [1st Dept 2013]; Prato v Arzt, 79 AD3d 622, 523 [1st Dept 2010]). Hidden Ridge argues that plaintiffs counsel's objections were improper and his conduct was sanctionable. Plaintiff contends that it is highly prejudicial for defendant's counsel to question plaintiff about photographs without establishing that the photographs are a fair and accurate representation of the site conditions. CPLR 3101 (a) provides for "full disclosure of all matters material and necessary in the prosecution or defense of an action .... " This provision has been liberally construed to require disclosure of any information or material reasonably related to the issues "which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Pub. Co., 21NY2d403, 406 [1968]). "[I]fthere is any possibility that the information is sought in good faith for possible use as evidence-in- 5 6 of 11 [*FILED: 6] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 chief or in rebuttal or for cross-examination, it should be considered evidence material ... in the prosecution or defense" (id. at 407 [internal quotation marks and citation omitted]). Thus, "the scope of examination on deposition is broader than what may be admissible on trial" (White v Martins, 100 AD2d 805, 805 [1st Dept 1984]; see also Johnson v New York City Health & Hasps. Corp., 49 AD2d 234, 237 [2d Dept 1975] ["the evidentiary scope of an examination before trial is at least as broad as that applicable at the trial itself']). "In conducting depositions, questions should be freely permitted 'unless a question is clearly violative of a witness' constitutional rights, or of some privilege recognized in law, or is palpably irrelevant"' (Kaye v Tee Bar Corp., 151 AD3d 1530, 1531 [3d Dept 2017] [internal quotation marks and citations omitted]). The Uniform Rules for the Conduct of Depositions state that "[a] deponent shall answer questions at a deposition, except: (a) to preserve a privilege or right of confidentiality; (b) to enforce a limitation set forth in an order of a court; or (c) when the question is plainly improper and would, if answered, cause significant prejudice to any person" (22 NYCRR 221.2). Here, plaintiffs counsel directed his client not to answer questions about photographs of ) what may have been the alleged incident site, on the ground that Hidden Ridge's counsel had not laid a foundation that the photographs accurately depicted the conditions at the time of the accident. Contrary to plaintiffs counsel's contention, it was proper for Hidden Ridge's counsel to ask plaintiff questions about: (1) whether the scaffold was depicted in the photographs (David affirmation in support, exhibit D [plaintiff tr at 84-85, lines 25-3]); (2) whether the photographs depicted the location of the accident and the job site (id. at 85, lines 15-16; id. at 86, lines 8-9; id. at 89, lines 5-7; id., lines 16-20; id. at 91, lines 11-14; id., lines 17-19); (3) how the conditions in 6 7 of 11 [*FILED: 7] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 the photographs differed from the conditions at the time of his injury (id. at 87, line 15; id., lines 23-24); (4) whether the scaffold depicted in the photographs was similar to the one that he was on at the time of his accident (id. at 91-92, lines 25-5; id. at 92-93, lines 23-4); (5) whether the concrete pump depicted in the photographs was the one present on the date of the accident (id. at 93, lines 12-16; id., lines 22-25; id. at 94, lines 9-14); and (6) whether he was working on the condominiums shown in the photographs (id. at 94, lines 20-24). These questions are relevant and/or reasonably calculated to lead to admissible evidence. Plaintiffs counsel essentially contends that it would be highly prejudicial for plaintiff, who has a second grade education, to answer questions about photographs without a foundation that they accurately depict the conditions at the time of the accident, since plaintiff may be tricked or confused by the questions. However, this does not constitute sign!ficant prejudice as contemplated by the Uniform Rules (see St. Clow; v Park S. Tenants Corp., 52 Misc 3d 1222[A], *4, 2016 NY Slip Op 5 l 250[U] [Sup Ct, NY County 2016] ["the possibility of inconsistent statements does not constitute significant prejudice"]). Therefore, the court overrules the objections. In light of the above, Hidden Ridge is entitled to a further deposition of plaintiff, limited to questions which plaintiffs counsel directed plaintiff not to answer which were discussed herein, and any follow-up questions. Plaintiff is directed to appear for the further deposition within 45 days. The branch of Hidden Ridge's motion seeking sanctions, based upon plaintiffs counsel's improper directions to plaintiff not to answer questions at his deposition, is denied. The court exercises its discretion not to sanction plaintiffs counsel, in view of the fact that plaintiffs deposition lasted the entire day, and given that the transcript spans 167 pages (see 22 NYCRR 7 8 of 11 [*FILED: 8] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 130-1.1 [c]; cf Freidman v Yakov, 138 AD3d 554, 555 [1st Dept 2016]). In particular, it cannot be said that plaintiffs counsel's conduct was "undertaken primarily to delay or prolong the resolution of this litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1 [c] [2]). Nevertheless, in the exercise of its discretion, the court awards $100 in costs to Hidden Ridge for making its motion (CPLR 8106; see also Greenspan v Rockefeller Ctr. Mgt. Corp. 268 AD2d 236, 237 [1st Dept 2000] ["motion court's award of costs on the motion was within its discretion under CPLR 8106, which does not require any finding of frivolous conduct"]). B. Plaintiff's Cross Motion to Compel By order dated May 11, 2017, Hidden Ridge was directed to provide a response to plaintiff's letter regarding insurance information, and was also directed to provide a complete copy of an insurance policy (Wolsky affirmation in support, exhibit D). Plaintiff cross-moves for an order compelling Hidden Ridge to provide relevant insurance policies/information in response to its demands (plaintiffs notice of motion at 1; Wolsky affirmation in support, ~~ 46-48). Hidden Ridge contends, in opposition to plaintiff's cross motion, that it is moot because it has responded to plaintiff's demands, and annexes an insurance policy to its opposition (David reply affirmation and opposition to cross motion, exhibit A). In reply, plaintiff contends that the cross motion is not moot because Hidden Ridge has not provided photographs, not insurance policies. In this case, plaintiff does not claim that Hidden Ridge's response about insurance information is inadequate. In addition, Hidden Ridge did not have an opportunity to respond to plaintiff's argument, made in reply, about photographs of the site. "The purpose ofreply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion" (Gumbs v Flushing Town Ctr. 8 9 of 11 [*FILED: 9] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 Ill, L.P., 114 AD3d 573, 574 [1st Dept 2014] [applying rule on motion to strike the complaint for plaintiffs' failure to provide discovery] [internal quotation marks and citation omitted]). Thus, plaintiffs cross motion must be denied. CONCLUSION Accordingly, it is ORDERED that the motion (sequence number 001) of defendant Hidden Ridge at Scarsdale Construction Corp. to compel and for sanctions is granted in part; and it is further ORDERED that, within 45 days, plaintiff shall appear for a further deposition limited to the questions which this court ruled were proper in this decision and any follow-up questions; and it is further ORDERED that defendant Hidden Ridge at Scarsdale Construction Corp. shall recover of plaintiff $100 as costs of this motion; and it is further ORDERED that the cross motion of plaintiff to compel is denied; and it is further ORDERED that the parties are directed to appear for a status conference in Part 43, at 111 Centre Street, Room 581 on Thursday, October 18, 2018 at 11 a.m.; and it is further ORDERED that plaintiff shall file a note of issue and certificate of readiness with the Clerk of the General Clerk's Office (60 Centre Street, Room 119) and pay the fee therefor on or before October 26, 2018; and it is further 9 10 of 11 [*FILED: 10] NEW YORK COUNTY CLERK 08/24/2018 02:59 PM NYSCEF DOC. NO. 65 INDEX NO. 158563/2015 RECEIVED NYSCEF: 08/24/2018 ORDERED that such filing with the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address ~\.~.Y~~~otJT1s.eov/supctma!lbJ]. ENTER: ~=--~-=B==ER==T==R==~c-RJ..._E_E_D_ __ J.S.C. 10 11 of 11

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