Zbigniewicz v Sebzda

[*1] Zbigniewicz v Sebzda 2018 NY Slip Op 50141(U) Decided on January 8, 2018 Supreme Court, Erie County Walker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 8, 2018
Supreme Court, Erie County

Carl Zbigniewicz, Plaintiff,

against

David Sebzda, GREAT LAKES CONCRETE, LLC, Defendants.



2015-812394



LAW OFFICE OF RICHARD S. BINKO

Richard S. Binko, Esq., Of Counsel

Attorneys for Plaintiff

RUSSO & TONER, LLP

Florina Altshiler, Esq., Of Counsel

Attorneys for Defendants
Timothy J. Walker, J.

This action arises out of a motor vehicle accident that occurred on June 4, 2014, when the vehicle driven by Defendant, David Sebzda ("Sebzda"), allegedly struck the vehicle in which Plaintiff, Carl Zbigniewicz ("Zbigniewicz"), was a passenger, from behind (the "MVA"). At the time of the MVA, Sebzda was working within the scope of his employment for the vehicle's owner, Defendant Great Lakes Concrete Products, LLC ("Great Lakes").

Defendants Sebzda and Great Lakes (collectively, "Defendants") have applied, pursuant to CPLR 3101, 3113, 3124 and 3126, and 22 NYCRR 221, for an order compelling Zbigniewicz to attend, and provide responsive testimony at a further deposition in this matter; awarding costs to Defendants associated with such continued deposition and the instant motion; and for any other relief as the Court finds just and necessary. Following oral argument on the motion, the Court strongly urged counsel to resolve the motion, prior to the issuance of this Decision and Order.

BACKGROUND

Zbigniewicz' examination before trial (the "Deposition") started, but was not completed, on October 17, 2017. In a related case arising out of the same MVA [FN1] , the parties' respective counsel [FN2] contacted the Court, via telephone conference call, for guidance with respect to questions to which the Maund Plaintiff's counsel directed his client not to answer. Following a discussion with the Court's Confidential Law Clerk (the "Law Clerk"), the deposition of the Maund Plaintiff was completed.

During the Deposition, the respective attorneys for Zbigniewicz and Defendants similarly contacted the Court, via telephone conference call, for guidance with respect to questions to which Zbigniewicz' counsel directed Zbigniewicz not to answer. Having engaged in essentially the same discussion with the attorneys in the Related Matter, the Court (through the Law Clerk) instructed counsel to proceed with the Deposition and mark questions, as necessary.

On November 16, 2017, the parties appeared for a status conference before the Law Clerk. In an effort to avoid unnecessary motion practice, the Law Clerk reviewed the transcript of the Deposition (the "Transcript") and several of the marked questions with counsel. The Law Clerk clearly and unequivocally conveyed to counsel that, in his opinion, there was no basis for Zbigniewicz' counsel to direct Zbigniewicz not to answer the several questions the Law Clerk reviewed. The Law Clerk ended the conference by directing Defendants' counsel to make the instant application in the event the parties were unable to resolve the pending dispute.

During the Deposition, Zbigniewicz' counsel objected to, and directed Zbigniewicz not to answer, the following questions:

1. What is your Social Security number? (Transcript, p. 12, l. 8);2. Okay. And you have your insurance card with you? (Id., at p. 20, l. 4);3. Other than the property at 18 Gorski Street, are there any properties that you own or have an interest in? (Id., at p. 22, l. 3);4. Do you own any property with Mr. Peter Maund? (Id., at p 22, Line 10);5. Counsel, do you have a copy of that file? (Id. at p. 62, l. 5);6. Did you obtain any medical care or treatment records? (Id., at p. 66, l. 17);7. Do you currently take any medication for any other conditions, illnesses or diseases? (Id., at p. 98, l. 19);8. What did you treat at Lifetime Health for? (Id., at p. 134, l. 9);9. When was the first time you treated at Lifetime Health? (Id., at p. 135, line 5);10. Did you ever have any issues related to your legs that you complained about to Lifetime Health before the happening of this accident? (Id., at p.136, l. 14);11. Did you ever complain about tingling before the happening of this accident to anyone at Lifetime Health? (Id., at p. 137, l. 17);12. Did you ever complain about numbness before the happening of this accident to anyone at Lifetime Health? (Id., at p. 137, l. 22);13. Did you ever complain about any migraines before the happening of this accident to anyone at Lifetime Health? (Id., at p. 138, l. 4);14. Did you ever complain about issues swallowing to anyone at Lifetime Health before the happening of this accident? (Id., at p. 138, l. 9);15. Did you ever complain about numbness in your fingers to anyone at Lifetime Health before the happening of this accident? (Id., at p. 138, l. 14);16. Did you ever complain about pain in your shoulder before the happening of this accident to anyone at Lifetime Health? (Id., at p. 138, l. 19);17. Did you ever complain about any bladder function related issues before the happening of this accident to anyone at Lifetime Health? (Id., at p. 139, l. 1);18. Did you ever complain about pain in your lower back before the happening of this accident to anyone at Lifetime Health (Id., at p. 139, l. 6);19. Did you ever complain about pain radiating to your legs before the happening of this accident to Lifetime Health? (Id., at p. 139, l. 11);20. Did you ever complain about groin pain before the happening of this accident to anyone at Lifetime Health? (Id., at p. 139, l. 16);21. Did you ever complain about leg cramps before the happening of this accident to anyone at Lifetime Health? (Id., at p. 139, l. 21);22. Did you ever complain about foot cramps before the happening of this accident to anyone at Lifetime Health? (Id., at p. 140, l. 3);23. Did you ever complain about any sleep-related issues to anyone at Lifetime Health before the happening of this accident? (Id., at p. 140, l. 8);24. Did you ever complain about dizziness before the happening of this accident to anyone at Lifetime Health? (Id., at p. 140, l. 15);25. Did you ever complain about an upset stomach to anyone at Lifetime Health before the happening of this accident? (Id., at p. 140, l. 20);26. Did you ever complain about depression to anyone at Lifetime Health before the happening of this accident? (Id., at p. 141, l. 2);27. Did you ever treat with anyone for depression? (Id., at p. 141, l. 7);28. Have you ever treated anywhere for any psychologic complaints? (Id., at p. 142, l. 16);29. Okay. Have you ever treated for any mental health-related complaints? (Id., at p. 143, l. 19);30. Have you ever treated for any signs or symptoms of depression with any medical care or treatment provider? (Id., at p. 144, l. 2);31. Since the happening of this accident, have you treated with any mental health provider? (Id., at p. 144, l. 7);32. Since the happening of this accident have you expressed any signs or symptoms of depression to any medical care or treatment provider? (Id., at p. 144, l. 11);33. Have you ever treated with Dr. Capicotto, C-A-P-I-C-O-T-T-O? (Id., at p. 144, l. 16);34. Other than this lawsuit, were you ever involved in any other lawsuits? (Id., at p. 147, l. 11);35. Were you involved in any accidents other than the work-related accident and this vehicle accident? (Id., at p. 148, l. 1);36. Okay. Well, before this auto accident, have you ever treated with any vascular specialists? (Id., at p. 176, l. 18);37. Before this accident, has any medical care or treatment provider discussed with you [*2]any issues effecting your blood supply and/or blood supply? (Id., at p. 176, l. 23); and38. Have you ever been diagnosed with arthritis? (Id., at Page 177, l. 5).

THE APPLICABLE, WELL SETTLED LAW

While the law applicable to this motion is well settled, it is reviewed in detail below, in light of the number of questions Zbigniewicz was directed not to answer, and the effort the Court made before, and during the November 16, 2017 conference to assist the parties in an effort to avoid the instant motion.

As an initial matter, discovery, particularly at depositions, is broad and liberal. CPLR 3101(a) provides for full disclosure of all evidence "material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The words, "material and necessary" are to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]). The "test is one of usefulness and reason" (Id., at 406).

Information sought during depositions is to be construed liberally, because depositions are "concerned more acutely with the preparation of the case than with the preservation of testimony" (Southbridge Finishing Co. v. Golding, 2 AD2d 430, 434 [1st Dept 1956]). Accordingly, "[if] there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered 'evidence material in the prosecution or defense'" (Matter of Comstock, 21 AD2d 843, 844 [4th Dept 1964]).

New York has "long favored open and far-reaching pretrial discovery. To a large extent, New York's open disclosure policy was intended to mark an end to the presentation of totally unexpected evidence and to substitute honesty and forthrightness for gamesmanship" (DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 193, [1992]).

The manner in which depositions are to be conducted is provided for in CPLR 3113, while CPLR 3115 addresses objections to questions and answers at depositions. Neither section limits the broad scope of disclosure authorized by CPLR 3101(a) (see Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952, 953-954 [1998]). Accordingly, objections are to be noted by the stenographer; the deposition is to proceed; objections to the form of the questions are ordinarily waived unless raised during the deposition; and objections to admissibility are reserved until the time of trial.

A direction not to answer questions at a deposition is not addressed by the CPLR. However, CPLR 3113(c), provides that depositions "shall proceed as permitted in the trial of actions in open court" (see also, Hildebrandt v. Stephan, 42 Misc 3d 719, 722 [Sup Ct, Erie County, 2013], where the Court stated that instructions not to answer questions at depositions are "conceptually contrary to CPLR 3113(c)").

As such, a proper directive not to answer is limited to those questions that are "clearly violative of the witnesses' constitutional rights, or of some privilege recognized in law, or . . . [are] palpably irrelevant" (Freedco Prods., Inc. v New York Tel. Co., 47 AD2d 654, 655 [2d Dept 1975]). Otherwise, "questions should be freely permitted and answered, since all objections other than as to form are preserved for the trial and may be raised at that time" (Id.). Palpably improper questions include those that seek legal conclusions or are otherwise related to a party's understanding of his or her legal contentions (Lobdell v S. Buffalo Ry., 159 AD2d 958 [4th Dept [*3]1990]).

In 2006, part 221 of the Uniform Rules for Trial Courts, entitled "Uniform Rules for the Conduct of Depositions," was adopted (22 NYCRR 221). Section 221.2 requires deponents to

answer, all questions at a deposition, except: (I) to preserve a privilege or right of confidentiality; (ii) to enforce a limitation set forth in an order of a court; or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person.

"These . . . rules also were nothing new but rather a useful regulatory guide to effectuate application of CPLR § 3113(c) and to otherwise reconfirm controlling case law" (Sciara v Surgical Assoc. of W.NY, P.C., 32 Misc 3d 904, 908 [Sup Ct, Erie County, 2011]; see also Pedraza v. N.Y.C. Transit Auth., 2016 WL 270825 *8 [Sup Ct, New York County, 2016] [Part 221 "was designed to combat obstructive behavior during a deposition . . .[and] prohibits an attorney from directing a deponent not to answer, except in certain circumstances"]).

With respect to the discovery of records, "the determinative factor is whether the records sought to be discovered are material and necessary in defense of the action, or "whether the records may contain information reasonably calculated to lead to relevant evidence" (Boyea v. Benz, 96 AD3d 1558, 1559 [4th Dept 2012]). Moreover, "[t]he burden of demonstrating that certain records are immune from discovery is on the party asserting such immunity" (Wachtman v. Trocaire College, 143 AD2d 527, [4th Dept 1988]).

The Court now addresses the numerous questions Zbigniewicz was directed not to answer:

• The direction not to answer question No. 1 was improper.

Providing a Social Security number "is reasonably calculated to lead to admissible evidence", and therefore satisfies the relevance standard in CPLR 3101(a), even where plaintiff was not seeking lost earnings (Pedraza, 2016 WL 270825, at *9). A plaintiff's "Social Security number is useful, for example, in searching for his or her medical records and determining the amount of his or her Medicaid lien" (Id.).

Moreover, in defending the action, Defendants are entitled to conduct an investigation into any of Zbigniewicz' prior claims or injuries, medical treatment, and criminal history, all of which implicates the use of his Social Security number.

At the November 16, 2017 conference, Zbigniewicz' counsel stated that he objected to the disclosure of the Social Security number out of a concern for identity theft. However, at the Deposition, Defendants' counsel offered to have Zbigniewicz identify only the last four (4) digits of the Social Security number on the Transcript, and to insert an "x" in place of each of the first five (5) digits. The Law Clerk informed counsel that they could have agreed at the Deposition to insert an "x" for each of the nine (9) digits, and have the record reflect that Zbigniewicz otherwise provided his Social Security number to Defendants' attorney. Despite these efforts, aimed at alleviating Zbigniewicz' (and / or his counsel's) concern for the potential identity theft, Zbigniewicz' attorney persisted in refusing to permit Zbigniewicz to disclose his Social Security number.

• The direction to Zbigniewicz not to answer questions No. 3 and No. 4 (regarding property ownership) was improper.

Through a search of the Erie County Clerk's real property records, Defendants' counsel [*4]learned that Zbigniewicz owns real property in addition to his primary residence. Defendants' counsel attempted to question Zbigniewicz about such real property, in order to determine whether it is rural and/or investment property. These questions bear directly on Zbigniewicz' claim the injuries he sustained as a result of the MVA have adversely affected his ability to enjoy life and continue to fully partake in recreational activities.

• The direction not to answer numerous questions regarding the physical condition of several of his body parts, including, inter alia, his legs, stomach, bladder, shoulder, and groin (see questions 10, 12-33, and 36-38 above), was improper.

It is well settled that,

a plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that his physical or mental condition is affirmatively placed in controversy (Bozek v. Derkatz, 55 AD3d 1311, 1312 [4th Dept. 2008]; see also, Wachtman v. Trocaire College, 143 AD2d 527, 528 [4th Dept. 1988] ["Waiver almost invariably occurs in personal injury actions since the proof in such cases includes the nature and extent of a plaintiff's injuries"]).

In opposition to the instant application, Zbigniewicz avers that he should not be required to respond to any questions about injuries other than to his "head, neck and back," because the injuries he sustained as a result of the MVA are limited to those body parts (Affidavit of Richard S. Binko, Esq., sworn to on December 14, 2017, p.2 [FN3] ). However, Zbigniewicz' submission on the motion is not consistent with his Verified Bill of Particulars ("VBOP"), wherein he claims to have sustained the following injuries as a result of the MVA:

strain and sprain of the cervical spine; injury to the brain; post-concussion syndrome including tinnitus, hearing loss, blurry vision, dizziness, nausea, balance, problems or changes with gait, triad of Dejanie, poor sleep; strain and sprain of the thoracic spine and lumbar spine; injury to the right shoulder; multiple disc herniations and injury that has led to cervical spine surgery on 3/18/15 and lumbar spine surgery on 10/5/15; scaring from surgery; and problems swallowing due to surgery (BOP ¶9) .

Zbigniewicz further contends that all of the above injuries are, accompanied by tearing, irritation, and injury to the discs, tendons, ligaments, muscles, blood vessels, cartilages, nerves, and soft tissues of said areas, and affected the blood supply of said areas, and were accompanied by pain and suffering; limitation of motion; causation, precipitation and activation of traumatically induced degenerative changes/arthritis in the appropriate areas above which are causally related to the . . . [MVA] (Id.).

Zbigniewicz expanded on his claims and added several additional injuries during the Deposition:migraine headaches, ringing in the ears, hard to swallow, pain generating from my neck down to my arms, numbness in the fingers, stabbing in the lower back, pain in the middle of my shoulder blades, loss of bladder unexpectedly (Transcript, pp.100-101);

pain generating down my back of my legs from my lower back, pain shooting around my hip into my groin, down my groin, down my legs into my knees, leg cramps, foot cramps, can't sleep for more than an hour at a time or two hours, get dizziness, sometimes upset stomach where I want to puke (Id., at 101);pinching in the left ear, feels like somebody is putting a pencil in my ear, and might as [*5]well say depression because I'm totally depressed with the whole situation (Id, at 102).

Questions 10, 12-33, and 36-38 clearly relate to the body parts that Zbigniewicz placed into issue in his VBOP and during the Deposition

• The direction not to answer questions regarding treatment at Lifetime Health Medical Group ("Lifetime Health") (see question 8 and several others) was improper. Plaintiff's counsel directed him not to answer questions regarding Lifetime Health, based on counsel's incorrect assertion that Zbigniewicz had neither listed Lifetime Health as a medical provider, nor provided Defendants with an authorization to seek records from Lifetime Health (Transcript, pp. 136-137). However, Zbigniewicz' counsel provided Defendants' counsel with a duly executed and notarized authorization, which Defendants' attorney attached as (Exhibit A) to her Affirmation in Reply in connection with the instant motion. Zbigniewicz' counsel persists in his position that Defendants are not entitled to ask any questions about treatment at Lifetime Health, despite that the basis for his objection was shown to be factually incorrect. • The few other questions that the Court has not specifically addressed are likewise reasonably related to Zbigniewicz' claims and should have been answered.

SANCTIONS

The imposition of sanctions is governed by sections 130-1.1 et. seq. of the Rules of the Chief Administrative Judge ("Rules"). Sections 130-1.1(a), 130-1.1(c), and 130-1.2 of the Rules apply to this matter, and provide as follows:

Section 130-1.1(a)The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under Article 3, 7 or 8 of the Family Court Act.

Section 130-1.1(c) For purposes of this Part, conduct is frivolous if:(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false.Section 130-1.2The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of [*6]sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct.

Having carefully reviewed the questions Zbigniewicz was directed not to answer, not one of them is palpably improper. Rather, each directly relates to Zbigniewicz' claims, or is otherwise reasonably calculated to lead to discoverable evidence.

In addition, Plaintiff's counsel's unfounded (and factually incorrect) position regarding the Lifetime Health records, his failure to correct the record upon being shown (via Defendants' counsel's Affirmation in Reply) that he had provided defense counsel with an authorization for such records, and his failure to follow the Court's directives at the November 16, 2017 conference, lead the Court to the inescapable conclusion that his conduct was willful and contumacious.

Accordingly, it is hereby

ORDERED, that Defendants' motion is granted in all respects; and it is further

ORDERED, that Zbigniewicz shall make himself available for a follow-up deposition, at which he shall answer all of the questions he was previously directed not to answer, as well as all follow-up questions that are reasonably related thereto and calculated to lead to discoverable evidence; and it is further

ORDERED, that the parties' respective counsel shall confer and agree upon a date for the follow-up deposition and, thereafter, contact the Law Clerk to facilitate the scheduling of the deposition in the Court's jury deliberation room (Part 22); and it is further

ORDERED, that the Court imposes a sanction against Richard S. Binko, Esq., pursuant to sections 130-1.1 et. seq. of the Rules, in an amount to be determined, following submission by Defendants' counsel regarding the time she incurred in preparing for and arguing the instant motion and the time she reasonably incurs in preparing to conduct the follow up deposition. Counsel shall include her hourly billing rate in her submission.

This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.

Dated: January 8, 2018

Buffalo, New York

____________________________________

HON. TIMOTHY J. WALKER, J.C.C.

Acting Supreme Court Justice Footnotes

Footnote 1:Maund v. Sebzda, et. al., 2016-801404 (The "Related Matter").

Footnote 2:In Maund v. Sebzda, et. al., the plaintiff is represented by Philip Rimmler, Esq. and the defendants are represented by Florina Altshiler, Esq.

Footnote 3:Mr. Binko did not number the paragraphs of his affidavit.