Fernandez v Soto

[*1] Fernandez v Soto 2019 NY Slip Op 50715(U) Decided on April 16, 2019 Supreme Court, Kings County Montelione, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2019
Supreme Court, Kings County

Luis B. Fernandez, Plaintiff,

against

Edwin Soto and Debora Rocha, Defendants.



501568/2012



Plaintiff is represented by Davidoff Hutcher & Citron LLP, 605 Third Avenue-34th Floor, New York, NY 10158 (212) 557-7200, Michael Wexelbaum, Esq., Andrew Rafalaf, Esq. (akr@dhclegal.com), Hon. Frank R. Seddio, of counsel (seddiolaw@gmail.com);

Defendant is represented by Mark M. Kranz, Esq., of the law firm Suslovich & Klein LLP, 1507 Avenue M, Brooklyn, NY 11230-5214 (718) 382-5700 (mark@suslovichklein.com), John Lonuzzi, Esq. (jlonuzzi@lonuzziwoodland.com), of counsel.
Richard J. Montelione, J.

The following papers were read on this motion pursuant to CPLR 2219(a): Papers Numbered

Plaintiff's Notice of Motion to Strike Errata Sheet and Corrections of Deposition Transcript, dated January 17, 2019; Attorney Affirmation of Michael Wexelbaum, affirmed on January 17, 2019; Transcript of Edwin Soto, taken on October 11, 2018 (Exhibit A); Errata Sheet (Exhibit B) 1

Defendant's Notice of Cross-Motion dated February 1, 2019; Attorney Affirmation in Opposition and in Support of Cross-Motion of Mark M. Kranz, affirmed on February 1, 2019; Affidavit of Debora Rocha, sworn to on January 31, 2019 (Exhibit A); Affirmation of Yaacov Anziska, M.D., affirmed on February 1, 2019 (Exhibit B) 2

Plaintiff's Attorney Affirmation of Andrew K. Rafalaf, Esq., affirmed on February 28, 2019; Order of the Hon. Martin Schneier, dated September 5, 2018 (Exhibit C); Affidavit of Yaacov Anziska, sworn to on May 15, 2018 (Exhibit D); Attorney Affirmation of Andrew K. Rafalaf in [*2]opposition to Defendants' motion for a protective order and in further support of plaintiff's cross-motion to compel discovery, affirmed on July 30, 2018 (Exhibit E); partial deposition of Debora Rocha taken on April 16, 2018 (Exhibit F) 3

Plaintiff's Amended Attorney Affirmation of Andrew K. Rafalaf, Esq., in opposition to Defendant's Cross-Motion, affirmed on March 6, 2019; Order of Hon. Martin Schneier, dated September 5, 2018 (Exhibit C); Affidavit of Yaacov Anziska, sworn to on May 15, 2018 (Exhibit D); Attorney Affirmation of Andrew K. Rafalaf, Esq., affirmed on July 30, 2018 (Exhibit E); Partial deposition transcript of Debora Rocha taken on April 16, 2018 (Exhibit F).4

Defendant's Attorney Affirmation of Mark M. Kranz, Reply Affirmation in further opposition and in further support of Cross-Motion, affirmed on March 6, 2019 5

Plaintiff's Memorandum of Law dated January 17, 2019, Davidoff Hutcher & Citron LLP, Michael Wexelbaum, Esq., Andrew Rafalaf, Esq., of Counsel 6

This action was commenced by filing of a summons and complaint on June 18, 2012. Plaintiff seeks specific performance directing the transfer of defendants' real property to plaintiff pursuant to the terms of a residential contract of sale.

Background

The parties to this action are not strangers to each other. The plaintiff's wife, who is not a party, and defendant Soto's wife, who is a party, are sisters. There is a contract of sale of the defendants' residence to the plaintiff for $1,800,00.00. There are emails between and among the parties and plaintiff's wife, purporting to show a side agreement providing for an additional payment of $400,000.00 for a total sales price of $2,200,000.00. The Answer, inter alia, alleges that the side agreement was to avoid paying of some of the real estate taxes. The closing was scheduled for June 7, 2012 at 11:00AM, under a "time of the essence" deadline. The fair market value of the residence at the time the sale was scheduled is unknown. The questions asked at the deposition and references to certain emails show a fair amount of inter-familial recriminations which are not typical in an arm's length transaction.[FN1]

Prior Relevant Order

The court by Order of the Hon. Martin Schneier, dated September 5, 2018, directed the deposition of Edwin Soto at his home and limited the deposition to certain areas of questioning and to a time limit of two hours.

Motion and Cross-Motion

The deposition of defendant Soto took place on October 11, 2018. The defendants' counsel thereafter received and returned the deposition transcript and served an errata sheet upon plaintiff's counsel. The plaintiff's motion seeks to strike the proposed errata sheet of the defendant Edwin Soto pursuant to CPLR 3116(a) because some of the changes were substantive in nature and the questions were simple enough that they could not be "misunderstood" which is the reason given for all the changes in the transcript. (ie. Plaintiff's Memo of Law, p. 7, ¶ f, "Page 56, Line 22-Changing 'No' to 'I don't remember,' in response to a simple and straightforward question as to whether he ever discussed the payment of the $400,000 at issue in [*3]this lawsuit with Plaintiff's wife"). Defendants oppose the motion and cross-move to strike the deposition transcript as unreliable.

Although this motion was originally argued before another justice, this matter was referred to the undersigned. Both parties waived their respective rights under Judiciary Law § 21 and agreed this matter would be "submitted" to the undersigned without further oral argument.

There is an unrebutted affirmation from defendant Edwin Soto's treating physician, Yaacov Anziska, M.D., affirmed on February 1, 2019 indicating that Mr. Soto suffers from "Myotonic Dystrophy Type 1, which is a debilitating muscular disease that causes overall muscle weakness, cardiac dysfunction, and difficulty breathing" since 1999 and "Mr. Soto is also suffering from a form of dementia which severely impacts his ability to accurately recall prior events, concentrate, make decisions, as well as to accurately process and respond to information and questions being presented and asked of him." (There is also an earlier physician affidavit sworn to on May 15, 2018).

The deposition transcript of October 11, 2018 of defendant Soto is replete with instances where defendant Soto could not recall basic information. Mr. Soto was not familiar with the current lawsuit (Plaintiff's Motion, Exhibit A, Transcript of October 11, 2018,[FN2] p. 19, L. 11-15). Mr. Soto could not remember having a conversation with his lawyer about the sale of the premises (T. 19, LL. 22-23), or signing a contract of sale for the subject premises or his wife signing a contract of sale (T. 21, LL. 6-14). Mr. Soto did not recognize his own signature or that of his wife on the purported contract of sale (T. 21, LL. 24-25; T. 22, LL. 2-15, T. 24, LL. 3-9), he had no recollection of the sales price (T. 26, L. 17), could not recall his work address at the time of the sale (T. 35), had no memory of emails purportedly between and/or among the parties (T. 42), and could not recall the scheduled closing (T. 74, L. 22). See also T. 85, LL. 22-25, T. 86-87.

Notwithstanding certain and clear instances where the defendant Soto was prompted by his counsel (ie. T. 15, LL. 7-18; Pl's Attorney Aff. Of 1/17/2019, ¶¶s 9-11), the transcript, together with an unrebutted treating physician affidavit from Dr. Yaacov Anziska indicating Mr. Soto suffers from a form of dementia, and who opined that defendant's testimony was "totally unreliable" based on his condition, clearly reveals a party who may not be capable of testifying to the facts in this lawsuit. Many of the prompted answers may have been changed from "no" to "cannot remember" but a person suffering from dementia who does not remember a particular event may just as likely answer "no" as "cannot remember" because he does not remember.[FN3]

Although plaintiff argues that if the transcript is stricken it would be the equivalent of defendant failing to appear for his deposition in violation of the court's order of September 5, 2018, this is a false equivalence. First, the court's order does not address the unrebutted physician affirmation [*4]and in directing that the deposition take place at defendant Soto's home with limitations of time and subject matter, some consideration was given to defendant Soto's medical condition. Second, the court's order of September 5, 2018 did no more than afford the plaintiff an opportunity to obtain material and relevant information, but the source of that information, Soto himself, in the course of his bed-side deposition, appears to be unreliable in providing testimony for any party in this suit. The transcript itself and the errata sheet, the unrebutted physician affirmation, the defendant's multiple failures to remember particular events and to mistake facts that would have been easily known to someone who was not impaired, raises a significant issue as to the need to strike the transcript and the errata sheet. (CPLR 3116[a]).

Courts have discretion to issue protective orders when there is unrebutted medical evidence reflecting a disability that affects giving testimony. (See and cf. Verini v. Bochetto, 49 AD2d 752, 372 N.Y.S.2d 690 [AD 2nd Dept. 1975], NY App. Div. LEXIS 10734, where the Court held that Special Term abused its discretion in failing to issue a protective order and directing a deposition when unrebutted medical evidence existed regarding jeopardizing deponent's health who was suffering from an advanced stage of cancer and recuperating from surgery; See also Melohn v Beard, 167 AD2d 174 [1st Dept 1990], citing Verini, where trial court was reversed for failure to issue a protective order where unrefuted medical evidence indicated the party was suffering from high blood pressure and colitis, the deposition had to cease after one and a half-hours because of this malady, and where the party "agreed to produce a nonparty witness with knowledge, and the testimony elicited from plaintiff was of no evidentiary value. [CPLR 3103; see, Verini v Bochetto, 49 AD2d 752]." Here, the court finds that although defendant's testimony has no evidentiary value, his wife is apparently knowledgeable inasmuch as this defendant was deposed about the underlying facts. Cf. Melohn v Beard, supra.

None of the cases cited by plaintiff involve an incapacitated person suffering from Myotonic Dystrophy Type 1 and dementia or similar medical condition. Plaintiff argues that the physician affidavit is unreliable because the doctor was not present at the deposition, that defendant Soto's wife does not have a home health care attendant full time and he is otherwise alone during the week, and he makes lunch for himself. Plaintiff argues that if defendant Soto's health was as bad as described, he would need "around the clock care." The court declines to consider the sufficiency of the level of care provided to defendant Soto.

The party opposing the protective order on the basis of a medical condition has a right to review the medical records and examine the party seeking such an order. (In Re Trotta, 2010 NY Slip Op 30740[U] [Sur Ct, Nassau County 2010]; Matter of Martin, 2 Misc 3d 1008[A], 2004 NY Slip Op 50194[U] [Sur Ct, Nassau County 2004]). Here, the issue is not a protective order but striking a deposition transcript that appears unreliable. The principal involving both is the same-whether a medical condition exists that renders testimony unreliable. The plaintiff made first hand observations at Soto's deposition and chose not to seek such medical review or examination by his own doctor. Plaintiff also had a prior opportunity to seek medical records and an independent medical evaluation when the issue was raised in an earlier motion. This court will not sua sponte order such a review or examination at this time.

There is no indication in any of the papers before the court as to whether a guardian or guardian ad litem has ever been appointed to represent the interest of the defendant Edwin Soto.

Regarding the appointment of a guardian ad litem, under CPLR § 1202:

(a) By whom motion made. The court in which an action is triable may appoint a [*5]guardian ad litem at any stage in the action upon its own initiative . . . A person shall appear by his guardian ad litem . . . if (s/)he is an adult incapable of adequately prosecuting or defending his (her) rights."

The defendant Edwin Soto appears to be incapacitated and based on the particular facts of this case, the court on its own motion appoints Stephen A. Spinelli, Esq. (Fiduciary ID 770319), 1861 86th Street, Brooklyn, NY 11214 (718-256-3333), SSPINELLI@SPINELLILAW.COM, as guardian ad litem ("GAL"), for defendant Edwin Soto, to appear for and protect his interests, in the above-entitled proceeding. Such appointment is contingent upon the GAL filing proper papers consenting to serve as GAL for the above-named person under disability, and to appear for and protect his interests in the above-entitled proceeding, and providing that the GAL have no interest in the proceedings adverse to that of the defendant Edwin Soto, and further providing that he is not connected in business with the attorneys or counselors of any party hereto.

Based on the foregoing, the defendants' cross-motion is granted to the extent that the transcript may not be used for any purpose at trial and denied in all other respects and the plaintiff's motion is denied as moot. This matter was previously scheduled for a settlement conference on April 10, 2019 and for trial on April 29, 2019. The trial shall proceed as scheduled, but counselors are directed to consult one another, and to jointly contact chambers, regarding scheduling a mutually convenient status and/or settlement conference.

This constitutes the decision and order of the court.

Dated: April 16, 2019

Brooklyn, NY

Hon. Richard J. Montelione Footnotes

Footnote 1:An arm's-length transaction (1931) is defined in Black's Law Dictionary (10th ed. 2014) as: 1. A transaction between two unrelated and unaffiliated parties. 2. A transaction between two parties, however closely related they may be, conducted as if the parties were strangers, so that no conflict of interest arises.

Footnote 2:Hereinafter "T."

Footnote 3:In no way does this court condone the clearly improper conduct of defendant's counsel who prompted his witness to change some of his answers. (See 22 NYCRR 130-1.1). But the changed answers of "no" to "cannot remember" are substantially and qualitatively different from someone detailing a specific event who then changes their response to "cannot remember." Notwithstanding, any prompting, especially of one suffering from dementia, is unacceptable. (See 22 NYCRR 130-1.1).