Herzog v Sacko Delivery & Trucking

[*1] Herzog v Sacko Delivery & Trucking 2019 NY Slip Op 50778(U) Decided on May 17, 2019 Supreme Court, Bronx County Higgitt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2019
Supreme Court, Bronx County

Margaret L. Herzog, et al., Plaintiffs,

against

Sacko Delivery & Trucking, et al., Defendants.



28392/2016E



Marc A. Stadtmauer, Esq, Stadtmauer & Associates, New York, NY, for plaintiffs

Edward J. Kelly, Esq., Kelly, Rode & Kelly, LLP, Mineola, NY, for defendants Sacko Delivery & Trucking Inc. and Santiago-Rodriguez

Robert S. Mazzuchin, Esq., Brand, Glick & Brand, P.C., Garden City, NY, for defendant Featherstone Foods, Inc.
John R. Higgitt, J.

Introduction

The motion of defendants Sacko Delivery & Trucking, Inc. and Santiago-Rodriguez ("the Sacko defendants") seeking vacatur of the note of issue and certificate of readiness, and various forms of discovery-related relief, is granted to the extent indicated below.

Factual and Procedural Background

This negligence action to recover damages, among other things, for personal injuries stems from a September 9, 2015 motor vehicle accident between a vehicle operated by defendant Santiago-Rodriguez and owned by defendant Sacko Delivery & Trucking, and a vehicle operated by the injured plaintiff. The injured plaintiff (and her husband, who asserted a derivative claim) commenced the action against the Sacko defendants on December 14, 2016. Plaintiffs' initial bill of particulars was served in May 2017. In May 2018, plaintiffs filed a supplemental summons and amended complaint, joining defendant Featherstone Foods, Inc., defendant Santiago-Rodriguez's employer, as a party defendant.

In a January 2019 "amended/supplemental verified bill of particulars," the injured plaintiff specified the following injuries resulting from the September 2015 accident: concussion, chronic post-concussive syndrome, and traumatic brain injury ("TBI"). The TBI caused the injured plaintiff to experience cognitive deficits, sensory deficits, neuro-optometric deficits, vestibular deficits, and "exacerbated anxiety and depression [that] developed subsequent to the accident, [and] rapid auditory and visual exhaustion."[FN1]

On January 23, 2019, plaintiffs filed a note of issue and certificate of readiness. The certificate of readiness stated that all known discovery had been completed; however, it also stated that CPLR 3121 examinations had been waived by defendants because they "refused to schedule" them.

The Sacko defendants seek to vacate the note of issue and, among other things, compel the injured plaintiff to provide certain discovery.[FN2] In their motion papers, the Sacko defendants complain that they were prevented from taking a full and complete deposition of the injured plaintiff because she was directed not to answer a number of material questions; the Sacko defendants also argue that they did not have records relating to the injured plaintiff's psychotherapy treatment and therefore could not question the injured plaintiff about the contents of the records. The injured plaintiff must, contend the Sacko defendants, provide (1) authorizations for the treatment records and notes of medical professionals who may have provided psychotherapy to the injured plaintiff; and (2) copies of written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, and written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems. As to the written communications, the Sacko defendants demand letters, text messages, emails, and Facebook Messenger messages (and other similar social media messages) from the injured plaintiff to eight specified individuals and four individuals identified by title.

Defendant Featherstone attempted to cross-move for relief similar to that sought by the Sacko defendants. The notice of cross motion was returned to defendant Featherstone by the County Clerk's Office for some form of correction. Although defendant Featherstone did not correct and resubmit its notice of cross motion, the papers tendered in support of the cross motion were duly submitted. Therefore, the court will consider defendant Featherstone's submission as an affirmation and accompanying exhibits in support of the Sacko defendants' motion.

Plaintiffs oppose the Sacko defendants' motion. Plaintiffs assert that the motion should be denied because the Sacko defendants failed to submit an affirmation of good faith (see 22 NYCRR 202.7[c]). With regard to the substance of the motion, plaintiffs argue that the injured plaintiff's deposition was completed and no questions posed to her were improperly blocked. (The injured plaintiff was deposed over two days by the Sacko defendants; defendant Featherstone deposed the injured plaintiff over three days.) Plaintiffs contend that defendants [*2]are not entitled to authorizations for the injured plaintiff's psychotherapy treatment records and notes because she did not affirmatively place her psychological condition in issue in this litigation in such a manner that she waived the physician-patient privilege as to psychotherapy materials. Plaintiffs object to providing copies of written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, and written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems. Plaintiffs maintain that this demand constitutes an improper fishing expedition, and is overbroad and unduly burdensome; the request also implicates information that is protected by the physician-patient privilege.

In reply, the Sacko defendants submit a conclusory affirmation of good faith.

Good Faith Affirmation

Plaintiffs are correct that the Sacko defendants failed to submit a sufficient affirmation of good faith. The conclusory affirmation of good faith submitted belatedly in reply does not satisfy the requirements of 22 NYCRR 202.7(c).

Generally, a discovery-seeking party's failure to comply with the good-faith affirmation requirement will lead to the denial of a discovery-related motion (see, e.g., Kelly v New York City Transit Auth., 162 AD3d 424 [1st Dept 2018]). Where, however, any effort to resolve the present discovery disputes non-judicially would have been futile, a party's failure to submit a sufficient affirmation of good faith will be excused (see Scaba v Scaba, 99 AD3d 610 [1st Dept 2012]; Baulieu v Ardsley Assoc., L.P., 84 AD3d 666 [1st Dept 2011]). Here, in light of the history of this litigation (including the frequency with which the parties have resorted to court intervention in connection with discovery disputes), the content of the parties' respective motion submissions and the colloquy among the court and counsel during the conference on this motion, it is apparent that the Sacko defendants' failure to include in their underlying motion papers a proper affirmation of good faith is excusable (see Carrasquillo v Netsloh Realty Corp., 279 AD2d 334 [1st Dept 2001]).

Physician-Patient Privilege Regarding the Injured Plaintiff's Psychotherapy Treatment Records and Notes

Regarding the merits of the discovery disputes, in Forman v Henkin, 30 NY3d 656, 661 (2018), the Court of Appeals reiterated the fundamental principles applicable to civil discovery:

"Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: '[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.' We have emphasized that '[t]he 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. The test is one of usefulness and reason' (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]). A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is 'material and necessary'—i.e., relevant—regardless of whether discovery is sought from another party (see CPLR 3101[a] [1]) or a nonparty (CPLR 3101 [a] [4]; see e.g. Matter of Kapon v Koch, 23 NY3d 32 [2014]). The 'statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair [*3]surprise' (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376 [1991])."

Robust discovery is tempered by certain privileges and protection from unnecessarily onerous requests. With respect to the former, as relevant here, the physician-patient privilege (CPLR 4504) protects certain communications had and information generated in the course of a physician-patient relationship. The protections of the physician-patient privilege are waived—at least to some extent—when a plaintiff commences a personal injury action (see Koump v Smith, 25 NY2d 287 [1969]). The extent of the waiver depends on the plaintiff's allegations; the plaintiff waives the privilege to the extent that he or she affirmatively places a physical or mental condition in controversy (see Brito v Gomez, 168 AD3d 1, 4, 7 [1st Dept 2018]). The burden is on the party seeking discovery of otherwise privileged material to make an evidentiary showing that the other party's physical or mental condition is in controversy (id. at 5).

Here, the Sacko defendants established that the injured plaintiff affirmatively placed in controversy her psychological condition in such a manner that she waived the physician-patient privilege regarding her psychotherapy treatment records and notes. Regardless of whether the injured plaintiff's claims of concussion, chronic post-concussive syndrome and TBI are sufficient to waive the injured plaintiff's physician-patient privilege as to her psychotherapy treatment records and notes, she included claims of "exacerbated anxiety and depression [that] developed subsequent to the accident." The connection between a claim of exacerbation of anxiety and depression, and psychotherapy treatment records and notes is manifest, as is the materiality of the degree to which (if any) the injured plaintiff's psychological injuries are associated with the September 2015 motor vehicle accident and the degree to which (if any) those injuries are explained by other causes (see Velez v Daar, 41 AD3d 164 [1st Dept 2007]).[FN3] Critically, the injured plaintiff seeks to recover damages for exacerbation of preexisting psychological conditions (see Churchill v Malek, 84 AD3d 446 [1st Dept 2011]; cf. Serra v Goldman Sachs Group, Inc., 116 AD3d 639 [1st Dept 2014]). The injured plaintiff's claims are not comprised of general allegations of anxiety and mental anguish (cf. James v 1620 Westchester Ave., 147 AD3d 575 [1st Dept 2017]; Serra v Goldman Sachs Group, Inc., supra).

In light of the nature of the injured plaintiff's claims of exacerbation of anxiety and depression and the nature of the discovery sought by the Sacko defendants, the connection between the injured plaintiff's psychological condition and her claimed injuries is clear, and medical evidence was not necessary to establish that connection (see generally Meiselman v Crown Heights Hosp., 285 NY 389, 396 [1941] ["Ordinarily, expert medical opinion evidence . . . is required when the subject-matter to be inquired about is presumed not to be within common knowledge and experience . . . to furnish the basis for a determination by a jury of unskillful practice and medical treatment by physicians; but where the matters are within the experience and observation of the ordinary jur[ors] from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary"]; cf. Brito v Gomez, 168 AD3d at 9; Budano v Gurdon, 97 AD3d 497 [1st Dept [*4]2012]).

Therefore, the Sacko defendants are entitled to authorizations for the treatment records and notes of medical professionals who provided psychotherapy to the injured plaintiff.

The authorizations should not, however, be temporally unrestricted. As noted above, a court should protect a party from unnecessarily onerous discovery requests. In gauging whether a given request is unnecessarily onerous, a court must consider and balance the strong policy supporting open disclosure, a party's need for discovery and any special burden to be borne by the opposing party (Forman v Henkin, 30 NY3d at 662). Given the injured plaintiff's claims in this action, the significant scope of discovery thus far, defendants' need for psychotherapy discovery, the sensitive nature of the discovery sought by defendants, and the need to place reasonable limitations on the breadth of discovery, the court will direct that the authorizations for the treatment records and notes of medical professionals who provided psychotherapy to the injured plaintiff shall cover the period of two years prior to the September 2015 motor vehicle accident to the present.

Communications From the Injured Plaintiff

The Sacko defendants' request copies of written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, and written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems. This request too is governed by Forman's framework.

This request is reasonably calculated to yield information that is relevant to the action. The request is focused on written statements or other written representations that the injured plaintiff made to others regarding her post-accident condition and the effects (if any) her condition had on her ability to engage in professional activities. Such statements and representations are relevant and material on the issue of the injured plaintiff's damages (both economic and non-economic), which the injured plaintiff maintains are extensive and permanent (see generally Reed v McCord, 160 NY 330, 341 [1899] ["In a civil action the admissions by a party of any fact material to the issue are always comp[]etent evidence against him [or her], wherever, whenever, or to whomsoever made"]).[FN4]

Additionally, the Sacko defendants' request was appropriately tailored under the circumstances, seeking only post-accident statements and representations that bear on a fundamental issue in the case: the extent of the injured plaintiff's damages. Also, the Sacko defendants identified particular forms of written communications that are covered by the request (e.g., letters, text messages, emails, Facebook Messenger messages), and individuals to whom the injured plaintiff may have sent such communications. By virtue of the manner in which this request was tailored, the chances that nonrelevant materials will be disclosed are remote (see Forman v Henkin, 30 NY3d at 665). Because this request is reasonably calculated to yield relevant information and appropriately tailored under the circumstances, the request does not represent a mere "fishing expedition."

Given the strong policy supporting open disclosure, defendants' need for discovery of the injured plaintiff's statements relating to her post-accident condition and the effects (if any) her [*5]condition had on her ability to engage in professional activities, and the manner in which the Sacko defendants tailored this request, the court finds that this request is not unnecessarily onerous.

Additional Deposition of the Injured Plaintiff

The court has reviewed the injured plaintiff's depositions of January 9, 2018 and January 30, 2018,[FN5] and concludes that an additional deposition of the injured plaintiff is warranted solely with respect to (1) psychotherapy treatment, (2) written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, and written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems, and (3) whether the injured plaintiff filed tax returns (not the content thereof) (see the injured plaintiff's Jan. 30, 2018 deposition transcript at 240-243; see generally Weingarten v Braun, 158 AD3d 519, 519—220 [1st Dept 2018] ["disclosure of tax returns is disfavored because of their confidential and private nature, requiring the party seeking to compel production to make a strong showing of necessity and demonstrate that the information contained in the returns is unavailable from other sources"] [internal quotation marks omitted]). Regarding the first and second subjects, the Sacko defendants should have the opportunity to question the injured plaintiff with regard to the psychotherapy treatment records and notes, and the written communications.

Given the range of the injured plaintiff's deposition testimony to date, the additional deposition shall be limited to three hours (see CPLR 3103[a]). How the Sacko defendants' counsel chooses to use those three hours is up to him or her — provided counsel confines his or her questions to the three topics listed above; however, the court notes that the injured plaintiff has provided some testimony regarding her psychotherapy treatment (see the injured plaintiff's Jan. 30, 2018 deposition transcript at 260-268).

Vacatur of the Note of Issue

Contrary to the representations in the certificate of readiness, significant discovery remained outstanding at the time the note of issue and certificate of readiness were filed and such discovery remains outstanding. Therefore, the note of issue is vacated (see 22 NYCRR 202.21[e] ["the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect"]), and the parties are directed to conduct the discovery listed below. The court is confident that counsel will continue to make bona fide efforts to meet their obligations in the discovery process (see Forman v Menkin, 30 NY3d at 662, n 2).[FN6]

Conclusion

Accordingly, it is

ORDERED, that the aspect of the moving defendants' motion for an order vacating the note of issue is granted; and it is further

ORDERED, that the note of issue and certificate of readiness for trial are vacated, and the Clerk of the Court shall restore this action to the pre-note of issue inventory of the undersigned; and it is further

ORDERED, that the aspect of the moving defendants' motion for an order compelling plaintiffs to exchange authorizations for the treatment records and notes of medical professionals who provided psychotherapy to the injured plaintiff is granted to the extent that, within 30 days after service upon them of a copy of this order with written notice of its entry, plaintiffs shall provide the defendants with authorizations permitting the defendants to obtain the records of the providers specified or described in items KK, LL, MM, NN, SS, VV, and BBB of paragraph 20 of the moving defendants' affirmation in support of the motion, and such authorizations shall cover the period of two years prior to the September 2015 motor vehicle accident to the present; and it is further

ORDERED, that the aspect of the moving defendants' motion for an order compelling plaintiffs to exchange written communications made by the injured plaintiff is granted to the extent that, within 30 days after service of a copy of this order with written notice of its entry, plaintiffs shall provide the defendants with the communications described in item M of paragraph 20 of the moving defendants' affirmation in support of the motion; and it is further

ORDERED, that the aspect of the moving defendants' motion for an order compelling the injured plaintiff to appear for a further deposition is granted solely to the extent that, within 90 days after service of a copy of this order with written notice of its entry, the injured plaintiff shall appear for a deposition, limited in duration to three hours, with respect to (1) the injured plaintiff's psychotherapy treatment, (2) written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, and written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems, and (3) whether the injured plaintiff filed tax returns (not the content thereof); and it is further

ORDERED, that the motion is otherwise denied; and it is further

ORDERED, that the parties shall appear before the undersigned in Part 14, courtroom 407, at 9:30 a.m. on September 20, 2019 for a compliance conference.

This constitutes the decision and order of the court.

Dated: May 17, 2019

Bronx, NY

John R. Higgitt, A.J.S.C. Footnotes

Footnote 1:The injured plaintiff did not allege anxiety or depression in the initial bill of particulars.

Footnote 2:In the affirmation in support of their motion, the Sacko defendants identified at least 61 specific authorizations that they seek from plaintiffs (see affirmation in support of motion, ¶ 20, items A-III). At the beginning of the court's conference on the motion, the Sacko defendants pared down their requests, identifying the following items listed in ¶ 20 of their affirmation in support of their motion that are still outstanding and desired: items M, KK, LL, MM, NN, SS, VV, and BBB. All of these items relate to psychotherapy records or notes, or written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, or written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems. The Sacko defendants' requests for the other items listed in ¶ 20 are abandoned.

Footnote 3:Anxiety and depression are both listed in the Diagnostic and Statistical Manual of Mental Disorders (5th ed.) as mental disorders, and psychotherapy, by definition, entails the treatment of mental disorders (Oxford English Dictionary, http://www.oed.com [last accessed May 15, 2019]; see Merriam—Webster Online Dictionary, https://www.merriam-webster.com/dictionary [last accessed May 15, 2019]).

Footnote 4:The timing, length and sophistication of the injured plaintiff's written communications may be relevant to her claim that she suffered cognitive deficits (see Forman v Henkin, 30 NY3d at 667).

Footnote 5:The January 2018 depositions were taken before defendant Featherstone was joined. The transcripts of the depositions taken by defendant Featherstone were not submitted on this motion.

Footnote 6:Should defendants desire an additional medical examination of the injured plaintiff following receipt of the psychotherapy records and notes, they should employ the procedure provided by CPLR 3121.