Gholian v Mmakwe (2011 NY Slip Op 51631(U))

Gholian v Mmakwe

2011 NY Slip Op 51631(U) [32 Misc 3d 1238(A)]

Decided on September 1, 2011

Supreme Court, Kings County

Schack, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff FARBOD GHOLIAN (GHOLIAN) moves, by order to show cause, for: a

protective order, pursuant to CPLR §§ 3103 (a) and (b), to preclude defendants IFECHUKWUDE MMAKWE and MAGGIES PARATRANSIT CORPORATION from conducting a further examination before trial of plaintiff, because plaintiff had previously been deposed and provided defendants with outstanding discovery; an order, pursuant to CPLR § 3123, compelling defendants to respond to plaintiff's discovery demands; and, an award of costs, attorneys' fees and disbursements for making the instant order to show cause. Defendants oppose plaintiff's order to show cause.

Defendants IFECHUKWUDE MMAKWE and MAGGIES PARATRANSIT CORPORATION move for an order: pursuant to 22 NYCRR § 202.21 (e), striking plaintiff's note of issue and certificate of readiness, claiming outstanding discovery, and/or, pursuant to [*2]CPLR § 3126, striking plaintiff's complaint for plaintiff's wilful and contumacious failure to provide outstanding discovery to defendants; and, precluding plaintiff from presenting at trial any evidence of his alleged injuries or alleged lost earnings because of plaintiff's failure to provide outstanding discovery. Plaintiff opposes defendants' motion.

The Court, as will be explained, grants plaintiff's order to show cause to the extent of granting a protective order, precluding any further examination before trial of plaintiff. The discovery sought by defendants has already been provided to defendants. Further, defendants' motion is denied. It is untimely and the alleged outstanding discovery has been previously provided to defendants.

Plaintiff GHOLIAN, in this personal injury negligence action, was walking on a West 45th Street in Manhattan, on the afternoon of July 8, 2008, about 75 feet west of 5th Avenue, when struck by a motor vehicle. Defendant IFECHUKWUDE MMAKWE operated the subject motor vehicle and defendant MAGGIES PARATRANSIT CORPORATION owned the subject motor vehicle.

Plaintiff appeared for an examination before trial on February 17, 2010 and was deposed in a morning session and an afternoon session, from about 11:00 A.M. to almost 6:00 P.M. The actions of the attorneys at plaintiff's deposition are a matter of dispute between the attorneys for the parties. Both attorneys describe the conduct of opposing counsel as objectionable. Defendants' counsel contends that her questions were appropriate and in conformity with the CPLR. However, plaintiff's counsel contends that many of the questions posed to her client were asked and answered repeatedly to badger plaintiff, obfuscate the issues and annoy, embarrass and confuse her client.

A careful reading of plaintiff's deposition transcript demonstrates that defendants' counsel asked repeated variations of the same questions, as well as numerous extraneous and irrelevant questions. For example, defense counsel asked plaintiff regarding his vision and the last time he had his eyes checked prior to the accident at issue. The Court wonders how this is relevant. The pedestrian plaintiff was struck by defendants' motor vehicle from behind. Plaintiff's eyes are in the front, not the back of his head. The Court ordered the parties to appear on December 3, 2010 before a Judicial Hearing Officer for a supervised deposition. In that order, the Court admonished the attorneys not to use speaking objections and to act in a civil manner.

On December 2, 2011, defendants' counsel conceded liability. Plaintiff now seeks a protective order, claiming that there is no need to depose plaintiff about liability.

Also, plaintiff's counsel contends that all outstanding discovery has been provided to defendants and the only reason for defendants' counsel to continue to depose plaintiff is to harass and intimidate plaintiff.

Defendants, on March 3, 2011, made their instant motion to strike plaintiff's note of issue and certificate of readiness, which was served on October 14, 2010 and filed with the Kings Clerk on October 15, 2010, and/or strike plaintiff's complaint because of outstanding discovery. Defendants' counsel alleges that plaintiff's counsel did not serve the note of issue and certificate of readiness upon defendants' counsel, despite the October 14, 2010-affidavit of service by plaintiff's counsel. Further, defendants' counsel contends that plaintiff's counsel made a false statement in the certificate of readiness by claiming that discovery was completed. Plaintiff's [*3]counsel, in opposition to defendants' motion, claims that all discovery has been provided to defendants' counsel. The Court notes that defendant's motion to strike was made 141 days after service of the note of issue and certificate of readiness.

CPLR § 3126 provides that when a party "refuses to obey an order for disclosure

or willfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to this failure or refusal as are just" including "an order striking out pleadings or parts thereof."

"Although the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the trial court, the penalty of striking an answer for failure to disclose is extreme and should only be levied where the failure has been willful or contumacious." (Avenue C Const., Inc. v Gassner, 306 AD2d 506, 507 [2d Dept 2003], quoting Brennan v McCarthy, 255 AD2d 477 [2d Dept 1998]). (See Kihl v Pfeffer, 97 NY2d 118, 122 [1999]; Zletz v Wetanson, 67 NY2d 711, 713 [1986]; Moray v City of Yonkers, 76 AD3d 618 [2d Dept 2011]; Northfield Ins. Co. v Model Towing and Recovery, 63 AD3d 808, 809 [2d Dept 2009]; 181 South Franklin Associates, Inc. v Y & R Associates, Inc., 6 AD3d 594, 595 [2d Dept 2004]; Hinds v Price Club, 2 AD3d 585, 586 [2d Dept 2003]; Frias v Fortini, 240 AD2d 467 [2d Dept 1997]; Herrera v City of New York, 238 AD2d 475, 476 [2d Dept 1997]).

However, in the instant action, plaintiff's counsel provided defendants' counsel with outstanding HIPAA compliant authorizations from medical providers and authorizations for W-2 forms and employment records. Therefore, there is no need to strike plaintiff's note of issue and certificate of readiness and/or strike plaintiff's complaint. "A note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, such as that discovery has been completed." (Drapaniotis v 36-08 33rd Street Corp., 288 AD2d 254 [2d Dept 2001]). (See 22 NYCRR §202.21 (e); Witherspoon v Surat Realty Corp. 83 AD3d 1087 [2d Dept 2011];

Jin-Rong Yu v 2030 Embassy LLC, 83 AD3d 562 [2d Dept 2011]; Gaskin v Ilowitz, 69 AD3d 563 [2d Dept 2010]; Amoroso v City of New York, 66 AD3d 618 [2d Dept 2009]; Ferreira v Village of Kings Point, 56 AD3d 718 [2d Dept 2008]; Lynch v Vollono, 6 AD3d 505 [2d Dept 2004]; Gregory v Ford Motor Credit Co., 298 AD2d 496 [2d Dept 2002]).

Moreover, the Uniform Civil Rules for Supreme Court and County Court, in 22 NYCRR §202.21 (e), states:

Vacating note of issue. Within 20 days after service of a note

respect. [Emphasis added]

Defendants' counsel failed to move to vacate the note of issue and certificate of readiness within 20 days after plaintiff's counsel served the note of issue and certificate of readiness. Therefore, defendants' motion is untimely. (See Owen v Lester, 79 AD3d 992, 993 [2d Dept 2010]; Tirado v Miller, 75 AD3d 153, 157 [2d Dept 2010]; Spano v Omni Engineering, LLC, 69 AD3d 922 [2d Dept 2010]; Jones v Grand Opal Const. Corp., 64 AD3d 543 [2d Dept 2010]). Further, defendants' counsel failed, in her motion papers, to include an affidavit from defendants explaining the alleged outstanding discovery. An attorney's affirmation in support of the motion to vacate the note of issue is not a substitute for an affidavit by defendants.

Further, plaintiff's counsel filed with the Kings County Clerk an affidavit of service, stating that she personally mailed on October 14, 2010 the note of issue and certificate of readiness to defendants' counsel. Defendants' counsel, in ¶ 11 of her affirmation in support of the motion to strike, asserts that she was not served with the certificate of readiness. "It is a general rule that the law presumes that a letter, properly addressed, stamped, and mailed, is duly delivered to the addressee." (Trusts & Guarantee Co. v Bernhardt, 270 NY2d 350, 351[1936]). (See Holland v New York City, 271 AD2d 609 [2d Dept 2000]; Rosa v Board of Examiners, 143 AD2d 351, 352 [2d Dept 1988]). "Denial of receipt . . . standing alone, is insufficient to rebut the presumption." (Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]). Plaintiff's counsel's October 14, 2010 affidavit of service created a presumption of delivery of the note of issue and certificate of readiness. "Further, the conclusory assertions of . . . [defendants' counsel] of lack of receipt were insufficient to rebut the presumption of mailing." (Rodriguez v Wing, 251 AD2d 335, 336 [2d Dept 1998]).

With respect to plaintiff's February 17, 2010 examination before trial, there was

extensive questioning by defendants' counsel, which completed discovery. Then, in the December 2, 2010-letter from defendants' counsel to plaintiff's counsel, defendants' counsel stated "[m]y clients have agreed to concede liability for the happening of the accident . . . and still maintain all applicable defenses on the issue of damages."

The Court may issue a protective order to prevent abuse, pursuant to CPLR § 3103 (a) and "[s]uch order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person." "The determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd [a]) rests in the sound discretion of the court to which application is made." (U.S. Pioneer Electronics Corp. v Nikko Elec. Corp. of America, 47 NY2d 914, 916 [1979]). "It is axiomatic that is within the sound discretion of the Court to supervise discovery and set the scope and parameters of relevant discovery balanced against the potential prejudice. (Jenkins v City of New York, 13 AD3d 342 [2d Dept 2004])." (Bumpus v New York City Transit Authority, 23 Misc 3d 1118 [A] [Sup Ct, Kings County 2009]). (See Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 843 [2d Dept 2009]; Brandes v North Shore University Hospital, 22 AD3d 778 [2d Dept 2005]). Last month, the Appellate Division, Second Department, instructed that the "supervision of disclosure is generally left to the trial court's broad discretion." (Conte v Country of Nassau, ___AD3d___, 2011 NY Slip Op 06212 [2d Dept Aug 9, 2011]). (See Silberstein v Maimonides Medical Center, 77 AD3d 910 [2d Dept 2010]; Rinaldi v Evenflo Co., [*5]Inc., 62 AD3d 856 [2d Dept 2009]; Constantino v Dock's Clam Bar and Pasta House, 60 AD3d 612 [2d Dept 2009]).

When information has previously been discovered and additional discovery sought is not relevant, the Court, in exercising its broad discretion, may issue a protective order to limit the scope of discovery. (Wolin v St. Vincent's Hospital & Med. Ctr. of NY, 304 AD2d 348 [1d Dept 2003]). (See Lacqua v Staten Island University Hosp., 56 AD3d 529 [2d Dept 2008]). Moreover, attorney conduct that is an "unending pattern of orchestrated, obstructionist and provocative conduct intended to delay or otherwise obfuscate mandated discovery" may be sanctionable. (Mayes v UVI Holdings, Inc., 280 AD2d 153, 162 [1d Dept 2001]).

Defendants' counsel, at the February 17, 2010 deposition, badgered plaintiff with the same questions repeatedly asked in new variations, as well as with irrelevant questions. When plaintiff's counsel objected, this prevented the examination before trial from moving forward. Defendants' counsel appeared to engage in an "unending pattern of orchestrated, obstructionist and provocative conduct intended to delay or otherwise obfuscate mandated discovery." For example, the following colloquy took place in the morning session, at p. 9, lines 19 - 25: :

In the following colloquy, in the afternoon session, at p. 109, lines 1- 6, defendants' counsel engaged in abusive questioning:

book?

Plaintiff testified that after he fell on the West 46th Street sidewalk, he was taken,

while unconscious into a nearby Bank Leumi branch. The following repetitive questions were then asked, at in the morning session, at p. 48, lines 8 - 14:

Another example of provocative conduct, with badgering and asking of repetitive questions to plaintiff, took place in the afternoon session, at p. 14, line 18 - p. 17, line 11:

Therefore, it is clear that a protective order for plaintiff GHOLIAN is warranted. Plaintiff GHOLIAN should not have to answer questions that were asked and answered or irrelevant. It is clear from the February 17, 2010-deposition transcript that plaintiff GHOLIAN answered questions posed to him, including liability questions, which was subsequently conceded by defendants' counsel. (Edelstein v Glynn, 85 AD2d 693, 694 [2d Dept 1981]). All alleged outstanding discovery has been previously disclosed. Thus, a protective order will prevent unreasonable annoyance to plaintiff GHOLIAN.

ORDERED, that plaintiff FARBOD GHOLIAN's order to show cause for: a

protective order, pursuant to CPLR §§ 3103 (a) and (b), to preclude defendants IFECHUKWUDE MMAKWE and MAGGIES PARATRANSIT CORPORATION from conducting a further examination before trial of plaintiff FARBOD GHOLIAN; an order, pursuant to CPLR § 3123, compelling defendants IFECHUKWUDE MMAKWE and MAGGIES PARATRANSIT CORPORATION to respond to outstanding discovery demands; and, an award of costs, attorneys' fees and disbursements for making the instant order to show cause; is granted to the extent that no further examination before trial of plaintiff FARBOD GHOLIAN shall be conducted, and it is further

ORDERED, that defendants IFECHUKWUDE MMAKWE and MAGGIES PARATRANSIT CORPORATION's motion for an order: pursuant to 22 NYCRR

§ 202.21 (e), striking plaintiff FARBOD GHOLIAN's note of issue and certificate of readiness and/or, pursuant to CPLR § 3126, striking plaintiff FARBOD GHOLIAN's complaint for plaintiff's wilful and contumacious failure to provide defendants IFECHUKWUDE MMAKWE and MAGGIES PARATRANSIT CORPORATION with outstanding discovery; and, precluding plaintiff FARBOD GHOLIAN from presenting at trial any evidence of his alleged injuries or alleged lost earnings, is denied.

This constitutes the Decision and Order of the Court.